Federal Motor Vehicle Safety Standards; Occupant Crash Protection

AGENCY:

National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION:

Final rule.

SUMMARY:

In May 2000, we published a rule to require advanced air bags in light vehicles. The requirements of that rule are being phased in during two stages, the first of which extends from September 1, 2003, to August 31, 2006. In September 2002, in response to petitions for rulemaking, we published a notice of proposed rulemaking (NPRM) to reduce the percentage of vehicles that must comply with the advanced air bag requirements during the first year of the first stage, i.e., from September 1, 2003, through August 31, 2004, from 35 percent to 20 percent. This final rule adopts that proposed change, which reflects the technical challenges being faced by the vehicle manufacturers in meeting the new requirements and the fact that two of the automotive suppliers dropped plans to offer devices that suppress the passenger air bag when a child is present. In the NPRM, we also requested comments on possible adjustments in the alternative phase-in requirement available to limited line manufacturers. We plan to address that issue in a separate document, in the near future.

DATES:

Effective Date: The amendments made in this rule are effective March 3, 2003.

Petitions: Petitions for reconsideration must be received by March 17, 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:

The following persons at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC, 20590:

For technical issues: Mr. Louis Molino, Office of Crashworthiness Standards, NVS-112, telephone (202) 366-2264, facsimile (202) 493-2739.

For legal issues: Mr. Edward Glancy, Office of the Chief Counsel, NCC-112, telephone (202) 366-2992, facsimile (202) 366-3820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. The Advanced Air Bag Final Rule

B. September 2002 Proposal to Adjust Phase-in

II. Public Comments

III. Agency Decision

IV. Rulemaking Analyses and Notices

I. Background

A. The Advanced Air Bag Final Rule

On May 12, 2000, we published in the Federal Register (65 FR 30680) a rule to require advanced air bags. (Docket No. NHTSA 00-7013; Notice 1.) The rule amended Standard No. 208, Occupant Crash Protection, to require that future air bags be designed so that, compared to current air bags, they create less risk of serious air bag-induced injuries, 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 rule will be phased in during two stages. The first stage phase-in will improve protection by requiring vehicles to be certified as passing the unbelted test requirements for both the 5th percentile adult female and 50th percentile adult male dummies in a 32-40 km/h (20-25 mph) rigid barrier crash, and belted test requirements for the same two dummies in a rigid barrier crash with a maximum test speed of 48 km/h (30 mph). In addition, the first stage will minimize the risk of injury from air bags by requiring vehicles to include technologies that will minimize the risk of air bag-induced injuries for young children and small adults.

During the first stage phase-in, from September 1, 2003, to August 31, 2006, increasing percentages of motor vehicles will be required to meet requirements for minimizing air bag risks, primarily by either automatically turning off the air bag when young children are present or deploying the air bag more benignly so that it is much less likely to cause serious or fatal injury to out-of-position occupants. If they so wish, manufacturers may choose to use a combination of those approaches.

Manufacturers that decide to design their passenger air bags to turn off will use weight sensors and/or other means of detecting the presence of young children. To test the ability of those means to detect the presence of children, the rule specifies that child dummies be placed in child seats that are, in turn, placed on the passenger seat in both proper and (to simulate misuse) improper ways. It also specifies tests that are conducted with unrestrained child dummies sitting, kneeling, standing, or lying on the passenger seat.

The ability of air bags to deploy in a low-risk manner will be tested using child dummies on the passenger side and the small adult female dummy on the driver side. For manufacturers that decide to design their passenger air bags to deploy in a low risk manner, the rule specifies that unbelted child dummies be placed against the instrument panel in two different positions. The air bag is then deployed with the dummies in each position. This placement was specified because pre-crash braking can cause unrestrained children to move forward into or near the instrument panel before the air bag deploys. The ability of driver air bags to deploy in a low risk manner will be tested by placing the 5th percentile adult female dummy against the steering wheel in two different positions and then deploying the air bag with the dummy in each position.

