81 FR 11354 - Decision That Certain Nonconforming Model Year 2006-2007 European Market Ferrari 599 GTB Passenger Cars Manufactured Prior to September 2007 Are Eligible for Importation

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration

Federal Register Volume 81, Issue 42 (March 3, 2016)

Page Range		11354-11358
FR Document		2016-04616
This document announces a decision by the National Highway Traffic Safety Administration (NHTSA) that certain model year (MY) 2006-2007 European market Ferrari 599 GTB passenger cars (PCs) manufactured prior to September 2007 that were not originally manufactured to comply with all applicable Federal motor vehicle safety standards (FMVSS), are eligible for importation into the United States because they are substantially similar to vehicles originally manufactured for importation into and sale in the United States that were certified by their manufacturer as complying with the safety standards (the U.S. certified version of the MY 2007 Ferrari 599 GTB PC), and they are capable of being readily altered to conform to the standards.
Federal Register, Volume 81 Issue 42 (Thursday, March 3, 2016)
[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11354-11358]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-04616]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2013-0109, Notice 2]


Decision That Certain Nonconforming Model Year 2006-2007 European 
Market Ferrari 599 GTB Passenger Cars Manufactured Prior to September 
2007 Are Eligible for Importation

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Grant of petition.

-----------------------------------------------------------------------

SUMMARY: This document announces a decision by the National Highway 
Traffic Safety Administration (NHTSA) that certain model year (MY) 
2006-2007 European market Ferrari 599 GTB passenger cars (PCs) 
manufactured prior to September 2007 that were not originally 
manufactured to comply with all applicable Federal motor vehicle safety 
standards (FMVSS), are eligible for importation into the United States 
because they are substantially similar to vehicles originally 
manufactured for importation into and sale in the United States that 
were certified by their manufacturer as complying with the safety 
standards (the U.S. certified version of the MY 2007 Ferrari 599 GTB 
PC), and they are capable of being readily altered to conform to the 
standards.

DATES: This decision became effective on February 26, 2016.

ADDRESSES: For further information contact George Stevens, Office of 
Vehicle Safety Compliance, NHTSA (202-366-5308).

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 motor vehicle is substantially similar to a motor vehicle 
originally manufactured for importation into and sale in the United 
States, certified as required 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.
    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 11355]]

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.
    J.K. Technologies, LLC, of Baltimore, Maryland (``JK'') (Registered 
Importer# RI-90-006), petitioned NHTSA to decide whether MY 2006-2007 
European market Ferrari 599 GTB PCs manufactured prior to September 
2007 are eligible for importation into the United States. NHTSA 
published a notice of the petition on March 24, 2014 (79 FR 16099) to 
afford an opportunity for public comment. The reader is referred to 
that notice for a thorough description of the petition.

Comments

    On April 23, 2014, NHTSA received comments from Ferrari North 
America, Inc. (FNA), on behalf of Ferrari SpA, the vehicle's original 
manufacturer. In its comments, Ferrari stated that while it agreed that 
the U.S.- and the non-U.S.-certified versions of the vehicle are 
``substantially similar'' within the meaning of 49 U.S.C. 
30141(a)(1)(A)(i), it strongly disputed JK's assertions that the non-
U.S.-certified version could be readily altered to comply with all 
applicable FMVSS. FNA elaborated by presenting detailed reasons for its 
assertions with respect to specific FMVSS.
    On May 21, 2014, NHTSA forwarded FNA's comments to JK to accord it 
an opportunity to respond and asked it to submit its response by June 
4, 2014. By letter dated June 10, 2014, JK requested a 45-day extension 
in order to gather engineering data to adequately address the concerns 
raised by FNA. NHTSA approved JK's request for extension. JK provided 
its initial response on August 17, 2014 and submitted supplemental 
information on February 17, 2015.
    A summary of FNA's comments, JK's responses, and the conclusions 
that NHTSA has reached with regard to the issues raised by the parties 
is set forth below.

