[Federal Register: March 15, 2010 (Volume 75, Number 49)]
[Rules and Regulations]
[Page 12123-12141]
[DOCID:fr15mr10-4]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2010-0032]
RIN 2127-AK48

Federal Motor Vehicle Safety Standards; Side Impact Protection;
Fuel System Integrity; Electric-Powered Vehicles: Electrolyte Spillage
and Electrical Shock Protection

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document comprises the agency's second of two responses
to petitions for reconsideration of a September 11, 2007, final rule
that upgraded Federal Motor Vehicle Safety Standard (FMVSS) No. 214,
``Side impact protection.'' The final rule incorporated a vehicle-to-
pole test into the standard, adopted technically-advanced test dummies
and enhanced injury criteria, and incorporated the advanced dummies
into the standard's moving deformable barrier test. An earlier response
was published on June 9, 2008, which addressed lead time, phase-in
percentages, test speed, and other issues. Today's response addresses
the remaining issues raised by the petitions.

DATES: Effective Date: The date on which this final rule amends the CFR
is May 14, 2010.

    If you wish to petition for reconsideration of this rule, your
petition must be received by April 29, 2010.

ADDRESSES: If you wish to petition for reconsideration of this rule,
you should refer in your petition to the docket number of this document
and submit your petition to: Administrator, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue, SE., West Building,
Washington, DC 20590.
    The petition will be placed in the docket. Anyone is able to search
the electronic form of all documents received into any of our dockets
by the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call
Christopher J. Wiacek, NHTSA Office of Crashworthiness Standards,
telephone<PHONE_NUMBER>. For legal issues, you may call Deirdre Fujita,
NHTSA Office of Chief Counsel, telephone<PHONE_NUMBER>. You may send
mail to these officials at the National Highway Traffic Safety
Administration, 1200 New Jersey Avenue, SE., West Building, Washington,
DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petitions for Reconsideration
III. June 9, 2008 Response to Petitions for Reconsideration
IV. Overview of Today's Document
V. Response to Petitions
    a. SID-IIs Pelvic Criterion
    b. Multi-Stage Vehicles and Partitioned Vehicles
    c. Test Procedures
    1. Vehicle Set Up
    i. Positioning the Seat
    A. Adjusting the Front Seat for the 50th Percentile Male Dummies
    B. Location of Seat on the Non-Impact Side
    C. Seat Cushion Reference Point
    ii. Adjustable Head Restraint Position for the SID-IIs
    iii. Adjustable Seat Belt Shoulder Anchor
    iv. Adjustable Steering Wheels
    v. Impact Point Reference Line Determination
    vi. Vehicle Attitude
    vii. Pole Test Pitch and Roll Definitions
    2. Test Dummy Set-Up
    i. SID-IIs
    A. Hip Point Specification
    B. Knee and Ankle Spacing
    C. Pelvic Angle
    D. Adjustment of Lower Neck Bracket to Level Head
    E. Other Corrections
    ii. ES-2re
    A. Head CG Location Variability
    B. Knee Spacing
    C. Corrections
    3. Miscellaneous Corrections
    i. Exclusion of Rear Seats That Cannot Accommodate a SID in the
MDB Test
    ii. FMVSS No. 301 and FMVSS No. 305 Test Dummy Applications
    iii. Metric Conversion
    iv. Typographical Errors
    4. Clarifying Effective Date for Convertibles in the MDB Test
    5. Bosch's Petition
VI. Rulemaking Analyses and Notices

I. Background

    On September 11, 2007, NHTSA published a final rule that upgraded
Federal Motor Vehicle Safety Standard (FMVSS) No. 214, ``Side impact
protection,'' (72 FR 51908, Docket No. NHTSA-29134).\1\ Until the final
rule, the only dynamic test in FMVSS No. 214 was a moving deformable
barrier (MDB) test simulating an intersection collision with one
vehicle being struck in the side by another vehicle. In the MBD test,
vehicles are required to provide thoracic and pelvic protection to the
driver and rear seat occupant on the struck side of the vehicle, as
measured by a side impact dummy (SID) representing a 50th percentile
adult male. NHTSA upgraded FMVSS No. 214 to require all light vehicles
with a gross vehicle weight rating (GVWR) of 4,536 kilograms (kg) or
less (10,000 pounds (lb) or less) to protect front seat occupants in a
vehicle-to-pole test simulating a vehicle crashing sideways into narrow
fixed objects, such as utility poles and trees. By doing so it required
vehicle manufacturers to assure head and improved chest protection in
side crashes for a wide range of occupant sizes and over a broad range
of seating positions. It ensured the installation of new technologies,
such as side curtain air bags \2\ and torso side air bags, which are
capable of improving head and thorax protection to occupants of
vehicles that crash into poles and trees or of vehicles that are
laterally struck by a higher-riding vehicle. In the final rule, NHTSA
estimated that side impact air bags reduce fatality risk for nearside
occupants by an estimated 24 percent; torso bags alone, by 14
percent.\3\ The side air bag systems installed to meet the requirements
of the final rule also reduce fatalities and injuries caused by partial
ejections through side windows. The agency estimated that the final
rule will prevent 311 fatalites and 361 serious injuries a year when
fully implemented throughout the light vehicle fleet.\4\
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    \1\ The final rule fulfilled the mandate of the ``Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU).'' Section 10302 of the Act directed the
agency ``to complete a rulemaking proceeding under chapter 301 of
title 49, United States Code, to establish a standard designed to
enhance passenger motor vehicle occupant protection, in all seating
positions, in side impact crashes.''
    \2\ These different side air bag systems are described in a
glossary in Appendix A to the September 11, 2007 final rule (72 FR
at 51954).
    \3\ Final Regulatory Impact Analysis, ``FMVSS No. 214; Amending
side impact dynamic test; Adding oblique pole test,'' Docket No.
NHTSA-29134. See also, ``An Evaluation of Side Impact Protection,
FMVSS 214 TTI(d) Improvements and Side Air Bags,'' January 2007,
NHTSA Technical Report DOT HS 810 748.
    \4\ The cost of the most likely potential countermeasure--a 2-
sensor per vehicle window curtain and separate thorax side air bag
system--compared to no side air bags was estimated to be $243 per
vehicle. After analyzing the data voluntarily submitted by
manufacturers on their planned installation of side air bag systems,
NHTSA estimated the final rule will increase the average vehicle
cost by $33 and increase total annual costs for the fleet by $560
million.
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    Under the September 11, 2007, final rule, vehicles will be tested
with two new, scientifically advanced test dummies representing a range
of occupants from mid-size males to small females. A test dummy known
as the ES-2re represents mid-size adult male occupants. The ES-2re has
improved biofidelity and enhanced injury assessment capability compared
to all other mid-size adult male dummies used today. A test dummy known
as the SID-IIs, the size of a 5th percentile adult female, represents
smaller stature occupants 5 feet 4 inches (163 cm), which crash data
indicates comprise 34 percent of all serious and fatal injuries to
near-side occupants in side impacts. The SID-IIs better represents
small stature occupants than the SID (50th percentile adult male dummy)
used today in FMVSS No. 214.\5\
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    \5\ Samaha R. S., Elliott D. S., ``NHTSA Side Impact Research:
Motivation for Upgraded Test Procedures,'' 18th International
Technical Conference on the Enhanced Safety of Vehicles Conference
(ESV), Paper No. 492, 2003.
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    The September 11, 2007, final rule also enhanced FMVSS No. 214's
MDB test by specifying the use of the ES-2re dummy in the front seat
and the SID-IIs dummy in the rear seating position. Through use of both
test dummies, vehicles will have to provide head, enhanced thoracic and
pelvic protection to occupants ranging from mid-size males to small
occupants in vehicle-to-vehicle side crashes.
    The September 11, 2007, final rule provided lead time for and
phased in the pole test requirements, making allowance for use of
advanced credits towards meeting the new requirements, and other
adjustments to the schedule for heavier vehicles. The rule also

adopted a phase-in for the MDB test and aligned the phase-in schedule
with the oblique pole test requirements, providing also for the use of
advance credits.

II. Petitions for Reconsideration

    The agency received petitions for reconsideration of the September
11, 2007 final rule from: the Alliance of Automobile Manufacturers
(Alliance),\6\ General Motors North America (GM), Toyota Motor North
America, Inc. (Toyota), American Honda Motor Co., Inc. (Honda), Nissan
North America, Inc. (Nissan), Porsche Cars North America, Inc.
(Porsche), the National Truck Equipment Association (NTEA), and Robert
Bosch LLC (Bosch). The issues raised by the petitioners are summarized
below.
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    \6\ At the time of the petition, the Alliance was made up of BMW
group, Chrysler LLC, Ford Motor Company, General Motors, Mazda,
Mitsubishi Motors, Porsche, Toyota, and Volkswagen.
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    Lead time. The final rule specified that manufacturers must begin
meeting the upgraded pole and MDB test requirements on a phased-in
schedule beginning two years from the publication of the final rule.
The Alliance, Toyota, Nissan, Porsche asked for more time to begin the
start of the phase-in.
    Lower bound on speed range for the pole test. The final rule
specified that vehicles must meet the requirements of the pole test
when tested ``at any speed up to and including 32 kilometers per hour
(km/h)(20 mph).'' The Alliance, GM, Toyota, Porsche petitioned to bound
the test speed at a lower speed of 26 km/h (16 mph) or 23 km/h (14.3
mph), or (GM) delay implementation of the ``up to'' aspect of the
requirement until the end of the phase-in to allow for additional
development of sensing technology.
    Convertibles. The final rule applied the pole test requirements to
convertible vehicles after the agency had made a determination that it
was practicable for the vehicles to meet the requirements. The
Alliance, Nissan, Porsche, and VW petitioned the agency to provide more
lead time for convertibles or to exclude the vehicles from the pole
test requirements.
    SID-IIs pelvic criterion. The final rule adopted a pelvic force
injury assessment reference value of 5,525 Newtons (N) for the SID-IIs
small female dummy. The Alliance asked that this value be changed to
8,550 N.
    Multi-stage and altered vehicles, including vehicles with
partitions. The Alliance and the NTEA recommended that NHTSA ``exempt''
multi-stage/altered vehicles (including vehicles with partitions behind
the front seats) from the oblique pole test requirements.
    Amending test procedures and correcting typographical errors. The
Alliance and Honda cited omissions or errors in the regulatory text in
need of correction. Honda sought correction and clarification with
respect to referenced materials and test procedures, such as making
FMVSS No. 214 consistent with cross-references to the test dummy used
in the FMVSS No. 301 and 305 crash tests, providing for adjustment of
telescopic steering columns, and clarifying adjustment of seat belt
shoulder anchorages. Bosch asked that NHTSA ``modify the test set-up by
optionally allowing information being made available from the
Electronic Stability Control [ESC] on the vehicle CAN-bus.''

III. June 9, 2008, Response to Petitions for Reconsideration

    To respond to petitioners' concerns about lead time as quickly as
possible, the agency addressed the lead time issue first and separate
from other substantive issues raised by the petitions. The lead time
issue, and other matters that needed to be resolved or clarified
concerning lead time and the phasing-in of the new requirements, were
addressed in an initial response to petitions published June 9, 2008
(73 FR 32473). That final rule:
    a. Extended the lead time period before manufacturers must begin
phasing in vehicles to meet the upgraded FMVSS No. 214 requirements to
September 1, 2010, and amended the percentages of manufacturers'
vehicles that are required to meet the new requirements from 20/50/75/
all to 20/40/60/80/all; \7\
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    \7\ All vehicles must meet the requirements without the use of
advance credits.
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    b. Specified the test speed for the pole test as ``26 km/h to 32
km/h'' (16 mph to 20 mph) until the end of the phase-in, at which time
vehicles must meet the requirements of the pole test when tested ``at
any speed up to and including 32 km/h (20 mph)'';
    c. Delayed the effective date for convertible vehicles until
September 1, 2015;
    d. Delayed the effective date for multi-stage vehicles and alterers
until after completion of the phase-in for all other vehicle types,
i.e., until September 1, 2016; and
    e. Corrected the omissions and minor errors found in the regulatory
text relating to: The earning of credits for early compliance, the SID-
IIs dummy arm positioning, the definition of limited line manufacturer,
and the reinstatement of the seat adjustment procedure for the SID
dummy.

IV. Overview of Today's Document

    Today's document denies the requests to revise the SID-IIs pelvic
criterion and to exclude vehicles manufactured in more than one stage
from the pole test. This rule grants several suggestions to clarify or
revise aspects of the test procedures relating to, among other matters:
Vehicle set-up (adjusting the non-struck side seat; adjusting head
restraints, shoulder belt anchorages, and adjustable steering wheels,
clarifying the vehicle test attitude tolerance); test dummy set-up
(positioning the SID-IIs; removing redundant foot positioning
procedures); and corrections (e.g., ES-2re filter class designation;
exclusion of rear seats that cannot accommodate the SID in the MDB test
during the phase-in period; FMVSS No. 301 and FMVSS No. 305 test dummy
applications). In addition, in response to a July 23, 2008 petition for
reconsideration from the Alliance, this document also makes clear that
the upgraded MDB test does not apply to convertibles manufactured
before September 1, 2015. For the reasons explained in this preamble,
all other requests made in the petitions for reconsideration of the
September 11, 2007 final rule to which we have not previously responded
are denied.

