X. Proposed Leadtime and Phase-In

Oblique Pole Test. Motor vehicle manufacturers will need lead time to develop and install side impact air bags that enable their vehicles to meet the performance requirements proposed today for the oblique pole test. (Substantially less time would be required if the agency chose to utilize a 90-degree pole test and/or the SID-H3 in lieu of the ES-2re dummy.) NHTSA believes that vehicle manufacturers are at different stages with respect to designing side impact air bags, and also face different constraints and challenges, e.g., differences in the technological advances incorporated in their current air bag systems, in engineering resources, in the number of vehicles for which air bags need to be redesigned, etc. NHTSA believes that these differing situations can best be accommodated by phasing-in the upgraded side impact protection requirements proposed today for head protection.

Taking into account all available information, including but not limited to the performance of current vehicles when tested obliquely at the proposed 32 km/h (20 mph) pole test speed and with the advanced dummies proposed today, the technologies that can possibly be used to meet the proposed testing requirements (e.g., head curtains, widened head/thorax bags), and the relatively low percentage of the fleet that has the side air bags capable of meeting the proposed requirements, the agency is proposing to phase in the new vehicle-to-pole test requirements four years from the date of publication of a final rule. The phase-in would be implemented in accordance with the following schedule:

NHTSA believes that the proposed phase-in allows manufacturers to focus their resources in an efficient manner. The agency believes that it would not be possible for manufacturers that produce large numbers of models of passenger cars and LTVs to simultaneously design and install side air bags in all of their vehicles at once. Manufacturers have limited engineering resources, and the same resources are often used for different models. Manufacturers have also been using their resources to take voluntary actions to improve the compatibility of LTVs and passenger cars in vehicle-to-vehicle crashes. NHTSA wants to give the vehicle manufacturers sufficient opportunity to adopt the best designs possible. At the same time, however, the agency wishes to see head protection air bags implemented expeditiously. The agency believes that a 3-year phase-in is sufficient. NHTSA estimates that about 22 percent of the 2002 model year vehicles sold in the U.S. already have some type of head side air bag system (by way of comparison, only 0.04 percent of the vehicles sold in 1998 had such systems). The agency believes the proposed phase-in balances the above competing concerns.

We are also proposing to include provisions under which manufacturers can earn credits towards meeting the applicable phase-in percentages if they meet the new requirements ahead of schedule.

As we have done with other standards, we are proposing a separate alternative to address the special problems faced by limited line and multistage manufacturers and alterers in complying with phase-ins. A phase-in generally permits vehicle manufacturers flexibility with respect to which vehicles they choose to initially redesign to comply with new requirements. However, if a manufacturer produces a very limited number of lines, a phase-in would not provide such flexibility. NHTSA is accordingly proposing to permit "limited line" manufacturers that produce three or fewer carlines the option of achieving full compliance when the phase-in is completed (in the illustration, September 1, 2011). (The definition of a limited line manufacturer was expanded to manufacturers of three or fewer carlines in a final rule published May 5, 2003 (68 FR 23614), as corrected September 25, 2003 (68 FR 55319).)  The same flexibility would be allowed for vehicles manufactured in two or more stages and altered vehicles from the phase-in requirements. All these manufacturers (limited line, multistage and alterers) would, of course, be subject to FMVSS No. 214’s existing requirements before and throughout the phase-in.

Also as with previous phase-ins, NHTSA is proposing reporting requirements to accompany the phase-in. The agency is proposing to include the reporting requirements in a new Part 598 in Title 49 of the CFR. (NHTSA has proposed to consolidate into Part 585 the phase-in reporting requirements for all the FMVSSs with phase-in schedules (68 FR 46546; 46551; August 6, 2003). If that consolidation is made final, a final rule adopting the FMVSS No. 214 reporting requirements would set forth the reporting requirements in Part 585.)

Upgraded MDB Test. The upgraded MDB test would be effective 4 years after publication of a final rule. The requirements would not be phased in because NHTSA believes that manufacturers can meet them without the need for a phase in. Countermeasures that include padding and simple redesign of the armrest area are available to some vehicles. Comments are requested on whether it would be appropriate to establish a phase-in for this requirement. Comments are also requested on whether a leadtime shorter than 4 years would be appropriate.

XI. Rulemaking Analyses and Notices

The agency has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking is economically significant and was reviewed by the Office of Management and Budget under E.O. 12866, "Regulatory Planning and Review." The rulemaking action has also been determined to be significant under the Department’s regulatory policies and procedures. NHTSA has placed in the docket a Preliminary Economic Assessment (PEA) describing the costs and benefits of this rulemaking action. The costs and benefits are summarized in section IX of this preamble.

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 NPRM would not have a significant economic impact on a substantial number of small entities. Small organizations and small governmental units would not be significantly affected since the potential cost impacts associated with this proposed action should only slightly affect the price of new motor vehicles.

The proposed rule would directly affect motor vehicle manufacturers and indirectly affect air bag manufacturers, dummy manufacturers and seating manufacturers.

This action would not have a significant economic impact on a substantial number of small vehicle manufacturers because the vast majority of companies that manufacture motor vehicles in a single stage are not small businesses.

The agency does not believe that there are any small air bag manufacturers.

There are several manufacturers of dummies and/or dummy parts. All of them are considered small businesses. The proposed rule is expected to have a positive impact on these types of small businesses by increasing demand for dummies.

NHTSA knows of approximately 21 suppliers of seating systems, about half of which are small businesses. If seat-mounted head/thorax air bags are used to meet the new pole test and upgraded MDB test, the proposed requirements would have a positive impact on these suppliers since the cost of the seats would increase. NHTSA believes that air bag manufacturers would provide the seat suppliers with the engineering expertise necessary to meet the new requirements.

NHTSA notes that final-stage vehicle manufacturers and alterers buy incomplete vehicles, add seating systems to vehicles without seats, and/or make other modifications to the vehicle, such as replacing existing seats with new ones or raising the roofs of vehicles. A second-stage manufacturer or alterer modifying a vehicle with a seat-mounted thorax air bag might need to use the existing seat or rely on a seat manufacturer to provide the necessary technology. In either case, the impacts of this NPRM on such entities would not be significant. Final-stage manufacturers or alterers engaged in raising the roofs of vehicles would not be affected by this NPRM. This is because this document proposes to exclude vehicles with raised or altered roofs from the pole test.

Additional information concerning the potential impacts of the proposed requirements on small entities is presented in the PEA.

Executive Order 13132 requires NHTSA to develop an accountable process to ensure "meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications."  "Policies that have federalism implications" is defined in the Executive Order to include regulations that 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."  Under Executive Order 13132, the agency may not issue a regulation with Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, the agency consults with State and local governments, or the agency consults with State and local officials early in the process of developing the proposed regulation. NHTSA also may not issue a regulation with Federalism implications and that preempts State law unless the agency consults with State and local officials early in the process of developing the proposed regulation.

We have analyzed this proposed rule in accordance with the principles and criteria set forth in Executive Order 13132 and have determined that this proposal does not have sufficient Federal implications to warrant consultation with State and local officials or the preparation of a Federalism summary impact statement. The proposal would not have any substantial impact 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 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). These effects are discussed earlier in this preamble and in the PEA. UMRA also requires an agency issuing a final rule subject to the Act to select the "least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule." The preamble and the PEA identify and consider a number of alternatives to the proposal. However, none of these alternatives would fully achieve the objectives of the alternative preferred by NHTSA (20 mph oblique pole test with the ES-2re and the SID-IIs). The agency believes that it has selected the least costly, most cost-effective and least burdensome alternative that achieves the objectives of the rulemaking. The agency requests comments that will aid the agency in ensuring that this is the case.

NHTSA has analyzed this proposal 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.

This proposal would not have any retroactive effect. Under 49 U.S.C. 21403, 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. 21461 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.

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:

If you have any responses to these questions, please include them in your comments on this proposal.

Under the PRA 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. The proposal contains a collection of information because of the proposed phase-in reporting requirements. There is no burden to the general public.

The collection of information would require manufacturers of passenger cars and of trucks, buses and MPVs with a GVWR of 4,536 kg (10,000 lb) or less, to annually submit a report, and maintain records related to the report, concerning the number of such vehicles that meet the vehicle-to-pole test requirements of FMVSS No. 214 during the phase-in of those requirements. The phase-in of the vehicle-to-pole test requirements will be completed three years after publication of a final rule. The purpose of the reporting requirements is to aid the agency in determining whether a manufacturer of vehicles subject to the standard has complied with the vehicle-to-pole test requirements during the phase-in of those requirements.

We are submitting a request for OMB clearance of the collection of information required under today’s proposal. These requirements and our estimates of the burden to vehicle manufacturers are as follows:

Under the PRA, the agency must publish a document in the Federal Register providing a 60-day comment period and otherwise consult with members of the public and affected agencies concerning each collection of information. The Office of Management and Budget (OMB) has promulgated regulations describing what must be included in such a document. Under OMB’s regulations (5 CFR 320.8(d)), agencies must ask for public comment on the following:

Organizations and individuals that wish to submit comments on the information collection requirements should direct them to NHTSA’s docket for this NPRM.

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, such as the International Organization for Standardization (ISO) and the Society of Automotive Engineers. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

When NHTSA developed the vehicle-to-pole test that was adopted into FMVSS No. 201, the agency based the test on a proposed ISO test procedure found in ISO/SC10/WG1 (October 2001). In developing today’s NPRM, we considered the draft ISO standard and ISO draft technical reports related to side air bags performance to guide our decision-making to the extent consistent with the Safety Act. The notable differences between the draft ISO standard and this proposal relate to: the diameter of the pole (ISO draft technical reports recommend the use of 350 mm pole, while NHTSA uses a 254 mm pole in FMVSS No. 201 and would use such a pole in FMVSS No. 214), and the angle of approach of the test vehicle to the pole (ISO specifies 90 degrees, while our NPRM proposes to use a 75 degree angle). The agency’s reasons for proposing a 254 mm pole and an oblique, 32 km/h (20 mph), angle of approach were discussed earlier in this document.