Pagani Automobili SpA; Denial of Application for Temporary Exemption From Advanced Air Bag Requirements of FMVSS No. 208 |
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Topics: National Highway Traffic Safety Administration, Pagani Huayra
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Christopher J. Bonanti
Federal Register
August 5, 2011
[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Notices]
[Pages 47641-47645]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19934]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2008-0181, Notice 2]
Pagani Automobili SpA; Denial of Application for Temporary
Exemption From Advanced Air Bag Requirements of FMVSS No. 208
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of denial of petition for temporary exemption from
certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) No.
208, Occupant Crash Protection.
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SUMMARY: This notice denies the petition of Pagani Automobili SpA
(Pagani)\1\ for exemption from certain advanced air bag requirements of
FMVSS No. 208, for the Huayra model.\2\ The basis for the application
is that the petitioner avers compliance would cause substantial
economic hardship and that it has tried in good faith to comply with
the standard.\3\ The agency has determined that Pagani has failed to
demonstrate that compliance would cause substantial economic hardship.
Furthermore, the agency is unable to find that an exemption would be
consistent with the public interest or the objectives of the Safety
Act. This action follows our publication in the Federal Register of a
document announcing receipt of Pagani's petition and soliciting public
comments.
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\1\ Pagani was formerly known by Modena Design, the name
reflected in the notice of receipt of the petition.
\2\ In the original petition, this model was referred to as the
C9 model. In subsequent submissions, the company indicated that the
model is now known as the Huayra.
\3\ To view the application, go to http://www.regulations.gov
and enter the docket number set forth in the heading of this
document.
FOR FURTHER INFORMATION CONTACT: William H. Shakely, Office of the
Chief Counsel, NCC-112, National Highway Traffic Safety Administration,
1200 New Jersey Avenue, SE., West Building 4th Floor, Room W41-326,
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Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
SUPPLEMENTARY INFORMATION:
I. Advanced Air Bag Requirements and Small Volume Manufacturers
In general, frontal air bags for drivers and right front passengers
have large net benefits. NHTSA estimates that they saved 30,232 lives
from 1987 through the end of 2009.\4\ Air bags reduce overall fatality
risk in purely frontal crashes by 29 percent. They reduce overall
fatality risk by 12 percent for drivers of passenger cars, and by 14
percent for right front passengers of passenger cars.\5\
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\4\ Traffic Safety Facts--2009 Data--Occupant Protection, NHTSA
Report No. DOT HS 811 390, Washington, DC, 2010.
\5\ Kahane, C.J., Lives Saved by the Federal Motor Vehicle
Safety Standards and Other Vehicle Safety Technologies, 1960-2002,
NHTSA Technical Report No. DOT HS 809 833, Washington, 2004, pp.
108-115.
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In 2000, NHTSA published a final rule that upgraded the
requirements for air bags in passenger cars and light trucks, requiring
what are commonly known as ``advanced air bags.'' \6\ The upgrade was
designed to meet the twin goals of improving protection for occupants
of all sizes, belted and
[[Page 47642]]
unbelted, in moderate-to-high-speed crashes, and of minimizing the
risks posed by air bags to infants, children, and other occupants,
especially in low-speed crashes. The agency estimated that the upgraded
requirements had the potential to reduce fatalities and nonfatal
injuries from crashes, as well as protect more than 95 percent of the
at-risk population (out-of-position infants, children, and small-
statured adults) from the risks presented by air bag deployment.
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\6\ See 65 FR 30680 (May 12, 2000).
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The issuance of the advanced air bag requirements was a culmination
of a comprehensive plan that the agency announced in 1996 to address
the adverse effects of some air bag designs. This plan also included an
extensive consumer education program to encourage the placement of
children in rear seats.
The new requirements were phased-in, beginning with the 2004 model
year. Small volume manufacturers were not subject to the advanced air
bag requirements until the end of the phase-in period, i.e., September
1, 2006.