Analysis of Comments and Agency Conclusions

    NHTSA has reviewed the petition, FNA's comments and JK's responses 
to those comments, and has concluded that only the nonconforming 
European Market versions of the vehicles described in the petition are 
substantially similar to the U.S.-certified version of the MY 2006 and 
2007 Ferrari 599 GTB PC and are capable of being readily altered to 
comply with all applicable FMVSS. NHTSA has also decided that an RI who 
imports or modifies one of these vehicles must include in the statement 
of conformity and associated documents (referred to as a ``conformity 
package'') it submits to NHTSA under 49 CFR 592.6(d) specific proof, as 
described below, to show that the vehicle was manufactured to conform 
to, or was successfully altered to conform to, each of the following 
standards:
    FMVSS No. 101 Controls and Displays: FNA commented that the 
Electronic Control Unit (``ECU'') for the instrument cluster would have 
to be ``reflashed'' with a ``Proxy'' file from the Ferrari factory to 
ensure that all of the other ECUs on the Control Area Network (``CAN'') 
are aware of the new ECU and are communicating properly. FNA 
additionally commented that the necessary reprogramming to achieve 
conformity to the standard can only be completed with proprietary 
hardware and software which is not available to RI's and can only be 
obtained from Ferrari and/or FNA.
    JK responded that it has the Ferrari tools and the required access 
to reflash all computers as required.
    NHTSA has decided that a description of how the programming changes 
were completed and how compliance with the standard was verified must 
be included in each conformity package. Photographs, printouts, and/or 
images of the installation computer's monitor (``screenshots''), as 
practicable, must also be submitted as proof that the reprogramming was 
carried out successfully.
    FMVSS No. 108 Lamps, Reflective Devices, and Associated Equipment: 
FNA commented that the reprogramming identified by JK would necessitate 
reflashing the control system with a ``Proxy'' file from the Ferrari 
Factory in order to assure that all aspects of the lighting system 
perform in accordance with this standard.
    JK responded that it has the Ferrari tools and the required access 
to reflash all computers as required.
    NHTSA has decided that a description of how the programming changes 
were accomplished and how compliance with FMVSS No. 108 is verified 
must accompany each conformity package. Photographs, printouts, and/or 
screenshots, as practicable, must also be submitted as proof that the 
reprogramming was carried out successfully.
    FMVSS No. 111 Rearview Mirrors: FNA commented that in addition to 
the modifications noted in the petition, the driver's outside rearview 
mirror would need to be replaced.
    JK responded that no comment is necessary.
    NHTSA has decided that proof, including photographs, must be 
submitted with each conformity package to show that the vehicle is 
equipped with a driver's side rear view mirror that allows the vehicle 
to meet the applicable requirements of FMVSS No. 111.
    FMVSS No. 114 Theft Protection and Rollaway Prevention: As was the 
case with FMVSS Nos. 101 and 108, FNA contended that reprogramming 
could only be completed with proprietary hardware and software that is 
not available to RIs and can only be obtained from Ferrari and/or FNA.
    JK responded that it has the Ferrari tools and the required access 
to reflash all computers as required.
    NHTSA has decided that a description of how the programming changes 
were completed and how compliance was verified must accompany each 
conformity package. Additionally, photographs, printouts, and/or 
screenshots, as practicable, must be submitted as proof that the 
reprogramming was carried out successfully.
    FMVSS No. 118 Power-Operated Window, Partition, and Roof Panel 
Systems: FNA commented that the reprogramming identified by JK is not 
necessary for the vehicles to conform to the standard.
    Despite FNA's comment, NHTSA has decided that a description of how 
the vehicle's conformity was determined must accompany each conformity 
package. If any modifications were necessary to achieve conformity, a 
description of those modifications must be included in the conformity 
package.
    FMVSS No. 138 Tire Pressure Monitoring Systems: In its petition, JK 
claimed that the subject non-U.S.-certified vehicles conform to FMVSS 
No. 138 as originally manufactured. FNA commented that tire pressure 
monitoring systems (TPMS) are not standard equipment on all European 
Ferrari 599 GTB vehicles and that substantial work would be required to 
bring vehicles into compliance with the standard. FNA further asserted 
that because of the extent and complexity of the required changes, 
vehicles not originally equipped with TPMS cannot be ``readily 
altered'' to comply with the standard.
    JK responded that it has access to the appropriate equipment and 
has experience in installing TPMS and the