V. Response to Petitions

a. SID-IIs Pelvic Criterion

    The September 11, 2007 final rule adopted injury criteria for the
ES-2re and the SID-IIs. For the ES-2re, the final rule adopted a 6,000
N pubic load criterion. The agency estimated that this criterion
corresponded to a 25 percent risk of AIS 3+ pelvic fracture to a 45-
year-old male occupant involved in a side crash. For the SID-IIs, the
agency adopted a 5,525 N pelvic injury criterion limit for the sum of
iliac and acetabular forces measured by the dummy. The agency estimated
that the criterion corresponded to a 25 percent risk of AIS 2+ pelvic
fracture to a 56-year-old small female occupant involved in a side
crash.
    In its petition, the Alliance asked that the SID-IIs pelvic injury
criterion be changed from 5,525 N to 8,550 N. It stated that an 8,550 N
criterion corresponds to a 25 percent risk of AIS 3+ pelvis injury and
would align the pelvic injury risk with the AIS 3+ level set by NHTSA
for the ES-2re. The petitioner further suggested that a 5,525 N
criterion overemphasizes pelvic protection, which could result in
designs that overload the thorax. The

petitioner suggested that manufacturers should be provided leeway to
balance the loading to various parts of the body to prevent any single
part from being overloaded.
    In addition, the Alliance suggested rewording the pelvic injury
criterion to state that the combined pelvis force in the SID-IIs must
correspond to a pubic symphysis force of 4,280 N. According to the
petitioner, since typically the external load is twice that measured at
the pubic symphysis, a pubic symphysis load of 4,280 N is associated
with a combined pelvis load of 8,550 N. Alternatively, the Alliance
suggested that separate injury criteria for the iliac wing and the
acetabulum be utilized for the SID-IIs pelvic injury criteria. The
Alliance proposed a force limit of 5,000 N for both.
    Agency Response: NHTSA is denying the Alliance petition to change
the pelvic injury criterion to 8,550 N. Although the ES-2re criterion
corresponds to a 25% risk of AIS 3+ injury, there are several reasons
for having the SID-IIs injury risk level be set at AIS 2+ rather than
AIS 3+.
    First, we believe that the data estimating injury risk at the AIS
2+ level is more biomechanically reliable than at the AIS 3+ level. The
agency established the SID-IIs criterion at a 25% risk level for AIS 2+
injuries \8\ based on available biomechanical test data from Bouquet et
al.,\9\ Zhu et al.,\10\ and Cavanaugh et al.\11\ NHTSA found
inconsistencies in the researchers' coding of AIS 2 and 3+ pelvic
injuries using the 1990 Abbreviated Injury Scale. Because of these
inconsistencies, the agency determined that it would be preferable to
use AIS 2+ injury risk to establish criteria for the SID-IIs. The
agency considered using the AIS 2+ injury risk for the ES-2re as well,
but did not adopt the AIS 2+ risk level at the time because an AIS 2+
pelvic injury criterion for the ES-2re would have been 3,250 N. An ES-
2re pelvic injury criterion of 6,000 N was used internationally for the
ES-2 dummy and not enough was known about the practicability and other
implications of requiring manufacturers to meet a criterion that was
approximately twice as stringent as the criteria used internationally.
It was thus decided that the ES-2re pelvic injury criterion should
remain at the AIS 3+ level, but that the injury risk level for the SID-
IIs pelvic injury criterion would be at the AIS 2+ level.
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    \8\ Kuppa, S., Injury Criteria for Side Impact Dummies, 2007,
Docket No. NHTSA-2007-29134-0001, http://www.regulations.gov/
fdmspublic/component/main.
    \9\ Bouquet, R., Ramet, M., Bermond, F., Vyes, C. Pelvic Human
Response to Lateral Impact, 16th International Technical Conference
on the Enhanced Safety of Vehicles, Paper No. 98-S7-W-16, National
Highway Traffic Safety Administration, Windsor, Canada, 1998.
    \10\ Zhu, J., Cavanaugh, J., King, A., Pelvic Biomechanical
Response and Padding Benefits in Side Impact Based on a Cadaveric
Test Series, SAE Paper No. 933128, 37th Stapp Car Crash Conference,
1993.
    \11\ Cavanaugh, J., Walilko, T., Malhotra, A., Zhu, Y., King,
A., Biomechanical Response and Injury Tolerance of the Pelvis in
Twelve Sled Side Impacts, Proc. of the Thirty-Fourth Stapp Car Crash
Conference, SAE Paper No. 902305, Society of Automotive Engineers,
Warrendale, PA, 1990.
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    Further, in establishing the SID-IIs criteria, the agency
normalized the pelvic force data from the Bouquet pelvic impact tests
to that of a small female weighing 48 kg (105 lb). The agency also
adjusted the risk curve to that for a 56-year-old, since that was the
average age of seriously injured occupants of a height less than 163 cm
(5 feet 4 inches) involved in side crashes. 72 FR at 51944, see also,
``Injury Criteria for Side Impact Dummies,'' NHTSA Docket 17694. There
was a significant amount of research indicating that pelvic injuries to
older people were associated with increased mortality. O'Brien et
al.\12\ and Henry et al.\13\ examined patients who sustained a pelvic
fracture during a 5-year period and found that patients 55 years and
older were more likely to sustain a lateral compression fracture
pattern and had a higher frequency of mortality due to the injury than
the younger patients (<55 years old). Thus, the 5,525 N sum of
acetabular and iliac force corresponded to a 25% risk of AIS 2+ injury,
reflecting the reduced bone strength in and a lower pelvic injury
tolerance of older women.
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    \12\ O'Brien, D., Luchette, F., Pereira, S., Lim, E., Seeskin,
C., James, L., Miller, S., Davis, K., Hurst, J., Johannigman, J.,
Frame, S. (2002) Pelvic Frature in the Elderly is Associated with
Increased Mortality, Surgery, Volume 132, pp. 710-715.
    \13\ Henry, S., Pollack, A., Jones, A., Boswell, S., Scalea, T.
(2002) Pelvic Fracture in Geriatric Patients: A distinct Clinical
Entity, Journal of Trauma, Volume 53, No. 1, pp. 15-20.
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    With regard to the Alliance's request to specify the SID-IIs pelvic
injury criterion with respect to the pubic force, we are denying that
request. Specifying a criterion limit of 4,280 N on the SID-IIs pubic
load measuring device was not proposed in the NPRM or explored in the
final rule, so the public has not had an opportunity to comment on the
suggested criterion and the agency has not had the benefit of those
comments. Furthermore, the Alliance's assertion that the external load
is twice that measured at the pubic symphysis of the SID-IIs is not
supported by the SID-IIs test data it submitted to the agency (``Injury
Criteria for Side Impact Dummies,'' NHTSA Docket 17694).\14\ In the
Alliance-submitted data, the external load was approximately 8.7 to
28.6 times the load measured at the public symphysis. Further, we
believe that the pubic load cell for the SID-IIs is limited in its
capacity to measure a load of 4,280 N because the attachment sites are
too rigid. A design change to the dummy is likely needed to have a
pubic load criterion for the SID-IIs, and the petitioner has not
demonstrated justification to undertake this change.
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    \14\ The ratio of the sum of acetabular and iliac forces of the
SID-IIs and the applied force on the cadaver (normalized to that of
a 5th percentile female) from the paired Bouquet cadaver tests
appears to be dependent on the impact velocity. Considering only the
impacts at 10 to 12 m/s, the average ratio of SID-IIs measured total
pelvic force to the cadaver applied force is 1.21.
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    We have also decided to deny the petitioner's request to create
separate injury threshold levels of 5,000 N for the iliac and
acetabular load cells. The test data used to develop the AIS 2+ injury
risk curves for the pelvis measured the total force applied to the
pelvis (Cavanaugh), as opposed to measuring separate loads on the iliac
and acetabulum. The injuries resulting from the total applied pelvic
force included a variety of pelvic injuries observed in real world
crashes: Pubic rami fractures, sacro iliac joint fractures, iliac wing
fractures, and ischio pubic branch fractures (Cavanaugh and
Bouquet).\15\ The AIS 2+ injury risk curves that were independently
developed using the Cavanaugh and Bouquet test data were nearly
identical, demonstrating that the total pelvic force is a good
predictor of a variety of pelvic injuries. The sum of iliac force and
acetabular force provides a better estimate of the total load on the
pelvis than the Alliance's approach, and consequently, provides better
injury prediction for different type of pelvic injuries. For this
reason, the sum of iliac and acetabular loads was used for injury
prediction, and adopted in the final rule. The Alliance provided no
analysis to support its alternative.\16\
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    \15\ Fractures due to lateral loading can occur at several
locations on the pelvic ring, including the pubic rami (pubic rami
fractures are typically the first that occur, as the pubic rami is
the weak link in the pelvis), pubic symphysis, iliac wing, sacro-
iliac junction, and acetabulum. Moreover, the load paths through the
pelvis in lateral impacts are complex: loading through the
trochanteron can result in fractures at the sacro-iliac joint;
loading through the iliac wing can cause pubic rami fractures.
    \16\ We also note that the 5,525 N injury criterion selected by
the agency for the SID-IIs is consistent with that used by the
Insurance Institute for Highway Safety (IIHS) in its side impact
consumer information program, whereas the petitioner's suggested
criterion of 8,550 N is not. IIHS ranks vehicles based on
performance when impacted perpendicularly by a moving barrier at
about 50 km/h. IIHS uses a maximum limit of 5,100 kN for ``good''
vehicles. Vehicles with a combined acetabulum and ilium force
greater than 7,100 N receive a ``poor'' injury rating by IIHS. The
Alliances' suggested criterion of 8,550 N would be in the poor
category.

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    Data from recent pole tests we conducted in support of NHTSA's New
Car Assessment Program (NCAP) illustrate the practicability of meeting
the SID-IIs pelvic injury criterion. We tested six vehicles that were
in conformance with the voluntary agreement made by auto manufacturers
\17\ that had been characterized as ``good'' performers in the IIHS
rating program.\18\ Of the six vehicles tested, the 2006 VW Passat and
2006 Subaru Impreza met the pelvic force requirements.\19\ The results
of the testing are set forth in Table 1, below.
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    \17\ On December 4, 2003, the Alliance, the Association of
International Automobile Manufacturers (AIAM), and IIHS announced a
new voluntary commitment to enhance occupant protection in front-to-
side and front-to-front crashes. The industry initiative consisted
of improvements and research made in several phases, focusing, among
other things, on accelerating the installation of side impact air
bags. See footnote 8 of the September 11, 2007 final rule (72 FR
51910), and Docket NHTSA-2003-14623-13.
    \18\ IIHS's side impact consumer information program ranks
vehicles based on performance when impacted perpendicularly by a
moving barrier at about 50 km/h. http://www.iihs.org/ratings/side_
test_info.html.
    \19\ This series of tests with the 5th percentile female dummy
were conducted with the iliac wing ``material 2'' specified
in the December 2006 SID-IIs final rule. The SID-IIs final rule to
address petitions for reconsideration specifies performance criteria
that allow for use of a stiffer ``material 3'' for the
iliac wing. Material 3 will not increase the total pelvic
force appreciably from that of the SID-IIs iliac wings used for the
2004-2005 MY vehicle tests listed in the 2007 final rule. When
comparing material 3 responses to material 2
responses, it is estimated the material 3 will result in a
12% increase in the iliac force in the qualification environment and
correspond to a 5% increase in total pelvis force in these vehicle
tests. The VW Passat and Subaru Impreza are still expected to meet
the pelvic force IARV with the new material.

                                        Table 1--SID-IIs Oblique Pole Tests With Vehicles Rated ``Good'' by IIHS
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                                                                                5th Female IARV
                                                                         -------------------------------------------------------------------------------
                                                                               HIC36        Thorax/rib       Abdominal      Lower spine    Pelvis force
                 Vehicles                             SAB type           ----------------   defl. (mm)      defl. (mm)         (Gs)             (N)
                                                                                ---------------------------------------------------------------
                                                                               1000             38*             45*             82             5525
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2007 Honda Pilot..........................  Curtain + Torso.............            3464              48              49              68            6649
2007 Nissan Quest.........................  Curtain.....................            5694              50              56              79            5786
2007 Ford Escape..........................  Curtain + Torso.............             407              65              36              65            6515
2006 VW Passat............................  Curtain + Torso.............             323              23              32              40            3778
2006 Subaru Impreza.......................  Combo.......................             184              51              38              58            4377
2007 Toyota Avalon........................  Curtain + Torso.............             642              28              38              62            6672
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*Note: Injury measurements for reference only; not required in FMVSS No. 214.

