
[Federal Register: February 8, 2010 (Volume 75, Number 25)]
[Rules and Regulations]               
[Page 6123-6129]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe10-14]                         

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2009-0156]
RIN 2127-AK57

 
Federal Motor Vehicle Safety Standards; Occupant Crash Protection

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document provides the agency's response to petitions for 
reconsideration of a November 12, 2008 final rule that amended the 
child restraint systems (CRSs) prescribed in Appendix A of Federal 
Motor Vehicle Safety Standard (FMVSS) No. 208, ``Occupant crash 
protection.'' The final rule established a new appendix, ``Appendix A-
1,'' which effectively deleted seven older CRSs, added five new CRSs, 
and provided cosmetic replacements for seven others. Today's response 
grants some aspects of two of the petitions. All other requests are 
denied.

DATES: This final rule is effective April 9, 2010. If you wish to 
petition for reconsideration of this rule, your petition must be 
received by March 25, 2010.

ADDRESSES: If you wish to petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 
20590.
    The petition will be placed in the docket. Anyone is able to search 
the electronic form of all documents 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 (Volume 65, Number 70; 
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
Ms. Carla Rush, NHTSA Office of Crashworthiness Standards, telephone 
202-366-1740, fax 202-366-2739. For legal issues, you may contact Ms. 
Deirdre Fujita, NHTSA Office of Chief Counsel, telephone 202-366-2992, 
fax 202-366-3820. You may send mail to these officials at the National 
Highway Traffic Safety Administration, U.S. Department of 
Transportation, 1200 New Jersey Avenue, SE., West Building, Washington, 
DC 20590.

SUPPLEMENTARY INFORMATION: 


[[Page 6124]]



Table of Contents

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

I. Overview

    This document responds to petitions for reconsideration of a 
November 12, 2008 final rule \1\ that updated Appendix A of FMVSS No. 
208. The appendix lists CRSs that the agency uses in compliance testing 
of advanced air bag systems. The November 12, 2008 final rule replaced 
a number of older CRSs with those that are more available and more 
representative of the CRSs currently on the market. Today's document 
grants a petition to exclude small vehicle manufacturers from the 
phase-in schedule of the final rule, grants the Alliance's request to 
change the car bed model number designation, and adds the Evenflo 
Tribute 381xxx to the appendix. All other requests are denied.
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    \1\ 73 FR 66786; Docket No. NHTSA-08-0168.
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II. Background

    On May 12, 2000, NHTSA issued a final rule for advanced air bags 
(``Advanced Air Bag Rule'') that amended FMVSS No. 208 to, among other 
things, minimize injuries to small adults and young children due to air 
bag deployment.\2\ Under the Advanced Air Bag Rule, in order to 
minimize the risk to infants and small children from deploying air 
bags, vehicle manufacturers may suppress an air bag in the presence of 
a child restraint system (CRS) or provide a low risk deployment (LRD) 
system. To minimize the risk to children, manufacturers relying on an 
air bag suppression or LRD system must ensure that the vehicle complies 
with the suppression or LRD requirements when tested with the CRSs 
specified in Appendix A of the standard. As part of ensuring the 
robustness of automatic air bag suppression and LRD systems, the CRSs 
in the appendix represent a large portion of the CRS market and CRSs 
with unique size and weight characteristics. NHTSA stated in the 
Advanced Air Bag Rule that the list will be updated periodically to 
subtract restraints that are no longer in production and to add new 
restraints (65 FR at 30724).
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    \2\ 65 FR 30680; Docket No. NHTSA-00-7013; responses to 
petitions for reconsideration, 66 FR 65376; Docket No. NHTSA 01-
11110, 66 FR 65376; Docket No. NHTSA 01-11110.
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    On November 12, 2008, the agency published a final rule that 
updated Appendix A to replace a number of older CRSs with those that 
were more available and more representative of the CRSs currently on 
the market.\3\ The final rule continued to call the current appendix 
``Appendix A,'' and established an ``Appendix A-1'' consisting of the 
updated appendix. The revisions made to establish Appendix A-1 included 
the deletion of seven existing CRSs, the addition of five new CRSs, and 
cosmetic replacements for seven existing CRSs. The final rule phased-in 
the use of the Appendix A-1 CRSs in compliance testing. Under the 
phase-in, 50 percent of vehicles manufactured on or after September 1, 
2009 are subject to testing by NHTSA using Appendix A-1, and all 
vehicles tested by NHTSA that are manufactured on or after September 1, 
2010 are subject to testing using Appendix A-1.
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    \3\ 73 FR 66786; Docket No. NHTSA-2008-0168.
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    On May 4, 2009, the agency denied a petition for rulemaking from 
the Alliance that requested, among other matters, that NHTSA commit to 
amending the list of child restraints in Appendix A every three years 
and allow manufacturers the option of certifying vehicles to any 
edition of Appendix A for five model years after the edition first 
becomes effective.\4\ We denied the petition because the requests were 
not conducive to maintaining the appendix, to ensuring child restraints 
are representative of the current fleet for testing with advanced air 
bag systems, and were unnecessarily restrictive.
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    \4\ 84 FR 20445; Docket No. NHTSA-2009-0064.
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III. Petitions for Reconsideration

    The agency received petitions for reconsideration of the November 
12, 2008 final rule from: The Alliance of Automobile Manufacturers 
(Alliance),\5\ Ford Motor Company (Ford), Evenflo Company, Incorporated 
(Evenflo), IEE S.A. (IEE), and Vehicle Services Consulting, Inc. 
(VSCI). The issues raised by the petitioners are summarized below.
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    \5\ Alliance members at the time of the petition included: BMW 
Group, Chrysler LLC, Ford Motor Company, General Motors, Jaguar/Land 
Rover, Mazda, Mercedes-Benz USA, Mitsubishi, Porsche, Toyota, and 
Volkswagen.
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    Lead time and phase-in. The final rule specified that manufacturers 
must begin certifying 50 percent of their vehicles manufactured on or 
after September 1, 2009 to Appendix A-1 and all vehicles manufactured 
on or after September 1, 2010 to Appendix A-1. The Alliance, Ford, IEE 
and VSCI asked for changes to the phase-in schedule.
    Positioning procedure for car bed testing. The final rule made no 
change to the procedures for conducting testing with the newborn infant 
dummy installed in the car bed. The Alliance requested that the agency 
provide a procedure for positioning the infant dummy in the car bed in 
FMVSS No. 208.
    Changes to car bed model number designation. The final rule adopted 
the Angel Guard Angel Ride Car Bed AA2403FOF in the final rule. The 
Alliance requested that the agency change the model designation to be 
less specific.
    Replacement seats. The final rule revisions to the appendix 
included the deletion of seven existing CRSs, the addition of five new 
CRSs, and cosmetic replacements for seven existing CRSs. Evenflo 
petitioned for removal of four Evenflo-manufactured seats and suggested 
the incorporation of replacement seats that are currently in 
production.
    In addition to the petition for reconsideration issues, the 
Alliance requested clarification on the use/removal of three CRSs.

IV. Final Rule; Agency Response to Petitions

a. Lead Time and Phase-In

    The November 2008 final rule provided a two-year phase-in, such 
that 50 percent of vehicles manufactured on or after September 1, 2009 
must be certified as meeting FMVSS No. 208 when tested with the CRSs in 
the revised Appendix A (Appendix A-1), and all vehicles manufactured on 
or after September 1, 2010 must be so certified. Four organizations, 
the Alliance, Ford, IEE, and VSCI, submitted petitions for 
reconsideration of the final rule's lead time and phase-in.
    The Alliance stated that the lead time specified in the final rule 
would impose significant cost burden on the industry without any safety 
benefit, which it said, is especially problematic for them now because 
the financial resources of the industry are under tremendous strain. 
The Alliance stated that many manufacturers have already certified 
their model year 2010 vehicles to the existing Appendix A and that the 
lead-time and phase-in contained in the final rule would require a 
costly recertification of those vehicles. In a February 27, 2009 letter 
to the agency, the Alliance provided supplemental information on its 
petition. It estimated that recertifying vehicles in accordance with 
the phase-in schedule set forth in the final rule would lead to 
aggregate incremental costs for five companies to be $526,120 from that 
date until September 1, 2009 and an additional

[[Page 6125]]

$679,720 between September 1, 2009 and September 1, 2010. The Alliance 
stated in its petition that the certification testing specified in the 
final rule can require in excess of 1,500 individual child restraint 
installations, taking over 20 days to complete with high confidence. 
Based on this extensive testing, the Alliance stated that the burden 
placed on industry is very significant and there is little to no safety 
benefit estimated. Therefore, the Alliance petitioned that NHTSA 
postpone and extend the phase-in to three years on a schedule of 20 
percent of vehicles built on or after September 1, 2010, 50 percent of 
vehicles built on or after September 1, 2011 and 100 percent of 
vehicles built on or after September 1, 2012.
    Ford, an Alliance member, also stated that the lead time and phase-
in schedule is not sufficient. Ford submitted confidential information 
detailing a typical vehicle test plan with associated costs to conduct 
tests necessary to demonstrate compliance with the passenger air bag 
suppression requirements of FMVSS No. 208.
    IEE petitioned for a one-year delay of the current phase-in 
schedule. IEE stated that it has been the agency's position that the 
compliance date for changes to Appendix A would be the next model year 
introduced one year after publication of a final rule modifying 
Appendix A. IEE stated that NHTSA did not publish the final rule 
modifying Appendix A before September 1, 2008, and the current final 
rule only provides 9 months and 18 days, not a full year. IEE stated 
that ``[t]he supplier industry can not start on November 12, 2008 with 
the system calibration and testing for all vehicle models * * * a 
manufacturer decision has to be taken first in order that the supplier 
knows which models to focus on for short-term (September 1, 2009) 
adaptation, and for which models one more year would be available to 
guarantee certification.'' IEE stated that NHTSA's indicant tests 
cannot conclude that the changes in the CRS characteristics are not 
significant enough to alter an advanced air bag system's performance. 
It noted that only four CRSs were used in this indicant testing with 
seventeen vehicles. IEE stated that a supplier can only decide if the 
modified Appendix A-1 alters the system's performance, or not, after 
having tested all Appendix A-1 CRSs on all vehicle models it is 
equipping. It suggested that only testing a subset of new CRS, and then 
concluding there would be no issues with all the new CRS would not be 
acceptable in view of having to guarantee FMVSS No. 208 compliance. IEE 
stated that NHTSA's indicant testing ``can not be used to motivate an 
earlier compliance.''
    Finally, VSCI was concerned that there is no provision in the final 
rule for small volume manufacturers (SVMs), and that the final rule 
phase-in period should not apply to all SVMs. It noted that there are 
some SVMs that only sell one model in the U.S., which means under the 
current final rule, those manufacturers would be required to be 100 
percent compliant within the first year without any lead time. VSCI 
suggested that the agency allow ``* * * manufacturers selling fewer 
than 5,000 vehicles per year in the U.S. * * * [to] wait until the end 
of the phase-in before having to comply.'' This provision would allow 
all SVMs to be 100 percent compliant within two years.
Agency Response
    NHTSA is granting the petition to exclude SVMs from the phase-in 
schedule of the final rule and is denying all other aspects of the 
petition concerning lead time. The agency agrees that under the final 
rule, SVMs with only a single model line would have to be fully 
compliant with Appendix A-1 a year ahead of larger vehicle 
manufacturers. We believe this would be unduly burdensome on SVMs. 
Today's final rule is amended such that SVMs selling fewer than 5,000 
vehicles per year in the U.S. may certify to either version of Appendix 
A until the end of the phase-in.
    NHTSA is denying the petitions to change the provisions of the 
final rule lead time and phase-in schedule for other manufacturers. In 
the November 2008 final rule, the agency stated its belief that the 
phase-in effectively balanced the competing considerations in updating 
the appendix, namely, the need to have a representative list that 
ensures the compatibility of suppression and LRD systems with CRSs in 
the field, while maintaining some stability to minimize the 
certification burden on vehicle manufacturers. Based on our analysis of 
the petitions for reconsideration, we do not agree with the 
petitioner's requests for additional lead time and extended phase-in. 
The Alliance's petition for an additional year of lead time would 
effectively postpone use of the new Appendix A-1 seats for 
approximately two years and would only require 20% of the fleet to be 
certified at that time (or 50% under the IEE petition request). We 
believe that delaying implementation of Appendix A-1 is in conflict 
with the agency's goal of moving toward a newer version of the Appendix 
that would better ensure the CRSs are available and representative of 
those in use. Furthermore, the Alliance's additional request to extend 
the phase-in for three years on top of the additional year of lead time 
would compound the delay in implementation of the testing and diminish 
how representative the child seats are during that time period.
    In response to IEE, we note that our decision on lead time and 
phase-in was only partially based on testing the agency conducted with 
new vehicles and new child restraints. We acknowledge that our indicant 
testing was not all-inclusive (i.e., it did not test every type of CRS 
with every model of vehicle in the current fleet); however, it was 
considered as an indicator of general performance that could be 
anticipated by the use of CRSs in Appendix A-1. Our indicant testing 
used 4 representative CRSs and 17 new vehicles equipped with current 
suppression systems.\6\ The testing identified no compliance issues or 
challenges with the new seats, and bolstered the agency's expectation 
that new vehicles would readily identify the CRSs without needing 
redesign and recalibration. It was also consistent with GM's comments 
to the notice of proposed rulemaking \7\ where GM stated, ``Neither our 
warranty data or the feedback we receive through our continuous and 
close involvement with the Child Passenger Safety (CPS) community 
indicates that there are any child restraints in use that do not 
properly classify in our vehicles when used in the field.''
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    \6\ See test report provided in the docket for this final rule.
    \7\ Docket No. NHTSA-2007-28710-0016.
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    The intention in providing a phase-in in the final rule was, in 
part, to provide vehicle manufacturers the flexibility of selecting 
vehicles that could readily comply with the new appendix in the first 
year and delay more challenging vehicle models, if they existed, to the 
following years. None of the petitioners provided any evidence that any 
of the vehicle models would need redesign or recalibration.
    We are not persuaded by IEE's arguments for an additional year of 
lead time because of a perceived conflict between the final rule and 
the agency's past position on implementation dates, and the fact that 
the rule only provides 9 months and 18 days for certification. Only 
half of a vehicle manufacturer's production needs to comply with the 
first year of the phase-in. Vehicle manufacturers can minimize 
recertification burdens by certifying their new model year 2010 
vehicles to Appendix A-1 to meet the required

[[Page 6126]]

percentage of vehicles that must be certified using Appendix A-1 for 
the first year of the phase-in. The effective date and phase-in 
schedule apply to all vehicles, without differentiation between new and 
``carryover'' models (these are vehicles that were previously certified 
to the existing Appendix A). A manufacturer may choose to have new 
vehicle models, carryover models, or both, comprise the 50 percent 
phase-in requirement. The lead time and phase-in schedule adopted in 
the final rule allow vehicle manufacturers to carryover a large 
percentage of its vehicles for a year to alleviate recertification 
burdens.

b. Positioning Procedure for Car Bed Testing

    The November 12, 2008 final rule did not make amendments to 
positioning the newborn infant dummy in the car bed. It was also not 
discussed in the notice of proposed rulemaking or in the comments in 
response to that notice. Section S20.2.3 of FMVSS No. 208 currently 
states: ``(c) Position the 49 CFR Part 572 Subpart K Newborn Infant 
dummy in the car bed by following, to the extent possible, the car bed 
manufacturer's instructions provided with the car bed for positioning 
infants.''
    The Alliance petitioned for a new positioning procedure for placing 
the newborn infant dummy in the Angel Guard Angel Ride AA2403FOF car 
bed. It noted that when the dummy's head is contained within the car 
bed, the dummy's legs/feet rest on the opposite edge of the CRS. The 
Alliance noted that the Angel Guard Angel Ride AA2403FOF car bed is 
designed for a child up to 5 pounds. The Alliance requested that NHTSA 
provide a positioning procedure such that the dummy's head is contained 
inside the CRS and its legs/feet are allowed to rest on the opposite 
edge of the CRS. The Alliance suggested this could be included in FMVSS 
No. 208 or included as a footnote to Appendix A-1.
Agency Response
    NHTSA is denying the Alliance petition to adopt a positioning 
procedure for the newborn infant dummy in the car bed. The newborn 
infant dummy only weighs approximately 7.5 pounds.\8\ According to the 
label on the car bed, the bed can accommodate a child up to 9 pounds. 
We are also unconvinced that the exact position of the newborn infant 
dummy in the car bed would have any significant effect on FMVSS No. 208 
advanced air bag suppression testing. The distribution of where the 
newborn infant dummy weight is applied to the seat will not change 
significantly. The Alliance has not provided any data demonstrating 
that there are practical issues with the exact positioning of the 
newborn infant dummy in this car bed and we are unconvinced that 
sensing systems are not robust enough to accommodate small weight 
shifts within the carrier.
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    \8\ http://www.dentonatd.com/dentonatd/pdf/cami.pdf.
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c. Changes to Car Bed Model Number Designation

    The final rule adopted the Angel Guard Angel Ride AA2403FOF car bed 
in Appendix A-1. In its petition, the Alliance noted that the model 
designation specified in the final rule for this car bed is no longer 
available. According to the Alliance, it contacted the manufacturer of 
this product and learned that the first two characters in the model 
number are for packaging and minor product changes that would not 
change its expected performance in FMVSS No. 208 low risk deployment 
and suppression tests. It also learned that the last three characters 
refer to the specification of fabric color (also not affecting FMVSS 
No. 208 performance). Therefore, the Alliance petitioned for the model 
designation for the Angel Guard Angel Ride infant car bed to be changed 
from AA2403FOF to xx2403xxx.
Agency Response
    NHTSA is granting the Alliance's petition to change the car bed 
model number designation. From our contact with the manufacturer,\9\ we 
learned that the first letter of the model number designates the way in 
which the car bed was packaged and should not have an influence on the 
performance of the car bed in FMVSS No. 208 CRS testing. The second 
letter designates small manufacturing changes that would not affect the 
footprint, and weight of the seat significantly and the last three 
letters denote that the CRS had the factory option fabric (FOF) 
installed. The manufacturer reported that the second letter currently 
changed due to label changes and a re-designed harness. The label 
changes were made in response to NHTSA's Ease-of-Use program. Because 
the letters do not represent any feature of the infant car bed that 
would affect FMVSS No. 208 CRS testing, the agency agrees with the 
Alliance that there is no need to specify these designations.
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    \9\ See the NHTSA ex-parte memo provided in the docket for this 
final rule.
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d. Replacement Seats

    The final rule adopted revisions to the appendix that included the 
deletion of seven existing CRSs, addition of five new CRSs, and 
cosmetic replacements for seven existing CRSs. In its petition for 
reconsideration, Evenflo requested that four Evenflo-manufactured CRSs 
be removed from Appendix A-1 because they are no longer in production. 
They include: the Discovery Adjust Right 212, Medallion 254, Right Fit 
245, and Tribute V 379xxxx. Evenflo provided three potential 
replacements for the four CRSs.
Agency Response
    The agency is denying the Evenflo petition. With regard to three 
out of four of the CRSs, these CRSs (Discovery Adjust Right 212, 
Medallion 254 and Right Fit 245) were not proposed for deletion in the 
NPRM and subsequently not deleted in the final rule. The agency 
purposely left these seats effective in the final rule since they were 
not targeted for immediate replacement at that time. While replacing 
these CRSs is presently out of scope of this rulemaking, the agency may 
consider these suggestions in a future update of Appendix A.
    The fourth seat, the Evenflo Tribute V 379xxxx, was a new addition 
to the appendix. Evenflo suggested that the Tribute 381xxxx would be a 
viable replacement for the Tribute V 379xxxx. According to Evenflo, the 
latter CRS went out of production in October of 2008 (shortly prior to 
the publication of the final rule). This request was also made by the 
Alliance in its petition for reconsideration. The agency is partially 
granting this request. See Section V.b. of today's document for the 
agency's response regarding this CRS.

V. Technical Clarifications

a. Evenflo First Choice 204

    The November 12, 2008 final rule regulatory text of Appendix A-1 
did not include the Evenflo First Choice 204 and the preamble was 
silent about its removal. In its petition, the Alliance requested 
confirmation that the removal of this CRS was intentional since the CRS 
was not specifically discussed in the NPRM and was not mentioned in the 
preamble of the final rule.
Agency Response
    We confirm that the Evenflo First Choice 204 has been removed and 
is not included in Appendix A-1. In section II.c. of the NPRM (72 FR at 
54407), NHTSA requested comment on changing CRSs in Appendix A other 
than those proposed to be deleted in section II.a. or added in section 
II.b. The

[[Page 6127]]

changes proposed by section II.c were primarily to update older CRSs in 
the appendix with newer model CRSs that have the same main physical 
features as the older restraints. TRW commented that either the Evenflo 
First Choice 204 or the Evenflo Discovery Adjust Right 212 should be 
deleted because, aside from the latter having a removable base, they 
are identical seats. The agency agreed to delete the Evenflo First 
Choice 204 because this child restraint shares the same shell as the 
Evenflo Adjust Right. Since FMVSS No. 208 CRS testing is done with and 
without the base attached, testing with the Evenflo Adjust Right in the 
``no base'' mode is the same as testing with the Evenflo First Choice 
204. The agency decided to delete the Evenflo First Choice 204 to avoid 
redundant testing.

b. Evenflo Tribute V 379xxxx

    In its February 27, 2009 supplement to its petition, the Alliance 
stated that it learned, subsequent to its December 2008 petition, that 
the Evenflo Tribute V 379xxxx was no longer in production after October 
2008. The Alliance urged NHTSA to confirm that in view of the seat 
``becoming unavailable'' prior to the issuance of the final rule 
adopting Appendix A-1, vehicle manufacturers will not need to certify 
compliance of their vehicles using this CRS.\10\ It said that the 
agency stated the following on November 19, 2003 regarding 
unavailability:
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    \10\ As discussed in Section IV.d. of this document, Evenflo 
also petitioned for this seat to be replaced with the Evenflo 
Tribute 381xxxx.

    Even with diligent review of Appendix A, there may be rare 
occasions when a new addition of the list becomes unavailable or 
undergoes a significant design change between the time an amendment 
is proposed and when it is issued as a final rule. Under this 
limited circumstance, the agency would not use the unavailable or 
altered CRS for compliance testing and the manufacturers would 
likewise be relieved of any burden to procure the CRS or use it to 
test for suppression. 68 FR at 65179, 65188.
Agency Response
    The view of the agency expressed in the 2003 statement was 
explained in and modified by the November 12, 2008 final rule (73 FR at 
66795). In the 2008 final rule, NHTSA re-evaluated the statement and 
determined that it was overtaken by events in today's context. We also 
determined that the decision as to whether a CRS differs so much on the 
day of publication of a rule from the CRS that the agency had proposed 
should be addressed in a rulemaking proceeding. It was not a matter to 
be assumed that the CRS would be removed from compliance testing. 
Relatedly, while production of the Evenflo Tribute V 379xxxx ceased in 
October 2008, no data was provided by the Alliance to suggest that the 
seats were ``unavailable for purchase.'' Thus, we decline to remove the 
CRS from the appendix.
    That being said, we have decided to grant Evenflo's request to 
include the Evenflo Tribute 381xxxx in the appendix. Both the Evenflo 
Tribute V 379xxxx and the Tribute 381xxxx have the same footprint and 
dimensions. The only minor differences are the internal harness 
adjuster and the number of adjustments for the shoulder belts and 
crotch strap. We will not replace the Evenflo Tribute V 379xxxx with 
the Evenflo Tribute 381xxxx, but will instead allow certification 
testing to be conducted with either CRS. We are allowing this option in 
this final rule so as not to penalize manufacturers that diligently 
procured a sufficient supply of the Evenflo Tribute V 379xxxx for 
testing and have since certified vehicles to the final rule. The agency 
will permit this unique option since both CRSs would provide an 
equivalent level of safety for the purposes of FMVSS No. 208 testing.

c. Cosco Arriva 22-013PAW

    In its February 27, 2009 supplement to its petition, the Alliance 
reported that Dorel Juvenile Group (DJG), the manufacturer of the Cosco 
Arriva 22-013PAW, has indicated that the CRS is no longer in production 
due to the unavailability of its base, No. 22-999WHO. The Alliance 
urged NHTSA to confirm that in view of the seat ``becoming 
unavailable'' prior to the issuance of the final rule adopting Appendix 
A-1, vehicle manufacturers will not need to certify compliance of their 
vehicles using this CRS.
Agency Response
    The agency does not concur with the Alliance's reliance on the 
statement of the 2003 final rule for the reasons given above regarding 
the Cosco Arriva 22-013PAW. Further, the agency received information 
from the manufacturer that the base, No. 22-999WHO would be put back in 
production for FMVSS No. 208 testing.\11\ Accordingly, the request is 
denied.
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    \11\ See the NHTSA ex-parte memo provided in the docket for this 
final rule.
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VI. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This rulemaking document was not reviewed by the Office of 
Management and Budget under E.O. 12866. It is not considered to be 
significant under E.O. 12866 or the Department's Regulatory Policies 
and Procedures (44 FR 11034; February 26, 1979). The costs and benefits 
of advanced air bags are discussed in the agency's Final Economic 
Assessment for the May 2000 final rule (Docket 7013). The cost and 
benefit analysis provided in that document would not be affected by 
this final rule, since this final rule only slightly adjusts the phase-
in schedule for SVMs and makes small adjustments to the CRSs used in 
test procedures of that final rule. The minimal impacts of today's 
amendment do not warrant preparation of a regulatory evaluation.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., NHTSA has evaluated the effects of this action on small entities. 
I hereby certify that this final rule will not have a significant 
impact on a substantial number of small entities. This rule affects 
motor vehicle manufacturers, multistage manufacturers and alterers, 
some of which qualify as small entities. However, the entities that 
qualify as small businesses will not be significantly affected by this 
rulemaking because this rule adjusts the phase-in schedule for them, 
which is a positive impact. These entities are already required to 
comply with the advanced air bag requirements, so this final rule does 
not establish new requirements.

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 rulemaking does not have federalism implications because this final 
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 issue of 
preemption in connection with today's rulemaking. The issue of 
preemption can arise in connection with NHTSA rules in two

[[Page 6128]]

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 unavoidably preempts State legislative and administrative 
law, not today's rulemaking, so consultation would be unnecessary.
    Second, the Supreme Court has recognized the possibility of implied 
preemption in some instances, 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 an 
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). However, 
NHTSA has considered the nature and purpose of today's final rule and 
does not foresee any potential State requirements that might conflict 
with it. Without any conflict, there could not be any implied 
preemption.

National Environmental Policy Act

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

Paperwork Reduction Act

    Under 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. The November 12, 
2008 final rule contained a collection of information because of the 
phase-in reporting requirements. There was no burden to the general 
public.
    The November 12, 2008 final rule required manufacturers of 
passenger cars, multipurpose passenger vehicles, trucks, and buses 
having a GVWR of 3,856 kg (8,500 lb) or less, to annually submit a 
report, and maintain records related to the report, concerning the 
number of such vehicles that meet the FMVSS No. 208 requirements using 
Appendix A-1 during the phase-in of those requirements. The purpose of 
the reporting and recordkeeping requirements is to assist the agency in 
determining whether a manufacturer of vehicles has complied with the 
requirements during the phase-in period. Today's final rule has no 
further reporting or recordkeeping requirements.

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.''
    There are no voluntary consensus standards that address the CRSs 
that should be included in Appendix A.

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 General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The issue of 
preemption is discussed above in connection with E.O. 13132. 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.

Unfunded Mandates Reform Act

    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 annually (adjusted for inflation, with base year of 1995). 
This final rule will not result in expenditures by State, local or 
tribal governments, in the aggregate, or by the private sector in 
excess of $100 million annually.

Executive Order 13045

    Executive Order 13045 (62 FR 19885, April 23, 1997) 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. This rulemaking is not subject to 
the Executive Order because it is not economically significant as 
defined in E.O. 12866.

Executive Order 13211

    Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any 
rulemaking that: (1) Is determined to be economically significant as 
defined under E.O. 12866, and is likely to have a significantly adverse 
effect on the supply of, distribution of, or use of energy; or (2) that 
is designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. This rulemaking is 
not subject to E.O. 13211.

Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 
1998, require each agency to write all rules in plain language. 
Application of the principles of plain language includes consideration 
of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
    If you have any responses to these questions, please write to us at 
the address provided at the beginning of this document.

Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in

[[Page 6129]]

the heading at the beginning of this document to find this action in 
the Unified Agenda.

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 (Volume 65, Number 70; Pages 19477-78).

List of Subjects in 49 CFR Part 571

    Imports, Incorporation by reference, Motor vehicle safety, 
Reporting and recordkeeping requirements, Tires.

0
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as set 
forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for Part 571 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:
0
 Adding S14.8.5
0
 Revising Appendix A-1


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

* * * * *
    S14.8.5 Until September 1, 2011, manufacturers selling fewer than 
5,000 vehicles per year in the U.S. may certify their vehicles as 
complying with S19, S21, and S23 when using the child restraint systems 
specified in Appendix A. Vehicles manufactured on or after September 1, 
2011 by these manufacturers must be certified as complying with S19, 
S21, and S23 when using the child restraint systems specified in 
Appendix A-1.
* * * * *

Appendix A-1 to Sec.  571.208--Selection of Child Restraint Systems

    This Appendix A-1 applies to not less than 50 percent of a 
manufacturer's vehicles manufactured on or after September 1, 2009 
and before September 1, 2010, as specified in S14.8 of this 
standard. This appendix applies to all vehicles manufactured on or 
after September 1, 2010.
    A. The following car bed, manufactured on or after the date 
listed, may be used by the National Highway Traffic Safety 
Administration to test the suppression system of a vehicle that has 
been certified as being in compliance with 49 CFR 571.208 S19:

           Subpart A--Car Bed Child Restraints of Appendix A-1
------------------------------------------------------------------------
                                              Manufactured on or after
------------------------------------------------------------------------
Angel Guard Angel Ride XX2403XXX..........  September 25, 2007.
------------------------------------------------------------------------

    B. Any of the following rear-facing child restraint systems 
specified in the table below, manufactured on or after the date 
listed, may be used by the National Highway Traffic Safety 
Administration to test the suppression or low risk deployment (LRD) 
system of a vehicle that has been certified as being in compliance 
with 49 CFR 571.208 S19. When the restraint system comes equipped 
with a removable base, the test may be run either with the base 
attached or without the base.

         Subpart B--Rear-Facing Child Restraints of Appendix A-1
------------------------------------------------------------------------
                                              Manufactured on or after
------------------------------------------------------------------------
Century Smart Fit 4543....................  December 1, 1999.
Cosco Arriva 22-013 PAW and base 22-999     September 25, 2007.
 WHO.
Evenflo Discovery Adjust Right 212........  December 1, 1999.
Graco Infant 8457.........................  December 1, 1999.
Graco Snugride............................  September 25, 2007.
Peg Perego Primo Viaggio SIP IMUN00US.....  September 25, 2007.
------------------------------------------------------------------------

    C. Any of the following forward-facing child restraint systems, 
and forward-facing child restraint systems that also convert to 
rear-facing, manufactured on or after the date listed, may be used 
by the National Highway Traffic Safety Administration to test the 
suppression or LRD system of a vehicle that has been certified as 
being in compliance with 49 CFR 571.208 S19, or S21. (Note: Any 
child restraint listed in this subpart that does not have 
manufacturer instructions for using it in a rear-facing position is 
excluded from use in testing in a belted rear-facing configuration 
under S20.2.1.1(a) and S20.4.2):

Subpart C--Forward-Facing and Convertible Child Restraints of Appendix A-
                                    1
------------------------------------------------------------------------
                                              Manufactured on or after
------------------------------------------------------------------------
Britax Roundabout E9L02xx.................  September 25, 2007.
Graco ComfortSport........................  September 25, 2007.
Cosco Touriva 02519.......................  December 1, 1999.
Evenflo Tribute V 379xxxx or Evenflo        September 25, 2007.
 Tribute 381xxxx.
Evenflo Medallion 254.....................  December 1, 1999.
Cosco Summit Deluxe High Back Booster 22-   September 25, 2007.
 262.
Evenflo Generations 352xxxx...............  September 25, 2007.
Graco Toddler SafeSeat Step 2.............  September 25, 2007.
Graco Platinum Cargo......................  September 25, 2007.
Cosco High Back Booster 22-209............  September 25, 2007.
------------------------------------------------------------------------

    D. Any of the following forward-facing child restraint systems 
and belt positioning seats, manufactured on or after the date 
listed, may be used by the National Highway Traffic Safety 
Administration as test devices to test the suppression system of a 
vehicle that has been certified as being in compliance with 49 CFR 
571.208 S21 or S23:

Subpart D--Forward-Facing Child Restraints and Belt Positioning Seats of
                              Appendix A-1
------------------------------------------------------------------------
                                              Manufactured on or after
------------------------------------------------------------------------
Britax Roadster 9004......................  December 1, 1999.
Graco Platinum Cargo......................  September 25, 2007.
Cosco High Back Booster 22-209............  September 25, 2007.
Evenflo Right Fit 245.....................  December 1, 1999.
Evenflo Generations 352xxxx...............  September 25, 2007.
Cosco Summit Deluxe High Back Booster 22-   September 25, 2007.
 262.
------------------------------------------------------------------------


    Issued: January 25, 2010.
David L. Strickland,
Administrator.
[FR Doc. 2010-2610 Filed 2-5-10; 8:45 am]
BILLING CODE 4910-59-P