[[Page 11356]]

equipment to make sure those systems are working properly.
    NHTSA notes that because the subject nonconforming vehicles were 
manufactured prior to September 1, 2007, the date on or after which 
100% of passenger cars must meet the requirements of FMVSS No. 138, 
compliance of the subject vehicles with FMVSS No. 138 is not an issue. 
An RI only needs to conform a vehicle to standards that are fully 
phased in by the vehicle's date of manufacture.
    FMVSS No. 205 Glazing Materials: FNA commented that JK's assertion 
that the glazing material complies with the standard was incorrect. FNA 
states that the rear corner glazing directly behind the B-Pillar on 
both sides of the vehicle is made of plastic, which does not comply 
with the standard.
    JK responded that the vehicle it inspected was equipped with 
compliant glazing, as it is properly labeled. JK states that each 
vehicle imported will be inspected and if not in compliance, will be 
brought into compliance by adding the appropriate glass.
    NHTSA has decided that photographic evidence of the required 
markings to demonstrate that the glazing complies with the standard 
must be submitted with each conformity package.
    FMVSS No. 207 Seating Systems: FNA commented that replacement of 
the driver and passenger seats with U.S.-model components would not be 
physically possible in the European market model due to differences in 
the chasses. Specifically, FNA stated that the chassis in the U.S.-
model vehicles ``dips down in order to accommodate the weight sensors 
needed to comply with the requirements of FMVSS No. 208.''
    JK disagreed with FNA's claim that there is a ``dip'' in the 
chassis, but noted that some of the chasses have ``different seat 
mounts.'' JK provided parts listings and diagrams showing the different 
mounts.
    JK also responded that the seat frames and mounting points are the 
same in the U.S.-model and European market vehicles, but observed that 
there are four brackets that are welded to the [chasses] of the 
European market vehicles on the passenger side only that could be 
removed, and U.S.-model seats and seat runners installed onto the 
resulting flat surface of the [chassis].
    Ferrari also commented that, ``JKT acknowledges that both driver 
and passenger seating systems in the European vehicle must be replaced 
with U.S. seats.''
    JK responded:

    The reason the seats need to be replaced is NOT a safety issue. 
It's a leather matching issue. If you ``choose'' to replace the 
passenger seat so that you get the U.S. seat with the baby seat 
tether hole, then you must replace the driver's seat to match the 
leather color [in the a replaced passenger seat].
    If you choose to make a template and cut the hole for the baby 
seat tether [in the passenger seat] then you do not need to replace 
either seat. There is NO difference in the design or mounting points 
between the European seats and the U.S. seats. There are differences 
in the levels of the leather and options in both the U.S. seats and 
the European seats.

    NHTSA has decided that a description of the seating systems present 
on the vehicle at the time of importation, including all differences 
from the U.S.-model, with part numbers and diagrams where applicable, 
and a description of all modifications necessary to conform the vehicle 
to the standard must accompany each conformity package. Additionally, 
photographs, as practicable, must be submitted as proof that 
modifications were carried out successfully.
    FMVSS No. 208 Occupant Protection: FNA commented that JK did not 
identify all components that need to be replaced in order to bring the 
airbag system into compliance. FNA specifically notes that the European 
versions of the subject vehicles are not equipped with a ``PASS AIR BAG 
OFF'' telltale, which is required for compliance. Additionally, FNA 
stated that JK did not identify certain portions of the instrument 
panel that differ from those on the U.S.-certified version of the 
vehicle and that would have to be changed to assure compliance with the 
unbelted crash requirements of the standard.
    JK responded that the installation of the U.S. version instrument 
panel and reprogramming will ensure that a compliant system is 
installed providing the telltales that meet the requirements of FMVSS 
No. 208.
    JK further stated that after the brackets are removed, it can 
install the rails and seats properly with the software and systems. JK 
states that it will program, reset, and test the systems, bringing them 
into compliance with the standard.
    JK later clarified that the European vehicle it inspected was 
equipped with the proper parts as well as the proper programs and 
systems to meet the requirements of the standard in the same manner as 
the U.S.-version of the vehicle, including the complete instrument 
systems, dash, and ``passenger airbag off'' light.
    NHTSA has decided that each conformity package must include a 
detailed description of the occupant protection system in place on the 
vehicle at the time it was delivered to the RI and a similarly detailed 
description of the occupant protection system in place after the 
vehicle is altered, including photographs of all required labeling. The 
description must also include assembly diagrams and associated part 
numbers for all components that were removed from and installed on the 
vehicle, a description of how the programming changes were completed, 
and a description of how compliance was verified. Additionally, 
photographs (e.g., screenshots) or report printouts, as practicable, 
must be submitted as proof that the reprogramming was carried out 
successfully. Proof must also be furnished that all portions of the 
instrument panel in the vehicle, after all conformance modifications 
are performed, are identical to the U.S. version instrument panel, or 
proof in the form of dynamic test results showing that the vehicle, as 
altered, conforms to the unbelted occupant requirements of FMVSS No. 
208.
    FMVSS No. 209 Seat Belt Assemblies: FNA commented that, as JK 
acknowledged in the petition, some European market vehicles are 
equipped with four-point seat belt assemblies that do not comply with 
this standard. FNA contends that the belts could not simply be replaced 
by a registered importer, due to the absence of an anchorage on the B-
pillar.
    JK responded that the vehicle it inspected was equipped with ``the 
correct belts.'' JK indicated that if a vehicle is equipped with the 
non-compliant four-point seat belts it can make the appropriate tools 
to install the correct belts, using a U.S.-model vehicle as a guide.
    NHTSA has decided that each conformity package must include 
photographic evidence that conforming safety belts have been installed 
in the vehicle. Safety belt anchorages are addressed in the following 
discussion of FMVSS No. 210.
    FMVSS No. 210 Seat Belt Assembly Anchorages: In the petition, JK 
claims that the subject non-U.S. certified vehicles conform to FMVSS 
No. 210 as originally manufactured. FNA commented that European market 
vehicles that were equipped with optional four-point harnesses lack b-
pillar anchorages that are necessary for the installation of compliant 
three-point harnesses. FNA expressed concern about the ability of an RI 
to install this anchorage and ensure that it meets the performance 
requirements of the standard without Ferrari's templates

