[Federal Register Volume 78, Number 174 (Monday, September 9, 2013)]
[Rules and Regulations]
[Pages 55138-55167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-21605]



[[Page 55137]]

Vol. 78

Monday,

No. 174

September 9, 2013

Part II





Department of Transportation





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





National Highway Traffic Safety Administration





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





49 CFR Part 571





Federal Motor Vehicle Safety Standards; Ejection Mitigation; Final Rule

  Federal Register / Vol. 78 , No. 174 / Monday, September 9, 2013 / 
Rules and Regulations  

[[Page 55138]]


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

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2013-0097]
RIN 2127-AL40


Federal Motor Vehicle Safety Standards; Ejection Mitigation

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

ACTION: Final rule; response to petitions for reconsideration.

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

SUMMARY: This document responds to petitions for reconsideration of a 
2011 final rule that established Federal Motor Vehicle Safety Standard 
(FMVSS) No. 226, ``Ejection mitigation.'' The standard is intended to 
reduce complete and partial ejections of vehicle occupants through side 
windows in crashes, particularly rollover crashes. Generally, the 
issues raised by the petitioners are of two types. The petitioners ask 
for reconsideration of policy issues relating to the agency's 
implementation of the standard, and of technical issues concerning 
engineering aspects of the rule, particularly as to how the compliance 
test procedure should be conducted or improved. Most of the requested 
changes were of the latter type. In general, NHTSA is denying the 
petitions for reconsideration. The few changes we have made in response 
to the petitions are minor, mostly to clarify the requirements of the 
standard.

DATES: Effective date: The date on which this final rule amends the CFR 
is October 9, 2013.
    If you wish to petition for reconsideration of this rule, your 
petition must be received by October 24, 2013.

ADDRESSES: If you wish to petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE., West Building, 
Washington, DC 20590.
    The petition will be placed in the docket. Anyone is able to search 
the electronic form of all documents 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).

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call 
Louis Molino, NHTSA Office of Crashworthiness Standards, telephone 202-
366-1740. For legal issues, you may call Deirdre R. Fujita, NHTSA 
Office of Chief Counsel, telephone 202-366-2992. You may send mail to 
these officials at the following address: National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE., West Building, 
Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petitions for Reconsideration
III. Response to Petitions Relating to Implementation of the 
Standard
    a. Lead Time and Phase-In Schedule
    b. Applicability
    1. Vehicles With Partitions With Doors
    2. School Buses
    c. Displacement Limit--Issue 1
    d. Displacement Limit--Issue 2
IV. Response to Petitions Regarding Technical Issues
V. Determination of Impact Target Locations--Boundary of Target 
Locations
    a. Rearmost Limit of the Offset Line
    b. Grab Handles
    c. Removal of Components During Targeting
VI. Primary Target Locations
    a. Determination of the Geometric Center of the Daylight Opening
    b. Targeting Large Radius Windows
VII. Target Adjustment
    a. Coordinate System
    b. Target Reconstitution
    c. Rotating the Headform
VIII. Targeting Accuracy
IX. Glazing
    a. Applying Pre-Breaking Procedure
    b. Pre-Breaking Procedure Applies to All Glazing
    c. Meaning of ``Movable Glazing''
    d. Hinges and Latches
    e. Side Daylight Opening When There Is No Divider
X. Other Aspects of the Test Procedure
    a. Headform Cleaning
    b. Vehicle Test Attitude
    c. Inspect Air Bag Mounts
XI. Secondary Issues
    a. Other Typographical Errors
    b. Views on a Dynamic Test Procedure
XII. Rulemaking Analyses and Notices

I. Background

    On January 19, 2011, NHTSA published a final rule establishing 
FMVSS No. 226, ``Ejection mitigation,'' to reduce complete and partial 
ejections of vehicle occupants through side windows in crashes, 
particularly rollover crashes (76 FR 3212; Docket No. NHTSA-2011-0004; 
corrected 76 FR 10524, February 25, 2011).\1\ To meet the requirements 
of FMVSS No. 226, vehicle manufacturers will avail themselves of the 
side curtain air bag technologies that are already being installed in 
vehicles to meet FMVSS No. 214, ``Side impact protection.'' In response 
to the 2011 final rule, manufacturers will enhance these side curtain 
air bags to make them larger to cover more of the window opening, more 
robust to remain inflated longer, and more advanced to deploy in side 
impacts and in rollovers. Further, the curtains will be made not only 
to cushion but also to be sufficiently strong to reduce the likelihood 
that an occupant will be fully or partially ejected through a side 
window.\2\
---------------------------------------------------------------------------

    \1\ The notice of proposed rulemaking preceding the final rule 
was published on December 2, 2009 (74 FR 63180, Docket No. NHTSA-
2009-0183).
    \2\ The final rule responded to sec. 10301 of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users,'' (SAFETEA-LU), Public Law 109-59 (Aug. 10, 2005; 119 
Stat. 1144), which requires the Secretary of Transportation to issue 
an ejection mitigation final rule reducing complete and partial 
ejections of occupants from outboard seating positions.
---------------------------------------------------------------------------

    To assess compliance, the agency adopted a test in which an 
impactor is propelled from inside a test vehicle toward the windows. 
The impactor mass, 18 kg (40 lb), is based on the mass imposed by a 
50th percentile male's head and upper torso on the window opening 
during an occupant ejection. The impactor mass is propelled at points 
around the window's perimeter with sufficient kinetic energy to assure 
that the ejection mitigation countermeasure is able to protect a far-
reaching range of occupants in real world crashes. The vehicle must 
prevent the impactor from moving more than a specified distance beyond 
the plane of a window (the impactor must not travel more than 100 
millimeters (mm) beyond the location of the inside surface of the 
vehicle glazing). To ensure that the systems cover the entire opening 
of each window for the duration of a rollover, each side window will be 
impacted at up to four locations around its perimeter at two time 
intervals following deployment.
    The standard applies to the side windows next to the first three 
rows of seats, or next to a cargo area behind the first or second row 
in vehicles that do not have a second or third row, in motor vehicles 
with a gross vehicle weight rating (GVWR) of 4,536 kg (10,000 lb) or 
less. The final rule adopted a phase-in of the new requirements, which 
begins September 1, 2013.
    The final rule achieves tremendous benefits at reasonable costs. We 
estimate that the rule will save 373 lives and

[[Page 55139]]

prevent 476 serious injuries per year (see Table 1 below). The cost of 
the final rule is approximately $31 per vehicle (see Table 2). The cost 
per equivalent life saved is estimated to be $1.4 million (3 percent 
discount rate)--$1.7 million (7 percent discount rate) (see Table 3 
below). Annualized costs and benefits are provided in Table 4.

              Table 1--Estimated Benefits of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Fatalities......................................................     373
Serious Injuries................................................     476
------------------------------------------------------------------------


     Table 2--Estimated Costs\*\ (2009 Economics) of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Per Vehicle...............................  $31.
Total Fleet (16.5 million vehicles).......  507 million.
------------------------------------------------------------------------
* The system costs are based on vehicles that are equipped with an FMVSS
  No. 214 side curtain air bag system. According to vehicle
  manufacturers' projections made in 2006, 98.7 percent of Model Year
  (MY) 2011 vehicles will be equipped with curtain bags and 55 percent
  of vehicles with curtain bags will be equipped with a rollover sensor.


        Table 3--Cost per Equivalent Life Saved of the Final Rule
------------------------------------------------------------------------
 
------------------------------------------------------------------------
3% Discount Rate..........................  7% Discount Rate.
$1.4M.....................................  $1.7M.
------------------------------------------------------------------------


                       Table 4--Annualized Costs and Benefits in Millions of $2009 Dollars
----------------------------------------------------------------------------------------------------------------
                                                                                    Annualized
                                                                   Annual costs      benefits      Net benefits
----------------------------------------------------------------------------------------------------------------
3% Discount Rate................................................           $507M         $2,279M          $1,773
7% Discount Rate................................................            507M          1,814M           1,307
----------------------------------------------------------------------------------------------------------------

II. Petitions for Reconsideration

    NHTSA received petitions for reconsideration of the final rule 
from: The Alliance of Automobile Manufacturers (Alliance), Mercedes-
Benz USA (Mercedes-Benz), Porsche Cars North America (Porsche), Daimler 
Trucks North America (Daimler Trucks), Advocates for Highway & Auto 
Safety (Advocates), the National Truck Equipment Association (NTEA), 
TRW Vehicle Safety Systems (TRW), and the Automotive Occupant 
Restraints Council (AORC)/Automotive Safety Council (ASC).\3\ The 
School Bus Manufacturers Technical Council (SBMTC) submitted a letter 
asking for confirmation of its understanding of an aspect of the final 
rule.
---------------------------------------------------------------------------

    \3\ In 2011, AORC changed its name to the Automotive Safety 
Council (ASC). We will refer to the group as ``ASC.''
---------------------------------------------------------------------------

    Generally, the issues raised by the petitioners are of two types. 
Some petitioners ask for reconsideration of policy issues relating to 
the agency's implementation of the standard, and many raise technical 
issues relating to engineering aspects of the rule, such as how the 
compliance test procedure should be conducted or improved. Most of the 
requested changes in the petitions are of the latter type.
    The petitioners' requests relating to policy issues pertain to lead 
time (the Alliance, Mercedes-Benz, and Porsche request NHTSA to provide 
more lead time and reduced phase-in percentages related to the 
compliance date and phase-in requirements), and the applicability of 
the standard to certain particular vehicle types (NTEA asks for a 
change with regard to vehicles with a partition that has a door; 
Daimler Trucks asks that school buses be excluded from the standard). A 
petitioner (Advocates) requests reducing the displacement limit 
(Advocates petitions to reduce the 100 mm displacement limit to 50 mm), 
and asks for a change regarding how openings are to be tested, to 
prevent what the petitioner calls ``minimal designs.''
    With regard to technical aspects of the test procedure, some 
petitioners (the Alliance, TRW, AORC) ask for reconsideration or 
clarification of the procedure for determining target locations, such 
as where the rearward boundary of the target locations should be, and 
how grab handles should be treated), and the procedures for identifying 
primary target locations and for adjusting the targets (reconstituting 
and rotating targets). Several petitioners ask for changes or 
clarification regarding glazing issues. In addition, a few petitioners 
point out typographical and other errors in need of correction.
    In general, NHTSA is denying the petitions for reconsideration that 
request substantive changes to the standard. One substantive change we 
make, in response to NTEA, is to specify that for vehicles with a 
partition separating an occupant seating area from a cargo area, the 
partition may have a door. The other changes we have made in response 
to the petitions are mostly to clarify the requirements of the standard 
or to correct typographical errors in the regulatory text.
    Briefly, this final rule:
    Adds a definition of ``movable glazing'' (S3 is amended);
    Specifies that for vehicles with a partition separating an occupant 
seating area from a cargo area, the partition may have a door 
(S5.2.1.2(c));
    Clarifies the regulatory text describing the procedure for target 
elimination (S5.2.5.1.1), and adds new figures 5a and 5b for 
clarification purposes;
    Clarifies the regulatory text for target reorientation, 90 degree 
rotation (S5.2.5.2);
    Corrects typographic errors in the regulatory text for target 
reorientation incremental rotation (S5.2.5.3); and,
    Clarifies the regulatory text for targeting accuracy (S7.4).
    These and other issues are discussed in the sections below.

III. Response to Petitions Relating to Implementation of the Standard

a. Lead Time and Phase-In Schedule

    The final rule provided two years of lead time and a multi-year 
phase-in period, and provided for the use of credits during the phase-
in period. In the final rule, the agency significantly reduced the 
impact velocity of the high speed impact test (performed at 1.5 seconds 
after deployment of the ejection mitigation side curtain air bag) from 
24 kilometers per hour (km/h) (proposed in the NPRM) to 20 km/h 
(adopted in the final rule). To accelerate the benefits provided by the 
new FMVSS, after considering a number of factors, including the 
reduction in impactor speed, the agency in the final rule provided a 
shorter lead time than the lead time proposed in the NPRM, and

[[Page 55140]]

adopted phase-in percentages higher than those in the NPRM.\4\ The 
agency determined that the reduced impact speed will result in fewer 
changes having to be made to existing vehicle designs to meet the final 
rule's requirements, and so less lead time was needed to begin phasing 
in the requirements across the fleet. The phase-in percentages could be 
increased since more vehicles could be certified to the standard. At 
the same time, to enhance flexibility to manufacturers in developing 
plans and applying resources toward certifying to the standard, the 
final rule allowed the use of credits in the 100 percent phase-in year, 
which is a year longer into the phase-in period than the NPRM would 
have allowed use of credits.
---------------------------------------------------------------------------

    \4\ The NPRM had proposed the following lead time and phase-in 
schedule: 20 percent of each manufacturer's vehicles manufactured 
during the first production year beginning 3 years after publication 
of the final rule; 40 percent in the fourth year; 75 percent in the 
fifth year; all vehicles (without use of credits) manufactured on or 
after the September 1st following 6 years after publication of a 
final rule.
---------------------------------------------------------------------------

    Under the final rule, starting September 1, 2013, a percentage of 
the manufacturer's average annual production of vehicles manufactured 
in the three previous production years, or the manufacturer's 
production in the current production year, must be certified as meeting 
FMVSS No. 226. The phase-in schedule is as follows: \5\
---------------------------------------------------------------------------

    \5\ Special allowances from the phase-in were made for limited 
line manufacturers, small manufacturers, manufacturers of vehicles 
manufactured in two or more stages, and alterers. See FMVSS No. 226, 
S4.1.3. This schedule set forth in Table 5 does not reflect these 
special allowances.

          Table 5--Final Rule Lead Times and Phase-In Schedule
------------------------------------------------------------------------
                                    The number of
                                vehicles certified to
                                 FMVSS No. 226 shall
 For vehicles manufactured on   be not less than this   May credits  be
  or after the first date and       percent of the           used?
    before the second date      manufacturer's annual
                                     production of
                                       vehicles
------------------------------------------------------------------------
On or after September 1, 2013;  25 percent...........  Yes.
 before September 1, 2014.
On or after September 1, 2014;  50 percent...........  Yes.
 before September 1, 2015.
On or after September 1, 2015;  75 percent...........  Yes.
 before September 1, 2016.
On or after September 1, 2016;  100 percent..........  Yes.
 before September 1, 2017.
On or after September 1, 2017.  All vehicles, without  No.
                                 use of credits.
------------------------------------------------------------------------

Reconsideration Requests

    The Alliance, Mercedes-Benz, and Porsche submitted petitions for 
reconsideration of the lead time and phase-in schedule.
Alliance Petition
    The Alliance requests that the lead time for the beginning of the 
phase-in be changed to begin on September 1, 2015, and that the phase-
in percentages be changed to: 20 percent, 40 percent, 75 percent, 100 
percent (with use of credits) and all vehicles (without use of 
credits). For convenience, the petitioner's suggested phase-in 
percentages are shown in the following Table 6.

 Table 6--Comparison of Lead Times and Phase-In Schedules--Final Rule to
                                Alliance
------------------------------------------------------------------------
                                                         Alliance's
For vehicles manufactured on   Final rule's phase-    recommended lead
 or after the first date and     in percentages       time periods and
   before the second date                           phase-in percentages
------------------------------------------------------------------------
On or after September 1,      25 percent..........
 2013; before September 1,
 2014.
On or after September 1,      50 percent..........
 2014; before September 1,
 2015.
On or after September 1,      75 percent..........  20 percent.
 2015; before September 1,
 2016.
On or after September 1,      100 percent (credits  40 percent.
 2016; before September 1,     may be used).
 2017.
On or after September 1,      All vehicles,
 2017.                         without use of
                               credits.
On or after September 1,                            75 percent.
 2017; before September 1,
 2018.
On or after September 1,                            100 percent (credits
 2018; before September 1,                           may be used).
 2019.
On or after September 1,                            All vehicles,
 2019.                                               without use of
                                                     credits.
------------------------------------------------------------------------

    The Alliance states that the final rule's lead time and phase-in 
schedule ``impose unreasonable and impractical burdens on vehicle 
manufacturers and have not been justified by the agency.'' Moreover, 
the Alliance believes that ``several substantive provisions added by 
the agency to the requirements proposed in the NPRM have created 
significant new compliance issues for manufacturers that warrant the 
full amount of time originally requested by the Alliance in its 
comments.'' In its comments on the NPRM, the Alliance asked for an 
additional year of lead time beyond what had been proposed in the NPRM 
and the allowance for the use of credits for one more year.
    The petitioner states that while it might have been true that the 
lowered test speed (20 km/h from 24 km/h) will require fewer changes to 
existing designs if all other provisions of the NPRM had remained the 
same, ``the final rule contains several other substantive changes'' 
from the NPRM that the petitioner believes are likely to require 
significant changes to existing designs and thus more time to 
implement. These changes are: rotating the headform under certain 
circumstances; new specifications describing features of the impactor; 
not allowing movable advanced (laminated) glazing during the 16 km/h 
test; and the increase of the coverage area behind the

[[Page 55141]]

rear row of seats (for 1- and 2-row vehicles) from 600 mm to 1,400 mm.
Agency Response
    We are denying the Alliance's petition for reconsideration of this 
issue. We are not convinced that the Alliance's information justifies 
delaying the compliance dates of the final rule as the petitioner 
suggests. The compliance dates were adopted to achieve the safety 
benefits \6\ of the final rule as quickly as practicable, while 
balancing the costs and burdens of the regulation.
---------------------------------------------------------------------------

    \6\ 373 fatalities and 476 serious injuries saved annually when 
all covered vehicles meet FMVSS No. 226.
---------------------------------------------------------------------------

    The final rule provided over two and one-half years of lead time 
before the phase-in begins. In the Final Regulatory Impact Analysis, 
NHTSA estimated that 55 percent of the affected vehicle fleet in model 
year 2011 would have voluntarily installed ejection mitigation side 
curtain air bags. We believe that the changes that have to be made to 
these existing ejection mitigation air bag systems to meet FMVSS No. 
226, described below, can be made well within the timeframe allotted by 
the final rule. Manufacturers will have had over two and one-half years 
to certify to the standard by September 1, 2013 and to begin building 
credits for early compliance.
    The final rule reduced the impact speed of the high speed test 
considerably, from 24 km/h to 20 km/h. The final rule's high speed test 
reduced the impact energy by 31 percent [((24)\2\-(20)\2\)/(24)\2\]. As 
we showed in Table 22 of the final rule preamble, for the new impactor 
the average reduction in displacement between the 24 km/h and 20 km/h 
tests, across all tested vehicles and impact locations, was 38 mm. This 
represents an average displacement reduction of 29 percent.
    Vehicles that did not pass the displacement limit in a high speed 
test of 24 km/h are more likely to pass when the impactor speed is 20 
km/h. To illustrate this phenomenon, the final rule referred to a test 
of a MY 2007 Mazda CX 9 (76 FR at 3292) to show that fewer changes will 
be needed to existing designs to meet the final rule's requirements. In 
the final rule preamble, the agency referred to test data which showed 
that the MY 2007 Mazda CX 9, which could not pass the performance test 
of the final rule when tested at the 24 km/h impact speed, was able to 
pass when tested at 20 km/h without modification of the vehicle.
    In objecting to use of this example, the Alliance first states 
that, ``because of the change to the targeting procedure in the Final 
Rule, NHTSA cannot legitimately state that the CX-9 fully complies'' 
since, the petitioner argues, NHTSA only evaluated the compliance of 
the first and second row side daylight openings, and did not test the 
third row side daylight opening. Second, the petitioner states that 
even if the statement were accurate, ``the fact that one vehicle model 
can comply with the requirements in a standard does not mean that the 
entire fleet can be brought into compliance in a relatively short time, 
or that the phase-in percentages can be increased.''
    In response to the first point, after receiving the petition we 
tested the third row window with the results shown in Table 7. We found 
that this target location easily passed both the high speed impact test 
and the low speed impact test. The target was rotated 90 degrees 
(horizontal).

    Table 7--Mazda CX-9, 3rd Row 90 Deg. Target Rotation (Horizontal)
------------------------------------------------------------------------
                                                              Maximum
                          Test                             displacement
                                                               (mm)
------------------------------------------------------------------------
20 km/h-1.5 sec.........................................            31.8
16 km/h-6 sec...........................................            -7.1
------------------------------------------------------------------------

    As to the second point, the CX-9's meeting the requirements of 
FMVSS No. 226 affirmatively demonstrates that a vehicle that previously 
did not meet a 24 km/h high speed test was able to meet a 20 km/h test. 
We believe that it is feasible for many more vehicles in addition to 
the CX-9 to meet the standard with little or no modification. We never 
surmised that ``the entire fleet'' is capable of being brought into 
compliance in a ``short time.'' However, the final rule's over two and 
one-half years of lead time, phase-in percentages, and additional year 
of credits provide over six and one-half years to manufacturers to test 
their vehicles and undertake the necessary modifications to meet the 
standard.
    Manufacturers have already begun informing NHTSA about vehicles in 
their fleet that they certify as meeting FMVSS No. 226. Every year, 
under its enforcement authority, the agency requests manufacturers to 
provide information about the standards to which each make/model is 
certified, as well as the anticipated production levels for each make/
model. We have analyzed these data with regard to FMVSS No. 226. For 
2012 model year vehicles, only about 1 percent was projected to meet 
FMVSS No. 226. For the 2013 model year (some of these vehicles are 
actually early 2014 models that will be available in 2013), the 
estimated percentage of the fleet certified to FMVSS No. 226 increased 
to 12 percent. This remarkable increase in fleet conformance to FMVSS 
No. 226 since the publication of the final rule, in just one model 
year, shows that manufacturers have been able to make a substantial 
increase in the percentage of certified vehicles with relatively swift 
changes to existing vehicle designs or possibly with no changes at all. 
This jump in projected vehicle certification indicates that, for some 
considerable segment of the vehicle population, the changes necessary 
to meet FMVSS No. 226 were able to be expeditiously accomplished. To 
us, this indicates that the changes needed to meet FMVSS No. 226 are 
manageable within the lead time and phase-in schedule of the final 
rule.
    Moreover, this increase in early certification of vehicles allows 
manufacturers to accrue advanced credits toward future required 
certification levels at a rapid pace. Certainly, there will be make/
models of vehicles which will require greater effort and time to 
achieve compliance. For those vehicles, the accelerated acquisition of 
credits will give manufacturers more flexibility to plan and achieve 
the necessary changes.
    We recognize that various changes may have to be made to some 
existing ejection mitigation side curtain air bag systems to meet the 
standard. We provided a four-year phase-in period to account for this 
and to provide time for manufacturers to install ejection mitigation 
countermeasures in conformance with the standard. However, the 
adjustments to existing systems do not appear to be extensive enough to 
warrant putting off the beginning of the phase-in period to more than 
four and one-half years after publication of the final rule as the 
Alliance suggests, particularly when the high speed test was reduced in 
impact energy by 31 percent, a significant amount.
    The Alliance argues that target rotation can offset any reduction 
in excursion due to the reduction in test speed from 24 km/h to 20 km/
h. It points to displacements obtained in 20 km/h tests with the old 
impactor (at vertical target ``A5'' \7\), and estimates displacements 
that the petitioner thinks would have been obtained with the new 
impactor at that target (the petitioner added 18 mm to the value 
obtained with the old impactor). Next, the petitioner compares these 
estimated vertical A5

[[Page 55142]]

displacement values (associated with tests using the new impactor) with 
displacement values obtained at A2 and A3 horizontal impacts with the 
new impactor.
---------------------------------------------------------------------------

    \7\ The petitioner states that A5 is the target located between 
A1 and A4.
---------------------------------------------------------------------------

    We have evaluated the petitioner's arguments, but cannot agree with 
them. First, the Alliance assumed that 18 mm should be added to all 
test results to compensate for the lower friction of the new impactor, 
which we believe is unfounded. Although displacements will likely 
increase in tests with the new impactor due to the lower friction of 
the new impactor compared to the old impactor, it is unreasonable to 
add 18 mm across the board to the values obtained in tests with the old 
impactor. The 18 mm value referenced in the final rule preamble is an 
average derived from all three test speeds on three different vehicles. 
It ranges from a 69 mm increase to a 13 mm decrease. In other words, 
the relationship between the old and new impactor results is vehicle- 
and test-dependent, and there is not a rationale basis for assuming 
there is an equivalence factor of 18 mm that can be applied 
universally.
    Second, it does not appear appropriate to compare vertical A5 
impacts to displacement values obtained from a horizontal A3 impact, 
which is near the header, and a horizontal A2 impact, which is near the 
bottom of the curtain. Ejection mitigation side curtain air bags have 
different challenges in limiting displacement of the headform at the 
top, middle, and bottom of the curtain. Differences in displacement 
values obtained in tests at the different locations cannot be deemed to 
be due to a single factor, i.e., target orientation.
    The Alliance states that rotating the headform and targets by 90 
degrees to a horizontal orientation ``will affect the targeting for a 
large number of vehicles.'' We agree that for some vehicles, coverage 
of some daylight openings will need to be increased to account for 
additional impact locations, or some daylight openings may be newly 
subject to the standard since they did not have a target with the 
headform oriented vertically, but do have a target with the headform 
horizontal. From a safety and SAFETEA-LU perspective this is a positive 
outcome, since it will serve to reduce the potential for partial or 
complete vehicle ejection. The petitioner does not provide data to 
support its assertion that the requirements are unreasonable or 
impracticable.
    The petitioner provides no information substantiating the claim 
that its members are unduly burdened because various small cars, 
midsize cars and crossovers will have additional targets. We recognize 
that manufacturers will have to reassess some daylight openings to see 
if new targets can be identified that were not subject to ejection 
mitigation requirements when the impactor was oriented solely 
vertically. However, we believe that most vehicles have an ejection 
mitigation system to begin with, so orienting the impactor horizontally 
may just mean that the air bags need to be modified to provide 
additional daylight opening coverage and perhaps with modification to 
other aspects of the overall system. The major elements of an ejection 
mitigation side curtain air bag system, i.e., the design and 
installation of the curtain, inflator hardware, tethers, and rollover 
sensor, are already in place in most vehicles. For most vehicles, only 
adjustments will be needed to their systems. For those vehicles that do 
not have an ejection mitigation system, the lead time and phase-in 
schedule and use of credits will provide manufacturers flexibility in 
planning for their implementation.
    Further, even if horizontal impacts and use of the new impactor 
will slightly increase headform excursion, the petitioner provides no 
information that show that existing curtains cannot be made to comply 
within the final rule's implementation schedule. For a curtain that 
displays increased displacements resulting from rotating the targets 
and/or using the new impactor, generally these displacements could be 
addressed by widening the curtain or slightly increasing inflation 
pressure. These changes are capable of being implemented within the 
schedule of the final rule, as opposed to more fundamental changes to 
the system that would have been needed to sufficiently manage the 
energy of the 24 km/h impact speed test.
    We recognize that manufacturers will need time to test their 
vehicles to certify the ejection mitigation systems using the new 
impactor. The over two and one-half years of lead time provides 
sufficient time to test vehicles and modify them as needed. We see no 
basis for extending this lead time to over four and one-half years, as 
the petitioner suggests. The increasing number of vehicles certified 
with ejection mitigation side curtain air bags meeting FMVSS No. 226 is 
a testament to the availability and practicability of designs meeting 
the standard.
    Further, we note that the FMVSS No. 226 test is a component test 
that does not involve full-scale vehicle crash testing. As such, 
countermeasure assessment and certification testing should be easier 
and faster to conduct compared to a standard involving a full-scale 
vehicle crash test. Modifications to existing ejection mitigation side 
curtain air bags can be assessed relatively quickly to see if the 
changes enable the vehicle to meet FMVSS No. 226. The notable increase 
in the percentage of the new vehicle fleet that are or will be 
certified to FMVSS No. 226 in one year--from 1 percent (model year 
2012) to 12 percent (model year 2013)--also signifies that 
manufacturers are able to evaluate vehicle designs swiftly and 
efficiently.
    On another point, the Alliance points to the agency's decision 
specifying that the low speed (16 km/h) impact test, conducted at 6 
seconds after deployment of the ejection mitigation side curtain air 
bag, must be performed without the use of advanced glazing for movable 
windows. The Alliance states that ``by precluding the use of advanced 
glazing as a countermeasure for compliance purposes, NHTSA has again 
increased the compliance challenge for many vehicles.''
    In response, we are not persuaded by this point. From a practical 
point of view there was no increased ``compliance challenge'' that 
warrants the requested delay in compliance dates. To date, very few 
manufacturers have used advanced (laminated) glazing in movable window 
applications as an ejection countermeasure. We do not believe this will 
change significantly in the future due to added cost and the ability to 
meet the test requirements with side curtain air bags alone. 
Furthermore, the decision to which the Alliance refers did not affect 
manufacturers that want to use advanced glazing in movable windows to 
supplement an ejection mitigation side curtain air bag system in the 
high speed (20 km/h) impact test. For those manufacturers using 
advanced glazing in movable windows, the high speed (20 km/h) impact 
test will still be performed with the glazing (pre-broken) in place. 
Further, the decision does not affect manufacturers that want to use 
advanced glazing in fixed widow applications. The petitioner's argument 
that the change influences the ability to meet the lead time and phase-
in requirements of the final rule has not been substantiated.
    The last change made by the final rule that the Alliance cites is 
the increase of the coverage area behind the last row of seats (for one 
and two row vehicles) from 600 mm behind the seating reference point 
(SgRP) (NPRM) to 1,400 mm behind the SgRP (final rule). The Alliance 
objects to the increase and petitions for it to be changed back to 600 
mm. (We respond to this portion of the

[[Page 55143]]

petition in a later section of this preamble.) The petitioner states 
that extending the coverage area to 1,400 mm behind the SgRP means that 
manufacturers will have to redesign the entire side air bag system, and 
assess effects relating to matters such as air bag volume, air bag 
deployment timing, and protection under FMVSS No. 214 and No. 201. The 
Alliance states that, if NHTSA declines to reconsider the change, 
``[The agency] needs to recognize the added impact that the change has 
on the ability of manufacturers to satisfy the final rule's phase-in 
schedule.''
    We are not convinced that extending the daylight opening coverage 
in the area behind the last row (for one and two row vehicles) from 600 
mm to 1,400 mm will require the inordinate delay in the compliance 
dates. As noted in the final rule preamble (76 FR at 3263), vehicles 
are already being produced that have side air bag curtains covering 
rows 1, 2 and 3 row windows. The designs typically use a single curtain 
tethered at the A- and D-pillars. The petitioner provided no data as to 
the number of vehicles that would be affected by the change, or 
affected to the extent that necessitates a major redesign, or whose 
production problems cannot be relieved by way of credits. Further, 
given that there already are designs that provide three rows of 
coverage, manufacturers are familiar with and have availed themselves 
of air bag systems that extend coverage further into the cargo area. 
The petitioner has not substantiated its claim that there are technical 
challenges in extending coverage to the cargo area that cannot be met 
in the schedule provided by the final rule.
    For the reasons provided above, the Alliance's petition is denied.
Reconsideration Request--Mercedes-Benz Petition
    In its petition for reconsideration, Mercedes-Benz states that it 
supports the phase-in suggested by the Alliance and additionally 
petitions with regard to a matter related to Mercedes-Benz's Sprinter 
model line. Mercedes-Benz states that the final rule does not 
adequately address the practicability issues associated with large, 
heavy vehicles (GVWR greater than 3,856 kg (8,500 lb) that incorporate 
expansive daylight openings. The petitioner states that the vehicles 
``are typically exempt from the FMVSS-214 side impact barrier 
requirements and therefore pre-FMVSS-226 plans did not necessarily 
include side impact countermeasures (airbags [sic] and sensing) for 
rear seating rows. Therefore, the application of these new requirements 
imposes a level of burden which was not addressed in the NPRM or in the 
subsequent Final Rule.'' Mercedes-Benz states that the Sprinter 
platform is scheduled for ``renewal'' during the timeframe that, under 
the final rule, all vehicles must comply with FMVSS No. 226 without the 
use of credits. The petitioner states: ``Given the scope of design 
change required to bring this platform into full compliance, the most 
practical phase-in is one which allows development resources be focused 
entirely on the new platform rather than extended to the parallel 
development of two platforms. The Alliance proposal provides this 
flexibility by allowing the use of credits prior to September 1, 
2019.'' Alternatively, the petitioner asks that the phase-in allow the 
use of accumulated credits for vehicles with a GVWR of 3,856 kg (8,500 
lb) or more until September 1, 2018.
    Mercedes-Benz states that the varied derivatives of the Sprinter 
platform will require significant redesign to meet the requirements of 
FMVSS No. 226, including air bag inflators, air bag cushions, and roll 
detection sensing. To illustrate, the petitioner refers to a ``high-
roof variant of the Sprinter platform,'' which incorporates a large 
sliding door. Mercedes-Benz states that an inflatable restraint 
countermeasure would have to extend from the roof to the beltline (a 
vertical dimension of approximately 1,100 mm (43 in)), and also satisfy 
deployment timing and out-of-position performance requirements. ``With 
regard to our product cycle concern, it is suggested that a development 
effort of this scope should be focused entirely upon the next 
generation platform.''
Agency Response
    We deny Mercedes-Benz's request for an extension of the phase-in 
for an additional year.\8\ We understand that this denial may cause the 
petitioner to modify its plans related to the Sprinter passenger van 
variant. In the final rule preamble, we acknowledged that the final 
rule phase-in schedule ``may result in some manufacturers needing to 
reassess and modify their plans.'' 76 FR at 3292. However, we 
determined that ``the two year lead time and the four-year phase-in 
correctly balances the manufacturers' needs for flexibility and the 
needs of the agency to limit the length of time for the phase-in to a 
reasonable period and achieve the safety benefits of the final rule as 
quickly as practicable.'' Id.
---------------------------------------------------------------------------

    \8\ We have explained above our reasons for denying the 
Alliance's petition for reconsideration of this issue.
---------------------------------------------------------------------------

    Mercedes-Benz states that heavy vehicles (GVWR greater than 3,856 
kg (8,500 lb)) ``are typically exempt from the FMVSS-214 side impact 
barrier requirements and therefore pre-FMVSS-226 plans did not 
necessarily include side impact countermeasures (airbags [sic] and 
sensing) for rear seating rows. Therefore, the application of these new 
requirements imposes a level of burden which was not addressed in the 
NPRM or in the subsequent Final Rule.''
    The agency believes that manufacturers have had sufficient time to 
plan for the implementation of ejection mitigation side curtain air 
bags in the subject vehicles. Although the subject vehicles (GVWR 
greater than 3,856 kg (8,500 lb)) are excluded from FMVSS No. 214's 
moving deformable barrier requirements, Standard No. 214's pole test 
requirements apply to such vehicles manufactured on or after September 
1, 2015. (We are currently in the middle of the phase-in of the pole 
test requirements. The phase-in for most light vehicles began September 
1, 2012 and ends September 1, 2014.) To meet the pole test, the 
vehicles will have side air bags and sensors.
    As to what type of side air bag system, when NHTSA issued the FMVSS 
No. 214 pole test final rule in 2007, we noted that the ejection 
mitigation rulemaking was imminent (72 FR 51908, 51932-51933; September 
11, 2007). We believed that manufacturers would plan for the ejection 
mitigation rulemaking requirements by considering side curtain air bags 
covering the front and rear rows. NHTSA stated in that 2007 final rule:

    We believe that manufacturers will increasingly install air 
curtains in their vehicles because air curtains can potentially be 
used as a countermeasure in preventing ejection in rollovers. 
(``NHTSA Vehicle Safety Rulemaking Priorities and Supporting 
Research: 2003-2006,'' July 2003, Docket 15505.) NHTSA has announced 
that it is developing a proposal for an ejection mitigation 
containment requirement.\9\ NHTSA believes that side curtains 
installed pursuant to FMVSS No. 214's pole test could readily be 
developed to satisfy the desired properties of a countermeasure. 
(NHTSA report ``Initiatives to Address the Mitigation of 
Rollovers,'' supra.) We believe that manufacturers will install 
curtains in increasing numbers of vehicles in response to this 
[FMVSS No. 214] final rule, the voluntary commitment, and in 
anticipation

[[Page 55144]]

of NHTSA's ejection mitigation rulemaking. The curtains will provide 
head protection to front and rear seat occupants in side impacts. 72 
FR at 51933.
---------------------------------------------------------------------------

    \9\ Additionally, Sec. 10301 of SAFETEA-LU requires the 
Secretary to issue by October 1, 2009 an ejection mitigation final 
rule reducing complete and partial ejections of occupants from 
outboard seating positions (49 U.S.C. 30128(c)(1)). [Footnote in 
text.]

    As shown above, the vehicles to which Mercedes-Benz refers will be 
required to have side air bag technology by 2015, and manufacturers are 
likely already designing for implementation of the technology. The 
petitioner has had sufficient time to implement design changes to this 
air bag technology to meet the ejection mitigation requirements of the 
January 19, 2011 final rule.
    As far as challenges with respect to sensor requirements, we note 
that the supplemental information provided by the petitioner indicates 
that relief was only needed for the passenger van version of the 
Sprinter. We understand that Mercedes-Benz would be able to certify 
compliance of the cargo and chassis cab versions. This indicates that a 
sensor and algorithm to deploy the first row window curtain will be 
developed, which could also be used for the passenger van. We note also 
that the agency has no specific performance requirements for the 
deployment sensor, so manufacturers have great latitude in this area.
    Moreover, it appears that there are ways that the petitioner's 
duplication of effort developing two platforms can be reduced. For 
example, the rear windows adjacent to the second and higher rows appear 
to be fixed. As such, advanced glazing could be used to meet the 
requirements of both the high and low speed tests. With this 
countermeasure in place it may reduce or eliminate the need for side 
curtain air bags to cover these locations.
    Another option would be for Mercedes-Benz to introduce the new 
platform ahead of schedule. As Mercedes-Benz noted, the Sprinter 
Passenger Van (the variant of the Sprinter that Mercedes-Benz claims it 
needs more time to make compliant) only makes up 10 percent of the 
Sprinter production, which is a relatively small number of vehicles. 
Mercedes-Benz could avoid having to modify the current platform by 
advancing the production of the new platform of the Sprinter Passenger 
Van.
    We realize that Mercedes-Benz would like to avoid expending 
resources on the current Sprinter platform and would rather devote 
efforts solely to the new platform. Unfortunately, there are costs 
associated with any implementation schedule that is shorter than that 
of a manufacturer. We seek to develop a lead time and phase-in schedule 
that balances manufacturers' desires and the safety benefits to the 
extent possible. Because of the relief provided in the final rule by 
allowing an additional year for use of credits, Mercedes-Benz will be 
able to produce vehicles until September 1, 2017, just as it would have 
under the NPRM. We believe we have achieved the sought-after balance 
with the final rule and are not convinced that the petitioner's 
information and efforts warrant delaying that schedule.
Reconsideration Request--Porsche Petition
    Porsche petitioned for reconsideration of the implementation 
schedule, requesting additional time to achieve compliance with the 
standard. The petitioner asks for more time ``in consideration of the 
small number of Porsche vehicles that will not be redesigned during the 
timeframe established in the final rule.'' Porsche requests that full 
compliance (without the use of credits) does not become mandatory until 
September 1, 2019. The petitioner states that for Porsche, the 
amendment would impact no more than 4,000 to 5,000 vehicles annually 
during the September 1, 2017 to August 31, 2019 timeframe. ``Compared 
to the twelve million-plus light duty vehicles sold annually in the 
U.S., this is a relatively small number of vehicles and in fact it 
constitutes less than a single day of sales by a large manufacturer. 
[Footnote omitted.]'' The petitioner states that--

the request will ultimately have no net negative impact on safety 
because utilizing the amendment sought hinges on the ability to 
introduce fully compliant vehicles to market early and generate 
early compliance credits that can be used to offset the small number 
of vehicles affected. Our request is that NHTSA simply provide us an 
opportunity to use early compliance credits for a slightly longer 
period of time than what would be permitted by the rule issued 
January 19, 2011. . .. [T]he new ejection mitigation requirements 
will require changes to the body-in-white which, in the case of our 
sports cars, means that compliance cannot be achieved until the 
vehicle undergoes a major redesign. Absent this major redesign, we 
will be required to bring production for affected vehicles to a 
premature halt.

    Porsche asks, if we do not agree to adopt the schedule suggested by 
the Alliance, that NHTSA consider adopting a provision ``to provide 
manufacturers with additional compliance flexibility to address a small 
number of vehicles that may be uniquely challenged.'' The provision 
would be applicable to only a limited number of vehicles for a two-year 
timeframe, and would only be available to manufacturers that introduced 
fully compliant technology early and in advance of the compliance 
deadlines contained in the final rule.
Agency Response
    We deny Porsche's request for an extension of the lead time and 
phase-in schedule.
    We understand that manufacturers, such as Porsche, might have 
unique problems depending on factors such as organizational resources, 
product mix, and product life cycle. The final rule provided relief to 
those manufacturers by allowing an additional year for use of credits. 
We believe that the two and one half-years lead time and the four-year 
phase-in correctly balances the various needs of manufacturers, and the 
needs of the agency to limit the length of time for the phase-in to a 
reasonable period and achieve the safety benefits of the final rule as 
quickly as practicable. Because of the relief provided in the final 
rule--the additional year for use of credits--Porsche will be able to 
produce vehicles until September 1, 2017, just as would have been the 
case under the NPRM.
    We do not necessarily agree with Porsche that its requested 
amendment ``will ultimately have no net negative impact on safety.'' 
Porsche argues that there will be no negative safety impact because 
early compliance credits ``can be used to offset the small number of 
vehicles affected.''
    NHTSA has determined that two and one half-years of lead time and a 
definite phase-in schedule would provide the needed time for 
manufacturers to install ejection mitigation countermeasures to address 
the dire rollover safety problem as quickly as reasonably possible. 
Under the final rule, a vehicle manufactured or after September 1, 2017 
will have a rollover ejection countermeasure. All persons purchasing a 
vehicle manufactured on or after September 1, 2017 will be assured that 
the vehicle offers the safety provided by FMVSS No. 226.
    Under the petitioner's scenario, no such assurance can be given. 
There will be purchasers, many of them, who will buy a new vehicle 
which will not provide ejection mitigation protection while an 
identical vehicle--manufactured on the same day--will, even when it is 
practicable for both vehicles to provide the protection. Such an 
outcome introduces an element of ``buyer beware'' in the marketplace, 
which we are not prepared at this time to accept when it comes to 
meeting the FMVSSs.
    This situation can be distinguished from a phase-in period when 
credits accrue. In that situation, the agency has determined that the 
date has not yet been attained on which compliance

[[Page 55145]]

with a standard is practicable across the fleet. The use of credits 
provides an incentive to manufacturers to bring more compliant vehicles 
to market early than that achievable across the fleet.
    Porsche recommends an approach that will give it relief from 
problems resulting from a business model it uses relating to the 
product life cycle of its vehicles. We do not find its arguments 
sufficiently compelling to extend the certification date two years. 
Thus, the petition is denied. We note that Porsche's requested 
amendment departs a bit from the scope of the rulemaking. The request 
has policy implications that would be more suitable for deliberation in 
a separate rulemaking, rather than in this response to petitions for 
reconsideration.

b. Applicability

1. Vehicles With Partitions With Doors
    S5.2.1.2 of FMVSS No. 226 has procedures for locating target 
locations in a daylight opening. The procedures define the testable 
area of the vehicle. Generally speaking, the rearmost limit of the 
testable area is determined by identifying the transverse vehicle plane 
located at the following distances behind the seating reference point 
(SgRP):

--For a vehicle with fewer than 3 rows: 1,400 mm behind the rearmost 
SgRP;
--For a vehicle with 3 or more rows: 600 mm behind the 3rd row SgRP.

    The final rule made an allowance for vehicles with partitions or 
bulkheads (we will use ``partition'' to refer to both terms) that 
separate areas of the vehicle with designated seating positions (namely 
the driver's area) from areas of the vehicle without designated seating 
positions (e.g., a rear cargo area). Vehicles with partitions--i.e., 
the vehicles themselves--generally were not excluded from the standard 
\10\; rather, only the side daylight openings rearward of the partition 
were excluded from testing, provided that there must not be seating 
positions rearward of the partition. For such vehicles with a partition 
separating a seating area from a non-seating area, S5.2.1.2(c) of the 
standard has a provision regarding how impact target locations are 
determined. Under S5.2.1.2(c), if a vehicle has a fixed transverse 
partition through which there is no occupant access and behind which 
there are no designated seating positions, the rearmost limit of the 
offset line is located 25 mm in front of the partition rather than 
1,400 mm behind the rearmost seating reference point, assuming the 
former is positioned more forward than the latter. We made this 
accommodation after deciding that, if there is a permanent partition 
that separates areas of the vehicle with designated seating positions 
from areas that do not have designated seating positions, the 
likelihood of an occupant being ejected from an opening in an area 
without a designated seating position is low. However, the final rule 
specified that the partition must not provide access for an occupant to 
pass through it; i.e., a partition must not have a door separating the 
occupant space from non-occupant space. 76 FR at 3290.
---------------------------------------------------------------------------

    \10\ Certain vehicles with partitions were excluded from the 
standard. The vehicles were: Law enforcement vehicles, correctional 
institution vehicles, taxis and limousines, provided that the 
vehicle was produced by more than one manufacturer or by an alterer 
(S2). We are not referring to that exclusion in this discussion.
---------------------------------------------------------------------------

Reconsideration Request
    NTEA was supportive of the testing requirements in S5.2.1.2(c), but 
states that ``NHTSA's limitation of that accommodation--prohibiting a 
door in the partition--makes it of little value in the vocational truck 
and van marketplace of today and the future.'' The petitioner asks 
NHTSA to reconsider this decision and provide the exemption even when 
there is a door in the partition. NTEA claims that many partitions 
installed on vocational vehicles have doors and that ``[i]n the future 
we expect that partitions with doors will be the norm. Those doors are 
and would be latched in compliance with FMVSS [No.] 206.'' The 
petitioner suggests that the agency has to provide data demonstrating 
that occupants are passing through the doors in the partitions and are 
being ejected through a side window ``with some significant 
frequency.'' The petitioner also disputes certain statements in the 
final rule preamble concerning the suitability of Incomplete Vehicle 
Documents (IVDs) and the pass-through certification process for final-
stage manufacturers and alterers.
Agency Response
    Rollover crashes are a significant and a particularly deadly safety 
problem. As a crash type, rollovers are second only to frontal crashes 
as a source of fatalities in light vehicles. Data from 10 years of 
Fatal Analysis Reporting System (FARS) files (2000-2009) indicate that 
frontal crash fatalities have averaged about 11,600 per year, while 
rollover fatalities have averaged 10,037 per year. Ejection is a major 
cause of death and injury in rollover crashes. According to 2000-2009 
FARS data, on average 47 percent of the occupants killed in rollovers 
were completely ejected from their vehicle. A double-pair comparison 
from 2000-2009 FARS data show that avoiding complete ejection is 
associated with a 64 percent decrease in the risk of death. FARS data 
does not subtract out multi-stage work trucks, and the FARS data above 
is inclusive of all vehicles.
    The January 19, 2011 final rule will substantially reduce the risk 
of ejection in rollovers. The final rule enhances the side curtain air 
bag systems that are now being installed, ensuring that the curtain 
systems are made larger to cover more of the window opening, improved 
to deploy in rollovers in addition to side impacts, made more robust to 
remain inflated longer and sufficiently strong not only to cushion an 
impact but to keep the occupant from being fully or partially ejected 
through the window as well. We estimate that the ejection mitigation 
rule will save 373 lives and prevent 476 serious injuries per year. 
Some of these lives saved and injuries prevented will come in vehicles 
with a GVWR between 2,722 kg and 4,536 kg (6,001 lb and 10,000 lb).
    In addition, the January 2011 final rule responds to Sec.  10301 of 
SAFETEA-LU, which required the Secretary of Transportation to issue an 
ejection mitigation final rule reducing complete and partial ejections 
of occupants from outboard seating positions. Section 10301, paragraph 
(a), directed the Secretary to initiate rulemaking proceedings for the 
purpose of establishing rules or standards that will reduce vehicle 
rollover crashes and mitigate deaths and injuries associated with such 
crashes for motor vehicles with a GVWR of not more than 4,536 kg 
(10,000 lb). Paragraph (c) directed the Secretary to initiate a 
rulemaking proceeding to establish performance standards to reduce 
complete and partial ejections of vehicle occupants from outboard 
seating positions and to issue a final rule by a specified date. (See 
49 U.S.C. Sec.  30128(a) and Sec.  30128(c)(1).
    In the January 2011 final rule, we excluded daylight openings 
rearward of the partition from the standard's testing requirements, if 
the partition does not have a door. We emphasize that we did not 
exclude partitioned vehicles themselves from the standard, we only 
excluded the daylight openings rearward of the partition (and only if 
there are no seating positions rearward of the partition) from certain 
testing requirements. This means that a partitioned work truck would 
need to meet the ejection mitigation side curtain air bag requirements 
of FMVSS No. 226 for the occupant cab of the vehicle.
    We did not exclude ``trucks with partitions'' outright from the 
standard in the January 2011 final rule. Under our

[[Page 55146]]

regulations implementing the Vehicle Safety Act, the work vehicles to 
which NTEA refers are ``trucks'' as defined in 49 CFR 571.3.\11\ It is 
appropriate to apply FMVSS No. 226 to trucks notwithstanding the 
presence of a partition, because a partition would not lessen the risk 
of the vehicles' rollover involvement or the risk of ejection to 
occupants forward of the partition. Work trucks must be driven and that 
driver deserves the same protection as if he or she were driving for 
personal use, for example, a similar pick-up truck or van. Since 
partitioned vehicles are not immune from rollover crashes and their 
occupants are not invulnerable to rollover ejection, we did not exclude 
``trucks with partitions'' outright from the standard.
---------------------------------------------------------------------------

    \11\ ``Truck'' is defined as a motor vehicle with motive power, 
except a trailer, designed primarily for the transportation of 
property or special purpose equipment. Some work vehicles could be 
classified as ``multipurpose passenger vehicles'' (MPVs) under 49 
CFR 571.3. This discussion refers to trucks but it is relevant to 
MPVs as well.
---------------------------------------------------------------------------

    However, NTEA did not seek a complete exclusion for work trucks 
from the requirements of FMVSS No. 226. Instead, its petition focused 
specifically on S5.2.12(c). In response to NTEA's petition for 
reconsideration, we have decided to grant the request to remove the 
qualification in S5.2.1.2(c) that there must not be a door in the 
partition. In the final rule, we were concerned that a door in a 
partition may be open during a rollover and may become an aperture 
through which an occupant could be thrown. However, the petitioner 
states that the doors in the partitions are designed to have latches. 
Thus, on reconsideration, we conclude that there is a fair likelihood 
that the partition door will be closed and latched, and that the 
latched door reduces the likelihood of ejection through the partition 
door. Granting the request gives final-stage and other manufacturers 
additional flexibility in meeting the requirements of FMVSS No. 226, 
without unreasonably reducing the safety of such vehicles.
    While we have granted NTEA's request for reconsideration, we do not 
agree with NTEA's generalized assessment regarding the availability of 
IVDs and pass-through certification.\12\ NTEA's petition for 
reconsideration states that final-stage manufacturers and alterers will 
not be able to use IVDs to pass through certification to the ejection 
mitigation standard. NTEA quotes from an IVD from an unidentified 
incomplete vehicle manufacturer regarding FMVSS No. 201, ``Occupant 
protection in interior impact.'' NTEA states that, based on this sample 
IVD, ``even a partition that is designed so as not to interfere with 
deployment of the OEM designed airbag [sic] system would be 
impermissible for pass-through compliance.''
---------------------------------------------------------------------------

    \12\ Over the years NTEA has repeatedly objected to the IVD 
process and pass-through certification in response to our rulemaking 
actions, and has done so again in its present petition, even though 
the objections do not seem related to its requested amendment 
regarding the partition door.
---------------------------------------------------------------------------

    By way of background, NTEA's petition for reconsideration of the 
FMVSS No. 226 final rule was filed prior to a 2013 decision from the 
U.S. Court of Appeals for the Sixth Circuit denying NTEA's petition for 
review of a NHTSA final rule promulgating FMVSS No. 216a, ``Roof crush 
resistance, Upgraded standard.'' National Truck Equipment Association 
v. National Highway Traffic Safety Administration, 711 F.3d 662. 
Similar to this rule, NHTSA promulgated FMVSS No. 216a at the direction 
of Congress through SAFETEA-LU. The agency issued FMVSS No. 216a to 
include multi-stage vehicles with a GVWR up to 4,536 kg (10,000 lb) 
built on either a chassis cab or an incomplete vehicle with a full 
exterior van body. NTEA wanted to have final-stage manufacturers 
excluded from FMVSS No. 216a and filed a petition for review with the 
Sixth Circuit challenging NHTSA's adoption of FMVSS No. 216a.
    The Sixth Circuit denied NTEA's petition, finding, among other 
things, that NHTSA conducted the rulemaking proceedings promulgating 
FMVSS No. 216a in a sufficiently thorough manner, and that pass-through 
certification, which, the Court acknowledged, was envisioned by 
Congress, may be relied on by final-stage manufacturers and alterers to 
demonstrate compliance. The Court found that the 216a standard is 
practicable within the meaning of the Vehicle Safety Act--

    because it provides final-stage manufacturers and alterers with 
reasonable means of demonstrating compliance. To conclude otherwise 
would disregard Congress's instruction to put a thumb on the scale 
for safety in considering the substantive limitations of the Act. 
See Public Citizen, Inc., v. Mineta, 30 F.3d 39, 58 (2d Cir. 2003). 
After all, Congress intended for manufacturers to adjust to the 
regulatory demands of the industry rather than the other way around. 
Cf. Chrysler, 472 F.2d at 671 (describing the Safety Act as 
technology-forcing legislation).

    711 F.3d at 673-674.
    We have analyzed NTEA's present petition for reconsideration of 
FMVSS No. 226 and do not agree with NTEA's generalized assertions 
regarding the availability of IVDs and pass-through certification. 
Vehicles subject to the standard can be certified using reasonable 
means such as IVDs and pass-through certification, among others, 
consistent with the intent of SAFETEA-LU to reduce complete and partial 
ejections from vehicles with a GVWR less than 4,536 kg (10,000 lb).\13\ 
Based on the agency's understanding of the work truck industry, and the 
tailoring in this rule and petition, the agency believes that final-
stage manufacturers will be able to meet this new regulation.
---------------------------------------------------------------------------

    \13\ The final rule excludes vehicles with a ``modified roof'' 
from the standard. ``Modified roof'' means ``the replacement roof on 
a motor vehicle whose original roof has been removed, in part or in 
total.'' See S3, FMVSS No. 226. While not raised in the petitions, 
in reviewing this matter we believe the term should include a roof 
that has to be built over the driver's compartment in vehicles that 
did not have an original roof over the driver's compartment. Such 
vehicles are similar to vehicles whose original roof has been 
removed in part or in total since pass-through certification will 
not be available to final-stage manufacturers using incomplete 
vehicles that did not have an original roof over the driver's 
compartment.
---------------------------------------------------------------------------

    First, FMVSS No. 226 will not apply to over 90 percent of the 
vehicles produced by NTEA's members. NTEA's petition for 
reconsideration of FMVSS No. 226 states that the final-stage 
manufacturer is typically known as a ``distributor'' for NTEA 
membership purposes, as these companies are distributors for the body 
manufacturer. NTEA explains that as part of the companies' distributor 
function, the companies install the body or equipment on a chassis. 
NTEA states: ``Typically, the customer purchases a chassis through an 
authorized OEM dealership and decides upon the body and/or equipment 
that will be needed to fulfill the customer's needs.'' The final stage 
manufacturer/body distributor ``takes the chassis and completes the 
vehicle by installing the necessary body and equipment, sending the 
completed truck back to the dealership for customer delivery.'' Many of 
the work vehicles \14\ NTEA describes in its petition (``dump trucks, 
utility company vehicles, aerial trucks, fire trucks, ambulances, 
beverage delivery trucks, walk-in vans, digger derricks and snow 
removal vehicles'') are built on chassis-cabs. A chassis-cab is defined 
as ``an incomplete vehicle, with a completed occupant compartment, that 
requires only the addition of cargo-carrying, work-performing, or load-
bearing

[[Page 55147]]

components to perform its intended functions'' (49 CFR 567.3). This 
means that chassis-cabs are equivalent to similar pick-up trucks, minus 
the truck bed. Based on previous submissions from NTEA, NHTSA 
understands that the number of ``chassis and non-chassis cabs'' 
manufactured in the U.S. for calendar years 2007, 2008 and 2009 with a 
GVWR greater between 2,721 kg and 4,536 kg (6,000 lb and 10,000 lb) was 
only 8 percent of the vehicles produced by NTEA members.\15\ Moreover, 
NTEA fails to demonstrate that there will be an actual issue with its 
members manufacturing those vehicles. In fact, of the 8 percent of 
vehicles, the vast majority (67 percent) of the vehicles produced under 
4,536 kg (10,000 lb) GVWR are built on chassis-cabs. These chassis-cabs 
come with a completed occupant structure from large vehicle 
manufacturers such as Ford, GM, or Chrysler, and the final-stage 
manufacturer will be provided an IVD.
---------------------------------------------------------------------------

    \14\ Some of the vehicles listed are walk-in vans, which are 
excluded from FMVSS No. 226 (see S2 of the standard). Walk-in van is 
defined as ``a special cargo/mail delivery vehicle that only has a 
driver designated seating position. The vehicle has a sliding (or 
folding) side door and a roof clearance that enables a person of 
medium stature to enter the passenger compartment area in an upright 
position.'' (Definition in S3 of FMVSS No. 226.)
    \15\ See Declaration of Stephen Latin-Kasper, Docket No. NHTSA-
2009-0093-0022.
---------------------------------------------------------------------------

    Second, there is ample time for incomplete vehicle manufacturers to 
produce chassis-cabs with ejection mitigation side curtain air bag 
systems. Under the January 2011 final rule, FMVSS No. 226 does not 
apply to vehicles produced by final-stage manufacturers and alterers 
until September 1, 2018, which is a year longer than the time given to 
manufacturers of single-stage vehicles to achieve full compliance with 
the standard.\16\ The long 7\1/2\-year time period provided to final-
stage manufacturers and alterers provides the multistage manufacturing 
industry abundant opportunity to develop pass-through certification 
strategies, such as chassis-cabs that provide ejection mitigation side 
curtain air bag systems for the driver and front passenger side windows 
in the cab. Final-stage manufacturers can mount the work-performing 
equipment behind the completed cab without affecting the ejection 
mitigation side curtain air bags. There is no occupant space, no 
daylight opening through which an occupant can be ejected behind the 
chassis-cab of these work-performing vehicles--basically, there is 
nothing rear of the chassis-cab subject to FMVSS No. 226. The final-
stage manufacturer only has to complete the vehicle by attaching the 
work-performing equipment to the chassis behind the completed cab, 
follow the IVD, and pass through the certification to FMVSS No. 226.
---------------------------------------------------------------------------

    \16\ The final rule also exempts final-stage manufacturers and 
alterers from having to phase in their compliance with the standard, 
whereas single-stage manufacturers are subject to a phase-in.
---------------------------------------------------------------------------

    Third, vehicle manufacturers using non-chassis-cabs also have 
certification options available. NTEA reported that non-chassis-cabs 
comprised 33 percent of the vehicles rated in the GVWR range of 2,722 
kg to 4,536 kg (6,001 lb to 10,000 lb) in 2007, 2008 and 2009 (24,452 
out of 73,029). Id. Similar to chassis-cabs, other incomplete vehicles 
that have a completed occupant structure for the driver's compartment 
will come equipped with ejection mitigation side curtain air bags. Non-
chassis-cabs with a driver's compartment can readily be developed in 
that 7\1/2\-year period to achieve pass-through certification to FMVSS 
No. 226. For example, an incomplete vehicle configuration is wholly 
viable for van-based work vehicles or vehicles using cutaway chassis, 
with ejection mitigation side curtain air bags provided for the 
daylight openings adjacent to the driver's and right front passenger's 
seats. Partitions can be used to exclude areas of these vehicles from 
the standard's requirements.\17\ Alternatively, a final-stage 
manufacturer that also produces the truck body (``distributor'') could 
design the body to meet FMVSS No. 226 without use of partitions. We 
have designed this rule to apply where people sit with side windows. 
The body could be designed such that it does not have any side daylight 
openings (side windows) rearward of the driver's position, or if it has 
side daylight openings, none close enough to an occupant position such 
that the standard's testing requirements apply or none large enough to 
pass the FMVSS No. 226 headform. With such designs, there are no side 
daylight openings subject to FMVSS No. 226's testing requirements 
rearward of the 1st (driver's) row. Alternatively, if the distributor/
final-stage manufacturer would like to have side daylight openings 
rearward of the 1st row that would be subject to the standard, the 
distributor could design the body to have openings incorporating fixed 
advanced glazing that prevents passage of the FMVSS No. 226 headform. 
Such openings would not require side curtain air bag coverage. In 
short, final-stage manufacturers using a van-based or cutaway platform 
for work vehicles will be able to use the pass-through certification 
process and will have many options available to them when they use 
incomplete vehicles that have the FMVSS No. 226 system for the driver's 
and right front passenger's side windows.
---------------------------------------------------------------------------

    \17\ NTEA states in its petition that partitions with breakaway 
features or side clearance (accommodating ejection mitigation side 
curtain air bags) conflict with a Federal Motor Carrier Safety 
Administration (FMCSA) requirement (49 CFR 393.114(d)) for 
``penetration resistance'' that applies to vehicles over 4,536 kg 
(10,000 lb) GVWR. We do not agree that there is a conflict. We note 
first that the petitioner's argument does not seem related to its 
petition for reconsideration regarding the partition door. Second, 
the FMCSA requirement does not apply to work vehicles with a GVWR 
less than or equal to 4,536 kg (10,000 lb). Vehicles with a GVWR 
less than or equal to 4,536 kg (10,000 lb) are required to provide 
ejection mitigation protection under FMVSS No. 226 and SAFETEA-LU. 
Third, contrary to the NTEA assertion, the FMCSA requirement (49 CFR 
393.114(d)) does not require vehicles to have partitions with 
penetration resistance, even for vehicles with a GVWR over 4,536 kg 
(10,000 lb). Instead, it specifies requirements that front end 
structures must meet if they are to be used as part of a cargo 
securement system. Last, final-stage manufacturers could use an 
incomplete vehicle configuration that has ejection mitigation side 
curtain air bags for the daylight openings adjacent to the front 
seats and complete the vehicle such that it does not have side 
daylight openings rearward of the front seats. This design can 
accommodate installation of a partition that is flush against the 
sides of the vehicle. As the Sixth Circuit observed in NTEA v. 
NHTSA, supra, the final-stage manufacturer can communicate to 
dealers of incomplete vehicles and to customers that they will only 
work on incomplete vehicles that have accommodating IVDs.
---------------------------------------------------------------------------

    Fourth, the standard itself only will apply in certain situations, 
and NTEA fails to provide details on how its members' later-stage 
manufacturing will be problematic. NHTSA has already applied FMVSS No. 
226 only to side daylight openings within a certain distance of 
occupants' seats, has excluded from the standard's requirements side 
openings (windows) in a non-occupant area rear of the driver if there 
is a partition, has excluded side openings even if the partition has a 
door, has excluded walk-in vans and modified roof vehicles, and has 
designed the standard so that nothing in the work-performing area rear 
of a chassis-cab is subject to the standard. Given the design of this 
standard, NHTSA fails to see evidence of an actual problem.
    NTEA believes that final-stage manufacturers will not be able to 
pass through certification to FMVSS No. 226 if they install a partition 
because an IVD to which NTEA refers limits the modifications a final-
stage manufacturer may make to pass through certification to FMVSS No. 
201.\18\ We do not agree with the petitioner's assertions. IVDs 
pertaining to FMVSS No. 201 have been

[[Page 55148]]

workable in practice, as FMVSS No. 201 has applied to vehicles produced 
by final-stage manufacturers and alterers since September 1, 2006. NTEA 
does not provide one single instance of a final-stage manufacturer or 
alterer that has been unable to produce vehicles meeting the 201 
standard. Further, the quoted IVD's limits on the modifications that 
may be made with regard to FMVSS No. 201 are not difficult for a final-
stage manufacturer to follow to pass through the certification to FMVSS 
No. 201.\19\ If this is an issue, NTEA should be able to provide 
examples. Final-stage manufacturers and alterers have to avoid 
modifying the components within the head protection zone regulated by 
FMVSS No. 201 or adding items to components in the zone.
---------------------------------------------------------------------------

    \18\ The IVD states that the incomplete vehicle will conform to 
[FMVSS] No. 201, Section 6 (``Requirements for Upper Interior 
Components''), if in the process of completing the vehicle ``none of 
the following components, as provided by the incomplete vehicle 
manufacturer, are removed, relocated, altered, or modified either 
physically or chemically'': A, B, rear, or other pillar and trim, 
assist handles, seat belt ``D''-rings/adjusters and ``D''-ring 
covers; front or rear header and trim, side rails and trim; upper 
roof and trim.
    \19\ To pass-through the certification to FMVSS No. 201, a 
final-stage manufacturer or alterer simply has to avoid modifying 
the components of the incomplete vehicle that are within the head 
protection zone regulated by FMVSS No. 201 and refrain from 
installing components in the zone. For altered vehicles and vehicles 
manufactured in two or more stages, the zone ends, if there is no 
partition, at a vertical plane 300 mm behind the seating reference 
point of the driver's designated seating position. If an altered 
vehicle or vehicle manufactured in two or more stages is equipped 
with a partition between the seating reference point of the driver's 
designated seating position and a vertical plane 300 mm behind the 
seating reference point, targets located rearward of the partition 
are excluded from FMVSS No. 201. These wide confines allow great 
flexibility in permitting final-stage manufacturers to pass through 
the certification to FMVSS No. 201.
---------------------------------------------------------------------------

    NTEA believes that final-stage manufacturers will be restricted 
from installing partitions because a note in the quoted IVD states 
that, because the upper interior performance for cutaway products is 
affected by the rigidity of the back panel attachment, existing upper 
interior trim components may require recertification after attachment 
of a back panel. NTEA believes that, since incomplete vehicle 
manufacturers indicate that the addition of the body to a completed cab 
chassis might cause the cab to stiffen, ``even a partition that is 
designed so as not to interfere with deployment of the OEM [original 
equipment manufacturer] designed airbag [sic] system would be 
impermissible for pass-through compliance.''
    This reasoning is not logical or persuasive. As the Court stated in 
National Truck Equipment Association v. National Highway Traffic Safety 
Administration, supra, ``NTEA's fears regarding too-restrictive IVDs 
appear to us unfounded.'' 711 F.3d at 672. The statement does not seem 
unduly restrictive, but simply cautionary that existing upper interior 
trim components ``may'' be affected by the completion of the vehicle. 
The statement in NTEA's quoted note appears to pertain to one of the 
paramount and central steps in manufacturing a vehicle in stages: 
Installing the vehicle body to the incomplete vehicle. This combination 
of the vehicle body to the vehicle chassis is a manufacturing process. 
It is reasonable for the IVD to caution that the upper interior 
performance may be affected by the rigidity of the back panel 
attachment. In contrast, installing a partition is much simpler than 
joining the vehicle body to the chassis. Installing a partition on the 
affected vehicles typically involves simply bolting or welding several 
fasteners in place at certain intervals. Since installing a partition 
is vastly easier and more straightforward than attaching the vehicle 
body to the chassis cab, the quoted IVD statements are not relevant to 
partitions, and do not show that partitions will be disallowed by the 
IVDs because of FMVSS No. 226.
    Fifth, in line with what the agency has observed with other rules, 
we expect manufacturers to update body builder manuals to provide 
guidance to final-stage manufacturers on completing a vehicle to pass 
through certification to FMVSS No. 226. We believe the guidance will 
include instructions on installing partitions. We also continue to 
expect a dynamic marketplace with multiple manufacturers providing 
various vehicle configurations. As the Sixth Circuit observed in NTEA 
v. NHTSA, supra, final-stage manufacturers are free to communicate that 
they will only work on incomplete vehicles from first-stage 
manufacturers that have accommodating IVDs. 711 F.3d at 672.
    NTEA's petition for reconsideration briefly mentioned alterers, but 
did not discuss these entities at length.\20\ Alterers, by definition, 
perform work on an already certified vehicle. This means that the 
vehicle, prior to the alterer's work, is compliant with FMVSS No. 226. 
We believe there are options available to alterers to ``pass through'' 
the certification to FMVSS No. 226, depending on the modifications they 
make to the vehicle. Since the alterer would be modifying a vehicle 
already certified to FMVSS No. 226, the alterer would only have to take 
care not to alter the compliance of the vehicle with the FMVSS. There 
are partitions already available in the marketplace that are designed 
to be compatible with side curtain air bags.\21\ An alterer may install 
such a partition without affecting the vehicles' conformance with FMVSS 
No. 226.
---------------------------------------------------------------------------

    \20\ Under 49 CFR 567, the ``alteration'' of vehicles involves a 
person modifying a completed vehicle that has been previously 
certified, other than by the addition, substitution, or removal of 
readily attachable components, such as mirrors or tire and rim 
assemblies, or by minor finishing operations such as painting, 
before the first purchase of the vehicle other than for resale, in 
such a manner as may affect the conformity of the vehicle with one 
or more FMVSSs or the validity of the vehicle's stated weight 
ratings or vehicle type classification. The alterer is required to 
certify that the vehicle, as altered, conforms to all applicable 
FMVSSs affected by the alteration in effect in the month and year no 
earlier than the date of manufacture of the certified vehicle and no 
later than the date alterations were completed. 49 CFR 567.7.
    \21\ See, e.g., http://www.troyproducts.com/news/Airbagann2.html 
and http://www.troyproducts.com/products/Partitions/FORD%20UTILITY%20VEHICLE%20CARGO%20PARTITION.pdf. See also http://www.pro-gard.com/QRC/partitions.asp.
---------------------------------------------------------------------------

    NTEA's petition criticizing IVDs and FMVSS No. 226 is not based on 
practical experience. Final-stage manufacturers have been using the 
pass-through method to certify compliance with various safety standards 
for decades; the method is workable and recognized by Congress.\22\ 
``After all, Congress intended for manufacturers to adjust to the 
regulatory demands of the industry rather than the other way around'' 
(NTEA v. NHTSA, 711 F.3d at 673-674). Furthermore, as the above 
discussion shows, all indications are that multi-stage manufacturers 
and alterers will be able to use pass-through certification to develop, 
produce, and offer for sale vehicles that provide the substantial 
ejection mitigation protections of FMVSS No. 226 to workforce 
personnel. The manufacture of these compliant vehicles accords with the 
Vehicle Safety Act and SAFETEA-LU.
---------------------------------------------------------------------------

    \22\ See 49 U.S.C. 30115. See NTEA, 711 F.3d at 675 (``Congress 
in fact explicitly endorsed the pass-through certification regime in 
2000'').
---------------------------------------------------------------------------

2. School Buses
    The final rule applies to passenger cars, and to multipurpose 
passenger vehicles, trucks and buses with a GVWR of 4,536 kg (10,000 
lb) or less, except walk-in vans, ``modified roof'' vehicles (which are 
defined in the standard), convertibles, and certain vehicles with 
partitions. Because school buses are ``buses'' under our FMVSS 
definitions (49 CFR 571.3), FMVSS No. 226 applies to the vehicle type 
unless the vehicle is excluded by a specific exclusion in the standard.
Reconsideration Request
    Daimler Truck requested that the final rule exclude school buses 
from the standard. The petitioner stated that school buses already are 
subject to ejection mitigation requirements in FMVSS No. 217. Daimler 
Truck believed that NHTSA has not

[[Page 55149]]

considered the interaction of ejection mitigation side curtain air bags 
with existing school bus safety features, including ``emergency exit 
window handle accessibility, emergency exit window unobstructed 
openings, wheelchair restraint anchorages, head impact zones, higher 
seat backs and side lift door glazed areas.''
Agency Response
    We are denying this request because of a lack of support for it. We 
assume Daimler Truck's petition does not involve ``modified roof'' 
vehicles \23\ and that it involves primarily school buses produced by a 
single manufacturer ``from the ground up.'' The petitioner provided no 
information or analysis as to why there would be an inherent conflict 
between the existing school bus standards and FMVSS No. 226, 
particularly for school buses that can be originally designed to meet 
the standard. NHTSA is not aware of inherent conflicts between ejection 
mitigation side curtain air bags and the safety features mentioned by 
the petitioner for a bus manufactured in a single stage. Therefore, at 
this time we have insufficient information to agree that excluding 
small school buses from applicability of FMVSS No. 226 is warranted. 
Applying the standard to a wide range of vehicles under 4,536 kg 
(10,000 lb) best implements the mandate of SAFETEA-LU than reducing the 
applicability of the standard.
---------------------------------------------------------------------------

    \23\ ``Modified roof'' is defined in S3 of the standard. SBMTC 
submitted a letter asking for confirmation that ``10,000 pound or 
less GVWR Type-A buses and school buses constructed upon a cutaway 
chassis, of which the original incomplete vehicle roof has been 
modified, are excluded from the application of FMVSS 226 by virtue 
of section 2 and 3 of this standard . . .'' We assume that when 
SBMTC refers to the original incomplete vehicle roof as having been 
``modified,'' the roof was removed in part or in total and replaced 
in part or in whole. Our answer is yes, the school buses are 
excluded from FMVSS No. 226 as ``modified roof'' vehicles. The final 
rule excluded vehicles whose original roofs were modified in part or 
in total because of the likelihood that the original curtain air bag 
mounted in the header above the door would be affected by such 
modification. Thus, we adopted the exclusion to be sensitive to 
possible practicability problems that could arise if the roof were 
modified by a later-stage manufacturer or alterer.
---------------------------------------------------------------------------

c. Displacement Limit--Issue 1

    The final rule specified that the ejection mitigation 
countermeasure must limit the linear travel of the impactor to not more 
than 100 mm beyond the location of the inside surface of the vehicle 
glazing. This displacement limit serves to control the size of any gaps 
forming between the countermeasure (e.g., the ejection mitigation side 
curtain air bag) and the window opening, thus reducing the potential 
for both partial and complete ejection of an occupant.
Reconsideration Request
    Advocates states that the final rule ``fails to provide a sound 
basis for the excessive limit on excursion selected by the agency, and 
the rule does not establish a robust test procedure and requirements to 
mitigate partial and complete ejections.'' The petitioner believes that 
the 100 mm limit in FMVSS No. 217, FMVSS No. 206, and in architectural 
design codes is used to limit the width of gaps to prevent a person 
from passing through the opening, and should not be used for purposes 
of an excursion limit. The petitioner believes that a ``100 mm limit 
allows the occupant (headform) to pass beyond the plane of the window 
frame and technically be partially ejected.''
    Advocates suggests a 50 mm excursion limit. The petitioner believes 
that a 50 mm limit results in a ``situation that effectively limits 
excursion and ejection.'' Advocates also states that data in the Final 
Regulatory Impact Analysis accompanying the final rule show that 25 
percent of the individual tests conducted resulted in excursions of no 
more than 50 mm, while a 100 mm limit was met by more with 47 percent 
of tests.
Agency Response
    We are denying the petition to reduce the performance requirement 
in the final rule to 50 mm.
    To meet the 100 mm requirement, ejection mitigation side curtain 
air bags must inflate rapidly enough to be protective for ejection 
mitigation purposes 1.5 seconds after deployment and maintain inflation 
so that they are protective 6 seconds after inflation. Moreover, since 
the side curtain air bags will likely be installed to meet both FMVSS 
No. 214, ``Side impact protection,'' and FMVSS No. 226, if a side 
impact is involved, the curtain air bags will inflate within 
milliseconds of the side crash. We recognize that there is some risk of 
external contact generally with any kind of displacement limit. 
However, this risk is greatly mitigated by limiting the displacement to 
100 mm. Also, even if there is contact, if the occupant's head or part 
of the body is behind a curtain, the inflated curtain will provide 
impact protection from the zero displacement plane to 100 mm past the 
plane. While that benefit cannot be quantified, the cushioning would 
mitigate some of the risk of injury from external contact.
    Moreover, even if head contact with a surface may occur, and even 
in the absence of cushioning, as we explained in the final rule, the 
100 mm limit achieves the appropriate balance between stringency and 
practicability. Advocates believes that test data presented in the 
final rule preamble indicate that 25 percent of the tests conducted 
resulted in displacement of the headform of less than 50 mm beyond the 
inside surface of the glazing, and that 47 percent of the test results 
had displacements under 100 mm. The petitioner believes that by setting 
the displacement limit at 100 mm, NHTSA ``is only aiming for the 
`average' capability of current airbag [sic] technology.''
    It was not clear from the petition how Advocates analyzed the data 
so we attempted to discern what the petitioner meant.\24\ The 
petitioner's assessment is not persuasive. First, we caution that the 
vast majority of the data was generated in tests using an impactor 
whose frictional and deflection characteristics differed from the 
updated specifications set forth in the final rule. In general, tests 
with the new impactor resulted in greater displacement. The average 
increase in displacement for the new impactor was 22 mm across all 
target locations and 31 mm at target A1.
---------------------------------------------------------------------------

    \24\ We assume Advocates performed its analysis of the data in 
Tables 10-18 of the final rule preamble. We note that the numbers in 
each row of the data may represent the average result from several 
tests at the same condition. In addition, some tests with differing 
laminate breakage methods were combined. It is unclear if the 
Advocates analysis used testing at 24 km/h, which is not part of the 
final rule. We performed an analysis excluding the 24 km/h data. 
Fifty-nine (59) percent [209/356] of the results in Tables, 11, 12, 
14, 15, 17 and 18 were less than or equal to 100 mm and 31 percent 
[112/356] were less than or equal to 50 mm.
---------------------------------------------------------------------------

    Second and more importantly, the data to which the petitioner 
refers do not demonstrate the practicability of a 50 mm displacement 
limit. Rather than evaluating only the data for average displacement 
across all targets (which we assume the petitioner did), we also 
analyzed the data with regard to the more challenging target, A1. The 
data show that only 2 percent [1/55] of tests at target A1 were less 
than or equal to 50 mm and only 24 percent [13/55] of tests at target 
A1 were less than or equal to 100 mm. In addition, only one of the 
three vehicles tested with the new impactor had 100 mm or less 
displacement at every target location tested under the final rule 
conditions and no vehicle met a 50 mm criterion at every target 
location.
    In the January 19, 2011 final rule, NHTSA estimated that adopting 
FMVSS No. 226 with a 100 mm displacement criterion would achieve 
tremendous

[[Page 55150]]

benefits at reasonable costs. We estimated that the rule will save 373 
lives and prevent 476 serious injuries per year, at a cost of 
approximately $31 per vehicle. The final rule provided manufacturers 
approximately two and one-half years of lead time to begin meeting the 
standard. This lead time challenged manufacturers to begin installing 
the life-saving technology as quickly as possible.
    Even assuming that a displacement limit of 50 mm were practicable, 
it would likely be practicable only with more lead time and possibly 
with significant changes to the countermeasure. The added lead time 
would have a corresponding nonattainment of the benefit that could have 
been achieved by a shorter implementation of the standard. Moreover, we 
must emphasize that there is no scientific basis for correlating 
various displacement values with quantifiable benefits. No one can say 
that reducing the displacement limit by 50 percent will reduce ejection 
or side impact fatalities and injuries by a corresponding amount. On 
the other hand, although the incremental benefit of a 50 mm limit 
cannot be quantified, there will be a toll in terms of lives lost due 
to a delay in implementation of the standard. The agency believes a 50 
mm limit does not warrant delaying the benefits of ejection mitigation 
side curtain air bags, especially when it cannot be shown whether any 
benefits would result from a 50 mm displacement limit.
    A 50 mm limit would also likely entail use of advanced glazing to 
meet the requirement at side windows. In the FRIA, we estimated that 
there would be a $15 incremental cost difference between tempered glass 
and laminated advanced glazing for a standard-size side window in the 
first or [second] row. Thus, for a two-row vehicle the total 
incremental cost would be $60. This cost for advanced glazing would 
have to be added to the cost of the curtain bag, since, under the final 
rule, a system with movable advanced glazing alone would not be able to 
perform to the level required for the standard. In comparison, the 
agency determined that the incremental cost of meeting the final rule 
with only curtain air bags will be $31 dollars per vehicle. The cost 
per equivalent fatality of a system comprised of a partial curtain in 
combination with advanced laminated glazing was twice that of a system 
utilizing only a curtain. We cannot agree that this cost is reasonable, 
given the absence of any quantifiable benefit associated with the 50 mm 
displacement limit.
    Lastly, we believe the 100 mm limit demands a high degree of 
performance. It may be helpful to think of the performance requirement 
as it would be brought to bear in the real world. During and after 
impact by the head and upper torso of a mid-size adult male at a 
velocity present in fatal rollovers, the curtain or other safety 
countermeasure must withstand the force generated by this sizable mass 
and restrain the mass within 100 mm of the glazing surface at both the 
beginning and end stages of a multi-roll crash. If gaps form between 
the countermeasure (the curtain) covering the daylight opening, the 
displacement must be contained to 100 mm. The FMVSS No. 226 test is not 
one in which we simply deploy a curtain and see if there are exposed 
100 mm gaps between the curtain and the window frame. Bear in mind that 
the 100 mm limit is assessed when the countermeasure is struck by the 
moving massive 18 kg (40 lb) headform. The 100 mm displacement limit 
ensures that ejection mitigation side curtain air bags will be sturdy, 
robust, and highly effective in reducing partial and complete 
ejections.

c. Displacement Limit--Issue 2

    The final rule specified that the impactor mass is propelled at 
points around the window's perimeter. To evaluate the performance of a 
curtain to fully cover potential ejection routes, the impactor targets 
four specific locations per side window adjacent to the first three 
rows of the vehicle. NHTSA determined that impacting four targets 
around the perimeter of the opening assures that the window will be 
covered by the countermeasure (curtain), while imposing a reasonable 
test burden.
Reconsideration Request
    Advocates believes that FMVSS No. 226's test methodology allows 
manufacturers to have ``minimal designs.'' Advocates asks that we 
include language in the final rule to ``[i]nclude testing of all 
openings present between and within a tested countermeasure and the 
appropriate daylight opening, both after deployment and before testing 
and at the conclusion of testing, such that openings are limited to 
less than 100 mm and resist the passage of a similarly sized object 
under an appropriately determined level of force so as to ensure the 
retention of occupants within the vehicle cabin.'' The testing would be 
``similar to the testing processes noted by the agency in FMVSS 206 and 
FMVSS 217.''
Agency Response
    We are denying the petition to introduce a new test to determine 
countermeasure resistance to passage of a 100 mm object. The petitioner 
provided insufficient information regarding the need for a new test or 
the suggested test methodology.
    We do not agree there is a need for a new test. In the final rule 
preamble, the agency responded to a similar suggestion, from glazing 
manufacturers about a sphere test, although the suggested object 
dimension was 40 mm. 76 FR at 3249, col. 2. In the preamble, we 
explained our reasons for disagreeing with the suggestion. Those 
reasons apply also to Advocates' suggestion and we deny the 
petitioner's suggestion for the same reasons, which are briefly 
summarized below. (For simplicity, we refer to the petitioner's 
suggestion as a sphere test.)
    First, we see no safety need for the test. We cannot conclude that 
ejections that would not be prevented by the primary 100 mm 
displacement requirement would be prevented by a secondary requirement 
to ``push an object'' through any gaps in the curtain. Second, the 
sphere test is not appropriate for vehicles with only side curtain air 
bags and no advanced glazing, given that there is a time dependence 
associated with a curtain's ejection mitigation performance. Once 
deployed, the pressure in the air bag continuously decreases. The 16 
km/h test is done at 6 seconds to assure that the pressure does not 
decrease too quickly. The sphere test could not be able to be done 
after the 6-second impact in any timeframe that is related to rollover 
and side impact ejections. Third, the sphere test would indirectly 
require installation of advanced glazing. As discussed in the final 
rule, the costs associated with advanced glazing installations at the 
side windows are substantial in comparison to a system only using 
rollover curtains, with no quantifiable benefit.
    We also do not agree that ``minimal designs'' will result of the 
rule specifying that designated targets are tested rather than ``all 
openings.'' In research leading to the development of FMVSS No. 226, we 
found that ``full window opening coverage was key to the effectiveness 
of the curtain in preventing ejection.'' 76 FR at 3223. To ensure that 
the entire window opening is covered, we developed the standard's test 
procedure such that the impactor mass is propelled at specific targets 
around the window's perimeter. This testing is objective and imposes a 
reasonable test burden. The

[[Page 55151]]

performance test of FMVSS No. 226 attains one of the principles 
underlying the standard, which is to ensure that ejection mitigation 
side curtain air bags fully cover the window opening.
    In addition, the petitioner provided no information about a test 
methodology for the sphere test, such as whether the sphere is to be 
pushed in multiple orientations with respect to the window, pushed in 
those orientations in the 6-second time frame, the appropriate push 
force, or the real world relevance of the orientation of the push 
force. The request lacks the substantive information that would enable 
the agency to consider it to a greater degree.
    For the above reasons, Advocates' petition is denied.

IV. Response to Petitions Regarding Technical Issues

    The final rule included technical elements relating to the test 
procedure NHTSA will use to assess a vehicle's compliance with the 
standard. NHTSA received petitions for reconsideration related to 
various technical elements pertaining to, among other things: 
Procedures for determining target locations, identifying primary target 
locations and for adjusting the targets. There were a number of 
requests relating to provisions in the standard for testing glazing and 
preparing glazing for testing. Petitions related to technical issues 
are discussed below.

V. Determination of Impact Target Locations--Boundary of Target 
Locations

a. Rearmost Limit of the Offset Line

    S5.2.1.2 of the standard has procedures for locating target 
locations in a daylight opening. The procedures define the testing area 
of the opening. The rearmost limit of the testing area is determined in 
part by identifying the transverse vertical vehicle plane located at 
the following distances behind the SgRP with the seats adjusted to 
their rearmost normal riding or driving position:

--For a vehicle with fewer than 3 rows: 1,400 mm behind the rearmost 
SgRP;
--For a vehicle with 3 or more rows: 600 mm behind the 3rd row SgRP.

    If the ``offset line'' of a particular daylight opening is rearward 
of the transverse vertical vehicle plane specified above, the 
transverse vertical vehicle plane defines the rearward edge of the 
offset line for the purposes of determining target locations. 
(S5.2.1.2(a) and (b).)
    In the final rule, the agency extended the rearward location of the 
transverse vertical vehicle plane beyond that proposed in the NPRM for 
vehicles with 1 or 2 rows of seating. The NPRM had proposed that the 
rearward limit of the plane would be 600 mm behind the SgRP of a seat 
in the 2nd row for a vehicle with 2 rows, and 600 mm behind the SgRP of 
a seat in the 1st row for a vehicle with 1 row. We reassessed the 
proposal after reading various comments and considering that all or 
part of the cargo area daylight opening rearward of that 1st or 2nd row 
would be excluded from coverage under the NPRM's provisions. Also, we 
reexamined the proposal after realizing from our field data analysis 
for the final rule that cargo area window ejections in the area that 
would have been the third row had there been a third row of seats were 
0.5 percent of all ejection fatalities, which exceeded 3rd row occupant 
fatalities (0.3 percent).\25\
---------------------------------------------------------------------------

    \25\ We also realized after studying several Special Crash 
Investigation cases that unbelted occupants were ejected through 
window openings behind the row in which they were seated.
---------------------------------------------------------------------------

    Accordingly, for the final rule, the agency decided that for 
vehicles with only 1 or 2 rows of seating, the rearward limit would be 
increased from the 600 mm distance to 1,400 mm, measured from the SgRP 
of the seat in the last row.\26\ The window openings subject to testing 
under the 1,400 mm limit are those that would have been adjacent to a 
third row seat had the vehicle had a third row. By increasing the 
distance to 1,400 mm, more of the glazing area in cargo area behind the 
1st or 2nd row will provide ejection mitigation protection.
---------------------------------------------------------------------------

    \26\ Under the final rule, a 3-row vehicle is still only 
required to meet the 600 mm value.
---------------------------------------------------------------------------

Reconsideration Request
    The Alliance requests that NHTSA reconsider its decision to 
increase the rearward limit to 1,400 mm behind the SgRP. The petitioner 
states that extending the coverage area to 1,400 mm may have ``possible 
deleterious effects.'' The petitioner states that a partition in the 
1,400 mm cargo area behind the 1st or 2nd row could interfere with a 
curtain air bag, resulting in increased air bag pressure or tears which 
could ``negatively affect both out-of-position [OOP] performance as 
well as protection for properly positioned occupants during a side 
impact.'' The Alliance believes that the risk to properly belted 
occupants would increase to protect a small number of unbelted 
occupants and disagrees with that outcome. Further, the petitioner 
states that the new requirement ``would necessitate a significant 
redesign of the roof rail airbag [sic] systems in many vehicles'' and 
that meeting FMVSS No. 226 in conjunction with FMVSS No. 214 and OOP 
guidelines ``would present a major engineering integration challenge 
with minimal benefits.''
Agency Response
    We are denying the Alliance's petition to reduce the rearward 
extent of the daylight opening for vehicles with 1 or 2 rows from 1,400 
mm to 600 mm.
    We do not agree with the Alliance's assertions that the risks 
associated with extending window coverage to the cargo area outweigh 
the potential benefits. By extending the daylight opening into the 
cargo area of 1 and 2 row vehicles, the agency is covering an ejection 
route that accounts for the loss of 52 lives a year. The FRIA estimated 
that coverage of the cargo area window openings has a similar level of 
cost effectiveness as covering the 3rd row windows. The petitioner 
referred to possible OOP risks and tearing risks from extending 
daylight opening coverage to the cargo area, but the references were 
highly speculative and completely unsupported.
    With regard to the petitioner's arguments about the potential for 
obstruction to air bag deployment from cargo area partitions, the 
arguments are altogether inapplicable to partitions installed as 
original equipment by a vehicle manufacturer. If the vehicle 
manufacturer provides a partition for the vehicle, the curtain air bags 
could be installed just for the rows in front of the partition. 
Regarding aftermarket partitions, they could be designed with curtain 
air bag deployment in mind. The partition could have a clearance for 
the curtain, or have breakaway features. We are aware of several 
companies marketing side curtain air bag compatible cargo barriers.\27\ 
At this time, we believe new partition designs will be developed to be 
compatible with ejection mitigation side curtain air bags as market 
demand develops for such partitions. Speculation about the futility of 
aftermarket partitions evolving does not convince us to overlook the 
benefits that are acquired by extending coverage to the cargo area.
---------------------------------------------------------------------------

    \27\ Pro-gard Products LLC (www.progard.com). Setina 
Manufacturing Co., Inc. (www.setina.com). Troy Sheet Metal Works, 
Inc. (www.troyproducts.com).
---------------------------------------------------------------------------

    The Alliance asserts that the extension of the rearward daylight 
opening will force the redesign of curtain air bags, which may slow 
their deployment time. In addition, it refers to a ``major engineering 
integration challenge'' associated with the 1,400 mm limit.
    The agency addressed these points in the final rule preamble and 
the

[[Page 55152]]

petitioner has not provided any information that leads us to change our 
position. We pointed out in the preamble that vehicles are already 
being produced that have side air bag curtains covering windows in rows 
1, 2 and 3 (e.g., the MY 2005 Honda Odyssey, MY 2006 Mercury Monterey, 
MY 2007 Chevrolet Tahoe, MY 2007 Ford Expedition, MY 2007 Jeep 
Commander, MY 2008 Dodge Caravan, MY 2008 Ford Taurus X, and MY 2008 
Toyota Highlander). The designs typically use a single curtain tethered 
at the A- and D-pillars. (See 76 FR at 3263-3264). We pointed out that, 
because these designs provide three rows of coverage, covering the 
cargo area behind the 1st or 2nd row of a vehicle up to window openings 
adjacent to where a 3rd row would have been is no more of a technical 
challenge than manufacturers face in covering all openings adjacent to 
the 3rd row for vehicles with three rows.
    Manufacturers have developed and are availing themselves of air bag 
systems that extend coverage into the 3rd row area of the cargo area. 
The petitioner has not substantiated its claim that there are technical 
challenges in extending coverage to the cargo area that manufacturers 
cannot overcome.

b. Grab Handles

    S6.3 of FMVSS No. 226 specifies that, during targeting and testing, 
NHTSA will remove or adjust the vehicle's steering wheel, steering 
column, seats, grab handles and exterior mirrors to facilitate testing 
and/or provide an unobstructed path for headform travel through and 
beyond the vehicle. These items are not included when the daylight 
opening is defined and when the daylight opening is tested because the 
items are unlikely to have a positive effect in impeding occupant 
ejection and/or could restrict the travel of the impactor headform.
Reconsideration Request
    In its petition for reconsideration, the Alliance disagrees with 
the agency's decision in S6.3 to remove or adjust grab handles. The 
petitioner states that grab handles located inboard of the air bag 
deployment path are commonly attached through the headliner or A-pillar 
garnish trim to the vehicle structure. The petitioner states:

    ``Removing these handles can change the headliner and trim 
attachment structure and bending characteristics. Changing the 
bending characteristics of the headliner can lead to curtain airbags 
[sic] not deploying as designed and there could be unintended 
interactions with the testing device.'' The Alliance also states 
that, for handles located outboard of the air bag deployment path, 
the grab handles may also function as a reaction surface for curtain 
air bags. ``If the handles were to be removed, the deployment 
characteristics and reaction surface of the airbag [sic] would be 
changed from the design intent. In addition, the surface of the 
pillar would be changed, which could lead to exposed mounting 
brackets and rough surfaces that can lead to tearing of the airbag 
[sic] and/or a change of the deployment characteristics.''
Agency Response
    There are several parts to our response.
    A. We are denying the request to keep grab handles in place when 
determining the daylight opening. We affirm our conclusion in the final 
rule preamble that grab handles are unlikely to ``contribute anything 
positive to ejection mitigation.'' That is, in a rollover, the grab 
handle is unlikely to have any effect mitigating the likelihood of 
ejection since occupants will move toward the daylight opening from 
many different angles. Given that the presence of the grab handle is 
unlikely to lower the likelihood an occupant would be ejected from the 
opening (e.g., it does not lower the chance of ejection by blocking the 
opening), it would not make sense for the test procedure to allow the 
grab handle to define the opening being tested.
    Moreover, we are concerned that the requested amendment would 
create a means to manipulate the test requirements, to enable designers 
to move the impactor away from weak points in the ejection mitigation 
countermeasure in a false way. Figure 1, below, depicts two renditions 
of a 1st row daylight opening. The illustration on the left shows the 
opening without a grab handle; the other shows a grab handle attached 
to the A-pillar. For convenience, we used an approximation of the 
target outline, rather than the exact cubic equation prescribed in the 
final rule. The target outline height and width are dimensionally 
correct relative to each other.
    Assume that the grab handle has a length and width of 52 mm x 191 
mm (2 in. x 7.5 in.). Also shown in each of the drawings and listed in 
Table 9 is the x-direction (longitudinal) distance from the front edge 
of the daylight opening to the center of each target.
    This graphical presentation shows that by adding a grab handle that 
projects into the daylight opening by about 50 mm, target point A1 is 
pushed rearward 53 mm [170 mm-117 mm] away from the lower front corner 
of the opening. Similarly, target points A2 and A3 are pushed rearward 
by 17 mm [526 mm-509 mm] and 35 mm [348 mm-313 mm] from the front of 
the daylight opening, respectively. These changes would be a function 
of the shape, size and location of the grab handle.
    We know from our testing that target location A1 is the most 
challenging of the 1st row targets and that curtain coverage at the 
base of the A-pillar has been deficient for most curtain designs. This 
is followed by A3 and A2, in degree of difficulty.
    Table 8 shows the average and standard deviation of displacement 
for the 20 km/h-1.5 second impact for all 1st row target locations for 
all tests conducted by NHTSA.\28\ Targets A1 and A2 have an average 
displacement of 140 mm and 112 mm, respectively. Thus, moving target A1 
away from the base of the A-pillar (by 53 mm, in our example, due to 
the grab handle) would likely reduce the displacement of the impactor.
---------------------------------------------------------------------------

    \28\ These data can be found in Table 11 of the final rule. See 
76 FR 3228.
---------------------------------------------------------------------------

    Similarly, Targets A3 and A4 have an average displacement of 132 mm 
and 15 mm, respectively. Moving target A3 towards the A4 target (by 35 
mm, in our example) would likely reduce the displacement of the 
impactor at the A3 location. Finally, the original A2 target is moved 
rearwards toward the B-pillar (by 17 mm, in our example). Decreasing 
the proximity to the B-pillar may add support to the curtain, which 
will tend to reduce the impactor displacement.
    Reducing impactor displacement by means that would have real-world 
effectiveness in limiting occupant ejection is wholly appropriate. 
However, the Figure 1 example shows that by adding a grab handle to the 
A-pillar of a 1st row window opening, the stringency of the standard 
may be reduced by the presence of an item that, in a real-world 
rollover, is not likely to have an actual effect on mitigating full and 
partial occupant ejections. The stringency of the standard would be 
reduced by an artifact of the test procedure. For the above reasons, 
the agency declines the petitioner's suggestion to modify the 
determination of the daylight opening.

[[Page 55153]]

[GRAPHIC] [TIFF OMITTED] TR09SE13.002


 Table 8--Target X (Longitudinal) Location (in millimeters) Referenced to the Front Edge of the Daylight Opening
----------------------------------------------------------------------------------------------------------------
                       Handle location                             A1           A2           A3           A4
----------------------------------------------------------------------------------------------------------------
No Handle...................................................          117          509          313          704
A-Pillar....................................................          170          526          348          704
----------------------------------------------------------------------------------------------------------------


  Table 9--Average and Standard Deviation of Impactor Displacement (mm)
         for Front Row Window, 20 Km/h Impact, 1.5 Second Delay
------------------------------------------------------------------------
        A1                 A2                A3                A4
------------------------------------------------------------------------
140    112    132   15 
           36.5              55.7              56.7              39.0
------------------------------------------------------------------------

    B. Subject to the discussion below, we are denying the request to 
keep grab handles in place during testing. The Alliance provided no 
data or information supporting a finding that removal of the grab 
handles affects the performance of the air bag to an extent that 
outweighs the agency's interest in ensuring unobstructed passage of the 
headform in a test. However, we are sensitive to when and how the grab 
handle should be removed, as discussed below.
    C. After the final rule was published, ASC asked the agency about 
grab handles that are molded into the trim panel and how they are to be 
removed.\29\ Such grab handles are not readily removable by removing 
fasteners. ASC asked whether such grab handles would be sawn-off or 
would the entire panel be removed. It recommended the former, with 
accommodation for taping over any remaining rough edges to avoid 
damaging the curtain air bag during deployment. It preferred the former 
since, ASC stated, the presence of the trim panel may provide a 
reaction surface for the air bag and may cover internal structure not 
intended to contact the air bag. ASC also requested guidance on when a 
grab handle should be removed, e.g., would it be removed only during a 
test in which it would obstruct impactor travel or would it be removed 
in the testing of other target locations?
---------------------------------------------------------------------------

    \29\ See April 2, 2012 email from Douglas Stein, Chair of the 
ASC Rollover and Ejection Mitigation Committee, to NHTSA staff, a 
copy of which is in the docket for today's final rule.
---------------------------------------------------------------------------

    Although we have denied the Alliance's request to keep grab handles 
in place during testing, grab handles will only be removed if they 
obstruct the impactors travel to a specific target we are testing. We 
also concur that grab handles should be removed with minimal 
disturbance to the trim. Overall, our view is that, unless there is 
reason to the contrary, testing a vehicle in as near the as-
manufactured condition as practicable better ensures that the 
performance we witness in the compliance laboratory is representative 
of the performance of the vehicle in the real world. For grab handles, 
we have determined there is reason to remove the component (and the 
other items listed in S6.3) due to potential interference with the 
impactor. However, we concur that the grab handle should be removed 
with minimal disturbance to the trim.
    We recognize there is reason to have different methods of removal 
depending on the handle design. Removing fasteners is an easy and 
preferred way of removing a grab handle, provided that there are 
distinct fasteners attaching the handle and that removal of the grab 
handle does not affect the integrity of the trim. In the situation of a 
handle molded into the trim panel without dedicated fasteners, cutting 
away the portion of the handle obstructing the path of the headform is 
a way to remove the grab handle without degrading the integrity of the 
trim. Thus, our answer is we will remove the grab handle by removing 
fasteners if there are distinct fasteners attaching the handle. If 
there are no distinct fasteners attaching the grab handle (e.g., if a 
grab handle is

[[Page 55154]]

molded into the trim panel without showing dedicated fasteners), we 
will cut away the portion of the handle that impedes into the daylight 
opening.
c. Removal of Components During Targeting
    S6.2 of FMVSS No. 226 allows some vehicle doors to be opened or 
removed during testing. S6.3 provides, ``During targeting and testing, 
the steering wheel, steering column, seats, grab handles, and exterior 
mirrors may be removed from the vehicle or adjusted to facilitate 
testing and/or provide an unobstructed path for the headform travel 
through and beyond the vehicle.'' S6.4 states that, during targeting 
and testing, interior vehicle components and vehicle structures other 
than those specified in S6.2 and S6.3 may be removed or adjusted to the 
extent necessary to allow positioning of the ejection propulsion 
mechanism and to provide an unobstructed path for headform travel 
through and beyond the vehicle.
Petition for Reconsideration
    The Alliance believes that ``apart from weather stripping and seats 
. . . nothing should be removed during the targeting procedure. Items 
such as instrument panels may fall within 100 mm of the inside surface 
of the glass, and therefore define part of the daylight opening. 
Section X(e)(1)(i) of the preamble states that NHTSA intends to include 
interior components within 100 mm of the glass because they `could have 
a positive effect on ejection mitigation.' ''
Agency Response
    We do not agree generally with the view that ``nothing should be 
removed.'' However, we note that the petitioner's request is somewhat 
unclear and the petitioner does not elaborate on its views. The 
following discussion on our part might help clarify matters. The 
petitioner refers to an instrument panel within 100 mm of the inside 
surface of the glazing. This portion of the instrument panel would not 
be removed since it defines a portion of the daylight opening. That is, 
the daylight opening would be prescribed around this portion of the 
instrument panel. Since no target would be placed over this portion of 
the instrument panel, no restriction of the impactor would occur and no 
removal of the component would be necessary.\30\
---------------------------------------------------------------------------

    \30\ One of the reasons behind the final rule's expanding the 
inboard distance to be considered when defining the daylight 
opening, from 50 mm to 100 mm, was the conclusion that this distance 
would ``be sufficient to encompass interior borders and other 
components around the daylight opening that might not be easily 
removed and whose removal may have an unknown effect on the 
performance of the countermeasure.'' (76 FR 3265.)
---------------------------------------------------------------------------

    If, however, the petitioner is referring to some other part of the 
instrument panel not within 100 mm of the inside surface of the glazing 
which obstructed the ejection propulsion mechanism's path or prevented 
its positioning, that portion could be removed under S6.4. We do not 
agree with the approach of having to keep vehicle interior components 
(other than those within the region 25 mm outboard and 100 mm inboard 
of the glazing surface) in place for targeting and testing. Removing 
the objects would help ensure that the testing can be performed, as 
removal might be needed to allow positioning of the ejection propulsion 
mechanism or to provide an unobstructed path for headform travel 
through and beyond the vehicle. Further, removal of these objects would 
not degrade the ejection mitigation features of the vehicle, since the 
objects provide no impediment to ejection in the real world (76 FR at 
3266). Thus, the request is denied.

VI. Primary Target Locations

a. Determination of the Geometric Center of the Daylight Opening
    As part of the procedure that delineates the target locations, the 
side daylight opening being tested is divided into four quadrants by 
passing a vertical line and a horizontal line through the geometric 
center of the daylight opening (S5.2.3).
    In its petition for reconsideration, the Alliance expresses concern 
that calculation of the geometric center of some daylight openings can 
be very complex and that different test facilities could identify 
different points as the ``geometric center.'' The petitioner requests 
that the agency ``allow manufacturers to submit CAD geometric center 
coordinate data for each side daylight opening, which would then be 
utilized by the agency's test laboratories when conducting compliance 
tests.'' The petitioner states that ``this approach is similar to the 
test procedure for S22.4.1.2 of FMVSS No. 208, [Occupant crash 
protection,] with respect to the identification of the volumetric 
center of an inflated air bag.''
Agency Response
    It is unclear whether the petitioner is suggesting NHTSA should use 
or must use manufacturer-submitted computer aided design (CAD) data for 
locating the geometric center of the daylight opening. As to the 
former, as a general practice in compliance testing, the agency 
typically asks for a variety of information from vehicle manufacturers 
to compare to our determination of pre-test parameters. Examples of 
these are the design seat back angle and H-point used in FMVSS Nos. 
202a, ``Head restraints,'' and in FMVSS No. 208. It is important to 
note that NHTSA reserves the ability to independently determine these 
pre-test parameters on the vehicle being tested, notwithstanding the 
manufacturer input. The agency is not obligated to rely on the 
information submitted by the manufacturer of the tested vehicle. We may 
have good reason to disagree with it.
    The Alliance specifically references the example of S22.4.1.2 of 
FMVSS No. 208, where it is necessary to determine the geometric center 
of a folded and statically inflated air bag. This is a situation where 
the manufacturer-supplied information simplifies the compliance testing 
process. When S22.4.1.2 was adopted in FMVSS No. 208, we stated that 
``the agency anticipates that manufacturers will provide the target 
point based on their computer based drawings of the air bag system and 
the surrounding structure.'' \31\ Nonetheless, under FMVSS No. 208, the 
agency has the ability to check this information using methods we deem 
appropriate. (For instance, the information could be obtained using 3D 
laser scanning.)
---------------------------------------------------------------------------

    \31\ 68 FR 68186.
---------------------------------------------------------------------------

    We disagree with the implication that it would be inappropriate if 
we not obtain the manufacturer CAD data. The pre-test parameter of the 
geometric center of the window opening is not difficult to determine. 
We have had no difficulty in efficiently and accurately determining the 
location of this point in space. We have digitized the actual daylight 
opening of the vehicle under test by use of a FaroArm[supreg]. Once 
digitized, any number of CAD programs can be used to determine the 
location of the geometric center with respect to the digitized opening 
or any other fiduciary mark or reference point on the vehicle. NHTSA 
may or may not ask for CAD data from the manufacturers to assist us in 
determining the parameter. It is and should be the agency's prerogative 
to choose whether to ask for the manufacturer's data.
    If the petitioner is asking the latter suggestion, we decline the 
suggestion that the standard should require NHTSA to use the 
manufacturer-submitted CAD data. For one thing, we seek to determine 
the actual geometric center of the daylight opening of the particular 
vehicle being tested to determine the compliance of the vehicle as 
produced, rather than use CAD data that may be based on the vehicle as 
designed. The Vehicle Safety Act requires the compliance of new 
vehicles as they are

[[Page 55155]]

sold, not simply as they are designed. Testing vehicles as manufactured 
evaluates noncompliances that could occur during the manufacturing 
process, due to, for example, unanticipated manufacturing problems or 
to poor quality control. Thus, there are good reasons for NHTSA to test 
vehicles for compliance ``as manufactured,'' not as designed.
    Although some variation between the actual geometric center and 
that obtained from CAD data could occur based on the build variability 
of the vehicle, we have found in our testing that small variations in 
the location of the geometric center has had no effect on the primary 
targets selected and, therefore, do not affect the final target 
locations. Nonetheless, for the reason stated above, we prefer that the 
geometric center be determined from the actual vehicle under test as 
opposed to CAD drawings of the vehicle.
    Furthermore, although we find merit in having manufacturers submit 
data on various vehicle parameters to increase the efficiency of our 
test program (obtaining such information enables us to better 
understand the assumptions manufacturers used in their certification of 
compliance), we believe that the agency should retain the ability to 
determine on our own how a compliance test will be conducted on the 
test vehicle. In that way, we avoid a situation in which we are 
dependent on manufacturer data with which we do not agree, or which may 
have been generated using substandard means.
    For the above reasons, the petitioner's request is denied.
b. Targeting Large Radius Windows
    The final rule regulatory text, at S5.2.2, Preliminary target 
locations, specifies the manner in which primary target locations 
within the daylight opening are identified. S5.2.2(b) states: ``Place 
targets at any location inside the offset-line where the target is 
tangent to within 2 mm of the offset-line at just two or 
three points (see Figure 2) . . .'' S5.2.3.3 provides that if there is 
a primary quadrant that does not contain a target center, the target 
center closest to the primary quadrant outline is the primary target.
Clarification Request
    ASC asks for clarification of the targeting procedure for a window 
opening with a large radius, regarding the forward-upper quadrant of 
the daylight opening. It asks how NHTSA will position a target at the 
``corner'' location(s) for this area of the window (top image (labeled 
``1'') in Figure 2, below.). ASC states that if the procedure is 
followed as written, the target would only contact the daylight opening 
offset-line at one point and, therefore, this quadrant would not 
contain a target. ASC states that S5.2.3.3 then specifies that the 
forward lower target would become the new primary target (image labeled 
``2'' in Figure 2). ASC states that continuing with the specified test 
procedure, the selected targets would be as illustrated in the image 
labeled ``3'' in Figure 2. ASC believes that NHTSA intended the targets 
to appear as shown in the image labeled ``4'' rather than image 3 and 
asks for clarification of the procedure to achieve the target layout 
shown in image 4.
[GRAPHIC] [TIFF OMITTED] TR09SE13.003


[[Page 55156]]


Agency Response
    ASC is correct that the procedure of S5.2.3 results in the layout 
shown in image 3 in Figure 2. However, it was not our intent that the 
test procedure must specify placement of a target in the forward-upper 
quadrant of the window opening no matter the shape of the daylight 
opening. We believe that the absence of a corner in the forward-upper 
quadrant is not typical, so the final placement of the targets in the 
example shown is also not typical. NHTSA has not encountered a 
situation like this in any vehicle we tested.
    In general, the test procedure was developed to achieve, to the 
extent possible, the goal of requiring full window coverage by the 
ejection countermeasure, while using an objective and repeatable 
methodology. In developing the test procedure, we considered the many 
potential sizes and shapes of windows. The number of potential window 
design variants is great, however, so the end result is that some 
window shapes may result in a target distribution that is not as 
dispersed as it might be with other window shapes. Nonetheless, in 
developing the procedure, we realized that a primary quadrant may not 
have a target located inside it, so we drafted the procedure to address 
this eventuality in S5.2.3.3.
    We do not believe that the example given by ASC shows a problem 
that warrants a change to the test procedure. The forward-upper 
quadrant is an area of the daylight opening where a curtain air bag 
would be well supported by the header attachment and the B-pillar. 
These features should contribute to the curtain meeting FMVSS No. 226's 
displacement limit, so the absence of a target in this area is not a 
great concern. In addition, a change or addition to the procedure to 
address this issue could add complexity to the test procedure, even 
though the addition to the procedure would rarely need to be invoked. 
For these reasons, we decline to revise the procedure to achieve the 
layout shown in image 4.

VII. Target Adjustment

a. Coordinate System
    The final rule defines the targets using the headform's local 
coordinate system. The term ``target'' is defined as the x-z plane 
projection of the headform face shown in Figure 1 of the final rule's 
regulatory text. Figure 1 of the regulatory text shows the headform's 
local coordinate system. The initial headform x, y and z axes are to 
align with the vehicle longitudinal, transverse and vertical axes, 
respectively. Under S5.6.1, the ``zero displacement plane'' is measured 
with the headform touching the inside surface of the window, showing 
that the headform y-axis is pointing outward.
    The x-z coordinate system is used in the final rule in determining 
target location. Among other provisions, the final rule included 
provisions to account for possible overlapping of the targets (see 
S5.2.5.1.1) and elimination if appropriate. The rule specifies that 
after the primary and secondary targets are established, the horizontal 
and vertical distances between target centers are checked in a 
specified order. If the horizontal distance between the targets is less 
than 170 mm and the vertical distance is less than 135 mm, one of the 
targets is eliminated.
    See S5.2.5.1.1, Target elimination, in the regulatory text of the 
January 19, 2011 final rule.
    The final rule includes provisions for rotating targets in 
circumstances of testing daylight openings that might not fit targets 
well when the targets are oriented in their original upright position 
(z-axis (long axis) aligned vertically). S5.2.5.2 provides for the 
rotation of the targets by 90 degrees about the y-axis of the target, 
such that the positive z-axis of the target (long axis) becomes 
horizontal and points in the direction of the positive vehicle x-axis. 
To maintain the same spacing between targets when the long axis of the 
target is vertical or horizontal, the final rule specifies that the 170 
mm value is associated with the x-axis of the targets and the 135 mm 
value is associated with the z-axis of the targets.
Reconsideration Requests
    The Alliance believes that the reference coordinate axes used 
throughout the regulation, and particularly in S5.2, need illustrations 
and/or figures to better define the vehicle, headform and target axes, 
especially with rotation of the headform. TRW and ASC ask for 
clarification of S5.2.5.1.1 as to the specified distances between the 
target's local z-axis and x-axis, i.e., whether the distances remain 
constant irrespective of target orientation. Both the Alliance and ASC 
provide figures to illustrate their understanding of S5.2.5.1.1 and 
S5.2.5.2 and ask if their understanding is correct. They suggest that 
figures be added to the regulatory text to help clarify the 
relationship between vehicle and target axes when assessing possible 
target elimination.
Agency Response
    We are granting this request. The figures submitted by the 
Alliance, TRW and ASC correctly interpret the regulatory text in 
S5.2.5.1.1. We agree that adding figures to the regulatory text would 
be helpful. We are adding the figures below to the regulatory text as 
new Figures 5a and 5b. Figure 3 below (new Figure 5a in the regulatory 
text) shows the vehicle and target coordinate systems from the 
perspective of a viewer facing the left side of the vehicle exterior. 
The minimum distance of 170 mm and 135 mm between the x and z axes, 
respectively, are also shown. The left side of the figure shows these 
minimum distances for vertically-oriented targets and the right side of 
the figure shows these for horizontally-oriented targets. Additionally, 
the right side of the figure provides the orientation of the z axis of 
the target specified in S5.2.5.2.
    Figure 4 below (new Figure 5b in the regulatory text) shows the 
vehicle and target coordinate systems from the perspective of a viewer 
facing the right side of the vehicle exterior.

[[Page 55157]]

[GRAPHIC] [TIFF OMITTED] TR09SE13.004

    A reference to these new figures will be made in S5.2.5.1.1 and 
S5.2.5.2. Also, a typographical error is corrected in S5.2.5.1.1. The 
Alliance has noted that in the fourth sentence of S5.2.5.1.1, ``y 
axis'' is incorrectly referenced. The correct reference is ``x axis.''
b. Target Reconstitution
    S5.2.5.1.2 of the final rule regulatory text specifies a process by 
which a third target is added to the daylight opening if there are only 
two targets remaining at the conclusion of a preliminary stage of 
target identification, and the absolute distance between the two target 
centers is greater than or equal to 360 mm. The third added target is 
placed such that its center bisects a line connecting the two targets 
that had remained.
    Under S5.2.5.2, Target reorientation--90 degree rotation, if there 
are three or fewer (vertical) targets in a side daylight opening at the 
conclusion of the procedure in S5.2.5.1, the entire target process is 
repeated with the targets rotated by 90 degrees (horizontal targets). 
If this second target process results in more targets in the daylight 
opening than found under S5.2.5.1, i.e., more horizontal targets than 
vertical targets, the horizontal targets will be used as the final 
target locations. The possibility exists for a scenario under which 
three horizontal targets are placed in the daylight opening under 
S5.2.5.1.2, if only two or fewer vertical targets can fit in the 
opening.
Reconsideration Request
    ASC asks whether a distance greater than 360 mm, specified in 
S5.2.5.1.2, should be used to determine the need for a third target 
when the targeting process is performed with targets rotated 90 degrees 
as per S5.2.5.2. The petitioner asks: ``If the 360 mm has been 
established to minimize overlapping of targets in the vertical 
orientation, would it not be appropriate to increase this distance when 
the targets are rotated 90[deg]?'' ASC believes that, given the 
headform dimensions of 176.8 x 226.1 mm, if the absolute distance 
between two vertically oriented targets is at 360 mm, the third target 
will almost touch the two existing targets (with a maximum of 3.2 mm 
gap on each side). ASC further states that ``if the absolute distance 
between 2 horizontally-oriented targets is at 360 mm, the 3rd target 
will overlap the 2 existing targets by as much as 46.1 mm on each.''

[[Page 55158]]

Agency Response
    We decline to increase the 360 mm distance for horizontally-
oriented targets.\32\ There is a potential for three horizontal targets 
to represent the final target locations under provisions of S5.2.5.2. 
The question presented is whether the overlap of the horizontal targets 
is excessive compared to the overlap ``permitted'' by the standard for 
vertical targeting configurations. To help in this assessment we have 
constructed Figure 6, below. This figure shows the maximum allowable 
overlap of targets under three different scenarios.
---------------------------------------------------------------------------

    \32\ We wish to note that if a daylight opening has the size and 
shape to accommodate both three vertically- and three horizontally-
oriented targets (as appears in the example shown in the 
petitioner's figure on page 7 of its petition), the final targets 
must be vertical (see S5.2.5.2). Thus, the predicament highlighted 
in the petition in the figure would not occur in real-world testing.
---------------------------------------------------------------------------

    Note that the maximum amount of overlap is achieved when a target 
axis of a target is aligned with that of another. In the three 
scenarios of Figure 6, the horizontal axes are aligned. Example 1 shows 
the maximum overlap for vertically-oriented targets under the provision 
of S5.2.5.1.1.\33\ The linear overlap of these targets is 42 mm and the 
area of overlap is 5,460 mm\2\. Example 2 shows the maximum overlap for 
horizontally-oriented targets under the provision of S5.2.5.1.1. The 
linear overlap of these targets is 56 mm and the area of overlap is 
5,060 mm\2\. Example 3 shows the maximum overlap for horizontal targets 
under the provision of S5.2.5.1.2.\34\ The linear overlap of these 
targets is 46 mm and the area of overlap is 3,810 mm\2\.
---------------------------------------------------------------------------

    \33\ For simplicity, we used an approximation of the target area 
outline with correct vertical and horizontal dimensions, rather than 
the exact cubic equation prescribed in the final rule.
    \34\ The maximum overlap would be the situation where the 
targets' horizontal axes are aligned. Under S5.2.5.1.2 the third 
target is placed between two target centers that are separated by at 
least 360 mm. The third target is placed such that its target center 
bisects the line connecting the outer targets. Thus the target 
centers of the overlapping targets are separated by 180 mm.
---------------------------------------------------------------------------

    Example 3 is the situation for which ASC suggests the agency should 
make some form of accommodation to reduce the potential overlap. 
However, we see that, when compared to Examples 1 and 2, Example 3 has 
a smaller area of overlap than Examples 1 or 2 and less linear overlap 
than Example 2. The maximum potential overlap under S5.2.5.1.2 for 
horizontal targets is, in fact, less than the maximum potential target 
overlap for other target configurations. All-in-all, we do not believe 
that these targeting scenarios allow for excessive overlap. The 
targeting procedures ensure that the ejection mitigation countermeasure 
is evaluated throughout coverage of the daylight opening. Accordingly, 
because we do not believe the overlap allowed for horizontal targets by 
S5.2.5.1.2 is excessive, we see no reason to limit it further.

[[Page 55159]]

[GRAPHIC] [TIFF OMITTED] TR09SE13.005

c. Rotating the Headform
    The final rule at S5.2.5.3 specifies that if no targets can fit in 
the daylight opening in either the vertical or horizontal orientation, 
the target is rotated about its y-axis in 5 degree increments. From the 
initial target orientation as defined in S5.2.2.2(a), the direction of 
rotation is such that the local z-axis is moved toward the vehicle 
positive x-axis. This continues to be the direction of rotation, for 
all subsequent increments of rotation.
Reconsideration Request
    ASC is unsatisfied with the manner in which the headform is rotated 
under S5.2.5.3. The petitioner states that for some daylight openings, 
the target/headform would need to be rotated more than 270 degrees from 
its initial position to fit in the opening. ASC believes that in such 
an instance, rotating the target/headform in the opposite direction 
``would be more consistent with the adjustment capabilities of the 
impactor.''
Agency Response
    We are denying this request. While the suggestion makes some sense, 
we prefer not deviating from the straightforward, objective instruction 
in the current regulatory text as to how the target/headform is to be 
rotated. The agency will perform its testing by rotating the target/
headform in the specified direction. However, there is nothing to 
preclude a manufacturer from rotating the target/headform in the 
opposite direction if it believes it will have no bearing on its 
ability to certify to the standard.

VIII. Targeting Accuracy

    S7.4 of the regulatory text reads as set forth in the January 19, 
2011 final rule.
    The NPRM provided the following illustration in the preamble to 
explain the requirement (74 FR at 63216-63217):

    As shown in Figure 16, a zone could be established by first 
determining the ``ejection impactor targeting point,'' the 
intersection of the x- and y-axes on the outer surface of the 
headform. Next, the location of first contact between the impactor 
and the ejection mitigation countermeasure (e.g., ejection 
mitigation air bag curtain) would be determined, based on the 
location of the target outlines using the methodology in the 
compliance test specified for identifying the target outlines. A 100 
mm wide zone would be determined by defining two vertical 
longitudinal planes that are 50 mm on either side of the expected 
location of contact by the impactor with the countermeasure. These 
longitudinal planes define a portion of the strike zone. The other 
portion of the zone would be defined by locating the axis normal to 
and passing through the target outline center. As the impactor 
targeting point passes at test speed through the 100 mm wide zone 
(as it passes ``over the plate,'' using the baseball analogy), it 
must stay within 10 mm of the axis passing through the 
center of the target outline center (continuing the analogy, it must 
stay within the vertical zone bounded by the batter's knees and 
chest). This assessment would not be conducted with an ejection 
mitigation air bag curtain

[[Page 55160]]

deployed, as the deployed curtain could obstruct accurate 
measurement of the impactor location and the effect of air bag 
interaction is assessed by the specification previously discussed.
[GRAPHIC] [TIFF OMITTED] TR09SE13.006

Petition for Reconsideration
    The Alliance states that it was not certain of the intent of this 
requirement and was confused by it. It notes that section X(h) of the 
preamble stated that the final rule required that the ``impactor be 
able to deliver the center of the headform through a theoretical 
cylindrical shape.'' The Alliance states its understanding that the 
distance ``D'' seems to be a segment of a line that is parallel to a 
vehicle lateral axis. In reference to the longitudinal planes that 
define the ends of the cylinder, it states that ``vertical and 
longitudinal planes cannot be defined in vehicle coordinates as forward 
and rearward of a lateral segment. From a vehicle perspective, they 
would be inboard and outboard, or right and left of such a segment. 
Perhaps the second sentence should be modified to read: `Determine that 
the ejection mitigation test device can deliver the ejection impactor 
targeting point within a cylinder with radius of 10 mm centered about 
the segment `D' with 50 mm extensions at each end.' ''
Agency Response
    We are granting the request to revise S7.4. The Alliance is correct 
that the zone specified in S7.4 is a cylinder with a 10 mm radius. 
However, ``D'' does not represent the line segment that the cylinder is 
centered around. Rather, ``D'' was intended to be a point of reference 
for the theoretical point of contact with the countermeasure. In 
response to the Alliance's comment that vertical and longitudinal 
planes cannot be defined in vehicle coordinates as forward and rearward 
of a lateral segment, the terms ``forward'' and ``rearward'' in S7.4 
were intended to be in reference to the impactor's direction of travel, 
not the vehicle coordinate system.
    After reading the Alliance's petition, we have revised S7.4 solely 
for purposes of clarifying it. No substantive change is intended. Among 
other things, we have rewritten S7.4 to indicate the cylindrical nature 
of the zone of interest and to eliminate the reference to distance 
``D,'' since the reference to D was confusing to the petitioner.

IX. Glazing

    The final rule included these and other provisions regarding 
glazing issues:
     The high speed impact test is performed with the glazing 
pre-broken, fully retracted or removed prior to the

[[Page 55161]]

impact test. The vehicle manufacturer has the option of choosing the 
test condition. (As a practical matter, pre-breaking tempered glazing 
will destroy the glazing, so tempered glazing is either fully retracted 
or removed.)
     The final rule does not allow the use of movable glazing 
as the sole means of meeting the displacement limit of the standard 
(i.e., movable glazing is not permitted to be used without a side 
curtain air bag).
     Fixed glazing could be used as the sole means of meeting 
the displacement limit of the standard; the glazing would have to be 
advanced glazing in order to meet the pre-breaking procedure of the 
standard.
     If a vehicle has movable advanced glazing, the low speed 
test is performed with the advanced glazing retracted or removed from 
the daylight opening.

a. Applying Pre-Breaking Procedure

    TRW repeats a view it made in its comment to the NPRM. TRW requests 
the agency to reconsider the requirement to perform testing of vehicles 
with movable advanced glazing with the glazing in place and pre-broken. 
The petitioner's approach is to test with all movable glass removed, 
and allow a ``bonus'' to vehicles fitted with movable advanced glazing. 
The bonus would consist of an additional amount of impactor 
displacement, so for example, a maximum displacement of 150 mm would be 
permitted. The petitioner states that such a method would eliminate the 
need for ``onerous'' glass pre-breakage. The petitioner also believes 
that our response to this suggestion, when TRW made it in its comment, 
was ``inappropriate,'' in that the suggested approach would result in a 
more stringent standard, TRW thought, not one that would be less 
stringent, as NHTSA had determined.
Agency Response
    We do not agree to TRW's request to have all testing with movable 
glazing be performed with the glazing removed, rather than pre-broken. 
First, the ``bonus'' approach is undesirable because it presents a 
policy under which a motorist would have a reduced level of protection 
when the window is partially or fully rolled down. Thirty-one percent 
of front seat ejections and 28 percent of all target population 
ejections are through windows that were partially or fully open prior 
to the crash. It is for this reason that we determined that the 
suggested approach would lessen the severity of the test for vehicles 
with advanced glazing. Increasing the allowed displacement or 
decreasing the impact speed of the impactor at windows that had 
advanced glazing would reduce the protection of many motorists who may 
have the window partially or fully rolled down. (76 FR at 3278-3279.)
    We also do not agree that we should adopt the above policy reducing 
the level of protection for the motorists who had the window partially 
or fully down as a means of providing relief to the petitioner for what 
it thinks is an ``onerous'' test procedure. We do not agree that the 
pre-breaking procedure is ``onerous.'' NHTSA addressed this issue in 
the final rule preamble (76 FR at 3279):

    We estimate that it takes our laboratory technicians about 30 
minutes to mark the 50 mm grid pattern and punch all the holes for a 
relatively large front row side window. The time it takes to mark 
the holes per glazing pane can be significantly shortened by laying 
an unmarked pane on top of an already marked pane. If a subsequent 
test is to be performed (as might be the case during research and 
development) and the door trim is installed, it takes approximately 
20 to 60 minutes to replace the glazing. Often this is done in 
parallel with preparations for other aspects of the test, so the 
overall test time is not affected appreciably. This procedure is not 
difficult or onerous to conduct.

    TRW has not provided any additional information on this topic than 
what was provided in comments to the NPRM. Our decision on this issue 
remains as it did when we analyzed those comments.
    For the above reasons, the petitioner's request is denied.
b. Pre-Breaking Procedure Applies to All Glazing
    Paragraph S5.4 of FMVSS No. 226 states in part: ``Subject to 
S5.5(b), prior to impact testing, the glazing covering the target 
location must be removed from the side daylight opening, fully 
retracted, or pre-broken according to the procedure in S5.4.1 . . .''
    The Alliance questions why the phrase ``subject to S5.5(b)'' is 
used in S5.4. The Alliance states that the phrase ``except for 
S5.5(b)'' should be used instead, ``to clarify the pre-breaking does 
not apply to S5.5(b).''
Agency Response
    We are not making the change. It appears that the Alliance has 
misinterpreted S5.4 and S5.5(b). Contrary to the petitioner's 
understanding, the pre-breaking procedure applies to S5.5(b). 
Specifically, the pre-breaking procedure applies to fixed glazing 
tested under S5.5(b). There is never a situation under any part of the 
standard in which glazing is left in place and unbroken.
    In S5.4, the phrase ``subject to S5.5(b)'' modifies the instruction 
in S5.4. Under S5.4 without the modifying instruction, the vehicle 
manufacturer has the option of removing the glazing, retracting \35\ 
it, or pre-breaking it. The ``subject to S5.5(b)'' clause is modifying 
the ability to choose an option. I.e., under S5.5(b), movable glazing 
must be removed or retracted--it cannot remain for the low speed test. 
If the glazing is fixed, it will not be removed but it will be pre-
broken under the terms and conditions of S5.4.\36\
---------------------------------------------------------------------------

    \35\ The glazing may be retracted instead of being removed if it 
can be fully retracted from the daylight opening.
    \36\ As a practical matter, tempered glass can simply be removed 
rather than pre-broken. Tempered glass will shatter and vacate the 
window opening when subjected to the pre-breaking procedure.
---------------------------------------------------------------------------

    Accordingly, the petitioner's request is denied.
c. Meaning of ``Movable Glazing''
    S5.5(b) includes a direction to ``remove or fully retract any 
movable glazing from the side daylight opening.''
    The Alliance asks what is meant by the term ``movable glazing.'' 
The petitioner specifically asks about rear windows that are hinged at 
one edge of the glazing and that are partially opened by rotating the 
window outwards, which the petitioner calls ``pop-out windows.'' The 
Alliance believes that because these windows do not fully retract, pop-
out windows could function as an FMVSS No. 226 countermeasure and 
should be considered ``fixed.''
    Also, the petitioner asks about emergency egress windows on some 
large vans and mini-buses. The Alliance states that the windows are 
closed during normal operation and must be unlocked to provide egress 
during emergency situations. The petitioner asks that these windows be 
considered ``fixed.''
Agency Response
    We consider pop-out windows to be ``movable glazing.'' ``Movable 
glazing'' refers to glazing designed to be moved with respect to 
vehicle or frame. We have added a definition to the regulatory text. 
The glazing can be opened to the outside environment. Movable glazing 
is typically not permanently attached on all edges in its frame, 
compared to fixed glazing. Field data have cases of movable laminated 
glazing detaching from the window opening in a rollover, partly, we 
believe, because the glazing is not encapsulated in a framed 
structure.\37\ We do not think

[[Page 55162]]

it is necessary to indicate the mechanism by which the glazing moves, 
or the direction in which it moves.
---------------------------------------------------------------------------

    \37\ See the final rule's discussion of the field data showing 
the unpredictable nature of movable laminated glazing in real world 
crashes. 76 FR at 3277-3278.
---------------------------------------------------------------------------

    Pop-out glazing is more like retractable glazing than fixed glazing 
in terms of how well it is attached to its frame. We do not have reason 
to think that a laminated pop-out window would perform better in a 
rollover than a laminated window that moves up and down on a track 
mechanism.
    With regard to ``emergency egress windows,'' as far as we can tell, 
the glazing is movable and falls under the term ``movable glazing.'' We 
come to a different conclusion if an emergency egress window could not 
be used in the ``open'' position at all when the vehicle is in motion, 
and have added that condition to the definition.
d. Hinges and Latches
    The agency also received a question by email from Autoliv \38\ on 
whether the hinge or latch components of a pop-out window should be 
considered when determining the daylight opening.
---------------------------------------------------------------------------

    \38\ Copy placed in the docket for this final rule.
---------------------------------------------------------------------------

Agency Response
    Our answer is yes. Our observations of current pop-out window 
designs indicate that the hinge and latch mechanisms would be within 
the 100 mm lateral distance from the inside surface of the window, and 
as such would be included in the determination of the daylight opening. 
Hinge and latch components differ from grab handles in that they are 
physically attached to the window. Thus, their removal for testing may 
create an unrealistic condition for testing a laminated window since 
the hinge and latch components may serve to reinforce the window, at 
least for one test speed.\39\ Also, when we include the hinge or latch 
components in the determination of the daylight opening, we avoid 
impacting the components during testing. Allowing contact of the 
headform with hinge or latch components may artificially impede the 
headform's displacement. Avoiding contact with these structures better 
evaluates the performance of the ejection mitigation countermeasure.

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

    \39\ For movable windows, the 20 km/h high speed test is 
performed with the window pre-broken, but maintained in the daylight 
opening.
---------------------------------------------------------------------------

e. Side Daylight Opening When There Is No Divider
    Side daylight opening is defined in S3 as set forth in the 
regulatory text of the January 19, 2011 final rule.
    In response to a comment on the NPRM, the preamble of the final 
rule addressed non-structural steel dividing elements in a window 
opening. We stated that ``such elements would serve to define the 
daylight opening since they do not consist of glazing. We currently 
have no reasonable way to exclude these dividing elements based on the 
extent to which they may or may not add structural integrity to the 
vehicle.'' 76 FR at 3267.
    In its petition for reconsideration, the Alliance asks for 
clarification of the meaning of ``side daylight opening'' with regard 
to a vehicle without a dividing element of any material between the 
front and rear glazing (depicted on the figure on page 12 of the 
Alliance's petition). The petitioner asks: Does the vehicle have a 
single side daylight opening for the front and rear seating, or does 
each separate piece of glazing constitute a separate daylight opening? 
The petitioner supports the latter view.
Agency Response
    Our answer is we consider the vehicle to have a single side 
daylight opening for the front and rear rows of seats. There is no 
dividing element of any kind between the panes of glazing, no solid 
component between the two pieces of glazing. When the pieces are 
retracted (in the full down position), the daylight opening consists of 
one area. Our view is that the combined panes comprise a single 
daylight opening. The ``periphery of the opening'' is the frame 
surrounding the glazing as shown in the Alliance's figure on page 12 of 
its petition and not just the individual panes of glazing. No rationale 
or justification was provided by the Alliance for its view.

X. Other Aspects of the Test Procedure

a. Headform Cleaning
    In the final rule, the agency declined to adopt a requirement in 
the regulatory text that the headform skin would be cleaned with 
isopropyl alcohol prior to a test. Several commenters had asked for 
such a specification. TRW stated in its comment that frictional 
attributes of the headform skin affect the manner in which the headform 
interacts with the rollover curtain, so talc, chalk, or other coatings 
could affect test results. TRW suggested that the standard specify that 
``no coatings shall be applied to the headform skin during testing'' 
and asked, as did ASC in its comment, that the standard specify that, 
prior to the test, the headform skin must be cleaned. In the final 
rule, NHTSA explained that it concluded there was no need for such a 
requirement, as the commenters provided no data showing the necessity 
of such provision and a comparable standard, FMVSS No. 201, has no 
requirement that the free motion headform be cleaned with alcohol prior 
to testing.
    In its petition for reconsideration, the Alliance states that it is 
concerned about the possible effect that headform surface coefficient 
of friction has on test repeatability. The petitioner states that it 
has preliminary data showing that ``significant excursion variation as 
a function of headform cleanliness,'' and that it would submit the data 
``at a future date along with a recommendation.'' The petitioner did 
not provide such follow-on data or recommendation. The Alliance 
suggests we use the same procedure that is specified for the headform 
in FMVSS No. 201.
    ASC and TRW also petition to have a headform cleaning procedure 
prior to each test. The petitioners recommend cleaning the headform 
prior to the test ``since the deposit of foreign substances on the 
surface of the headform could lead to a lower or higher coefficient of 
friction.'' They state that a modeling study shows that headform 
displacement at targets A1 and B1 beyond the window pane increased and 
decreased with a 20 percent lower and higher coefficient of friction, 
respectively. These petitioners further state that the test procedures 
for upper interior components in FMVSS No. 201, ``Occupant protection 
in interior impacts,'' (``201U''), provide for cleaning of the headform 
skin with isopropyl alcohol or equivalent prior to the test.
Agency Response
    We disagree that there is a need to require the headform surface be 
cleaned prior to testing. The simulation results provided by TRW and 
ASC do not provide sufficient collaboration of their claims. The 
modeling results showed sensitivity to the coefficient of friction for 
an impact location, but there was a lack of detail and specificity 
about the modeling. The results were not shown relevant to actual 
vehicle testing. In a vehicle test, what would have to be done to the 
headform skin to achieve a change in the coefficient of friction of 
 20 percent? How much and what type of a foreign substance 
has to be on the headform to have a  20 percent change in 
the coefficient of friction? How likely is it that a headform in a 
compliance test would have such an amount of substance on it? Without 
this basic information, the submitted modeling study has not shown a 
need for a requirement for cleaning the headform prior to testing.

[[Page 55163]]

    The petitioners state that precedent exists for headform cleaning. 
However, as we said in the preamble to the NPRM, FMVSS No. 201 has no 
requirement that the headform be cleaned with alcohol prior to testing 
in either the regulatory text or compliance test procedure (TP). 
Rather, Appendix A of the TP-201U is a calibration procedure for the 
instrumented free motion headform. Section 12.1 of that document 
specifies that the headform is to be cleaned prior to a calibration 
drop test. Such head skin cleaning is also done before drop test 
calibration of other ATD heads. A headform drop test is not part of the 
FMVSS No. 226 procedure.
b. Vehicle Test Attitude
    The final rule adopted specifications relating to the vehicle test 
attitude (S6.1).\40\ As described below, the vehicle is supported off 
its suspension at an attitude determined in accordance with S6.1(a) 
through (f). S6.1(a) through (f) are set forth in the regulatory text 
of this final rule.
---------------------------------------------------------------------------

    \40\ There are typographical errors in S6.1. Paragraph heading 
``(c)'' is repeated twice, by mistake. The second (c) should be (d). 
Headings (d) and (e) should be (e) and (f), respectively. Errors 
appear in cross-references. Today's document corrects these errors. 
Henceforth from this point, we will refer to the corrected headings 
and cross-references.
---------------------------------------------------------------------------

    The Alliance believes that S6.1 does not address vehicle lateral 
restraint, which the petitioner believes could affect the outcome of 
the test. The Alliance suggests that the agency add a new paragraph 
specifying that the vehicle must be secured on a rigid, fixture so that 
it is adequately restrained, and supported along the sills of the 
vehicle (with the frame supported at multiple locations in the case of 
body-on-frame construction), to prevent lateral or vertical movement.
Agency Response
    We are declining the Alliance request. The standard addresses 
vehicle lateral restraint by specifying that the vehicle is supported 
off its suspension. The agency has had no indication during its 
extensive test program supporting the development and proposal of FMVSS 
No. 226 that test repeatability has been affected by a lack of 
additional lateral restraint. In addition, the Alliance has not 
provided any data to indicate that the test results can be affected by 
a lack of additional lateral support.
c. Inspect Air Bag Mounts
    TRW and ASC made an identical request related to curtain air bag 
mounts. The petitioners recommended that ``the regulatory text and/or 
the test procedure include a provision to inspect the curtain mounts or 
fastening locations, in the vehicle body, prior to each test, if NHTSA 
were to test more than one head target location per window. The curtain 
airbag [sic] mounts or integrity of the fastening locations could be 
compromised during repeated FMVSS [No.] 226 tests.''
Agency Response
    We decline to make the requested change. To begin, we do not agree 
with the implication that associates a curtain mount failure with a 
compromised test. If a curtain mount fails during an initial impact 
with the test device, the failure of the mount is representative of 
real world performance of the system.
    Furthermore, the provision is unnecessary. The agency may choose to 
perform multiple tests on a vehicle and may reuse certain vehicle 
hardware, provided that the multiple tests do not compromise the 
vehicle's performance in the test. In general, we will visually inspect 
reused mounts prior to a test. We will replace components as the need 
arises. Having an ambiguous provision in the regulatory text to inspect 
the curtain mount does not add to the objectivity of the standard.

XI. Secondary Issues

a. Other Typographical Errors

    In additional to the typographical errors previously mentioned in 
this document, this final rule also corrects the following errors which 
were pointed out by the Alliance in its petition:
     S5.2.1.2(c) has the term ``fixed traverse partition.'' The 
correct term is ``fixed transverse partition.''
     The first sentence of S5.2.5.3 refers to S5.2.2.2(a). It 
should be S5.2.2(a).
b. Views on a Dynamic Test Procedure
    In the NPRM and the final rule preambles, the agency explained at 
length its reasons for not incorporating a full-scale vehicle dynamic 
test in FMVSS No. 226. A relevant excerpt from the final rule is as 
follows (76 FR 3285):

    We stated in the NPRM preamble, ``a comprehensive assessment of 
ejection mitigation countermeasures through full vehicle dynamic 
testing may only be possible if it were to involve multiple crash 
scenarios. Such a suite of tests imposes test burdens that could be 
assuaged by a component test such as that proposed today.'' 74 FR at 
63186. We hope that in the future, a full vehicle dynamic test, or a 
suite of tests, could be developed that is appropriate for use in 
FMVSS No. 226. However, at this time, there is not a viable full 
vehicle rollover test procedure to evaluate ejection mitigation. . . 
. [W]e strongly disagree that a delay of this rulemaking to develop 
a dynamic test would be justified. This final rule will save over 
370 lives a year. Each year delayed to develop what is now an 
indefinable full vehicle test will have a substantial human cost.

    We also stated in the final rule that, while we are currently 
pursuing a research program looking at the development of a dynamic 
test to address roof strength and seat belts, a full vehicle dynamic 
test appropriate for ejection mitigation testing might not result as an 
outgrowth of the agency's roof crush and seat belt system research. 
``The vehicle kinematics involved in assessing enhanced protection of 
the occupant within the vehicle (studied in the roof crush and belt 
system programs) may be significantly different from those involved in 
mitigating the risks of occupant ejection to belted and unbelted 
occupants. A dynamic test that is appropriate for assessing roof crush 
and seat belt performance may not necessarily provide the same kind of 
challenge to ejection mitigation.'' Id.
    In its petition for reconsideration, Advocates expresses a 
preference for a dynamic rollover test procedure as a way to examine 
``a more realistic interaction'' of occupants with rollover related 
countermeasures and also to ``fully quantify the costs, benefits and 
practicability of advanced glazing and mitigation of ejection through 
portals.'' Advocates believes that the agency ``should include the 
development of a dynamic rollover test procedure in its strategic 
plan.''
Agency Response
    The views stated in Advocates' petition are not new. They were 
expressed prior to the final rule, and the agency responded to them in 
the final rule preamble (see above and the final rule preamble, 76 FR 
3284-3285).
    The views stated by Advocates do not pertain to an aspect of the 
final rule. The subject is not a matter for a petition for 
reconsideration.
    NHTSA's policy views are subject to change, as safety needs, 
technologies, resources and priorities change. The public will have 
ample opportunity to provide insight and opinions on NHTSA's programs 
at the appropriate times. However, petitioning for reconsideration of 
our decision on a matter relating to future work and the agency's 
strategic plan is not a mechanism recognized by our rulemaking 
regulations. We will not engage in a discourse on our rulemaking and 
research priority decision-making in today's document.
    The current agency rollover research is planned to continue until 
August 2014. At the close of that program the

[[Page 55164]]

agency will assess any applicability of the results to safety issues 
beyond the assessment of roof strength and restraint optimization. The 
need for future research into full-vehicle ejection mitigation testing 
will then be assessed along with all other agency endeavors and 
priorities.

XII. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This rulemaking is not ``significant'' under E.O. 12866, 
``Regulatory Planning and Review'' and the Department's regulatory 
policies and procedures. Although the January 19, 2011 final rule was 
significant, this response to petitions for reconsideration mostly 
denies the petitions for reconsideration of the rule. The few changes 
that are being made in response to the petitions for reconsideration 
are minor, mostly to clarify the requirements of the standard. One 
substantive change is to permit, for vehicles with a partition 
separating an occupant seating area from a cargo area, the partition to 
have a door, but even that change is not significant. We estimate that 
today's final rule has no effect on the estimated costs and benefits 
and other economic impacts of the January 19, 2011 final rule.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, as amended, requires 
agencies to evaluate the potential effects of their proposed and final 
rules on small businesses, small organizations and small governmental 
jurisdictions. I hereby certify that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
Small organizations and small governmental units will not be 
significantly affected since the potential cost impacts associated with 
this final rule will not significantly affect the price of new motor 
vehicles.
    This final rule denies most of the petitions for reconsideration of 
the January 19, 2011 final rule. To the extent we are amending the 
original final rule, we are mainly clarifying requirements, such as by 
adopting a definition. The amendment to permit partitions between an 
occupant area and a cargo area to have a door may have a small positive 
impact on some small final-stage manufacturers and alterers by giving 
them flexibility to use partitions with doors. We do not believe that 
the impact is significant.

Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order 
13132 (64 FR 43255, August 10, 1999). We conclude 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. 
Sec.  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 described 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.

Executive Order 12778 (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 issue of preemption is discussed above in connection with E.O. 
13132. NHTSA notes further that there is no

[[Page 55165]]

requirement that individuals submit a petition for reconsideration or 
pursue other administrative proceedings before they may file suit in 
court.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal 
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 in any one year ($100 million adjusted annually for 
inflation, with base year of 1995). This final rule responding to 
petitions for reconsideration will not result in a cost of $139 million 
or more to either State, local, or tribal governments, in the 
aggregate, or the private sector. Thus, this final rule is not subject 
to the requirements of sections 202 of the UMRA.

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. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. The NTTAA directs us to provide Congress, 
through OMB, explanations when we decide not to use available and 
applicable voluntary consensus standards.
    The agency discussed our analysis of the NTTAA in the January 19, 
2011 final rule and our conclusion that voluntary industry standards 
for glazing would not satisfy the agency's objectives in this 
rulemaking. 76 FR at 3296. Those conclusions continue to reflect the 
agency's findings in this area.

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 significant impact on the quality of 
the human environment.

Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
    If you have any responses to these questions, please write to us 
about them.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Reporting and recordkeeping 
requirements, 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 1.95.

0
2. Section 571.226 is amended by:

0
a. Amending S3 by revising the definition of ``modified roof'' and 
adding, in alphabetical order, a definition for ``movable window'';
0
b. Revising S5.2.1.2(c), S5.2.5.1.1, S5.2.5.2, S5.2.5.3, S6.1, and 
S7.4; and
0
c. Adding Figures 5a and 5b after Figure 5.
    The additions and revisions read as follows:


Sec.  571.226  Standard No. 226; Ejection Mitigation.

* * * * *
    S3. Definitions.
* * * * *
    Modified roof means the replacement roof on a motor vehicle whose 
original roof has been removed, in part or in total, or a roof that has 
to be built over the driver's compartment in vehicles that did not have 
an original roof over the driver's compartment. Movable window means a 
daylight opening composed of glazing designed to be moved with respect 
to the vehicle or frame while the vehicle is in motion.
* * * * *
    S5.2.1.2(c) Vehicles with partitions or bulkheads. If a vehicle has 
a fixed transverse partition or bulkhead behind which there are no 
designated seating positions, a vertical transverse vehicle plane 25 mm 
forward of the most forward portion of the partition or bulkhead 
defines the rearward edge of the offset line for the purposes of 
determining target locations when said plane is forward of the limiting 
plane defined in S5.2.1.2(a) or (b).
* * * * *
    S5.2.5.1.1 Target elimination. Determine the horizontal and 
vertical distance between the centers of the targets. If the minimum 
distance between the z axes of the targets is less than 135 mm and the 
minimum distance between the x axes of the targets is less than 170 mm, 
eliminate the targets in the order of priority given in steps 1 through 
4 of Table 1 (see Figure 5, 5a and 5b) (figures provided for 
illustration purposes). In each case, both the z axes of the targets 
must be closer than 135 mm and x axes of the targets must be closer 
than 170 mm. If the minimum distance between the z axes of the targets 
is not less than 135 mm or the minimum distance between the x axes of 
the targets is not less than 170 mm, do not eliminate the target. 
Continue checking all the targets listed in steps 1 through 4 of Table 
1.
* * * * *
    S5.2.5.2 Target reorientation--90 degree rotation. If after 
following the procedure given in S5.2.5.1 there are less than four 
targets in a side daylight opening, repeat the procedure in 5.2 through 
5.2.5.1.2, with a modification to S5.2 as follows. Reorient the target 
by rotating it 90 degrees about the y axis of the target such that the 
target positive z axis is aligned within 1 degree of the 
vehicle longitudinal axis, pointing in the direction of the vehicle 
positive x axis (see Figures 5a and 5b) (figures provided for 
illustration purposes). If after performing the procedure in this 
section, the remaining targets exceed the number of targets determined 
with the original orientation of the target, the reoriented targets 
represent the final target locations for the side daylight opening.
    S5.2.5.3 Target reorientation incremental rotation. If after 
following the procedure given in S5.2.5.2 there are no targets in a 
side daylight opening, starting with the target in the position defined 
in S5.2.2(a), reorient the target by rotating it in 5 degree increments 
about the y axis of the target by rotating

[[Page 55166]]

the target positive z axis toward the vehicle positive x axis. At each 
increment of rotation, attempt to fit the target within the offset line 
of the side daylight opening. At the first increment of rotation where 
the target will fit, place the target center as close as possible to 
the geometric center of the side daylight opening. If more than one 
position exists that is closest to the geometric center of the side 
daylight opening, select the lowest.
* * * * *
    S6.1 Vehicle test attitude. The vehicle is supported off its 
suspension at an attitude determined in accordance with S6.1(a) through 
(f).
    (a) The vehicle is loaded to its unloaded vehicle weight.
    (b) All tires are inflated to the manufacturer's specifications 
listed on the vehicle's tire placard.
    (c) Place vehicle on a level surface.
    (d) Pitch: Measure the sill angle of the driver door sill and mark 
where the angle is measured.
    (e) Roll: Mark a point on the vehicle body above the left and right 
front wheel wells. Determine the vertical height of these two points 
from the level surface.
    (f) Support the vehicle off its suspension such that the driver 
door sill angle is within 1 degree of that measured at the 
marked area in S6.1(d) and the vertical height difference of the two 
points marked in S6.1(e) is within 5 mm of the vertical 
height difference determined in S6.1(e).
* * * * *
    S7.4 Targeting accuracy. Determine that the ejection mitigation 
test device can deliver the ejection impactor targeting point through a 
zone defined by a cylinder with a 20 mm diameter and 100 mm length, 
when the ejection impactor is moving at the speed specified in S5.5. 
The projection of the long axis of the cylinder is normal to the target 
and passes through the target center. The long axis of the cylinder is 
bisected by a vehicle vertical longitudinal plane passing through the 
theoretical point of impact with the countermeasure.
* * * * *
[GRAPHIC] [TIFF OMITTED] TR09SE13.007


[[Page 55167]]


* * * * *

    Issued on August 29, 2013.
David L. Strickland,
Administrator.
[FR Doc. 2013-21605 Filed 9-6-13; 8:45 am]
BILLING CODE 4910-59-P