[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Proposed Rules]
[Pages 20445-20448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10098]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2009-0064]


Federal Motor Vehicle Safety Standards; Occupant Crash Protection

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

[[Page 20446]]


ACTION: Denial of petition for rulemaking.

-----------------------------------------------------------------------

SUMMARY: This document denies a petition for rulemaking submitted by 
the Alliance of Automobile Manufacturers (the Alliance) requesting that 
the agency amend the provisions of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 208, ``Occupant crash protection,'' that apply to 
the selection of child restraint systems for testing advanced air bag 
systems. Among other things, the Alliance requested that the agency 
commit to amending the list of child restraints in Appendix A of FMVSS 
No. 208 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. We are denying these 
requests because they are not conducive to maintaining the appendix, do 
not ensure child restraints are representative of the current fleet for 
testing with advanced air bag systems, and are unnecessarily 
restrictive.

FOR FURTHER INFORMATION CONTACT: Carla Rush, Office of Crashworthiness 
Standards (telephone 202-366-4583, fax 202-366-2739). For legal issues, 
contact Deirdre Fujita, 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: 

I. Background on Appendix A Lead Time

    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 (65 FR 30680; Docket No. NHTSA-00-7013). 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).
    On December 18, 2001, NHTSA published a final rule that responded 
to petitions for reconsideration of the Advanced Air Bag Rule (66 FR 
65376; Docket No. NHTSA 01-11110). Among other matters, to provide 
sufficient lead time for vehicle compliance, NHTSA stated in that 
document:

    [W]e will specify in the text of any updated appendix that its 
effective date shall be at least one year from the date of 
publication. All vehicles certified on or after that effective date 
will need to comply with the standard using the restraints on the 
updated list. We believe this one-year leadtime will provide 
manufacturers with sufficient time to ensure that their vehicles 
comply * * *.

    NHTSA received petitions for reconsideration of amendments made in 
that December 18, 2001 final rule, including those from the Alliance 
and from several vehicle manufacturers concerning Appendix A. Among 
other matters, Mitsubishi requested a two-year phase-in for changes to 
Appendix A.
    NHTSA responded on November 19, 2003 (final rule responding in part 
to petitions for reconsideration, 68 FR 65179; Docket No. NHTSA-03-
16476). The agency stated that it has decided to perform an annual 
review of Appendix A ``with the objective of making appropriate 
updates'' and discussed factors that the agency will consider in 
deciding whether Appendix A should be updated (68 FR at 65188.) These 
factors included such things as whether a particular restraint has been 
a high sales volume model, whether its mass and dimensions are 
representative of many restraints on the market, whether its mass and 
dimensions represent outliers,\1\ and whether a variety of restraint 
manufacturers are represented in the appendix. We explained that, by 
conducting these reviews we ensure that the spectrum of CRSs in the 
appendix is representative of the CRS population at that time. It would 
also enable NHTSA to determine the availability of the CRSs and 
determine any substantial change in design. NHTSA also stated: 
``Although NHTSA will review the appendix every year, we may not amend 
it annually.'' Id.\2\
---------------------------------------------------------------------------

    \1\ An outlier would be an exceptionally large or small and/or 
heavy or light CRS that is significantly different than most seats 
in its class.
    \2\ NHTSA also amended Appendix A by adding two CRSs that are 
equipped with components that attach to a vehicle's LATCH system 
(``Lower Anchors and Tethers for Children''). LATCH is a term 
developed by industry to refer to the standardized user-ready child 
restraint anchorage system that vehicle manufacturers must install 
in vehicles under FMVSS No. 225, Child Restraint Anchorage Systems 
(49 CFR 571.225). FMVSS No. 225 (paragraph S5(d)) does not permit 
vehicle manufacturers to install LATCH systems in front designated 
seating positions unless the vehicle has an air bag on-off switch. 
Therefore, only a few vehicles will be tested with LATCH CRSs.
    A few other final rules amending Appendix A are not discussed in 
this section, some of which pertained to extending the lead time for 
testing vehicles with LATCH-equipped CRSs. For instance, on 
September 25, 2007 (72 FR 54402), NHTSA published a final rule 
establishing a test procedure for LATCH-equipped CRSs. That final 
rule set a compliance date of September 1, 2008, for testing 
vehicles using the procedure.
---------------------------------------------------------------------------