[[Page 11357]]

and tools, which are only used during production.
    JK responded that any vehicle found to be equipped with the 
optional belts and lacking the aforementioned anchorage would have to 
be modified to meet this standard. JK further states that it will draw 
a template from a U.S. donor vehicle and that, as a result, all parts 
and engineering of the anchorage would be identical to the Ferrari 
mounting point. JK asserts that less than one percent of production is 
equipped with the optional belts.
    NHTSA has decided that conformity packages for vehicles that 
require modification must include a detailed description of the 
alterations made to achieve conformity with the standard. The 
description must include sufficient information to validate how the 
alterations allowed the vehicle to meet the requirements of the 
standard. This information must include photographic evidence that the 
modification was carried out, as well as testing and/or engineering 
analysis reports documenting how the RI has verified that the 
alterations will allow the vehicle to meet all applicable requirements 
of the standard.
    FMVSS No. 225 Child Restraint Anchorage Systems: FNA stated that 
European market vehicles do not include a top tether anchor plate that 
is included on U.S. market vehicles. FNA further expressed doubts about 
an anchorage installed by an RI being able to meet the strength 
requirements of the standard.
    JK responded that it has the parts and tools to install the 
anchorage properly.
    NHTSA has decided that conformity packages for vehicles that 
require modification must include a detailed description of the 
alterations made to achieve conformity with the standard. The 
description must include sufficient information to validate how the 
alterations allowed the vehicle to meet the requirements of the 
standard. This information must include photographic evidence that the 
modification was carried out, as well as testing and/or engineering 
analysis reports documenting how the RI has verified that the 
alterations will allow the vehicle to meet all applicable requirements 
of the standards.
    FMVSS No. 301 Fuel System Integrity: FNA stated that the 
modifications to the fuel system that JK identified in the petition, 
while necessary to comply with emissions requirements, have no bearing 
on compliance with FMVSS No. 301. However, FNA additionally stated its 
belief that the addition of rear bumper reinforcements is necessary to 
insure compliance with FMVSS No. 301.
    JK responded that no comment was necessary.
    NHTSA has decided that the fuel system modifications identified in 
the petition are necessary to bring the vehicles into compliance with 
the standard. Additionally, NHTSA has decided that each conformity 
package must include a detailed description of all modifications made 
to achieve conformity with the standard. This description must include 
part numbers for each part replaced and be supported with photographic 
evidence of the modifications made to achieve conformity.
    FMVSS No. 401 Interior Trunk Release: FNA expressed agreement that 
the modifications described in the petition are necessary to conform 
the vehicle to the standard. The company noted, however, that the 
reprogramming could only be completed with proprietary hardware and 
software, which is not available to RIs and can only be obtained from 
Ferrari and/or FNA.
    JK responded that it has access to all of the parts and programming 
necessary to bring the vehicle into compliance.
    NHTSA has decided that each conformity package must include a 
description of how the programming changes were completed and how 
compliance was verified. Additionally, photographs, printouts, and/or 
screenshots, as practicable, must be submitted as proof that the 
reprogramming was carried out.
    49 CFR part 581 Bumper Standard: FNA commented that in addition to 
the modifications described by JK in its petition, additional bumper 
reinforcements would have to be installed in both the front and the 
rear of the vehicle.
    JK responded that no comment was necessary.
    NHTSA has decided that each conformity package must include a 
detailed description of all modifications made to achieve conformity 
with the standard, including necessary modifications to the bumper 
reinforcements. This description must include part numbers for each 
part replaced and be supported with photographic evidence of the 
modifications made to achieve conformity.
    In addition to the information specified above, each conformity 
package must include evidence showing how the RI verified that the 
changes it made in loading or reprograming vehicle software to achieve 
conformity with each FMVSS did not also cause the vehicle to fall out 
of compliance with any other applicable FMVSS.