In recent years, NHTSA has addressed a number of petitions for
exemption from the advanced air bag requirements of FMVSS No. 208. The
majority of these requests have come from small manufacturers, each of
which has petitioned on the basis that compliance would cause it
substantial economic hardship and that it has tried in good faith to
comply with the standard. In recognition of the more limited resources
and capabilities of small motor vehicle manufacturers, authority to
grant exemptions based on substantial economic hardship and good faith
efforts was added to the Vehicle Safety Act in 1972 to enable the
agency to give those manufacturers additional time to comply with the
Federal safety standards.
NHTSA has granted a number of these petitions, usually in
situations in which the manufacturer is supplying standard air bags in
lieu of advanced air bags.\7\ In addressing these petitions, NHTSA
recognized that small manufacturers faced particular difficulties in
acquiring or developing advanced air bag systems. Specifically, the
agency noted that major air bag suppliers initially concentrated their
efforts on working with large volume manufacturers and small volume
manufacturers had limited access to advanced air bag technology.
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\7\ See, e.g., Grant of petition of Panoz, 72 FR 28759 (May 22,
2007); Grant of petition of Koenigsegg Automotive AB, 72 FR 17608
(April 9, 2007).
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Notwithstanding those previous grants of exemption, NHTSA has
considered two key issues--
(1) Whether it is in the public interest to continue to grant such
petitions, particularly in the same manner as in the past, given the
number of years these requirements have now been in effect and the
benefits of advanced air bags, and
(2) to the extent such petitions are granted, what plans and
countermeasures to protect child and infant occupants, short of
compliance with the advanced air bag requirements, should be
expected.\8\
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\8\ The agency requested comments on these issues in recent
notices of receipt. See, e.g., Notice of Receipt of Application of
Spyker Automobielen, B.V., 76 FR 19179 (Apr. 6, 2011); Notice of
Receipt of Applications of Koenigsegg AB and Morgan Motor Company
Limited, 76 FR 20082 (Apr. 11, 2011). Advocates for Highway and Auto
Safety (Advocates) concurred with NHTSA's concerns regarding the
continuation of such exemptions and the agency's conclusions
regarding the availability of advanced air bag technology. Docket
Nos. NHTSA-2011-0030-0006, NHTSA-2011-0006-0004. Vision Motor Cars,
Inc. (VMCI), agreed with NHTSA's concerns about advanced air bag
exemptions but recommended that a distinction be made between
initial exemptions and extensions, with extensions receiving more
scrutiny. Docket No. NHTSA-2011-0030-0003. Koenigsegg Automotive AB
(Koenigsegg) commented that a change to NHTSA policy regarding
advanced air bag exemptions would be justified if there were
evidence of a safety problem with the existing policy, but that, in
the absence of such evidence, such exemptions should be considered
in accordance with past policy. Docket No. NHTSA-2011-0006-0005.
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While the exemption authority was created to address the problems
of small manufacturers and the agency wishes to be appropriately
attentive to those problems, it was not anticipated by the agency that
use of this authority would result in small manufacturers being given
much more than relatively short term exemptions from recently
implemented safety standards, especially those addressing particularly
significant safety problems.
Over time, the number of petitions for exemption from the advanced
air bag requirements has decreased, and several small manufacturers
that previously received exemptions now produce vehicles that comply
with the advanced air bag requirements. The majority of current
petitions before the agency are petitions for limited extension of
previously granted exemptions.
Given the passage of time since the advanced air bag requirements
were established and implemented, and in light of the benefits of
advanced air bags, NHTSA has determined that it is not in the public
interest to continue to grant exemptions from these requirements in the
same circumstances and under the same terms as in the past. The costs
of compliance with the advanced air bag requirements of FMVSS No. 208
are costs that all entrants to the U.S. automobile marketplace should
expect to bear. Furthermore, NHTSA understands that, in contrast to the
initial years after the advanced air bag requirements went into effect,
low volume manufacturers now have access to advanced air bag
technology.\9\ Accordingly, NHTSA concludes that the expense of
advanced air bag technology is not now sufficient, in and of itself, to
justify the grant of a petition for a hardship exemption from the
advanced air bag requirements.
