[Federal Register Volume 68, Number 21 (Friday, January 31, 2003)]
[Rules and Regulations]
[Pages 4961-4965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2358]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 02-14270]
RIN 2127-AI71


Federal Motor Vehicle Safety Standards; Occupant Crash Protection

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

ACTION: Final rule.

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SUMMARY: In May 2000, we published a rule to require advanced air bags 
in light vehicles. The requirements of that rule

[[Page 4962]]

are being phased in during two stages, the first of which extends from 
September 1, 2003, to August 31, 2006. In September 2002, in response 
to petitions for rulemaking, we published a notice of proposed 
rulemaking (NPRM) to reduce the percentage of vehicles that must comply 
with the advanced air bag requirements during the first year of the 
first stage, i.e., from September 1, 2003, through August 31, 2004, 
from 35 percent to 20 percent. This final rule adopts that proposed 
change, which reflects the technical challenges being faced by the 
vehicle manufacturers in meeting the new requirements and the fact that 
two of the automotive suppliers dropped plans to offer devices that 
suppress the passenger air bag when a child is present. In the NPRM, we 
also requested comments on possible adjustments in the alternative 
phase-in requirement available to limited line manufacturers. We plan 
to address that issue in a separate document, in the near future.

DATES: Effective Date: The amendments made in this rule are effective 
March 3, 2003.
    Petitions: Petitions for reconsideration must be received by March 
17, 2003.

ADDRESSES: Petitions for reconsideration should refer to the docket and 
notice number of this document and be submitted to: Administrator, 
National Highway Traffic Safety Administration, 400 Seventh Street, 
SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: The following persons at the National 
Highway Traffic Safety Administration, 400 Seventh Street, SW., 
Washington, DC, 20590:

For technical issues: Mr. Louis Molino, Office of Crashworthiness 
Standards, NVS-112, telephone (202) 366-2264, facsimile (202) 493-2739.
For legal issues: Mr. Edward Glancy, Office of the Chief Counsel, NCC-
112, telephone (202) 366-2992, facsimile (202) 366-3820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
    A. The Advanced Air Bag Final Rule
    B. September 2002 Proposal to Adjust Phase-in
II. Public Comments
III. Agency Decision
IV. Rulemaking Analyses and Notices

I. Background

A. The Advanced Air Bag Final Rule

    On May 12, 2000, we published in the Federal Register (65 FR 30680) 
a rule to require advanced air bags. (Docket No. NHTSA 00-7013; Notice 
1.) The rule amended Standard No. 208, Occupant Crash Protection, to 
require that future air bags be designed so that, compared to current 
air bags, they create less risk of serious air bag-induced injuries, 
particularly for small women and young children, and provide improved 
frontal crash protection for all occupants, by means that include 
advanced air bag technology.
    The rule will be phased in during two stages. The first stage 
phase-in will improve protection by requiring vehicles to be certified 
as passing the unbelted test requirements \1\ for both the 5th 
percentile adult female and 50th percentile adult male dummies in a 32-
40 km/h (20-25 mph) rigid barrier crash, and belted test requirements 
\2\ for the same two dummies in a rigid barrier crash with a maximum 
test speed of 48 km/h (30 mph). In addition, the first stage will 
minimize the risk of injury from air bags by requiring vehicles to 
include technologies that will minimize the risk of air bag-induced 
injuries for young children and small adults.
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    \1\ ``Unbelted test requirements'' are requirements that specify 
the use of unbelted dummies in testing vehicles.
    \2\ ``Belted test requirements'' are requirements that specify 
the use of belted dummies in testing vehicles.
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    During the first stage phase-in, from September 1, 2003, to August 
31, 2006, increasing percentages of motor vehicles will be required to 
meet requirements for minimizing air bag risks,\3\ primarily by either 
automatically turning off the air bag when young children are present 
or deploying the air bag more benignly so that it is much less likely 
to cause serious or fatal injury to out-of-position occupants.\4\ If 
they so wish, manufacturers may choose to use a combination of those 
approaches.
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    \3\ The complete phase-in schedule was: 9/1/03 to 8/31/04--35 
percent; 9/1/04 to 8/31/05--65 percent; 9/1/05 to 8/31/06--100 
percent (manufacturers may use credits for early compliance); 9/1/
06--all vehicles must comply (no use of credits).
    \4\ The rule also establishes very general performance 
requirements for dynamic automatic suppression systems (DASS) and a 
special expedited petitioning and rulemaking process for considering 
procedures for testing advanced air bag systems incorporating a 
DASS.
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    Manufacturers that decide to design their passenger air bags to 
turn off will use weight sensors and/or other means of detecting the 
presence of young children. To test the ability of those means to 
detect the presence of children, the rule specifies that child dummies 
be placed in child seats that are, in turn, placed on the passenger 
seat in both proper and (to simulate misuse) improper ways. It also 
specifies tests that are conducted with unrestrained child dummies 
sitting, kneeling, standing, or lying on the passenger seat.
    The ability of air bags to deploy in a low-risk manner will be 
tested using child dummies on the passenger side and the small adult 
female dummy on the driver side. For manufacturers that decide to 
design their passenger air bags to deploy in a low risk manner, the 
rule specifies that unbelted child dummies be placed against the 
instrument panel in two different positions. The air bag is then 
deployed with the dummies in each position. This placement was 
specified because pre-crash braking can cause unrestrained children to 
move forward into or near the instrument panel before the air bag 
deploys. The ability of driver air bags to deploy in a low risk manner 
will be tested by placing the 5th percentile adult female dummy against 
the steering wheel in two different positions and then deploying the 
air bag with the dummy in each position.
    The second stage phase-in will require vehicles to be certified as 
passing the belted test requirements for the 50th percentile adult male 
dummy at a test speed up to 56 km/h (35 mph). This requirement will 
provide improved protection for belted occupants.

B. September 2002 Proposal To Adjust Phase-in

    On September 24, 2002, we published in the Federal Register (67 FR 
59800) a document responding to petitions for rulemaking from the 
Alliance of Automobile Manufacturers, Toyota, and DaimlerChrysler 
requesting changes in the advanced air bag final rule. (Docket No. 
NHTSA 02-13393; Notice 1.)
    In response to the petitions, we proposed to reduce the percentage 
of vehicles that must comply with the advanced air bag requirements 
during the first year of the phase-in, i.e., from September 1, 2003, 
through August 31, 2004, from 35 percent to 20 percent. We stated that 
the proposed change reflected the technical challenges being faced by 
the vehicle manufacturers in meeting the new requirements and the fact 
that two of the automotive suppliers had dropped plans to offer devices 
that suppress the passenger air bag when a child is present. We also 
stated that we had tentatively concluded that a reduction in the first 
year's phase-in requirement from 35 percent to 20 percent strikes a 
reasonable balance between ensuring that the industry provides advanced 
air bags as quickly as is reasonably possible, while avoiding a 
situation in which the industry must put new technologies into vehicles 
before they have been fully tested.

[[Page 4963]]

    We otherwise denied the petitions or, as to certain requests, 
dismissed them because the agency had subsequently considered or was 
considering the same requests in the context of another rulemaking 
proceeding.
    In addition, in response to a petition for rulemaking from Porsche, 
we stated that we were considering possible adjustments in the 
alternative phase-in requirements available to limited line 
manufacturers.

II. Public Comments

    We received a total of nine comments, seven from automobile 
manufacturers and two from automotive suppliers. The automobile 
manufacturer commenters were the Alliance of Automobile Manufacturers 
(Alliance) and six individual manufacturers--Subaru, Nissan, Porsche, 
General Motors (GM), DaimlerChrysler (DC), and BMW. The automotive 
supplier commenters were Delphi and Elesys.
    The commenters were generally supportive of the agency's proposal 
to reduce the percentage of vehicles that must comply with the advanced 
air bag requirements during the first year of the first stage phase-in. 
No commenter opposed reducing the percentage from 35 percent to 20 
percent, although two, the Alliance and DC, argued that a greater 
reduction should be provided.
    Nissan stated that it supports the proposal. According to that 
company, the developmental period for the occupant sensing technology 
needed to meet the requirements has been longer than expected due to 
the developmental capacity of the suppliers of this technology.
    BMW cited the significant technical challenges it has faced and 
will continue to face and stated that it believes that reducing the 
first year percentage to 20 percent will provide the necessary 
flexibility such that sufficiently robust advanced air bag systems will 
be developed for new vehicles, as well as redesigned for current 
production vehicles and implemented during the phase-in period.
    Subaru stated that a reduction in the first year percentage to 20 
percent or less would permit it to focus on applying its manpower 
during the first year on implementing suppression functionality in a 
single specific model. That company stated that it would then be in a 
position to effectively develop systems with some certainty for 
vehicles in the second and third years.
    GM stated that it agrees with the agency's proposed reduction to 20 
percent of the percentage of vehicles that must meet the first-year 
phase-in requirements for advanced air bags. That company stated that 
although it would be able to satisfy the original first-year 
requirement of 35 percent, it agrees with the agency that the proposal 
``strikes a reasonable balance between ensuring the industry provides 
advanced air bags as quickly as is reasonably possible, while avoiding 
a situation in which the industry must put new technologies into 
vehicles before they have been fully tested.''
    The Alliance stated that it is unaware of any new data or 
information that would lead it to change its conclusion, presented in 
its petition for rulemaking, that 10 percent is the correct phase-in 
percentage requirement to be applied to the first year. That 
organization argued that not every manufacturer could accede to a 
phase-in percentage greater than 10 percent. The Alliance also stated 
that, while it did not request modification of the second year 
percentage in its petition, the continued difficulty in developing 
effective and reliable air bag systems, including occupant 
classification sensor technologies, supplier constraints, as well as 
the significant challenge of implementing these new technologies might 
require modification of the second year phase-in percentage as well.
    DC stated that it believes the agency has underestimated the 
complexity, difficulty, and technical challenges related to the phase-
in of the advanced air bag requirements. It stated that in its quest to 
develop low risk air bag systems, which it believes minimizes real 
world risk, and to reduce the uncertainty associated with occupant 
classification systems in the real world, it continues to uncover 
additional unforeseen technical development and vehicle integration 
challenges. DC asked that the agency adopt a percentage of 10 percent 
for the first year phase-in and reconsider its decision not to reduce 
the second year percentage from 65 percent to 40 percent, as DC had 
requested in its petition for rulemaking.
    Delphi stated that it has, at this time, both technical capability 
and production capacity to support its customers in meeting either the 
original or the proposed advanced air bag regulatory volume 
requirements. That company stated that its product enables compliance 
with Standard No. 208's suppression requirements and meets real world 
reliability requirements in calibrated production seats.
    Elesys stated that its product meets or exceeds all applicable 
Standard No. 208 requirements, as well as the significant real-world 
durability, configuration, production and installation challenges posed 
by its automotive customers. That company stated that it understands 
why the agency proposed to reduce the first year percentage, but that 
any further reduction in the required percentages for later years is 
unnecessary for two reasons: (1) Viable, real-world-tested solutions 
already exist in the marketplace, and (2) such a delay would unduly 
penalize companies, including Elesys, who have invested heavily in 
research and development to meet the implementation schedule as it is 
currently configured.
    Only one commenter, Porsche, commented on the issue of possible 
adjustments in the alternative phase-in requirements available to 
limited line manufacturers. That company suggested a revised approach 
for addressing the issues it had raised in its petition.

III. Agency Decision

    After carefully considering the comments, we have decided, for the 
reasons discussed in the NPRM, to adopt as final our proposal to reduce 
the percentage of vehicles that must comply with the advanced air bag 
requirements during the first year of the phase-in, i.e., from 
September 1, 2003, through August 31, 2004, from 35 percent to 20 
percent. We are making this change in light of the technical challenges 
being faced by the vehicle manufacturers in meeting the new 
requirements and the fact that two of the automotive suppliers had 
dropped plans to offer devices that suppress the passenger air bag when 
a child is present. We have not yet reached a decision with respect to 
possible adjustments in the alternative phase-in requirements available 
to limited line manufacturers, and will address that issue in a 
separate document, in the near future.
    As noted above, no commenter opposed reducing the percentage from 
35 percent to 20 percent, although two, the Alliance and DC, argued 
that a greater reduction should be provided. These commenters 
recommended that the agency reduce the first year percentage to 10 
percent, and DC also recommended that the agency reduce the second year 
percentage from 65 percent to 40 percent.
    While we have considered the recommendations of the Alliance and 
DC, they have not provided information or analysis demonstrating that a 
further reduction is necessary, either for the first or second year. We 
do not disagree with their contention that the advanced air bag final 
rule poses significant technical challenges, but believe a reduction in 
the first year percentage from 35 percent to 20 percent adequately 
addresses that concern. We have had periodic discussions with

[[Page 4964]]

vehicle manufacturers over the past two years to assess our original 
phase-in requirements, as well as the vehicle manufacturers' 
projections for meeting the phase-in schedule. We have also monitored 
the advanced air bag systems that they have been developing, as well as 
met with individual restraint system suppliers. While DC has commented 
that it is disappointed that the agency has denied its recommendation 
of a 10 percent first year phase-in, GM has indicated an ability to 
meet the original first-year requirement of 35 percent. As previously 
noted, four of the five larger manufacturers that commented on the 
NPRM, i.e., GM, Subaru, Nissan and BMW, specifically indicated that the 
reduction of the first year phase-in to 20 percent would give them the 
necessary flexibility and relief to meet the new phase-in schedule. 
Thus, the remaining 15 percent of their respective fleets that no 
longer need to meet the first year phase-in requirements could be 
deferred to year two, if more development time is needed, or could be 
certified in model year 2003 to earn advanced credits. Although the 
Alliance represents many manufacturers, the only member that provided 
specific comments supporting the Alliance position that the reduction 
to 20 percent is not sufficient was DC.
    DC noted that the agency's original driver automatic protection 
rule included a phase-in of 10-25-40-100 percent, and argued that the 
advanced air bag final rule raises issues of even greater complexity. 
There is no reason, however, why the specific production year 
percentages for phase-ins of different rules should be the same. We 
also note that, as part of the May 2002 final rule for advanced air 
bags, we eliminated altogether the first year of the phase-in schedule 
we had proposed, which would have required 25 percent of each 
manufacturer's light vehicles manufactured during the production year 
beginning September 1, 2002, to comply with the advanced air bag 
requirements.
    Finally, for model year 2003, which began approximately one year 
before the required phase-in begins, significant numbers of production 
vehicles are being certified to comply with the advanced air bag 
requirements. GM has announced introduction of a passenger sensing 
system that is being installed in nearly 1.6 million vehicles. This 
system is standard on most of GM's model year 2003 full-size pickups 
and sport-utility vehicles, including the Chevrolet Silverado and GMC 
Sierra pickups (except commercial models or chassis-cabs) and Chevrolet 
Suburban, Tahoe and Avalanche; GMC Yukon XL, Yukon and Denali; and 
Cadillac Escalade and Escalade EXT. GM has certified that the system 
meets the advanced air bag requirements. NHTSA has performed some 
compliance tests on three of the GM C/K trucks that were certified to 
the advanced air bag requirements. These included the infant, three-
year-old and six-year-old child dummy suppression (presence) tests, the 
5th percentile adult female driver low risk deployment tests, the 
belted 5th percentile adult female offset deformable barrier crash 
test, the frontal unbelted 5th percentile adult female and 50th 
percentile adult male crash tests. The three units tested passed the 
applicable performance requirements.
    Other manufacturers are certifying, for purposes of the risk 
minimization requirements for children, on the basis of a combination 
of air bag suppression (for the infant and three-year-old child dummy 
tests) and low risk deployment (for the six-year-old child dummy tests) 
in model year 2003. This demonstrates that vehicle manufacturers are 
not constrained to a particular advanced air bag technology, and that 
both suppression and low risk deployment certification methods are 
viable options for meeting the advanced air bag requirements ahead of 
the required phase-in schedule. We are also aware that vehicle 
manufacturers are working with multiple technology suppliers and are 
not reliant upon a single entity for production.
    As with the phase-in of any new requirement involving the use of 
new technology, we will, of course, continue to monitor the ability of 
the automobile manufacturers to meet the specified requirements.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rule under Executive Order 
12866 and the Department of Transportation's regulatory policies and 
procedures. This rule was reviewed under E.O. 12866, ``Regulatory 
Planning and Review.'' This action is ``significant'' under the 
Department of Transportation's regulatory policies and procedures.
    This rule reduces the percentage of vehicles that must comply with 
the advanced air bag requirements during the first year of the phase-
in, i.e., from September 1, 2003, through August 31, 2004, from 35 
percent to 20 percent. However, the rule does not change the 
requirements for vehicles equipped with advanced air bags. Readers who 
are interested in the costs and benefits of advanced air bags are 
referred to the agency's Final Economic Assessment (FEA) for the May 
2000 final rule. The estimated benefits compared to pre-model year 1998 
(pre-depowered air bags) in that rule for the suppression technologies 
were estimated to be 93 fatalities and 151 AIS 3-5 injuries. These 
benefits can be considered to accrue over the 20-25 year lifetime of 
one model year's fleet. As noted in the NPRM, the reduction in the 
phase-in schedule for the model year 2004 fleet from 35 percent to 20 
percent could result in the potential loss in benefits over the 
lifetime of the model year 2004 fleet of 14 lives and 23 AIS 3-5 
injuries.

B. Regulatory Flexibility Act

    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I certify that the 
amendment will not have a significant economic impact on a substantial 
number of small entities. A Regulatory Flexibility Analysis was 
prepared for the May 2000 final rule as part of the FEA. This action 
will not have a significant economic impact on small businesses because 
the only change it makes to the May 2000 final rule is to reduce the 
percentage of vehicles that must comply with that rule during the first 
year of the phase-in. Small organizations and small governmental units 
will not be significantly affected since the potential cost impacts 
associated with this amendment should only slightly affect the price of 
new motor vehicles.

C. National Environmental Policy Act

    NHTSA has analyzed this amendment for the purposes of the National 
Environmental Policy Act and determined that it will not have any 
significant impact on the quality of the human environment.

D. Executive Order 13132 (Federalism)

    The agency has analyzed this rulemaking action in accordance with 
the principles and criteria contained in Executive Order 13132 and has 
determined that it does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The rule will have no 
substantial effects on the States, or on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various local officials.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final

[[Page 4965]]

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). While the May 2000 final rule is 
likely to result in over $100 million of annual expenditures by the 
private sector, the only effect of today's amendment will be to reduce 
the percentage of vehicles that must comply with that rule during the 
first year of the phase-in. Accordingly, this rule will not mandate any 
expenditure by State, local or tribal governments, or by the private 
sector.

F. Executive Order 12778 (Civil Justice Reform)

    This rule does not have any retroactive effect. Under section 49 
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in 
effect, a state may not adopt or maintain a safety standard applicable 
to the same aspect of performance which is not identical to the Federal 
standard, except to the extent that the state requirement imposes a 
higher level of performance and applies only to vehicles procured for 
the State's use. Section 49 U.S.C. 30161 sets forth a procedure for 
judicial review of final rules establishing, amending or revoking 
Federal motor vehicle safety standards. That section does not require 
submission of a petition for reconsideration or other administrative 
proceedings before parties may file suit in court.

G. 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. This document does 
not establish any new information collection requirements.

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

List of Subjects in 49 CFR part 571

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


    In consideration of the foregoing, NHTSA amends 49 CFR chapter V as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

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

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

    2. Section 571.208 is amended by revising S14.1.1.1 to read as 
follows:


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

* * * * *
    S14.1.1.1 Vehicles manufactured on or after September 1, 2003, and 
before September 1, 2004. Subject to S14.1.2(a), for vehicles 
manufactured by a manufacturer on or after September 1, 2003, and 
before September 1, 2004, the amount of vehicles complying with 
S14.5.1(a), S14.5.2, S15.1, S15.2, S17, S19, S21, S23, and S25, shall 
be not less than 20 percent of:
    (a) If the manufacturer has manufactured vehicles for sale in the 
United States during both of the two production years prior to 
September 1, 2003, the manufacturer's average annual production of 
vehicles manufactured on or after September 1, 2001, and before 
September 1, 2004, or
    (b) The manufacturer's production on or after September 1, 2003, 
and before September 1, 2004.
* * * * *

    Issued: January 28, 2003.
Jeffrey W. Runge,
Administrator.
[FR Doc. 03-2358 Filed 1-28-03; 5:03 pm]
BILLING CODE 4910-59-P