[Federal Register Volume 77, Number 233 (Tuesday, December 4, 2012)]
[Rules and Regulations]
[Pages 71717-71720]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-29284]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2012-0171]
RIN 2127-AK99
Federal Motor Vehicle Safety Standards; Lamps, Reflective
Devices, and Associated Equipment
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: NHTSA is amending the Federal motor vehicle safety standard
(FMVSS) on lamps, reflective devices, and associated equipment to
restore the blue and green color boundaries that were removed when the
agency published a final rule reorganizing that standard on December 4,
2007.
DATES: Effective date: December 4, 2012.
Petitions for reconsideration: Petitions for reconsideration of
this final rule must be received not later than January 18, 2013.
ADDRESSES: Any petitions for reconsideration should refer to the docket
number of this document and be submitted to: Administrator, National
Highway Traffic Safety Administration, 1200 New Jersey Avenue SE, West
Building, Ground Floor, Docket Room W12-140, Washington, DC 20590.
FOR FURTHER INFORMATION CONTACT: For technical issues: Ms. Marisol
Medri, Office of Crash Avoidance Standards, NHTSA, 1200 New Jersey
Avenue SE, West Building, Washington, DC 20590 (Telephone: (202) 366-
6987) (Fax: (202) 366-7002).
For legal issues: Mr. Thomas Healy, Office of the Chief Counsel,
NHTSA, 1200 New Jersey Avenue SE, West Building, Washington, DC 20590
(Telephone: (202) 366-2992) (Fax: (202) 366-3820).
SUPPLEMENTARY INFORMATION:
I. Background
FMVSS No. 108, Lamps, Reflective Devices and Associated Equipment,
has been in existence since 1968. The standard had been amended on an
ad hoc basis over time resulting in a patchwork organization of the
standard. NHTSA published a final rule on December 4, 2007,\1\ amending
FMVSS No. 108 by reorganizing the regulatory text so that it provides a
more straightforward and logical presentation of the applicable
regulatory requirements; incorporating important agency interpretations
of the existing requirements; and reducing reliance on third-party
documents incorporated by reference. The preamble of the final rule
stated that the rewrite of FMVSS No. 108 was administrative in nature
and would have no impact on the substantive requirements of the
standard. The December 4, 2007 final rule made several changes to the
proposal contained in the Notice of Proposed Rulemaking for that rule
including removing the blue and green color boundary requirements from
paragraph S14.4.1.3.2 and eliminating references to three additional
SAE documents.
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\1\ 72 FR 68234, (Dec. 4, 2007). The agency published the Notice
of Proposed Rulemaking proposing to reorganize the standard on
December 30, 2005. 70 FR 77454, (Dec. 30, 2005).
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[[Page 71718]]
SABIC Innovative Plastics US LLC (SABIC-IP) sent a letter to NHTSA
on August 11, 2008, after the final rule comment period was over. In
this letter, SABIC-IP stated that the agency did not allow for public
comment when it made the decision to remove the blue and green color
boundaries from the standard. SABIC-IP further stated that in removing
the blue and green color boundaries from paragraph S14.4.1.3.2, the
agency substantively changed the requirements of FMVSS No. 108 during
the rewrite process. On July 13, 2011, NHTSA published a NPRM \2\
initiating this rulemaking to replace the color boundaries that were
removed during the administrative rewrite of the standard.
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\2\ 76 FR 41181, (July 13, 2011).
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In the NPRM, the agency explained that while neither blue nor green
are directly permitted by the standard, it is possible to use these
color boundaries to certify a material to the outdoor exposure test.
Once individually certified to the three year outdoor exposure test,
the blue and clear material could be mixed to produce a clear material
with a blue tint, which could then be used in a lamp lens provided the
lamp itself emits light within the white color boundary. Under the
standard, the mixed material can be certified to the outdoor exposure
test without an additional three years of testing. The pre-rewrite
version of the standard contained two tests for determining compliance
with the color requirements in the standard, the Visual Method or the
Tristimulus Method. The blue and green color boundary definitions that
were removed are part of the color requirements of the Tristimulus
method procedure. The NPRM proposed to amend FMVSS No. 108 to restore
the color boundary definitions for green, restricted blue and signal
blue so that the requirements of the rewrite coincide with those of the
old standard.
II. Public Comments on NPRM
NHTSA received four public comments in response to the Notice of
Proposed Rulemaking for this rulemaking.\3\ All of the comments
supported reinstating the color boundary definitions for green,
restricted blue and signal blue to FMVSS No. 108.
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\3\ The Alliance of Automobile Manufacturers, SABIC-IP and two
private individuals submitted comments in response to the NPRM.
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The Alliance of Automobile Manufacturers (the ``Alliance'')
supported the rulemaking but stated that the agency omitted the color
requirements for green and blue when tested according to the visual
method. The Alliance claimed that these requirements from SAE J578c
Color Specification for Electric Signal Lighting Devices, (FEB 1977)
(the third party standard from which the color boundaries were derived)
were incorporated into the NPRM proposing the reorganization of the
standard but were not incorporated into the December 4, 2007 Final
Rule. The Alliance recommended that these requirements be reinstated
into the standard as sections 14.4.1.3.2.4 and 14.4.1.3.2.5.
SABIC-IP submitted a comment urging the agency to restore the green
and blue color boundaries to FMVSS No. 108. SABIC-IP also requested
that the agency clarify that polymers and additives would not have to
be retested to the three year outdoor exposure test after the effective
date of the administrative rewrite before being combined to create new
materials. SABIC-IP stated that the rewrite of the standard creates
ambiguity as to whether combinations of individually certified
materials can continue to be mixed to create new material and then
certified to the outdoor exposure test without an additional three
years of testing as was permitted under the pre-write version of the
standard. SABIC-IP requested that NHTSA amend paragraph S14.4.2.2.2 to
state that materials and additives used in plastics could be changed
without outdoor exposure testing if the materials had previously been
tested to FMVSS No. 108 and found to meet the requirements. Paragraph
S14.4.2.2.2 currently states that materials and additives used in
plastics can be changed without outdoor exposure testing if the
materials have previously been tested to ``this section'' and found to
meet the requirements. SABIC-IP believes that it is possible to
interpret the use of the words ``this section'' in paragraph
S14.4.2.2.2 to require that materials be retested to the outdoor
exposure test in the new paragraph S14.4.2.2.2, published in December
2007, before they can be used to create new materials. SABIC-IP stated
that this interpretation would go against the stated goal of the
rewrite of the standard to refrain from making any substantive change
to the requirements.
SABIC-IP also asked the agency to clarify that the lower
concentration of additive of previously tested materials used to create
a new material according to S14.4.2.2.2 paragraph can be represented by
a composition of zero.
III. Agency Decision
Since it was not the agency's intention to create any substantive
modifications to the standard, we have decided to amend FMVSS No. 108
to add the color boundary definitions for green, restricted blue and
signal blue to the Tristimulus method procedure as proposed in the NPRM
and to include the two missing color requirements from the visual
method procedure so that the requirements of the rewrite coincide with
those of the old standard.
We have decided not to amend paragraph S14.4.2.2.2 of FMVSS No. 108
as requested by SABIC-IP over the course of the rewrite rulemaking. We
attempted, where ever possible, to avoid changes to the language of the
standard. We note that the phrase ``this section'' refers to the
requirements of paragraph S14.4.2.2 in general, not to a specific
version of the standard. Thus, so long as the additives and polymers
have previously been tested to and found to comply with the same
substantive requirements as they appear in FMVSS No. 108, they can be
added to create new materials without additional outdoor exposure
testing. However, if the requirements of S14.4.2.2 were changed,
previously tested additives and polymers would no longer have been
tested to ``this section'' and would have to be retested to the outdoor
exposure test before being used to create new materials under paragraph
S14.4.2.2.2.
The agency will respond to SABIC-IP's comment about the lower
concentration of additive used to create new materials being
represented by a composition of zero in a letter of interpretation from
the NHTSA Office of Chief Counsel.
IV. Effective Date
The National Highway and Motor Vehicle Safety Act states that an
FMVSS issued by NHTSA cannot become effective before 180 days after the
standard is issued unless the agency makes a good cause finding that a
different effective date is in the public interest. Additionally, the
Administrative Procedure Act (5 U.S.C. 553(d)) requires that a rule be
published 30 days prior to its effective date unless one of three
exceptions applies. One of these exceptions is when the agency finds
good cause for a shorter period. We have determined that it is in the
public interest for this final rule to have an immediate effective date
so that the effective date of this final rule coincides as closely as
possible with the effective date of the 2007 rewrite of the standard.
An effective date for this final rule that
[[Page 71719]]
closely coincides with the 2007 rewrite of the standard will ensure
that the requirements of FMVSS No. 108 remain consistent so as to avoid
unnecessary changes in the requirements of the standard that would
force regulated parties to change their compliance strategies,
potentially imposing costs on manufacturers while not improving safety.
V. Regulatory Notices and Analyses
A. Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
NHTSA has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the DOT's regulatory
policies and procedures. This final rule was not reviewed by the Office
of Management and Budget (OMB) under E.O. 12866, ``Regulatory Planning
and Review.'' It is not considered to be significant under E.O. 12866
or the Department's regulatory policies and procedures.
This Final Rule restores existing requirements to the standard
thereby maintaining flexibility in compliance for manufacturers who
choose to use these colors to certify materials to the outdoor exposure
test. Because this Final Rule merely restores existing requirements it
is not expected to have any costs. The agency expects some minor
unquantifiable benefits to manufacturers due to the continued
availability of the green and blue color boundaries to certify to the
outdoor exposure test. Because there are not any costs associated with
this rulemaking and only minor unquantifiable benefits, we have not
prepared a separate economic analysis for this rulemaking.
B. Executive Order 13609: Promoting International Regulatory
Cooperation
The policy statement in section 1 of Executive Order 13609
provides, in part:
The regulatory approaches taken by foreign governments may
differ from those taken by U.S. regulatory agencies to address
similar issues. In some cases, the differences between the
regulatory approaches of U.S. agencies and those of their foreign
counterparts might not be necessary and might impair the ability of
American businesses to export and compete internationally. In
meeting shared challenges involving health, safety, labor, security,
environmental, and other issues, international regulatory
cooperation can identify approaches that are at least as protective
as those that are or would be adopted in the absence of such
cooperation. International regulatory cooperation can also reduce,
eliminate, or prevent unnecessary differences in regulatory
requirements.
NHTSA is not aware of any conflicting regulatory approach taken by a
foreign government concerning the subject matter of this rulemaking.
C. Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act, 5 U.S.C. 60l et
seq., NHTSA has evaluated the effects of this action on small entities.
I hereby certify that this rule would not have a significant impact on
a substantial number of small entities. The final rule would affect
manufacturers of motor vehicle light equipment, but the entities that
qualify as small businesses would not be significantly affected by this
rulemaking because the agency is restoring requirements that previously
existed in an older version of the regulation. This rulemaking is not
expected to affect the cost of manufacturing motor vehicle lighting
equipment.
D. Executive Order 13132
NHTSA has examined today's 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 rulemaking would not have sufficient federalism implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The final rule would 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 responsibilities among the various levels of government.''
NHTSA rules can preempt in two ways. First, the National Traffic
and Motor Vehicle Safety Act contains an express preemption provision:
``When a motor vehicle safety standard is in effect under this chapter,
a State or a political subdivision of a State may prescribe or continue
in effect a standard applicable to the same aspect of performance of a
motor vehicle or motor vehicle equipment only if the standard is
identical to the standard prescribed under this chapter.'' 49 U.S.C.
30103(b)(1). It is this statutory command by Congress that preempts any
non-identical State legislative and administrative law addressing the
same aspect of performance.
The express preemption provision set forth above is subject to a
savings clause under which ``[c]ompliance with a motor vehicle safety
standard prescribed under this chapter does not exempt a person from
liability at common law.'' 49 U.S.C. 30103(e) Pursuant to this
provision, State common law tort causes of action against motor vehicle
manufacturers that might otherwise be preempted by the express
preemption provision are generally preserved. However, the Supreme
Court has recognized the possibility, in some instances, of implied
preemption of such State common law tort causes of action by virtue of
NHTSA's rules, even if not expressly preempted. This second way that
NHTSA rules can preempt is dependent upon there being an actual
conflict between an FMVSS and the higher standard that would
effectively be imposed on motor vehicle manufacturers if someone
obtained a State common law tort judgment against the manufacturer,
notwithstanding the manufacturer's compliance with the NHTSA standard.
Because most NHTSA standards established by an FMVSS are minimum
standards, a State common law tort cause of action that seeks to impose
a higher standard on motor vehicle manufacturers will generally not be
preempted. However, if and when such a conflict does exist--for
example, when the standard at issue is both a minimum and a maximum
standard--the State common law tort cause of action is impliedly
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
Pursuant to Executive Order 13132 and 12988, NHTSA has considered
whether this rule could or should preempt State common law causes of
action. The agency's ability to announce its conclusion regarding the
preemptive effect of one of its rules reduces the likelihood that
preemption will be an issue in any subsequent tort litigation.
To this end, the agency has examined the nature (e.g., the language
and structure of the regulatory text) and objectives of today's rule
and finds that this rule, like many NHTSA rules, prescribes only a
minimum safety standard. As such, NHTSA does not intend that this rule
preempt state tort law that would effectively impose a higher standard
on motor vehicle manufacturers than that established by today's rule.
Establishment of a higher standard by means of State tort law would not
conflict with the minimum standard announced here. Without any
conflict, there could not be any implied preemption of a State common
law tort cause of action.
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 would not have any
[[Page 71720]]
significant impact on the quality of the human environment.
F. Paperwork Reduction Act
Under the procedures established by the Paperwork Reduction Act of
1995, a person is not required to respond to a collection of
information by a Federal agency unless the collection displays a valid
OMB control number. This final rule would not establish any new
information collection requirements.
G. National Technology Transfer and Advancement Act
Under the National Technology Transfer and Advancement Act of 1995
(NTTAA) (Public Law 104-113), ``all Federal agencies and departments
shall use technical standards that are developed or adopted by
voluntary consensus standards bodies, using such technical standards as
a means to carry out policy objectives or activities determined by the
agencies and departments.'' This Final Rule would not adopt or
reference any new industry or consensus standards that were not already
present in FMVSS No. 108.
H. Civil Justice Reform
With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729, February 7, 1996) requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) adequately
defines key terms; and (6) addresses other important issues affecting
clarity and general draftsmanship under any guidelines issued by the
Attorney General. This document is consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The preemptive
effect of this final rule 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 in court.
I. 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
(adjusted for inflation with base year of 1995). This final rule would
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. Executive Order 13211
Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any
rulemaking that: (1) Is determined to be economically significant as
defined under E.O. 12866, and is likely to have a significantly adverse
effect on the supply of, distribution of, or use of energy; or (2) that
is designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action. This rulemaking is
not subject to E.O. 13211.
K. 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.
L. 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 (70 FR 19477-19478).
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, and Tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as
set forth below.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
1. The authority citation for Part 571 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
0
2. Section 571.108 is amended by adding paragraphs S14.4.1.3.2.4,
S14.4.1.3.2.5, S14.4.1.4.2.4, S14.1.4.2.5, and S14.4.1.4.2.6 to read as
follows:
Sec. 571.108 Standard No.108; Lamps, reflective devices, and
associated equipment.
* * * * *
S14.4.1.3.2.4 Green. Green is not acceptable if it is less
saturated (paler), yellower, or bluer than the limit standards.
S14.4.1.3.2.5 Blue. Blue is not acceptable if it is less saturated
(paler), greener, or redder than the limit standards.
* * * * *
S14.4.1.4.2.4 Green. The color of light emitted must fall within
the following boundaries:
y = 0.73 - 0.73x (yellow boundary)
x = 0.63y - 0.04 (white boundary)
y = 0.50 - 0.50x (blue boundary)
S14.4.1.4.2.5 Restricted Blue. The color of light emitted must fall
within the following boundaries:
y = 0.07 + 0.81x (green boundary)
x = 0.40 - y (white boundary)
x = 0.13 + 0.60y (violet boundary)
S14.4.1.4.2.6 Signal Blue. The color of light emitted must fall
within the following boundaries:
y = 0.32 (green boundary)
x = 0.16 (white boundary)
x = 0.40 - y (white boundary)
x = 0.13 + 0.60y (violet boundary)
* * * * *
Issued on: November 28, 2012.
David L. Strickland,
Administrator.
[FR Doc. 2012-29284 Filed 12-3-12; 8:45 am]
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