NHTSA's Decision

    Accordingly, on the basis of the foregoing, NHTSA hereby decides 
that model year 2006 and 2007 European market Ferrari 599 GTB passenger 
cars not originally manufactured to comply with all applicable FMVSS 
and manufactured from September 1, 2006 to August 31, 2007 are 
substantially similar to model year 2007 Ferrari 599 GTB passenger cars 
manufactured prior to September 1, 2007 for importation into and/or 
sale in the United States and certified under 49 U.S.C. 30115, and are 
capable of being readily altered to conform to all applicable Federal 
Motor Vehicle Safety Standards.
    Vehicle Eligibility Numbers: Ferrari stated in its comments on the 
subject petition that it did not certify any Ferrari 599 GTB passenger 
cars as model year 2006 for the U.S.-market. The agency notes that it 
previously decided that model year 2006 Ferrari 599 [GTB \1\] passenger 
cars not originally manufactured to comply with all applicable FMVSS 
manufactured prior to September 1, 2006 are eligible for importation as 
model year 2006 vehicles under VSP-518 (75 FR 34524). At the time, 
NHTSA relied on Ferrari's submission of VIN deciphering information 
under 49 CFR part 565, dated February 22, 2006, which indicated that 
the company planned to apply the model year 2006 designation to Ferrari 
599 GTB passenger cars manufactured for sale in the United States. The 
agency also took note of the fact that Ferrari did not comment on the 
petition that resulted in eligibility number VSP-518 with regard to the 
model year designation.
---------------------------------------------------------------------------

    \1\ At the time the decision was made, the full model name was 
abbreviated in the grant notice for the petition. The full model 
name is included here for consistency.
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    After the original 2006 Ferrari 599 GTB petition was granted on 
July 7, 2009, NHTSA amended the definition of the term ``model year'' 
in 49 CFR 593.4 for the purpose of import eligibility decisions. The 
amendment was made to eliminate much of the confusion confronting RIs 
over the issue of whether a given vehicle manufactured for sale abroad 
has a substantially similar U.S.-certified counterpart of the same 
model year. The amendment, made in a final rule published on August 25, 
2011 (76 FR 53072), deleted ``the calendar year that begins on 
September 1 and ends on August 31 of the next calendar year,'' as one 
of the alternative definitions of the term

[[Page 11358]]

``model year.'' In place of the deleted text, the amendment added the 
following alternative definition: ``The calendar year (i.e., January 1 
through December 31) in which manufacturing operations are completed on 
the vehicle at its place of main assembly.''
    In light of this change in the definition of ``model year,'' as 
well as Ferrari's failure to raise any issue regarding the model year 
designation in response to the original model year 2006 599 GTB 
petition, NHTSA considers Ferrari's comment on this issue in the 
subject petition to be moot.
    Consequently, NHTSA reaffirms that nonconforming Ferrari 599 GTB 
passenger cars manufactured between January 1, 2006 and August 31, 2006 
continue to be eligible under VSP-518.
    NHTSA has also decided that nonconforming model year 2006 European 
market Ferrari 599 GTB passenger cars manufactured from September 1, 
2006 through December 31, 2006 and nonconforming model year 2007 
European market Ferrari 599 GTB passenger cars manufactured from 
September 1, 2006 through December 31, 2007, are admissible under 
vehicle eligibility number VSP-576. This number must be indicated on 
the form HS-7 accompanying entry of the vehicles eligible for entry.

    Authority:  49 U.S.C. 30118, 30120: delegations of authority at 
49 CFR 1.95 and 501.8.

