E8-22082. Think Technology AS; Receipt of Application for a Temporary Exemption From the Advanced Air Bag Requirements of FMVSS No. 208

AGENCY:

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

ACTION:

Notice of receipt of petition for temporary exemption from certain provisions of Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection.

SUMMARY:

In accordance with the procedures in 49 CFR Part 555, Think Technology AS has petitioned the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that the exemption would make the development or field evaluation of a low-emission vehicle easier and would not unreasonably lower the safety or impact protection level of the vehicle.^[1]

This notice of receipt of an application for temporary exemption is published in accordance with the applicable statutory provisions. NHTSA has not made any judgment on the merits of the application.

DATES:

You should submit your comments not later than October 22, 2008.

FOR FURTHER INFORMATION CONTACT:

Ari Scott, Office of the Chief Counsel, NCC-112, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., West Building 4th Floor, Room W41-326, Washington, DC 20590. Telephone: [phone]; Fax: [phone].

Comments: We invite you to submit comments on the application described above. You may submit comments identified by docket number at the heading of this notice by any of the following methods:

• Web Site: http://www.regulations.gov. Follow the instructions for submitting comments on the electronic docket site by clicking on “Help and Information” or “Help/Info.”
• Fax: [phone].
• Mail: U.S. Department of Transportation, Docket Operations, M-30, Room W12-140, 1200 New Jersey Avenue, SE, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC, between 9 am and 5 pm, Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590, between 9 am and 5 pm, Monday through Friday, except Federal Holidays. Telephone: [phone].

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://www.dot.gov/​privacy.html.

Confidential Business Information: If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given under FOR FURTHER INFORMATION CONTACT. In addition, you should submit two copies, from which you have deleted the claimed confidential business information, to Docket Management at the address given above. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation (49 CFR Part 512).

We will consider all comments received before the close of business on the comment closing date indicated above. To the extent possible, we shall also consider comments filed after the closing date.

I. Advanced Air Bag Requirements

In 2000, NHTSA upgraded the requirements for air bags in passenger cars and light trucks, requiring what are commonly known as “advanced air bags.” ^[2] The upgrade was designed to meet the goals of improving protection for occupants of all sizes, belted and unbelted, in moderate-to-high-speed crashes, and of minimizing the risks posed by air bags to infants, children, and other occupants, especially in low-speed crashes.

The advanced air bag requirements were a culmination of a comprehensive plan that the agency announced in 1996 to address the adverse effects of air bags. This plan also included an extensive consumer education program to encourage the placement of children in rear seats. The new requirements were phased in beginning with the 2004 model year.

The agency has carefully tracked occupant fatalities resulting from air bag deployment. Our data indicate that the agency's efforts in the area of consumer education and manufacturers' providing depowered air bags were successful in reducing air bag fatalities even before advanced air bag requirements were implemented.

As always, we are concerned about the potential safety implication of any temporary exemptions granted by this agency. In the present case, we are seeking comments on a petition for a temporary exemption from the advanced air bag requirements submitted by Think Technology AS, a Norwegian manufacturer of battery electric vehicles, which utilize chemical energy stored in rechargeable battery packs and electric motors instead of internal combustion engines. The vehicle at issue is entitled the Think City EV, a zero-emissions vehicle.

II. Background of Manufacturer

The Think City EV originally began as a project started in 1998 by PIVCO AS in Norway. According to the petitioner, in 2000, the PIVCO project was acquired by Ford Motor Company, a major U.S. automobile manufacturer, as part of an effort to comply with the State of California's Zero Emissions Vehicle mandate. Ford created a project called Think, which produced 350 Think City EV cars based on the PIVCO project in 2000, which were leased as part of a demonstration and testing project. However, in light of the California Air Resources Board's decision in 2003 to essentially end the requirement for “pure” electric cars, Ford sold the Think project to KamKorp, a company based in Switzerland. In 2006, a new ownership occurred creating Think Global AS.

Think Technology AS is a wholly-owned subsidiary of Think Global AS, a holding company that possesses the intellectual property rights to the Think City EV. The current owners of Think Global AS include the founders of the PIVCO project, the precursor to the Think City EV, as well as various other entities in Norway and other countries. Neither Think Global AS nor Think Technology AS (hereinafter, “Think”) has sold any vehicles in the U.S. to date.

III. Statutory Basis for Requested Part 555 Exemption

In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR Part 555, Think has petitioned the agency for a temporary exemption from certain advanced air bag requirements of FMVSS No. 208. The basis for the application is that the exemption would make the development or field evaluation of a low-emission vehicle easier and would not unreasonably lower the safety or impact protection level of the vehicle. A copy of the petition is available for review and has been placed in the docket for this notice. Specifically, Think has requested an exemption for a period of two years upon the grant of the petition. This requested exemption includes the advanced air bag requirements in S14.5.2 of FMVSS No. 208, the rigid barrier test requirement using the 5th percentile adult female test dummy (belted and unbelted, S15), the offset deformable barrier test requirement using the 5th percentile adult female test dummy (S17), the requirements to provide protection for infants and children (S19, S21, and S23) and the requirement using an out-of-position 5th percentile adult female test dummy at the driver position (S25). The petitioner stated that the vehicle will be equipped with standard air bags and will comply with the rigid barrier belted test requirement using the 50th percentile adult male test dummy set forth in S14.5.1(a) of FMVSS No. 208.

IV. Summary of Information Provided by Petitioner and Supporting Arguments

A petitioner must provide specified information in submitting a petition for exemption. These requirements are specified in 49 CFR 555.5, and include a number of items. Foremost among them are that the petitioner must set forth the basis of the application under § 555.6, and the reasons why the exemption would be in the public interest and consistent with the objectives of 49 U.S.C. Chapter 301.

This section summarizes the information provided by the petitioner and its supporting arguments. In this case, the basis of the application is to facilitate the development and evaluation of a low emission vehicle, the requirements of which are given in § 555.6(c). The main requirements of this section include: (1) Substantiation that the vehicle is a low-emission vehicle; (2) documentation establishing that a temporary exemption would not unreasonably degrade the safety of the vehicle; (3) substantiation that a temporary exemption would facilitate the development or field evaluation of the vehicle; (4) a statement of whether the petitioner intends to conform to the standard at the end of the exemption period; and (5) a statement that not more than 2,500 exempted vehicles will be sold in the United States in any 12-month period for which an exemption may be granted.

a. Petitioner's Statement That the Think City EV Is a Low-Emission Vehicle

Think asserts that the Think City EV is a low-emission vehicle. It states that 49 U.S.C. 30113(a) defines a low-emission vehicle as one that conforms to the applicable standards for new vehicles contained in section 202 of the Clean Air Act (42 U.S.C. 7521), and whose emissions are significantly below on of those standards. Section 202 of the Clear Air Act currently controls hydrocarbons, carbon monoxide, oxides of nitrogen, and particulate matter. Think asserts that the Think City EV emits none of the listed pollutants. It also asserts that the vehicle has no additional systems installed that could produce the named pollutants, e.g., a fuel-fired heating system.

b. Petitioner's Statement That a Temporary Exemption Would Not Unreasonably Degrade Safety

This portion of the regulation requires that the petitioner provide four items of information. The first is a detailed description of how the low-emission vehicle would differ from one that complies with the standard. The second, required only of manufacturers currently producing a vehicle conforming to the standard, is the results of tests conducted to substantiate certification with the standard. The third requirement is for the petitioner to provide the results of any tests that demonstrate the vehicle's failure to meet the standard, expressed in as comparative performance levels. Finally, the fourth requirement is for the petitioner to provide reasons why the failure to meet the standard does not unreasonably degrade the safety or impact protection of the vehicle.

i. Petitioner's Description of How the Think City Would Differ From a Vehicle That Complies With FMVSS No. 208

Think is applying for an exemption from the advanced air bag requirements of Standard No. 208. However, the Think City EV is not without air bags. Think states that the Think City EV will comply with the pre-advanced air bag requirements of FMVSS No. 208. As stated in the petition, the only differences between a compliant vehicle and the Think City EV are the items discussed above in the requested exemption. Namely, these are limited to the provisions in requirements in S14.5.2 of FMVSS No. 208, the rigid barrier test requirement using the 5th percentile adult female test dummy (belted and unbelted, S15), the offset deformable barrier test requirement using the 5th percentile adult female test dummy (S17), the requirements to provide protection for infants and children (S19, S21, and S23) and the requirement using an out-of-position 5th percentile adult female test dummy at the driver position (S25).

ii. Testing Results Substantiating Certification With the Standard

As Think has not designed vehicles that conform to FMVSS No. 208, it is not required nor able to show testing results substantiating certification with the standard.

iii. Any Testing Results Demonstrating the Vehicle's Failure To Meet the Standard

Think has not provided the results of testing demonstrating that the Think City EV has specifically failed the advanced air bag requirement. We note that generally a manufacturer would only be able to meet those requirements by installing an air bag system specifically designed to meet those requirements.

iv. Petitioner's Reasons as to Why the Vehicle Does Not Unreasonably Degrade Safety or Impact Protection

Think argues that safety and impact protection are not unreasonably degraded by the requested exemption. The petitioner claimed that the vehicle was designed, engineered and tested by Ford to meet all 2003 NHTSA requirements. It states further that the Think City EV will:

• Meet the new belted test requirements of S14.5.1(a), which imposes more stringent limits for head injury criteria, chest, and neck deflection than the old version to which the vehicle was originally designed;
• Meet the new, more stringent criteria for injury prevention under S13, with regard to the unbelted sled test;
• Have FMVSS No. 209 and 210 compliant belts and anchorages, together with pretensioners and load limiters;
• Have a passenger air bag on-off switch permitted by FMVSS No. 208; and
• Meet all other requirements of the FMVSSs.

Therefore, the petitioner argues that the Think City EV will not unreasonably degrade safety or impact protection.

c. Petitioner's Statement That a Temporary Exemption Would Facilitate the Development or Evaluation of the Think City EV

Think states that the temporary exemption it seeks would facilitate the evaluation and development of the Think City EV. The petitioner claims that it currently does not have the ability to design or acquire an air bag system that meets the advanced air bag requirements of Standard No. 208. While the Think City EV air bag's system is a dual stage system, it is currently designed with a fixed phase delay as Think does not yet have an electrical control unit or hardware, such as seat position sensing, that can meet all of the advanced air bag requirements. Think also asserts that off-the-shelf systems that meet the requirements are not currently available, and that the sourcing of a custom designed system is not straightforward or financially viable at this time.

The requested exemption will facilitate the development of the Think City EV by allowing Think to enter the U.S. market, a key target market for the vehicle at issue. Think states that this will enable the company to evaluate the vehicle, and based on this evaluation, continue development, including successive models. Specifically, Think claims that the two year exemption will permit:

• Evaluation and further development of alternative battery concepts;
• Evaluation and further development of vehicle systems based on real-world usage under U.S.-specific driving and storage conditions;
• Product evaluation through U.S. warranty analysis and customer feedback;
• Further evaluation of the company's plan to establish a U.S. manufacturing operation; and
• Development of a compliant advanced air bag system.

d. Petitioner's Statement of Intent To Comply or Cease Production Upon Expiration of the Temporary Exemption

On the third page of its petition, Think states, “[a]t the end of the exemption period, Think intends to conform with all advanced air bag requirements.”

e. Petitioner's Statement as to the Number of Vehicles To Be Produced in Any 12-Month Period Covered by the Temporary Exemption

Think has provided figures for the projected U.S. vehicle sales of the Think City EV during the period of the requested exemption. For the first year, Think projects that it will sell 500 Think City EVs. For the second year, the company projects that it will sell 2500 Think City EVs. Think stated that if the petition is granted, it undertakes not to sell in the U.S. in excess of 2500 Think City exempted vehicles during any 12-month period during the duration of the exemption.

f. Petitioner's Statement Regarding Public Interest Considerations for Granting a Temporary Exemption

Under § 555.5(b)(7), a petitioner must set forth reasons why the granting of the petition would be in the public interest and consistent with the objectives of 49 U.S.C. Chapter 301. We are providing a summary of the petitioner's arguments and note that more detailed arguments can be found by examining the petition.

Think argued that the risk to safety is de minimis. Among other things, it stated, as indicated above, that the Think City will be equipped with a standard air bag system, and will also meet all other FMVSSs.

Think also argued that the Think City is a major step forward in transportation that will help the environment, and that granting the exemption will protect U.S. consumer choice and will benefit the environment.

Think provided the following reasons battery electric vehicles (BEVs) are important:

• BEVs can reduce dependence on oil since electric power can be generated in environmentally friendly ways, including from wind, solar rays, waves, or geothermal power, and not just from fossil fuel.
• BEVs can be far more energy efficient compared to Internal Combustion Engine (ICE) powered cars. Think's analysis indicates that urban driving of a Think City compared with other fuel efficient cars reduces CO2 emissions per driver kilometer by about 96% in Norway (where electricity is generated from hydroelectric sources) and 30% in the UK, where electricity is generated primarily from fossil fuels.
• BEVs are themselves zero-emissions vehicles and are not a source of air pollution.
• BEVs recharging costs are more predictable than gasoline prices, and not as subject to volatile international incidents.

V. Issuance of Notice of Final Action

We are providing a 30-day comment period. After considering public comments and other available information, we will publish a notice of final action on the application in the Federal Register.

Issued on: September 16, 2008.

Stephen R. Kratzke,

Associate Administrator for Rulemaking.

Footnotes

1.  To view the application, go to http://www.regulations.gov and enter the docket number set forth in the heading of this document.

2.  See 65 FR 30680 (May 12, 2000).