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\9\ The recent petitions for exemption support NHTSA's belief
that advanced air bag technology has become more accessible to small
volume manufacturers in recent years. In addition to the fact that
several manufacturers who received exemptions in the past have been
able to produce fully-compliant vehicles, many of the manufacturers
who have petitions pending before the agency have been developing
advanced air bag systems in-house or are working with suppliers to
develop such systems. See, e.g., Notice of Receipt of Application of
Spyker Automobielen, B.V., 76 FR 19179 (Apr. 6, 2011) (manufacturer
is working with a supplier to develop advanced air bag system);
Notice of Receipt of Petition of Lotus Cars Ltd., 76 FR 33406 (June
8, 2011) (manufacturer has another model that fully complies with
the advanced air bag requirements).
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II. Statutory Basis for Requested Part 555 Exemption
The National Traffic and Motor Vehicle Safety Act (Safety Act),
codified as 49 U.S.C. Chapter 301, provides the Secretary of
Transportation authority to exempt, on a temporary basis and under
specified circumstances, motor vehicles from a motor vehicle safety
standard or bumper standard. This authority is set forth at 49 U.S.C.
30113. The Secretary has delegated the authority for implementing this
section to NHTSA.
The Act authorizes the Secretary to grant a temporary exemption to
a manufacturer of not more than 10,000 motor vehicles annually, on such
terms as the Secretary deems appropriate, if the Secretary finds that
the exemption would be consistent with the public interest and also
finds that compliance with the standard would cause substantial
economic hardship to the manufacturer and that the manufacturer has
tried to comply with the standard in good faith.
NHTSA established Part 555, Temporary Exemption from Motor Vehicle
Safety and Bumper Standards, to implement the statutory provisions
concerning temporary exemptions. Under Part 555, a petitioner must
provide specified information in submitting a petition for exemption.
These requirements are specified in 49 CFR 555.5, and include a number
of
[[Page 47643]]
items. Foremost among them are that the petitioner must set forth the
basis of the application under Sec. 555.6, and the reasons why the
exemption would be in the public interest and consistent with the
objectives of 49 U.S.C. Chapter 301.
A manufacturer is eligible to apply for a hardship exemption if its
total motor vehicle production in its most recent year of production
did not exceed 10,000 vehicles, as determined by the NHTSA
Administrator (49 U.S.C. 30113).
In determining whether a manufacturer of a vehicle meets that
criterion, NHTSA considers whether a second vehicle manufacturer also
might be deemed the manufacturer of that vehicle. The statutory
provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do
not state that a manufacturer has substantial responsibility as
manufacturer of a vehicle simply because it owns or controls a second
manufacturer that assembled that vehicle. However, the agency considers
the statutory definition of ``manufacturer'' (49 U.S.C. 30102) to be
sufficiently broad to include sponsors, depending on the circumstances.
Thus, NHTSA has stated that a manufacturer may be deemed to be a
sponsor and thus a manufacturer of a vehicle assembled by a second
manufacturer if the first manufacturer had a substantial role in the
development and manufacturing process of that vehicle.
III. Pagani's Petition
Background--Pagani, an Italian corporation, was formed in 1991 and
has been producing a small number of luxury sports cars since 1999.
Pagani currently produces one vehicle, the C8 Zonda, which is not sold
in the United States, but the company has been developing a new
vehicle, the Huayra, a two-seat sports car, which it plans on selling
in the United States and for which it seeks an exemption. The Huayra
Pagani submitted its original petition in 2007 and a notice of receipt
was published on November 25, 2008. Pagani subsequently requested that
the agency delay a decision on its petition because of changes in the
company's production plans. In 2008, 2010, and 2011, the company
submitted supplementary information regarding its financial situation
and its compliance efforts. This information is included in the summary
below and the submissions have been posted to the docket.