The second stage phase-in will require vehicles to be certified as passing the belted test requirements for the 50th percentile adult male dummy at a test speed up to 56 km/h (35 mph). This requirement will provide improved protection for belted occupants.

B. September 2002 Proposal To Adjust Phase-in

On September 24, 2002, we published in the Federal Register (67 FR 59800) a document responding to petitions for rulemaking from the Alliance of Automobile Manufacturers, Toyota, and DaimlerChrysler requesting changes in the advanced air bag final rule. (Docket No. NHTSA 02-13393; Notice 1.)

In response to the petitions, we proposed to reduce the percentage of vehicles that must comply with the advanced air bag requirements during the first year of the phase-in, i.e., from September 1, 2003, through August 31, 2004, from 35 percent to 20 percent. We stated that the proposed change reflected the technical challenges being faced by the vehicle manufacturers in meeting the new requirements and the fact that two of the automotive suppliers had dropped plans to offer devices that suppress the passenger air bag when a child is present. We also stated that we had tentatively concluded that a reduction in the first year's phase-in requirement from 35 percent to 20 percent strikes a reasonable balance between ensuring that the industry provides advanced air bags as quickly as is reasonably possible, while avoiding a situation in which the industry must put new technologies into vehicles before they have been fully tested.

We otherwise denied the petitions or, as to certain requests, dismissed them because the agency had subsequently considered or was considering the same requests in the context of another rulemaking proceeding.

In addition, in response to a petition for rulemaking from Porsche, we stated that we were considering possible adjustments in the alternative phase-in requirements available to limited line manufacturers.

II. Public Comments

We received a total of nine comments, seven from automobile manufacturers and two from automotive suppliers. The automobile manufacturer commenters were the Alliance of Automobile Manufacturers (Alliance) and six individual manufacturers—Subaru, Nissan, Porsche, General Motors (GM), DaimlerChrysler (DC), and BMW. The automotive supplier commenters were Delphi and Elesys.

The commenters were generally supportive of the agency's proposal to reduce the percentage of vehicles that must comply with the advanced air bag requirements during the first year of the first stage phase-in. No commenter opposed reducing the percentage from 35 percent to 20 percent, although two, the Alliance and DC, argued that a greater reduction should be provided.

Nissan stated that it supports the proposal. According to that company, the developmental period for the occupant sensing technology needed to meet the requirements has been longer than expected due to the developmental capacity of the suppliers of this technology.

BMW cited the significant technical challenges it has faced and will continue to face and stated that it believes that reducing the first year percentage to 20 percent will provide the necessary flexibility such that sufficiently robust advanced air bag systems will be developed for new vehicles, as well as redesigned for current production vehicles and implemented during the phase-in period.

Subaru stated that a reduction in the first year percentage to 20 percent or less would permit it to focus on applying its manpower during the first year on implementing suppression functionality in a single specific model. That company stated that it would then be in a position to effectively develop systems with some certainty for vehicles in the second and third years.

GM stated that it agrees with the agency's proposed reduction to 20 percent of the percentage of vehicles that must meet the first-year phase-in requirements for advanced air bags. That company stated that although it would be able to satisfy the original first-year requirement of 35 percent, it agrees with the agency that the proposal “strikes a reasonable balance between ensuring the industry provides advanced air bags as quickly as is reasonably possible, while avoiding a situation in which the industry must put new technologies into vehicles before they have been fully tested.”

The Alliance stated that it is unaware of any new data or information that would lead it to change its conclusion, presented in its petition for rulemaking, that 10 percent is the correct phase-in percentage requirement to be applied to the first year. That organization argued that not every manufacturer could accede to a phase-in percentage greater than 10 percent. The Alliance also stated that, while it did not request modification of the second year percentage in its petition, the continued difficulty in developing effective and reliable air bag systems, including occupant classification sensor technologies, supplier constraints, as well as the significant challenge of implementing these new technologies might require modification of the second year phase-in percentage as well.

DC stated that it believes the agency has underestimated the complexity, difficulty, and technical challenges related to the phase-in of the advanced air bag requirements. It stated that in its quest to develop low risk air bag systems, which it believes minimizes real world risk, and to reduce the uncertainty associated with occupant classification systems in the real world, it continues to uncover additional unforeseen technical development and vehicle integration challenges. DC asked that the agency adopt a percentage of 10 percent for the first year phase-in and reconsider its decision not to reduce the second year percentage from 65 percent to 40 percent, as DC had requested in its petition for rulemaking.

Delphi stated that it has, at this time, both technical capability and production capacity to support its customers in meeting either the original or the proposed advanced air bag regulatory volume requirements. That company stated that its product enables compliance with Standard No. 208's suppression requirements and meets real world reliability requirements in calibrated production seats.

Elesys stated that its product meets or exceeds all applicable Standard No. 208 requirements, as well as the significant real-world durability, configuration, production and installation challenges posed by its automotive customers. That company stated that it understands why the agency proposed to reduce the first year percentage, but that any further reduction in the required percentages for later years is unnecessary for two reasons: (1) Viable, real-world-tested solutions already exist in the marketplace, and (2) such a delay would unduly penalize companies, including Elesys, who have invested heavily in research and development to meet the implementation schedule as it is currently configured.

Only one commenter, Porsche, commented on the issue of possible adjustments in the alternative phase-in requirements available to limited line manufacturers. That company suggested a revised approach for addressing the issues it had raised in its petition.

III. Agency Decision

After carefully considering the comments, we have decided, for the reasons discussed in the NPRM, to adopt as final our proposal to reduce the percentage of vehicles that must comply with the advanced air bag requirements during the first year of the phase-in, i.e., from September 1, 2003, through August 31, 2004, from 35 percent to 20 percent. We are making this change in light of the technical challenges being faced by the vehicle manufacturers in meeting the new requirements and the fact that two of the automotive suppliers had dropped plans to offer devices that suppress the passenger air bag when a child is present. We have not yet reached a decision with respect to possible adjustments in the alternative phase-in requirements available to limited line manufacturers, and will address that issue in a separate document, in the near future.

As noted above, no commenter opposed reducing the percentage from 35 percent to 20 percent, although two, the Alliance and DC, argued that a greater reduction should be provided. These commenters recommended that the agency reduce the first year percentage to 10 percent, and DC also recommended that the agency reduce the second year percentage from 65 percent to 40 percent.

While we have considered the recommendations of the Alliance and DC, they have not provided information or analysis demonstrating that a further reduction is necessary, either for the first or second year. We do not disagree with their contention that the advanced air bag final rule poses significant technical challenges, but believe a reduction in the first year percentage from 35 percent to 20 percent adequately addresses that concern. We have had periodic discussions with vehicle manufacturers over the past two years to assess our original phase-in requirements, as well as the vehicle manufacturers' projections for meeting the phase-in schedule. We have also monitored the advanced air bag systems that they have been developing, as well as met with individual restraint system suppliers. While DC has commented that it is disappointed that the agency has denied its recommendation of a 10 percent first year phase-in, GM has indicated an ability to meet the original first-year requirement of 35 percent. As previously noted, four of the five larger manufacturers that commented on the NPRM, i.e., GM, Subaru, Nissan and BMW, specifically indicated that the reduction of the first year phase-in to 20 percent would give them the necessary flexibility and relief to meet the new phase-in schedule. Thus, the remaining 15 percent of their respective fleets that no longer need to meet the first year phase-in requirements could be deferred to year two, if more development time is needed, or could be certified in model year 2003 to earn advanced credits. Although the Alliance represents many manufacturers, the only member that provided specific comments supporting the Alliance position that the reduction to 20 percent is not sufficient was DC.

DC noted that the agency's original driver automatic protection rule included a phase-in of 10-25-40-100 percent, and argued that the advanced air bag final rule raises issues of even greater complexity. There is no reason, however, why the specific production year percentages for phase-ins of different rules should be the same. We also note that, as part of the May 2002 final rule for advanced air bags, we eliminated altogether the first year of the phase-in schedule we had proposed, which would have required 25 percent of each manufacturer's light vehicles manufactured during the production year beginning September 1, 2002, to comply with the advanced air bag requirements.

