Federal Motor Vehicle Safety Standards; Occupant Crash Protection

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Final rule; response to petitions for reconsideration.

SUMMARY:

This document responds, in part, to petitions for reconsideration of the amendments we made in December 2001 to our May 2000 Federal motor vehicle safety standard (FMVSS) No. 208 advanced air bag final rule. Because of the time constraints faced by vehicle manufacturers in certifying a portion of their fleet to the advanced air bag requirements, we are bifurcating our response. This document addresses those portions of the petitions that we believe are the most time sensitive or that address minor, easily resolved technical issues. In particular, we are responding to those portions regarding the length of time during which data will be collected during low risk deployment tests, a change in dummy positioning procedure for one of the driver position low risk deployment tests, and issues related to the air bag warning label and the telltale that indicates when the passenger air bag has been automatically suppressed. A second document addressing the remaining issues raised by the petitioners will be issued at a later date.

DATES:

Effective Date: The amendments made in this rule are effective February 5, 2003.

Petitions: Petitions for reconsideration of the amendments made by this rule must be received by February 20, 2003.

ADDRESSES:

Petitions for reconsideration should refer to the docket and notice number of this document and be submitted to: Administrator, National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

For non-legal issues, you may contact Lori Summers, Chief, Light Duty Vehicle Division, Rulemaking, NVS-112. Telephone: (202) 366-1740. Fax: (202) 493-2739. E-mail: Lori.Summers@NHTSA.dot.gov.

For legal issues, you may contact Rebecca MacPherson, Office of Chief Counsel, NCC-112. Telephone: (202) 366-2992. Fax: (202) 366-3820.

You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background: The Advanced Air Bag Final Rule

II. Petitions for Reconsideration

III. Summary of Response to Issues in Petitions

IV. Time Duration for Low risk Deployment Tests

V. Test Procedure for the Driver Air Bag Systems

VI. Issues Related to Warning Labels and Telltale Requirements

A. Warning labels

B. Telltale requirements

VII. Rulemaking Analyses and Notices

I. Background: The Advanced Air Bag Final Rule

On May 12, 2000, we published in the Federal Register (65 FR 30680) a final rule and an interim final rule to require advanced air bags (Docket No. NHTSA 00-7013; Notice 7) (May 2000 final rule). The rule amended FMVSS No. 208, Occupant Crash Protection, to require that future air bags be designed so that they create less risk of serious air bag-induced injuries than current air bags, particularly for small women and young children, and provide improved frontal crash protection for all occupants by means that include advanced air bag technology.

The issuance of the May 2000 final rule completed the implementation of our 1996 comprehensive plan for reducing air bag risks. The Transportation Equity Act for the 21st Century (TEA 21), which was enacted in 1998, required us to issue a rule amending Standard No. 208:

to improve occupant protection for occupants of different sizes, belted and unbelted, under Federal Motor Vehicle Safety Standard No. 208, while minimizing the risk to infants, children, and other occupants from injuries and deaths caused by air bags, by means that include advanced air bags.

Eight petitions for reconsideration of the May 2000 final rule were submitted to the Agency (see Docket No. 7013). Four of the petitions were from manufacturers of vehicles or air bags. Petitions were also filed by three industry associations representing vehicle manufacturers, and by a coalition of four consumer groups. In addition, NHTSA received two requests for clarification within the time period for filing petitions and three comments that would have been considered petitions for reconsideration had they been timely filed. All submissions were addressed in the Agency response published in the Federal Register on December 18, 2001 that made several changes to the May 2000 final rule (66 FR 65376, Docket No. NHTSA 01-11110) (December 2001 final rule).

These changes included a number of refinements to the dummy positioning procedures for the low risk deployment tests and, to a lesser degree, for the automatic suppression tests. In the December 2001 final rule, the Agency also modified the period of time during which the injury criteria must be met for the low risk deployment tests from 300 milliseconds (ms) to 125 ms after initiation of the final stage of an air bag designed to deploy in a 26 km/h (16 mph) rigid barrier crash. We also corrected an error in the regulatory text of the May 2000 final rule regarding the exclusivity of the new advanced air bag warning label on the sun visor and clarified that information regarding air bags or seat belts may be placed elsewhere in the vehicle as long as the information in those warnings is consistent with the information contained in the required label. Additionally, the regulatory text concerning the telltale light required for automatic suppression systems was changed to be more consistent with the requirements of FMVSS No. 101, Controls and Displays. Other changes that are not the subject of today's rule were also made.

II. Petitions for Reconsideration

We have received eight petitions for reconsideration of the December 2001 final rule. These petitions were filed by the Alliance of Automotive Manufacturers (Alliance), Mitsubishi, Volkswagen, Honda, Porsche, DaimlerChrysler, Ford, and Toyota. Additionally, BMW and Ferrari filed petitions shortly after the deadline for filing petitions for reconsideration had passed. Under agency regulations (49 CFR 553.35(a)), late-filed petitions for reconsideration are treated as petitions for rulemaking. However, neither of these two petitions raised issues that had not also been addressed by the other timely petitioners for reconsideration. Thus, as a practical matter, the issues in the two petitions will be considered as part of the agency response to the timely-filed petitions for reconsideration. TRW submitted a request for clarification and a comment on one of the issues raised by all petitioners, namely the time-duration for meeting the injury criteria during the passenger-side low risk deployment tests. Several supplemental submissions were also submitted to the docket after the deadline for filing petitions for reconsideration.

In this document, we are responding to those portions of the petitions regarding the time duration for collecting injury criteria data during the low risk deployment tests, a change in dummy positioning procedure for one of the driver position low risk deployment tests, and issues related to the air bag warning label and the automatic suppression telltale. Only those portions of the petitions directly related to these matters will be discussed in this document. The remaining issues will be addressed in a subsequent document.

III. Summary of Response to Petitions for Reconsideration

As noted above, today's rule addresses only those issues raised in the petitions for reconsideration that are likely to have an important, immediate impact on vehicle manufacturers or that correct inadvertent changes that were made to the regulatory text in the December 2001 final rule.

Two significant issues are resolved by this document. First, we address the time duration for collecting injury criteria data during the tests to determine whether a low risk deployment air bag system complies with the standard. We have decided to grant the petitioners' request that the period for the three-year-old and six-year-old low risk deployment tests end at 100 ms after the air bag first starts to deploy instead of 125 ms after the final stage of the air bag starts to deploy. The longer time duration for low risk deployment tests specified in the December 2001 final rule will continue to apply to the driver position low risk deployment tests and to the infant low risk deployment tests.

The second major issue involves the labeling requirements associated with all advanced air bag requirements. We have made changes to the current label, depicted in Figure 8 of the standard, and have decided to reinstate our prohibition against placing additional information regarding air bags on the sun visor. The current label will be allowed for vehicles certified to the advanced air bag requirements before September 1, 2003, although vehicle manufacturers may choose to use the new label, which is depicted in Figure 11, on those vehicles under the existing provision allowing early compliance. Notwithstanding the prohibition, we have also established a procedure under which a manufacturer may request permission to add design-specific information to the sun visor label with the Agency's approval. Today's rule also corrects an error in the regulatory text that suggested the new advanced air bag labels are only required for vehicles certified to the automatic suppression options.

Finally, the rule makes a correction to the chin-on-module low risk deployment test position, corrects a couple of errors related to the telltale requirement for vehicles certified to the automatic suppression requirements, and makes a few minor, non-substantive changes.

IV. Time Duration for Low Risk Deployment Tests

We adopted a specific period of time for meeting the injury criteria in the May 2000 final rule. In that rule, we required that all injury criteria be met for the first 300 ms of the test, a time period that we believed would encompass any air bag-related risk of injury. Several petitioners for reconsideration of that rule argued against adopting a 300 ms period for the low risk deployment tests.

While rejecting the recommendation made by the Alliance that injury criteria be met for 300 ms or until the dummy is no longer in contact with the air bag, whichever occurs first, as inherently non-objective, we did modify the test duration for the low risk deployment tests in the December 2001 final rule.

As discussed in that rule, the test duration for low risk deployment tests should accurately reflect the propensity of the deploying air bag to harm an occupant while it is deploying. Thus, we adopted a time duration for the low risk deployment test of 125 ms from the initiation of deployment of the final air bag stage that will fire in a 0-26 km/h (16 mph) crash. We believed this time frame would adequately measure air bag-related injuries without reflecting injuries due to secondary vehicle interior impacts (referred to below as “secondary impacts”) that are unrelated to air bag deployment. We noted that we intend to monitor our test data to determine whether the specified time period is, in fact, sufficient to include all air bag-related injuries, leaving open the possibility of increasing the time duration if needed. We also noted that the 300 ms time duration remains in full effect for all barrier tests.

In October 2001, the Alliance petitioned NHTSA to limit the time period to 100 ms from the initial deployment of the air bag. Alternatively, it suggested developing an algorithm that would determine when the forces imposed on the dummy by the air bag no longer significantly influences the movement of the dummy. In a supplemental submission, dated April 29, 2002, the Alliance dropped its support of this alternative approach.

The Alliance argued that both the original 300 ms time frame and the new 125 ms after the initiation of the final stage of air bag deployment effectively prevent vehicle manufacturers from certifying compliance with the advanced air bag requirements using low risk deployment technologies. It stated that both time periods capture non-representative secondary impacts with vehicle interior components (primarily the seat back on the passenger side). It argued that these interior vehicle impacts are artifacts of the test, which is static, and are not representative of what happens in real world crashes. It provided sled test data simulating a dynamic crash test compared to a low risk deployment test, suggesting that the interactions of test dummies with the vehicle's interior components during dynamic tests are not significant.

The Alliance also claimed that the final stage of most multi-stage air bag systems that is not deployed in a crash to provide occupant protection is only deployed to expense the remaining air bag propellant, not to provide any additional protection for the affected occupant. It stated that this final “dispensing” stage would generally expense approximately 100 to 300 ms after the initial deployment of the air bag, a time delay which, it argued, is sufficiently late to prevent any risk of air bag-related injury. In addressing the agency's concerns with the injury potential of a secondary impact, the Alliance noted that it did not believe NHTSA's reliance on reports of secondary impacts in existing special crash investigation (SCI) cases was warranted since those cases involved air bags that would not meet the low risk deployment criteria. Accordingly, it did not believe the SCI cases were indicative of future air bag performance. Finally, the Alliance stated that a time duration of 125 ms from the initial deployment of the air bag was too long to eliminate injuries attributable solely to secondary impacts.

