
[Federal Register: August 12, 2009 (Volume 74, Number 154)]
[Notices]               
[Page 40634-40637]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12au09-108]                         


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2008-0152]

 
Think Technology AS; Grant of Application for a Temporary 
Exemption From the Advanced Air Bag Requirements of Federal Motor 
Vehicle Safety Standard No. 208

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

ACTION: Grant of petition for temporary exemption from certain advanced 
air bag requirements of Federal Motor Vehicle Safety Standard No. 208.

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SUMMARY: This document grants the Think Technology AS (Think) 
application for a temporary exemption from certain advanced air bag 
requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, 
Occupant Crash Protection. The exemption applies to the Think City EV 
vehicle line. In accordance with 49 CFR Part 555, the basis for the 
grant is that the exemption would make the development or field 
evaluation of a low-emission vehicle easier and would not unreasonably 
lower the safety or impact protection level of that vehicle. The 
exemption is effective from February 1, 2010 through January 31, 2012.
    NHTSA published a notice of receipt of the application on September 
16, 2008 and afforded an opportunity for public comment.

DATES: The exemption is effective February 1, 2010 through January 31, 
2012.

FOR FURTHER INFORMATION CONTACT: Ari Scott, Office of the Chief 
Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 
New Jersey Avenue, SE., West Building 4th Floor, Room W41-326, 
Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.

SUPPLEMENTARY INFORMATION: 

I. Advanced Air Bag Requirements
II. Overview of Think's Petition for Low Emission Vehicle Exemption
III. Background of Manufacturer
IV. Statutory Basis for Requested Part 555 Exemption
V. Think's Petition
VI. Notice of Receipt
VII. Final Decision

I. Advanced Air Bag Requirements

    In 2000, NHTSA upgraded the requirements for air bags in passenger 
cars and light trucks, requiring what are commonly known as ``advanced 
air bags.'' \1\ The upgrade was designed to meet the goals of improving 
protection for occupants of all sizes, belted and 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.
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    \1\ See 65 FR 30680 (May 12, 2000).
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    The advanced air bag requirements were a culmination of a 
comprehensive plan that the agency announced in 1996 to address the 
adverse effects of air bags. 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.
    The agency has carefully tracked occupant fatalities resulting from 
air bag deployment. Our data indicate that the agency's efforts in the 
area of consumer education and manufacturers' providing depowered air 
bags were successful in reducing air bag fatalities even before 
advanced air bag requirements were implemented.
    As always, we are concerned about the potential safety implication 
of any temporary exemption granted by this agency. In the present case, 
we are addressing a petition for a temporary exemption from the 
advanced air bag requirements submitted by a manufacturer of a small 
electric-powered car.

II. Overview of Think's Petition for Low-Emission Vehicle Exemption

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
Part 555, Think has petitioned the agency for a temporary exemption 
from certain advanced air bag requirements of FMVSS No. 208. The basis 
for the application is that the exemption would make the development or 
field evaluation of a low-emission vehicle easier and would not 
unreasonably lower the safety or impact protection level of the 
vehicle. Think requested the exemption for a period of two years. The 
petitioner stated that the vehicle will be equipped with standard air 
bags.

III. Background of Manufacturer

    The Think City EV is a two-seat hatchback vehicle that originally 
began as a project started in 1998 by PIVCO AS in Norway. According to 
the petitioner, in 2000, the PIVCO project was acquired by Ford Motor 
Company, a major U.S. automobile manufacturer, as part of an effort to 
comply with the State of California's Zero Emissions Vehicle mandate. 
Ford created a project called Think, which produced 350 Think City EV 
cars based on the PIVCO project in 2000, which were leased as part of a 
demonstration and testing project. However, in light of the California 
Air Resources Board's decision in 2003 to essentially end the 
requirement for ``pure'' electric cars, Ford sold the Think project to 
KamKorp, a company based in Switzerland. In 2006, a new ownership 
occurred creating Think Global AS.
    Think Technology AS is a wholly-owned subsidiary of Think Global 
AS, a holding company that possesses the intellectual property rights 
to the Think City EV. The current owners of Think Global AS include the 
founders of the PIVCO project, the precursor to the Think City EV, as 
well as various other entities in Norway and other countries. Neither 
Think Global AS nor Think Technology AS (hereinafter, ``Think'') has 
sold any vehicles in the U.S. to date.