    Not only did the 2006 VW Passat and the 2006 Subaru Impreza meet
the pelvic force limit, but both vehicles met the lower spine and head
requirements as well.\20\ The VW Passat also had very low thoracic and
abdominal deflection measurements. The performance of the VW Passat
illustrates the feasibility of protecting all body regions at the FMVSS
No. 214 levels without overloading the thorax or any other part of the
occupant. With the additional lead time and longer phase-in of the
upgraded FMVSS No. 214 requirements provided by the June 2008 final
rule, manufacturers will have sufficient time to design the necessary
countermeasures to meet the pelvic criteria established in the
September 11, 2007 final rule.
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    \20\ We note that all six vehicles were well below the 8,550 N
pelvic force limit proposed by the Alliance and consequently, no
changes would need to be made to any of these vehicles to meet its
suggested criterion.
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b. Multi-Stage Vehicles and Partitioned Vehicles

    In the September 2007 final rule, NHTSA decided not to exclude
vehicles manufactured in two or more stages equipped with a cargo
carrying, load bearing or work-performing body or equipment from the
pole test requirements, as suggested by NTEA's comment on the NPRM. 72
FR at 51937. The agency decided that the exclusion was unwarranted;
there was not sufficient reason to deny the occupants of the vehicles
the life-saving benefits of head and enhanced thorax protection
provided by side air bags. (The Final Regulatory Impact Analysis
estimated those benefits to be a 24 percent reduction in fatality risk
for nearside occupants by side air bags and an estimated 14 percent
reduction in fatality risk by torso bags alone. See Docket No. NHTSA-
29134.)
    We believed that many incomplete vehicle manufacturers (which are
typically large vehicle manufacturers, such as GM and Ford) will
accommodate the needs of final-stage manufacturers, since the
incomplete vehicles they provide would typically have a significant
portion of the occupant compartment completed, with seat- or roof-
mounted head/thorax air bag systems already installed and would be
accompanied by a workable and reasonable incomplete vehicle document
(IVD). NHTSA determined that, by using the IVD, final-stage
manufacturers would be able to rely on the incomplete vehicle
manufacturer's certification and pass it through to certify the
completed vehicle. 72 FR at 51937.
    Under NHTSA's regulations,\21\ the incomplete vehicle manufacturer
must provide an IVD with each incomplete vehicle it provides to the
final-stage manufacturer. The IVD requirements were thoroughly
explained in a February 14, 2005, final rule on certification
responsibilities of manufacturers of vehicles built in two or more
stages and altered vehicles \22\ and in NHTSA's May 15, 2006, final
rule responding to NTEA's petition for reconsideration of the rule.\23\
As explained in those documents, an IVD details, with varying degrees
of specificity, the types of future manufacturing contemplated by the
incomplete vehicle manufacturer and must provide, for each applicable
safety standard, one of three statements that a subsequent manufacturer
can rely on when certifying compliance of the vehicle, as finally
manufactured, to some or all of all applicable FMVSS.

The final-stage manufacturer has to meet the conditions of the IVD in
producing the final vehicle.
---------------------------------------------------------------------------

    \21\ 49 CFR part 568, ``Vehicles Manufactured in Two or More
Stages--All Incomplete, Intermediate and Final-Stage Manufacturers
of Vehicles Manufactured in Two or More Stages.'' Section Sec.
568.4 requires the incomplete vehicle manufacture to furnish the IVD
at or before the time of delivery.
    \22\ 70 FR 7414, Docket 99-5673.
    \23\ 71 FR 28168, May 15, 2008, Docket 2006-24664.
---------------------------------------------------------------------------

    The first type of statement contained by an IVD is one referred to
in 49 CFR 568.4(a)(7) as a ``Type 1 statement.'' These statements
indicate, with respect to a particular safety standard, that the
vehicle, when completed, will conform to the standard if no alterations
are made in identified components of the incomplete vehicle. This
representation is most often made with respect to chassis-cabs, a type
of incomplete vehicle that has a completed occupant compartment. 49 CFR
567.3.
    The second type of statement is a ``Type 2 statement'' (Sec.
568.4(a)(7)). This is a statement of specific conditions of final
manufacture under which the completed vehicle will conform to a
particular standard or set of standards. This statement is applicable
in those instances in which the incomplete vehicle manufacturer has
provided all or a portion of the equipment needed to comply with the
standard, but subsequent manufacturing might be expected to change the
vehicle such that it may not comply with the standard once finally
manufactured. For example, the incomplete vehicle could be equipped
with a brake system that would, in many instances, enable the vehicle
to comply with the applicable brake standard once the vehicle was
complete, but that would not enable it to comply if the completed
vehicle's weight or center of gravity height were significantly altered
from those specified in the IVD.
    The third type of statement, a ``Type 3'' statement, is one which
identifies those standards for which no representation of conformity is
made because conformity with the standard is not substantially affected
by the design of the incomplete vehicle. A statement of this kind could
be made, for example, by a manufacturer of a stripped chassis who may
be unable to make any representations about conformity to any
crashworthiness standards given that the incomplete vehicle does not
contain an occupant compartment.
    In the September 11, 2007 final rule amending FMVSS No. 214, the
agency declined NTEA's suggestion to exclude the multistage vehicles it
identifies from the pole test requirements. We had, and still have,
every reason to expect that incomplete vehicle manufacturers will
accommodate the needs of final-stage manufacturers. We believe that
chassis-cab manufacturers will produce incomplete vehicles with seat-
or roof-mounted head/thorax air bag systems already installed and with
workable instructions on how the vehicle could be completed to enable
the final-stage manufacturer to pass-through the certification. As
NHTSA stated in the September 11, 2007, final rule, ``As long as the
final-stage manufacturer meets the conditions of the incomplete vehicle
document (and NTEA has not shown that final stage manufacturers will
not be able to meet those conditions) the manufacturers may rely on the
incomplete vehicle manufacturer's certification and pass it through
when certifying the completed vehicle.'' 72 FR at 51937-51938.
    Further, for final-stage manufacturers that will have to certify
the compliance of the vehicle other than by using ``pass-through''
certification, the agency provided manufacturers until September 1,
2013, approximately six years under the September 11, 2007, final rule
(which has been extended to September 1, 2016, under the June 2008
final rule), to work with incomplete vehicle manufacturers and with
seat and air bag suppliers to revise current air bag systems and
vehicle designs to enable them to certify to the pole test. 72 FR at
51938. The agency determined that this long period will provide enough
time for final-stage manufacturers to work with incomplete vehicle
manufacturers, seat manufacturers and air bag suppliers, individually
or as a consortium, to develop the information to install seat-mounted
systems, or other countermeasures that could be developed to meet the
pole test. Id.
    NTEA and the Alliance petitioned for reconsideration of the
agency's decision on this issue. NTEA stated that ``it will not be
possible for chassis [incomplete vehicle] manufacturers to develop
compliance strategies for this regulation that would allow multi-stage
manufacturers to continue producing the range of diversified work
trucks demanded by the marketplace.'' The petitioner believed that the
side air bag system is highly complex and that ``it will not be
possible for the chassis manufacturers to provide a generic compliance
envelope covering any significant portion of the vehicle configurations
produced by today's work truck industry.'' In the alternative, NTEA
asked that if the rule is to continue to apply to multi-stage vehicles,
the effective date for multi-stage produced vehicles with a gross
vehicle weight rating greater than 8,500 pounds be extended to
September 1, 2014 (one year later than the effective date for single
stage produced vehicles).
    The Alliance petitioned to exclude multi-stage and altered vehicles
from the pole test requirements because, it asserted, ``the extensive
variation of possible changes that can be made to vehicles that are
built in multiple stages, including the addition of partitions, will
affect the performance of original equipment manufacturers' (OEMs')
side airbags [sic] systems (side airbags, curtains, sensing systems,
and interior and structural components).'' The petitioner stated:
``Each multi-stage vehicle developed from a single incomplete vehicle
could potentially require a unique side airbag system, which could
require a unique development process for each system (development
process meaning iterative crash testing for occupant response and side
sensor calibration development).'' The Alliance further stated that,
``OEMs will not be in a position to expend engineering resources to
develop unique side airbag systems in addition to the systems developed
for the associated completed vehicles'' and that multi-stage
manufacturers ``will not necessarily be in a position to collaborate
with OEMs and/or restraint suppliers to develop unique systems.''
 Agency Response
    The petitioners' contentions that it would be impossible for
incomplete vehicle manufacturers to develop strategies that would allow
multi-stage manufacturers to continue producing diversified work trucks
are overly general and wholly unsupported. No information was submitted
with the petitions substantiating the petitioners' views that final-
stage manufacturers will not be able to certify their vehicles to the
pole test. No information was provided to show that incomplete vehicle
manufacturers will find pass-through certification unachievable. NHTSA
cannot find a basis on which to conclude that final-stage manufacturers
could not adhere to the instructions of the IVD, when final-stage
manufacturers are currently certifying the compliance of their vehicles
with FMVSS No. 214, and with FMVSS No. 208, ``Occupant crash
protection,'' (frontal air bag technology), FMVSS No. 301, ``Fuel
system integrity,'' and other complex safety standards that include
crash testing vehicles as part of the agency's compliance tests.
    We believe that it will be feasible for final-stage manufacturers
to certify their vehicles to the pole test using the IVD provided by
the incomplete vehicle manufacturer. The IVD framework was carefully
analyzed in the May 15, 2006, final rule (71 FR 28168) that responded
to NTEA's petition for reconsideration of the February 14, 2005, rule
amending the certification requirements for multi-stage vehicle
manufacturers. The agency examined a GM CK Chassis-Cab IVD

that NTEA had appended to its petition for reconsideration as an
example of purported deficiencies in IVDs generally (71 FR at 28177).
To assess the validity of NTEA's contentions, NHTSA carefully examined
the certification statements in the GM IVD that NTEA identified as
inadequate. NHTSA determined each of NTEA's claims to be
unsubstantiated.
    The agency found that the IVD was entirely workable as it related
to each of the FMVSSs, including FMVSS No. 214. NTEA had contended that
there was no meaningful pass-through opportunity for FMVSS No. 214's
crush resistance requirements and the standard's moving deformable
barrier test. The GM IVD stated that the vehicle will comply with the
requirements of FMVSS No. 214 as long as no alterations were made that
affect the properties, environment, or vital spatial clearances of
various components and systems in the vehicle, including the air bag
system, the door assemblies, hinges, and latches, the door pillars, and
the seat and seat belt anchorages and assemblies. The GM IVD was
practicable, providing a reasonable envelope within which the final
stage manufacturer could complete the vehicle and certify it to FMVSS
No. 214. NHTSA determined that (71 FR at 28181)--

    GM has designed vehicles, including the doors and associated
structural members, such as pillars, to withstand various forces
applied to the side of the vehicle. Ordinarily, GM would have tested
the side of a single stage pickup truck. Vehicles completed from a
chassis-cab incomplete vehicle have door support structures and
doors that are identical to a single stage pickup truck. Unless the
final-stage manufacturer makes alterations to the door-related
structures and parts enumerated in the IVD, pass-through
certification should be available. * * * It would be unreasonable to
expect GM or any other incomplete vehicle manufacturer to provide
pass-through certification with FMVSS 214, which is directly
contingent on the engineering and performance of the systems set
forth in the IVD, without a limitation on alteration of those
systems.

    The agency concluded that a final-stage manufacturer can readily
complete its vehicle by mounting a body onto an incomplete GM vehicle,
such as a chassis cab, without making modifications that would place it
outside the pass-through certification provisions of GM's IVD. Id.
    The conclusions of the May 15, 2006 final rule concerning the
static door strength and the MDB test of FMVSS No. 214 are relevant to
today's rulemaking and apply to the issues raised by the petitioners.
We anticipate that the IVDs provided by incomplete vehicle
manufacturers will offer compliance strategies to final-stage
manufacturers for meeting the static door strength and MDB requirements
of FMVSS No. 214 just as the IVDs do today, by including statements
that the vehicle will comply with the FMVSS No. 214 requirements as
long as no alterations are made that affect the properties,
environment, or vital spatial clearances of various components and
systems in the vehicle, such as the door assemblies, hinges, and
latches, the door pillars, and the seat and seat belt anchorages and
assemblies. These conditions would be reasonable and logical, since the
side crash protection provided by the door assemblies, hinges, latches,
structure and padding, and by the seat and seat belt system could be
affected if the properties, environment, or vital spatial clearances
were modified by a final-stage manufacturer. These conditions for
meeting the static door strength and MDB requirements of FMVSS No. 214
can readily be met by final-stage manufacturers, just as they are met
today, by making sure that the vehicles are completed without modifying
the incomplete vehicle's door assemblies, hinges, and latches, the door
structure, pillars, and padding, and the seat and seat belt anchorages
and assemblies.
    With regard to the pole test requirements which were newly added to
FMVSS No. 214 by the September 11, 2007 final rule, the findings of the
May 15, 2006 final rule are informative and relevant to this matter as
well. The May 15, 2006 final rule discussed NTEA's complaint about the
pass-through certification in the GM IVD pertaining to FMVSS No. 208.
This discussion is instructive today because both FMVSS No. 208 and the
pole test of FMVSS No. 214 specify vehicle crashworthiness requirements
in terms of forces and accelerations measured on test dummies in crash
tests and by specifying performance requirements that are met by air
bags.
    As discussed in the May 15, 2006 final rule, the GM IVD provided
pass-through certification for FMVSS No. 208 for vehicles, provided
that the maximum unloaded vehicle weight specified by GM is not
exceeded and no alterations are made that affect the properties,
location, or vital spatial clearances of various components, including
the number, location and configuration of designated seating positions
and seat belt assemblies, the instrument panel, steering wheel, air bag
modules and coverings, the Sensor Diagnostic Module (SDM) (which is
involved in triggering air bag deployment) and associated wiring, air
bag labels, the vehicle frame and structural members, sheet metal, and
the engine compartment, that would result in a difference in the
modified vehicle's deceleration if it were subject to barrier impact
tests under FMVSS No. 208. 71 FR at 28181.
    NHTSA found these restrictions in GM's Type 1 IVD to be logical and
consistent with a systematic approach to occupant crash protection
employed by manufacturers. 71 FR at 28182. Regarding GM's restriction
on unloaded vehicle weight and GVWR, vehicle weight is an essential
component of crashworthiness standard certification. If the vehicle, as
completed and loaded, exceeded the maximum weight for which the
incomplete vehicle manufacturer provided pass-through certification
(usually based on a crash test the incomplete vehicle manufacturer
performed), it would not be reasonable to expect the GM's certification
to apply because the excess vehicle weight could cause different and
excessive forces and accelerations on crash dummies. Final-stage
manufacturers can readily work within weight requirements by taking
care to purchase the appropriate incomplete vehicle chassis for the use
to which the vehicle will be put.
    NHTSA also found not unreasonable the restrictions in the GM IVD on
alterations that interfere with the seating positions, seat belts,
instrument panel and air bags, SDM, and vehicle frame and body in a way
that would result in a difference from the modified vehicle's
deceleration if it were subjected to an FMVSS No. 208 barrier test. The
restrictions were reasonable because incomplete vehicle manufacturers
typically provide pass-through certification based on tests performed
on a pickup truck with stock seats provided by the incomplete vehicle
manufacturer and test dummies in those seating positions, as specified
by FMVSS No. 208. If the seating positions were different, the test
results as recorded on the dummies likely would be different. NHTSA
determined that it was reasonable that GM should not be held to
anticipate performance, as measured on dummies, in these circumstances.
NHTSA also found it reasonable that GM would not provide pass-through
certification if the seat belt system were changed.
    The agency further discussed the IVD's statements relating to FMVSS
No. 208, as follows (71 FR 28182):

    Other requirements relate to the air bags and their control
unit. GM could not be expected to provide pass-through certification
if the final-stage manufacturer modified these items.

    Finally, the IVD provides that various structural and sheet
metal components cannot be modified if the modifications would
result in a difference in the modified vehicle's deceleration in a
barrier test under FMVSS No. 208. A basic concept in designing
vehicles is to design vehicle structures that minimize the amount of
injury-causing crash energy that reaches the occupants. To
accomplish this, in part, manufacturers design into the vehicle
structural zones that collapse and absorb crash energy. A
crashworthy vehicle is designed to deform according to a
deceleration-time response, or crash pulse. These vary among
vehicles. The frontal structure largely controls the deceleration
pulse. Ultimately, the deceleration response of the vehicle affects
the response experienced by the test dummies, as gauged by
regulatory injury criteria such as the thoracic acceleration of a
test dummy. Modifications by a final-stage manufacturer to the
frame, sheet metal and other components identified in GM's IVD may
change the vehicle's deceleration and its performance in a crash
test, including measurements on test dummies. GM could not
reasonably be expected to assume certification responsibility in
these circumstances. But the final-stage manufacturer could readily
satisfy the conditions of the IVD by not modifying the identified
components of the incomplete vehicle when it adds equipment to the
chassis of the vehicle. (Id., emphasis added.)

    This discussion applies equally to the IVDs that incomplete vehicle
manufacturers will provide concerning the FMVSS No. 214 pole test. We
anticipate that the IVD will provide pass-through certification for
FMVSS No. 214 for vehicles provided that weight restrictions are not
exceeded, and the vehicle is not modified so as to affect the
properties, location, or vital spatial clearances of certain
components. These components include the location and configuration of
the driver and outboard passenger seating positions, the seat belts
installed at those seating positions, the side door structure and door
assemblies, and the side air bag system. A side air bag system includes
the side air bag modules, inflator, sensors triggering air bag
deployment, and associated wiring.
    A final-stage manufacturer will be able to satisfy the conditions
of the IVD in completing the vehicle and certifying it to FMVSS No.
214, just as it is able to work with the IVD in certifying completed
vehicles to FMVSS No. 208. The final-stage manufacturer can readily
adhere to the weight requirements of the IVD by following the
instruction of the IVD. Further, when completing a work vehicle, a
final-stage manufacturer typically does not modify the vehicle door
trim, side structure or energy absorbing material for the front
outboard occupants, and can complete the vehicle without modifying the
side air bag system. Because of this, the Alliance's contention that
``unique'' side air bag systems would have to be developed for ``each
multi-stage vehicle'' developed from a single incomplete vehicle is not
substantiated. NHTSA cannot concur with that estimation, based on the
information available. Accordingly, we find no basis for excluding all
cargo carrying, load bearing and work-performing vehicles manufactured
in more than one stage from the pole test.
    The petitioners were particularly focused on partitions and
bulkheads that final-stage manufacturers install in work vehicles. NTEA
stated that these components ``protect the driver from loose cargo in
the back of the vehicle.'' The Alliance stated that the addition of
partitions will affect the performance of original equipment
manufacturers' side impact air bag systems (SIABs).
    The September 11, 2007 final rule did not exclude partition-
equipped vehicles from the pole test requirements. NHTSA determined
that an exclusion of partition-equipped vehicles, or of vehicles with
bulkheads, was overly broad on its face and unwarranted when
considering the different countermeasures that may be designed to meet
the requirements. These possible countermeasures included the use of
seat-mounted or door-mounted head/thorax air bag systems, the
development of side air curtain technology that involves designs other
than tethering the curtain to the A- and C-pillars. 72 FR at 51936.
Further, the final rule provided an extra year of lead time to
accommodate any necessary manufacturing changes that have to be made to
their vehicles. NHTSA stated: ``Between [September 11, 2007] and that
date, [alterers and final-stage manufacturers] can work with
manufacturers of incomplete and complete vehicles to develop seat-
mounted SIABs and other technologies that would enable them to install
the life-saving devices in vehicles that have partitions.'' Id.
    The petitioners did not provide information substantiating its
claim that compliance is not practicable for vehicles with partitions
or bulkheads. To the contrary, market-based solutions are emerging now.
The agency is aware of the availability of partitions \24\ in police
vehicles that are advertised as compatible with side curtain air bags.
For some partition designs, sufficient space is provided to allow for
the inflation of the air curtain. If a full width barrier is desired,
new air bag systems are emerging to meet that need. GM has announced it
will offer a police vehicle with optional front-seat-only side curtain
air bags that allow a full-width rear-seat barrier.\25\ An air curtain
could be tethered from the A- to B-pillar and be compatible with a
partition or bulkhead. NHTSA is aware of another manufacturer that
intends to build a police car with side curtains and a partition.\26\
Further, as explained by the agency in the September 11, 2007 final
rule, a head/thorax combination air bag or an air bag that deploys
upwards from the window sill \27\ could be used. With the lead time
provided by the final rule, we expect that more solutions from vehicle
manufacturers and aftermarket suppliers will be developed for vehicles
with partitions or bulkheads.
---------------------------------------------------------------------------

    \24\ See http://www.setina.com. Setina Manufacturing Co. markets
side curtain air bag compatible police equipment partitions for the
Chevrolet Impala, Suburban and Tahoe, Chrysler Aspen, Dodge Charger,
Magnum and Durango and the Ford Expedition and Explorer.
    \25\ http://media.gm.com/servlet/GatewayServlet?target=http://
image.emerald.gm.com/gmnews/
viewmonthlyreleasedetail.do?domain=74&docid=57260.
    \26\ http://www.carbonmotors.com/pdf/comparison.pdf.
    \27\ A door-mounted inflatable curtain was introduced in the
2006 model year Volvo C70 convertible. Nissan has also indicated
that a side air bag system under development for convertibles uses a
seat mounted thorax air bag and a curtain air bag deployed from the
door. See NHTSA-2007-29134-0007.1. Upwards-deploying air bags could
be used in vehicles with a partition or bulkhead.
---------------------------------------------------------------------------

Collaboration
    There has been no information presented that corroborates the
Alliance's assertion that multi-stage manufacturers could not
collaborate with OEMs and/or restraint suppliers to develop side air
bag systems that would work with their vehicles. The May 15, 2006 final
rule discusses at length the cooperative relationships that have
existed for years between incomplete and final-stage manufacturers.
See, e.g., 71 FR at 28183-28185. Final-stage manufacturer are motor
vehicle manufacturers, and they have for many years borne the
responsibility under the National Traffic and Motor Vehicle Safety Act
to ensure that their vehicles are certified to the FMVSSs. For many
years, they have certified their vehicles to a gamut of crash test and
other standards using the IVD and their engineering abilities. They
have worked with incomplete vehicle manufacturers and suppliers,
individually or as part of a consortium, and have the capabilities to
continue to do so to develop strategies needed to certify their
vehicles to the pole test.
    Further, as noted above, in the June 9, 2008, final rule responding
to petitions for reconsideration of the September 11,

2007, final rule on FMVSS No. 214, the agency extended the compliance
date on which multi-stage manufacturers and alterers must certify to
the pole test, providing additional time to meet the FMVSS No. 214
requirements. That final rule provided vehicles manufactured in more
than one stage and altered vehicles until a year after completion of
the phase-in for all other vehicle types, i.e., until September 1,
2016, to meet the pole test. This lead time provides even more lead
time than the NTEA had requested (petitioner had asked that if the rule
is to continue to apply to multi-stage vehicles, the effective date for
multi-stage produced vehicles with a GVWR greater than 8,500 pounds be
extended to September 1, 2014) and provides ample opportunity for
multi-stage manufacturers and alterers to develop and implement
strategies for certifying compliance with the FMVSS No. 214 pole test.
    Accordingly, for the reasons provided above, we are denying the
petitions to exclude vehicles produced in more than one stage, altered
vehicles, and vehicles with partitions from the pole test.

c. Test Procedures

1. Vehicle Set Up
i. Positioning the Seat
A. Adjusting the Front Seat for the 50th Percentile Male Dummies
    For adjusting the front seat for both the SID-IIs and the ES-2re
dummies, the final rule adopted the seat positioning procedure used in
FMVSS No. 208 for the 5th percentile female Hybrid III dummy (for the
ES-2re 50th percentile adult male dummy, the only alteration made was
to specify the mid-track position as opposed to full-forward). That
seat positioning procedure from FMVSS No. 208 was adopted for use in
FMVSS No. 214 because it was more detailed than any other procedure
used in the FMVSSs and addressed the wide variety of seat
configurations and multi-way power seat adjustments available in
vehicles.
    In its petition, the Alliance requested that the seat adjustment
method for the ES-2re dummy be the same as that in FMVSS No. 208 for
the Hybrid III 50th percentile male dummy. It stated it is unclear why
NHTSA prescribes a different seating procedure for FMVSS No. 214 than
the one prescribed for FMVSS No. 208. The Alliance further noted that
the seat adjustment method in FMVSS No. 214 for the SID that had been
in place before the amendment resulted in a different mid-point
location than the location obtained under the amended FMVSS No. 214
procedure. The seating positioning procedure for the SID (S6.3) used to
state, ``Adjustable seats are placed in the adjustment position midway
between the forward most and rearmost position * * *,'' whereas
S<IP_ADDRESS>.2 of the final rule states, ``Using only the control that
primarily moves the seat fore and aft, move the seat cushion reference
point to the mid travel position.* * *''
Agency Response
    NHTSA is denying the Alliance's petition to change the seat
positioning procedure for the ES-2re.\28\ It is correct that the FMVSS
No. 214 final rule seating procedure can place the seat, and thus the
position of the ES-2re dummy, in a slightly different location compared
to the FMVSS No. 208 procedure for the 50th percentile male Hybrid
III.\29\ Specifically, both the height and mid-point position of the
final seat location can vary between the two procedures depending on
the number of degrees of freedom designed into the seat adjustment
mechanism. However, the FMVSS No. 214 seat positioning procedure takes
into account the full range of motion of the seat in determining the
seat's mid-point and height, which the FMVSS No. 208 procedure does
not. The new procedure is more objective and repeatable than the FMVSS
No. 208 procedure, given the wide variety of seat configurations and
multi-way power seat adjustments available in vehicles available today.
NHTSA thus considers the FMVSS No. 214 seat positioning procedure
preferable to the FMVSS No. 208 procedure. As to the petitioner's
suggestion that the procedures of FMVSS No. 208 and FMVSS No. 214
should be consistent, we are considering rulemaking to amend FMVSS No.
208 to adopt the FMVSS No. 214 procedure to position the seats. (With
regard to the point about positioning the SID, the June 9, 2008
document reinstituted the pre-existing seat adjustment procedure for
use with the SID in the MDB test until the phase-in of the new
requirements is completed. 73 FR at 32480.)
---------------------------------------------------------------------------

    \28\ The seat position concerns raised by the Alliance were not
raised in the comments to the NPRM or discussed in the final rule.
    \29\ The seat adjustment procedure first adopted for the 50th
percentile male SID when FMVSS No. 214 was amended to include the
dynamic test requirements with the MDB (55 FR 45722) was derived
from that used in FMVSS No. 208. The September 2007 FMVSS No. 214
final rule adopted a revised seat adjustment procedure for the new
requirements as well as for those vehicles being certified to the
pre-existing requirements with the SID during the phase-in. The June
2008 response to petitions for reconsideration reinstated the pre-
existing seat adjustment procedure when testing with the SID during
the phase-in, in response to a petition from the Alliance. In that
document, we acknowledged the new seat adjustment procedures can
place the SID at a slightly different location in the vehicle when
compared to the pre-existing procedure and that it was not the
agency's intent to change the certification responsibilities of
manufacturers that had certified vehicles using the SID.
---------------------------------------------------------------------------

B. Location of Seat on the Non-Impact Side
    The MDB and pole test procedures in the final rule state (S<IP_ADDRESS>
and S<IP_ADDRESS>, respectively): ``If the passenger seat does not adjust
independently of the driver seat, the driver seat shall control the
final position of the passenger seat.'' However, if the passenger seat
does adjust independently of the driver seat, the final rule was silent
on specifying a seat positioning procedure for the non-impacted side of
the vehicle.
    The Alliance noted that the agency's FMVSS No. 214 Test Procedure
manual with the SID dummy \30\ has stated: ``Adjustable seats (on the
impact and non-impact side) are placed in the adjustment position
midway between the forwardmost and rearmost position * * *.'' That is,
the passenger seat is in the same fore/aft location as the struck-side
seat. The Alliance recommended positioning the seat on the non-impacted
side at the same fore/aft location as the struck-side seat.
---------------------------------------------------------------------------

    \30\ (TP214D-08 Part l); K: Adjustable Seats.
---------------------------------------------------------------------------

Agency Response
    We agree with the Alliance that the seat on the non-struck side
should be aligned with the impacted seat, with regard to two adjacent
seats with the ability to adjust independently of each other.
C. Seat Cushion Reference Point
    In the ES-2re seating procedure, the seat cushion reference point
(SCRP) is located: ``* * * on the outboard side of the seat cushion at
a horizontal distance between 150 mm (5.9 in) and 250 mm (9.8 in) from
the front edge of the seat * * *'' To set the height of the SCRP,
section S<IP_ADDRESS>.3 of the final rule states: ``* * * set the height of
the seat cushion reference point to the minimum height, with the seat
cushion reference line angle set as closely as possible to the angle
determined in S<IP_ADDRESS>.1.''
    In its petition, the Alliance said that the seat cushion height
adjustment could result in differences in the reference line angle,
depending on whether the minimum height was set or the angle was
maintained. The Alliance noted that a similar situation exists for seat
adjustment to the mid height in

S<IP_ADDRESS>.3. Therefore, the Alliance recommended that NHTSA specify
seat cushion height and angle for conditions under which the SCRP
should be determined. The petitioner recommended that priority be given
to seat cushion height.
Agency Response
    We are denying this request. The SCRP is a guide in locating the
seat's mid-track position and setting the seat cushion reference line.
The SCRP is simply a reference point located on the seat cushion
reference line and does not affect the final location of the seat. In
the seating procedure, the angle of the seat cushion reference line is
used to define the mid-angle position of the seat cushion adjustability
range.\31\ Once the mid-angle position is defined, while maintaining
that angle, the seat is placed in its lowest possible height position.
Using the SCRP as a reference point, the seat is then located at the
mid-track position. The priority in the seat adjustment procedure is
given to seat cushion angle rather than height. If seat height were
given priority over seat cushion angle, the process would be similar to
the current FMVSS No. 208 procedure, which is not as clear. The seat
adjustment procedure has been used with the 5th percentile female
Hybrid III dummy in FMVSS No. 208 by both the agency and industry, and
we are not aware of any issues associated with it to determine seat
location.
---------------------------------------------------------------------------

    \31\ For some adjustable seats, the seat bottom cushion can
pivot up and down in an arc. The seat cushion reference line is used
to identify the full range of travel the seat cushion can pivot in
the arc. Once the minimum and maximum positions of travel for the
seat cushion reference line have been located, the reference line is
then placed at the middle of the range of motion.
---------------------------------------------------------------------------

ii. Adjustable Head Restraint Position for the SID-IIs
    The final rule requires that the adjustable head restraint be in
the lowest and most forward position for the SID-IIs in the pole test.
The Alliance recommended adding clarification as to what constitutes
the lowest possible range for the head restraint. The petitioner stated
that it considers the adjustment positions to be determined by detents
on the support bars of the head restraint and that the lowest position
may not necessarily be the lowest possible position.
Agency Response
    NHTSA agrees with the Alliance that the potential exists where the
lowest possible detent position may not be the lowest possible position
for the head restraint adjustment. It was the agency's intent to
position the head restraint in contact with the top of the seat back as
the seat back may provide a ``stop'' for the downward adjustment of the
head restraint, just as a detent does at other positions of adjustment.
To further clarify the position of the head restraint when testing with
the SID-IIs dummy, we are revising the standard to state that if it is
possible to achieve a position lower than that associated with the
detent range, the head restraint will be set to its lowest possible
position. The change is consistent with the positioning head restraints
for testing in FMVSS No. 202, ``Head restraints.''
iii. Adjustable Seat Belt Shoulder Anchor
    The final rule specified that, when testing with the 50th
percentile adult male dummies, adjustable belt anchorages are placed at
the mid-adjustment position (for the SID, see S12.1 of the regulatory
text, and for the ES-2re, S12.2.1).
    The Alliance requested the agency use the FMVSS No. 208 procedure,
which specifies that the shoulder belt anchorage is placed at the
manufacturer's design position. The Alliance stated it does not
understand the reason for the difference between FMVSS No. 214 and
FMVSS No. 208. Honda stated that the seat belt shoulder anchorage
adjustment can be unclear when an adjustable shoulder anchorage does
not have a true mid-position and requested NHTSA to clarify the
specification.
Agency Response
    NHTSA agrees with the Alliance's request to use the specification
in FMVSS No. 208 for seat belt anchorage positioning for the 50th
percentile male dummy. From our experience with FMVSS No. 208, the
adjustable seat belt anchorage is generally specified by the
manufacturer at the mid-position, or one detent above or below. We also
believe that the specification will address Honda's concern, as the
manufacturer will specify the seat belt anchorage position. As with our
FMVSS No. 208 compliance test program, when testing to FMVSS No. 214
the agency will contact the manufacturer to determine where the
anchorage needs to be placed prior to a vehicle test.
iv. Adjustable Steering Wheels
    The final rule's test procedures for the pole test specified
procedures for adjusting the steering wheel (S10.5) but did not include
a procedure for adjusting telescoping steering columns, while
instructions for the latter were included in the MDB test procedure
(S8.4).
    The Alliance and Honda requested that the agency revise the
procedure of S10.5, ``Adjustable steering wheel,'' for the pole test to
be consistent with S8.4 for the MDB test.
Agency Response
    We agree with the petitioners on the need for more specificity for
adjustable steering wheels in the pole test. This was an oversight in
the final rule. We are including a provision in S10.5 that states that
a telescoping steering column is placed in the mid-position. If there
is no mid-position, the steering wheel is moved rearward one position
from the mid-position. This is consistent with S8.4 of the standard.
v. Impact Point Reference Line Determination
    In S10.11, the standard specifies that the pole test impact
reference line is located at the intersection of the vehicle exterior
and a vertical plane passing through the center of gravity of the head
of the dummy seated in accordance with S12 in the front outboard
designated seating position. The vertical plane forms an angle of 285
(or 75) degrees with the vehicle's longitudinal centerline for the
right (or left) side impact test.\32\ Under S10.12.2, the test vehicle
is propelled so that its line of forward motion forms an angle of 285
(or 75) degrees for the right (or left) side impact with the vehicle's
longitudinal centerline. The impact reference line is aligned with the
center line of the rigid pole surface, as viewed in the direction of
vehicle motion, so that when the vehicle-to-pole contact occurs, the
center line contacts the vehicle area bounded by two vertical planes
parallel to and 38 mm forward and aft of the impact reference line.
---------------------------------------------------------------------------

    \32\ The angle is measured counterclockwise from the vehicle's
positive X-axis as defined in S10.13 of the standard.
---------------------------------------------------------------------------

    The Alliance stated that because of the 75 degree impact angle, the
first impact point does not correspond with the center of the pole. The
petitioner believes that there is a difference of 34 mm which has to be
added to the 38 mm tolerance provided in the final rule.
Additionally, it noted that the CG position of the dummy head is not
equivalent to the marking on the outer surface of the head. It noted
there is a difference of either 16 mm (SID-IIs) or 17.5 mm (ES-2re)
between these two points. See Figure 10 of the petition. Therefore, the
Alliance asked for a ``more repeatable'' and ``objective'' definition
of the impact point location,

but provided no recommended definition in its petition or in a
subsequent submission. (The Alliance stated in its petition that it
would submit additional information on this issue, but did not do so.)
Agency Response
    NHTSA is denying the request. The regulatory text for the oblique
pole test is consistent with the pole-to-head alignment in FMVSS No.
201, and no repeatability or objectivity problems have arisen with
regard to FMVSS No. 201.
    Furthermore, we believe that the Alliance may have erroneously
interpreted the language of the standard with respect to aligning the
pole with the center of gravity of the dummy's head. It appears that
the petitioner believes that the pole is aligned with a marker on the
outer surface of the dummy's head. The regulatory text clearly states
that the center of the pole is to be aligned directly with the CG of
the dummy's head and not a marking that is projected perpendicular to
the surface of the dummy's head. (See the Alliance's petition, Figure
10, page 27, showing the petitioner's interpretation of the impact
reference line from the marker on the side surface of the dummy's
head.)
    In our fleet testing, we aligned the pole such that the reference
line went through the measured CG of the head of the dummy. A target
was placed on the dummy's head but the marker location was calculated
to account for the 75 degree oblique angle to address the exact issue
the Alliance identified in its petition.
vi. Vehicle Attitude
    In the final rule's specifications for the MDB test, S8.2 states
that the pre-test vehicle attitude is ``* * * equal to either the as
delivered or fully loaded attitude or between the as delivered attitude
and fully loaded attitude, 10 mm.''
    The Alliance asked for clarification as to why the agency included
a 10 mm tolerance to the vehicle attitude measurement prior
to testing with the MDB because the attitude value is not exact. The
Alliance stated that it is unclear whether NHTSA intended the 10 mm tolerance to apply to the full range of values or to
another point such as the mid-point between the ``as delivered'' and
``fully loaded'' condition.
 Agency Response
    We agree that the specification needs to be clarified. The final
rule added a 10 mm tolerance because we became aware,
through our own testing of vehicles, that it can be difficult to
maintain the corridor between the as delivered and fully loaded
attitudes because of the weight of the vehicle instrumentation (e.g.,
high-speed cameras, associated brackets and instrumentation umbilical
lines) that are added to the vehicle prior to testing. A tolerance was
added to account for the added equipment, to make it slightly easier to
meet the vehicle test attitude specification. However, we meant to
address the potential weight impact that added instrumentation has on
the vehicle at its fully loaded condition only. To clarify the
requirement, we are modifying the wording of S8.2 to state that the
difference in vehicle test attitude shall not be greater than 10 mm from ``the vehicle's fully loaded condition,'' and not from
``either the as delivered or fully loaded condition.'' We believe this
allowance will not compromise the results of the test but will allow
some variation in vehicle attitude for cameras and other
instrumentation. Moreover, we have also determined that the reference
to the ``as delivered'' condition is unnecessary and should be removed.
S8.2 is revised to state that the pretest attitude is equal to the
fully loaded attitude 10 mm.
vii. Pole Test Pitch and Roll Definitions
    S10.2, Vehicle test attitude, of the final rule states, inter alia:
``* * * The front-to-rear angle (pitch) is measured along a fixed
reference on the driver's and front passenger's door sill * * * The
left to right angle (roll) is measured along a fixed reference point at
the front and rear of the vehicle at the vehicle longitudinal center
plane * * *.''
    The Alliance believes that there might be an error in the vehicle
attitude and angle measurements. The petitioner believes that the pitch
reference plane should be the longitudinal center plane of the vehicle
and the roll angle reference plane is measured across the vehicle
width. The petitioner also requested that the agency standardize the
measurement procedure of the MDB and the oblique pole test such that
all measurements are made in reference to the vehicle plane defined on
the test vehicle's body, directly above each wheel opening.
 Agency Response
    It appears that the Alliance may have misunderstood the definitions
in the final rule. A diagram of its understanding of the final rule,
showing what the Alliance believed to be the possible error, was
provided in Figure 18 of the petition (page 34 of the petition). In
that Figure 18, the illustrations of pitch and roll appear to be
reversed. A vehicle's pitch is the angle measured along a fixed
reference line on the driver's and front passenger's door sill
measuring any variation in vehicle height front-to-rear. The roll is
the left to right angles measured at the front and rear of the vehicle.
(These definitions of pitch and roll are used in the Test Procedure of
FMVSS No. 201's pole test.)
    NHTSA further believes it is not necessary to standardize the pole
test attitude requirements with the MDB test. The pole test approach of
directly measuring the pitch and roll angles will better facilitate and
more accurately determine the vehicle's attitude for aligning the
dummy's head to the pole, which is more relevant for the pole test than
the MDB test. Conversely, measuring vehicle height directly is more
critical in aligning the vehicle to the MDB than to the pole, and so
the MDB test approach is more tailored to that test than the pitch and
roll angle measurement of the pole test.
2. Test Dummy Set Up
i. SID-IIs
A. Hip Point Specification
    Section 12.3 of the final rule provides a sequence of steps for
positioning the SID-IIs dummy involving adjustment of the legs and
pelvis of the dummy.
    The Alliance petitioned the agency to specify a hip point location
when positioning the SID-IIs dummy in the seat since it found hip point
movement in its positioning. It noted that as the dummy is adjusted
throughout the steps in Section 12.3, the hip point moves in the x-
direction, particularly when either the legs or pelvis is adjusted. The
Alliance provided data that showed the hip point shifted 12 mm and 16
mm in the x-direction when the 5th percentile dummy was seated in the
vehicle. It noted a similar situation exists in sections S12.3.4(e),
(h) and (j) of FMVSS No. 214.
 Agency Response
    NHTSA is denying the petition for a pre-determined hip point
position for the SID-IIs.\33\ Through our FMVSS No. 208 compliance
testing experience we found that while the hip point may slightly shift
when the 5th percentile dummy is positioned in the vehicle, we also
found that if the 5th percentile female dummy is forced into the seat
bight in order to fit an artificial hip point, the lower legs may be
off the floor. This results in an unnatural leg position that is not
representative of

real-world occupants. This was observed when we originally adopted the
5th percentile Hybrid III dummy and seating position into FMVSS No.
208.\34\
---------------------------------------------------------------------------

    \33\ This hip point specification issue was not raised in the
comments to the NPRM or discussed in the final rule.
    \34\ Unlike the SAE J826 device (OSCAR) used to locate the 50th
percentile male's hip point, there is not an equivalent tool for the
5th percentile dummy.
---------------------------------------------------------------------------

    Furthermore, the Alliance provided only data consisting of one data
point on two vehicles. While it found that the dummy's hip point
shifted 12 mm and 16 mm in the two cases, the Alliance did not show the
significance the differences had on test setup repeatability (i.e.,
whether it would always result in a 12 mm and 16 mm shift in these two
vehicles). It is also not known how representative these two vehicles
are of the fleet, or whether the slight shifting of the hip point
position is problematic. For these reasons, we are denying the request
to specify an ``official'' hip point position.
B. Knee and Ankle Spacing
    The final rule states the following regarding the SID-IIs knee and
ankle spacing (S12.3.3(a)(6) and S12.3.2(a)(6)): ``Place the legs at
120 degrees to the thighs. Set the initial transverse distance between
the longitudinal centerlines at the front of the dummy's knees at 160
to 170 mm (6.3 to 6.7 in.), with the thighs and legs of the dummy in
vertical planes * * *.''
    The Alliance recommended specifying spacing measurements for both
the knees and ankles to increase the accuracy of the leg positioning.
The petitioner stated that some Alliance members reported difficulty in
keeping the thighs and legs of the dummy vertical while adjusting the
knee spacing.
Agency Response
    NHTSA is denying this recommendation to add a spacing measurement
for the SID-IIs dummy knees and ankles. By maintaining the dummy's
thighs and legs in a vertical plane while separating the knees to the
prescribed location, we have defined the location of the knees and
ankles. Based upon agency testing experience, with the 10 mm knee
spacing tolerance, it is possible to maintain the dummy's thighs and
legs in a vertical plane with some manipulation. The positioning of the
dummy's knees and ankles are not unmanageable, so no further
specification is necessary.
C. Pelvic Angle
    For adjusting the pelvic angle, the final rule (S12.3.2(a)(ll))
states: ``Measure and set the dummy's pelvic angle using the pelvic
angle gage. The angle is set to 20.0 degrees  2.5 degrees.
If this is not possible, adjust the pelvic angle as close to 20.0
degrees as possible while keeping the transverse instrumentation
platform of the head as level as possible by adjustments specified in
S12.3.2(a)(9) and (10).''
    The Alliance said that it found that it is difficult and in some
cases impossible to adjust the pelvic angle using the procedure
described in the final rule. (The petitioner did not provide examples
of vehicles in which this was reportedly found.) It recommended the
following: (1) Adjust the pelvic angle by anteflexing or retroflexing
the upper body of the dummy; (2) include language designating that
priority be given to achieving a level head by the end of the
positioning procedure; and (3) reference the global coordinate system
as the system relative to which the pelvic angle should be measured.
Agency Response
    NHTSA is denying the request. While it can be difficult at times
adjusting the pelvis to a 20 degree angle and maintaining it at that
angle to level the dummy's head, our experience has found that it can
be done. The Alliance did not provide information or examples for the
agency to evaluate if the difficulty is indeed insurmountable. Further,
the regulatory text already gives priority to maintaining the dummy's
head level in the procedure by stating: ``* * * adjust the pelvic angle
as close to 20.0 degrees as possible while keeping the transverse
instrumentation platform of the head as level as possible * * *'' The
agency believes this sufficiently addresses the difficulties and that
it is unnecessary to add additional regulatory text.
    We also do not agree with the Alliance's recommendation to
reference the global coordinate system as the system relative to which
the pelvic angle should be measured. S12.3.1(a) states: ``* * * measure
all angles with respect to the horizontal plane unless otherwise
stated* * *,'' which includes the pelvic angle. Hence, a coordinate
system is sufficiently defined. We note also that the requirements and
procedure to measure the pelvic angle were first adopted for the 5th
percentile female dummy in FMVSS No. 208 (68 FR 65179). This method has
been reliable and repeatable from our experience and we believe it is
unwarranted to amend the procedure based on present knowledge.
D. Adjustment of Lower Neck Bracket to Level Head
    S12.3.2(a) of the September 11, 2007 final rule adopted a seating
procedure for the SID-IIs driver dummy that included instructions for
driver torso/head/seat back angle positioning. Subsections 9 and 10
involve adjustment of the lower neck bracket and leveling of the head.
These sections state:

    (9) For vehicles without adjustable seat backs, adjust the lower
neck bracket to level the head as much as possible. For vehicles
with adjustable seat backs, while holding the thighs in place,
rotate the seat back forward until the transverse instrumentation
platform of the head is level to within 0.5 degree,
making sure that the pelvis does not interfere with the seat bight.
Inspect the abdomen to ensure that it is properly installed. If the
torso contacts the steering wheel, adjust the steering wheel in the
following order until there is no contact: telescoping adjustment,
lowering adjustment, raising adjustment. If the vehicle has no
adjustments or contact with the steering wheel cannot be eliminated
by adjustment, position the seat at the next detent where there is
no contact with the steering wheel as adjusted in S10.5. If the seat
is a power seat, position the seat to avoid contact while assuring
that there is a maximum of 5 mm (0.2 in) distance between the
steering wheel as adjusted in S10.5 and the point of contact on the
dummy.
    (10) If it is not possible to achieve the head level within
0.5 degrees, minimize the angle.

    The Alliance requested clarification of these instructions,
specifically with regard to the instructions in S12.3.2(a)(10) to
``minimize the angle.'' \35\
---------------------------------------------------------------------------

    \35\ The Alliance noted that these issues also apply to the
instructions for seating the SID-IIs in the rear.
---------------------------------------------------------------------------

    The petitioner noted that the adjustment range of the dummy's lower
neck bracket includes four indices upward and downward from a reference
point defined as the point where ``0'' index of the lower neck bracket
(Part 180-2006) \36\ and ``0'' index of the upper neck bracket
(Part 180-3815) align.\37\ The petitioner further said that
if, after adjusting the lower neck bracket the head cannot be leveled,
NHTSA

should consider the minimum angle at that condition as the angle
referenced in the instruction to ``minimize the angle.'' Alternatively,
the petitioner suggested that if a head level position exists within
the adjustable range of the neck, the closest adjustment detent to head
level should be used.
---------------------------------------------------------------------------

    \36\ See Docket  NHTSA-2006-25442-12 SID-IIs drawing
package. The drawing package has been slightly changed in response
to petitions for reconsideration of the SID-IIs final rule (see
Docket 2009-0002), but drawings referenced in this discussion are
unchanged.
    \37\ The Alliance stated that the reason for the four
calibrations is that it is impossible to adjust beyond these points.
Furthermore, the Alliance noted that when using the lower neck
bracket with a load cell (SA572-S60) instead of using the upper neck
bracket (180-2006) and lower neck assembly (180-3816), the
adjustable range is modified. It stated that some mobility is
disabled in order to account for the presence of the load cell.
---------------------------------------------------------------------------

    For vehicles where the seat back angle is adjustable, the Alliance
suggested that only the seat back is used to level the head to the
ground, and that the lower neck bracket is not used to level the head.
``If after all possible efforts to level the head using the seatback
adjustment are exhausted and the head cannot be leveled, the minimum
angle at that condition should become the angle specified as the angle
for use when `minimi[zing] the angle.' ''
Agency Response
    For adjustable seats, we are denying the suggestion that the lower
neck bracket is not used to level the head. The FMVSS No. 214 seating
procedure was patterned after the procedure specified for the 5th
percentile Hybrid III dummy in FMVSS No. 208, including the adjustment
of the dummy's head. In fact, S12.9 and S12.10 of FMVSS No. 214, which
describe adjustment and leveling of the SID-IIs head, are almost
exactly the same as S<IP_ADDRESS>.9 and S<IP_ADDRESS>.10 of FMVSS No. 208
describing adjustment and leveling of the Hybrid III 5th percentile
female head.\38\ However, we note that the agency's Office of Vehicle
Safety Compliance (OVSC) FMVSS No. 208 test procedure (TP-208-14
Appendix G) specifies positioning procedures for the 5th percentile
Hybrid III dummy that go into more detail than the procedures for FMVSS
No. 214. The OVSC FMVSS No. 208 test procedure specifically calls out
the process to align the neck for the Hybrid III 5th percentile dummy
as follows:
---------------------------------------------------------------------------

    \38\ There are slight differences in the descriptions of
steering wheel adjustment methods, which are referenced in these
sections of FMVSSs No. 214 and No. 208.
---------------------------------------------------------------------------

* * * * *
    22. If the seat back is adjustable, rotate the seat back forward
while holding the thighs in place. Continue rotating the seat back
forward until the transverse instrument platform of the dummy head
is level  0.5 degrees. If the head cannot be leveled
using the seat back adjustment, or the seat back is not adjustable,
use the lower neck bracket adjustment to level the head. If a level
position cannot be achieved, minimize the angle. (S<IP_ADDRESS>.9)
[Emphasis added.]

----Head Level Achieved. (Check all that apply)
----Head leveled using the adjustable seat back
----Head leveled using the neck bracket.
Head Angle -------- degrees.