    The November 19, 2003 final rule also slightly changed the agency's 
earlier position on lead time, which had been that we would make any 
change to the appendix effective after one year. The November 2003 
final rule stated that, in recognition that manufacturers need to know 
what CRSs will be included as they design their new models, any change 
to Appendix A would become effective the next model year introduced one 
year after publication of the final rule modifying the appendix. The 
agency expressed concern that ``a two-year lead time could result in a 
greater percentage of the CRSs in Appendix A being removed from 
production before the amended appendix takes effect,'' and acknowledged 
that ``the one-year lead time is consistent with the agency's intent 
that occupant protection detection systems be robust and able to detect 
any CRS, including those that are relatively new to the market.'' Id. 
Subsequently, the agency denied Mitsubishi's petition requesting a two-
year lead time (February 9, 2005; 70 FR 6777; Docket No. NHTSA-04-
18905).
    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 (73 FR 66786; Docket No. NHTSA-08-0168). 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 will be subject to 
testing by NHTSA using Appendix A-1, and all vehicles tested by NHTSA 
that are manufactured on or after September 1,

[[Page 20447]]

2010 will be tested using Appendix A-1.
    The agency believed 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. Importantly too, the phase-in accounted for the agency's 
determination that there was not a significant shift in the CRS 
characteristics pertinent to air bag occupant sensing performance that 
compelled an expedited compliance date because of real-world safety 
benefits that could be gained.\3\
---------------------------------------------------------------------------

    \3\ There are pending petitions for reconsideration of this 
final rule. The petitions primarily ask for more lead time to test 
and certify vehicles to the amended appendix.
---------------------------------------------------------------------------

II. Petition for Rulemaking

    On April 27, 2007, the Alliance of Automobile Manufacturers 
(Alliance),\4\ submitted a petition for rulemaking requesting that the 
agency ``amend the provisions of FMVSS No. 208 that apply to the 
selection of specific CRSs for testing under the provisions of the 
standard that are intended to protect children from air bag-induced 
injuries--S19, S21, S23, and S24--and to amend Appendix A to the 
standard.'' The petition first suggested that the agency ``commit 
itself to amending Appendix A every three years (rather than 
annually).'' The Alliance stated its belief that three years is a 
reasonable compromise between the goal of assuring ``that the listed 
CRSs are representative of the CRSs on the market'' and the 
``certification burdens faced by manufacturers'' when the appendix is 
updated. It stated that even though the appendix (at the time of the 
petition) had not been updated for several years, ``the Alliance is not 
aware of any incidents in which a child in a CRS in the front seat of a 
vehicle equipped with advanced air bags received a serious injury due 
to the deployment of an air bag.'' It also stated that this time frame 
could have its exceptions if an unanticipated safety need arose, e.g., 
the introduction of ``an entirely new type of CRS that captures a 
significant portion of the market.''
---------------------------------------------------------------------------

    \4\ The Alliance members at the time of this petition include: 
BMW Group, DiamlerChrysler, Ford Motor Company, General Motors, 
Mazda, Mitsubishi Motors, Porsche, Toyota, and Volkswagen.
---------------------------------------------------------------------------

    Second, the Alliance requested that the agency allow manufacturers 
the option of certifying vehicles to any edition of the appendix for 
five model years after the edition first becomes effective. It 
suggested that such a time frame is consistent with the six-year CRS 
expiration date established by many CRS manufacturers, and the time 
frames within which vehicle models are redesigned. The Alliance also 
stated that this would allow manufacturers to reasonably forecast how 
many of each type of CRS they will need to acquire for compliance and 
certification purposes. The Alliance stated its belief that the 
approach will not adversely affect the safety of children.
    The agency is denying the petition, for the reasons discussed 
below.\5\ In considering the petition, we have reviewed our earlier 
views about lead time from the perspective we have gained from 
experience with advanced air bag sensing systems since the Advanced Air 
Bag Rule was published. We generally confirm those views, but do 
simplify our view of lead time issues.
---------------------------------------------------------------------------

    \5\ The Alliance's petition included other requests to amend 
provisions in FMVSS No. 208 relating to Appendix A. These have been 
addressed in prior agency documents. For example, a request that we 
issue a final rule establishing test procedures for LATCH-equipped 
CRSs was addressed in the July 24, 2007 final rule, supra. A request 
to delete the Britax Expressway ISOFIX from Appendix A was addressed 
in the November 12, 2008 final rule, supra.
---------------------------------------------------------------------------

III. Agency Analysis

a. Request To Have the Agency Commit To Amending the Appendix Every 
Three Years

    We are denying the petitioner's request that NHTSA amend the 
appendix every three years ``rather than annually.'' First, the agency 
has not said that it would amend the appendix annually. NHTSA made 
clear in the November 19, 2003 document that ``Although NHTSA will 
review the appendix every year, we may not amend it annually.''
    Second, we confirm our view that annual reviews to the appendix are 
important and that we intend to continue to review the appendix 
annually. Annual reviews help us keep the appendix up to date and 
representative of CRSs currently in the market. The review includes 
careful consideration of information received by NHTSA in the agency's 
Ease-of-Use (EOU) consumer information program, which evaluates all 
CRSs available for sale at retail outlets, and data from NHTSA's FMVSS 
No. 213 compliance program. An annual review keeps the agency informed 
of CRS trends and poised to identify new CRSs with unique 
characteristics that could possibly challenge an advanced air bag 
system.
    Finally, to the extent that the Alliance requests that we commit to 
amending the appendix not more frequently than every three years in the 
absence of ``an unanticipated safety need (such as the introduction of 
an entirely new type of CRS that captures a significant portion of the 
market),'' that request is denied. A commitment of the kind suggested 
by the petitioner interferes with the agency's ability to manage its 
rulemaking resources as it deems appropriate, and could hamper our 
ability to respond quickly to changes in CRS or air bag system designs. 
The agency would best be able to respond to a safety need if it 
continues to have full ability to decide when to initiate rulemaking on 
the appendix to address changes in CRS design or availability, changes 
in air bag occupant sensing systems, or any other factor that warrants 
the initiation of rulemaking. Thus, we will not agree to the suggested 
change.

b. Request To Allow Manufacturers the Option of Certifying Vehicles to 
an Edition of the Appendix for Five Model Years After the Edition First 
Becomes Effective

    We are denying the petitioner's request to allow a manufacturer-
option of certifying vehicles to any edition of the appendix for five 
model years after that edition first becomes effective. We anticipate 
there could be safety issues associated with adopting a set five-year 
lead time period. A five-year lead time could encumber the agency's 
ability to ensure that a vehicle advanced air bag system is compatible 
with a changing CRSs market. The allowance of a five-year certification 
period, on top of a one to two year rulemaking, could provide an 
inordinate and potentially unsafe six to seven year time period where a 
new CRS introduced into the marketplace could be incorrectly identified 
by a vehicle's advanced air bag system.
    Conversely, the agency may find through the annual review process 
that the CRS market has remained relatively unchanged in design 
characteristics, yet the appendix should be updated to enhance the 
availability of the listed CRSs. In that instance, a lead time period 
of less than five years might be appropriate to facilitate the agency's 
acquisition and use of CRSs in the appendix. In addition, the request 
to allow certification to either a current list or one becoming 
effective in five years would require maintaining two lists of CRSs, 
which is more burdensome on our enforcement program than maintaining a 
single list. However, we

[[Page 20448]]

do not find the concept of early compliance with an updated list to be 
without merit.\6\ Moreover, flexibility in setting a period in which 
manufacturers may use either of two lists would enable NHTSA to better 
manage the resources of its enforcement program. Given the spectrum of 
potential reasons the appendix might be changed, we do not agree on the 
appropriateness of standardizing a set lead time period of five years 
for all future updates of the appendix.
---------------------------------------------------------------------------

    \6\ Early compliance is permitted in the November 2008 Final 
Rule with an effective date of January 12, 2009. Furthermore, during 
the production year beginning September 1, 2009, a manufacturer may 
certify any percentage above 50 percent of their production to 
Appendix A-1 and the remainder to Appendix A.
---------------------------------------------------------------------------

    In reviewing the petition, we have noted that the agency's views 
concerning the appropriate lead time for Appendix A amendments have 
changed over the years. Originally, at the time of the Advanced Air Bag 
rule the agency had generally envisioned providing only a one-year lead 
time for amendments to the appendix (66 FR at 65390). A short time 
later, in recognition that vehicle manufacturers need to know what CRSs 
are included in the appendix as they design new model vehicles, NHTSA 
said that any changes to Appendix A will be effective for the next 
model year introduced one year after publication of the final rule 
modifying the appendix (68 FR at 65188). More recently, based in part 
on more experience with the capabilities of advanced air bag sensing 
systems recognizing CRSs in the field, in the November 2008 final rule 
the agency adopted a lead time schedule that allowed extra flexibility 
for completing certification, permitting a phase-in to assist in the 
transition from the CRSs in Appendix A to those in Appendix A-1. In 
doing so, the agency exercised its ability and willingness to achieve a 
balance between keeping advanced air bag sensing systems current and 
lessening the certification testing burdens on the vehicle 
manufacturers.
    In future rulemakings on the appendix, we intend to continue the 
approach taken in the November 2008 final rule that established an 
implementation date for the new edition of Appendix A (A-1) based on 
the unique circumstances of the particular rulemaking. We believe that 
there no longer is a need to have a set one-year lead time for any 
amendment to the appendix; we believe, moreover, that a determination 
of lead time is best made within the context of the rulemaking that 
would amend the appendix, taking into account the circumstances 
involved in the particular rulemaking action. While a lead time of five 
years may be too long for an Appendix A rulemaking in the future, a 
lead time of just one year may be inappropriate under the circumstances 
surrounding the rulemaking. In addition, we will also consider the need 
for the allowance of early and/or phased compliance with a new list 
against the burden to the agency of maintaining two lists. The agency 
will address the lead time and early/phased compliance needs and 
concerns for future Appendix A amendments on a rulemaking-by-rulemaking 
basis, within the notice and comment rulemaking forum appropriate for 
making those decisions.

IV. Conclusion

    NHTSA will continue its process of reviewing the appendix annually 
to minimize problems with CRS availability and to identify emerging 
trends in CRS design characteristics. Although NHTSA will review 
Appendix A annually, we will not necessarily amend Appendix A annually. 
We will make the determination of whether to engage in rulemaking by 
considering information such as the factors discussed in the 2003 final 
rule, including emerging design trends or safety issues that may arise. 
To the extent that the Alliance requested that the agency commit to a 
3-year timeframe for amending Appendix A, we are denying that request. 
NHTSA is also denying the Alliance's request to allow certification to 
any version of Appendix A for a fixed five-year time period after a new 
edition of Appendix A becomes effective. We believe that the agency 
should maintain its ability to make the determination of lead time in 
the context of the Appendix A rulemaking proceedings.
    In accordance with 49 CFR part 552, this completes the agency's 
review of the petition. The agency has concluded that there is no 
reasonable possibility that the amendment requested by the petitioner 
would be issued at the conclusion of the rulemaking proceeding. 
Accordingly, the petition is denied.

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

    Issued on: April 28, 2009.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. E9-10098 Filed 5-1-09; 8:45 am]
BILLING CODE 4910-59-P