IV. Statutory Basis for Requested Part 555 Exemption

    The National Traffic and Motor Vehicle 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 this section to NHTSA.
    NHTSA established Part 555, Temporary Exemption from Motor Vehicle 
Safety and Bumper Standards, to implement the statutory provisions 
concerning temporary exemptions. Vehicle manufacturers may apply for 
temporary exemptions on several bases, one of which is that the 
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the 
safety level of the vehicle.
    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 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.
    To be considered, a petition submitted on the basis that the 
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the 
safety level of the vehicle must include specified information set 
forth at

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Sec.  555.6(c). The main requirements of this section include: (1) 
Substantiation that the vehicle is a low-emission vehicle; (2) 
documentation establishing that a temporary exemption would not 
unreasonably degrade the safety of the vehicle; (3) substantiation that 
a temporary exemption would facilitate the development or field 
evaluation of the vehicle; (4) a statement of whether the petitioner 
intends to conform to the standard at the end of the exemption period; 
and (5) a statement that not more than 2,500 exempted vehicles will be 
sold in the United States in any 12-month period for which an exemption 
may be granted.
    NHTSA notes that while 49 U.S.C. 30113(b) states that exemptions 
from a Safety Act standard are to be granted on a ``temporary basis,'' 
\2\ the statute also provides that an exemption may be renewed on 
reapplication. Manufacturers are nevertheless cautioned that the 
agency's decision to grant an initial petition in no way predetermines 
that the agency will grant renewal petitions, thereby potentially 
imparting semi-permanent exemption from a safety standard. Exempted 
manufacturers contemplating seeking renewal should bear in mind that 
the agency is directed to consider not only whether an exemption would 
make the development or field evaluation of a low-emission motor 
vehicle easier but other factors such as whether an exemption is in the 
public interest and consistent with the Safety Act generally.
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    \2\ 49 U.S.C. 30113(b)(1).
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V. Think's Petition

    As indicated above, Think has petitioned the agency for a temporary 
exemption from certain advanced air bag requirements of FMVSS No. 208. 
Think requested an exemption for a period of two years upon the grant 
of the petition, although in a subsequent communication it requested 
that the starting date for that period be delayed until February 1, 
2010.
    The requested exemption includes the advanced air bag requirements 
in S14.5.2 of FMVSS No. 208, the rigid barrier test requirement using 
the 5th percentile adult female test dummy (belted and unbelted, S15), 
the offset deformable barrier test requirement using the 5th percentile 
adult female test dummy (S17), the requirements to provide protection 
for infants and children (S19, S21, and S23) and the requirement using 
an out-of-position 5th percentile adult female test dummy at the driver 
position (S25).
    The basis for the petition was that the exemption would facilitate 
the development of a low-emission vehicle and would not unreasonably 
lower the safety or impact protection level of the vehicle. Think 
asserted that the Think City EV emits zero pollutants, would not 
unreasonably degrade safety, has substantial public interest value, and 
that the exemption is necessary to facilitate the development. The 
following is a brief summary of the salient points of Think's petition, 
and more complete information can be found by examining the notice of 
receipt or the petition itself, available in the NHTSA docket (NHTSA-
2008-0152).
    Think asserts that the Think City EV is a low-emission vehicle. It 
states that 49 U.S.C. 30113(a) defines a low-emission vehicle as one 
that conforms to the applicable standards for new vehicles contained in 
section 202 of the Clean Air Act (42 U.S.C. 7521), and whose emissions 
are significantly below one of those standards. Section 202 of the 
Clear Air Act currently controls hydrocarbons, carbon monoxide, oxides 
of nitrogen, and particulate matter. Think asserts that the Think City 
EV emits none of the listed pollutants. It also asserts that the 
vehicle has no additional systems installed that could produce the 
named pollutants, e.g., a fuel-fired heating system.
    Think also stated that the requested exemption would not 
unreasonably degrade the safety of the Think City EV. While it is 
requesting an exemption from the advanced air bag requirements, the 
Think City EV is not without air bags. Think states that the Think City 
EV will comply with the pre-advanced air bag requirements of FMVSS No. 
208. As stated in the petition, the only differences between a 
compliant vehicle and the Think City EV are the test requirements 
discussed above in the requested exemption.
    Additionally, Think cited several safety features of the Think City 
EV that will help to prevent injuries. The petitioner stated that the 
vehicle was designed, engineered and tested by Ford to meet all 
applicable NHTSA requirements for the 2003 model year. It stated 
further that the Think City EV will: (1) Meet the new belted test 
requirements of S14.5.1(a), which imposes more stringent limits for 
head injury criteria, chest deflection, and neck injury than the old 
version to which the vehicle was originally designed; (2) meet the 
criteria for injury prevention under S13, with regard to the unbelted 
sled test; (3) have FMVSS No. 209 and 210 compliant belts and 
anchorages, together with pretensioners and load limiters; (4) have a 
passenger air bag on-off switch permitted by FMVSS No. 208; and (5) 
meet all other requirements of the FMVSSs. Given these features, the 
petitioner argues that the Think City EV will not unreasonably degrade 
safety or impact protection, and that the risk to safety is de minimis.
    Think states that the temporary exemption it seeks would facilitate 
the evaluation and development of the Think City EV. The petitioner 
claims that it currently does not have the ability to design or acquire 
an air bag system that meets the advanced air bag requirements of 
Standard No. 208. While the Think City EV's air bag system is a dual 
stage system, it is currently designed with a fixed phase delay as 
Think does not yet have hardware, such as seat position sensing, that 
can be utilized to meet all of the advanced air bag requirements. Think 
also asserts that off-the-shelf systems that meet the requirements are 
not currently available, and that the sourcing of a custom-designed 
system is not straightforward or financially viable at this time. 
According to that company, the requested exemption would facilitate the 
development of the Think City EV by allowing Think to enter the U.S. 
market, a key target market for the vehicle at issue. Think states that 
this would enable the company to evaluate the vehicle, and based on 
this evaluation, continue development, including successive models. 
Specifically, Think claims that the requested two year exemption would 
permit:
     Evaluation and further development of alternative battery 
concepts;
     Evaluation and further development of vehicle systems 
based on real-world usage under U.S.-specific driving and storage 
conditions;
     Product evaluation through U.S. warranty analysis and 
customer feedback;
     Further evaluation of the company's plan to establish a 
U.S. manufacturing operation; and
     Development of a compliant advanced air bag system.
    Think stated that at the end of the exemption period, it intends to 
conform with all advanced air bag requirements.
    Finally, Think set forth reasons why the granting of the petition 
would be in the public interest and consistent with the objectives of 
49 U.S.C. Chapter 301. Think believes that the Think City EV is a major 
step forward in transportation that will benefit the environment, and 
that granting the exemption will protect U.S. consumer choice. 
According to the petitioner, battery electric vehicles like the Think 
City EV can reduce dependence on oil and are more energy efficient 
compared to Internal Combustion Engine powered cars.

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Think also asserted that battery recharging costs are more predictable 
than gasoline prices, and not as subject to volatile international 
incidents.

VI. Notice of Receipt

    On September 16, 2008, we published in the Federal Register (73 FR 
54660) a notice announcing receipt of an application from Think 
Technology AS for a temporary exemption from the advanced air bag 
requirements of FMVSS No. 208 for the Think City EV. We invited public 
comment on Think's application. The only comment we received was from 
Think, indicating that due to a delay in its production schedule, it 
was requesting that the exemption begin on November 1, 2009. In a 
subsequent e-mail, Think requested that the commencement of the 
exemption be further delayed until February 1, 2010.

VII. Final Decision

    The following discussion provides our decision regarding Think's 
temporary exemption request pertaining to the advanced air bag 
requirements of FMVSS No. 208.
    We are granting Think's petition for the Think City EV to be 
exempted from the following portions of the advanced air bag 
requirements of FMVSS No. 208: S14.5.2, S15, S17, S19, S21, S23, and 
S25. The exemption is for a two year period. The agency's rationale for 
this decision is as follows.
    First, we believe it is manifestly in the public interest to 
accelerate the development of electrically driven vehicles. Electric 
vehicles can help reduce the reliance of the nation on oil, and reduce 
greenhouse gas and other emissions. Moreover, development of electric 
vehicles contributes to the expansion of consumer choices.
    NHTSA further agrees that the requested exemption would make the 
development or field evaluation of a low-emission vehicle easier. Think 
has stated that there are a number of concepts that need evaluation and 
further development at this time. There are, at this time, very few 
other fully battery-operated vehicles available in the U.S. Think 
stated that substantial further evaluation of the market and available 
technologies is needed to further the development of these types of 
vehicles.
    Think explained that the exemption would, among other things, 
permit evaluation and further development of alternative battery 
concepts, evaluation and further development of vehicle systems based 
on real-world usage under U.S.-specific driving and storage conditions, 
and product evaluation through U.S. warranty analysis and customer 
feedback. We agree that the exemption would permit that company to 
engage in these activities, and thereby make the development or field 
evaluation of a low-emissions vehicle easier.
    NHTSA also concludes that granting this exemption would not 
unreasonably lower the safety or impact protection level of the 
vehicle. Of particular note, the Think City EV will have air bags and 
will be certified to meet the pre-advanced air bag requirements of 
FMVSS No. 208. Moreover, with exception of the advanced air bag 
requirements, it will be required to be certified to meet all other 
requirements contained in the applicable FMVSSs.
    Furthermore, while the Think City EV lacks an advanced air bag that 
meets the requirements of FMVSS No. 208, it does employ a two-stage air 
bag that uses a fixed delay. The Think City EV is also equipped with an 
air bag on-off switch, which can be used to turn off the front 
passenger air bag when children are seated in the right front passenger 
seat.
    Additionally, Think stated in its petition that while it is 
requesting an exemption from the requirements of S14.5.2, with regard 
to the unbelted tests, the Think City EV will meet the 50th percentile 
adult male dummy sled test requirements in S13, as well as the injury 
criteria in S6.1, S6.2(b), S6.3, S6.4(b), S6.5, and S6.6 (the criteria 
specified in S14.5.2).
    We also observe that only a limited number of vehicles would be 
produced under the requested exemption. Manufacturers granted 
exemptions on the basis of furthering the development of low-emission 
vehicles are limited to selling 2,500 exempted vehicles in any 12-month 
period. Given that this is a two-year exemption, no more than 5,000 
vehicles could be built that lack the advanced air bag protection of 
FMVSS No. 208. In its petition, Think stated that it projected selling 
500 vehicles during the first year of the requested exemption and 2,500 
vehicles during the second year.
    Based on the above discussion concerning safety, we believe that 
any impact on safety from granting the requested exemption would be 
negligible.
    We note that, as explained below, prospective purchasers will be 
notified that the vehicle is exempted from the specified advanced air 
bag requirements of Standard No. 208. Under Sec.  555.9(b), a 
manufacturer of an exempted passenger car must affix securely to the 
windshield or side window of each exempted vehicle a label containing a 
statement that the vehicle conforms to all applicable FMVSSs in effect 
on the date of manufacture ``except for Standard Nos. [listing the 
standards by number and title for which an exemption has been granted] 
exempted pursuant to NHTSA Exemption No. --.'' This label notifies 
prospective purchasers about the exemption and its subject. Under Sec.  
555.9(c), this information must also be included on the vehicle's 
certification label. The text of Sec.  555.9 does not expressly 
indicate how the required statement on the two labels should read in 
situations where an exemption covers part but not all of a FMVSS.
    In this case, we believe that a statement that the vehicle has been 
exempted from Standard No. 208 generally, without an indication that 
the exemption is limited to the specified advanced air bag provisions, 
could be misleading. A consumer might incorrectly believe that the 
vehicle has been exempted from all of Standard No. 208's requirements. 
Moreover, we believe that the addition of a reference to such 
provisions by number without an indication of its subject matter would 
be of little use to consumers, since they would not know the subject of 
those specific provisions. For these reasons, we believe the two labels 
should read in relevant part, ``except for S14.5.2, S15, S17, S19, S21, 
S23, and S25 (Advanced Air Bag Requirements) of Standard No. 208, 
Occupant Crash Protection, exempted pursuant to * * *.'' We note that 
the phrase ``Advanced Air Bag Requirements'' is an abbreviated form of 
the title of S14 of Standard No. 208. We believe it is reasonable to 
interpret Sec.  555.9 as requiring this language.
    In consideration of the foregoing, we conclude that granting the 
requested exemption from the advanced air bag requirements of FMVSS No. 
208, Occupant Crash Protection, would facilitate the field evaluation 
and development of a low-emission vehicle, and would not unreasonably 
lower the safety or impact protection level of that vehicle. We further 
conclude that granting of an exemption would be in the public interest 
and consistent with the objectives of traffic safety.
    In accordance with 49 U.S.C. 30113(b)(3)(B)(iii), Think Technology 
AS is granted NHTSA Temporary Exemption No. EX 09-02, from S14.5.2, 
S15, S17, S19, S21, S23, and S25 of FMVSS No. 208. The exemption is for 
the Think City electric vehicle and shall run from February 1, 2010 
until January 31, 2012 as indicated in the DATES section of this 
notice. The exemption may not be used for more than 2,500 vehicles to 
be sold in the United States in any 12-month period.


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(49 U.S.C. 30113; delegations of authority at 49 CFR 1.50. and 
501.8)

    Issued on: July 30, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-19380 Filed 8-11-09; 8:45 am]

BILLING CODE 4910-59-P
