[Federal Register Volume 68, Number 86 (Monday, May 5, 2003)]
[Rules and Regulations]
[Pages 23614-23617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10945]

[[Page 23614]]



National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 03-15067]
RIN 2127-AI71

Federal Motor Vehicle Safety Standards; Occupant Crash Protection

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

ACTION: Final rule.


SUMMARY: In May 2000, we published a rule to require advanced air bags 
in light vehicles. The requirements of that rule 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 
address two of the issues raised by petitioners. All other issues were 
denied. In January 2003, we issued a final rule that addressed the 
first of the remaining issues, namely the new phase-in requirements for 
vehicle manufacturers other than limited line manufacturers. This final 
rule addresses the issue of how to treat limited line manufacturers 
during the course of the first phase-in. We have decided to expand the 
definition of a limited line manufacturer to a manufacturer that 
produces no more than three vehicle lines. Additionally, NHTSA has 
decided to provide limited line manufacturers with an additional year 
to comply with the new advanced air bag requirements. Since the limited 
line manufacturer option is based on the premise that the manufacturer 
may need to use the option because it is unable to meet the phase-in 
requirement, no credit for early compliance will be allowed towards the 
100 percent production requirement for the third year (i.e., the final 
year for limited line manufacturers) of the phase-in.

DATES: Effective Date: The amendments made in this rule are effective 
July 7, 2003.
    Petitions: Petitions for reconsideration must be received by June 
19, 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: Ms. Rebecca MacPherson, Office of the Chief 
Counsel, NCC-112, telephone (202) 366-2992, facsimile (202) 366-3820.


Table of Contents

I. Background
II. Porsche's Comments
III. Agency Decision
IV. Rulemaking Analyses and Notices

I. Background

    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 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 requires vehicle manufacturers to focus on minimizing the risk 
of air bag-related injury, particularly for children and small adults, 
while preserving the current level of protection. The second phase-in 
requires vehicle manufacturers to improve the current level of 
protection provided by air bags by conducting the belted barrier tests 
for the 50th percentile adult male dummy at a higher test speed.
    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, 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.\1\

    \1\ 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 

    As initially adopted, the rule would have required that the 
majority of vehicle manufacturers meet the following phase-in 
requirements: 9/1/03 to 8/31/04--35 percent; 9/1/04 to 8/31/05--65 
percent; 9/1/05 to 9/1/06--100 percent, with manufacturers allowed to 
use credits for early compliance. Effective September 1, 2006, all 
vehicle manufacturers must comply with the phase-one requirements, 
regardless of whether they are subject to the phase-in; credits for 
early compliance are not permitted. As discussed in more detail below, 
the requirements for the first year of the phase-in has subsequently 
been changed to 20 percent. No changes have been made regarding the 
second and third years of the phase-in. Nor have any changes been made 
regarding the second phase-in, which commences September 1, 2007.
    In the May 2000 final rule, limited line manufacturers, i.e., those 
producing no more than two vehicle lines for sale in the United States, 
were offered the alternative of meeting the phase-in requirements or of 
opting out of the advanced air bag requirements for the first year of 
the phase-ins as long as 100 percent of the vehicles produced for the 
U.S. market were fully compliant in the second year of the phase-ins 
and thereafter. Final stage manufacturers of vehicles built in two or 
more stages, and manufacturers that produce no more than 5,000 vehicles 
per year globally were exempted from the phase-in requirements 

    \2\ The criteria for small volume manufacturers was changed in a 
final rule published December 18, 2001 (66 FR 65376, Docket No. 
NHTSA-01-11110). A manufacturer now qualifies for the exemption from 
the phase-ins if it manufactures no more than 5,000 vehicles for the 
U.S. market per year.

    On August 19, 2002, Porsche submitted a petition for rulemaking, 
requesting changes to the limited line manufacturer alternative 
compliance schedule. Porsche currently produces two carlines for the 
U.S. market, the Boxster and the Carrera 911. However, it plans to 
introduce a third carline, the Cayenne, for model year 2004. Thus, 
Porsche will not be able to take advantage of the current limited line 
manufacturer exemption from the first year of the phase-ins. According 
to Porsche, small limited-line manufacturers have difficulties finding 
technology suppliers interested in providing the manufacturers with the 
systems needed to comply with the advanced air bag requirements. 
Porsche noted it was in a particularly unique position because it does 
not have a larger parent company that is willing to assume its 
production as part of its fleet for the purpose of meeting the phase-in 
schedule. Porsche requested the agency consider adding an additional 
``carline'' definition specific to S14 of FMVSS No. 208 to provide 
manufacturers that sell two or fewer carlines in the U.S. the 
flexibility to comply at the 100 percent

[[Page 23615]]

level starting in the third year of the respective phase-ins.
    At the time NHTSA received Porsche's petition, the agency had 
largely completed drafting a document responding to petitions for 
rulemaking from the Alliance of Automobile Manufacturers, Toyota, and 
DaimlerChrysler requesting several changes in the advanced air bag 
final rule, including a change to the first phase-in schedule. That 
document was published in the Federal Register on September 24, 2002 
(67 FR 59800, Docket No. NHTSA 02-13393; Notice 1).
    In that document, 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 struck 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.
    In light of our proposal to adjust the phase-in schedule, we 
decided to address the recently submitted Porsche petition and stated 
that we were considering possible adjustments in the alternative phase-
in requirements available to limited line manufacturers. In that 
document, we stated that we believed the specific concerns cited by 
Porsche related more to its size than to the number of carlines it 
    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.\3\ On January 31, 2003, NHTSA published a final rule 
adopting the new phase-in schedule as proposed (68 FR 4961, Docket No. 
NHTSA 03-14270). The sole remaining issue related to the September 2002 
notice is Porsche's petition regarding limited line manufacturers.

    \3\ While some commenters objected to NHTSA's denial of other 
petitions, or certain requests within the petitions, no new 
petitions have been submitted and NHTSA's regulations do not require 
the agency to reconsider its denials of petitions. Accordingly, 
those issues were not further addressed in the January 2003 final 
rule and will not be addressed here.

II. Porsche's Comments

    Porsche was the only party to comment on the issue of possible 
adjustments in the alternative phase-in requirements available to 
limited line manufacturers raised by NHTSA in the September 2002 NPRM. 
That company suggested a revised approach for addressing the issues it 
had raised in its petition. Porsche opined that it could be difficult 
to devise a FMVSS No. 208-specific definition of ``carline'' that would 
be easily enforceable and not overly-broad, a concern raised by NHTSA 
in the September, 2002 NPRM. Porsche also noted that it believed its 
problems with suppliers of advanced air bag technologies was more the 
result of its relatively small size than the fact that it produced a 
small number of carlines. Accordingly, Porsche proposed a new phase-in 
option based solely on a manufacturer's status as a relatively small, 
largely independent company and its production volume.
    Porsche commented that its position among vehicle manufacturers is 
unique. According to Porsche, it is the only small independent car 
company selling more than a few hundred vehicles in the United States. 
Porsche's 2001 global production was approximately 56,000 units. Its 
next largest independent competitor is BMW, with annual sales of almost 
1 million units. Porsche claimed that all other small manufacturers 
could either avoid the phase-in altogether because they produced less 
than 5,000 vehicles annually per year or because a larger, parent 
corporation owned sufficient interest in them as to allow them to 
phase-in their vehicles under the parent corporation. Thus, Porsche 
maintained, it was the only small company that would be required to 
meet the phase-in requirements.
    Porsche urged NHTSA to adopt a new category of manufacturers who 
would be relieved of any responsibility to meet the new, advanced air 
bag requirements before September 1, 2006. The proposed category would 
apply to ``independent low volume manufacturers'' and would be based on 
worldwide production volume and manufacturer status. It recommended 
NHTSA limit the proposed category to manufacturers who produce no more 
than 100,000 vehicles per year and who are predominantly independent 
(i.e., has less than 10% of its equity controlled by another 
manufacturer, a company owned by another manufacturer, or a 
manufacturer holding company).

III. Agency Decision

    We have decided against the approach proffered by Porsche in its 
comments to the September 2002 NPRM. We believe such an approach 
effectively increases the size of a small volume manufacturer provided 
in FMVSS No. 208 by up to a factor of 20. Notwithstanding Porsche's 
relatively small size compared to other manufacturers, it is still 
substantially larger than those manufacturers for whom NHTSA determined 
compliance before the statutorily-mandated date would pose an 
unreasonable hardship. While we acknowledge that Porsche may have some 
difficulty engaging suppliers, we also note that the examples of 
supplier disinterest that were provided with the petition for 
rulemaking indicated that the disinterest was based, in part, on an 
unwillingness by Porsche to provide financial and design support.
    Nevertheless, we have decided to provide relief that we believe is 
sufficient to address the legitimate concerns of a manufacturer that 
produces only a few carlines. Our original intent in providing a 
limited line manufacturer category was to accommodate the needs of 
those manufacturers who, because of the limited types of vehicles they 
produce, would have little or no design flexibility if required to meet 
the phase-in schedule applicable to other manufacturers. Certification 
of a single carline could result in a de facto phase-in requirement 
that far exceeded the one set for larger, more diverse manufacturers. 
This disparity is particularly great given the recent reduction in the 
phase-in percentage for the first year of the phase-in. If one assumes 
a roughly equal sales distribution among the two carlines originally 
contemplated by FMVSS No. 208, a limited line manufacturer would have 
to certify approximately 50% of its vehicles during the first year of 
the phase-in, while other manufacturers would only have to certify 20%. 
Given the reduction in phase-in percentages for larger, more diverse 
manufacturers, we believe it is appropriate to expand both the 
definition of and the limitations on limited line manufacturers.
    First, we have decided to amend the definition of a limited line 
manufacturer for purposes of the first phase-in only, to a manufacturer 
that produces three or fewer carlines, as that term is defined in 49 
CFR 583.4, for sale or distribution in the United States. NHTSA's 
initial decision to allow only two carlines to qualify as a limited 
line manufacturer was based on a desire to address the

[[Page 23616]]

needs of manufacturers of only a few carlines. Accordingly, we do not 
believe expanding the allowable number of carlines by one is 
inconsistent with the agency's initial intent.
    Second, we have decided to exclude a limited line manufacturer from 
the first two years of the first phase-in, with full compliance 
required in the third year. Without this relief, a limited line 
manufacturer would have to achieve 100% compliance by the second year 
of the phase-in, a point at which other manufacturers need only certify 
65% of their fleet. NHTSA has determined that this constitutes too 
great a burden for limited line manufacturers. Accordingly, we have 
decided it is appropriate to provide relief for the first two years of 
the phase-in, after which a limited line manufacturer would be required 
to ensure that each of its carlines is fully compliant.
    Since the limited line manufacturer option is based on a premise 
that the manufacturer may need to use the option because it is unable 
to meet the newly relaxed phase-in requirements, no credits for early 
compliance will be allowed. NHTSA believes that such added relief is 
not justified, since a limited line manufacturer that was able to take 
advantage of early credits could probably comply with the relaxed 
phase-in requirements. As was the case previously, a limited line 
manufacturer may choose to meet the phase-in requirements applicable to 
other manufacturers and take advantage of early credits to meet the 
100% compliance requirements for the third year.
    NHTSA notes that the amended limited line manufacturer option is 
limited to the first advanced air bag phase-in. There is no reason to 
believe at this time that Porsche, or any other limited line 
manufacturer, will have trouble meeting the requirements of the second 
phase-in. We also note that two of Porsche's three carlines may be 
equipped with a manual air bag on-off switch under S4.5.4 of FMVSS No. 
208. Should Porsche install such a switch, a responsible adult would be 
able to suppress the passenger air bag whenever a small child was 
seated in the passenger seat.

IV. 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 not reviewed under E.O. 12866, ``Regulatory 
Planning and Review.'' This action is not ``significant'' under the 
Department of Transportation's regulatory policies and procedures.
    This rule amends the limited line manufacturer option for the first 
advanced air bag phase-in. 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 

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 
and second 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 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 

[[Page 23617]]

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 


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

    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(b) to read as follows:

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

S14.1   Vehicles manufactured on or after September 1, 2003, and before 
September 1, 2006.

    (b) Manufacturers that sell three or fewer carlines, as that term 
is defined at 49 CFR 585.4, in the United States may, at the option of 
the manufacturer, meet the requirements of this paragraph instead of 
paragraph (a) of this section. Each vehicle manufactured on or after 
September 1, 2005 shall meet the requirements specified in S14.5.1(a), 
S14.5.2, S15.1, S15.2, S17, S19, S21, S23, and S25 (in addition to the 
other requirements specified in this standard).
* * * * *

    Issued: April 25, 2003.
Jeffrey W. Runge,
[FR Doc. 03-10945 Filed 5-2-03; 8:45 am]