Requested Exemption--Pagani originally requested a three-year
exemption from paragraph S14 of FMVSS No. 208, Occupant Crash
Protection, which establishes the advanced air bag requirements. In
supplemental submissions, the company stated that it plans on beginning
the production of the Huayra at the end of 2011 and clarified its plans
with respect to S14 of FMVSS No. 208, stating that it will certify its
vehicles to comply with the 30 mph belted 50th percentile male barrier
impact test (S14.5.1(a)). Pagani has also since stated that it plans to
certify to the unbelted 50th percentile male barrier impact test in
force prior to September 1, 2006 (S5.1.2(a)) (with the unbelted sled
test in S13 being an acceptable option for that requirement). Finally,
Pagani indicated that it has accelerated its compliance testing and
would only need a two-year exemption.
Eligibility--Pagani asserted that it produces, on average, no more
than 25 vehicles per year. The company estimated that if the requested
exemption were granted, it would sell 35 to 45 vehicles per year, 6 to
12 vehicles of which would be sold in the United States. The original
petition stated that Pagani contracts out some aspects of vehicle
development, but asserted that these are arms-length transactions.
Economic Hardship--The agency notes that the material submitted by
Pagani consists of its original 2007 petition, as well as updated
financial information the company provided in 2008, 2010, and 2011. In
determining the existence of substantial economic hardship, we rely
primarily on the most recent financial information. The original
petition was based on estimated compliance costs at the time and
financial projections for 2009 through 2011. Given the passage of time
and the updated financial information, these projections are no longer
relevant. The most recent financial records provide updated estimated
compliance costs for the advanced air bag program as well as financial
projections for 2011 through 2014, one set in the event an exemption is
granted and one set in the event the exemption is denied. The most
recent records, as well as Pagani's accompanying descriptions, reflect
the company's current financial condition and the company's estimates
of the projected effect of a grant or denial of the exemption petition.
These records, and the relevant factual information from past
submissions, are summarized below.
Pagani submitted financial records from 2004 to 2010 showing net
incomes ranging from [euro]13,327 to [euro]832,000, with a total net
income of approximately [euro]1,947,846. The company also submitted
projections estimating that if the petition for exemption is denied and
no vehicles are sold in the United States, the company would make an
estimated [euro]5,398,000 in net income during the period of 2011
through 2014, compared to [euro]8,613,000 in net income during the same
period if an exemption were granted. The company asserted that the
difference in gross revenue between granting and denying the exemption
is approximately [euro]34,000,000, and the financial records indicate a
difference in projected net income of approximately [euro]3,215,000.
Although Pagani has realized profits in recent years, the company
asserted that immediate compliance with the advanced air bag
requirements will cause substantial economic hardship. Specifically,
Pagani stated that the company only operates on the cash on hand
without lines of credit or debt financing, and its small profit margin
is necessary to guard it from market fluctuations.
Pagani stated that without an exemption, it will not be able to
fund the advanced air bag program, which is estimated as costing
[euro]4,000,000, from its non-U.S. sales and will not be able to enter
the U.S. market until at least 2015.
Finally, Pagani stated that its production capacity is currently
limited to approximately 25 units per year worldwide. The company
indicated that its plan is to expand its production capacity to 50 to
60 units per year worldwide by building a new factory. However, the
company stated that the new factory represents a significant investment
for the company and could not be justified without the revenue from
U.S. sales. Accordingly, construction of this new facility cannot begin
unless an exemption is granted.
Compliance Efforts--Pagani asserted that small volume manufacturers
have delayed access to ``off-the-shelf'' systems and must wait for
technology to ``trickle down'' from larger manufacturers and suppliers.
The company further noted that because small volume manufacturers build
so few vehicles, the costs of developing custom advanced air bag
systems, as compared to potential profits, discourages some air bag
suppliers from working with these manufacturers. In a supplemental
submission, the company stated that 65 percent of its costs have been
focused on developing a U.S. version of the Huayra.
Pagani indicated that it has partnered with Applus+ IDIADA, a
Spanish engineering services company that has previously provided
advanced air bag development solutions and testing for small volume
manufacturers, and Bosch Engineering GmbH to develop its
[[Page 47644]]
advanced air bag systems. Pagani estimated that the cost of developing
an advanced air bag system is [euro]4,000,000. The project began in
2009 and was initially scheduled to be completed at the beginning of
2014, at which time Pagani would begin production of fully-compliant
Huayra vehicles. As discussed above, Pagani indicated that it has
accelerated its testing schedule and is requesting a two year, rather
than, three year, exemption from the advanced air bag requirements.
According to Pagani, the vehicles produced during the exemption
period will be equipped with a standard air bag system for both the
driver and passenger seating positions and will comply with the pre-S14
provisions of FMVSS No. 208. Additionally, Pagani stated that it will
certify its vehicles to comply with the belted 50th percentile male
barrier impact test (S14.5.1(a)) and to the unbelted 50th percentile
male barrier impact test in force prior to September 1, 2006
(S5.1.2(a)) (with the unbelted sled test in S13 being an acceptable
option for that requirement).
Public Interest--Pagani stated that the Huayra comes equipped with
numerous features that enhance safety, and that the granting of this
exemption would be consistent with the public interest and the
objectives of the Safety Act (see 49 U.S.C. chapter 301). The
petitioner asserted that the vehicles incorporate design features that
have significant safety benefits. These include the use of carbon-fiber
technology, which provides great strength at a low weight. The fuel
tank is incorporated into the carbon chassis for maximum protection,
and the chassis also incorporates the monocoque protective ``cell''
design. Enhanced by a metal roll cage and alloy front and rear chassis
subframes, the vehicle provides a significant safety benefit in the
event of a crash or rollover. The monocoque design can stay rigid
during repeated impacts, providing an additional source of protection
in the event of a potentially penetrating impact. Pagani indicated that
these features serve, in part, to increase the crashworthiness of the
vehicle. Additionally, the company indicated that all exempted cars
will have standard air bags which comply with the pre-S14 provisions of
FMVSS No. 208.
Pagani stated that the risk to the public will be minimal given
that only 6 to 12 vehicles will be sold per year in the United States,
each vehicle is only expected to be driven approximately 2,500 miles
annually, and children will rarely ride in the vehicle.\10\ Finally,
Pagani argued that if an exemption is not granted, U.S. consumer choice
would be adversely affected.
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\10\ In the original petition, the company also indicated that
the vehicle would be equipped with an on-off air bag switch. In a
supplemental submission to the agency, the company indicated that no
on-off switch would be installed.
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IV. Notice of Receipt
On November 25, 2008, we published in the Federal Register (73 FR
71725) a notice of receipt of Pagani's petition for temporary
exemption, and provided an opportunity for public comment. We received
one comment, which was from Pagani, containing additional information
regarding the company's financial situation and compliance efforts as
well as a request to delay a decision on the petition because of
changes to the Huayra's production schedule.
V. Agency Analysis and Decision
In this section, we provide our analysis and decision regarding
Pagani's temporary exemption request concerning advanced air bag
requirements of FMVSS No. 208. As discussed below, we are denying
Pagani's petition because Pagani has failed to demonstrate that
compliance would cause substantial economic hardship and because we are
unable to conclude that an exemption would be in the public interest
and consistent with the objectives of the Safety Act.
Eligibility--As discussed above, a manufacturer is eligible to
apply for an economic hardship exemption if its total motor vehicle
production in its most recent year of production did not exceed 10,000
vehicles, as determined by the NHTSA Administrator (49 U.S.C. 30113).
Pagani asserted that it produces, on average, no more than 25 vehicles
per year. The company estimated that if the requested exemption were
granted, it would sell 35 to 45 vehicles per year, 6 to 12 vehicles of
which would be sold in the United States. The original petition stated
that Pagani contracts out some aspects of vehicle development, but
asserted that these are arms-length transactions.
Accordingly, we have determined that Pagani is eligible to apply
for an economic hardship exemption.
Substantial Economic Hardship--Pagani asserted that the difference
between granting and denying the exemption is an approximately
[euro]34,000,000 reduction in gross revenue from 2011 to 2014.
Additionally, the financial records show a reduction in projected net
income of approximately [euro]3,215,000 from 2011 to 2014. Pagani
stated that without an exemption, it will not be able to fund the
advanced air bag program, which is estimated as costing approximately
[euro]4,000,000, from its non-U.S. sales. The company further stated
that, in the event of a denial, the company will not be able to enter
the U.S. market until at least 2015. Additionally, denial would
postpone construction of a new factory needed to increase the company's
production capacity.\11\
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\11\ In its original petition, Pagani also asserted that,
without an exemption, it would be unable to fund the
[euro]13,000,000 in investment costs it would have to make in the
Huayra from 2009 to 2011. In a July 9, 2010 e-mail to the agency,
Pagani briefly noted that investment in the Huayra had risen to
[euro]20,000,000 and that this would be funded by its net income
from 2008 through 2010 as well as U.S. sales from 2011 to 2013 under
an exemption. However, no further discussion of these investment
costs was made in the company's most recent financial records or its
February 22, 2011, description of its financial situation and the
effect of a denial of the exemption on the company. In any event,
the company did not explain in its original petition, or in any of
its subsequent submissions, why all of the investment costs for the
Huayra have to be recouped immediately during the exemption period,
particularly in light of the long model life of the vehicle. See
Denial of petition of Ferrari S.p.A, 55 FR 3785 (Feb. 5, 1990) (the
agency found unpersuasive the manufacturer's bare assertion that an
exemption was necessary to recoup its investment without further
explanation as to why this recovery had to begin immediately).
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The touchstone that NHTSA uses in determining the existence of
substantial economic hardship is an applicant's financial health, as
indicated by its income statements. NHTSA has tended to consider a
continuing and a cumulative net loss position as strong evidence of
hardship.\12\ The theory behind NHTSA's rationale is that, if a company
with a continuing net loss is required to divert its limited resources
to resolve a compliance problem on an immediate basis, it may be unable
to use those resources to solve other problems that may affect its
viability. In this case, Pagani has made profits in recent years, and
based on its projections, would continue to do so even if its petition
is denied and the company is limited to selling vehicles outside of the
United States.
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\12\ See Grant of petition of Bugatti Automobili, S.p.A., 59 FR
11649, 11650 (Mar. 11, 1994).
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As noted by Pagani in its petition, the existence of recent net
income does not necessarily preclude a finding of substantial economic
hardship. In situations where a petitioner's financial records show
recent net income, the agency balances the net income against the costs
of compliance and the effect of a denial on the company. In past
petitions, we have noted that even where a small enterprise manages a
net
[[Page 47645]]
profit, the agency may find that hardship exists.\13\
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\13\ See, e.g., Grant of petition of Panther Motor Car Co. Ltd.,
54 FR 12731 (Mar. 28, 1989).
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In this case, Pagani earned profits of approximately
[euro]1,947,846 from 2004 to 2010. This amount is less than the
[euro]4,000,000 it will cost to complete the advanced air bag program.
Accordingly, immediate compliance would result in net losses. However,
considering the effect of a denial on the company, we believe that the
fact that immediate compliance would cause Pagani to suffer short-term
losses is insufficient to demonstrate substantial economic hardship.
Examining Pagani's petition and supplemental submissions, it
appears that the hardship from denying the petition consists of
decreased anticipated profits and the inability to enter the U.S.
market until it fields a fully compliant vehicle. With an exemption,
Pagani projects earning [euro]8,613,000 in net income from 2011 to
2014. Without an exemption, Pagani projects earning [euro]5,398,000 in
net income during the same period. Based on these projections, Pagani
would continue to earn increasing net income each year without an
exemption. Additionally, the amount of net income projected over the
next several years if the petition is denied would appear to cover the
costs of the [euro]4,000,000 advanced air bag program.
In contrast to most of the manufacturers that have been granted
exemptions, Pagani has historically made profits and projects
increasing profits even in the event that an exemption is denied.\14\
Additionally, unlike several profitable manufacturers that have been
granted exemptions in the past, Pagani currently only sells vehicles
outside of the U.S., and the company expects to maintain and exceed its
current sales levels in the event that an exemption is denied.\15\
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\14\ Compare Denial of petition of Ferrari S.p.A, 55 FR 3785
(Feb. 5, 1990) (manufacturer had a history of earning profits and
would continue to do so if the petition were denied), with Grant of
petition of Koenigsegg Automotive AB, 72 FR 17608 (Apr. 9, 2007)
(manufacturer had recently experienced losses and would experience
further losses if its petition were denied); Grant of petition of
YES! Sportscars, 71 FR 68888 (manufacturer had continuing and
cumulative net loss position and would experience further losses if
the petition were denied); Grant of petition of Morgan Motor Company
Limited, 71 FR 52851 (manufacturer had continuing and cumulative net
loss position and would experience further losses if the petition
were denied); Grant of petition of Spyker Automobielen B.V., 70 FR
39007 (July 6, 2005) (manufacturer had continuing and cumulative net
loss position and would experience further losses if the petition
were denied).
\15\ See, e.g., Grant of petition of Ferrari S.p.A and Ferrari
North America, Inc., 71 FR 29389 (May 22, 2006) (denial of the
petition would reduce the manufacturer's U.S. sales by 85 percent);
Grant of petition of Panther Motor Car Co. Ltd., 54 FR 12731 (Mar
28, 1989) (denial of petition would result in temporary suspension
of manufacturer's sales in the U.S. market); Grant of petition of
Aston Martin Lagonda Limited, 52 FR 26760 (July 16, 1987) (denial of
petition would delay further sales of vehicles in the U.S., which
represented over one-third of the manufacturer's total sales).
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Accordingly, the agency concludes that a measure of economic
hardship may result from the denial, but it cannot be characterized as
``substantial'' given Pagani's current financial condition, its
financial projections, and the continuing demand for its vehicles
outside of the United States.
Public Interest--We have also examined whether an exemption in this
case would be consistent with the public interest and the objectives of
the Safety Act, as is required by the Act and the implementing
regulations (49 CFR 555.5(b)(7)). Pagani has requested an exemption
from all of the advanced air bag requirements except for the 30 mph
belted 50th percentile male barrier impact test, compliance with which
the agency has conditioned previous advanced air bag exemptions. Pagani
stated that (1) the Huayra has several features that increase the
crashworthiness of the vehicle, (2) a limited number of vehicles will
be sold in the U.S. and each vehicle is expected to be driven
approximately 2,500 miles annually, (3) the vehicle is expected to
rarely carry children, and (4) a denial of the exemption would
adversely affect consumer choice.
Although the agency supports additional crashworthiness features
designed to increase the safety of occupants in the vehicle, we note
that most of the requirements from which Pagani seeks exemption were
implemented to minimize the risks posed by air bags to infants,
children, and small-statured adults, especially in low-speed crashes.
In the 2000 final rule, the agency estimated that these requirements
had the potential to protect more than 95 percent of the at-risk
population (out-of-position infants, children, and small-statured
adults) from the risks presented by air bag deployment. The Huayra's
crashworthiness features do not mitigate these risks, and although
Pagani asserted that children will rarely ride in the Huayra, the
company has not proposed any measures or warnings to reduce the chance
that a child or small-statured adult would ride in the vehicle nor has
the company described any vehicle features designed to mitigate the
safety risks of standard air bags to vehicle occupants.\16\
Accordingly, the agency is unable to find that an exemption would be
consistent with the public interest and the objectives of the Safety
Act.
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\16\ In the original petition, the company indicated that the
vehicle would be equipped with an on-off air bag switch. In a
supplemental submission to the agency, the company indicated that no
on-off switch would be installed.
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Decision--Based on the foregoing, the agency is unable to make a
finding of substantial economic hardship or that an exemption would be
consistent with the public interest and the objectives of the Safety
Act. Accordingly, Pagani's petition for temporary exemption is denied.
(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and
501.8)
Issued on: July 29 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-19934 Filed 8-4-11; 8:45 am]
BILLING CODE 4910-59-P