[Federal Register Volume 68, Number 112 (Wednesday, June 11, 2003)]
[Rules and Regulations]
[Pages 34838-34842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-14694]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-03-15343]
RIN 2127-AJ09


Federal Motor Vehicle Safety Standards; Occupant Crash Protection

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

ACTION: Correcting amendment.

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SUMMARY: This rule corrects errors in Figures 6a, 6b, 7, 8, and 9 of 
Federal Motor Vehicle Safety Standard No. 208, Occupant crash 
protection (FMVSS No. 208). These figures were added to the standard in 
two separate and unrelated rulemakings. They provide instructions 
regarding format that are inconsistent with the requirements in the 
regulatory text of the standard. This document resolves the problem by 
removing the inconsistent instructions from the figures.

DATES: This final rule is effective June 11, 2003.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
Lou Molino, Office of Crashworthiness Standards, Light Duty Vehicle 
Division, NVS-112. Telephone: (202) 366-2264. Fax: (202) 493-2739.
    For legal issues, you may contact Rebecca MacPherson, Office of 
Chief Counsel, NCC-20. Telephone: (202) 366-2992. Fax: (202) 366-3820.
    You may send mail to these officials at the National Highway 
Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION: On March 19, 2001, NHTSA provided Mr. Todd 
Mitchell of ITW Meyercord with a letter of legal interpretation stating 
that three of four warning labels specified in FMVSS No. 208 were 
required to be outlined with black horizontal and vertical lines. This 
interpretation was based on the figures in the standard for those 
labels. The figures depict labels with an outline and contain an 
instruction specifying the color of the outline (``Label Outline, 
Vertical and Horizontal Line Black''). Based on the depiction of an 
outline and on the specification of a color for the outline, the agency 
concluded that an outline is required. NHTSA determined that the fourth 
label is not required to have an outline because the instructions in 
the figure for that label do not include a color specification 
explicitly referring to an ``outline.'' \1\
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    \1\ NHTSA determined that the labels depicted in Figures 6a, 6b, 
and 8 required an outline. The label depicted in Figure 6c did not. 
Two other labels, depicted in the regulation in Figures 7 and 9, 
were not addressed. However, the response would have been the same 
as the agency response regarding Figures 6a, 6b, and 8.
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    On May 2, 2001, the Alliance of Automobile Manufacturers submitted 
a letter to NHTSA asking the agency to reconsider the interpretation. 
It argued that the regulatory text of the standard neither requires 
conformity with the format of the label shown in the figures

[[Page 34839]]

nor requires that the label have an outline.
    We agree with the Alliance that the standard does not require an 
outline. Instead of simply reversing the legal interpretation, we 
believe it is more appropriate to resolve the matter by issuing a 
correcting amendment to the standard.
    On August 6, 1996, NHTSA published in the Federal Register a notice 
of proposed rulemaking (NPRM) (61 FR 40784, Docket No. NHTSA-97-2705) 
proposing the adoption of new, attention-getting air bag warning 
labels. The regulatory text in the NPRM simply stated that the labels 
``shall conform in size, content, color, and format'' to the labels 
shown in the figures. No other requirements regarding label size, 
content, color or format were included in the regulatory text. Figures 
6a through 8 depicted the messages and, if any, pictogram for each 
label. The figures also contained instructions specifying color and 
size of each label.\2\
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    \2\ NHTSA ultimately decided against adopting one of the 
proposed labels. In the final rule, the labels were depicted in 
Figures 6a, 6b, 6c, and 7.
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    In their comments on the NPRM, vehicle manufacturers requested that 
only the content of the labels be required to conform to the figures.
    In the final rule (61 FR 60206, NHTSA Docket No. NHTSA-97-2716, 
November 27, 1996), NHTSA agreed there was no need to specify either 
the arrangement of the information on the labels or the shape of the 
labels, both of which it characterized as formatting. It also 
determined that it did not need to specify the size of the label or 
typeface, although it did specify minimum areas for the message text 
and pictogram.
    Accordingly, the agency replaced the proposed requirement in the 
regulatory text that labels ``shall conform in size, content, color, 
and format'' with the figures with a narrower requirement that labels 
``shall conform in content'' with the figures. At the same time, it 
expanded the regulatory text by adding requirements that restated most, 
but not all, of the color instructions in the figures. The agency also 
deleted the instructions about minimum size of the labels.
    There are two instructions in Figures 6a and 6b and one instruction 
in Figure 7 that are not restated in any requirements in the regulatory 
text. One is a format/color instruction about a black outline. The 
other is a color instruction about using red for bullets in the message 
area. Figure 7 contains only the format/color instruction about the 
black outline.
    The presence of the instructions creates an ambiguity as to whether 
the black outline instruction and the red bullet instruction are 
required components of the standard. The labels proposed in the NPRM 
and those adopted in the final rule are different. Accordingly, it is 
not possible to argue that the instruction in the figures that the 
labels be outlined with horizontal and vertical black lines was an 
inadvertent remnant of the proposed labels. However, there is nothing 
in the preamble to the final rule to suggest that the agency intended 
to require these format/color instructions. Rather, as the new labels 
went through various iterations before the agency decided on a final 
version, the reference was inadvertently left in the figures, even 
though the agency ultimately decided not to specify these format and 
color instructions in the regulatory text.
    We believe that these instructions in the figures are more akin to 
format than to content and were not specifically included in the 
regulatory text because the agency did not wish to require them. This 
position is bolstered by the language of the regulatory text in 
S4.5.1(b)(1) which states that the labels shall conform in content with 
the referenced figures and meet the requirements listed in 
S4.5.1(b)(1)(i) through S4.5.1(b)(1)(iv) and similar language in 
S4.5.1(b)(2) and in S4.5.1(e)(1) and S4.5.1(e)(2). These requirements 
include the limitations on color provided in the figure instructions, 
but do not include the instruction regarding an outline or bullets.
    Accordingly, we are amending Figures 6a, 6b and 7 of FMVSS No. 208 
to remove the reference to a black outline. We are also amending 
Figures 6a and 6b to delete the reference to red bullets. We are 
likewise amending Figures 8 and 9. Figure 8 was based, in large part, 
on Figures 6a and 6b. Figure 9 was based on Figure 7. When the advance 
air bag final rule incorporating Figures 8 and 9 was published (65 FR 
30680, Docket No. NHTSA-00-7013, May 12, 2000), the agency had already 
indicated in the earlier rollover label rulemaking that it did not 
believe the outline in Figures 6a, 6b and 7 were required. The 
instruction should not have been included in Figures 8 and 9, since we 
made no findings in that rulemaking that our previous position was 
incorrect.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles, Rubber and rubber 
products, Tires.


0
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
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.


0
2. Section 571.208 is amended by revising Figures 6a, 6b, 7, 8, and 9 
to read as follows:
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    Issued on: June 5, 2003.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 03-14694 Filed 6-10-03; 8:45 am]
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