[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71717-71720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-29284]


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 DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2012-0171]
RIN 2127-AK99


Federal Motor Vehicle Safety Standards; Lamps, Reflective 
Devices, and Associated Equipment

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

ACTION: Final rule.

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SUMMARY: NHTSA is amending the Federal motor vehicle safety standard 
(FMVSS) on lamps, reflective devices, and associated equipment to 
restore the blue and green color boundaries that were removed when the 
agency published a final rule reorganizing that standard on December 4, 
2007.

DATES: Effective date: December 4, 2012.
    Petitions for reconsideration: Petitions for reconsideration of 
this final rule must be received not later than January 18, 2013.

ADDRESSES: Any petitions for reconsideration should refer to the docket 
number of this document and be submitted to: Administrator, National 
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West 
Building, Ground Floor, Docket Room W12-140, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: For technical issues: Ms. Marisol 
Medri, Office of Crash Avoidance Standards, NHTSA, 1200 New Jersey 
Avenue SE, West Building, Washington, DC 20590 (Telephone: (202) 366-
6987) (Fax: (202) 366-7002).
    For legal issues: Mr. Thomas Healy, Office of the Chief Counsel, 
NHTSA, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590 
(Telephone: (202) 366-2992) (Fax: (202) 366-3820).

SUPPLEMENTARY INFORMATION:

I. Background

    FMVSS No. 108, Lamps, Reflective Devices and Associated Equipment, 
has been in existence since 1968. The standard had been amended on an 
ad hoc basis over time resulting in a patchwork organization of the 
standard. NHTSA published a final rule on December 4, 2007,\1\ amending 
FMVSS No. 108 by reorganizing the regulatory text so that it provides a 
more straightforward and logical presentation of the applicable 
regulatory requirements; incorporating important agency interpretations 
of the existing requirements; and reducing reliance on third-party 
documents incorporated by reference. The preamble of the final rule 
stated that the rewrite of FMVSS No. 108 was administrative in nature 
and would have no impact on the substantive requirements of the 
standard. The December 4, 2007 final rule made several changes to the 
proposal contained in the Notice of Proposed Rulemaking for that rule 
including removing the blue and green color boundary requirements from 
paragraph S14.4.1.3.2 and eliminating references to three additional 
SAE documents.
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    \1\ 72 FR 68234, (Dec. 4, 2007). The agency published the Notice 
of Proposed Rulemaking proposing to reorganize the standard on 
December 30, 2005. 70 FR 77454, (Dec. 30, 2005).

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[[Page 71718]]

    SABIC Innovative Plastics US LLC (SABIC-IP) sent a letter to NHTSA 
on August 11, 2008, after the final rule comment period was over. In 
this letter, SABIC-IP stated that the agency did not allow for public 
comment when it made the decision to remove the blue and green color 
boundaries from the standard. SABIC-IP further stated that in removing 
the blue and green color boundaries from paragraph S14.4.1.3.2, the 
agency substantively changed the requirements of FMVSS No. 108 during 
the rewrite process. On July 13, 2011, NHTSA published a NPRM \2\ 
initiating this rulemaking to replace the color boundaries that were 
removed during the administrative rewrite of the standard.
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    \2\ 76 FR 41181, (July 13, 2011).
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    In the NPRM, the agency explained that while neither blue nor green 
are directly permitted by the standard, it is possible to use these 
color boundaries to certify a material to the outdoor exposure test. 
Once individually certified to the three year outdoor exposure test, 
the blue and clear material could be mixed to produce a clear material 
with a blue tint, which could then be used in a lamp lens provided the 
lamp itself emits light within the white color boundary. Under the 
standard, the mixed material can be certified to the outdoor exposure 
test without an additional three years of testing. The pre-rewrite 
version of the standard contained two tests for determining compliance 
with the color requirements in the standard, the Visual Method or the 
Tristimulus Method. The blue and green color boundary definitions that 
were removed are part of the color requirements of the Tristimulus 
method procedure. The NPRM proposed to amend FMVSS No. 108 to restore 
the color boundary definitions for green, restricted blue and signal 
blue so that the requirements of the rewrite coincide with those of the 
old standard.

II. Public Comments on NPRM

    NHTSA received four public comments in response to the Notice of 
Proposed Rulemaking for this rulemaking.\3\ All of the comments 
supported reinstating the color boundary definitions for green, 
restricted blue and signal blue to FMVSS No. 108.
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    \3\ The Alliance of Automobile Manufacturers, SABIC-IP and two 
private individuals submitted comments in response to the NPRM.
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    The Alliance of Automobile Manufacturers (the ``Alliance'') 
supported the rulemaking but stated that the agency omitted the color 
requirements for green and blue when tested according to the visual 
method. The Alliance claimed that these requirements from SAE J578c 
Color Specification for Electric Signal Lighting Devices, (FEB 1977) 
(the third party standard from which the color boundaries were derived) 
were incorporated into the NPRM proposing the reorganization of the 
standard but were not incorporated into the December 4, 2007 Final 
Rule. The Alliance recommended that these requirements be reinstated 
into the standard as sections 14.4.1.3.2.4 and 14.4.1.3.2.5.
    SABIC-IP submitted a comment urging the agency to restore the green 
and blue color boundaries to FMVSS No. 108. SABIC-IP also requested 
that the agency clarify that polymers and additives would not have to 
be retested to the three year outdoor exposure test after the effective 
date of the administrative rewrite before being combined to create new 
materials. SABIC-IP stated that the rewrite of the standard creates 
ambiguity as to whether combinations of individually certified 
materials can continue to be mixed to create new material and then 
certified to the outdoor exposure test without an additional three 
years of testing as was permitted under the pre-write version of the 
standard. SABIC-IP requested that NHTSA amend paragraph S14.4.2.2.2 to 
state that materials and additives used in plastics could be changed 
without outdoor exposure testing if the materials had previously been 
tested to FMVSS No. 108 and found to meet the requirements. Paragraph 
S14.4.2.2.2 currently states that materials and additives used in 
plastics can be changed without outdoor exposure testing if the 
materials have previously been tested to ``this section'' and found to 
meet the requirements. SABIC-IP believes that it is possible to 
interpret the use of the words ``this section'' in paragraph 
S14.4.2.2.2 to require that materials be retested to the outdoor 
exposure test in the new paragraph S14.4.2.2.2, published in December 
2007, before they can be used to create new materials. SABIC-IP stated 
that this interpretation would go against the stated goal of the 
rewrite of the standard to refrain from making any substantive change 
to the requirements.
    SABIC-IP also asked the agency to clarify that the lower 
concentration of additive of previously tested materials used to create 
a new material according to S14.4.2.2.2 paragraph can be represented by 
a composition of zero.

III. Agency Decision

    Since it was not the agency's intention to create any substantive 
modifications to the standard, we have decided to amend FMVSS No. 108 
to add the color boundary definitions for green, restricted blue and 
signal blue to the Tristimulus method procedure as proposed in the NPRM 
and to include the two missing color requirements from the visual 
method procedure so that the requirements of the rewrite coincide with 
those of the old standard.
    We have decided not to amend paragraph S14.4.2.2.2 of FMVSS No. 108 
as requested by SABIC-IP over the course of the rewrite rulemaking. We 
attempted, where ever possible, to avoid changes to the language of the 
standard. We note that the phrase ``this section'' refers to the 
requirements of paragraph S14.4.2.2 in general, not to a specific 
version of the standard. Thus, so long as the additives and polymers 
have previously been tested to and found to comply with the same 
substantive requirements as they appear in FMVSS No. 108, they can be 
added to create new materials without additional outdoor exposure 
testing. However, if the requirements of S14.4.2.2 were changed, 
previously tested additives and polymers would no longer have been 
tested to ``this section'' and would have to be retested to the outdoor 
exposure test before being used to create new materials under paragraph 
S14.4.2.2.2.
    The agency will respond to SABIC-IP's comment about the lower 
concentration of additive used to create new materials being 
represented by a composition of zero in a letter of interpretation from 
the NHTSA Office of Chief Counsel.

IV. Effective Date

    The National Highway and Motor Vehicle Safety Act states that an 
FMVSS issued by NHTSA cannot become effective before 180 days after the 
standard is issued unless the agency makes a good cause finding that a 
different effective date is in the public interest. Additionally, the 
Administrative Procedure Act (5 U.S.C. 553(d)) requires that a rule be 
published 30 days prior to its effective date unless one of three 
exceptions applies. One of these exceptions is when the agency finds 
good cause for a shorter period. We have determined that it is in the 
public interest for this final rule to have an immediate effective date 
so that the effective date of this final rule coincides as closely as 
possible with the effective date of the 2007 rewrite of the standard. 
An effective date for this final rule that

[[Page 71719]]

closely coincides with the 2007 rewrite of the standard will ensure 
that the requirements of FMVSS No. 108 remain consistent so as to avoid 
unnecessary changes in the requirements of the standard that would 
force regulated parties to change their compliance strategies, 
potentially imposing costs on manufacturers while not improving safety.

V. Regulatory Notices and Analyses

A. Executive Order 12866, Executive Order 13563, and DOT Regulatory 
Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866, Executive Order 13563, and the DOT's regulatory 
policies and procedures. This final rule was not reviewed by the Office 
of Management and Budget (OMB) under E.O. 12866, ``Regulatory Planning 
and Review.'' It is not considered to be significant under E.O. 12866 
or the Department's regulatory policies and procedures.
    This Final Rule restores existing requirements to the standard 
thereby maintaining flexibility in compliance for manufacturers who 
choose to use these colors to certify materials to the outdoor exposure 
test. Because this Final Rule merely restores existing requirements it 
is not expected to have any costs. The agency expects some minor 
unquantifiable benefits to manufacturers due to the continued 
availability of the green and blue color boundaries to certify to the 
outdoor exposure test. Because there are not any costs associated with 
this rulemaking and only minor unquantifiable benefits, we have not 
prepared a separate economic analysis for this rulemaking.

B. Executive Order 13609: Promoting International Regulatory 
Cooperation

    The policy statement in section 1 of Executive Order 13609 
provides, in part:

    The regulatory approaches taken by foreign governments may 
differ from those taken by U.S. regulatory agencies to address 
similar issues. In some cases, the differences between the 
regulatory approaches of U.S. agencies and those of their foreign 
counterparts might not be necessary and might impair the ability of 
American businesses to export and compete internationally. In 
meeting shared challenges involving health, safety, labor, security, 
environmental, and other issues, international regulatory 
cooperation can identify approaches that are at least as protective 
as those that are or would be adopted in the absence of such 
cooperation. International regulatory cooperation can also reduce, 
eliminate, or prevent unnecessary differences in regulatory 
requirements.

NHTSA is not aware of any conflicting regulatory approach taken by a 
foreign government concerning the subject matter of this rulemaking.

C. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, 5 U.S.C. 60l et 
seq., NHTSA has evaluated the effects of this action on small entities. 
I hereby certify that this rule would not have a significant impact on 
a substantial number of small entities. The final rule would affect 
manufacturers of motor vehicle light equipment, but the entities that 
qualify as small businesses would not be significantly affected by this 
rulemaking because the agency is restoring requirements that previously 
existed in an older version of the regulation. This rulemaking is not 
expected to affect the cost of manufacturing motor vehicle lighting 
equipment.

D. Executive Order 13132

    NHTSA has examined today's rule pursuant to Executive Order 13132 
(64 FR 43255, August 10, 1999) and concluded that no additional 
consultation with States, local governments or their representatives is 
mandated beyond the rulemaking process. The agency has concluded that 
the rulemaking would not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The final rule would not have 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''
    NHTSA rules can preempt in two ways. First, the National Traffic 
and Motor Vehicle Safety Act contains an express preemption provision: 
``When a motor vehicle safety standard is in effect under this chapter, 
a State or a political subdivision of a State may prescribe or continue 
in effect a standard applicable to the same aspect of performance of a 
motor vehicle or motor vehicle equipment only if the standard is 
identical to the standard prescribed under this chapter.'' 49 U.S.C. 
30103(b)(1). It is this statutory command by Congress that preempts any 
non-identical State legislative and administrative law addressing the 
same aspect of performance.
    The express preemption provision set forth above is subject to a 
savings clause under which ``[c]ompliance with a motor vehicle safety 
standard prescribed under this chapter does not exempt a person from 
liability at common law.'' 49 U.S.C. 30103(e) Pursuant to this 
provision, State common law tort causes of action against motor vehicle 
manufacturers that might otherwise be preempted by the express 
preemption provision are generally preserved. However, the Supreme 
Court has recognized the possibility, in some instances, of implied 
preemption of such State common law tort causes of action by virtue of 
NHTSA's rules, even if not expressly preempted. This second way that 
NHTSA rules can preempt is dependent upon there being an actual 
conflict between an FMVSS and the higher standard that would 
effectively be imposed on motor vehicle manufacturers if someone 
obtained a State common law tort judgment against the manufacturer, 
notwithstanding the manufacturer's compliance with the NHTSA standard. 
Because most NHTSA standards established by an FMVSS are minimum 
standards, a State common law tort cause of action that seeks to impose 
a higher standard on motor vehicle manufacturers will generally not be 
preempted. However, if and when such a conflict does exist--for 
example, when the standard at issue is both a minimum and a maximum 
standard--the State common law tort cause of action is impliedly 
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
    Pursuant to Executive Order 13132 and 12988, NHTSA has considered 
whether this rule could or should preempt State common law causes of 
action. The agency's ability to announce its conclusion regarding the 
preemptive effect of one of its rules reduces the likelihood that 
preemption will be an issue in any subsequent tort litigation.
    To this end, the agency has examined the nature (e.g., the language 
and structure of the regulatory text) and objectives of today's rule 
and finds that this rule, like many NHTSA rules, prescribes only a 
minimum safety standard. As such, NHTSA does not intend that this rule 
preempt state tort law that would effectively impose a higher standard 
on motor vehicle manufacturers than that established by today's rule. 
Establishment of a higher standard by means of State tort law would not 
conflict with the minimum standard announced here. Without any 
conflict, there could not be any implied preemption of a State common 
law tort cause of action.

E. National Environmental Policy Act

    NHTSA has analyzed this final rule for the purposes of the National 
Environmental Policy Act. The agency has determined that implementation 
of this action would not have any

[[Page 71720]]

significant impact on the quality of the human environment.

F. Paperwork Reduction Act

    Under the procedures established by 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 final rule would not establish any new 
information collection requirements.

G. National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act of 1995 
(NTTAA) (Public Law 104-113), ``all Federal agencies and departments 
shall use technical standards that are developed or adopted by 
voluntary consensus standards bodies, using such technical standards as 
a means to carry out policy objectives or activities determined by the 
agencies and departments.'' This Final Rule would not adopt or 
reference any new industry or consensus standards that were not already 
present in FMVSS No. 108.

H. Civil Justice Reform

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996) requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) adequately 
defines key terms; and (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The preemptive 
effect of this final rule is discussed above. NHTSA notes further that 
there is no requirement that individuals submit a petition for 
reconsideration or pursue other administrative proceeding before they 
may file suit in court.

I. 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). This final rule would 
not result in expenditures by State, local or tribal governments, in 
the aggregate, or by the private sector in excess of $100 million 
annually.

J. Executive Order 13211

    Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any 
rulemaking that: (1) Is determined to be economically significant as 
defined under E.O. 12866, and is likely to have a significantly adverse 
effect on the supply of, distribution of, or use of energy; or (2) that 
is designated by the Administrator of the Office of Information and 
Regulatory Affairs as a significant energy action. This rulemaking is 
not subject to E.O. 13211.

K. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal 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.

L. 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 (70 FR 19477-19478).

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles, and Tires.
    In consideration of the foregoing, NHTSA amends 49 CFR part 571 as 
set forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for Part 571 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 571.108 is amended by adding paragraphs S14.4.1.3.2.4, 
S14.4.1.3.2.5, S14.4.1.4.2.4, S14.1.4.2.5, and S14.4.1.4.2.6 to read as 
follows:


Sec.  571.108  Standard No.108; Lamps, reflective devices, and 
associated equipment.

* * * * *
    S14.4.1.3.2.4 Green. Green is not acceptable if it is less 
saturated (paler), yellower, or bluer than the limit standards.
    S14.4.1.3.2.5 Blue. Blue is not acceptable if it is less saturated 
(paler), greener, or redder than the limit standards.
* * * * *
    S14.4.1.4.2.4 Green. The color of light emitted must fall within 
the following boundaries:

y = 0.73 - 0.73x (yellow boundary)
x = 0.63y - 0.04 (white boundary)
y = 0.50 - 0.50x (blue boundary)

    S14.4.1.4.2.5 Restricted Blue. The color of light emitted must fall 
within the following boundaries:

y = 0.07 + 0.81x (green boundary)
x = 0.40 - y (white boundary)
x = 0.13 + 0.60y (violet boundary)

    S14.4.1.4.2.6 Signal Blue. The color of light emitted must fall 
within the following boundaries:

y = 0.32 (green boundary)
x = 0.16 (white boundary)
x = 0.40 - y (white boundary)
x = 0.13 + 0.60y (violet boundary)
* * * * *

    Issued on: November 28, 2012.
David L. Strickland,
Administrator.
[FR Doc. 2012-29284 Filed 12-3-12; 8:45 am]
BILLING CODE 4910-59-P