[Federal Register Volume 77, Number 155 (Friday, August 10, 2012)]
[Notices]
[Pages 47915-47918]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19720]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0013]


Wheego Electric Cars, Inc.; Grant of Petition for Temporary 
Exemption From the Electronic Stability Control Requirements of FMVSS 
No. 126

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

ACTION: Notice of grant of a petition for temporary exemption from 
Federal Motor Vehicle Safety Standard (FMVSS) No. 126, Electronic 
Stability Control Systems.

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SUMMARY: This notice grants the petition of Wheego Electric Cars, Inc. 
(Wheego) for the temporary exemption of its LiFe model from the 
electronic stability control requirements of FMVSS No. 126. The agency 
has considered Wheego's petition for exemption and has determined that 
the exemption would facilitate the development or field evaluation of a 
low-emission motor vehicle and would not unreasonably reduce the safety 
level of that vehicle.

DATES: This exemption is effective immediately and remains in effect 
until December 31, 2012.

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 W41-326, 
Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.

SUPPLEMENTARY INFORMATION: 

I. Statutory Basis for Temporary Exemptions

    The National Traffic and Motor Vehicle Safety Act (Safety Act), 
codified as 49 U.S.C. Chapter 301, authorizes the Secretary of 
Transportation 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 in this section to NHTSA.
    NHTSA established 49 CFR Part 555, Temporary Exemption From Motor 
Vehicle Safety and Bumper Standards, to implement the statutory 
provisions concerning temporary exemptions. A vehicle manufacturer 
wishing to obtain an exemption from a standard must demonstrate in its 
application (A) that an exemption would be in the public interest and 
consistent with the Safety Act and (B) that the manufacturer satisfies 
one of the following four bases for an exemption: (i) Compliance with 
the standard would cause substantial economic hardship to a 
manufacturer that has tried to comply with the standard in good faith; 
(ii) the exemption would make easier the development or field 
evaluation of a new motor vehicle safety feature providing a safety 
level at least equal to the safety level of the standard; (iii) the 
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the 
safety level of that vehicle; or (iv) compliance with the standard 
would prevent the manufacturer from selling a motor vehicle with an 
overall safety level at least equal to the overall safety level of 
nonexempt vehicles.
    For an exemption petition to be granted on the basis that the 
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the 
safety level of the vehicle, the petition must include specified 
information set forth at 49 CFR 555.6(c). The main requirements of that 
section include: (1) Substantiation that the vehicle is a low-emission 
vehicle; (2) documentation establishing that a temporary exemption 
would not unreasonably degrade the safety of a vehicle; (3) 
substantiation that a temporary exemption would facilitate the 
development or field evaluation of the vehicle; (4) a statement of 
whether the petitioner intends to conform to the standard at the end of 
the exemption period; and (5) a statement that not more than 2,500 
exempted vehicles will be sold in the United States in any 12-month 
period for which an exemption may be granted.

II. Electronic Stability Control Systems Requirement

    In April 2007, NHTSA published a final rule requiring that vehicles 
with a gross vehicle weight rating of 4,536 kilograms (kg) (10,000 
pounds) or less be equipped with electronic stability control (ESC) 
systems. ESC systems use automatic computer-controlled braking of 
individual wheels to assist the driver in maintaining control in 
critical driving

[[Page 47916]]

situations in which the vehicle is beginning to lose directional 
stability at the rear wheels (spin out) or directional control at the 
front wheels (plow out). An anti-lock brake system (ABS) is a 
prerequisite for an ESC system because ESC uses many of the same 
components as ABS. Thus, the cost of complying with FMVSS No. 126 is 
less for vehicle models already equipped with ABS.
    Preventing single-vehicle loss-of-control crashes is the most 
effective way to reduce deaths resulting from rollover crashes. This is 
because most loss-of-control crashes culminate in the vehicle leaving 
the roadway, which dramatically increases the probability of a 
rollover. NHTSA's crash data study of existing vehicles equipped with 
ESC demonstrated that these systems reduce fatal single-vehicle crashes 
of passenger cars by 55 percent and fatal single-vehicle crashes of 
light trucks and vans (LTVs) by 50 percent.\1\ NHTSA estimates that ESC 
has the potential to prevent 56 percent of the fatal passenger car 
rollovers and 74 percent of the fatal LTV first-event rollovers that 
would otherwise occur in single-vehicle crashes.\2\
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    \1\ Sivinski, R., Crash Prevention Effectiveness of Light-
Vehicle Electronic Stability Control: An Update of the 2007 NHTSA 
Evaluation; DOT HS 811 486 (June 2011).
    \2\ Id.
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    The ESC requirement became effective for substantially all vehicles 
on September 1, 2011.

III. Overview of Petition

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
part 555, Wheego Electric Cars, Inc. (Wheego) submitted a petition 
dated August 15, 2011 asking the agency for a temporary exemption from 
the electronic stability control requirements of FMVSS No. 126. The 
basis for the application is that the exemption would make the 
development or field evaluation of a low-emission vehicle easier and 
would not unreasonably lower the safety level of that vehicle. Wheego 
requested an exemption for the LiFe model for a period from September 
1, 2011 to August 1, 2012.
    Wheego is a Delaware corporation with its headquarters in Atlanta, 
Georgia. Wheego began manufacturing and selling low-speed electric 
vehicles in the U.S. in June 2009. In April 2011, Wheego began 
manufacturing and selling its first all-electric passenger car, the 
two-door, two-seat LiFe model. Wheego also states that it is developing 
a four-door passenger vehicle for sale in late 2012.
    In February 2011, Wheego was granted a temporary exemption from the 
advanced air bag requirements of FMVSS No. 208, Occupant Crash 
Protection, that is effective until February 11, 2013.\3\ Wheego states 
that it plans to meet all other current FMVSSs for a passenger car.
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    \3\ See 76 FR 7898 (Feb. 11, 2011); Docket No. NHTSA-2010-0118.
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    Wheego asserts that the company had intended to develop an ESC 
system for the LiFe. However, delays in funding and later developments 
have made it impossible for Wheego to develop an ESC system for the 
LiFe before September 2011. Wheego requested an exemption from the ESC 
requirements until August 1, 2012 for up to 1,000 vehicles so that it 
can continue its development and evaluation of a low-emission vehicle. 
Wheego stated that the company intends to comply with FMVSS No. 126 at 
the end of the exempted period.
    Wheego believes that a temporary exemption would not unreasonably 
degrade the safety or impact protection of the vehicle. Wheego states 
that the LiFe has an ABS system that prevents loss of control by 
preventing the wheels from locking up and the tires from skidding 
during braking. Wheego also asserts that its standard tires are wide 
with wide, circumferential grooves that provide rapid water evacuation 
to aid wet traction. Wheego also notes that the LiFe is limited to a 
top speed of 65 mph, which may contribute to a reduction of crashes 
associated with high speeds. Wheego also states that the LiFe has a low 
center of gravity with 762 pounds of batteries beneath the floorboard 
of the vehicle. Further, Wheego argues that the relatively limited 
range of the LiFe compared to gasoline-powered vehicles (100 miles 
before needing a charge) makes it less likely that a LiFe would be 
involved in a high-speed or rollover crash. Wheego also asserts that 
the relatively small number of vehicles that would be produced under 
the exemption suggests that the exemption would have a negligible 
effect on vehicle safety.
    Wheego asserts that an exemption would make the development or 
field evaluation of a low-emission vehicle easier. Wheego states that 
it would be able to use consumer feedback and other testing and 
evaluation to improve design and efficiency to improve charging, 
battery management, and safety systems in future vehicle models. Wheego 
states that, without the exemption, the company would not be able to 
produce enough cars or revenue to sustain these developments or to 
launch a new vehicle model. Wheego also believes that its success can 
add to the overall development of low-emission vehicles as a whole by 
demonstrating the viability of electric cars to consumers and 
encouraging other manufacturers to build electric cars.
    Wheego also asserts that the granting of the exemption would be in 
the public interest. Wheego notes that NHTSA has traditionally found 
that the public interest is served by affording consumers a wider 
variety of motor vehicles, by encouraging the development of fuel-
efficient and alternative-energy vehicles, and by providing additional 
employment opportunities. Wheego believes that granting this petition 
serves each of those interests.
    In a supplement to its petition filed on June 11, 2012, Wheego 
reduced the number of exempted vehicles it intends to produce and the 
time period for the exemption. Wheego now intends to manufacture 165 
vehicles under this exemption by the end of 2012.

IV. Notice of Receipt

    On January 30, 2012, we published in the Federal Register (77 FR 
4623) a notice of receipt of Wheego's petition for temporary exemption, 
and provided an opportunity for public comment. We received 12 
comments, including comments from the Advocates for Highway & Auto 
Safety (Advocates) and 11 private individuals. All of the commenters 
opposed granting Wheego's petition. Wheego responded to the commenters 
through its own submission and through a supplemental petition. Wheego 
also met with the agency informally to discuss its application pursuant 
to 49 CFR 555.7(f). A memorandum summarizing that meeting has been 
placed in the docket.

V. Agency Analysis, Response to Comment, and Decision

    In this section, we provide our analysis and decision regarding 
Wheego's temporary exemption request concerning the ESC requirements of 
FMVSS No. 126, including our response to the comments received.
    As discussed below, we are granting Wheego's petition for the LiFe 
to be exempted, for a period ending December 31, 2012, from the 
requirements of FMVSS No. 126. The agency's rationale for this decision 
is as follows:
    First, we conclude that Wheego has shown that an exemption from the 
ESC requirements would make the development or field evaluation of a 
low-emission motor vehicle easier. Specifically, we agree with Wheego 
that allowing continued production on a limited basis of additional 
LiFe models

[[Page 47917]]

now under an exemption will make it easier for Wheego to design and 
produce future low emission vehicle models without an exemption.
    Further, the production of additional LiFe models would allow 
consumers of all-electric vehicles an additional option during the 
exemption period. We agree with Wheego that continued production of its 
vehicle will help to demonstrate to the U.S. public the capabilities of 
electric vehicles. We also agree with Wheego that continued production 
of the LiFe for the limited period will allow it to develop fully 
FMVSS-compliant electric vehicles. For that reason we agree that denial 
of the petition could jeopardize Wheego's ability to produce other 
electric vehicles in the future. For these reasons, we agree with 
Wheego that granting this petition will encourage the development and 
sale of electric vehicles by Wheego and also by other manufacturers.
    Second, NHTSA concludes that the grant of this exemption would not 
unreasonably lower the safety or impact protection level of the 
vehicle. In particular, we have considered that Wheego produces a low-
center-of-gravity, two-seat vehicle. The low center of gravity provides 
some additional reduction of loss-of-control crashes relative to other 
passenger cars. The LiFe's limited speed capability is also a factor in 
favor of granting the exemption. Furthermore, because the LiFe has a 
limited range (100 miles) and would be used less during winter months 
(due to even more limited range caused by the effect of cold weather on 
the batteries), a LiFe is likely to be driven fewer miles compared to 
an average vehicle. We believe that this factor diminishes the 
likelihood that the failure to include an ESC system on the LiFe would 
unreasonably lower the safety level of the vehicle.
    Eight of the individual commenters opposing the grant of Wheego's 
petition stated that NHTSA should not grant any exemption from the ESC 
requirements, citing the safety benefits of ESC. Three additional 
commenters objected to the grant of any exemption at all. The Advocates 
argue that ESC is an important and proven safety improvement. In 
support of their argument, the Advocates cite agency and industry 
research, including the agency's most recent study of ESC system 
effectiveness.\4\ While the agency continues to believe that ESC has a 
substantial effect on the number of vehicle crashes, the relevant 
inquiry is not the effectiveness of ESC systems. Rather, the relevant 
inquiry is whether an exemption would unreasonably lower the safety 
level of the vehicle in question. Although the agency has found 
substantial benefits resulting from ESC systems on passenger cars, the 
agency finds that the absence of ESC on the LiFe does not unreasonably 
lower the safety level of that specific vehicle. We believe that the 
expected use patterns of the LiFe, including the relatively low number 
of miles driven by the average LiFe owner, support this finding.
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    \4\ See supra, note 1.
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    The Advocates contend that Wheego had ample opportunity to develop 
and equip their vehicles with ESC because the ESC requirement was 
mandated by a final rule issued in 2007. The Advocates further contend 
that, by submitting a petition for exemption just over two weeks before 
the deadline for ESC compliance, Wheego ignored development of a safety 
system. However, the timing of Wheego's filing does not affect its 
entitlement to an exemption. The consequence of Wheego waiting until 
August 15, 2011 to file its petition for an exemption is that Wheego 
has been unable to manufacture the LiFe since September 1, 2011.
    The Advocates also claim that ESC technology is mature and 
inexpensive, citing the per-vehicle cost estimate of $111 for vehicles 
already equipped with ABS set forth in the 2007 final rule. In 
response, Wheego states that, as a small manufacturer, it must amortize 
the cost of developing ESC over fewer vehicles than larger 
manufacturers. Wheego estimated that the amortized per vehicle cost of 
ESC development would be over $1000 per vehicle. We agree with Wheego 
that the amortized cost of developing ESC systems is higher for very 
small manufacturers. Although the discussion of the cost of ESC 
development is not a statutory or regulatory factor for exemptions 
under 49 U.S.C. 30113(b)(3)(B)(iii), it is relevant in determining 
whether the failure to have ESC unreasonably lowers the safety level of 
the vehicle.
    The Advocates also argue that Wheego's limited production of 
exempted vehicles does not justify an exemption. The Advocates argue 
that rarer vehicles are not safer just because they are rarer. While 
the agency cannot dispute the assertion that rarer vehicles are not 
safer because they are rarer, it does not follow that the agency should 
not consider the expected production volume in support of an exemption 
request. If Wheego intended to produce more vehicles under this 
exemption, the agency would be less likely to grant the petition. 
Moreover, it is not just the limited number of vehicles that would be 
produced under the exemption, but the limited number of miles the 
average LiFe is driven compared to other cars that Wheego cites in 
support of its petition.
    Based on the foregoing, we believe that any impact on safety from 
granting the petition would be negligible and that Wheego has satisfied 
the eligibility criteria for an exemption for the development or field 
evaluation of a low-emission motor vehicle.
    We also find that this exemption would be consistent with the 
public interest and the objectives of the Safety Act. NHTSA has 
traditionally found that the public interest is served by affording 
consumers a wider variety of motor vehicles, by encouraging the 
development of fuel-efficient and alternative-energy vehicles, and 
providing additional employment opportunities. We believe that all 
three of these public interest considerations would be served by 
granting Wheego's petition.
    We note that the denial of this request would remove one of the few 
electric vehicles that is currently being sold in the U.S. market and 
that granting this petition would afford U.S. consumers the continued 
choice of this all-electric vehicle. As explained above, granting this 
petition will make the development of Wheego's next model possible, 
while conversely denial of the petition could compromise Wheego's 
ability to produce additional low emission vehicles. We believe that 
granting this petition will have a positive impact on U.S. employment 
in the automotive industry, and that denial of the petition could 
directly impact the jobs of current Wheego employees.
    Additionally, we believe that the requested exemption will have a 
limited impact on general motor vehicle safety because of the small 
number of vehicles that can be produced under this exemption. Finally, 
it is critical to the agency's decision that Wheego is requesting a 
short exemption period and intends to sell only vehicles that comply 
with the ESC requirement after the exemption period.
    We note that prospective purchasers will be notified that the 
vehicle is exempted from the ESC requirements of Standard No. 126. 
Under Sec.  555.9(b), a manufacturer of an exempted vehicle must affix 
securely to the windshield or side window of each exempted vehicle a 
label containing a statement that the vehicle conforms to all 
applicable FMVSSs in effect on the date of manufacture ``except for 
Standard Nos. [listing the standards by number and title for which an 
exemption has been granted] exempted pursuant to NHTSA Exemption No. --
----.'' This label

[[Page 47918]]

notifies prospective purchasers about the exemption and its subject. 
Under Sec.  555.9(c), this information must also be included on the 
vehicle's certification label.\5\
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    \5\ Wheego's label is required to list both its exemption from 
FMVSS No. 126 and its exemption from the advanced air bag 
requirements of FMVSS No. 208.
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    In consideration of the foregoing, we conclude that granting the 
requested exemption from FMVSS No. 126, Electronic Stability Control 
Systems, would facilitate the field evaluation or development of a low-
emission vehicle, and would not unreasonably lower the safety or impact 
protection level of that vehicle. We further conclude that granting 
this exemption would be in the public interest and consistent with the 
objectives of the Safety Act.
    In accordance with 49 U.S.C. 30113(b)(3)(B)(iii), Wheego is granted 
NHTSA Temporary Exemption No. EX 12-01 from FMVSS No. 126. The 
exemption is for a total of no more than 165 LiFe model vehicles and 
shall be effective from the date on which notice of this decision is 
published in the Federal Register until December 31, 2012, as indicated 
in the DATES section of this document.

    Authority: 49 U.S.C. 30113; delegations of authority at 49 CFR 
1.50. and 501.8.

    Issued on: August 2, 2012.
Ronald L. Medford,
Deputy Administrator.
[FR Doc. 2012-19720 Filed 8-9-12; 8:45 am]
BILLING CODE 4910-59-P