Federal Motor Vehicle Safety Standards; Designated Seating Positions, 68185-68190 [E9-30440]

Download as PDF Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations revising paragraph (a)(3) to read as follows: § 240.305 Prohibited conduct. (a) * * * (3) Operate a locomotive or train without adhering to procedures for the safe use of train or engine brakes when the procedures are required for compliance with the Class I, Class IA, Class II, Class III, or transfer train brake test provisions of 49 CFR part 232 or when the procedures are required for compliance with the class 1, class 1A, class II, or running brake test provisions of 49 CFR part 238; * * * * * ■ 24. Section 240.307 is amended by revising paragraphs (a) and (j) introductory text to read as follows: § 240.307 Revocation of certification. (a) Except as provided for in § 240.119(e), a railroad that certifies or recertifies a person as a qualified locomotive engineer and, during the period that certification is valid, acquires information regarding violations of § 240.117(e) or § 240.119(c) of this chapter, which convinces the railroad that the person no longer meets the qualification requirements of this part, shall revoke the person’s certificate as a qualified locomotive engineer. * * * * * (j) The railroad shall place the relevant information in the records maintained in compliance with § 240.309 for Class I (including the National Railroad Passenger Corporation) and Class II railroads, and § 240.215 for Class III railroads if sufficient evidence meeting the criteria provided in paragraph (i) of this section, becomes available either: * * * * * ■ 25. Section 240.309 is amended by revising paragraphs (a) and (e)(3) to read as follows: cprice-sewell on DSKHWCL6B1PROD with RULES § 240.309 Railroad oversight responsibilities. (a) No later than March 31 of each year, each Class I railroad (including the National Railroad Passenger Corporation and a railroad providing commuter service) and Class II railroad shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by certified locomotive engineers during the prior calendar year. * * * * * (e) * * * (3) Incidents involving noncompliance with the procedures for VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 the safe use of train or engine brakes when the procedures are required for compliance with the Class I, Class IA, Class II, Class III, or transfer train brake test provisions of 49 CFR part 232 or when the procedures are required for compliance with the Class 1, Class 1A, Class II, or running brake test provisions of 49 CFR part 238; * * * * * Appendix A to Part 240 [Amended] 26. Appendix A to part 240–Schedule of Civil Penalties is amended by removing the entries for sections 240.203(a); redesignating the entries for sections 240.203(b) as 240.203(a); redesignating the entries for sections 240.203(c) as 240.203(b); and redesignating the entry for section 240.205(d) as 240.205(b). 27. Appendix B is amended by revising the 5th paragraph of Section 4 of the Submission: Testing and Evaluating Persons Previously Certified and the last paragraph of Section 6 of the Submission: Monitoring Operational Performance by Certified Engineers to read as follows: Appendix B to Part 240—Procedures for Submission and Approval of Locomotive Engineer Qualification Programs * * * * * Section 4 of the Submission: Testing and Evaluating Persons Previously Certified * * * * * Section 240.127 provides a railroad latitude in selecting the design of its own testing and evaluation procedures (including the duration of the evaluation process, how each required subject matter will be covered, weighing (if any) to be given to particular subject matter response, selection of passing scores, and the manner of presenting the test information). However, the railroad must describe the scoring system used by the railroad during a skills test administered in accordance with the procedures required under § 240.211. The description shall include the skills to be tested and the weight or possible score that each skill will be given. The section should also provide information concerning the procedures which the railroad will follow that achieve the objectives described in FRA’s recommended practices (see appendix E) for conducting skill performance testing. The section also gives a railroad the latitude to employ either a Type 1 or a Type 2 simulator (properly programmed) to conduct the test and evaluation procedure. A railroad must describe in this section how it will use that latitude to assure that its engineers will demonstrate their skills concerning the safe discharge of their train operation responsibilities so as to comply with the performance standard set forth in § 240.127. * * * * * Section 6 of the Submission: Monitoring Operational Performance by Certified Engineers * PO 00000 * * Frm 00055 * Fmt 4700 * Sfmt 4700 68185 Section 240.129 requires that a railroad annually observe each locomotive engineer demonstrating his or her knowledge of the railroad’s rules and practices and skill at applying those rules and practices for the safe operation of a locomotive or train. Section 240.129 directs that the observation be conducted by a designated supervisor of locomotive engineers but provides a railroad latitude in selecting the design of its own observation procedures (including the duration of the observation process, reliance on tapes that record the specifics of train operation, and the specific aspects of the engineer’s performance to be covered). The section also gives a railroad the latitude to employ either a Type 1 or a Type 2 simulator (properly programmed) to conduct monitoring observations. A railroad must describe in this section how it will use that latitude to assure that the railroad is monitoring that its engineers demonstrate their skills concerning the safe discharge of their train operation responsibilities. A railroad must also describe the scoring system used by the railroad during an operational monitoring observation or unannounced compliance test administered in accordance with the procedures required under § 240.303. A railroad that intends to employ train operation event recorder tapes to comply with this monitoring requirement shall indicate in this section how it anticipates determining what person was at the controls and what signal indications or other operational constraints, if any, were applicable to the train’s movement. * * * * * Appendix D to Part 240 [Amended] 28. Appendix D is amended by removing the last paragraph. Issued in Washington, DC, on December 17, 2009. Karen J. Rae, Deputy Administrator. [FR Doc. E9–30439 Filed 12–22–09; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA 2009–0189] RIN 2127–AK65 Federal Motor Vehicle Safety Standards; Designated Seating Positions AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation. ACTION: Final rule; partial response to petitions for reconsideration. SUMMARY: This document responds, in part, to petitions for reconsideration of an October 2008 final rule that amended E:\FR\FM\23DER1.SGM 23DER1 cprice-sewell on DSKHWCL6B1PROD with RULES 68186 Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations the definition of the term, ‘‘designated seating position,’’ as used in the Federal motor vehicle safety standards, to clarify which areas within the interior of a vehicle meet that definition. The final rule made the new definition applicable to vehicles manufactured on and after September 1, 2010. The agency received petitions for reconsideration asking for additional time to comply with the new requirements. This final rule provides one additional year of lead time until the new definition is applicable. In the regulatory text of that final rule, we included language declaring that any State requirement, including any determination under State tort law, premised on there being more designated seating positions than the number contemplated in our definition, would prevent, hinder or frustrate the accomplishment of the purposes of the Federal Motor Vehicle Safety Standards in Part 571 of this title, and thus would be preempted by this regulation. The petitions for reconsideration sought removal of this preemption language from the regulatory text. This final rule grants that request by removing the portion of the regulatory text stating that State tort law requirements are preempted. This final rule also makes a technical correction to the regulatory text of the rule setting forth the formula for calculating the number of designated seating positions, the need for which was noted in several of the petitions for reconsideration. The remaining issues raised in the petitions for reconsideration (clarification or change to the manner in which the number of designated seating positions in a vehicle are calculated, procedural issues regarding measuring seating surfaces, countermeasures, and other technical corrections) will be addressed in a separate notice. DATES: The effective date of this final rule is February 22, 2010. Petitions for reconsideration must be received not later than February 8, 2010. ADDRESSES: Petitions must be submitted to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC, 20590. FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact Chris Wiacek of the NHTSA Office of Crashworthiness Standards by telephone at (202) 366–4801, and by fax at (202) 493–2290. For legal issues, you may contact David Jasinski of the NHTSA Office of Chief Counsel by telephone at (202) 366–2992, and by fax at (202) 366–3820. VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 You may send mail to both of these officials at the National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: Table of Contents I. Background II. Petitions for Reconsideration III. Agency Response to Petitions for Additional Lead Time IV. How NHTSA’s Regulations May Give Rise to a Judicial Finding of Preemption V. Agency Response to Petitions Regarding Preemption VI. Technical Correction VII. Rulemaking Analyses and Notices I. Background On October 8, 2008, we published in the Federal Register a final rule (October 2008 final rule) revising the definition of ‘‘designated seating position’’ (DSP), as that term is used in the Federal motor vehicle safety standards (FMVSS), and providing a calculation procedure for determining the number of seating positions at a seat location.1 The revised definition specifies more clearly the areas within the interior of a vehicle that are regarded as being designated seating positions. The rule also established a calculation procedure for determining the number of DSPs at a seat location for trucks and multipurpose passenger vehicles with a gross vehicle weight rating less than 10,000 pounds, passenger cars, and buses. The designation of a seating position has important safety consequences. Under the FMVSSs, motor vehicle manufacturers must meet various performance requirements for each interior location designated as a seating position. For example, FMVSS No. 208, ‘‘Occupant crash protection,’’ requires that each DSP in a light vehicle be provided with the appropriate occupant crash protection system (e.g., air bag, seat belts or both). Clarity in the definition of DSP is important for the purposes of that standard because if a vehicle has fewer DSPs than the number of individuals able to sit in it, one or more of those individuals would not be protected by seat belts and/or other crash protection systems. In the final rule, the agency stated that the revised definition of ‘‘designated seating position’’ added clarity to the existing definition and was not expected to have a substantial impact on current vehicle design. The degree to which seat design exhibited the characteristics that gave rise to the agency’s concerns had lessened in the fleet. Manufacturers had 1 73 FR 58887 (Oct. 8, 2008) (Docket No. NHTSA– 2008–0059). PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 either reduced the width of the seating area to more accurately reflect the intended occupancy or had provided additional DSPs. The October 2008 final rule noted that the inclusion of auxiliary seats in the definition of ‘‘designated seating position’’ and the newly established procedure for determining the number of DSPs would require minor redesign of a small number of vehicles. To allow manufacturers the opportunity to make such redesigns, the agency provided approximately two years of lead time, such that, on September 1, 2010, all vehicles would have to comply with the new requirements. In the preamble to the final rule, we observed that, in Geier v. American Honda Motor Company, Inc., the Supreme Court had recognized that State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, could stand as an obstacle to the accomplishment and execution of some FMVSSs, and that, where such conflict occurs, the Supremacy Clause of the Constitution could make the State tort law requirements unenforceable.2 We stated our opinion that State tort law judgments premised on there being more DSPs in a motor vehicle than the number contemplated by the definition in 49 CFR Part 571 could have a negative effect on safety because it would induce manufacturers to equip motor vehicles with an excessive number of seat belts. Because seat belt comfort and convenience (i.e., ease of use) significantly affect the seat belt usage rate, we opined that the installation of an excessive number of seat belts would decrease, not increase, safety, thereby hampering our efforts to promote high seat belt use rates. To make sure that this opinion would be readily available and clear to all, in the October 2008 final rule, we included in the regulatory text of the definition of ‘‘designated seating position’’ language stating that any State law requirement, including State tort law, premised on there being more DSPs in a motor vehicle than the number contemplated by the new definition, was preempted. II. Petitions for Reconsideration We received ten petitions for reconsideration of the October 2008 final rule. The petitioners are SAE International (SAE), BMW North America (BMW), the Alliance of Automobile Manufacturers (Alliance), Volkswagen of America (Volkswagen), the Association of International Automobile Manufacturers (AIAM), the 2 529 E:\FR\FM\23DER1.SGM U.S. 861, 870 (2000). 23DER1 Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations cprice-sewell on DSKHWCL6B1PROD with RULES American Association for Justice (AAJ), Safety Research and Strategies, Toyota Motor North America (Toyota), Mitsubishi Motors R&D of America (Mitsubishi), and Public Citizen.3 Toyota also expressed its support for the Alliance’s petition. The petitions filed by SAE International and Toyota were styled both as requests for interpretation and as petitions for reconsideration. In this notice, we are responding to petitions by the Alliance, AIAM, Mitsubishi, and Volkswagen that sought additional lead time for implementing the new definition of ‘‘designated seating position’’ via a phase-in. The October 2008 final rule requires manufacturers to comply with the new definition for all vehicles manufactured after September 1, 2010, without a phase-in; however, each of the petitioners request that the agency move the 100 percent compliance date to September 1, 2011. We are also responding to the issues relating to preemption. The petitions from the AAJ and Public Citizen requested removal of the language that we incorporated in the text of the final rule stating that any State requirement, including any determination under State tort law, premised on there being more DSPs than the number contemplated in the definition, was preempted. The AAJ asserted that the preemption language contradicted Congressional intent, as discerned in a November 2005 letter signed by two Senators to NHTSA’s Deputy Administrator, to allow lawsuits against automobile manufacturers based on State tort law. The AAJ and Public Citizen also objected to our reliance on Geier v. American Honda Motor Co. to support our statement about preemption of state tort law. The AAJ contends that the DSP definition rulemaking was unlike the passive restraint rulemaking at issue in Geier because the DSP rulemaking did not stress the need for vehicle manufacturers to have different compliance options available to them. Public Citizen disagreed with our conclusion that State tort law could frustrate the accomplishment or purposes of the DSP definition. Public Citizen argued that vehicle manufacturers are unlikely to equip a vehicle with more seat belts than are necessary. Instead, that organization 3 The AAJ petition was jointly filed by the AAJ, the Association of Trial Lawyers of America—New Jersey, Consumer Attorneys of California, Consumers for Auto Reliability and Safety, the New York State Trial Lawyers Association, the Pennsylvania Association for Justice, and the Washington State Trial Lawyers Association. Public Citizen’s petition was filed jointly by Public Citizen and the Consumer Federation of America. VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 contended, citing statements in our June 22, 2005 Notice of Proposed Rulemaking 4 (June 2005 NPRM) and our October 2008 final rule, that vehicle manufacturers are more likely to respond to a State tort law decision having the effect of requiring more DSPs than the number required by our October 2008 final rule by introducing void spaces or impediments between DSPs rather than designating additional seating positions and installing additional seat belts. Public Citizen also argued that, under the new DSP definition, vehicle manufacturers cannot leave an ambiguous seating surface in the middle of a bench seat, and, if these design features (voids or impediments) are sufficient to discourage excessive occupancy, then State courts would be unlikely to issue tort law judgments premised on there being more DSPs than the number contemplated in the definition. Thus, as a practical matter, no conflict with our regulations would arise. We are also correcting a technical error. The petitions from SAE International, the Alliance, and AIAM also pointed out a technical error in the regulation setting forth the formula for calculating the number of designated seating positions. These petitions point out that 49 CFR § 571.10(b)(1) and (b)(2) each refer to ‘‘paragraph (d),’’ which does not exist, and that the reference was probably intended to refer to § 571.10(c). Our responses to the other issues raised by the petitioners will be provided in a later notice. The petitions from SAE International, BMW, Volkswagen, AIAM, and Toyota sought clarification of or changes to the formula for determining the number of DSPs at a seat location, procedural concerns regarding measuring seating surfaces, countermeasures, and other technical corrections. The petitions from AIAM and Public Citizen challenged the adequacy of data to support the amendment of the definition of ‘‘designated seating position.’’ III. Agency Response to Petitions for Additional Lead Time The Alliance, AIAM, Mitsubishi, and Volkswagen petitioned the agency to phase-in the requirements to provide additional lead time for some vehicles. The Alliance agreed with the agency’s assessment that only a small number of vehicles in the fleet will require a redesign to comply. However, it noted that additional time is needed for noncompliant vehicles to be redesigned to the new DSP definition. Mitsubishi 4 See PO 00000 70 FR 36094 (June 22, 2005). Frm 00057 Fmt 4700 Sfmt 4700 68187 supported the Alliance petition and provided a suggested phase-in schedule. Volkswagen added that a number of its carlines are affected by the new requirements and a phase-in will permit a cost-effective implementation of any required changes. The AIAM also identified that changes will need to be made in vehicles that have auxiliary seats (i.e., temporary or folding seats) to comply with the FMVSSs because under the new definition, these types of seats are now considered DSPs. For example, it noted that such seats would have to be redesigned to meet the requirements of FMVSS No. 225, ‘‘Child restraint anchorage systems,’’ which it suggested would necessitate allocation of significant engineering resources and testing. The AIAM stated that these modifications would be difficult and costly to implement within two years, particularly for existing models. In response to the petitions, the agency has decided to provide an additional year of lead time. We believe granting an extra year of lead time will address the petitioners’ concerns and allow manufacturers more flexibility to allocate their resources better. We agree with the petitioners that some vehicles will need significant redesign to comply with other FMVSSs such as pickup trucks with auxiliary seats that will now have to meet FMVSS Nos. 210, ‘‘Seat belt assembly anchorages’’ and 225, ‘‘Child restraint anchorage systems,’’ requirements. For some vehicles, structural reinforcement to the vehicle’s body may be needed at the attachment location for the seat belt and child restraint anchorage hardware to assure compliance with the respective standards. We are not persuaded by the petitioners’ request for a phase-in of the requirements. Based upon our prior fleet assessment, we continue to believe only a small percentage of vehicles do not comply with the new requirements. Hence, a phase-in based on a manufacturer’s complying production volume would add little safety benefit. However, because some vehicles would require considerable redesign to comply with the new definition, we believe that providing an additional year of lead time is a more practical approach. IV. How NHTSA’s Regulations May Give Rise to a Judicial Finding of Preemption Before addressing the merits of the petitions related to preemption, we review the state of the law concerning the circumstances in which our regulations may give rise to a judicial finding of preemption of State E:\FR\FM\23DER1.SGM 23DER1 cprice-sewell on DSKHWCL6B1PROD with RULES 68188 Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations requirements. First, the National Traffic and Motor Vehicle Safety Act of 1966 (Safety Act) contains a clause expressly preempting non-identical state statutes and regulations, now codified at 49 U.S.C. 30103(b)(1). This express preemption clause prevents States from enacting safety statutes or administratively issuing safety regulations that address the same aspect of performance as Federal motor vehicle safety standards issued by NHTSA, but are not identical to those Federal standards. Second, Federal laws and regulations may be found to impliedly preempt State law in two ways. Federal law preempts State law if compliance with both the State and Federal standards are impossible. In addition, Federal law preempts State law if, for example, State tort actions create an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. In Geier v. American Honda Motor Co., the Supreme Court specifically addressed the possible preemptive effect of the Safety Act in combination with one of the FMVSSs issued under that Act, on common law tort claims. The issue before the court was whether the Safety Act, in light of FMVSS No. 208, preempted a lawsuit claiming a 1987 car was defective for lacking a driver air bag. When the car was manufactured, FMVSS No. 208 had required manufacturers to equip some, but not all, of their vehicles with passive (i.e., automatic) restraints. The conclusions in Geier can be summarized as follows: • The Safety Act’s provision expressly preempting state ‘‘standards’’ does not preempt common law tort claims. The issue of whether the term ‘‘standards’’ includes tort law actions is resolved (in the negative) by another provision in the Safety Act—the ‘‘savings’’ clause. That provision states that ‘‘[c]ompliance with’’ a Federal safety standard ‘‘does not exempt any person from any liability under common law.’’ There would not be any common law tort claims for the provision to save if the ‘‘standards’’ in the express preemption provision were read to include those claims. • The savings clause preserves those tort actions that seek to establish greater safety than the minimum safety achieved by a FMVSS intended to provide a floor. • The savings clause does not bar the working of conflict preemption principles. Further, neither the express preemption provision nor the saving provision, whether read singly or together, create some kind of ‘‘special VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 burden’’ beyond that inherent in ordinary preemption principles that would specially favor or disfavor preemption. The two provisions, read together, reflect a neutral policy, not a specially favorable or unfavorable policy, toward the application of ordinary conflict preemption principles. • The preemption provision and the savings clause are countervailing provisions. The preemption provision reflects a desire to subject the industry to a single, uniform set of FMVSSs. On the other hand, the savings clause reflects a congressional determination that occasional nonuniformity is a small price to pay for a system in which juries not only create, but also enforce, safety standards, while simultaneously providing necessary compensation to victims. Nothing in any natural reading of the two provisions favors one set of policies over the other where a juryimposed safety standard actually conflicts with a FMVSS. • A court should not find preemption too readily in the absence of clear evidence of a conflict. • The Court provided limited guidance, beyond dealing with ‘‘no airbag’’ cases, on what types of circumstances could create a conflict under the Safety Act, and how concrete a conflict must be. • The common-law ‘‘no airbag’’ action before the Court was found to be preempted because it actually conflicted with FMVSS No. 208. In reaching that conclusion, the Court devoted considerable attention to the Department of Transportation’s detailed explanation of the ‘‘significant considerations’’ underlying FMVSS No. 208’s regulatory approach, and observed how the standard reflected these considerations. The standard sought a gradually developing variety of passive restraint devices for statutorily relevant reasons including safety and public acceptability. The rule of state tort law sought by the petitioner would have constrained the variety of passive restraint devices by requiring manufacturers of all similar cars to install a single type of device, an air bag, instead of other types of passive restraint systems, thereby presenting an obstacle to the variety and mix of devices that the FMVSS sought. V. Agency Response to Petitions Regarding Preemption We find merit in Public Citizen’s argument that an actual conflict may never arise with respect to pronouncements in state tort law decisions regarding the appropriate number of designated seating positions. We stated in our October 2008 final rule PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 that a tort law judgment premised on a view that a motor vehicle needed to have more DSPs than the number contemplated by our definition could have a negative safety effect. Such an effect would occur if, in response to such a tort law judgment, manufacturers installed an excessive number of seat belts. We said further that such installation could decrease comfort or make use of seat belts difficult, making it less likely that an occupant would use his or her respective seat belt, thereby reducing overall safety. However, as Public Citizen noted, in estimating compliance costs in our October 2008 final rule, we opined that, because adding seat belts would be more expensive, manufacturers would be more likely to implement the revised DSP definition by reducing seat width or installing an impediment in affected vehicles to discourage people from sitting between seats.5 Public Citizen argued that if the manufacturers took either of those two steps, the resulting vehicle designs would not contain ambiguous seating space and thus would be unlikely to give rise to State tort law decisions premised on a view that a motor vehicle was equipped with an insufficient number of seat belts. We agree. Even if there were State tort law decisions requiring more DSPs than the number contemplated by our definition, we believe that the manufacturers would likely respond in the same way that they will respond to the changes mandated by our October 2008 final rule. That is, because of the higher cost of adding lap/shoulder seat belts, we believe that it is unlikely that a manufacturer will increase the number of DSPs in a vehicle and install an excessive number of seat belts. Instead, we believe the most likely responses by manufacturers will be to either install an impediment or void in vehicles or decrease seating surface width.6 Because manufacturers’ most likely response to an adverse State tort law decision would not be to increase the number of DSPs and install an excessive number of seat belts in vehicles, we believe it is very unlikely that a tort law judgment would actually conflict with our DSP definition. Moreover, we have no knowledge of any State tort law decision that might conflict with the October 2008 final rule. In the final rule, we noted that no State or local governmental entities submitted comments on our proposed rule. We also contacted organizations representing interests of State and local governments and officials about the 5 See 6 See E:\FR\FM\23DER1.SGM 73 FR 58887, at 58893. 73 FR 58887, at 58893. 23DER1 Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations rulemaking. We received a response from the National Conference of State Legislatures indicating that they had no comments. We have no knowledge of any pending State tort litigation that could potentially conflict with the October 2008 final rule. We also observe that that the procedures for measuring seats and calculating the appropriate number of DSPs make it unlikely that a State law or determination could conflict with the new DSP definition. The calculation of the number of DSPs on a bench seat with a seating surface width of less than 1400 mm is generally based upon the number of 5th percentile adult females that could occupy a seat. Thus, for a seat surface width of 1050 mm or more, there would be three DSPs. We believe it unlikely that any State law or determination would require three DSPs in a seating space of less than 1050 mm because it would be difficult for three adults to sit in such a small space. Thus, we have no reason to believe that any existing State tort law determination conflicts with our manner of calculating the appropriate number of DSPs set forth in the October 2008 final rule, nor do we have any reason to anticipate that a future State tort law decision will create such a conflict. In the absence of such a conflict, there can be no preemption of State tort law. Accordingly, we have removed the regulatory text preempting State law, including State tort law determinations, premised on there being more DSPs than the number contemplated by the new definition. Petitioner AAJ also sought removal of the regulatory text preempting State law, contending that NHTSA lacks the statutory authority to issue regulations that preempt State tort law. In view of the forgoing discussion, we need not address this contention in the context of this rulemaking. cprice-sewell on DSKHWCL6B1PROD with RULES VI. Technical Correction The petitions for reconsideration filed by SAE International, the Alliance, and AIAM pointed out a technical error in the regulation setting forth the formula for calculating the number of designated seating positions. These petitions noted that 49 CFR 571.10(b)(1) and (b)(2) each refer to ‘‘paragraph (d),’’ which does not exist, and that the reference was probably intended to refer to § 571.10(c). The petitioners are correct. Accordingly, we are amending § 571.10(b)(1) and (b)(2) to correct this error. VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 VII. Rulemaking Analyses and Notices A. Executive Order 12866 and DOT Regulatory Policies and Procedures Executive Order 12866, ‘‘Regulatory Planning and Review’’ (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is ‘‘significant’’ and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. This notice has not been reviewed under Executive Order 12866. NHTSA has considered the impact of this proposed rule and determined that the action is not ‘‘significant’’ within the meaning of the Department of Transportation’s regulatory policies and procedures. The changes made by this final rule do not affect the costs and benefits estimated for our October 2008 final rule. B. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., NHTSA has evaluated the effects of this action on small entities. I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities. The changes made by this final rule do not affect the costs and benefits estimated for our October 2008 final rule. For these reasons, the agency has not prepared a new or revised regulatory flexibility analysis. C. Executive Order No. 13132 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 consultation with State and local officials or the 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 rule. For a discussion of that issue, see the main portion of this preamble. D. Executive Order 12988 With respect to the review of the promulgation of a new regulation, PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 68189 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 (7) 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. 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 or petition for review of this regulation in court. E. 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. F. Paperwork Reduction Act This amendment does not contain any collection of information requirements requiring review under the Paperwork Reduction Act of 1995 (Pub. L. 104–13). G. 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.’’ This final rule does not establish or amend a technical standard. H. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually E:\FR\FM\23DER1.SGM 23DER1 68190 Federal Register / Vol. 74, No. 245 / Wednesday, December 23, 2009 / Rules and Regulations (adjusted for inflation with base year of 1995). This rulemaking 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. DEPARTMENT OF COMMERCE J. Regulation Identifier Number (RIN) [Docket No. 090130102–91386–02] The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda. RIN 0648–XT01 K. Privacy Act Anyone is able to search the electronic form of all comments 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) or you may visit http://docketsinfo.dot.gov/. List of Subjects in 49 CFR Parts 571 Imports, Motor vehicle safety, Reporting and recordkeeping requirements, Tires. In consideration of the foregoing, NHTSA amends 49 CFR Part 571 as follows: ■ PART 571—FEDERAL MOTOR VEHICLE SAFETY STANDARDS 1. The authority citation for part 571 of Title 49 continues to read as follows: ■ Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.50. 2. Amend section 571.3 as follows: a. In paragraphs (1) and (2) of the definition of ‘‘Designated seating position’’ in paragraph (b), remove the date ‘‘September 1, 2010’’ and add in its place the date ‘‘September 1, 2011’’; and ■ b. Remove paragraph (c). ■ 3. Amend section 571.10 by removing from paragraphs (b)(1) and (b)(2) the phrase ‘‘paragraph (d)’’ and adding in its place the phrase ‘‘paragraph (c)’’. ■ cprice-sewell on DSKHWCL6B1PROD with RULES ■ Issued on: December 11, 2009. Ronald L. Medford, Acting Deputy Administrator. [FR Doc. E9–30440 Filed 12–22–09; 8:45 am] BILLING CODE 4910–59–P VerDate Nov<24>2008 13:48 Dec 22, 2009 Jkt 220001 National Oceanic and Atmospheric Administration 50 CFR Part 300 Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Longline Fishery Closure AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; fishery closure. SUMMARY: NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean as a result of the fishery reaching the 2009 catch limit. DATES: Effective December 29, 2009, through December 31, 2009. FOR FURTHER INFORMATION CONTACT: Tom Graham, NMFS Pacific Islands Region, 808–944–2219. SUPPLEMENTARY INFORMATION: This rule is also accessible at www.gpoaccess.gov/ fr. Pelagic longline fishing in the western and central Pacific Ocean is managed, in part, under the Western and Central Pacific Fisheries Convention Implementation Act (Act). Regulations governing fishing by U.S. vessels in accordance with the Act appear at 50 CFR part 300, subpart O. NMFS established a limit for calendar year 2009 of 3,763 metric tons (mt) of bigeye tuna (Thunnus obesus) that may be caught and retained in the U.S. pelagic longline fishery in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention Area), codified at 50 CFR 300.224 (74 FR 63999, December 7, 2009). NMFS monitored the retained catches of bigeye tuna using logbook data submitted by vessel captains and other available information, and determined that the 2009 catch limit is expected to be reached by December 29, 2009. In accordance with § 300.224(d), this rule serves as advance notification to fishermen, the fishing industry, and the general public that the U.S. longline fishery for bigeye tuna in the Convention Area will be closed from December 29, 2009, through the end of the calendar year. The 2010 fishing year is scheduled to open on January 1, 2010; the 2010 bigeye tuna catch limit will be 3,763 mt. This rule does not apply to the PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 longline fisheries of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands (CNMI), as described below. During the closure, a U.S. fishing vessel may not retain on board, transship, or land bigeye tuna captured by longline gear in the Convention Area, except that any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and landed, provided that they are landed within 14 days of the start of the closure (i.e., January 12, 2010). This 14–day landing requirement does not apply to a vessel that has declared to NMFS, pursuant to 50 CFR 665.23(a), that the current trip type is shallow-setting. Furthermore, bigeye tuna caught by longline gear may be retained on board, transshipped, and landed if the fish are caught by a vessel registered for use under a valid NMFS-issued American Samoa Longline Limited Access Permit or if they are landed in American Samoa, Guam, or the CNMI, under the following conditions: (1) The bigeye tuna must not have been caught in the portion of the U.S. exclusive economic zone (EEZ) surrounding the Hawaiian Archipelago; (2) Such retention, transshipment, and/or landing is in compliance with applicable laws and regulations; and (3) The bigeye tuna must be landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.21. During the closure, a U.S. vessel is also prohibited from transshipping bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel operated with a valid permit issued under 50 CFR 660.707 or 665.21. The catch limit and this closure do not apply to bigeye tuna caught by longline gear outside the Convention Area, such as in the eastern Pacific Ocean. To ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, however, the following requirements apply: (1) A U.S. fishing vessel may not be used to fish with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress on December 29, 2009. In that case, the catch of bigeye tuna must be landed by January 12, 2010; and (2) If a U.S. vessel is used to fish using longline gear outside the Convention Area and the vessel enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a E:\FR\FM\23DER1.SGM 23DER1

Agencies

[Federal Register Volume 74, Number 245 (Wednesday, December 23, 2009)]
[Rules and Regulations]
[Pages 68185-68190]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-30440]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 2009-0189]
RIN 2127-AK65


Federal Motor Vehicle Safety Standards; Designated Seating 
Positions

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

ACTION: Final rule; partial response to petitions for reconsideration.

-----------------------------------------------------------------------

SUMMARY: This document responds, in part, to petitions for 
reconsideration of an October 2008 final rule that amended

[[Page 68186]]

the definition of the term, ``designated seating position,'' as used in 
the Federal motor vehicle safety standards, to clarify which areas 
within the interior of a vehicle meet that definition.
    The final rule made the new definition applicable to vehicles 
manufactured on and after September 1, 2010. The agency received 
petitions for reconsideration asking for additional time to comply with 
the new requirements. This final rule provides one additional year of 
lead time until the new definition is applicable.
    In the regulatory text of that final rule, we included language 
declaring that any State requirement, including any determination under 
State tort law, premised on there being more designated seating 
positions than the number contemplated in our definition, would 
prevent, hinder or frustrate the accomplishment of the purposes of the 
Federal Motor Vehicle Safety Standards in Part 571 of this title, and 
thus would be preempted by this regulation. The petitions for 
reconsideration sought removal of this preemption language from the 
regulatory text. This final rule grants that request by removing the 
portion of the regulatory text stating that State tort law requirements 
are preempted.
    This final rule also makes a technical correction to the regulatory 
text of the rule setting forth the formula for calculating the number 
of designated seating positions, the need for which was noted in 
several of the petitions for reconsideration.
    The remaining issues raised in the petitions for reconsideration 
(clarification or change to the manner in which the number of 
designated seating positions in a vehicle are calculated, procedural 
issues regarding measuring seating surfaces, countermeasures, and other 
technical corrections) will be addressed in a separate notice.

DATES: The effective date of this final rule is February 22, 2010.
    Petitions for reconsideration must be received not later than 
February 8, 2010.

ADDRESSES: Petitions must be submitted to: Administrator, National 
Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., 
Washington, DC, 20590.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
Chris Wiacek of the NHTSA Office of Crashworthiness Standards by 
telephone at (202) 366-4801, and by fax at (202) 493-2290.
    For legal issues, you may contact David Jasinski of the NHTSA 
Office of Chief Counsel by telephone at (202) 366-2992, and by fax at 
(202) 366-3820.
    You may send mail to both of these officials at the National 
Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Background
II. Petitions for Reconsideration
III. Agency Response to Petitions for Additional Lead Time
IV. How NHTSA's Regulations May Give Rise to a Judicial Finding of 
Preemption
V. Agency Response to Petitions Regarding Preemption
VI. Technical Correction
VII. Rulemaking Analyses and Notices

I. Background

    On October 8, 2008, we published in the Federal Register a final 
rule (October 2008 final rule) revising the definition of ``designated 
seating position'' (DSP), as that term is used in the Federal motor 
vehicle safety standards (FMVSS), and providing a calculation procedure 
for determining the number of seating positions at a seat location.\1\ 
The revised definition specifies more clearly the areas within the 
interior of a vehicle that are regarded as being designated seating 
positions. The rule also established a calculation procedure for 
determining the number of DSPs at a seat location for trucks and 
multipurpose passenger vehicles with a gross vehicle weight rating less 
than 10,000 pounds, passenger cars, and buses.
---------------------------------------------------------------------------

    \1\ 73 FR 58887 (Oct. 8, 2008) (Docket No. NHTSA-2008-0059).
---------------------------------------------------------------------------

    The designation of a seating position has important safety 
consequences. Under the FMVSSs, motor vehicle manufacturers must meet 
various performance requirements for each interior location designated 
as a seating position. For example, FMVSS No. 208, ``Occupant crash 
protection,'' requires that each DSP in a light vehicle be provided 
with the appropriate occupant crash protection system (e.g., air bag, 
seat belts or both). Clarity in the definition of DSP is important for 
the purposes of that standard because if a vehicle has fewer DSPs than 
the number of individuals able to sit in it, one or more of those 
individuals would not be protected by seat belts and/or other crash 
protection systems.
    In the final rule, the agency stated that the revised definition of 
``designated seating position'' added clarity to the existing 
definition and was not expected to have a substantial impact on current 
vehicle design. The degree to which seat design exhibited the 
characteristics that gave rise to the agency's concerns had lessened in 
the fleet. Manufacturers had either reduced the width of the seating 
area to more accurately reflect the intended occupancy or had provided 
additional DSPs.
    The October 2008 final rule noted that the inclusion of auxiliary 
seats in the definition of ``designated seating position'' and the 
newly established procedure for determining the number of DSPs would 
require minor redesign of a small number of vehicles. To allow 
manufacturers the opportunity to make such redesigns, the agency 
provided approximately two years of lead time, such that, on September 
1, 2010, all vehicles would have to comply with the new requirements.
    In the preamble to the final rule, we observed that, in Geier v. 
American Honda Motor Company, Inc., the Supreme Court had recognized 
that State requirements imposed on motor vehicle manufacturers, 
including sanctions imposed by State tort law, could stand as an 
obstacle to the accomplishment and execution of some FMVSSs, and that, 
where such conflict occurs, the Supremacy Clause of the Constitution 
could make the State tort law requirements unenforceable.\2\ We stated 
our opinion that State tort law judgments premised on there being more 
DSPs in a motor vehicle than the number contemplated by the definition 
in 49 CFR Part 571 could have a negative effect on safety because it 
would induce manufacturers to equip motor vehicles with an excessive 
number of seat belts. Because seat belt comfort and convenience (i.e., 
ease of use) significantly affect the seat belt usage rate, we opined 
that the installation of an excessive number of seat belts would 
decrease, not increase, safety, thereby hampering our efforts to 
promote high seat belt use rates. To make sure that this opinion would 
be readily available and clear to all, in the October 2008 final rule, 
we included in the regulatory text of the definition of ``designated 
seating position'' language stating that any State law requirement, 
including State tort law, premised on there being more DSPs in a motor 
vehicle than the number contemplated by the new definition, was 
preempted.
---------------------------------------------------------------------------

    \2\ 529 U.S. 861, 870 (2000).
---------------------------------------------------------------------------

II. Petitions for Reconsideration

    We received ten petitions for reconsideration of the October 2008 
final rule. The petitioners are SAE International (SAE), BMW North 
America (BMW), the Alliance of Automobile Manufacturers (Alliance), 
Volkswagen of America (Volkswagen), the Association of International 
Automobile Manufacturers (AIAM), the

[[Page 68187]]

American Association for Justice (AAJ), Safety Research and Strategies, 
Toyota Motor North America (Toyota), Mitsubishi Motors R&D of America 
(Mitsubishi), and Public Citizen.\3\ Toyota also expressed its support 
for the Alliance's petition. The petitions filed by SAE International 
and Toyota were styled both as requests for interpretation and as 
petitions for reconsideration.
---------------------------------------------------------------------------

    \3\ The AAJ petition was jointly filed by the AAJ, the 
Association of Trial Lawyers of America--New Jersey, Consumer 
Attorneys of California, Consumers for Auto Reliability and Safety, 
the New York State Trial Lawyers Association, the Pennsylvania 
Association for Justice, and the Washington State Trial Lawyers 
Association. Public Citizen's petition was filed jointly by Public 
Citizen and the Consumer Federation of America.
---------------------------------------------------------------------------

    In this notice, we are responding to petitions by the Alliance, 
AIAM, Mitsubishi, and Volkswagen that sought additional lead time for 
implementing the new definition of ``designated seating position'' via 
a phase-in. The October 2008 final rule requires manufacturers to 
comply with the new definition for all vehicles manufactured after 
September 1, 2010, without a phase-in; however, each of the petitioners 
request that the agency move the 100 percent compliance date to 
September 1, 2011.
    We are also responding to the issues relating to preemption. The 
petitions from the AAJ and Public Citizen requested removal of the 
language that we incorporated in the text of the final rule stating 
that any State requirement, including any determination under State 
tort law, premised on there being more DSPs than the number 
contemplated in the definition, was preempted. The AAJ asserted that 
the preemption language contradicted Congressional intent, as discerned 
in a November 2005 letter signed by two Senators to NHTSA's Deputy 
Administrator, to allow lawsuits against automobile manufacturers based 
on State tort law. The AAJ and Public Citizen also objected to our 
reliance on Geier v. American Honda Motor Co. to support our statement 
about preemption of state tort law. The AAJ contends that the DSP 
definition rulemaking was unlike the passive restraint rulemaking at 
issue in Geier because the DSP rulemaking did not stress the need for 
vehicle manufacturers to have different compliance options available to 
them.
    Public Citizen disagreed with our conclusion that State tort law 
could frustrate the accomplishment or purposes of the DSP definition. 
Public Citizen argued that vehicle manufacturers are unlikely to equip 
a vehicle with more seat belts than are necessary. Instead, that 
organization contended, citing statements in our June 22, 2005 Notice 
of Proposed Rulemaking \4\ (June 2005 NPRM) and our October 2008 final 
rule, that vehicle manufacturers are more likely to respond to a State 
tort law decision having the effect of requiring more DSPs than the 
number required by our October 2008 final rule by introducing void 
spaces or impediments between DSPs rather than designating additional 
seating positions and installing additional seat belts. Public Citizen 
also argued that, under the new DSP definition, vehicle manufacturers 
cannot leave an ambiguous seating surface in the middle of a bench 
seat, and, if these design features (voids or impediments) are 
sufficient to discourage excessive occupancy, then State courts would 
be unlikely to issue tort law judgments premised on there being more 
DSPs than the number contemplated in the definition. Thus, as a 
practical matter, no conflict with our regulations would arise.
---------------------------------------------------------------------------

    \4\ See 70 FR 36094 (June 22, 2005).
---------------------------------------------------------------------------

    We are also correcting a technical error. The petitions from SAE 
International, the Alliance, and AIAM also pointed out a technical 
error in the regulation setting forth the formula for calculating the 
number of designated seating positions. These petitions point out that 
49 CFR Sec.  571.10(b)(1) and (b)(2) each refer to ``paragraph (d),'' 
which does not exist, and that the reference was probably intended to 
refer to Sec.  571.10(c).
    Our responses to the other issues raised by the petitioners will be 
provided in a later notice. The petitions from SAE International, BMW, 
Volkswagen, AIAM, and Toyota sought clarification of or changes to the 
formula for determining the number of DSPs at a seat location, 
procedural concerns regarding measuring seating surfaces, 
countermeasures, and other technical corrections. The petitions from 
AIAM and Public Citizen challenged the adequacy of data to support the 
amendment of the definition of ``designated seating position.''

III. Agency Response to Petitions for Additional Lead Time

    The Alliance, AIAM, Mitsubishi, and Volkswagen petitioned the 
agency to phase-in the requirements to provide additional lead time for 
some vehicles. The Alliance agreed with the agency's assessment that 
only a small number of vehicles in the fleet will require a redesign to 
comply. However, it noted that additional time is needed for non-
compliant vehicles to be redesigned to the new DSP definition. 
Mitsubishi supported the Alliance petition and provided a suggested 
phase-in schedule. Volkswagen added that a number of its carlines are 
affected by the new requirements and a phase-in will permit a cost-
effective implementation of any required changes.
    The AIAM also identified that changes will need to be made in 
vehicles that have auxiliary seats (i.e., temporary or folding seats) 
to comply with the FMVSSs because under the new definition, these types 
of seats are now considered DSPs. For example, it noted that such seats 
would have to be redesigned to meet the requirements of FMVSS No. 225, 
``Child restraint anchorage systems,'' which it suggested would 
necessitate allocation of significant engineering resources and 
testing. The AIAM stated that these modifications would be difficult 
and costly to implement within two years, particularly for existing 
models.
    In response to the petitions, the agency has decided to provide an 
additional year of lead time. We believe granting an extra year of lead 
time will address the petitioners' concerns and allow manufacturers 
more flexibility to allocate their resources better. We agree with the 
petitioners that some vehicles will need significant redesign to comply 
with other FMVSSs such as pickup trucks with auxiliary seats that will 
now have to meet FMVSS Nos. 210, ``Seat belt assembly anchorages'' and 
225, ``Child restraint anchorage systems,'' requirements. For some 
vehicles, structural reinforcement to the vehicle's body may be needed 
at the attachment location for the seat belt and child restraint 
anchorage hardware to assure compliance with the respective standards.
    We are not persuaded by the petitioners' request for a phase-in of 
the requirements. Based upon our prior fleet assessment, we continue to 
believe only a small percentage of vehicles do not comply with the new 
requirements. Hence, a phase-in based on a manufacturer's complying 
production volume would add little safety benefit. However, because 
some vehicles would require considerable redesign to comply with the 
new definition, we believe that providing an additional year of lead 
time is a more practical approach.

IV. How NHTSA's Regulations May Give Rise to a Judicial Finding of 
Preemption

    Before addressing the merits of the petitions related to 
preemption, we review the state of the law concerning the circumstances 
in which our regulations may give rise to a judicial finding of 
preemption of State

[[Page 68188]]

requirements. First, the National Traffic and Motor Vehicle Safety Act 
of 1966 (Safety Act) contains a clause expressly preempting non-
identical state statutes and regulations, now codified at 49 U.S.C. 
30103(b)(1). This express preemption clause prevents States from 
enacting safety statutes or administratively issuing safety regulations 
that address the same aspect of performance as Federal motor vehicle 
safety standards issued by NHTSA, but are not identical to those 
Federal standards.
    Second, Federal laws and regulations may be found to impliedly 
preempt State law in two ways. Federal law preempts State law if 
compliance with both the State and Federal standards are impossible. In 
addition, Federal law preempts State law if, for example, State tort 
actions create an obstacle to the accomplishment and execution of the 
full purposes and objectives of Congress.
    In Geier v. American Honda Motor Co., the Supreme Court 
specifically addressed the possible preemptive effect of the Safety Act 
in combination with one of the FMVSSs issued under that Act, on common 
law tort claims. The issue before the court was whether the Safety Act, 
in light of FMVSS No. 208, preempted a lawsuit claiming a 1987 car was 
defective for lacking a driver air bag. When the car was manufactured, 
FMVSS No. 208 had required manufacturers to equip some, but not all, of 
their vehicles with passive (i.e., automatic) restraints.
    The conclusions in Geier can be summarized as follows:
     The Safety Act's provision expressly preempting state 
``standards'' does not preempt common law tort claims. The issue of 
whether the term ``standards'' includes tort law actions is resolved 
(in the negative) by another provision in the Safety Act--the 
``savings'' clause. That provision states that ``[c]ompliance with'' a 
Federal safety standard ``does not exempt any person from any liability 
under common law.'' There would not be any common law tort claims for 
the provision to save if the ``standards'' in the express preemption 
provision were read to include those claims.
     The savings clause preserves those tort actions that seek 
to establish greater safety than the minimum safety achieved by a FMVSS 
intended to provide a floor.
     The savings clause does not bar the working of conflict 
preemption principles. Further, neither the express preemption 
provision nor the saving provision, whether read singly or together, 
create some kind of ``special burden'' beyond that inherent in ordinary 
preemption principles that would specially favor or disfavor pre-
emption. The two provisions, read together, reflect a neutral policy, 
not a specially favorable or unfavorable policy, toward the application 
of ordinary conflict preemption principles.
     The preemption provision and the savings clause are 
countervailing provisions. The preemption provision reflects a desire 
to subject the industry to a single, uniform set of FMVSSs. On the 
other hand, the savings clause reflects a congressional determination 
that occasional nonuniformity is a small price to pay for a system in 
which juries not only create, but also enforce, safety standards, while 
simultaneously providing necessary compensation to victims. Nothing in 
any natural reading of the two provisions favors one set of policies 
over the other where a jury-imposed safety standard actually conflicts 
with a FMVSS.
     A court should not find preemption too readily in the 
absence of clear evidence of a conflict.
     The Court provided limited guidance, beyond dealing with 
``no airbag'' cases, on what types of circumstances could create a 
conflict under the Safety Act, and how concrete a conflict must be.
     The common-law ``no airbag'' action before the Court was 
found to be preempted because it actually conflicted with FMVSS No. 
208. In reaching that conclusion, the Court devoted considerable 
attention to the Department of Transportation's detailed explanation of 
the ``significant considerations'' underlying FMVSS No. 208's 
regulatory approach, and observed how the standard reflected these 
considerations. The standard sought a gradually developing variety of 
passive restraint devices for statutorily relevant reasons including 
safety and public acceptability. The rule of state tort law sought by 
the petitioner would have constrained the variety of passive restraint 
devices by requiring manufacturers of all similar cars to install a 
single type of device, an air bag, instead of other types of passive 
restraint systems, thereby presenting an obstacle to the variety and 
mix of devices that the FMVSS sought.

V. Agency Response to Petitions Regarding Preemption

    We find merit in Public Citizen's argument that an actual conflict 
may never arise with respect to pronouncements in state tort law 
decisions regarding the appropriate number of designated seating 
positions. We stated in our October 2008 final rule that a tort law 
judgment premised on a view that a motor vehicle needed to have more 
DSPs than the number contemplated by our definition could have a 
negative safety effect. Such an effect would occur if, in response to 
such a tort law judgment, manufacturers installed an excessive number 
of seat belts. We said further that such installation could decrease 
comfort or make use of seat belts difficult, making it less likely that 
an occupant would use his or her respective seat belt, thereby reducing 
overall safety.
    However, as Public Citizen noted, in estimating compliance costs in 
our October 2008 final rule, we opined that, because adding seat belts 
would be more expensive, manufacturers would be more likely to 
implement the revised DSP definition by reducing seat width or 
installing an impediment in affected vehicles to discourage people from 
sitting between seats.\5\ Public Citizen argued that if the 
manufacturers took either of those two steps, the resulting vehicle 
designs would not contain ambiguous seating space and thus would be 
unlikely to give rise to State tort law decisions premised on a view 
that a motor vehicle was equipped with an insufficient number of seat 
belts.
---------------------------------------------------------------------------

    \5\ See 73 FR 58887, at 58893.
---------------------------------------------------------------------------

    We agree. Even if there were State tort law decisions requiring 
more DSPs than the number contemplated by our definition, we believe 
that the manufacturers would likely respond in the same way that they 
will respond to the changes mandated by our October 2008 final rule. 
That is, because of the higher cost of adding lap/shoulder seat belts, 
we believe that it is unlikely that a manufacturer will increase the 
number of DSPs in a vehicle and install an excessive number of seat 
belts. Instead, we believe the most likely responses by manufacturers 
will be to either install an impediment or void in vehicles or decrease 
seating surface width.\6\ Because manufacturers' most likely response 
to an adverse State tort law decision would not be to increase the 
number of DSPs and install an excessive number of seat belts in 
vehicles, we believe it is very unlikely that a tort law judgment would 
actually conflict with our DSP definition.
---------------------------------------------------------------------------

    \6\ See 73 FR 58887, at 58893.
---------------------------------------------------------------------------

    Moreover, we have no knowledge of any State tort law decision that 
might conflict with the October 2008 final rule. In the final rule, we 
noted that no State or local governmental entities submitted comments 
on our proposed rule. We also contacted organizations representing 
interests of State and local governments and officials about the

[[Page 68189]]

rulemaking. We received a response from the National Conference of 
State Legislatures indicating that they had no comments. We have no 
knowledge of any pending State tort litigation that could potentially 
conflict with the October 2008 final rule.
    We also observe that that the procedures for measuring seats and 
calculating the appropriate number of DSPs make it unlikely that a 
State law or determination could conflict with the new DSP definition. 
The calculation of the number of DSPs on a bench seat with a seating 
surface width of less than 1400 mm is generally based upon the number 
of 5th percentile adult females that could occupy a seat. Thus, for a 
seat surface width of 1050 mm or more, there would be three DSPs. We 
believe it unlikely that any State law or determination would require 
three DSPs in a seating space of less than 1050 mm because it would be 
difficult for three adults to sit in such a small space.
    Thus, we have no reason to believe that any existing State tort law 
determination conflicts with our manner of calculating the appropriate 
number of DSPs set forth in the October 2008 final rule, nor do we have 
any reason to anticipate that a future State tort law decision will 
create such a conflict. In the absence of such a conflict, there can be 
no preemption of State tort law. Accordingly, we have removed the 
regulatory text preempting State law, including State tort law 
determinations, premised on there being more DSPs than the number 
contemplated by the new definition.
    Petitioner AAJ also sought removal of the regulatory text 
preempting State law, contending that NHTSA lacks the statutory 
authority to issue regulations that preempt State tort law. In view of 
the forgoing discussion, we need not address this contention in the 
context of this rulemaking.

VI. Technical Correction

    The petitions for reconsideration filed by SAE International, the 
Alliance, and AIAM pointed out a technical error in the regulation 
setting forth the formula for calculating the number of designated 
seating positions. These petitions noted that 49 CFR 571.10(b)(1) and 
(b)(2) each refer to ``paragraph (d),'' which does not exist, and that 
the reference was probably intended to refer to Sec.  571.10(c). The 
petitioners are correct. Accordingly, we are amending Sec.  
571.10(b)(1) and (b)(2) to correct this error.

VII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order.
    This notice has not been reviewed under Executive Order 12866. 
NHTSA has considered the impact of this proposed rule and determined 
that the action is not ``significant'' within the meaning of the 
Department of Transportation's regulatory policies and procedures. The 
changes made by this final rule do not affect the costs and benefits 
estimated for our October 2008 final rule.

B. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., NHTSA has evaluated the effects of this action on small entities. 
I hereby certify that this rule will not have a significant economic 
impact on a substantial number of small entities. The changes made by 
this final rule do not affect the costs and benefits estimated for our 
October 2008 final rule. For these reasons, the agency has not prepared 
a new or revised regulatory flexibility analysis.

C. Executive Order No. 13132

    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 consultation with State and local officials or the 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 rule. For a discussion of that issue, see 
the main portion of this preamble.

D. Executive Order 12988

    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 (7) 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. 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 or 
petition for review of this regulation in court.

E. 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.

F. Paperwork Reduction Act

    This amendment does not contain any collection of information 
requirements requiring review under the Paperwork Reduction Act of 1995 
(Pub. L. 104-13).

G. 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.'' This final rule does not establish or amend a 
technical standard.

H. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of more than $100 million annually

[[Page 68190]]

(adjusted for inflation with base year of 1995). This rulemaking 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.

J. Regulation Identifier Number (RIN)

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

K. Privacy Act

    Anyone is able to search the electronic form of all comments 
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) or you may visit 
http://docketsinfo.dot.gov/.

List of Subjects in 49 CFR Parts 571

    Imports, Motor vehicle safety, Reporting and recordkeeping 
requirements, Tires.

0
In consideration of the foregoing, NHTSA amends 49 CFR Part 571 as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of Title 49 continues to read as 
follows:

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


0
2. Amend section 571.3 as follows:
0
a. In paragraphs (1) and (2) of the definition of ``Designated seating 
position'' in paragraph (b), remove the date ``September 1, 2010'' and 
add in its place the date ``September 1, 2011''; and

0
b. Remove paragraph (c).
0
3. Amend section 571.10 by removing from paragraphs (b)(1) and (b)(2) 
the phrase ``paragraph (d)'' and adding in its place the phrase 
``paragraph (c)''.

    Issued on: December 11, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-30440 Filed 12-22-09; 8:45 am]
BILLING CODE 4910-59-P