Toyota, Mitsubishi, DaimlerChrysler, Honda, Volkswagen, and Porsche all supported the Alliance request to end the period during which data are collected for compliance purposes at 100 ms after the initial deployment of the air bag. DaimlerChrysler also suggested that the seat back be adjusted to its fully reclined position (or the seat be removed) to avoid any possibility of a secondary impact. Honda suggested an alternative requirement under which the collection of data for compliance purposes would cease 10 ms after the dummy head no longer interacted with the air bag. It maintained that the maximum injury values, other than those related to secondary impacts, generally occurred during dummy head interaction with the air bag or very shortly (i.e., within 10 ms) thereafter, and therefore asked us to limit the period during which the injury criteria must be met and data are collected for the low risk deployment tests to 10 ms after dummy interaction with the air bag ceases. This approach had been presented earlier by the Alliance in an October 2001 petition for rulemaking. Volkswagen and BMW suggested an alternative means of limiting the collection of compliance data would be to review the test video and data traces to separate air bag-induced injury readings from secondary impacts. They stated that such a method would most effectively ensure that all air bag-related injuries were captured without penalizing manufacturers for secondary impacts. BMW noted that NHTSA has established a precedent for using film analysis to determine compliance in FMVSS No. 201, Occupant protection in interior impact. TRW offered a similar alternative, under which film and data channel analyses would be used to limit the collection of compliance data. It also advocated a 300 ms time-frame for all rear-facing child seat testing. Autoliv advocated a much more basic approach under which NHTSA could make a case-by-case determination that the secondary impact was unrelated to the air bag.

This is a complex issue. As we noted in the preamble to both our May 2000 and the December 2001 final rules, we do not believe that all dummy contact with the vehicle interior would necessarily be the result of dummy interaction with an overly aggressive air bag. This is because a dummy subjected to the deployment of any air bag in a low risk deployment test will continue to move rearward until it strikes some object, and because the low risk deployment test does not take into account the forward momentum of the dummy that would typically be present in a real world crash in which the frontal impact air bags deploy. For these reasons, we are reluctant to retain the existing compliance data collection period, particularly because it may effectively preclude manufacturers from complying with the rule through the use of low risk deployment technologies. Nevertheless, we remain concerned that an air bag propelling the dummy backward with excessive force could result in secondary impacts relatively early in the crash event. These new low risk air bag technologies remain relatively untested by NHTSA, and we are somewhat dependent on the manufacturers' experience in the testing and development of their own systems.

Accordingly, we have decided to limit the data collection for compliance purposes to 100 ms after initial deployment of the air bag for systems that are certified to either S21.4 (3-year-old) or S23.4 (6-year-old), as requested by the Alliance and supported by other petitioners. All injury measurements recorded during that time that exceed the allowable values, regardless of the source of injury, will be considered noncompliances. We continue to believe that setting a specific time period is the simplest, most appropriate, and most objective way to determine which data to collect for compliance purposes. The basis for our decision is set forth below. However, as discussed in the December 2001 final rule, we will actually record the dummy injury measurements for a longer time period dependent upon the data collection system. If there is any indication that peak injury measurements recorded after 100 ms are the result of an air bag's aggressiveness, we may choose to initiate rulemaking to increase the period of time that data will be considered for compliance purposes.

The primary thrust of the Alliance's petition is that, in a real world crash, a child would have sufficient forward momentum relative to the vehicle, and thus experience a lower change in velocity due to the air bag interaction, to prevent serious injuries resulting from secondary impacts with the interior of the vehicle. Thus, the high injury readings associated with secondary impacts in the static low risk deployment tests (primarily high neck injury readings) are artifacts of those tests and do not represent a real world condition. The Alliance presented one set of sled test results, comparing one low risk deployment test (6-year-old dummy in position 1) to a 26 km/h (16 mph) dynamic sled test to support its position.

We agree that the rebound velocity of a dummy in the static low risk deployment test does not replicate the rebound velocity of an out-of-position occupant in a real world crash in which the occupant moves forward as a result of vehicle braking and crash dynamics. The forward momentum of the occupant in such a crash will reduce the velocity with which the occupant is thrown back into the seat. The amount of this forward momentum (and the resulting reduction in rearward momentum) is impact velocity-dependent. In low speed crashes, the forward momentum will be less than in higher speed crashes. Since air bags may be designed to deploy at impact speeds considerably less than the 26 km/h (16 mph) used in the Alliance sled test, we are uncertain that forward momentum alone will be sufficient to prevent rebound injuries that are the result of the air bag's propelling an individual rearward. Likewise, our experience with the SCI data indicates that secondary impacts are not limited to seat backs, but could be into the B-pillar, the door, or even the header. However, the SCI cases are inconclusive as to whether or not the secondary impacts result in more serious injury than those produced by the air bag.

The Alliance also suggested that the agency's reliance on SCI data to justify our concern that secondary impacts could be the result of air bag interaction depended on old air bag designs that could not meet the low risk deployment requirements. The Alliance's point is well taken. We note that no vehicles in the SCI database were designed to meet the advanced air bag requirements. Indeed, to the best of our knowledge, there is only one SCI case of a “lower powered” (i.e., model year 1998 or later) air bag-equipped vehicle that resulted in a critical injury (AIS 5) and was also reported to have seat back contact. That case involved a 1999 Ford Contour. We do not believe the passenger air bag in that vehicle would be sufficiently benign to meet the low risk deployment requirements. We also have some concerns about our ability to attribute the serious injuries to seat back contact, as the subject case involved a crash in which the delta-V has been determined to be around 48 km/h (30 mph).

The Alliance also indicated that the typical low risk deployment systems that are likely to be used in future vehicles would consist of an initial, benign deployment with a secondary “expensing stage” that would occur at least 100 ms after the initial deployment. It maintained that this “expensing stage” would occur so late in the crash event that it could not be the source of air bag interaction or rebound injury. It also provided data using an inflator designed to expense 40% of the air bag's propellant initially and 60% secondarily (40/60 air bag design). In that instance, the secondary deployment occurred 200 ms after the initial deployment and did not result in any excessive injury response measurements at the end of the crash event. As noted in the December 2001 final rule, our concern is with 40/60 air bag designs for which the second deployment has the propensity to cause injury. We do not find persuasive the Alliance's contention that the second stage of deployment will always be benign, but believe that injury measurement assessment for 100 ms will ensure that a second stage deployment does not occur during significant occupant engagement with the air bag.

Finally, the Alliance stated that a 125 ms fixed time duration is too long to exclude secondary impacts. To the extent we believe the majority of secondary impacts are not representative of what happens in real world crashes, the test duration should be sufficiently short to limit significantly the potential for secondary impacts while being of sufficient duration to capture the full air bag deployment. We believe a 100 ms time duration will capture the full air bag deployment and induce manufacturers to reduce the dummy rebound velocities into the seat back and cap the rebound velocity to some degree. There is no evidence that suggests that a 125 ms data collection would reduce the likelihood of injuries more than a 100 ms collection.

We agree with manufacturers that high injury measurements due to secondary impacts can be an artifact of the low risk deployment test. The 100 ms time frame adopted today will minimize the likelihood that a vehicle occupant will be thrown into the seat back or other vehicle component prior to 100 ms, as vehicle manufacturers will need to ensure that their air bags are sufficiently benign to avoid such contacts during that time frame. This is because any failure of the injury criteria, regardless of whether it is the result of direct air bag interaction or a secondary interaction with another vehicle component, will be considered a noncompliance. It is for this reason that we are denying DaimlerChrysler's petition for an explicit exclusion of air bag stages that are not required to provide occupant protection and for performing the test with the seat back fully reclined or removed. However, as noted above, we will continue to monitor the test results, and initiate rulemaking if we determine that injury measures beyond 100 ms are due to overly aggressive air bags.

Vehicle manufacturers have not demonstrated that secondary impacts are a compliance problem on the driver side of the vehicle or with a rear-facing child restraint on the passenger side. Additionally, unlike the 3-year-old and 6-year-old dynamic tests relied on by the Alliance to support its position that secondary impacts are a test anomaly, there will not be a significant amount of forward momentum relative to the vehicle in a dynamic test with an infant dummy in a rear-facing child restraint. The infant dummy is restrained in a rear-facing child restraint that is coupled to the vehicle chassis via the vehicle seat belt system. Thus, the static test condition is more representative of the real world crash event. Accordingly, we are retaining the specification that data be collected for compliance purposes in S19.3 (12-month-old) and S25.3 (driver-side) for 125 ms after initiation of the final stage of deployment for crashes up to 64 km/h (40 mph) and 26 km/h (16 mph), respectively.

We are rejecting the other suggestions offered by petitioners because we believe they are insufficiently objective. Honda's suggestion that data collection for compliance purposes end 10 ms after head interaction with the air bag ceases suffers from the same lack of objectivity as the Alliance petition that we denied in the December 2001 final rule. It is simply not possible to determine with any assurance exactly when that interaction ceases. The suggestion of a film analysis is likewise impractical. Autoliv's suggestion that NHTSA make a case-by-case determination as to when the secondary impact is air bag-related would likely result in significant debate and pose legitimate concerns about objectivity, repeatability, and enforceability.

We have changed S4.11(b) of the regulatory text to specify injury criteria will be considered for “100 milliseconds after the initial deployment of the air bag” rather than “100 milliseconds after the air bag is signaled to deploy.” The reason for this change is to be more precise about when the 100 ms time-frame begins. Manufacturers may, for very valid reasons, build time delay circuitry into their air bag systems. If the test duration began at the signaling of air bag deployment, the data acquisition period would be shortened by the period of the delay. Changing the regulatory text to “initial deployment of the air bag” is intended to capture that moment in time when the chemical or other process begins to inflate the air bag. If there is no designed delay built into the electrical circuitry, then the signal for air bag deployment and the initiation of deployment will effectively be coincident.

V. Test Procedure for the Driver Air Bag Systems

As part of the December 2001 final rule, the agency made several changes to the regulatory text governing dummy positioning procedures. In many instances, these changes were intended to be substantive in nature. For example, we changed the location for positioning the dummy chin on the steering wheel in the driver chin-on-rim test (position 2) because we believed the change would lead to a more repeatable test procedure and would minimize the risk that the dummy chin would become lodged over the steering wheel, potentially distorting the dummy kinematics.

However, many of the changes were made purely to improve the logic of how the test was to be performed and to create greater consistency among the various tests. For example, changes were made in the sequencing of the test procedure so that one could follow the procedure step-by-step. Likewise, terminology was made more uniform among the various tests. The agency did not intend these changes to have a substantive effect. Accordingly, the preamble to the December 2001 final rule did not discuss the changes.

Mitsubishi, Volkswagen, and Autoliv stated in their petitions that one of the changes to the driver chin-on-module test (position 1) (S26.2.6) made a substantive change to the test procedure that was not justified, or even discussed in the preamble. Follow-up letters by the Alliance, Ford and GM reiterated this concern. The position aligns the chin with the center of the area where the air bag deploys. The original position aligned the chin with the top of the air bag module. Petitioners have argued that the new specification lowers the dummy head position and could make the test more stringent and unrealistic. Additionally, Autoliv and Ford asked if the seat height could be adjusted to achieve the desired dummy height.

Petitioners are correct that the change was not discussed. It was intended to create consistency between this test and other tests in which a portion of the dummy was to be positioned in alignment with the place in the vehicle where the air bag initially deploys. It was not intended to have a substantive effect. We do not know at this time whether lowering the dummy head a couple of inches will have a significant effect on recorded injury measurements. However, we recognize it could. Since no substantive change was intended, we have reverted back to the positioning language that was in the May 2000 final rule. This language places the chin on the top of the air bag module. It also states that the dummy height can be adjusted using either the seat height adjustments or spacer blocks. All other changes to the chin-on-module positioning procedure adopted by the December 2001 final rule are retained, at least at this time. However, other changes may be made in our second response to the petitions for reconsideration.

VI. Issues Related to Warning Labels and Telltale Requirements

A. Warning Labels

In the May 2000 final rule, we added a new warning label that must be used in vehicles with advanced air bags to replace the warning label currently required. The warning on the new label deleted the earlier label's statement: “Never put a rear-facing child seat in the front” in recognition that the advanced air bag requirements are intended specifically to minimize the risk related to air bag deployments. We also removed the statement on the label that is required in earlier motor vehicles that one should sit as far away from the air bag as possible because while this information is helpful, we did not believe it merited overcrowding the label. We added an instruction to read the vehicle owner's manual to learn more about the advanced air bag systems in the vehicle.

We also stated in the preamble that we would not prohibit additional labels on the sun visor that provided design-specific information on how to use a vehicle's advanced air bag technology. As stated in the preamble to the May 2000 final rule, we intended to allow additional, design-specific information on the sun visor and near the new air bag warning label. However, the amendments to the regulatory text mistakenly maintained the existing prohibition against adding additional information on the sun visor.

Accordingly, in the December 2001 rule, we amended the regulatory text to clarify that a label with such design specific information could be placed, at the manufacturer's option, on the sun visor alongside the air bag warning label. Alternatively, the manufacturer could determine that an additional label placed elsewhere in the vehicle, either permanently or temporarily, could best inform vehicle occupants about a particular characteristic of the vehicle's air bag system. We noted that advanced air bag systems are different from traditional air bag systems in that there is likely to be a variety of advanced air bag systems with differing and/or unique design characteristics. Thus, there may be instances in which a manufacturer determines that particular information should be conveyed regarding vehicle occupant behavior as it affects the performance of that vehicle's air bag system. We believe that the owner's manual alone may not be an adequate means of communicating that information to the vehicle owner and chose not to foreclose such communications through our rule.

No change was made to the regulatory text regarding the placement of labels elsewhere in the vehicle because historically there has been no express prohibition against labels that convey specific, accurate information about air bags or seat belts in locations other than the sun visor. However, we did amend the regulatory text to clarify that any additional labels, regardless of where they are placed in the vehicle, cannot be confusing or misleading when read in conjunction with other labels required by this or other standards.

The Alliance petitioned NHTSA to amend the labeling requirements of the December 2001 final rule in three respects. First, it asked NHTSA to reinstate its prohibition against other labels regarding air bags or seat belts on the sun visor. It claimed that we had not provided an adequate justification for reversing the position we adopted in 1993 that additional information on the sun visor would contribute to information overload for the consumer, resulting overall in a less effective warning. Second, it petitioned the agency to reconsider its position on permitting other labels elsewhere within the vehicle interior (i.e., not located on the sun visor), urging us to adopt a blanket prohibition on additional air bag-related labels within the vehicle interior. Finally, it asked that the advanced air bag label be modified by adding a bulleted statement discouraging front seat installation of rear-facing infant seats.

In its supplemental submission, the Alliance suggested additional changes that it believes would strengthen the required label. In its petition, the Alliance also noted an apparent error in the regulatory text that only mandated the use of the new label in vehicles with automatic suppression systems. DaimlerChrysler raised similar concerns. In addition, DaimlerChrysler noted an incorrect reference in the regulatory text governing labels to a previous section of the regulation that had been repealed. That change has been made.

On April 26, 2002, GM requested that the revised effective date for any new label adopted by NHTSA be no sooner than September 1, 2003, with early compliance permitted. This request was made because GM is currently producing vehicles certified to the advanced air bag requirements which have the label required by the May 2000 and December 2001 final rules. The Alliance reiterated GM's request in its supplemental submission.

NHTSA always intended the new advanced air bag label, depicted in Figure 8, to be required in all vehicles certified to the advanced air bag requirements. Due to an error, the amended regulatory text that was adopted in the December 2001 final rule stated that the new label was only required for systems that use automatic suppression systems. We have amended the text to require that the required label be placed in all vehicles certified to the advanced air bag requirements, regardless of the technology used to meet the requirements.

We have decided to change the required label for vehicles certified to the advanced air bag requirements. This new label is depicted in Figure 11. It differs from the label in Figure 8 in that it includes a bullet statement that states “never put a rear-facing child seat in the front”. The bullet will not be required in those vehicles that meet the requirements for an air bag on-off switch, i.e., the vehicle has no rear seat or a rear seat that is too small to accommodate a rear-facing child restraint. Although the advanced air bag systems are intended to minimize the risk of injury or death to infants in rear-facing child restraints, the only means to completely eliminate the risk is to never place a child or infant in a rear-facing child seat in the vehicle's front seat. We believe it is important to continue to highlight the especially high risk of air bag-related injury or death to children in rear-facing child restraints and, indeed, to continue to educate the public about the need to ensure that all children ride properly restrained in the back seat, since this is the safest place for children, irrespective of air bag risks.

We have not made the other changes advocated by the Alliance, namely the replacement of the phrase “even with advanced air bags” with the phrase “death or serious injury can occur” and the addition of the qualifier in the first bullet that the referenced children are “children 12 and under.” As noted above, it is critical that vehicle occupants understand how their advanced systems work if they are to provide consistent protection—particularly those systems, such as automatic suppression, whose effectiveness could be directly affected by occupant behavior. By highlighting the advanced air bag features on the warning label, we believe vehicle owners will be more likely to heed the final bullet on the label, which is to consult their owner's manual for full details about the advanced air bag system.

We have decided against adding the “12 and under” qualifier because we believe the qualifier has served its originally intended purpose, which was to educate the public to the size of occupant that may be at risk from an air bag deployment. We will continue to use the qualifier in our educational literature, and continue to believe it is a useful tool for helping distinguish those particularly at risk, but have chosen in the interest of brevity and clarity to make reference to “children” on the sun-visor label rather than “children 12 and under.”

We are granting GM's request that the new label not be required until September 1, 2003, the first day of the phase-in implementing the advanced air bag requirements. This should provide vehicle manufacturers sufficient time to order and install the new labels without penalizing them for early compliance with the advanced air bag requirements. The current label will be allowed for vehicles certified to the advanced air bag requirements before September 1, 2003, although vehicle manufacturers may choose to use the new label depicted in Figure 11 on those vehicles under the existing provision allowing early compliance.

As discussed above, the Alliance seeks reinstatement of a prohibition against supplemental air bag information on sun visors and the adoption of a prohibition against such information anywhere in the occupant compartment. The Alliance argues that these actions are necessary to prevent problems of dilution of message and information overload. It argues further that these problems are as large today as they were in the mid-late 1990s at the height of the air bag injury problem.

The question of whether information overload may tend to dilute the message should be considered in light of changing technology and maturing communication needs. In the rulemakings addressing the air bags of the mid 1990s, the agency focused on the twin messages of moving away from air bags and properly using seat belts and other restraints. In considering what messages should be placed on the label, the Agency recognized that, from the point of view of occupant behavior, all airbag systems of that generation operated similarly. Vehicle occupants could not control how or whether an air bag would deploy, but could control whether they were properly seated within the vehicle and properly restrained.

The messages of the 1990s remain critical. The incorporation of technologies to minimize the risks of air bags to occupants should not detract from the primary message that proper occupant seating and restraint use are the most critical factors in minimizing air bag induced injuries. However, the communication needs surrounding advanced air bags, while including the same needs as before, also involve additional complexities. The advent of advanced air bag technology may include air bag systems that respond differently based on the location or characteristics of a particular occupant. While the owner's manuals should contain detailed descriptions of each particular airbag system and how an occupant can best utilize it, the Agency remains convinced that there is benefit to permitting such information to be visible to occupants while riding in the vehicle.

In the December 2001 final rule we tried to balance the potential need for additional design-specific information with the possibility of confusion by prohibiting labels with the potential to confuse or mislead a consumer when read in conjunction with the required label. The Alliance argues that the balance we tried to strike eliminates or reduces the benefits of consistency and repeated exposure that led us originally to mandate particular words and format and to avoid the possibility of diluting these important messages through too many or differing messages.

We agree that a better balance can be struck. While the prohibition against potentially confusing or misleading labels remains, we will continue to permit manufacturers to add design specific information to their sun visor labels. However, to avoid the possibility of information overload, manufacturers must first seek the Agency's approval and may place additional design specific information on the label only after the Agency has granted them permission to do so.

We have set up a procedure under which a vehicle manufacturer can ask for agency authorization to add specific language to the required sun visor warning label addressing the air bag system's unique features. The agency will only authorize or reject the label submitted by the manufacturer. It will not make any judgment as to whether one or more of a variety of labels best prevents information overload, or whether the new information best addresses a particular air bag risk, and it will not suggest alternative language if it rejects a manufacturer's request. Moreover, the agency will not verify or vouch for the accuracy of the information. The agency decision will be limited to a determination that the additional information is not confusing or misleading when the entire label is read as a whole and does not result in information overload; that is to say, the label is not conveying so much information that it is unlikely to be read or taken seriously. We believe this procedure will allow for the provision of design-specific warnings without diminishing the label's effectiveness due to information overload.

In order to obtain NHTSA's authorization, the manufacturer's proposal must meet the following criteria:

• The information that would be added must be design-specific and not applicable to all or most air bag systems;
• The additional information must address situations in which foreseeable occupant behavior can affect air bag performance; and
• The manufacturer's request must provide a mock-up of the label with the specific language that would be added to the label.

Although this procedure places a burden on the agency to determine what constitutes information overload, we believe it will allow us to control the potential for information overload without substituting our judgment for the manufacturer's as to what information vis-a-vis a particular system is most important or germane. Because the information will be specific to the implementation of a particular air bag system in a particular vehicle, and not applicable to all or most airbag systems, we do not believe public comment would be helpful or necessary before making the determination.

The Alliance also requests that we further prohibit any other labels or information elsewhere in the interior compartment of the vehicle. Standard No. 208 has not historically contained any such express prohibition. This lack has not led to increasing numbers of labels and confusing messages, perhaps because the question of whether labels could be placed elsewhere in the vehicle had not been debated. While we do not today extend the prohibition throughout the occupant compartment, should information overload from such additional labels threaten to become a problem, we may reconsider this decision.

The procedure through which additional information can be placed on the sun visor label does not apply to additional labels or information placed elsewhere in the interior of the vehicle. However, our position on this matter should not be interpreted as a determination by us that the additional labels are needed or even particularly helpful. Rather, our decision reflects our belief that while the sun visor label is the best and most important way to communicate with the public, manufacturers should have the option of including additional information in the occupant compartment, on either a temporary or permanent basis, if they deem it appropriate to do so.

B. Telltale Requirements

The May 2000 final rule required a telltale for vehicles with automatic suppression systems. The telltale has a specified message and must be positioned in a location forward of and above the H-point of the driver's and passenger's seat in their forwardmost position. The final rule allowed for multiple levels of illumination as long as the telltale remains visible at all times to front-seat occupants of all ages. The agency was petitioned to revise the May 2000 requirement that the telltale be visible to occupants of all ages, and to apply the requirements of Standard No. 101. We also received requests that the regulatory text be clarified to assure that the telltale would not be obstructed by a rear-facing child restraint, and that manufacturers be allowed to use the abbreviation “pass” in lieu of “passenger” in the message text. Based on a review of these petitions, we made changes to the regulatory text in the December 2001 final rule that brought the telltale requirements more in line with the requirements of FMVSS No. 101, that relaxed the message requirement to allow an abbreviation of “passenger,” and that required the telltale be placed so that rear-facing child restraints could not obscure it.

In its petition for reconsideration, the Alliance argued that the requirement that the telltale not be blockable by a rear-facing child restraint was too broad, although it supported the premise that a properly installed child restraint should not obscure the telltale. It maintained that the new requirement would make it necessary for manufacturers to test visibility using all possible child seats. It urged the agency to limit the requirement to those child seats listed in Appendix A of the standard.

DaimlerChrysler requested additional flexibility in the wording of the required telltale message. Specifically, it has asked that manufacturers be allowed to use “pass.” rather than “pass” or “passenger,” and that it be allowed to use “airbag” rather than “air bag”. It stated that it believes these changes would better clarify the telltale, particularly since “air bag” is generally spelled as a single word outside of the United States and Canada. It also requested that it be allowed to use lower case letters.

In a request for clarification, Jaguar asked whether it was required to have the required telltale message backlit or otherwise illuminated, a result it said was necessitated by the regulatory text adopted in the December 2001 final rule.

We believe the Alliance position on the telltale visibility has merit. Our primary concern is that a correctly installed child restraint should not restrict the visibility of the telltale. The original language, as adopted in the May 2000 final rule, required the telltale not be located in a position where the temporary or permanent storage of an object could obscure the telltale from either the driver's or right front passenger's view. The language was amended in the December 2001 final rule at the request of DaimlerChrysler. We agree that the placement of a child restraint would not necessarily be considered temporary or permanent storage of the restraint. The change was intended to address a likely condition that was not sufficiently described, not to impose any additional burden on the vehicle manufacturers. As noted by the Alliance, NHTSA does not require vehicle manufacturers to certify compliance of their automatic suppression systems using every child restraint on the market. While we expect these systems to work with all available child restraints, requiring manufacturers to actually demonstrate compliance with all child restraints would be unwieldy. This issue was discussed thoroughly in the May 2000 final rule. We believe it would be inappropriate to impose a greater burden on manufacturers vis-a-vis child restraints and telltale visibility than we have imposed on them for the actual suppression device. Accordingly, the regulatory text has been amended to reference only those child restraints in Appendix A that are designed to be installed in a rear-facing mode.

We are denying DaimlerChrysler's request that manufacturers be provided with greater latitude in meeting the telltale's specified form and format requirements. The current requirements are not onerous and mirror the requirements that have been in place for manufacturer-installed air bag on-off switches since 1995. We have already accommodated the manufacturers' space concerns, as well as their concerns regarding the sale of vehicles in Canada or Europe by allowing the abbreviation of “passenger.” Additionally, while it is true that the term “air bag” is typically spelled as a single word outside of the United States and Canada, we note that these vehicles are manufactured for the U.S. market. While manufacturers may choose to export vehicles with advanced air bag systems to other countries, those vehicles will not have to meet the requirements of FMVSS No. 208. We also note that only Canada and the United States have adopted any advanced air bag requirements. The changes made in the December 2001 final rule adequately address the U.S. and Canadian markets.

As noted by Jaguar, the changes made in the December 2001 final rule had the effect of requiring the telltale message to be backlit or otherwise illuminated, even though the regulatory text specifically allows telltales that are not backlit. As noted above, the telltale requirements for automatic suppression systems were based on the existing telltale requirements for air bag on-off switches found at S4.5.4. We note that the earlier rule, published in the Federal Register on May 23, 1995 (60 FR 27233), directly addressed the issue raised by Jaguar. In that rulemaking, NHTSA had originally proposed that the identifying message be located on the telltale, i.e., the language would be backlit. In the final rule, we amended the proposed regulatory language to allow the required message to be either on the telltale or adjacent to it (within 25 mm). We stated that we believed having the required message adjacent to the telltale would be as effective a means of informing the driver or passenger of the purpose of the telltale as having the words located directly on the telltale. The same rationale applies to the telltale requirement for vehicles with automatic suppression systems.

VII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed under E.O. 12866, “Regulatory Planning and Review.” Although this document amends the agency's May 2000 final rule, which was economically significant, NHTSA has determined that this document does not affect the costs and benefits analysis for that final rule. Readers who are interested in the overall costs and benefits of advanced air bags are referred to the agency's Final Economic Assessment for the May 2000 FMVSS No. 208 final rule (NHTSA Docket No. 7013). This rulemaking document has also been determined not to be significant under the Department's regulatory policies and procedures. The amendments made by this document impose no additional costs on manufacturers. Their impacts are so minimal that a full regulatory evaluation is not merited.

B. Regulatory Flexibility Act

We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) This action will not have a significant economic impact on a substantial number of small businesses because it does not significantly change the requirements of the May 2000 final rule or the December 2001 final rule. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this rule should only slightly affect the price of new motor vehicles, if at all.

C. National Environmental Policy Act

NHTSA has analyzed these amendments for the purposes of the National Environmental Policy Act and determined that they will not have any significant impact on the quality of the human environment.

D. Executive Order 13132 (Federalism)

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does 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 has no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

The final rule is not intended to preempt state tort civil actions, except that the required labels must contain the required text, and no additional text (unless approved by the agency in response to a manufacturer request), and any additional labels cannot be misleading or confusing, as specified in the regulatory text.

E. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). While the May 2000 final rule is likely to result in over $100 million of annual expenditures by the private sector, today's final rule makes only small adjustments to the December 2001 rule, which, in turn, made only small adjustments to the May 2000 rule. Accordingly, this final rule will not result in a significant increase in cost to the private sector.

F. Executive Order 12778 (Civil Justice Reform)

This final rule does not have any retroactive effect. Under section 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a state may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

G. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule does not establish any new information collection requirements. The new label, depicted in 49 CFR 571.208, Figure 11, merely replaces the label currently depicted in 49 CFR 571.208, Figure 8. Since the contents of both labels are standardized, neither label constitutes an “information collection.”

H. Regulation Identifier Number (RIN)

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

I. Plain Language

Executive Order 12866 requires each agency to write all rules in plain language. Standard No. 208 is extremely difficult to read as it contains multiple cross-references and has retained all of the requirements applicable to vehicle of different classes at different times. Because portions of today's rule amend existing text, much of that complexity remains. Additionally, the availability of multiple compliance options, differing injury criteria and a dual phase-in have added to the complexity of the regulation, particularly as the various requirements and options are accommodated throughout the initial phase-in. Once the initial phase-in is complete, much of the complexity will disappear. At that time, it would be appropriate to completely revise Standard No. 208 to remove any options, requirements, and differentiations as to vehicle class that are no longer applicable.

J. Executive Order 13045

Executive Order 13045 applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.

This rulemaking directly involves decisions based on health risks that disproportionately affect children, namely, the risk of deploying air bags to children. However, this rulemaking serves to reduce, rather than increase, that risk.

K. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

The agency is not aware of any new voluntary consensus standards addressing the changes made to the May 2000 final rule or the December 2001 final rule as a result of this final rule.

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 Chapter V as follows:

PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for Part 571 of Title 49 continues to read as follows:

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

2. Section 571.208 is amended as follows:

A. By removing the introductory text to S4.5.1,

B. By revising S4.5.1 (a)(b), and (c), S4.11, S19.2.2, and S26.2.6, and

C. By adding Figure 11 to read as follows: