[Federal Register Volume 71, Number 213 (Friday, November 3, 2006)]
[Notices]
[Pages 64761-64764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-18520]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket Nos. NHTSA-2003-15470 and NHTSA-2003-16031]


Denial of Petitions for Import Eligibility for Nonconforming 
2001-2002 Mitsubishi Evolution VII and 2003 Mitsubishi Evolution VIII 
Left Hand Drive Passenger Cars

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Denial of Petitions for Import Eligibility for nonconforming 
2001-2002 Mitsubishi Evolution VII and 2003 Mitsubishi Evolution VIII 
left hand drive passenger cars.

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SUMMARY: This document sets forth the reasons for denial of two 
petitions submitted to the National Highway Traffic Safety 
Administration (NHTSA) requesting the agency to decide that left-hand 
drive (LHD) 2001-2002 Mitsubishi Evolution VII and 2003 Mitsubishi 
Evolution VIII LHD passenger cars that were not originally manufactured 
to comply with all applicable Federal Motor Vehicle Safety Standards 
(FMVSS) are eligible for importation into the United States. The 
petitions contended that 2001-2002 Mitsubishi Evolution VII LHD 
passenger cars are eligible for importation because they have safety 
features that comply with, or are capable of being altered to comply 
with, all applicable FMVSS, and that 2003 Mitsubishi Evolution VIII LHD 
passenger cars are eligible for importation because they are 
substantially similar to vehicles that were originally manufactured for 
importation into and sale in the United States and that were certified 
as complying with the safety standards (the U.S.-certified version of 
2003 Mitsubishi Evolution VIII LHD passenger cars), and are capable of 
being readily altered to conform to those standards.

DATES: These denials were effective December 21, 2004. The agency 
notified the petitioner at that time that the subject petitions were 
being denied under 49 CFR 593.7(e).

FOR FURTHER INFORMATION CONTACT: Coleman Sachs, Office of Vehicle 
Safety Compliance, NHTSA (202-366-3151).

SUPPLEMENTARY INFORMATION:

Background

    Under 49 U.S.C. 30141(a)(1)(A), a motor vehicle that was not 
originally manufactured to conform to all applicable FMVSS shall be 
refused admission into the United States unless NHTSA has decided that 
the vehicle is substantially similar to a motor vehicle originally 
manufactured for importation into and sale in the United States, 
certified under 49 U.S.C. 30115, and of the same model year as the 
model of the motor vehicle to be compared, and is capable of being 
readily altered to conform to all applicable FMVSS.
    Where there is no substantially similar U.S.-certified motor 
vehicle, 49 U.S.C. 30141(a)(1)(B) permits a nonconforming motor vehicle 
to be admitted into the United States if its safety features comply 
with, or are capable of being altered to comply with, all applicable 
FMVSS based on destructive test data or such other evidence that NHTSA 
decides to be adequate.
    Petitions for eligibility decisions may be submitted by either 
manufacturers or importers who have registered with NHTSA pursuant to 
49 CFR part 592. As specified in 49 CFR 593.7, NHTSA publishes notice 
in the Federal Register

[[Page 64762]]

of each petition that it receives, and affords interested persons an 
opportunity to comment on the petition. At the close of the comment 
period, NHTSA decides, on the basis of the petition and any comments 
that it has received, whether the vehicle is eligible for importation. 
The agency then publishes this decision in the Federal Register.
    On February 10, 2003, G&K Automotive Conversion, Inc., of Santa 
Ana, California (G&K) (Registered Importer 90-007) petitioned the 
agency to decide that 2001-2002 Mitsubishi Evolution VII LHD passenger 
cars are eligible for importation. On April 14, 2003, G&K petitioned 
NHTSA to decide that 2003 Mitsubishi Evolution VIII LHD passenger cars 
are eligible for importation. NHTSA published a notice of the petition 
for the 2003 Mitsubishi Evolution VIII LHD passenger cars on June 30, 
2003 (68 FR 38750) and a notice of the petition for the 2001-2002 
Mitsubishi Evolution VII LHD passenger cars on September 3, 2003 (68 FR 
52454). The notices thoroughly described the petitions and solicited 
public comments thereon. The agency received two comments in response 
to the notices. The first of these was from an anonymous source. The 
anonymous commenter expressed the belief that the petition for the 2003 
Mitsubishi Evolution VIII LHD passenger cars was defective in that it 
did not remotely demonstrate that the non-U.S. certified vehicles were 
substantially similar to any U.S. certified vehicles, and that the 
petition should therefore be denied.
    The second comment was from Mitsubishi Motors North America, Inc. 
(Mitsubishi), the U.S. representative of the vehicles' original 
manufacturer. In its comments, Mitsubishi raised issues concerning the 
basis for both petitions, and identified details it contended G&K had 
overlooked in describing alterations needed to conform the vehicles to 
certain of the FMVSS. The agency accorded G&K an opportunity to respond 
to Mitsubishi's comments, and also asked G&K to provide additional 
data, views, and arguments with regard to certain issues raised in the 
petitions. After G&K responded, the agency gave Mitsubishi an 
opportunity to rebut those responses. Mitsubishi requested, and was 
granted, confidentially under 49 CFR part 512 with regard to certain 
information that it submitted as part of its comments. The comments, 
responses, and rebuttals are summarized below, together with NHTSA's 
analysis of each matter at issue.

1. Attempted Reliance on Eligibility Decision Covering 2003 Mitsubishi 
Evolution VIII Passenger Cars To Establish Eligibility for 2001 and 
2002 Mitsubishi Evolution VII LHD Passenger Cars

Arguments Raised

    G&K informed NHTSA that it intended to make a showing that the 
Evolution VII passenger cars are eligible for importation without the 
need for providing crashworthiness or crash avoidance test data 
normally required to demonstrate eligibility under 49 U.S.C. 
30141(a)(1)(B). To accomplish this, G&K stated that it would first show 
that the Evolution VIII passenger cars are eligible for importation 
through a petition filed under 49 U.S.C. 30141(a)(1)(A), establishing 
that those vehicles are substantially similar to vehicles of the same 
make, model and model year that were manufactured for importation into, 
and sale in, the United States. G&K stated that it would then compare 
the Evolution VII passenger cars (which have no substantially similar 
U.S.-certified counterparts) to the Evolution VIII passenger cars 
determined eligible for importation, to establish that the Evolution 
VII passenger cars have safety features that comply with, or are 
capable of being altered to comply with, all applicable FMVSS, as is 
necessary to achieve import eligibility under 49 U.S.C. 30141(a)(1)(B).

Agency's Analysis

    The approach proposed by G&K is similar in concept to how a vehicle 
can be determined eligible for importation under 49 U.S.C. 
30141(a)(1)(A) based on its substantial similarity to a vehicle of the 
same make, model, and model year that was certified by its manufacturer 
as conforming to all applicable FMVSS. However, because Mitsubishi 
never certified model year 2001 and 2002 Evolution VII passenger cars 
as conforming to all applicable FMVSS, the only basis for finding non-
U.S. certified versions of those vehicles eligible for importation 
would be under 49 U.S.C. 30141(a)(1)(B). To establish import 
eligibility under that section, a petitioner must demonstrate that the 
vehicle has safety features that comply with, or are capable of being 
altered to comply with, all applicable FMVSS based on destructive test 
data or such other evidence that NHTSA decides to be adequate. With 
respect to those FMVSS for which crash testing would otherwise be 
required, other evidence the agency will consider may include a 
comparison to a vehicle that has already been determined eligible for 
importation. To the extent that it is dependent on a finding that 
Evolution VIII passenger cars are eligible for importation, G&K's 
attempt to establish import eligibility for Evolution VII models cannot 
succeed, because, as set forth below, the agency has concluded that 
Evolution VIII are not eligible in their own right.

2. Whether the Non-U.S. Certified 2003 Evolution VIII Is Substantially 
Similar to the U.S.-Certified Model

    In its petition covering the 2003 Evolution VIII, G&K contended 
that the differences between the non-U.S. certified version of that 
vehicle and its U.S.-certified counterpart are mostly cosmetic. 
Mitsubishi disagreed. Both Mitsubishi and the anonymous commenter 
pointed out that the very press release announcing the introduction of 
the Evolution VIII into the U.S. market, which was included by G&K as 
attachment in support of its petition, states that there are 
significant structural differences between the non-U.S. certified 2003 
Evolution VIII and its U.S.-certified counterpart, and further 
described the U.S.-certified version as having been developed 
exclusively for the U.S. market to meet crashworthiness and emissions 
requirements. Mitsubishi also stated that structural differences alone 
preclude a finding that the nonconforming 2003 Evolution VIII vehicles 
are readily capable of being altered to comply with all applicable 
FMVSS.

Agency Analysis

    Based on its evaluation of the petition and the comments received, 
NHTSA concluded that there are significant structural differences 
between the U.S.-certified and the non-U.S. certified versions of the 
2003 Evolution VIII, precluding the non-U.S. certified model from being 
found eligible for importation under 49 U.S.C. 30141(a)(1)(A). These 
differences are discussed in greater detail below with regard to FMVSS 
Nos. 208 and 214 compliance issues.

3. Issues Involving Specific Standards

    Mitsubishi made specific comments regarding the capability of the 
non-U.S. certified 2003 Evolution VIII passenger cars to be modified to 
meet the requirements of certain standards. A discussion of these 
comments is set forth below, in the numerical order of the standards to 
which the comments relate.

[[Page 64763]]

(a) FMVSS No. 118 Power-Operated Window, Partition, and Roof Panel 
Systems
    The petition states that the vehicles meet the requirements of 
FMVSS No. 118 as originally manufactured. Mitsubishi asserted that this 
is incorrect, and that the power window switch, door wiring, ECU, power 
window regulator, and other vehicle systems must be modified or 
replaced to meet the requirements of the standard. G&K responded by 
expressing the belief that the only modification needed to conform the 
non-U.S. certified vehicles to the standard was to reprogram the 
vehicle's microprocessor-operated Simplified Wiring System (SWS). 
Mitsubishi countered by explaining that the SWS system in the non-U.S. 
certified vehicles cannot be reprogrammed to comply with the standard, 
and that replacement of the Electronic Time & Alarm Control System and 
appropriate wiring harness were required instead. G&K disputed 
Mitsubishi's claim that the SWS system is not programmable by citing 
contrary evidence that it found in an unidentified ``service manual''.

 Agency Analysis

    NHTSA was not persuaded by G&K's citation to the service manual 
that the power-operated window systems could be conformed to the 
standard by reprogramming alone. Instead, the agency concluded that 
replacement of the power window switches, power window regulators, 
Electronic Time & Alarm Control System and its software, and 
appropriate wiring harnesses would be required for the vehicles to 
conform to the standard.
(b) FMVSS No. 201 Occupant Protection in Interior Impact
    The petition states that no structural modifications to the dash 
area are necessary to achieve compliance with this standard. Mitsubishi 
asserted that this is incorrect because there are no energy absorbing 
materials in the headliners of non-U.S. certified vehicles as required 
by the standard.
    In response, G&K agreed that six pieces of energy absorbing 
material, which it identified by part number, would need to be 
installed in the headliner area to conform non-U.S. certified vehicles 
to the standard. Mitsubishi concurred that this modification would need 
to be made, but noted additional parts necessary to conform the 
vehicles to the standard that were omitted by G&K. Those additional 
parts are the headliner and center pillar upper trim. G&K stated that 
it is prepared to install the readily attachable headliner pieces of 
energy absorbing material, if necessary to achieve conformance to the 
standard.

 Agency Analysis

    In view of Mitsubishi's comments and G&K's responses, NHTSA 
concluded that six pieces of energy absorbing material would have to be 
installed in the headliner area, together with the headliner itself and 
the center pillar upper trim, for non-U.S. certified vehicles to be 
brought into conformity with the standard.
(c) FMVSS No. 208 Occupant Crash Protection
    The petition states that the non-U.S. certified vehicles meet the 
requirements of this standard as originally manufactured. Asserting 
that this is incorrect, Mitsubishi contended that there are differences 
in the body structure between U.S.-certified and non-U.S. certified 
Evolution VIII passenger cars that affect compliance with the standard. 
Mitsubishi also claimed that the non-U.S. certified vehicles are not 
fitted with knee protectors and have a different type of front deck 
cross-pipe, instrument panel undercover, and glove box, all of which 
have bearing on Standard 208 compliance. G&K countered by observing 
that three components in the area of the dashboard (the glovebox, cover 
dash under, and center compartment) have part numbers that are 
identical for both U.S.-certified and non-U.S. certified Evolution VIII 
passenger cars.
    In response, Mitsubishi reemphasized its contention that there are 
significant differences between U.S.-certified and non-U.S. certified 
Evolution VIII passenger cars with regard to the instrument panel 
undercover and glove box. Mitsubishi also noted that G&K failed to 
address its observation that the non-U.S. certified vehicles are 
lacking the knee protectors that are present in the U.S.-certified 
vehicles.
    Mitsubishi further noted that G&K failed to specify that the body 
structure of the U.S.-certified vehicles has to be strengthened to 
assure conformance with FMVSS Nos. 208 and 214. To comply with those 
standards, Mitsubishi contended that the U.S.-certified Evolution VIII 
is reinforced at the front left side member (A-pillar) by the addition 
of three stamped steel press plates that are not included in the body 
structure of the non-U.S. certified vehicle. Mitsubishi also contended 
that the left and right body side sills have four additional stamped 
steel reinforcement plates, and that both the left and right center 
pillars have two additional stamped steel plates in the floorboard 
area, all of which affect compliance with FMVSS No. 208 and are 
required to achieve compliance with FMVSS No. 214.
    Mitsubishi stated that the U.S.-certified vehicle also has a 
specially tuned ECU algorithm, because the vehicle has many reinforced 
components that are not included in non-U.S. certified versions of the 
Evolution VIII. To assure compliance with FMVSS No. 208 (as well as 
FMVSS No. 214), Mitsubishi postulated that G&K would have to reinforce 
the front left side member (A-pillar in the engine compartment area), 
the body side sill outer shell, as well as the inner portion of the 
center pillar (B-pillar). Once these reinforcements were completed, 
Mitsubishi contended that G&K would then have to perform technically 
complex ECU algorithm matching.
    Mitsubishi also asserted that G&K should be required to replace 
each of the above-described nonconforming vehicle parts with the 
corresponding parts that are equipped on U.S.-certified models. 
Mitsubishi added that because the installation of the reinforcements 
detailed above requires welding and involves structural changes 
necessary for conformance to FMVSS Nos. 208 and 214, G&K should be 
required to submit test or other data to demonstrate that its welded 
reinforcements actually are sufficient to meet the exacting 
requirements of those standards. Finally, because of the critical 
safety implications of the complex ECU algorithm matching, Mitsubishi 
asserted that G&K should be required to submit test data showing that 
its modifications to the ECU algorithm produce a vehicle that fully 
complies with FMVSS No. 208.
    G&K responded by simply restating that the glovebox, cover dash 
under, and center compartment have part numbers that are identical for 
both the U.S.-certified and the non-U.S. certified Evolution VIII 
passenger cars. G&K also cited maintenance manual diagrams and 
photographs that it claimed illustrate that the internal structure of 
the U.S.-certified and the non-U.S. certified Evolution VIII passenger 
cars are substantially similar.

Agency Analysis

    NHTSA accorded G&K the opportunity to show that the body structures 
on the U.S.-certified and the non-U.S. certified vehicles that are 
pertinent to compliance with this standard are substantially similar by 
providing cutout sections or x-ray images for examination by NHTSA

[[Page 64764]]

engineers. Although it stated it would do so, G&K never provided this 
material to the agency. Based on its review of the manufacturer's 
detailed drawings of both the U.S.-certified and the non-U.S. certified 
versions of Evolution VIII passenger cars, NHTSA has concluded that the 
relevant structures of the vehicles are not substantially similar and 
would not perform the same in FMVSS No. 208 crashworthiness testing.
(d) FMVSS No. 209 Seat Belt Assemblies
    The petition stated that the vehicles meet the requirements of 
FMVSS No. 209 as originally manufactured. Mitsubishi asserted that this 
is incorrect and that the seat belt assemblies must be replaced with 
components that meet the requirement of the standard. G&K responded by 
admitting that the seat belts in the front outboard seating positions 
must be replaced and that each vehicle must be inspected individually 
to ascertain the need for other seat belts to be replaced to achieve 
compliance with this standard. In its next comment, Mitsubishi agreed 
that the front belt seat assemblies will have to be replaced, but 
observed that part numbers cited by G&K do not comprise the entirety of 
the seat belt assemblies. Mitsubishi also contended that G&K should be 
required to replace the entire front seat belt assemblies to conform 
the non-U.S. certified vehicle to the standard. G&K responded by 
reiterating its plan to simply replace the front seat belt assemblies 
based on the part numbers assigned to those components. G&K further 
asserted that the three rear seat belt assemblies in the non-U.S. 
certified Evolution VIII passenger cars meet the requirements of FMVSS 
No. 209 as originally manufactured.

 Agency Analysis

    Based on the above exchange, NHTSA concluded that seat belt 
assembly components in all non-U.S. certified Evolution VIII passenger 
cars would have to be inspected, and any non-U.S.-model seat belt 
components would have to be replaced with U.S.-model components on 
vehicles not already so equipped.
(e) FMVSS No. 214 Side Impact Protection
    The petition stated that the vehicles meet the requirements of 
FMVSS No. 214 as originally manufactured. Mitsubishi asserted that this 
is incorrect and that non-U.S. certified vehicles lack chest protecting 
energy absorbing pads in the interior door trim and do not have side 
impact bars specifically reinforced to comply with the standard. G&K 
responded by stating that all vehicles must be inspected for the 
presence of U.S.-model door bars and chest protecting pads, and that 
vehicles without such components must have them installed to achieve 
compliance with this standard. Mitsubishi then observed that G&K did 
not identify the criteria that it will use for determining whether it 
is necessary to add the missing door bars. Mitsubishi also emphasized 
that G&K had omitted any reference to the fact that the non-conforming 
vehicles lack protecting pads in the rear door area and had neglected 
to mention any of the body structure modifications pertinent to 
compliance with both FMVSS Nos. 208 and 214.
    Mitsubishi stated in summation that ``G&K should be required to add 
rear door area protecting pads, and should be required to install 
crossbars identical to the ones in U.S.-certified Evolution VIII 
vehicles in all nonconforming vehicles that do not have the same 
crossbars as are in US.-certified models. In addition, because these 
modifications are structural and require welding--as would the 
modifications pertinent to both FMVSS Nos. 208 and 214 (which were 
discussed above in connection with FMVSS No. 208)--G&K should be 
required to submit test or other data that demonstrate that its 
modifications would meet the critical safety requirements of FMVSS No. 
214.''
    G&K responded with the observation that NHTSA has allowed the 
installation of welded-in door bars in vehicles granted import 
eligibility under 49 U.S.C. 30141(a)(1)(A) in many instances without 
the need for providing crashworthiness test reports.

 Agency Analysis

    NHTSA accorded G&K the opportunity to show that the body structures 
on the U.S.-certified and the non-U.S. certified vehicles that are 
pertinent to compliance with this standard are substantially similar by 
providing cutout sections or x-ray images for examination by NHTSA 
engineers. Although it stated it would do so, G&K never provided this 
material to the agency. Based on its review of the manufacturer's 
detailed drawings of both the U.S.-certified and the non-U.S. certified 
versions of Evolution VIII passenger cars, NHTSA has concluded that the 
relevant structures of the vehicles are not substantially similar and 
would not perform the same in FMVSS No. 214 crashworthiness testing.
(f) FMVSS No. 225 Child Restraint Anchorage Systems
    The petition stated that the vehicles must be modified to comply 
with the requirements of FMVSS No. 225, but provided no description of 
those modifications. Mitsubishi observed that by failing to provide 
that description, G&K had not met its burden for establishing that the 
vehicles are capable of being readily modified to meet the requirements 
of the standard.

 Agency Analysis

    G&K did not provide sufficient data, views, and arguments for NHTSA 
to conclude that non-U.S. certified Evolution VIII passenger cars are 
capable of being readily altered to conform to FMVSS No. 225.
(g) FMVSS No. 301 Fuel System Integrity
    The petition stated the vehicles must be modified to comply with 
requirements of FMVSS No. 301, but provided no description of those 
modifications. Mitsubishi responded that absent such a description, G&K 
had not met its burden for establishing that the vehicles are capable 
of being readily modified to meet the requirements of the standard.

 Agency Analysis

    G&K did not provide sufficient data, views, and arguments for NHTSA 
to conclude that non-U.S. certified Evolution VIII passenger cars are 
capable of being readily altered to conform to FMVSS No. 301.

Decision

    Based on the foregoing, NHTSA concluded that the petitions do not 
clearly demonstrate that the subject vehicles are eligible for 
importation. The petitions were accordingly denied under 49 CFR 
593.7(e).
    As provided in 49 CFR 593.7, NHTSA will not consider a new import 
eligibility petition covering the vehicles that are the subject of the 
petitions until at least three months from the date of this notice.

    Authority: 49 U.S.C. 30141(a)(1) and (b)(1); 49 CFR 593.7; 
delegations of authority at 49 CFR 1.50 and 501.8.

    Issued on: October 27, 2006.
Jeffrey Giuseppe,
Acting Director, Office of Vehicle Safety Compliance.
 [FR Doc. E6-18520 Filed 11-2-06; 8:45 am]
BILLING CODE 4910-59-P