Jeffrey M. Giuseppe,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2016-04616 Filed 3-2-16; 8:45 am]
 BILLING CODE 4910-59-P
11354 Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices

unintended acceleration litigation against the programming flaws and operating DEPARTMENT OF TRANSPORTATION
Toyota is new evidence since the joint conditions:
NHTSA/NASA study. However, ODI has The vehicle may lurch forward due to National Highway Traffic Safety
previously reviewed this information during Administration
excessive driving force generated by the
its evaluation of DP14–003. The petitioner
does not provide any new information about motor if the accelerator pedal is pressed [Docket No. NHTSA–2013–0109, Notice 2]
the theories or his allegations of defects in strongly when the vehicle is in Engine mode
the Toyota ETC software. As noted in ODI’s and shifted into Drive or Reverse, or the Decision That Certain Nonconforming
denial report for DP14–003, the software vehicle is in EV mode and being operated on Model Year 2006–2007 European
defect theories failed to identify a precise a slope. The vehicle may also lurch forward Market Ferrari 599 GTB Passenger
cause for sudden acceleration, the software momentarily due to excessive driving force Cars Manufactured Prior to September
experts did not reproduce the alleged generated by the motor when switching from 2007 Are Eligible for Importation
software defects in testing, and the theorized EV mode to Engine mode after being in stop
conditions did not result in sudden and go traffic. AGENCY: National Highway Traffic
acceleration when artificially simulated. We Safety Administration (NHTSA),
find no basis for concluding that the software Honda was able to reproduce the
conditions described in the recall and Department of Transportation (DOT).
defect theories constitute scientifically valid
evidence or could explain the incident develop a software update to address the ACTION: Grant of petition.
alleged by the petitioner. ‘‘lurching’’ concerns. The conditions
ODI’s assessment of the software defect addressed by the Honda recall are associated SUMMARY: This document announces a
theories is not substantially different from with brief surges that occur when the decision by the National Highway
that of one of the plaintiff attorneys who accelerator pedal is being applied under Traffic Safety Administration (NHTSA)
hired the software experts. These plaintiff specific operating conditions and, thus, are that certain model year (MY) 2006–2007
attorneys provided the following not related to the petitioner’s incident or European market Ferrari 599 GTB
characterization of the software experts’ work allegations (which claim sustained passenger cars (PCs) manufactured prior
and findings in a document related to the to September 2007 that were not
acceleration during brake application), nor
Toyota SUA property loss settlement in 2013: originally manufactured to comply with
have they been observed in the general
While Plaintiffs’ software experts raised population of Toyota ETC vehicles. Finally, all applicable Federal motor vehicle
certain software design and architecture safety standards (FMVSS), are eligible
ODI is not aware of any vehicle defect
issues, they have not been able to identify a for importation into the United States
defect that is responsible for the vast array theories, from the software experts cited by
of SUAs reported to Toyota and NHTSA by the petitioner or anyone else, that have because they are substantially similar to
vehicle owners. More specifically, Plaintiffs similarly documented and reproduced a vehicles originally manufactured for
have been unable to reproduce a UA in a sudden unintended acceleration condition in importation into and sale in the United
Subject vehicle under driving conditions.10 the Toyota vehicles that would be States that were certified by their
In addition, an October 2013 order from attributable to the electronic throttle control manufacturer as complying with the
the presiding judge in the Toyota ETC multi- software in those vehicles. safety standards (the U.S. certified
district litigation provided the following version of the MY 2007 Ferrari 599 GTB
characterization of the software defect 3.0 Conclusion
PC), and they are capable of being
theories cited by the petitioner when issuing The petitioner does not provide any new readily altered to conform to the
a ruling in a sudden acceleration case: evidence in support of his petition. In our standards.
Toyota’s Motion for Summary Judgment is view, a defects investigation is unlikely to
premised on the uncontroverted fact that result in a finding that a defect related to DATES: This decision became effective
Plaintiff has been unable to identify a precise motor vehicle safety exists, or a NHTSA on February 26, 2016.
software design or manufacturing defect and order for the notification and remedy of a ADDRESSES: For further information
point to physical or otherwise traceable safety related defect as alleged by the contact George Stevens, Office of
evidence that the defect actually caused the petitioner, at the conclusion of the requested Vehicle Safety Compliance, NHTSA
Camry throttle to open from an idle position (202–366–5308).
investigation. Therefore, given a thorough
to a much wider angle without analog input
from the driver via the accelerator pedal. To analysis of the potential for finding a safety SUPPLEMENTARY INFORMATION:
a lesser extent, it is also premised upon the related defect in the vehicle, and in view of
NHTSA’s enforcement priorities and its Background
fact that Plaintiff cannot prove the actual
failure of Toyota’s fail-safe mechanisms in previous investigations into this issue, the Under 49 U.S.C. 30141(a)(1)(A), a
the Camry on the day of the collision. petition is denied. This action does not motor vehicle that was not originally
constitute a finding by NHTSA that a safety manufactured to conform to all
2.5 The Honda Example
related defect does not exist. The agency will applicable FMVSS shall be refused
The petitioner references a 2014 recall of take further action if warranted by future admission into the United States unless
175,000 Honda Fit vehicles in Japan as an circumstances.
example of a software defect causing NHTSA has decided that the motor
unintended acceleration accidents (Honda Authority: 49 U.S.C. 30162(d); delegations vehicle is substantially similar to a
Foreign Campaign Number 14F–057). The of authority at 49 CFR 1.50 and 501.8. motor vehicle originally manufactured
Honda recall addressed programming flaws Frank S. Borris II, for importation into and sale in the
that may result in unintended acceleration United States, certified as required
during specific operating conditions. Honda’s Acting Associate Administrator for
under 49 U.S.C. 30115, and of the same
Foreign Recall Report to NHTSA described Enforcement.
model year as the model of the motor
[FR Doc. 2016–04605 Filed 3–2–16; 8:45 am] vehicle to be compared, and is capable
10 Berman, S., Seltzer, M., and Pitre,. F. (2013,
mstockstill on DSK4VPTVN1PROD with NOTICES

BILLING CODE 4910–59–P of being readily altered to conform to all
April 23). Plaintiff’s Memorandum in Support of
Plaintiffs’ Motion for an Award of Attorneys’ Fees,
applicable FMVSS.
Reimbursement of Expenses, and Compensation to Petitions for eligibility decisions may
Named Plaintiffs, page 12. In Re: Toyota Motor be submitted by either manufacturers or
Corp. Unintended Acceleration Marketing, Sales importers who have registered with
Practices, and Products Liability Litigation. United
States District Court, Central District of California.
NHTSA pursuant to 49 CFR part 592. As
Case No. 8:10ML2151. Retrieved from https:// specified in 49 CFR 593.7, NHTSA
www.toyotaelsettlement.com/Home/CaseDocs. publishes notice in the Federal Register

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11356 Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices

equipment to make sure those systems The reason the seats need to be replaced detailed description of the occupant
are working properly. is NOT a safety issue. It’s a leather matching protection system in place on the
NHTSA notes that because the subject issue. If you ‘‘choose’’ to replace the vehicle at the time it was delivered to
passenger seat so that you get the U.S. seat the RI and a similarly detailed
nonconforming vehicles were with the baby seat tether hole, then you must
manufactured prior to September 1, replace the driver’s seat to match the leather description of the occupant protection
2007, the date on or after which 100% color [in the a replaced passenger seat]. system in place after the vehicle is
of passenger cars must meet the If you choose to make a template and cut altered, including photographs of all
requirements of FMVSS No. 138, the hole for the baby seat tether [in the required labeling. The description must
compliance of the subject vehicles with passenger seat] then you do not need to also include assembly diagrams and
FMVSS No. 138 is not an issue. An RI replace either seat. There is NO difference in associated part numbers for all
only needs to conform a vehicle to the design or mounting points between the components that were removed from
European seats and the U.S. seats. There are and installed on the vehicle, a
standards that are fully phased in by the differences in the levels of the leather and
vehicle’s date of manufacture. description of how the programming
options in both the U.S. seats and the
FMVSS No. 205 Glazing Materials: European seats.
changes were completed, and a
FNA commented that JK’s assertion that description of how compliance was
NHTSA has decided that a verified. Additionally, photographs
the glazing material complies with the
description of the seating systems (e.g., screenshots) or report printouts, as
standard was incorrect. FNA states that
present on the vehicle at the time of practicable, must be submitted as proof
the rear corner glazing directly behind
importation, including all differences that the reprogramming was carried out
the B-Pillar on both sides of the vehicle
from the U.S.-model, with part numbers successfully. Proof must also be
is made of plastic, which does not
and diagrams where applicable, and a furnished that all portions of the
comply with the standard.
description of all modifications instrument panel in the vehicle, after all
JK responded that the vehicle it
necessary to conform the vehicle to the conformance modifications are
inspected was equipped with compliant
standard must accompany each performed, are identical to the U.S.
glazing, as it is properly labeled. JK
conformity package. Additionally, version instrument panel, or proof in
states that each vehicle imported will be
photographs, as practicable, must be the form of dynamic test results
inspected and if not in compliance, will
submitted as proof that modifications showing that the vehicle, as altered,
be brought into compliance by adding
were carried out successfully. conforms to the unbelted occupant
the appropriate glass. FMVSS No. 208 Occupant Protection:
NHTSA has decided that requirements of FMVSS No. 208.
FNA commented that JK did not FMVSS No. 209 Seat Belt Assemblies:
photographic evidence of the required identify all components that need to be FNA commented that, as JK
markings to demonstrate that the glazing replaced in order to bring the airbag acknowledged in the petition, some
complies with the standard must be system into compliance. FNA European market vehicles are equipped
submitted with each conformity specifically notes that the European with four-point seat belt assemblies that
package. versions of the subject vehicles are not do not comply with this standard. FNA
FMVSS No. 207 Seating Systems: equipped with a ‘‘PASS AIR BAG OFF’’ contends that the belts could not simply
FNA commented that replacement of telltale, which is required for be replaced by a registered importer,
the driver and passenger seats with compliance. Additionally, FNA stated due to the absence of an anchorage on
U.S.-model components would not be that JK did not identify certain portions the B-pillar.
physically possible in the European of the instrument panel that differ from JK responded that the vehicle it
market model due to differences in the those on the U.S.-certified version of the inspected was equipped with ‘‘the
chasses. Specifically, FNA stated that vehicle and that would have to be correct belts.’’ JK indicated that if a
the chassis in the U.S.-model vehicles changed to assure compliance with the vehicle is equipped with the non-
‘‘dips down in order to accommodate unbelted crash requirements of the compliant four-point seat belts it can
the weight sensors needed to comply standard. make the appropriate tools to install the
with the requirements of FMVSS No. JK responded that the installation of correct belts, using a U.S.-model vehicle
208.’’ the U.S. version instrument panel and as a guide.
JK disagreed with FNA’s claim that reprogramming will ensure that a NHTSA has decided that each
there is a ‘‘dip’’ in the chassis, but noted compliant system is installed providing conformity package must include
that some of the chasses have ‘‘different the telltales that meet the requirements photographic evidence that conforming
seat mounts.’’ JK provided parts listings of FMVSS No. 208. safety belts have been installed in the
and diagrams showing the different JK further stated that after the brackets vehicle. Safety belt anchorages are
mounts. are removed, it can install the rails and addressed in the following discussion of
JK also responded that the seat frames seats properly with the software and FMVSS No. 210.
and mounting points are the same in the systems. JK states that it will program, FMVSS No. 210 Seat Belt Assembly
U.S.-model and European market reset, and test the systems, bringing Anchorages: In the petition, JK claims
vehicles, but observed that there are them into compliance with the that the subject non-U.S. certified
four brackets that are welded to the standard. vehicles conform to FMVSS No. 210 as
[chasses] of the European market JK later clarified that the European originally manufactured. FNA
vehicles on the passenger side only that vehicle it inspected was equipped with commented that European market
could be removed, and U.S.-model seats the proper parts as well as the proper vehicles that were equipped with
mstockstill on DSK4VPTVN1PROD with NOTICES

and seat runners installed onto the programs and systems to meet the optional four-point harnesses lack b-
resulting flat surface of the [chassis]. requirements of the standard in the pillar anchorages that are necessary for
Ferrari also commented that, ‘‘JKT same manner as the U.S.-version of the the installation of compliant three-point
acknowledges that both driver and vehicle, including the complete harnesses. FNA expressed concern
passenger seating systems in the instrument systems, dash, and about the ability of an RI to install this
European vehicle must be replaced with ‘‘passenger airbag off’’ light. anchorage and ensure that it meets the
U.S. seats.’’ NHTSA has decided that each performance requirements of the
JK responded: conformity package must include a standard without Ferrari’s templates

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Document Created: 2016-03-03 03:51:36
Document Modified: 2016-03-03 03:51:36
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Grant of petition.
Dates		This decision became effective on February 26, 2016.
FR Citation		81 FR 11354
81 FR 11354 - Decision That Certain Nonconforming Model Year 2006-2007 European Market Ferrari 599 GTB Passenger Cars Manufactured Prior to September 2007 Are Eligible for Importation

DEPARTMENT OF TRANSPORTATIONNational Highway Traffic Safety Administration

Federal Register Volume 81, Issue 42 (March 3, 2016)

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
