Federal Motor Vehicle Safety Standards; Fuel System Integrity

AGENCY:

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

ACTION:

Final rule; response to petitions for reconsideration.

SUMMARY:

This document responds to a petition for reconsideration from DaimlerChrysler Corporation of a final rule relating to the agency's upgrade of rear and side impact tests in Federal Motor Vehicle Safety Standard No. 301, Fuel System Integrity. Among other matters, that final rule provided manufacturers of vehicles with a gross vehicle weight rating greater than 2,722 kilograms (6,000 pounds) an additional year of lead time to certify their vehicles to the amended side impact requirements, but did not provide for a phase-in of those requirements for those vehicles. On reconsideration, NHTSA is providing manufacturers of those vehicles a two year phase-in for the side impact requirements. Ninety percent of the vehicles manufactured on or after September 1, 2005 must meet the upgraded side impact requirements, with 100 percent of the vehicles manufactured on or after September 1, 2006 meeting the requirements.

DATES:

Effective date: The amendments made in this rule are effective August 10, 2005. Petitions for reconsideration must be received by September 26, 2005, and should refer to this docket and the notice number of this document.

ADDRESSES:

Petitions for reconsideration must be sent to: Administrator, National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

For non-legal issues, you may contact Mr. Tewabe Asebe, Office of Crashworthiness Standards, by telephone at (202) 366-2365, or by fax at (202) 366-7002. For legal issues, you may contact Ms. Deirdre Fujita, Office of Chief Counsel, at (202) 366-2992 (telephone), or at (202) 366-3820 (fax). You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

To provide occupant protection from exposure to fire that result from fuel spillage during and after crashes, Federal Motor Vehicle Safety Standard (FMVSS) No. 301 (49 CFR 571.301) specifies performance requirements for the fuel systems of vehicles with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) or less (10,000 pounds (lb) or less). The standard limits the amount of fuel spillage from vehicles during and after frontal, rear, and side impact tests.

a. December 2003 Final Rule

In December 2003, NHTSA upgraded both the rear impact and lateral (side) impact test requirements in FMVSS No. 301 to increase safety and provide for more realistic testing of fuel systems (68 FR 67068, December 1, 2003, Docket 16523). The December 2003 upgrade established an offset rear impact test procedure that specifies striking the rear of the test vehicle at 50 miles per hour (mph) (80 ± 1 kilometers per hour (km/h)) with a 1,368 kg (3,015 lb) deformable barrier at a 70 percent overlap with the test vehicle. The rear impact test replaced a 30 mph (48 km/h) crash test that had used a 1,814 kg (4,000 lb) rigid moving barrier. The upgrade of the standard's side impact test requirements replaced a lateral 20 mph (32 km/h) crash test with the side impact crash test specified in FMVSS No. 214, “Side impact protection.” FMVSS No. 214's test specifies that the test vehicle is impacted at 33 ± 0.6 mph (53 ± 1 km/h) with a 1,368 kg (3,015 lb) deformable barrier.

The final rule provided manufacturers three years of lead time to meet the upgraded rear impact test, followed by a three year phase-in beginning September 1, 2006, according to the percentages of production of 40%, 70% and 100%. The final rule established a September 1, 2004 effective date for the upgraded side impact requirements, and did not provide for a phase-in of the requirements. A long lead time and a phase-in for the side impact requirements were not deemed necessary by NHTSA because the agency believed that few vehicles (approximately 1%) will have to be modified to meet FMVSS No. 301 when tested to the new side impact test.

b. Alliance Petition for Reconsideration

The Alliance of Automobile Manufacturers, Inc. (Alliance) petitioned for reconsideration of the December 2003 final rule, requesting: (a) A one-year extension of the compliance date for the side impact upgrade for all vehicles (from September 1, 2004 to September 1, 2005); and (b) a phase-in for vehicles greater than 2,722 kg (6,000 lb) GVWR. The Alliance requested the phase-in to begin September 1, 2005, with 90% in the first year, and 100% in the second year. The petitioner stated that because the moving deformable barrier side impact test of FMVSS No. 214 does not presently apply to multipurpose passenger vehicles, trucks and buses with a GVWR greater than 2,722 kg, manufacturers need more time than that provided by the final rule to perform the testing necessary to ensure that the vehicles can be certified as meeting the side impact requirements, even if no modifications were required to meet the requirements.

In August 2004, NHTSA published a final rule that responded to the petition (69 FR 51393, August 19, 2004, Docket 18900). The August 2004 final rule decided against extending the September 1, 2004 compliance date for vehicles with a GVWR less than 2,722 kg (6,000 lb). NHTSA explained that those vehicles are already subject to the FMVSS No. 214 side impact test and there was no indication that there would be difficulty in certifying these vehicles to the upgraded fuel system integrity requirements. On the other hand, the August 2004 final rule extended the compliance date a year for vehicles with a GVWR greater than 2,722 kg (6,000 lb). NHTSA explained that the vehicles have not previously been subject to the FMVSS No. 214 side impact test. While the agency continued to believe that less than one percent of vehicles required modification to comply with the side impact upgrade, an additional year was provided manufacturers to determine what changes, if any, need to be made. The request for a phase-in of the side impact requirements was not granted.

c. DaimlerChrysler Petition for Reconsideration

DaimlerChrysler Corporation (“DCC”) petitioned for reconsideration of the agency's decision in the August 2004 final rule not to provide a two-year phase-in of the FMVSS No. 301 side impact requirements for vehicles with a GVWR greater than 2,722 kg (6,000 lb). In its petition (Document NHTSA-2004-18900-2), DCC stated that NHTSA reached its decision on the Alliance petition when NHTSA “was not aware of the burdens that its decision would impose with regard to the Sprinter van.” DCC stated:

The Sprinter is a vehicle with a GVWR in excess of 6,000 lb. As such, it has not been subject to the FMVSS 214 dynamic side impact test, and DCC had not tested it to determine whether it would comply with dynamic FMVSS 214. When the agency published the new FMVSS 301 requirements in December 2003, DCC conducted an analysis of the current vehicle and concluded that it would not meet the new FMVSS 301 side impact requirement based on the current design. [Footnote omitted.]

DCC had not brought its concerns about the Sprinter van to NHTSA earlier in the rulemaking proceeding because DCC had not tested the Sprinter for compliance with FMVSS No. 214's side impact test. DCC submitted information to NHTSA regarding the modifications and costs that would be necessary to modify the vehicle to meet the side impact requirements. DCC stated that the necessary modifications would be “complicated and expensive, and would involve additional tooling, material, and assembly costs.” The petitioner further stated:

The magnitude of the fixed costs would be particularly onerous because they would be spread across a relatively small number of vehicles. This is attributable to the fact that the current version of the Sprinter is scheduled to cease production in September 2006—one year after vehicles with a GVWR in excess of 6,000 lb are required under S6.3(c) to begin complying with the new FMVSS 301 side impact requirement. Thus, if FMVSS 301 is not amended as requested herein, the Sprinter will be subject to the new FMVSS 301 requirements for only one year, and the costs of modifying the Sprinter to comply with the new FMVSS 301 requirements would be spread out over only one year's production. * * *

In light of the exorbitant costs that the final rule would necessitate for the production of the current Sprinter during its remaining production life, DCC respectfully requests that the agency reconsider the final rule and amend S6.3(c) to provide a two-year phase-in with an implementation schedule of 90% by September 1, 2005 and 100% by September 1, 2006.

Discussion

DCC has provided cost and production information regarding a specific vehicle that DCC is discontinuing in 2006. The Sprinter was heretofore excluded from the FMVSS No. 214 dynamic crash test; information about its inability to meet the new fuel leakage requirement when tested laterally was not previously available.

In issuing the final rule on the FMVSS No. 301 upgrade, NHTSA did not believe that modifications will involve structural changes. The agency stated: “Since most vehicles readily pass the fuel leakage requirements using the Standard No. 214 side impact test, we do not believe modifications will be required which are not minor.” (68 FR 67079.) The cost data provided by the petitioner indicate that the Sprinter will require more substantial modifications than those envisioned by the agency. Instituting a two-year, 90%-100% phase-in provides a reasonable period of time for manufacturers to adjust to the burdens of the upgrade and reduce the costs of the rulemaking. While NHTSA believed that the adopted FMVSS No. 214 test was somewhat stricter than the existing lateral impact test of FMVSS No. 301, NHTSA could not quantify the benefits of adopting the FMVSS No. 214 test. Accordingly, the agency does not believe that there will be any quantifiable loss of benefits associated with phasing in the side impact requirement over two years, particularly if 90% of the vehicles in question (GVWR greater than 2,722 kg) must comply in the first year.

For the aforementioned reasons, NHTSA is providing manufacturers of multipurpose passenger vehicles, trucks and buses with a GVWR greater than 2,722 kg (6,000 lb) an additional year, for a few model lines, to assess whether the vehicles meet the side impact requirements and to make necessary changes to meet the requirements. Ninety (90) percent of the vehicles they manufacture on or after September 1, 2005 and before September 1, 2006 must be certified as meeting the upgraded side impact fuel system integrity requirements. One hundred (100) percent of the vehicles manufactured on or after September 1, 2006 must be certified as meeting the requirements. These phase-in requirements are set forth in S6.3(c) of FMVSS No. 301, as revised. Reporting and recordkeeping requirements implementing the phase-in are also added to Part 586.

Effective Date

The amendments are effective upon publication in the Federal Register. An effective date less than 180 days after date of publication of this rule is in the public interest because these amendments affect an upcoming September 1, 2005 compliance date for the side impact upgrade of FMVSS No. 301 for vehicles with a GVWR greater than 2,722 kg (6,000 lb). This rule provides an additional year to manufacturers to certify a few model lines. The effective date provides relief and allows manufacturers to make informed decisions regarding the upcoming September 1, 2005 compliance date.

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 by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has been determined to not be significant under the Department's regulatory policies and procedures. The amendments made in this final rule do not significantly impact the costs and benefits of the December 2003 final rule. The agency has concluded that the impacts of today's amendments are so minimal that a regulatory evaluation is not required.

In response to a petition for reconsideration of the final rule published August 19, 2004, we are providing a short phase-in of the side impact requirements for manufacturers of multipurpose passenger vehicles, trucks, and buses with a GVWR greater than 2,722 kg (6,000 lb). The phase-in permits these manufacturers to comply with the side impact upgrade with the percentages of production of 90% of vehicles manufactured on or after September 1, 2005 and 100% of vehicles manufactured on or after September 1, 2006. The phase-in allows manufacturers an additional year to assess whether their vehicles meet the requirements and to make necessary changes to meet the requirements. NHTSA estimates that most vehicles already meet the upgraded side impact requirements of FMVSS No. 301.

B. Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this final rule under the Regulatory Flexibility Act. I certify that this final rule will not have a significant economic impact on a substantial number of small entities. The December 2003 final rule, and the August 2004 final rule which this document amends, were certified as not having a significant economic impact on a substantial number of small entities. The amendments made by today's final rule affect manufacturers of multipurpose passenger vehicles, trucks and buses with a GVWR or more than 2,722 kg (6,000 lb) by providing an additional year to meet the side impact requirements of the upgraded FMVSS No. 301 for a few model lines. NHTSA believes that most of these vehicles already meet the requirements at issue.

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.

E. Unfunded Mandates Reform Act

Section 202 of 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 (adjusted for inflation with base year of 1995). This final rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually. Consequently, no Unfunded Mandates assessment has been prepared.

F. Executive Order 12988 (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, before an agency submits a proposed collection of information to OMB for approval, it must first 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 proposed collection of information. The OMB has promulgated regulations describing what must be included in such a document. Under OMB's regulation (at 5CFR 1320.8(d), an agency must ask for public comment on the following:

(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(ii) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

(iii) How to enhance the quality, utility, and clarity of the information to be collected;

(iv) How to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.

In compliance with these requirements, NHTSA asks for public comments on the following proposed collection of information:

Title: Final rule, response to a petition for reconsideration; Phase-in reporting requirements.

OMB Control Number: None.

Affected Public: Manufacturers of passenger cars, and trucks and multipurpose passenger vehicles with a gross vehicle weight rating (GVWR) of 2,722 kilograms (6,000 pounds) or more but not more than GVWR of 4,536 kilograms (10,000 pounds).

Form Number: None.

Number of Respondents: No more than 21.

Estimated Annual Burden: Since almost all of the information required is already recorded by the manufacturers as part of their production control and tracking systems, a nominal assessment of 24 total burden hours per respondent is estimated for data retrieval and report preparation. The estimated cost per hour in dollars is $45. Based on this estimate, the total annual burden for manufacturers would be: (21 respondents) × (24 total burden hours per respondent) × ($45 per hour) = $22,680.

Abstract: In August 2004, NHTSA published a final rule to upgrade Federal motor vehicle safety standard No. 301, “Fuel system integrity,” in response to petitions for reconsideration (69 FR51393, August 19, 2004). On October 4, 2004, DaimlerChrysler Corporation petitioned to reconsider the August 2004 final rule. The petitioner requested a two-year phase-in of the upgraded fuel system integrity side impact requirements for vehicles with a gross vehicle weight rating (GVWR) in excess of 2,722 kg (6,000 pounds). DaimlerChrysler Corporation requested an implementation schedule of 90 percent by September 1, 2005, and 100 percent by September 1, 2006. This action responds to the petition.

This final rule gives vehicle manufacturers an additional year for vehicles above GVWR of 2,722 kg and up to 4,536 kg to comply with the FMVSS No. 301 side impact test requirement. Ninety (90) percent of these vehicles must be certified as meeting the FMVSS No. 301 side impact test requirement before September 1, 2005. One hundred (100) percent of the vehicles manufactured on or after September 1, 2006 must be certified as meeting the requirements. The collection of information is used for recordkeeping to keep track of covered vehicles, and for reporting to the agency the covered vehicles that comply with the requirements.

Comments are invited on: whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Department's estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.

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. 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 does not involve decisions about health risks that disproportionately affect children.

J. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs NHTSA to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. 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 Society of Automotive Engineers (SAE). The NTTAA directs NHTSA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This final rule does not address matters such as performance requirements or test conditions, procedures or devices. It addresses compliance schedules only. There are no voluntary consensus standards applicable to this final rule.

K. Privacy Act

Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov .

List of Subjects in 49 CFR Parts 571 and 586

• Imports
• Motor vehicle safety
• Reporting and recordkeeping requirements
• Tires

In consideration of the foregoing, NHTSA is amending 49 CFR part 571 and part 586 as follows:

PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS

1. The authority citation for part 571 continues to read as follows:

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

2. Section 571.301 is amended by revising S6.3(c) to read as follows.

PART 586—FUEL SYSTEM INTEGRITY UPGRADE PHASE-IN REPORTING REQUIREMENTS

3. The authority citation for Part 586 continues to read as follows:

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

4. Sections 586.5, 586.6 and 586.7 are revised to read as follows: