

[Federal Register: November 2, 2007 (Volume 72, Number 212)]
[Rules and Regulations]               
[Page 62135-62142]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no07-12]                         

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Parts 571 and 585

[Docket No. NHTSA 2007-0010]
RIN 2127-AK03

 
Federal Motor Vehicle Safety Standards; Occupant Crash 
Protection; Fuel System Integrity

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

ACTION: Final rule; response to petitions.

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SUMMARY: In a final rule published in August 2006, NHTSA amended its 
safety standard on occupant crash protection to establish the same 56 
km/h (35 mph) maximum speed for frontal barrier crash tests using 
belted 5th percentile adult female test dummies as it had previously 
adopted for tests using belted 50th percentile adult male dummies. The 
agency adopted the amendment to help improve crash protection for small 
statured occupants. In this document, in response to petitions for 
reconsideration of that rule, we are adjusting the phase-in 
requirements to permit manufacturers to earn advance credits for 
vehicles that are certified in compliance with the new higher speed 
requirement one year in advance of the regulatory requirements, i.e., 
beginning on September 1, 2008.
    We are also making technical corrections regarding special phase-in 
provisions for small volume manufacturers included in the August 2006 
rule, as well as in several other regulations.

DATES: Effective Date: This final rule is effective January 2, 2008.
    Petitions for Reconsideration: If you wish to submit a petition for 
reconsideration of this rule, your petition must be received by 
December 17, 2007.

ADDRESSES: Petitions for reconsideration should refer to the docket 
number above and be submitted to: Administrator, National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.
    See the SUPPLEMENTARY INFORMATION portion of this document (Section 
V; Rulemaking Analyses and Notice) for DOT's Privacy Act Statement 
regarding documents submitted to the agency's dockets.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Ms. 
Carla Cuentas, Office of Crashworthiness Standards (Telephone: 202-366-
1740) (Fax: 202-366-2739).

[[Page 62136]]

    For legal issues, you may call Mr. Edward Glancy, Office of the 
Chief Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820).
    You may send mail to these officials at National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petitions for Reconsideration
III. Request for Technical Corrections
IV. Final Rule; Agency Response to Petitions
V. Rulemaking Analyses and Notices

I. Background

    Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant 
Crash Protection, requires passenger cars and other light vehicles to 
be equipped with seat belts and frontal air bags to prevent or mitigate 
the effects of occupant interaction with the vehicle's interior in a 
crash. While air bags have proven to be very effective in increasing 
the number of lives saved in moderate to high speed frontal crashes, 
they have on occasion been implicated in fatalities where vehicle 
occupants were in close proximity to the air bag when it deployed. The 
majority of these fatalities occurred in vehicles produced in the 
1990s.
    On May 12, 2000, NHTSA published in the Federal Register (65 FR 
30690) its advanced air bag final rule. This final rule required that 
future air bags be designed to create less risk of serious air bag-
induced injuries. The original advanced air bag rule established two 
phase-in implementation schedules for the new requirements.
    Under Phase I, which began September 1, 2003 and was completed on 
September 1, 2006, NHTSA required vehicle manufacturers to install 
advanced air bag systems that reduce the risk of air bag-induced 
injuries (particularly to young children and small adult drivers), 
while improving the frontal crash protection provided by air bag 
systems to occupants of different sizes. NHTSA specified the use of 
both 50th percentile adult male and 5th percentile adult female dummies 
for the standard's crash tests.\1\ Phase I required vehicles to be 
certified as passing the performance requirements for both of these 
dummies, while unbelted, in a 32 km/h (20 mph) to 40 km/h (25 mph) 
rigid barrier test (unbelted rigid barrier test requirements), and 
performance requirements for the same two dummies, while belted, in a 
rigid barrier crash test with a maximum test speed of 48 km/h (30 mph) 
(belted rigid barrier test requirements).
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    \1\ The advanced air bag rule also specified the use of 1-year-
old infant dummies, 3- and 6-year old child dummies, and 5th 
percentile adult female dummies in its test requirements to minimize 
the risk to infants, children, and other occupants from injuries and 
deaths caused by air bags.
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    Under Phase II, which begins to be phased-in on September 1, 2007, 
vehicles must be certified as passing the belted rigid barrier 
performance requirements at speeds up to and including 56 km/h (35 mph) 
using just the 50th percentile adult male dummy.
    In the original advanced air bag rulemaking, we stated that we did 
not propose including the 5th percentile adult female dummy in the 
second phase-in requirement because we ``had sparse information on the 
practicability of such a requirement.'' We also stated that the agency 
would undergo testing to examine this issue further and that we 
anticipated ``proposing increasing the test speed for belted tests 
using the 5th percentile adult female dummy to 35 mph, beginning at the 
same time that the 50th percentile adult male is required to be used in 
belted testing at that speed.'' (60 FR 20680, 30690; and 66 FR 65376).
    On August 6, 2003, we published a notice of proposed rulemaking 
(NPRM) (68 FR 46539) to increase the test speed for the belted rigid 
barrier test using the 5th percentile adult female dummy to 56 km/h (35 
mph). We proposed the same phase-in schedule as the one used in Phase 
II beginning September 1, 2007. In this NPRM, we tentatively concluded 
that the results of the tests conducted by NHTSA indicated both a need 
for and the feasibility of extending the 56 km/h (35 mph) maximum speed 
for the rigid barrier test to include the 5th percentile adult female 
dummy.
    On August 31, 2006, NHTSA published a final rule (71 FR 57168) 
increasing the maximum test speed for the belted rigid barrier test 
using the 5th percentile adult female dummy from 48 km/h (30 mph) to 56 
km/h (35 mph), the same speed we had previously adopted for 50th 
percentile adult male dummies. After considering the public's comments, 
the agency continued to believe that the test data obtained indicated 
that FMVSS No. 208 should require the same level of high speed crash 
protection for small statured occupants as for larger occupants.
    We noted that the final rule was essentially the same as the 
proposal, except for the timing of the phase-in. Under the final rule, 
the new requirement was phased-in in a manner similar to the phase-in 
for the 56 km/h (35 mph) maximum speed test requirement using the 50th 
percentile adult male dummy, but with a beginning date two years later, 
i.e., September 1, 2009. We stated that the additional leadtime would 
provide manufacturers the time needed to meet design challenges 
associated with some vehicles and incorporate these additional 
requirements into their product development schedules without undue 
consequences.
    We stated that given that this phase-in was two years later, and 
that many vehicles already comply with the new requirement, we were not 
including advance credits as part of this phase-in, although carryover 
credits earned during the phase-in would be allowed.
    The implementation schedule for the new requirement was as follows:

--35 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2009;
--65 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2010, with an allowance 
of carryover credits from vehicles built after September 1, 2009.
--100 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2011, with an allowance 
of carryover credits from vehicles built after September 1, 2009.
--All light vehicles manufactured on or after September 1, 2012.

    Manufacturers that sell two or fewer carlines in the United States 
at the beginning of the first year of the phase-in (September 1, 2009) 
have the option of omitting the first year of the phase-in, if they 
fully comply beginning on September 1, 2010.
    Manufacturers that produce or assemble fewer than 5,000 vehicles 
for the U.S. market per year may defer compliance with the new 
requirement until September 1, 2012.
    Consistent with our usual policy concerning multi-stage vehicles, 
multi-stage manufacturers and alterers may defer compliance with the 
new requirement until September 1, 2013.

II. Petitions for Reconsideration

    The agency received petitions for reconsideration of the August 
2006 final rule from the following vehicle manufacturers and 
manufacturer organization: Porsche Cars North America, Inc. (Porsche), 
Volkswagen of America, Inc. (VW), Mitsubishi Motors R&D of America 
(Mitsubishi), and Alliance of Automobile Manufacturers (Alliance).
    All four of the petitioners asked that we reconsider our decision 
not to include advance credits as part of the phase-in.

[[Page 62137]]

    Two of the petitioners, Alliance and VW, requested a technical 
correction in the regulatory text of the standard regarding a special 
phase-in provision for small volume manufacturers.
    The details of the requests of the petitioners, and our response, 
are provided below.

III. Request for Technical Corrections

    The agency received a letter, dated March 29, 2007, from VW, 
requesting technical corrections in the regulatory text of FMVSS No. 
301, Fuel System Integrity, and Part 585, Phase-in Reporting 
Requirements. While the letter addresses different regulatory 
requirements than the petitions for reconsideration discussed above, it 
requests technical corrections regarding special phase-in provisions 
for small volume manufacturers that are essentially the same. We are 
therefore addressing these technical corrections in this document.

IV. Final Rule; Agency Response to Petitions

    As discussed below, in response to petitions for reconsideration of 
the August 2006 final rule increasing the speed of the frontal barrier 
test requirement using belted 5th percentile adult female dummies, we 
are adjusting the phase-in requirements to permit manufacturers to earn 
advance credits for vehicles that are certified in compliance with the 
new higher speed requirement one year in advance of the regulatory 
requirements, i.e., beginning on September 1, 2008.
    We are also making technical corrections regarding special phase-in 
provisions for small volume manufacturers included in the August 2006 
rule, as well as in several other regulations.

A. Advance Credits

    As noted above, the August 2006 final rule did not include advance 
credits as part of the phase-in of the 56 km/h (35 mph) barrier crash 
test requirements using belted 5th percentile adult female dummies, 
although carryover credits earned during the phase-in were permitted.
    The lack of advance credits for early compliance prior to the 
beginning of the phase-in period differed from the allowance for early 
credits provided in the original advanced air bag rule (See FMVSS No. 
208 S14.1.2), which permitted credits for vehicles produced on or after 
June 12, 2000, for the purposes of complying with the advanced air bag 
requirements for which the phase-in began September 1, 2003. Also, the 
original advanced air bag rule provided for advance carry-forward 
credits for vehicles produced on or after September 1, 2006, for the 
purposes of the 35 mph crash test requirements using the 50th 
percentile male dummy that will begin to be phased in on September 1, 
2007 (See FMVSS No. 208 S14.3.2).
    The agency stated that it was not including advance credits as part 
of the phase-in of the 56 km/h (35 mph) requirements using the 5th 
percentile adult female dummy given that this phase-in was two years 
later, and that many vehicles already comply with the new requirement.
    As indicated earlier, the Alliance, Mitsubishi, Porsche and VW 
asked that we reconsider our decision not to include advance credits as 
part of the phase-in.
Petitions
    The Alliance asked us to permit manufacturers to earn and apply 
advance carry-forward credits for vehicles that can be certified in 
compliance with the new requirements two years in advance of the 
regulatory requirements. It stated that this is an unusually unstable 
era in the U.S. automotive industry, and that in the current economy 
the uncertainties associated with making product plans and compliance 
projections for a phased-in rule are very high, creating the need for 
maximum flexibility in designing new regulatory requirements.
    That organization stated that it recognizes that providing advance 
carry-forward credits for early compliance with safety standards is 
unusual. It noted, however, that advance carry-forward credits for 
early compliance were included in the original advanced air bag rule, 
including for early compliance with the 56 km/h (35 mph) crash test 
requirements using the 50th percentile adult male dummy that will begin 
to be phased in on September 1, 2007. It also stated that providing 
advance credits would be consistent with Congressional intent in 
enacting the advanced air bag requirements, as the Transportation 
Equity Act for the 21st Century requirements for advanced air bags had 
provided for such credits.
    The Alliance questioned the agency's statement that many vehicles 
already comply with the new rules, arguing that the rulemaking record 
shows mixed test results. It stated that the record showed that 12 
vehicle models ``already comply'' with the new rules, while 6 did not. 
The Alliance also stated that none of the 12 models were certified to 
the advanced air bag requirements, so it is unclear whether any would 
comply with an adequate margin of compliance after an advanced air bag 
is installed, given the design and performance tradeoffs that are 
required for advanced air bags. The Alliance also noted that the agency 
had conducted additional testing of five more vehicle models that were 
certified to the advanced air bag requirements, and all met the 35 mph 
crash test requirement with the 5th percentile female dummy, although 
one had no compliance margin. The Alliance argued that the record 
reflects the difficulties of redesigning air bags to meet the competing 
demands of protecting large adult males, both belted and unbelted; 
protecting small females, both belted and unbelted; and protecting 
children, both restrained and unrestrained. According to the Alliance, 
adding the 35 mph barrier crash test for the 5th percentile female 
dummy complicates this design task even further, emphasizing the need 
for flexibility during the phase-in.
    The Alliance argued that advance carry-forward credits are positive 
for safety, because they recognize and reward manufacturers that are 
able to certify compliance with the new requirements earlier than they 
otherwise would have to. It also stated that the availability of 
advance carry-forward credits acts as an incentive to manufacturers to 
make the commitment to assuring compliance that is necessary to earn 
and claim advance carry-forward credits. It also stated that at the end 
of the phase-in, the same number of vehicles will be certified as 
compliant whether or not the advance carry-forward credits were made 
available--but the advance carry-forward credits would incentivize 
manufacturers to bring more vehicles into compliance earlier.
    According to the Alliance, given the dynamic nature of the U.S. 
auto industry, despite manufacturers' best efforts to project compliant 
fleets during the phase-in, it may become critically necessary to use 
advance carry-forward credits to achieve compliance, if sales for 
certain models fall short of projections and as manufacturers respond 
to fluctuations in market demand.
    For all of these reasons, the Alliance requested that the agency 
permit manufacturers to earn and apply advance carry-forward credits 
for vehicles that can be certified in compliance with the new 
requirements two years in advance of the regulatory requirements.
    VW, Mitsubishi and Porsche made requests similar to that of the 
Alliance. Like the Alliance, VW requested that manufacturers be 
permitted to earn advance credits for vehicles that are

[[Page 62138]]

produced beginning September 1, 2007, i.e., two years in advance of the 
regulatory requirements.
    Mitsubishi requested that manufacturers be permitted to earn 
advance credits for one production year prior to the phase-in, i.e., 
beginning September 1, 2008. Porsche requested that the agency either 
provide manufacturers the opportunity to generate advance credits for 
vehicles built one year prior to the start of the phase-in schedule, or 
reduce the compliance requirement for the first year of the phase-in 
from 35 percent to 20 percent. Mitsubishi and Porsche noted that the 
final rule was issued three years after the proposal and argued that 
even with the two-year later phase-in, advance credits are still 
needed. Mitsubishi and Porsche each provided information subject to 
claims of confidentiality in support of their petitions.
Agency Response
    After carefully considering the requests of the petitioners, we 
have decided to permit manufacturers to earn advance credits for 
vehicles that are certified in compliance with the new 56 km/h (35 mph) 
barrier requirements using the belted 5th percentile adult female dummy 
one year in advance of the regulatory requirements, i.e., beginning on 
September 1, 2008.
    As the Alliance noted in its petition, providing advance carry-
forward credits for early compliance with safety standards is unusual 
but not without precedent. We note that a provision for advance credits 
can act as an incentive for early introduction of new safety 
technologies and provide additional flexibility for manufacturers while 
resulting in the same number of vehicles certified to meet new 
requirements prior to full, 100 percent implementation. On the other 
hand, we also recognize that advance credits can reduce the number of 
vehicles that need to be upgraded to comply with a new requirement 
during the actual production years covered by a phase-in, particularly 
in situations where many vehicles may already comply with the 
requirement.
    In the NPRM to increase the test speed of the barrier requirements 
using the belted 5th percentile adult female dummy, we proposed to 
permit manufacturers to earn advance credits for one year prior to the 
beginning of the phase-in. For the final rule, we did not include this 
provision. We believed that the provision was unnecessary, given that 
we adopted a phase-in that began two years later than we had proposed.
    On reconsideration, we have decided to include a provision 
permitting manufacturers to earn advance credits for one year prior to 
the beginning of the phase-in. After considering the comments, we are 
persuaded that this additional flexibility is appropriate. This one-
year period for earning advance credits is consistent with the Phase II 
phase-in, as well as the NPRM for this Phase III requirement. Among 
other things, this provision will provide flexibility to manufacturers 
in dealing with uncertainty in projecting sales volumes of different 
models as they plan to meet the percentage phase-in requirements.
    We are not, however, providing the longer, two-year period 
requested by the Alliance and VW. Neither petitioner provided data or 
specific arguments demonstrating the need for a period as long as two 
years or that a one-year period is not sufficient.
    The issues raised by the Alliance about the need for flexibility 
were of a general nature, and we believe that those concerns are 
addressed by the one-year period we are adopting.
    VW cited the fact that the period for advance credits was longer 
for Phase I, and a statement by the agency in the original advanced air 
bag rulemaking that we were only allowing credits to be earned for 
vehicles manufactured one year prior to the initiation of the Phase II 
requirements because we believed manufacturers should first direct 
their efforts toward full implementation of Phase I, particularly the 
risk reduction requirements.
    While we agree that the Phase I implementation is not affected by 
Phase III, we decline to adopt a period longer than one year. As 
indicated above, a provision for advance credits can act as an 
incentive for early introduction of new safety technologies and provide 
additional flexibility for manufacturers, but can also reduce the 
number of vehicles that need to be upgraded to comply with a new 
requirement during the actual production years covered by a phase-in, 
particularly in situations where many vehicles may already comply with 
the requirement. In balancing these considerations, we conclude that a 
one-year period for earning advance credits for Phase III is 
appropriate.
    We note that we do not know how many vehicles already comply with 
the requirements. However, as discussed in the preamble to the final 
rule, and noted by the Alliance, the agency conducted testing of five 
vehicle models that were certified to the advanced air bag 
requirements, and all met the 56 km/h (35 mph) crash test requirement 
with the 5th percentile female dummy, although one had no compliance 
margin. This suggests that a significant number of vehicles already 
comply.
    We also note that the primary purpose of a provision for advance 
credits is to provide an incentive to encourage manufacturers to 
develop and introduce new technologies earlier than they would 
otherwise be required. While manufacturers needed to develop and 
introduce new technologies to meet the risk reduction requirements of 
the Phase I advance air bag requirements, we believe that was generally 
not the case for either Phase II or Phase III. This is another reason 
not to provide a longer period for advance credits.
    We note that we are making conforming changes to part 585, Phase-in 
Reporting Requirements, to reflect the provision for advance credits.

B. Phase-In Exclusion for Small Volume Manufacturers

    In the preamble of the August 2006 final rule, NHTSA stated that 
manufacturers that produce or assemble fewer than 5,000 vehicles for 
the U.S. market per year may defer compliance until September 1, 2012. 
71 FR 51770. This is consistent with similar provisions in FMVSS No. 
208 S14.1(d) (related to Phase I) and S14.3(d) (related to Phase II) in 
which the limit of 5,000 vehicles applies toward production for the 
U.S. market and not worldwide production. However, in the regulatory 
text of the August 2006 final rule, S14.6(d) read: ``Vehicles that are 
manufactured by a manufacturer that produces fewer than 5,000 vehicles 
world-wide annually are not subject to the requirements of S14.6.''
    In their petitions for reconsideration, the Alliance and VW pointed 
out this discrepancy and their belief that the agency intended to 
implement this provision as described in the preamble.
    We confirm that the regulatory text in S14.6(d) was incorrect and 
are revising it to be consistent with the preamble, and with the 
regulatory text at S14.1(d) and S14.3(d). It will now read: ``Vehicles 
that are manufactured by an original vehicle manufacturer that produces 
or assembles fewer than 5,000 vehicles annually for sale in the United 
States are not subject to the requirements of S14.6.''
    As indicated above, we received a letter, dated March 29, 2007, 
from VW, requesting technical corrections in the regulatory text of 
FMVSS No. 301, Fuel System Integrity, and part 585, Phase-in Reporting 
Requirements. While the request addresses different regulatory 
requirements than the petitions for reconsideration discussed above, it 
requests technical corrections regarding special phase-in provisions 
for small

[[Page 62139]]

volume manufacturers that are essentially the same. We are therefore 
addressing these issues in this final rule.\2\
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    \2\ We note that Lance Tunick separately identified to the 
agency the discrepancies related to the FMVSS No. 208 requirement 
increasing the test speed using belted 5th percentile adult female 
dummies and also the requirement related to FMVSS No. 301.
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    Specifically, with respect to the phase-in of inboard rear seat 
lap/shoulder requirements of FMVSS No. 208, VW noted a similar 
discrepancy between the preamble/regulatory text of FMVSS No. 208 
(which are consistent) and the relevant regulatory text of Part 585. 
Also, with respect to the phase-in of upgraded rear crash test 
requirements in FMVSS No. 301, VW noted a similar discrepancy between 
the preamble and the regulatory text in FMVSS No. 301, and the lack of 
a corresponding provision in Part 585.
    In each of these instances, the agency intended, as indicated in 
the preamble, to apply the different compliance date to manufacturers 
that produce or assemble fewer than 5,000 vehicles for the U.S. market 
each year. We are therefore making technical corrections along the 
lines requested by VW.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impacts of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed 
under E.O. 12866.
    This rule amends the agency's August 2006 final rule that upgraded 
FMVSS No. 208 to increase the maximum belted frontal barrier crash test 
speed from 48 km/h (30 mph) to 56 km/h (35 mph) for the 5th percentile 
adult female dummy. This is the same test speed as is specified for the 
50th percentile adult male dummy. The August 2006 final rule was 
considered significant because of public interest. However, as 
explained below, today's amendments are not significant.
    As discussed in the preamble to the August 2006 final rule, the 
agency estimated that the rule will prevent 2-4 fatalities and reduce 2 
MAIS 2-5 non-fatal injuries. The total net cost could range from $0.0 
to $9.0 million (2004 economics). The agency estimated the total cost 
of that rule will most likely be $4.5 million.
    This rule amends the phase-in requirements of the August 2006 final 
rule to permit manufacturers to earn advance credits for vehicles that 
are certified in compliance with the new higher speed requirement one 
year in advance of the regulatory requirements, i.e., beginning on 
September 1, 2008. It does not change the number of vehicles that must 
be certified to the new requirements, nor does it change the dates or 
percentage requirements of the phase-in. Accordingly, while the rule 
provides some additional flexibility for manufacturers, it does not 
affect costs and benefits in a manner that is quantifiable. Moreover, 
for the same reason, it is not necessary for the agency to do a 
separate regulatory evaluation.

B. Regulatory Flexibility Act

    NHTSA has considered the effects of this rulemaking action under 
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). NHTSA has 
determined that this action will not have a significant economic impact 
on a substantial number of small entities.
    In the preamble to the August 2006 final rule, NHTSA made a 
determination that that rule will not have a significant economic 
impact on a substantial number of small entities. Today's amendments 
make a small adjustment in the phase-in requirements of that rule in a 
manner that provides greater flexibility. Since these amendments will 
not significantly affect small entities, this rule will not have a 
significant economic impact on a substantial number of small entities.

C. National Environmental Policy Act

    NHTSA has analyzed the final rule for the purposes of the National 
Environmental Policy Act. The agency has determined that implementation 
of this action will not have any significant impact on the quality of 
the human environment.

D. Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order 
13132 (64 FR 43255, August 10, 1999) and concluded that no additional 
consultation with States, local governments or their representatives is 
mandated beyond the rulemaking process. The agency has concluded that 
the rule does not have federalism implications because the rule does 
not have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    Further, no consultation is needed to discuss the preemptive effect 
of today's rule. NHTSA rules can have preemptive effect in at least two 
ways. First, the National Traffic and Motor Vehicle Safety Act contains 
an express preemptive provision: ``When a motor vehicle safety standard 
is in effect under this chapter, a State or a political subdivision of 
a State may prescribe or continue in effect a standard applicable to 
the same aspect of performance of a motor vehicle or motor vehicle 
equipment only if the standard is identical to the standard prescribed 
under this chapter.'' 49 U.S.C. 30103(b)(1). It is this statutory 
command that preempts State law, not today's rulemaking, so 
consultation would be inappropriate.
    In addition to the express preemption noted above, the Supreme 
Court has also recognized that State requirements imposed on motor 
vehicle manufacturers, including sanctions imposed by State tort law, 
can stand as an obstacle to the accomplishment and execution of a NHTSA 
safety standard. When such a conflict is discerned, the Supremacy 
Clause of the Constitution makes the State requirements unenforceable. 
See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

E. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million in any one year ($120,700,000 as adjusted for 
inflation with base year of 1995).
    Because this final rule will not have a $100 million effect, no 
Unfunded Mandates assessment has been prepared.

F. Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney

[[Page 62140]]

General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The preemptive 
effect of this rule is discussed above. NHTSA notes further that there 
is no requirement that individuals submit a petition for 
reconsideration or pursue other administrative proceeding before they 
may file suit in court.

G. Paperwork Reduction Act

    Under the procedures established by the Paperwork Reduction Act of 
1995, a person is not required to respond to a collection of 
information by a Federal agency unless the collection displays a valid 
OMB control number. This final rule contains a ``collection of 
information'' as that term is defined by OMB at 5 CFR 1320. As a result 
of this final rule, NHTSA proposes to amend an existing collection of 
information as follows:
    Agency: National Highway Traffic Safety Administration (NHTSA).
    Title: Part 585--Advanced Air Bag Phase-In Reporting Requirements.
    Type of Request--Revision of a Currently Approved Collection of 
Information.
    OMB Clearance No.--2127-0599.
    Form Number--This collection of information will not use any 
standard forms.
    Total Annual Responses--21.
    Total Annual Burden Hours--1,260.
    Total Annual Burden Dollars--$0.
    Requested Expiration Date of Clearance--At present, Clearance No. 
2127-0599 is scheduled to expire on April 30, 2010. NHTSA will ask for 
one more extension of this collection of information--through October 
31, 2012.
Summary of the Collection of Information
    In the ``Rulemaking Analyses and Notices'' section of the August 
31, 2006 final rule, NHTSA discussed the Paperwork Reduction Act 
consequences of the collection of information (See 71 FR at 51776-
51777). As a result of today's final rule, NHTSA proposes to amend its 
description of the collection of information as follows. As earlier 
described, in today's final rule, we are providing a year in which 
manufacturers can earn advance credits for compliance with the 56 km/h 
(35 mph) requirements using the 5th percentile adult female dummy.
Phase-in Reporting
    The phase-in of the 56 km/h (35 mph) maximum test speed for the 
belted rigid barrier test using the 5th percentile adult female dummy 
is similar to the one for the test using the 50th percentile adult male 
dummy, except that it is two years later. Under today's rule, 
manufacturers will be able to earn advance credits for vehicles that 
are certified in compliance with the new higher speed requirement one 
year in advance of the regulatory requirements, i.e., beginning on 
September 1, 2008.
    The implementation schedule for the phase-in of the higher speed 
requirement using the 5th percentile adult female dummy, as revised by 
today's rule, is as follows:

--Advance credits for each manufacturer's light vehicles certified in 
compliance with the new higher speed requirement that were manufactured 
during the production year beginning on September 1, 2008 (with the 
phase-in report to NHTSA due on October 31, 2009).
--35 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2009, with an allowance 
of carryover credits (with the phase-in report to NHTSA due on October 
31, 2010).
--65 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2010, with an allowance 
of carryover credits (with the phase-in report to NHTSA due on October 
31, 2011).
--100 percent of each manufacturer's light vehicles manufactured during 
the production year beginning on September 1, 2011, with an allowance 
of carryover credits (with the phase-in report to NHTSA due on October 
31, 2012).
--All light vehicles manufactured on or after September 1, 2012.

    Manufacturers that sell two or fewer carlines in the United States 
at the beginning of the first year of the phase-in (September 1, 2009), 
have the option of omitting the first year of the phase-in, if they 
fully comply beginning on September 1, 2010.
    Manufacturers that produce or assemble fewer than 5,000 vehicles 
for the U.S. market per year may defer compliance with the new 
requirement until September 1, 2012.
Description of the Need for the Use of the Information
    NHTSA needs this information to ensure that vehicle manufacturers 
are certifying their applicable vehicles as meeting the new belted 
barrier test using the 5th percentile female. NHTSA will use this 
information to determine whether a manufacturer has complied with the 
amended requirements of FMVSS No. 208 during the phase-in period.
Description of the Likely Respondents (Including Estimated Number, and 
Proposed Frequency of Response to the Collection of Information)
    NHTSA estimates that 21 vehicle manufacturers will submit the 
required information.
    For each report, the manufacturer will provide, in addition to its 
identity, several numerical items of information. The information 
includes:
    (a) Total number of vehicles manufactured for sale during the 
preceding production year,
    (b) Total number of vehicles manufactured during the production 
year that meet the regulatory requirements, and
    (c) Information identifying the vehicles (by make, model, and 
vehicle identification number (VIN)) that have been certified as 
complying with the belted barrier test upgrade.
Estimate of the Total Annual Reporting and Recordkeeping Burden 
Resulting From the Collection of Information
    At present, OMB Clearance No. 2127-0599 gives NHTSA approval to 
collect 1,281 burden hours a year from industry, or 61 hours from each 
of 21 manufacturers. This figure of 61 hours represents the burden 
hours that would result if reports for two separate but related phase-
ins were due the same year, e.g., both the higher speed test 
requirement using 50th percentile adult male test dummies and the 
higher speed test requirement using the 5th percentile adult female 
dummies. In the event that manufacturers must provide only one phase-in 
report in a given year, the collection of information burden would be 
60 hours per manufacturer, or a total collection of information burden 
on industry of 1,260 hours.
Approved Clearance Through April 30, 2010
    For the report due on October 31, 2008 (covering vehicles 
manufactured during the production year beginning on September 1, 
2007), since only the phase-in report for the 50th percentile adult 
male test dummies must be provided, NHTSA estimates that each 
manufacturer will incur 60 burden hours per year, or a total collection 
of information burden on industry of 1,260 hours.
    For the report due on October 31, 2009 (covering vehicles 
manufactured during the production year beginning on September 1, 
2008), this will be the first year for which manufacturers may need to 
report on vehicles certified in compliance with the higher speed 5th 
percentile adult female dummy

[[Page 62141]]

requirements, if they choose to earn advance credits. In addition, for 
all vehicle manufacturers, the phase-in reports for the 50th percentile 
adult male dummies must continue to be provided.
    Thus, assuming all manufacturers provide both reports, NHTSA 
estimates that each manufacturer will incur 61 burden hours a year, for 
a total of 1,281 hours a year. This estimate is based on the fact that 
the reporting format for the test requirements using both the 50th 
percentile adult male test dummies and the 5th percentile adult female 
test dummies is identical. The data collection will involve only 
computer tabulation (using the same reporting format) and manufacturers 
will provide the information to NHTSA in an electronic (as opposed to 
paper) format. The data will cover the same types of vehicles for both 
upgrades of the belted barrier test.
Anticipated Request for Clearance for October 31, 2010 Through October 
31, 2012
    The first year of the phase-in for the higher speed test 
requirement using 5th percentile adult female dummies covers the 
production period from September 1, 2009, through August 31, 2010. The 
report will be due by October 31, 2010, a time after OMB Clearance No. 
2127-0599 expires on April 10, 2010.
    According to the phase-in schedule specified in the final rule of 
August 31, 2006, the three year period from October 31, 2009, through 
October 31, 2012, will include one year (covering the production period 
from September 1, 2009, through August 31, 2010) when manufacturers 
will report on both the last year of the phase-in for the higher speed 
test requirement using 50th percentile adult male test dummies and the 
first year of the higher speed test requirement using 5th percentile 
adult female dummies. For this one year, there will be an increase of 
one burden hour, resulting in a total of 61 burden hours per 
manufacturer, or a total burden of 1,281 hours on industry. This 
estimate is based on the fact that the reporting format for the test 
requirements using both the 50th percentile adult male test dummies and 
the 5th percentile adult female test dummies is identical. The data 
collection will involve only computer tabulation (using the same 
reporting format) and manufacturers will provide the information to 
NHTSA in an electronic (as opposed to paper) format. The data will 
cover the same types of vehicles for both upgrades of the belted 
barrier test.
    There are 0 hours of recordkeeping burdens resulting from the 
collection of information.
    There are no capital or start-up costs as a result of this 
collection. Manufacturers could collect and tabulate the information by 
using existing equipment. Thus, there would be no additional costs to 
respondents or recordkeepers.
    Because the scope of this collection of information differs from 
that described in the August 31, 2006 final rule, NHTSA invites comment 
on its estimates of the total annual hour and cost burdens resulting 
from this collection of information. Please submit any comments to the 
NHTSA Docket Number referenced in the heading of this notice or to: Ms. 
Lori Summers, Office of Rulemaking, NHTSA, 1200 New Jersey Avenue, SE., 
Washington, DC 20590. Ms. Summers' telephone number is: (202) 366-1740. 
Comments are due within 60 days of the date of publication of this 
document in the Federal Register.

H. Executive Order 13045

    Executive Order 13045 \3\ applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under E.O. 
12866, and (2) concerns an environmental, health or safety risk that 
NHTSA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, we must 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by us. This rule is not economically significant, and it 
will not have a disproportionate effect on children.
---------------------------------------------------------------------------

    \3\ 62 FR 19885, April 23, 1997.
---------------------------------------------------------------------------

I. National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act of 1995 
(NTTAA) (Pub. L. 104-113), ``all Federal agencies and departments shall 
use technical standards that are developed or adopted by voluntary 
consensus standards bodies, using such technical standards as a means 
to carry out policy objectives or activities determined by the agencies 
and departments.'' Today's amendments do not use technical standards 
but merely adjust the phase-in requirements adopted in the August 2006 
final rule.

J. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (65 FR 19477 at 19478).

List of Subjects in 49 CFR Parts 571 and 585

    Imports, Motor vehicle safety, Reporting and recordkeeping 
requirements, Tires.

    In consideration of the foregoing, NHTSA is amending 49 CFR parts 
571 and 585 as follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.


0
2. Section 571.208 is amended by revising S14.6(d) and S14.6.2 to read 
as follows:


Sec.  571.208  Standard No. 208; Occupant crash protection.

* * * * *
    S14.6 * * *
* * * * *
    (d) Vehicles that are manufactured by an original vehicle 
manufacturer that produces or assembles fewer than 5,000 vehicles 
annually for sale in the United States are not subject to the 
requirements of S14.6.
* * * * *
    S14.6.2 Calculation of complying vehicles.
    (a) For the purposes of complying with S14.6.1.1, a manufacturer 
may count a vehicle if it is manufactured on or after September 1, 
2008, but before September 1, 2010.
    (b) For purposes of complying with S14.6.1.2, a manufacturer may 
count a vehicle if it:
    (1) Is manufactured on or after September 1, 2008, but before 
September 1, 2011, and
    (2) Is not counted toward compliance with S14.6.1.1.
    (c) For purposes of complying with S14.6.1.3, a manufacturer may 
count a vehicle if it:
    (1) Is manufactured on or after September 1, 2008, but before 
September 1, 2012, and
    (2) Is not counted toward compliance with S14.6.1.1 or S14.6.1.2.
* * * * *

0
3. Section 571.301 is amended by revising S6.2(c) to read as follows:

[[Page 62142]]

Sec.  571.301  Standard No. 301; Fuel system integrity.

* * * * *
    S6.2 * * *
    (c) Small volume manufacturers. Notwithstanding S6.2(b) of this 
standard, vehicles manufactured on or after September 1, 2004 and 
before September 1, 2008 by a manufacturer that produces fewer than 
5,000 vehicles annually for sale in the United States may meet the 
requirements of S6.2(a). Vehicles manufactured on or after September 1, 
2008 by small volume manufacturers must meet the requirements of 
S6.2(b).
* * * * *

PART 585--PHASE-IN REPORTING REQUIREMENTS

0
4. The authority citation for part 585 of Title 49 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.


0
5. Section 585.15 is amended by adding (a)(3) and (c)(3) to read as 
follows:


Sec.  585.15  Reporting requirements.

    (a) * * *
    (3) Within 60 days after the end of the production year ending 
August 31, 2009, each manufacturer choosing to certify vehicles 
manufactured during that production year as complying with phase three 
of the advanced air bag requirements of Standard No. 208 shall submit a 
report to the National Highway Traffic Safety Administration providing 
the information specified in paragraph (c) of this section and in Sec.  
585.2 of this part.
* * * * *
    (c) * * *
    (3) With respect to the report identified in section 585.15(a)(3), 
each manufacturer shall report the number of vehicles, by make and 
model year, that meet the applicable advanced air bag requirements of 
Standard No. 208, and to which the advanced air bag requirements the 
vehicles are certified.
* * * * *

0
6. Section 585.16 is revised to read as follows:


Sec.  585.16  Records.

    Each manufacturer shall maintain records of the Vehicle 
Identification Number of each vehicle for which information is reported 
under Sec.  585.15(c) until December 31, 2011. Each manufacturer shall 
maintain records of the Vehicle Identification Number of each vehicle 
for which information is reported under Sec.  585.15(d)(2) until 
December 31, 2013.

0
7. Section 585.23 is revised to read as follows:


Sec.  585.23  Applicability.

    This subpart applies to manufacturers of passenger cars and trucks, 
buses, and multipurpose passenger vehicles with a GVWR of 4,536 kg or 
less. However, this subpart does not apply to any manufacturers whose 
production consists exclusively of walk-in vans, vehicles designed to 
be sold exclusively to the U.S. Postal Service, vehicles manufactured 
in two or more stages, and vehicles that are altered after previously 
having been certified in accordance with part 567 of this chapter. In 
addition, this subpart does not apply to manufacturers that produce 
fewer than 5,000 vehicles annually for sale in the United States.

0
8. Section 585.43 is revised to read as follows:


Sec.  585.43  Applicability.

    This subpart applies to manufacturers of passenger cars, 
multipurpose passenger vehicles, trucks and buses with a GVWR of 4,536 
or less. However, this subpart does not apply to manufacturers that 
produce fewer than 5,000 vehicles annually for sale in the United 
States.

    Issued: October 29, 2007.
Nicole R. Nason,
Administrator.
 [FR Doc. E7-21600 Filed 11-1-07; 8:45 am]

BILLING CODE 4910-59-P