    To make the FMVSS No. 214 procedure consistent with that of TP-208-
14 Appendix G item 22, we will revise the head leveling procedure in
FMVSS No. 214 TP-214P-00. We will specify in the latter TP that, in
cases where the head cannot be made level to the ground when the
dummy's head is positioned at its default neck position and after the
seat back angle has been adjusted (as appropriate for seats with
adjustable seat backs), the neck assembly should be adjusted using the
lower neck bracket. Thus, the lower neck bracket may be used to
position the dummy's head when the dummy is seated in vehicles in which
the seat back angle can be adjusted and in vehicles in which the seat
back angle cannot be adjusted. If the head level cannot be set at level
+/- .5 degree tolerance because of lack of mobility, the head is
positioned at the closest adjustment detent to that head level.
    In addition, we are making two related corrections to S12.3.1(b) of
FMVSS No. 214.
    First, the Alliance noted a concern relating to when the dummy is
fitted with the lower neck load cell (SA572-S60), instead of the upper
neck bracket (180-2006) and lower neck assembly (180-3816). According
to the SID-IIs drawing (SA572-S60), the lower neck load cell assembly
is non-adjustable and duplicates the position of standard brackets
(180-2006 and 180-3815) in their ``0'' angle position. Therefore, if
the load cell is used with the SID-IIs, the dummy's head may not be
able to be made level. Since the agency does not measure the load on
the dummy's neck at this time in FMVSS No. 214 compliance tests, there
is no need for the load cell to be installed at the time of the test.
Without the load cell, the problem is avoided. To avoid this problem,
we are clarifying the FMVSS No. 214 test procedure to note that in the
SID-IIs dummy we use in the compliance test, the fixed lower neck load
cell will not be installed.
    Second, there is a sentence in S12.3.2 of FMVSS No. 214, and in
S12.3.3 and S12.3.4, noting that the abdomen of the dummy is inspected
to ensure it is properly installed. Since the SID-IIs dummy's abdomen
is not a separate piece like the Hybrid III 5th percentile female
dummy, this sentence is out of place. We are thus removing it from
S12.3.2, S12.3.3, and S12.3.4.
E. Other Corrections
    This document further corrects the regulatory text for positioning
the SID-IIs adopted by the September 11, 2007 final rule to address the
following:
     Honda identified misplaced text in S12.3.3, a section that
specifies dummy positioning procedures for a SID-IIs in the front
passenger position. S12.3.3(b)(3) specifies a foot positioning
procedure for a dummy in the rear seat passenger position, which is out
of place in S12.3.3. Honda also noted redundant text in S12.3.4(k)(1)
for positioning the dummy's feet in the rear seat.
     In addition, Honda noted that S11.1 (b) of FMVSS No. 214
final rule specified the SID-IIs shoe sizes to be as specified in
military regulation MIL-S-2171E. The correct specification is MIL-S-
21711E.
     The foot positioning procedure for the SID-IIs front
passenger inadvertently did not include a provision that is in FMVSS
No. 208 for the Hybrid III 5th percentile female dummy regarding
situations in which the dummy's feet do not contact the floor. We have
added the same specification that is in FMVSS No. 208 to S12.3.3(b)(3)
of FMVSS No. 214.
ii. ES-2re
A. Head CG Location Variability
    The September 11, 2007 final rule, at S12.2.1, provides
instructions for positioning the ES-2re dummy. S12.2.1 does not include
subsections providing instructions on positioning the ES-2re dummy
head.
    The Alliance noted that the ES-2re neck assembly does not provide
any mechanism for adjusting the fore-aft position of the dummy's head.
The petitioner believed that since the ES-2re dummy's neck assembly
includes a flexible rubber neck buffer support, the actual neck angle
(and thus head CG location) depends on the condition of the rubber
buffer. It stated that the stiffness of this rubber buffer can vary
from one dummy to another and can degrade over time. The Alliance
believed that stresses placed on the dummy's neck while in storage can
also induce material fatigue and thus affect the condition of the
rubber buffer. The petitioner provided measurements of the head CG
locations vs. neck bracket angle for several ES-2 \39\ dummies. It
believed that there can be large variations in the actual fore-aft CG
location of the dummy head from one dummy to another.
---------------------------------------------------------------------------

    \39\ The ES-2 and the ES-2re dummies have identical neck
assembly structures.
---------------------------------------------------------------------------

Agency Response
    The location of the ES-2re head is based on the dummy positioning
procedure specified in S12. The head cannot be independently adjusted
due

to its design. However, we do not believe that the concern about head
location variation is warranted. The ES-2re's neck assembly includes
flexible rubber neck buffer supports that control the neck angle and
therefore, the location of the head CG. In 49 CFR part 572, the agency
specified neck qualification procedures and performance criteria for
the ES-2re dummy's neck, and we expect the qualification corridors to
be met prior to any vehicle testing. If the neck is out of
specification for qualification, the testing laboratory should tune or
replace the neck buffer assemblies accordingly. It is expected that if
the buffers were significantly degraded, the dummy would not meet the
neck performance criteria. To the extent that improper storage or
handling of the dummy have affected the buffers,\40\ the condition of
the buffers will be assessed in the Part 572 performance test when the
neck qualification tests are conducted.
---------------------------------------------------------------------------

    \40\ According to the ES-2re User's Manual from First Technology
Safety Systems (FTSS), ``ES-2re Eurosid-2 50th percentile Side
Impact Crash Test Dummy with Rib Extension,'' when stored, the dummy
should be supported by the eye bolt in the neck bracket. The FTSS
User Manual also states, ``* * * do not forget to support the head
in such a way that the neck is not under tension.''
---------------------------------------------------------------------------

    Finally, the Alliance provided no recommended approach that would
address their concerns. It stated in its petition that it is
``currently working on formulating a practicable solution that
mitigates the risks associated with poor test repeatability and will
submit additional comments to the agency in the near future.'' The
agency has not received that information to date.
    For the above reasons, the agency is denying this aspect of the
petition.
B. Knee Spacing
    The final rule positions the knees of the ES-2re dummy such that
their outside surfaces are 150 10 mm (5.9 0.4
inches) from the plane of symmetry of the dummy. This specific language
is used in United Nations under Economic Commission for Europe
Regulation 95 (ECE R95), ``Uniform provisions concerning the approval
of vehicles with regard to the protection of the occupants in the event
of a lateral collision,'' and was adopted in the FMVSS No. 214 final
rule.
    The Alliance was concerned about how to measure the knee spacing.
It noted that the ES-2re requirements differ from both the knees
spacing measurements for the 50th percentile Hybrid III dummy in FMVSS
No. 208 and the SID-IIs in FMVSS No. 214. For the Hybrid III dummy in
FMVSS No. 208, S10.5 requires that the ``* * * distance between the
outboard knee clevis flange surfaces shall be 10.6 inches [270 mm].''
S<IP_ADDRESS>.6 describes the driver knee spacing as, ``* * * transverse
distance between the longitudinal centerlines at the front of the
dummy's knees at 160 to 170 mm (6.3 to 6.7 in) * * *.'' This is similar
to the positioning procedure for the SID-IIs in FMVSS No. 214
(S12.3.3(a)(6)), which states: ``Set the initial transverse distance
between the longitudinal centerlines at the front of the dummy's knees
at 160 to 170 mm (6.3 to 6.7 in) * * *.''
    The Alliance petitioned for common procedures for the ES-2re and
SID-IIs dummies by either adopting the measurement procedure used for
FMVSS No. 208 Hybrid III dummy or the measurement procedure used for
the SID-IIs dummy. Alternatively, if the agency maintains the
positioning procedure for the ES-2re prescribed in the final rule, the
Alliance requested a more detailed definition for the knee ``outside
surface'' locations.
Agency Response
    We are denying the Alliance petition to adopt the FMVSS No. 208
Hybrid III or the SID-IIs dummy knee spacing procedure for the ES-2re.
The final rule harmonized with the ES-2 dummy installation procedure
defined by ECE R95. That procedure has proven to be objective and
repeatable. The Alliance provided no justification for changing to the
Hybrid III or SID-IIs knee spacing, except to make the procedures
common, which are not reason enough to change the specification at this
time. No data was provided to show that the Hybrid III or SID-IIs knee
spacing is appropriate for the ES-2re dummy.
    Additionally, NHTSA does not find a need to add specifications in
the regulatory text or the test procedure to further define the
location on the knee from where to take the measurements. The outer
surface of the knee is unremarkable, and given the tolerances
specified, we believe that further elaboration is unwarranted.
C. Corrections
    The final rule (S11.5 of FMVSS No. 214 regulatory text) specified a
channel filter class of 600 Hz for the ES-2re rib deflection data. The
Alliance petitioned to revise the filter class designation since the
current ECE R95 regulation specifies a channel filter class of 180 Hz
for the ES-2re rib deflection data and there is already regulatory
experience with the measurement in Europe. The Alliance also presented
data showing the filter class chosen has little overall effect on the
measure rib deflection data.
Agency Response
    The specification of the 600 Hz channel filter class was in error;
we agree to changing it to 180 Hz. The testing the agency conducted
with the ES-2re was processed with a 180 Hz filter to measure the rib
deflections and our intent was to specify this filter. A 180 Hz channel
filter was also specified for the rib deflection measurement in the
final rule incorporating the ES-2re into Part 572 (71 FR 75335). We are
correcting S11.5 of the regulatory text to specify that the rib
deflection data are filtered at channel frequency class 180 Hz.
3. Miscellaneous Corrections
i. Exclusion of Rear Seats That Cannot Accommodate a SID in the MDB
Test
    Currently, the MDB test generally specifies that a SID (50th
percentile adult male test dummy) is placed in the rear seat of the
test vehicle. However, until the September 11, 2007 final rule, the
standard had excluded from the rear seat requirements (S3(b)) vehicles
``that have rear seating areas that are so small that the Part 572,
subpart F [SID] test dummies cannot be accommodated according to the
positioning procedure specified in S7.'' The September 11, 2007 final
rule amended the MDB test so that at the end of the phase-in, only the
SID-IIs (5th percentile adult female) test dummy will be used in the
rear and not the SID. The final rule continued the complementary
provision that has excluded rear seats from the MDB test requirements
that are too small to accommodate the relevant test dummy, specifying
at S5(b)(3) that rear seats that are so small that the SID-IIs cannot
be accommodated are excluded from the rear seat requirements.
    In making the change to the SID-IIs, however, the agency removed
the provision that had excluded small rear seats that cannot
accommodate the SID before the effective date for changing over to the
SID-IIs. The Alliance petitioned the agency to reinstate the provision
to exclude rear seats that are too small to accommodate the SID until
completion of the phase-in schedule, since, the petitioner stated, many
vehicles will not be able to be certified to the MDB requirements
without the exclusion.
Agency Response
    We agree to reinstating the exclusion provision. Removal of the
exclusion of rear seats that are too small to accommodate the SID was
an oversight. We will reinstate a provision in S5 as

requested, since the provision is relevant as long as the SID is used
in FMVSS No. 214.
ii. FMVSS No. 301 and FMVSS No. 305 Test Dummy Applications
    The Alliance and Honda petitioned the agency to revise the
regulatory text in FMVSS No. 301, ``Fuel system integrity,'' to account
for the use of the new ES-2re and SID-IIs dummies. The current
regulatory text references the now interim SID dummy. Honda also
petitioned the agency to revise FMVSS No. 305, ``Electric-powered
vehicles: electrolyte spillage and electrical shock protection,'' for
the same reason. The Alliance and Honda both state the current
regulatory text creates an inconsistency with the phase-in of the new
dummies required for the MDB crash test that would preclude using the
same crash test for certification with FMVSS Nos. 301 and 305.
Agency Response
    We agree with the petitioners. It was an oversight in the final
rule not to account for the use of the new test dummies in FMVSS No.
301 and No. 305. Referring to the ES-2re and SID-IIs dummies in those
standards facilitates consolidating the impact tests for the various
standards.
iii. Metric Conversion
    The Alliance noted conversion errors in load requirements in
S6.1.2, S6.1.3, S6.2.2 and S6.2.3. The load requirements in metric
units did not match the English units in magnitude. To correct these
errors, in S6.1.2, we are replacing ``1,557 N'' with ``15,569 N.'' In
S6.1.3, we are replacing ``3,114 N'' with ``31,138 N.'' In S6.2.2, we
are replacing ``1,946 N'' with ``19,460 N.'' In S6.2.3, we are
replacing ``5,338 N'' with ``53,378 N.''
    The Alliance also noted that the ES-2re chest deflection criteria
in metric units (44 mm) did not match the English units in magnitude in
S7.2.5(b) and S9.2.1(b). We are correcting those errors by changing
``1.65 inches'' to ``1.73 inches'' in those paragraphs.
iv. Typographical Errors
    This document corrects the regulatory text adopted by the September
11, 2007 final rule to address the following typographical errors:
     In S12.3.2(a)(1), there is a reference to
``S12.3.3(a)(11).'' The correct reference is to ``S12.3.2(a)(11).''
     In S12.3.3(a)(1), the word ``line'' is missing from the
term ``seat cushion reference line angle'' when that term is used in
the second sentence for the first time.
     In S12.3.2(b)(6), there is a reference to
``S12.3.2(b)(1)(i)-(ii).'' (72 FR at 51970.) The reference should be to
``S12.3.2(b)(6)(i)-(iii).''
4. Clarifying Effective Date for Convertibles in the MDB Test
    The June 9, 2008 final rule responding to petitions for
reconsideration delayed the compliance date on which convertible
vehicles must be certified to the oblique pole test requirements until
after completion of the phase-in for other vehicle types, i.e., until
September 1, 2015. The Alliance asked for confirmation that the delay
of the effective date for convertibles also applied to the upgraded MDB
requirements. In a July 23, 2008 petition for reconsideration, the
Alliance asked the agency to make clear that the oblique pole and MDB
effective date for convertibles are aligned, i.e., to specify that
convertibles not be required to meet the upgraded MDB requirements
until September 1, 2015. The Alliance stated that due to the use of the
new test dummies and modified seat positioning procedures,
manufacturers cannot be assured that current-design convertibles will
meet the new MDB requirements without some redesign. The petitioner
stated that aligning the dates avoids requiring manufacturers to
redesign the same vehicle twice. Furthermore, petitioner stated,
convertibles have typically lower sales volumes and thus have a greater
need to spread redesign costs over fewer total vehicle sales to reduce
burdens.
 Agency Response
    We are granting the request. It was our intent to align the MBD
effective date with the pole test, to reduce the burden on
manufacturers for this class of vehicle. This is shown in the following
passage from the September 11, 2007 final rule (72 FR at 51946-51947):

    After consideration of the comments, NHTSA has decided to adopt
a phase-in for the MDB test, and align the phase-in schedule with
the oblique pole test requirements, with advance credits. An aligned
phase-in will allow manufacturers to optimize engineering resources
to design vehicles that meet the MDB and pole test requirements
simultaneously, thus reducing costs.

    In the June 9, 2008 final rule, NHTSA ``extend[ed] the lead time
period before manufacturers must begin phasing in vehicles to meet the
upgraded FMVSS No. 214 requirements to September 1, 2010'' and
``adjust[ed] the phase-in schedule of manufacturers' vehicles that are
required to meet the new requirements. * * *'' The agency did not limit
the adjusted lead time period and phase-in schedule to vehicles other
than convertibles. Moreover, NHTSA stated that, ``The adjusted schedule
will also continue to couple the phase-in of the MDB with the pole test
to enhance the practicability of meeting the new requirements.'' (73 FR
at 32477.) These statements show that, for convertibles, the oblique
pole and MDB effective date are aligned, i.e., convertibles are not
required to meet the upgraded MDB requirements until September 1, 2015.
We are adding a provision in S7.2.4(a) to make clear that convertibles
manufactured before September 1, 2015 are not subject to the upgraded
MDB requirements.\41\
---------------------------------------------------------------------------

    \41\ Convertibles manufactured prior to September 1, 2015 are
subject to current FMVSS No. 214 MDB requirements that test with the
SID.
---------------------------------------------------------------------------

5. Bosch's Petition
    Bosch's petition to allow sensor information to be fed into the
restraint triggering algorithms is denied. It is beyond the scope of
the rulemaking.
    In the petition, Bosch stated that it fully supported the pole test
but asked that NHTSA ``modify the test set-up by optionally allowing
information being made available from the Electronic Stability Control
[ESC] on the vehicle CAN-bus. This would allow advanced restraint
electronics to achieve the same performance and occupant protection as
in real world accidents.'' Bosch stated that in the test set-up
specified in the final rule, no ESC signals are communicated on the
vehicle CAN-bus,\42\ since the vehicle is not sliding laterally with
wheels moving on the ground. As a result, the petitioner stated,
``advanced restraint triggering algorithms cannot utilize any ESC data,
resulting in significantly later TTF [time-to-fire] and thus reduced
occupant protection.'' Bosch believed that certain sensor information
should be used to trigger the side curtain air bags and torso side air
bags as soon as possible. Bosch recommended that the agency should
``directly feed-in the lateral velocity of 20 mph cos (15[deg]),'' or
feed in ``the ESC-data communicated on the CAN-bus during a real
lateral pole crash (with 20 mph under 75[deg])'' provided by the
original equipment manufacturer.
---------------------------------------------------------------------------

    \42\ According to Bosch's Web site, a CAN-bus or Controller Area
Network is a data transmission architecture that enables the in-
vehicle computer(s) to monitor sensor data and issue commands for
electronic systems such as power door locks, climate control,
electronic stability control and automatic restraints. http://
researchinfo.bosch.com/content/language2/html/5585.htm.
---------------------------------------------------------------------------

    In a July 22, 2008 follow-up submission, Bosch outlined a test
procedure for the agency to consider, verifying that a vehicle is able
to measure lateral velocity and the

restraint algorithm actually uses this data as part of its crash
sensing system for air bag deployment. The procedure entailed executing
several driving maneuvers with the vehicle undergoing lateral sliding.
External instrumentation would be used to directly measure the
vehicle's lateral velocity as a reference and determine that the
lateral velocity is read on the CAN-bus. Bosch believed that this would
confirm that in a real-world crash, the side impact restraints
algorithm calculates lateral velocity as part of its deployment
criteria. Bosch suggested that, once this determination is made, NHTSA
could upload a reference signal simulating a lateral velocity onto the
CAN-bus prior to an oblique pole test. The format of the signal would
be agreed upon with the specific vehicle manufacturer.
Agency Response
    Bosch's petition is beyond the scope of the rulemaking and is thus
denied. During the course of the rulemaking,\43\ the agency was not
presented with any suggested modifications to the vehicle pre-crash
test to account for the various sensors that monitor its real time
dynamic state. Therefore, it was not considered.
---------------------------------------------------------------------------

    \43\ RIN 2127-AJ10.
---------------------------------------------------------------------------

    We note some unknowns about Bosch's suggestion. The agency does not
know what affect Bosch's requested test set-up would have in conducting
our compliance tests (both the potential benefits and unintended
consequences). It has been agency practice to minimize the amount of
alteration to the vehicle prior to testing. At this point in time,
there is no way of knowing what affect artificially inputting a pre-
crash test speed into the restraint algorithm might have on the pole
test when compared to testing the vehicle in the ``as delivered''
condition. Bosch stated that it would result in ``significantly later
TTF (time to fire)'' but did not provide any comparative data
(specifically dummy injury data) to support its case. We would also
have to consider the test burden of a test procedure that entails the
execution of several driving maneuvers with the vehicle undergoing
lateral sliding, and how such a test procedure might complicate the
agency's compliance program and enforcement efforts. In addition, we
must consider the safety implications of Bosch's approach, e.g., how
feeding in ESC data of a 20 mph crash could affect the real-world
performance of the side impact air bag sensing system in crashes.
    We acknowledge that the oblique pole test is conducted in a
laboratory where real world conditions are not duplicated completely.
We also appreciate that the industry continues to consider the latest
sensor technology and the integration of more data into restraint
algorithms to make continued improvements in real-world safety. We do
not want our FMVSSs to preclude future innovative technology
developments. However, given the agency focus on other priorities and
the wide array of technologies that could be utilized for advanced side
impact sensors, we believe industry is better positioned to develop
proposed test procedure revisions to encompass these technologies. The
agency is interested in data showing how the current test procedures
limit advanced sensor technologies, that take into account safety
implications and test burdens, and that provide detail on how the
procedures should be revised. With such information, NHTSA can begin to
assess the role that sensor information could and should have in an
FMVSS compliance test.
    In the meantime, with the additional lead time that we provided in
the June 9, 2008 final rule, we believe that industry can develop crash
sensing strategies to meet the pole test requirements without the
agency altering the test set-up to allow for manually inputting pre-
crash parameters from the ESC sensors, or other data sources the
manufacturers may otherwise use to make real time air bag deployment
decisions in the field. Given that vehicles are typically designed to
be sensitive enough to deploy air bags in the MDB test, the IIHS side
impact test, and the FMVSS No. 201 pole test, we do not believe that a
vehicle's time-to-fire would be ``significantly later,'' as Bosch said,
without the pre-crash ESC input. From our own fleet testing, we know it
is possible for air bags to deploy in a timely manner, and for dummies
to meet the requirements without imputing data into the crash sensing
system.

VI. Rulemaking Analyses and Notices

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

    This rulemaking document was not reviewed by the Office of
Management and Budget under E.O. 12866. It is not considered to be
significant under E.O. 12866 or the Department's Regulatory Policies
and Procedures (44 FR 11034; February 26, 1979). This document corrects
or clarifies aspects of the test procedures specified by the September
11, 2007 final rule or makes minor adjustments to those procedures. The
minimal impacts of today's amendment do not warrant preparation of a
regulatory evaluation.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980, as amended, requires
agencies to evaluate the potential effects of their proposed and final
rules on small businesses, small organizations and small governmental
jurisdictions. I hereby certify that this rule will not have a
significant economic impact on a substantial number of small entities.
Small organizations and small governmental units will not be
significantly affected since the potential cost impacts associated with
this action will not affect the price of new motor vehicles.
    The rule denies requests to exclude multistage vehicles or those
with partitions from the upgraded FMVSS No. 214, for the reasons
explained in this document. However, in the agency's June 9, 2008 final
rule that provided the first response to the petitions for
reconsideration, we have provided more time to final-stage
manufacturers and alterers to meet the requirements of the September
11, 2007 final rule. That action will have a positive impact on those
manufacturers, as they will be given more time and thus more
flexibility to manage their engineering designs and resources in
planning for compliance with the FMVSS No. 214 upgrade.

Executive Order 13132 (Federalism)

    NHTSA has examined today's final rule pursuant to Executive Order
13132 (64 FR 43255, August 10, 1999) and concluded that no additional
consultation with States, local governments, or their representatives
is mandated beyond the rulemaking process. The agency has concluded
that the rule does not have sufficient federalism implications to
warrant either consultation with State and local officials or
preparation of a federalism summary impact statement. The rule does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and the responsibilities among the various levels of
government.''
    Further, no consultation is needed to discuss the issue of
preemption in connection with today's final rule. The issue of
preemption can arise in connection with NHTSA rules in two ways.
    First, the National Traffic and Motor Vehicle Safety Act contains
an express preemption provision: ``When a motor vehicle safety standard
is in effect under

this chapter, a State or a political subdivision of a State may
prescribe or continue in effect a standard applicable to the same
aspect of performance of a motor vehicle or motor vehicle equipment
only if the standard is identical to the standard prescribed under this
chapter.'' 49 U.S.C. 30103(b)(1). It is this statutory command that
unavoidably preempts State legislative and administrative law, not
today's rulemaking, so consultation is unnecessary.
    Second, the Supreme Court has recognized the possibility of implied
preemption in some instances. State requirements imposed on motor
vehicle manufacturers, including sanctions imposed by State tort law,
can stand as an obstacle to the accomplishment and execution of some of
the NHTSA safety standards. When such a conflict is discerned, the
Supremacy Clause of the Constitution makes the State requirements
unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861
(2000).
    NHTSA has considered the nature (e.g., the language and structure
of the regulatory text) and purpose of today's final rule and does not
foresee any potential State requirements that might conflict with it.
Without any conflict, there could not be any implied preemption of
State law, including State tort law.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal
agencies to prepare a written assessment of the costs, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually (adjusted annually for inflation, with base year
of 1995). This final rule will not result in expenditures by State,
local or tribal governments, in the aggregate, or by the private sector
in excess of $100 million annually.

National Environmental Policy Act

    NHTSA has analyzed this final rule for the purposes of the National
Environmental Policy Act. The agency has determined that implementation
of this action will not have any significant impact on the quality of
the human environment.

Civil Justice Reform

    With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996) requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. This document is consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows.
    The issue of preemption is discussed above in connection with E.O.
13132. NHTSA notes further that there is no requirement that
individuals submit a petition for reconsideration or pursue other
administrative proceeding before they may file suit in court.

Paperwork Reduction Act (PRA)

    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 September 11, 2007 final rule
contained a collection of information because of the phase-in reporting
requirements. There was no burden to the general public.
    The September 11, 2007, final rule required 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 and MDB test requirements of FMVSS No. 214 during
the phase-in of those requirements. The purpose of the reporting and
recordkeeping requirements is to assist the agency in determining
whether a manufacturer of vehicles has complied with the requirements
during the phase-in period. The June 9, 2008 final rule extended the
lead time period and phase-in of both the pole and MDB test
requirements. Today's final rule has no further reporting or
recordkeeping requirements.

National Technology Transfer and Advancement Act

    Under the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Pub. L. 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.
    There are no voluntary consensus standards applicable to this final
rule that have not been previously discussed in the September 11, 2007
and June 9, 2008 final rules.

Plain Language

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

List of Subjects in 49 CFR Part 571

    Imports, Incorporation by reference, Motor vehicle safety,
Reporting and recordkeeping requirements, Tires.

0
In consideration of the foregoing, NHTSA amends 49 CFR Chapter V as set
forth below.