Finally, for model year 2003, which began approximately one year before the required phase-in begins, significant numbers of production vehicles are being certified to comply with the advanced air bag requirements. GM has announced introduction of a passenger sensing system that is being installed in nearly 1.6 million vehicles. This system is standard on most of GM's model year 2003 full-size pickups and sport-utility vehicles, including the Chevrolet Silverado and GMC Sierra pickups (except commercial models or chassis-cabs) and Chevrolet Suburban, Tahoe and Avalanche; GMC Yukon XL, Yukon and Denali; and Cadillac Escalade and Escalade EXT. GM has certified that the system meets the advanced air bag requirements. NHTSA has performed some compliance tests on three of the GM C/K trucks that were certified to the advanced air bag requirements. These included the infant, three-year-old and six-year-old child dummy suppression (presence) tests, the 5th percentile adult female driver low risk deployment tests, the belted 5th percentile adult female offset deformable barrier crash test, the frontal unbelted 5th percentile adult female and 50th percentile adult male crash tests. The three units tested passed the applicable performance requirements.

Other manufacturers are certifying, for purposes of the risk minimization requirements for children, on the basis of a combination of air bag suppression (for the infant and three-year-old child dummy tests) and low risk deployment (for the six-year-old child dummy tests) in model year 2003. This demonstrates that vehicle manufacturers are not constrained to a particular advanced air bag technology, and that both suppression and low risk deployment certification methods are viable options for meeting the advanced air bag requirements ahead of the required phase-in schedule. We are also aware that vehicle manufacturers are working with multiple technology suppliers and are not reliant upon a single entity for production.

As with the phase-in of any new requirement involving the use of new technology, we will, of course, continue to monitor the ability of the automobile manufacturers to meet the specified requirements.

V. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rule under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rule was reviewed under E.O. 12866, “Regulatory Planning and Review.” This action is “significant” under the Department of Transportation's regulatory policies and procedures.

This rule reduces the percentage of vehicles that must comply with the advanced air bag requirements during the first year of the phase-in, i.e., from September 1, 2003, through August 31, 2004, from 35 percent to 20 percent. However, the rule does not change the requirements for vehicles equipped with advanced air bags. Readers who are interested in the costs and benefits of advanced air bags are referred to the agency's Final Economic Assessment (FEA) for the May 2000 final rule. The estimated benefits compared to pre-model year 1998 (pre-depowered air bags) in that rule for the suppression technologies were estimated to be 93 fatalities and 151 AIS 3-5 injuries. These benefits can be considered to accrue over the 20-25 year lifetime of one model year's fleet. As noted in the NPRM, the reduction in the phase-in schedule for the model year 2004 fleet from 35 percent to 20 percent could result in the potential loss in benefits over the lifetime of the model year 2004 fleet of 14 lives and 23 AIS 3-5 injuries.

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.). I certify that the amendment will not have a significant economic impact on a substantial number of small entities. A Regulatory Flexibility Analysis was prepared for the May 2000 final rule as part of the FEA. This action will not have a significant economic impact on small businesses because the only change it makes to the May 2000 final rule is to reduce the percentage of vehicles that must comply with that rule during the first year of the phase-in. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this amendment should only slightly affect the price of new motor vehicles.

C. National Environmental Policy Act

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

D. Executive Order 13132 (Federalism)

The agency has analyzed this rulemaking action 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 rule will have 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.

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, the only effect of today's amendment will be to reduce the percentage of vehicles that must comply with that rule during the first year of the phase-in. Accordingly, this rule will not mandate any expenditure by State, local or tribal governments, or by the private sector.

F. Executive Order 12778 (Civil Justice Reform)

This 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. Section 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 document does not establish any new information collection requirements.

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.

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 by revising S14.1.1.1 to read as follows: