
[Federal Register Volume 77, Number 128 (Tuesday, July 3, 2012)]
[Notices]
[Pages 39564-39567]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16271]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0086]


Group Lotus Plc, Receipt of Petition for Temporary Exemption From 
an Advanced Air Bag Requirement of FMVSS No. 208

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

ACTION: Notice of receipt of a petition for a temporary exemption from 
a provision of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, 
Occupant Crash Protection.

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SUMMARY: In accordance with the procedures in 49 CFR part 555, Group 
Lotus Plc has petitioned the agency for a temporary exemption from one 
advanced air bag requirement of FMVSS No. 208, the higher maximum speed 
(56 km/h (35 mph)) belted test requirement using 5th percentile adult 
female dummies for its Evora model. The basis for the application is 
that the petitioner avers compliance would cause it substantial 
economic hardship and that it has tried in good faith to comply with 
the standard.\1\ This notice of receipt of an application for a 
temporary exemption is published in accordance with statutory and 
administrative provisions. NHTSA has made no judgment on the merits of 
the application.
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    \1\ To view the application, go to http://www.regulations.gov 
and enter the docket number set forth in the heading of this 
document.

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DATES: You should submit your comments not later than August 2, 2012.

FOR FURTHER INFORMATION CONTACT: David Jasinski, Office of the Chief 
Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 
New Jersey Avenue SE., West Building 4th Floor, Room W41-213, 
Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.

ADDRESSES: We invite you to submit comments on the application 
described above. You may submit comments identified by docket number in 
the heading of this notice by any of the following methods:
     Web Site: http://www.regulations.gov. Follow the 
instructions for submitting comments on the electronic docket site by 
clicking on ``Help and Information'' or ``Help/Info.''
     Fax: 1-202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, Room W12-140, 1200 New Jersey Avenue SE., Washington, 
DC 20590.
     Hand Delivery: 1200 New Jersey Avenue SE., West Building 
Ground Floor, Room W12-140, Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal Holidays.
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number. Note that all comments received will be posted without 
change to http://www.regulations.gov, including any personal 
information provided. Please see the Privacy Act discussion below. We 
will consider all comments received before the close of business on the 
comment closing date indicated

[[Page 39565]]

above. To the extent possible, we will also consider comments filed 
after the closing date.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays. Telephone: (202) 366-9826.
    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) or you may visit 
http://www.dot.gov/privacy.html.
    Confidential Business Information: If you wish to submit any 
information under a claim of confidentiality, you should submit three 
copies of your complete submission, including the information you claim 
to be confidential business information, to the Chief Counsel, NHTSA, 
at the address given under FOR FURTHER INFORMATION CONTACT. In 
addition, you should submit two copies, from which you have deleted the 
claimed confidential business information, to Docket Management at the 
address given above. When you send a comment containing information 
claimed to be confidential business information, you should include a 
cover letter setting forth the information specified in our 
confidential business information regulation (49 CFR Part 512).

SUPPLEMENTARY INFORMATION: 

I. Advanced Air Bag Requirements and Small Volume Manufacturers

    In 2000, NHTSA upgraded the requirements for air bags in passenger 
cars and light trucks, requiring what are commonly known as ``advanced 
air bags.'' \2\ The upgrade was designed to meet the twin 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. Prior to this rule, crash tests under FMVSS No. 208 used 
only one size dummy, a 50th percentile adult male dummy. However, the 
advanced air bag rule specified the use of both 50th percentile adult 
male and 5th percentile adult female dummies for the standard's crash 
tests.
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    \2\ See 65 FR 30680 (May 12, 2000).
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    The requirements for the vehicle performance in an unbelted 32 km/h 
(20 mph) to 40 km/h (25 mph) rigid barrier crash test and the belted 
rigid barrier crash test with a maximum test speed of 48 km/h (30 mph) 
for both the 50th percentile male dummy and the 5th percentile female 
dummy were phased in beginning with the 2004 model year. Small volume 
manufacturers were not subject to these advanced air bag requirements 
until the end of the phase-in period, which was September 1, 2006.
    A second phase-in period required vehicles to be certified as 
passing the belted rigid barrier test requirements at speeds up to 56 
km/h (35 mph) using the 50th percentile adult male dummy. This 
requirement was phased in beginning with the 2008 model year. Small 
volume manufacturers were not subject to this requirement until the end 
of the phase-in period, which was September 1, 2010.
    The 2000 final rule did not include a higher speed belted rigid 
barrier test for a 5th percentile adult female dummy. Instead, NHTSA 
initiated testing to examine the practicability of imposing such a 
requirement.\3\
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    \3\ See 65 FR 30690.
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    On August 31, 2006, NHTSA published a final rule that increased the 
maximum test speed for the belted rigid barrier test using the 5th 
percentile adult female test dummy from 48 km/h (30 mph) to 56 km/h (35 
mph).\4\ This new requirement was phased in beginning with the 2010 
model year. Small manufacturers are not subject to this requirement 
until the completion of the phase in period, which is September 1, 
2012.
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    \4\ See 71 FR 51768.
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    In recent years, NHTSA has addressed a number of petitions for 
exemption from some of the initial advanced air bag requirements of 
FMVSS No. 208. The majority of these requests came from small 
manufacturers, each of which petitioned on the basis that compliance 
would cause it substantial economic hardship and that it has tried in 
good faith to comply with the standard. In recognition of the more 
limited resources and capabilities of small manufacturers, authority to 
grant exemptions based on substantial economic hardship and good faith 
efforts was added to the Vehicle Safety Act in 1972 to enable the 
agency to give those manufacturers additional time to comply with the 
Federal safety standards.
    NHTSA granted a number of these petitions, usually in situations in 
which the manufacturer was supplying standard air bags in lieu of 
advanced air bags.\5\ In addressing these petitions, NHTSA has 
recognized that small manufacturers may face particular difficulties in 
acquiring or developing advanced air bag systems.
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    \5\ See, e.g., grant of petition to Panoz, 72 FR 28759 (May 22, 
2007), or grant of petition to Koenigsegg, 72 FR 17608 (April 9, 
2007).
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    Notwithstanding those previous grants of exemption, NHTSA has 
considered two key issues--
    (1) whether it is in the public interest to continue to grant such 
petitions, particularly in the same manner as in the past, given the 
number of years these requirements have now been in effect and the 
benefits of advanced air bags, and
    (2) to the extent such petitions are granted, what plans and 
countermeasures to protect child and infant occupants, short of 
compliance with the advanced air bags, should be expected.
    While the exemption authority was created to address the problems 
of small manufacturers and the agency wishes to be appropriately 
attentive to those problems, it was not anticipated by the agency that 
use of this authority would result in small manufacturers being given 
much more than relatively short term exemptions from recently 
implemented safety standards, especially those addressing particularly 
significant safety problems.
    Given the passage of time since the advanced air bag requirements 
were established and implemented, and in light of the benefits of 
advanced air bags, NHTSA has determined that it is not in the public 
interest to continue to grant exemptions from these requirements under 
the same terms as in the past.\6\ The costs of compliance with the 
advanced air bag requirements of FMVSS No. 208 are costs that all 
entrants to the U.S. automobile marketplace should expect to bear. 
Furthermore, NHTSA understands that, in contrast to the initial years 
after the advanced air bag requirements went into effect, low volume 
manufacturers now have access to advanced air bag technology. 
Accordingly, NHTSA has concluded that the expense of advanced air bag 
technology is not now sufficient, in and of itself, to justify the 
grant of a petition for a hardship exemption from the advanced air bag 
requirements.\7\
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    \6\ See denial of petition of Pagani Automobili SpA, 76 FR 
47641-42 (Aug. 5, 2011).
    \7\ See id.
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    NHTSA further notes that the granting of hardship exemptions from 
motor

[[Page 39566]]

vehicle safety standards is subject to the agency's finding that the 
petitioning manufacturer has ``tried to comply with the standard in 
good faith.'' \8\ In response to prior petitions, NHTSA has granted 
temporary exemptions from the advanced air bag requirements as a means 
of affording eligible manufacturers an additional transition period to 
comply with the exempted standard. In deciding whether to grant an 
exemption based on substantial economic hardship and good faith 
efforts, NHTSA considers the steps that the manufacturer has already 
taken to achieve compliance, as well as the future steps the 
manufacturer plans to take during the exemption period and the 
estimated date by which full compliance will be achieved.\9\
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    \8\ 49 U.S.C. 30113(b)(3)(B)(i)
    \9\ 49 CFR 555.6(a)(2)
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    NHTSA invites comment on how these considerations relate to Lotus's 
petition for an exemption from the higher speed belted rigid barrier 
test using the 5th percentile adult female test dummy. In this respect, 
Lotus notes that it seeks exemption from only a single test performance 
requirement rather than all of the advanced air bag requirements.

II. Statutory Authority for Temporary Exemptions

    The National Traffic and Motor Vehicle Safety Act (Safety Act), 
codified as 49 U.S.C. Chapter 301, provides the Secretary of 
Transportation authority to exempt, on a temporary basis and under 
specified circumstances, motor vehicles from a motor vehicle safety 
standard or bumper standard. This authority is set forth at 49 U.S.C. 
30113. The Secretary has delegated the authority for implementing this 
section to NHTSA.
    The Act authorizes the Secretary to grant a temporary exemption to 
a manufacturer of not more than 10,000 motor vehicles annually, on such 
terms as he deems appropriate, if he finds that the exemption would be 
consistent with the public interest and the Safety Act and if he also 
finds that ``compliance with the standard would cause substantial 
economic hardship to a manufacturer that has tried to comply with the 
standard in good faith.''
    NHTSA established Part 555, Temporary Exemption from Motor Vehicle 
Safety and Bumper Standards, to implement the statutory provisions 
concerning temporary exemptions. Under Part 555, a petitioner must 
provide specified information in submitting a petition for exemption. 
These requirements are specified in 49 CFR 555.5, and include a number 
of items. Foremost among them are that the petitioner must set forth 
the basis of the application under Sec.  555.6, and the reasons why the 
exemption would be in the public interest and consistent with the 
objectives of 49 U.S.C. Chapter 301.
    A manufacturer is eligible to apply for a hardship exemption if its 
total motor vehicle production in its most recent year of production 
did not exceed 10,000 vehicles, as determined by the NHTSA 
Administrator (49 U.S.C. 30113).
    In determining whether a manufacturer of a vehicle meets that 
criterion, NHTSA considers whether a second vehicle manufacturer also 
might be deemed the manufacturer of that vehicle. The statutory 
provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do 
not state that a manufacturer has substantial responsibility as 
manufacturer of a vehicle simply because it owns or controls a second 
manufacturer that assembled that vehicle. However, the agency considers 
the statutory definition of ``manufacturer'' (49 U.S.C. 30102) to be 
sufficiently broad to include sponsors, depending on the circumstances. 
Thus, NHTSA has stated that a manufacturer may be deemed to be a 
sponsor and thus a manufacturer of a vehicle assembled by a second 
manufacturer if the first manufacturer had a substantial role in the 
development and manufacturing process of that vehicle.
    While 49 U.S.C. 30113(b) states that exemptions from a Safety Act 
standard are to be granted on a ``temporary basis,'' \10\ the statute 
also expressly provides for renewal of an exemption on reapplication. 
Manufacturers are nevertheless cautioned that the agency's decision to 
grant an initial petition in no way predetermines that the agency will 
repeatedly grant renewal petitions, thereby imparting semi-permanent 
status to an exemption from a safety standard. Exempted manufacturers 
seeking renewal must bear in mind that the agency is directed to 
consider financial hardship as but one factor, along with the 
manufacturer's ongoing good faith efforts to comply with the 
regulation, the public interest, consistency with the Safety Act, 
generally, as well as other such matters provided in the statute.
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    \10\ 49 U.S.C. 30113(b)(1).
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III. Overview of Petition

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
part 555, Group Lotus Plc (Lotus) has submitted a petition asking the 
agency for a temporary exemption from one advanced air bag requirement 
of FMVSS No. 208 for its Evora model. Specifically, the petition 
requests an exemption from the advanced air bag requirement in S14.7, 
which requires vehicles manufactured on or after September 1, 2012, to 
meet the higher maximum speed (56 km/h (35 mph)) belted test 
requirement using the 5th percentile adult female dummy.\11\ Lotus 
requests this exemption only for the front passenger seat. The basis 
for the application is that compliance would cause the petitioner 
substantial economic hardship and that the petitioner has tried in good 
faith to comply with the standard. Lotus has requested an exemption for 
a period of 31 months from September 1, 2012 to March 31, 2015.
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    \11\ In its petition, Lotus asks for exemption from S15.1(b) and 
S16.1(a)(2) as well. However, those provisions apply to only those 
vehicles certified as complying with S14.6 or S14.7. If an exemption 
is granted, the vehicle would not be required to be certified to 
S14.7. S14.6 is the phase in for the higher speed 5th percentile 
adult female belted barrier test requirement that is not applicable 
to Lotus. In that instance, neither provision would apply to the 
exempted vehicles. Furthermore, S16.1(a)(2) is the test procedure 
for conducting the rigid barrier test using 5th percentile adult 
female dummies. This test procedure contains no substantive 
requirements for which Lotus would need exemption.
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    Lotus is a United Kingdom corporation. In the year prior to the 
filing of its petition, Lotus produced a total of 3,115 vehicles.\12\ 
Lotus states that, since its inception, it has never manufactured more 
than 10,000 vehicles in a year. Lotus states further that, although it 
is owned by the Malaysian automobile manufacturer Proton, Proton is not 
a ``sponsor'' of Lotus and its production should not be (and 
historically has not been) aggregated with Lotus's production for the 
purpose of determining eligibility for a temporary exemption. Lotus 
anticipates that the number of exempted vehicles imported to the U.S. 
if this petition is granted would be approximately 800.
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    \12\ This total includes 690 vehicles that were assembled for 
Tesla Motors, Inc.
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    Lotus previously obtained an exemption from the advanced air bag 
requirements for its Elise model.\13\ In its petition for exemption 
from the advanced air bag requirements for the Elise, Lotus committed 
to equipping its next model, the Evora, with compliant advanced air 
bags. Lotus states that, since its introduction to the U.S. market in 
2010, the Evora has been fully compliant with FMVSS No. 208. However, 
Lotus states that its sales have been lower than projected because of

[[Page 39567]]

Lotus's financial hardship, exacerbated by the global recession; 
emergence of competition in its market segment; and the withdrawal of 
the Elise from the U.S. market. Furthermore, Lotus states the Evora's 
advanced air bag system will not comply with the higher speed 5th 
percentile female belted occupant (passenger side, fully forward seat 
position) barrier crash test without sourcing new components and 
conducting a complete revalidation of the system. Lotus previously 
believed that Evora sales would have been augmented by a new product 
using substantially the same platform, upon which compliance with the 
higher speed 5th percentile female belted requirements would have been 
developed. However, Lotus states that it stopped that development 
program due to poor Evora sales and repositioning of its business 
(moving from the entry level premium segment to the high performance, 
luxury sports car segment).
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    \13\ See 71 FR 52851, 52859-62 (Docket No. NHTSA-2006-25324).
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    Lotus states that the Evora cannot meet the higher speed 5th 
percentile female belted test requirements because the Evora's air bag 
electronic control unit (ECU) does not have the capability to monitor 
whether the seat belt is buckled and its seat belt supplier does not 
have a suitable buckle switch. A buckle switch would allow the ECU to 
fire only the first stage of the air bag inflator for buckled occupants 
while firing two stages for unbuckled occupants, allowing the stiffness 
of the air bag to be different for belted and unbelted occupants. In 
order to incorporate a buckle switch in the Evora, Lotus states that a 
new air bag ECU would need to be sourced, calibrated, and validated; a 
new seat belt system would need to be sourced; and a complete series of 
development tests would need to be conducted.
    Lotus expects that this development would cost over $4 million. 
Lotus states that it does not have sufficient financial resources to 
complete this development. Lotus's financial statements show that from 
the period between April 2007 and March 2010, the company experienced 
losses of approximately $40 million. With an exemption, Lotus predicts 
that it would make a profit of approximately $24 million between April 
2010 and March 2014. Without an exemption, Lotus predicts its profit in 
the same period would be reduced to $13 million. However, Lotus 
contends that the financial impact would be greater because, without 
the exemption, Lotus would withdraw from the U.S. market and lose its 
market share, resulting in intangible losses such as loss of brand 
image, complication of reentry into the U.S. market in the future, and 
job losses.
    Lotus states that it has considered alternative means of 
compliance, but these alternatives have been found to be incapable of 
providing a solution. Lotus states that it could not use a seat belt 
buckle sensor from its current seat belt supplier because the switch is 
inadequate and there is not a suitable ECU. Lotus states that it 
considered moving the passenger seat rearward, but concluded it would 
have to reevaluate compliance with the 50th percentile male tests in 
both the belted and unbelted conditions which would result in similar 
costs to those described above. Lotus also states that it considered 
fixing the passenger seat in the mid-position, but concluded that 
occupant ingress/egress would be adversely affected and it would 
prevent a 95th percentile occupant from fitting in the passenger seat.
    Lotus states that, while an exemption is in effect, it will provide 
advice and warnings in its owners' manual identifying the risks 
associated with correct positioning of the seat belt and sitting too 
close to the air bag.

IV. Completeness and Comment Period

    Upon receiving a petition, NHTSA conducts an initial review of the 
petition with respect to whether the petition is complete and whether 
the petitioner appears to be eligible to apply for the requested 
exemption. The agency has tentatively concluded that the petition from 
Lotus is complete and that Lotus is eligible to apply for a temporary 
exemption. The agency has not made any judgment on the merits of the 
application, and is placing a non-confidential copy of the petition in 
the docket.
    The agency seeks comment from the public on the merits of Lotus's 
application for a temporary exemption from the higher speed 5th 
percentile adult female belted barrier crash test in S14.7 of FMVSS No. 
208. We are providing a 30-day comment period. After considering public 
comments and other available information, we will publish a notice of 
final action on the application in the Federal Register.

    Issued on: June 26, 2012.
Nathaniel Beuse,
Director, Office of Crash Avoidance Standards.
[FR Doc. 2012-16271 Filed 7-2-12; 8:45 am]
BILLING CODE 4910-59-P


