[Federal Register Volume 75, Number 162 (Monday, August 23, 2010)]
[Notices]
[Pages 51870-51873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-20805]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2010-0118]


Wheego Electric Cars, Inc.; Receipt of Application for Temporary 
Exemption From Advanced Air Bag Requirements of FMVSS No. 208

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

ACTION: Notice of receipt of petition for temporary exemption from 
certain provisions 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, Wheego 
Electric Cars, Inc., has petitioned the agency for a temporary 
exemption from certain advanced air bag requirements of FMVSS No. 208. 
The basis for the application is that compliance would cause 
substantial economic hardship to a manufacturer that has tried in good 
faith to comply with the standard.\1\
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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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    This notice of receipt of an application for temporary exemption is 
published in accordance with statutory provisions. NHTSA has not made 
any judgment on the merits of the application.

DATES: You should submit your comments not later than September 22, 
2010.

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.

[[Page 51871]]


COMMENTS: We invite you to submit comments on the application described 
above. You may submit comments identified by docket number at 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 am and 5 pm, 
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 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 am and 5 pm, 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 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.
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    \2\ See 65 FR 30680 (May 12, 2000).
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    The advanced air bag requirements were a culmination of a 
comprehensive plan that the agency announced in 1996 to address the 
adverse effects of air bags. This plan also included an extensive 
consumer education program to encourage the placement of children in 
rear seats.
    The new requirements were phased in beginning with the 2004 model 
year. Small volume manufacturers were not subject to the advanced air 
bag requirements until September 1, 2006.
    In recent years, NHTSA has addressed a number of petitions for 
exemption from the advanced air bag requirements of FMVSS No. 208. The 
majority of these requests have come from small manufacturers which 
have petitioned on the basis of substantial economic hardship to a 
manufacturer that has tried in good faith to comply with the standard. 
NHTSA has granted a number of these petitions, usually in situations 
where the manufacturer is supplying standard air bags in lieu of 
advanced air bags.\3\ 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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    \3\ 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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    The agency has carefully tracked occupant fatalities resulting from 
air bag deployment. Our data indicate that the agency's efforts in the 
area of consumer education and manufacturers' providing depowered air 
bags were successful in reducing air bag fatalities even before 
advanced air bag requirements were implemented.
    As always, we are concerned about the potential safety implication 
of any temporary exemption granted by this agency. In the present case, 
we are addressing a petition for a temporary exemption from the 
advanced air bag requirements submitted by a manufacturer of a small 
electric car.

II. Overview of Wheego's Petition for Economic Hardship Exemption

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
part 555, Wheego Electric Cars, Inc. (Wheego) has submitted a petition 
(dated May 31, 2010) asking the agency for a temporary exemption from 
certain advanced air bag requirements of FMVSS No. 208. The basis for 
the application is that compliance would cause substantial economic 
hardship to a manufacturer that has tried in good faith to comply with 
the standard. Wheego requested the exemption for a period of three 
years.

III. Statutory Basis for Requested Part 555 Exemption

    The National Traffic and Motor Vehicle 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 this section to NHTSA.
    NHTSA established part 555, Temporary Exemption from Motor Vehicle 
Safety and Bumper Standards, to implement the statutory provisions 
concerning temporary exemptions. Vehicle manufacturers may apply for 
temporary exemptions on several bases, one of which is that compliance 
would cause substantial economic hardship to a manufacturer that has 
tried in good faith to comply with the standard.
    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.

[[Page 51872]]

    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.
    Finally, while 49 U.S.C. 30113(b) states that exemptions from a 
Safety Act standard are to be granted on a ``temporary basis,'' \4\ 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 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 on-going 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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    \4\ 49 U.S.C. 30113(b)(1).
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IV. Wheego's Petition

    Wheego submitted a petition for exemption from certain requirements 
of FMVSS No. 208, Occupant Crash Protection. Specifically, the petition 
requests an exemption from paragraphs S14, S15, S16, S17, S18, S19, 
S21, S23, S25, S26, and S27 of FMVSS No. 208, which relate to the 
advanced air bag requirements. Wheego has requested an exemption for 
the Wheego Whip LiFe (LiFe) model, an all-electric ``full speed'' car, 
and that the exemption period run for three years. Wheego requests an 
exemption pursuant to 49 U.S.C. 30113(b)(3)(B)(i) and 49 CFR 
555.6(a).\5\
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    \5\ Wheego has not requested a two-year exemption for the 
development or field evaluation of a low-emission vehicle under 49 
U.S.C. 30113(b)(3)(B)(iii) and 49 CFR 555.6(c).
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    The basis for Wheego's application is substantial economic hardship 
to a manufacturer that has tried in good faith to comply with the 
standard. According to the petition, Wheego is a privately held company 
incorporated in the State of Delaware, with headquarters in Atlanta, 
Georgia. Its total motor vehicle production during the 12 months 
preceding the filing of the petition was 308 vehicles. Wheego indicated 
that all of these vehicles were all-electric Wheego Whip LSVs (low 
speed vehicles). In order for a vehicle to qualify as a low speed 
vehicle under FMVSS No. 500, Low Speed Vehicles, its top speed must not 
exceed 25 miles per hour.
    Wheego states that the LiFe is based on a high strength steel 
unibody chassis made by Shijiazhuan ShuangHuan Automobile Co. 
(ShuangHuan) in China. ShuangHuan manufactures a passenger car (called 
the ``Noble'') with the chassis and an internal combustion engine for 
sale in China, Australia, Greece, and other parts of the world outside 
the United States. Wheego states that, by purchasing and using an 
existing chassis, it was able to avoid the high cost of developing and 
manufacturing a brand new vehicle design. Wheego also states that 
ShuangHuan has developed dual standard air bags for the chassis, but 
not an advanced air bag system.
    Wheego contends that granting an exemption would be in the public 
interest. Wheego intends the LiFe to be ``one of the first affordable 
electric cars available in the United States.'' Wheego states that 
electric vehicles have several benefits including reducing the nation's 
reliance on foreign oil and reducing greenhouse gas and other 
emissions. Wheego also contends that, allowing it to enter the market 
now would contribute to the development of electric vehicles in general 
by helping to evaluate the market and performance of electric vehicles 
with real world experience. Wheego also cites employment opportunities 
as a benefit.
    Wheego intends to produce only a limited number of LiFes in the 
first three years of production, which it contends would limit the 
overall impact on motor vehicle safety. Wheego projects selling 550 
LiFes in 2010, 1,200 in 2011, 2,400 in 2012, and 5,000 in 2013. Wheego 
states that the primary purpose of the LiFe will be as a commuter 
vehicle because it will have a limited range compared to that of 
gasoline powered vehicles. The LiFe will have a projected range of 100 
miles and will require a minimum of 5 hours to regain a 50 percent 
charge. Because of the small sales volume and limited range, Wheego 
states that the number of hours the LiFe will be on roads will be lower 
compared to a gasoline powered vehicle, thereby reducing the likelihood 
of a crash.
    Wheego contends that compliance with the advanced air bag 
requirements would cause substantial economic hardship and that Wheego 
has tried to comply with the standard in good faith. Wheego states that 
it cannot acquire an off-the-shelf advanced air bag system for the LiFe 
because an advanced air bag system has never been developed for the 
chassis used in the LiFe. Wheego states that it does not have the 
technical or financial resources to develop such a system independently 
and would have to cancel the development of a passenger car and 
terminate its operations if it does not obtain the requested exemption.
    In October 2009, Wheego engaged J.K. Technologies in Baltimore, 
Maryland, for help with testing and certification requirements of the 
FMVSSs. Also in October 2009, Wheego approached TASS Engineering 
Services and Bosch for help in developing an advanced air bag system 
for the LiFe. Based upon this consultation, Wheego estimates that an 
advanced air bag system would cost $3 million and would take 18 months 
to test and implement. Wheego intends to spend $1 million in each of 
2011, 2012, and 2013 in an effort to develop a system that will comply 
with the advanced air bag requirements. Wheego states that based on its 
projected revenues, by the end of the third year of an exemption, 
Wheego should be able to build cars with advanced air bags at no 
additional cost.
    One issue raised by Wheego's petition is whether ShuangHuan might 
also be considered a manufacturer of the vehicle, given the 
relationship between Wheego and ShuangHuan. As indicated above, 
pursuant to 49 U.S.C. 30113, in order to be eligible for exemption, a 
manufacturer must not have produced more than 10,000 vehicles in the 
previous year. While Wheego by itself would meet this requirement, 
NHTSA must consider whether ShuangHuan could also be considered a 
manufacturer of the LiFe.
    If ShuangHuan were also considered to be a manufacturer, there 
would be issues of whether we should consider one or both companies 
with respect to

[[Page 51873]]

the 10,000 vehicle limitation for eligibility, hardship, good faith 
efforts, etc. We note, for example, that we have in the past cited the 
possible situation of large manufacturers potentially avoiding the 
statutory 10,000 vehicle limit by engaging in joint ventures with small 
companies and having the small company submit the petition.\6\
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    \6\ See grant of petition to Tesla Motors, Inc., 73 FR 4944, 
4948 (Jan. 28, 2008).
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    Wheego uses the chassis of the ShuangHuan Noble for its vehicle. 
However, we have no knowledge of the modifications Wheego makes to the 
vehicles other than to install an electric powertrain in the vehicle. 
We have little knowledge of whether Wheego makes changes to the design 
of the ShuangHuan Noble to bring it into compliance with U.S. standards 
or whether ShuangHuan is making the modifications. Wheego states that 
it has spent the majority of its time and resources developing the 
LiFe's safety features, including the seat belt requirements. However, 
Wheego also states that the standard air bags have been developed by 
ShuangHuan.
    We have found articles on Wheego's Web site stating that Wheego and 
ShuangHuan are entering into a ``partnership'' to produce electric 
vehicles. Wheego's Web site also states that ShuangHuan would 
manufacture an electric vehicle similar to the LiFe, called the E-
Noble, to sell outside of the United States.\7\ Also, the Web site of 
ShuangHuan includes, at the top right of its home page (English 
language),\8\ a box titled ``Electric Noble in USA'' with a picture of 
the vehicle. Clicking on the box brings up the Wheego Web site. This 
linkage suggests that the E-Noble and LiFe are very similar vehicles.
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    \7\ See Wheego and ShuangHuan Automobile Announce Electric Car 
Partnership, available at http://wheego.net/more/2008/11/19/rtev-and-shuanghuan-automobile-announce-electric-car-partnership-2/ (last 
accessed July 27, 2010); Wheego Electric Cars and Shuanghuan 
Automobile Form EV Partnership, available at http://wheego.net/more/2008/11/20/rtev-and-shuanghuan-automobile-form-ev-partnership/ (last 
accessed July 27, 2010); Wheego, Shuanghuan Auto Plan 2-Seater 
Electric Car for '09, available at http://wheego.net/more/2008/11/20/rtev-shuanghuan-auto-plan-2-seater-electric-car-for-%E2%80%9809/ 
(last accessed July 27, 2010). A copy of these articles has been 
included in the docket.
    \8\ See http://www.hbshauto.com/en/ (last accessed July 28, 
2010).
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    Due to the nature of the LiFe and the relationship between 
ShuangHuan and Wheego, NHTSA will closely examine whether Wheego is 
eligible for a financial hardship exemption for this vehicle. NHTSA 
specifically requests comments on this issue.
    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 
petition. The agency has tentatively concluded that the petition is 
complete. The agency has not made any judgment on the eligibility of 
the petitioner or the merits of the application, and is placing a non-
confidential copy of the petition in the docket.
    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: August 17, 2010.
Joseph S. Carra,
Acting Associate Administrator for Rulemaking.
[FR Doc. 2010-20805 Filed 8-20-10; 8:45 am]
BILLING CODE 4910-59-P