[Federal Register Volume 78, Number 71 (Friday, April 12, 2013)]
[Rules and Regulations]
[Pages 21850-21853]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-08356]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2011-0185]
RIN 2127-AL25


Federal Motor Vehicle Safety Standards; Matters Incorporated by 
Reference

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

ACTION: Final rule; response to petition for reconsideration; technical 
corrections.

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SUMMARY: On January 6, 2012, NHTSA published a final rule updating and 
consolidating all of the references to the many standards and practices 
that are incorporated by reference into the Federal motor vehicle 
safety standards (FMVSSs). Additionally, the final rule removed an 
obsolete FMVSS, No. 208a, as well as various obsolete provisions in 
other FMVSSs.
    The agency received a petition for reconsideration of that final 
rule from the Alliance of Automobile Manufacturers. The petitioner 
asserts that the amendments to one FMVSS are not based on the latest 
version of that FMVSS and further asserts that several references to 
standards are out of date or contain minor omissions. The petitioner 
requests that technical amendments be made to address these issues.
    In response to the petition, this document amends certain 
paragraphs in FMVSS No. 202a to reflect the substantive language of the 
FMVSS in effect before the effective date of the January 6, 2012 final 
rule, with the addition of the cross-references to the

[[Page 21851]]

consolidated list of materials incorporated by reference. The agency is 
denying the other requests made in the petition. This document also 
makes technical amendments to correct minor errors in the consolidated 
list of incorporated material and some of the FMVSS sections that 
reference this list.

DATES: The effective date of this final rule is May 13, 2013. The 
incorporation by reference of certain publications listed in the rule 
is approved by the Director of the Federal Register as of February 6, 
2012.
    Petitions for reconsideration must be received by May 28, 2013.

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

FOR FURTHER INFORMATION CONTACT: You may contact William H. Shakely of 
the NHTSA Office of Chief Counsel, NCC-112, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590. 
Telephone: (202) 366-2992; Facsimile: (202) 366-3820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petition for Reconsideration and Agency's Response
    A. Amendments to FMVSS No. 202a
    B. Reference to ASTM E274-65T in FMVSS Nos. 208 and 301
    C. Clarifying Correction to 1985 Annual Book of ASTM Standards 
Citation
III. Corrections to FMVSS Nos. 121 and 209
IV. Rulemaking Analyses and Notices

I. Background

    On January 6, 2012, NHTSA published a final rule updating and 
consolidating all of the references to the many standards and practices 
that are incorporated by reference into the Federal motor vehicle 
safety standards (FMVSSs) in 49 CFR Part 571 (Part 571).\1\ Although 
this part already contained a section regarding publications 
incorporated by reference, the list in that section was incomplete and 
had not been updated regularly. Instead, in many cases, materials had 
been incorporated piecemeal into individual FMVSSs throughout Part 571. 
The January 6, 2012 final rule moved those scattered references into 
the centralized list so that it contains all of the references for the 
entire Part 571.
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    \1\ 77 FR 751 (Jan. 6, 2012); Docket No. NHTSA-2011-0185-0001.
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    Additionally, the final rule removed one obsolete FMVSS, No. 208a, 
as well as various obsolete provisions in other FMVSSs. Those 
provisions were applicable to vehicles and equipment manufactured 
before dates that had already passed and were no longer needed in the 
Code of Federal Regulations (CFR).

II. Petition for Reconsideration and Agency's Response

    The agency received a petition for reconsideration from the 
Alliance of Automobile Manufacturers (Alliance) on February 21, 
2012.\2\ The petition asserts that the amendments to one FMVSS were not 
based on the latest version of a standard incorporated by reference. 
The petition further asserts that several references to standards are 
out of date or contain minor omissions. The petition requests that 
amendments to the regulatory text be made to address these issues.
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    \2\ Alliance Petition for Reconsideration, Docket No. NHTSA-
2011-0185-0002.
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    As described below in the Rulemaking Analyses and Notices section, 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
requires agencies to review existing rules to determine if they are 
outmoded, ineffective, insufficient, or excessively burdensome. 
Pursuant to this Executive Order, the agency conducted a detailed 
review of the January 6, 2012 final rule, including the provisions 
identified by the Alliance's petition, and identified several technical 
errors that this document corrects.

A. Amendments to FMVSS No. 202a

    The Alliance petition states that FMVSS No. 202a, Head 
Restraints,\3\ was amended in a final rule published on November 2, 
2010.\4\ However, the petition asserts that the amendments to FMVSS No. 
202a in the January 6, 2012 final rule regarding incorporation by 
reference appear to be based on the regulatory text in effect before 
the effective date of the November 2, 2010 final rule. The Alliance 
requests that FMVSS No. 202a be amended to reflect the amendments made 
in the November 2, 2010 final rule.
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    \3\ There are currently two FMVSSs for head restraints: FMVSS 
No. 202, which applies to vehicles manufactured before September 1, 
2009, and FMVSS No. 202a, which applies to vehicles manufactured on 
or after September 1, 2009.
    \4\ 75 FR 67233 (Nov. 2, 2010). The effective date of this final 
rule was January 3, 2011.
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    Agency Response--The agency is granting the Alliance's request. The 
amendments made by the January 6, 2012 final rule inadvertently relied 
on out-of-date regulatory text for FMVSS No. 202a. This document amends 
the relevant paragraphs to reflect the amendments made to the standard 
by the November 2, 2010 final rule.

B. Reference to ASTM E274-65T in FMVSS Nos. 208 and 301

    The Alliance petition states that both FMVSS No. 208, Occupant 
Crash Protection, and FMVSS No. 301, Fuel System Integrity, reference 
ASTM E274-65T, ``Tentative Method of Test for Skid Resistance of 
Pavements Using a Two-Wheel Trailer.'' The Alliance asserts that ASTM 
E274-65T was a ``tentative'' test protocol at one time and has since 
been superseded, with the current version being ASTM E274/E274M-11, 
``Standard Test Method for Skid Resistance of Paved Surfaces Using a 
Full-Scale Tire.'' The Alliance requests that NHTSA update the 
appropriate references in FMVSS Nos. 208 and 301 (including the 
laboratory test procedures) and 49 CFR 571.5 to reference the current 
version of the standard.
    Agency Response--NHTSA is denying the Alliance's request to update 
the version of ASTM E274 referenced in FMVSS Nos. 208 and 301. The 
January 6, 2012 final rule made technical amendments that did not 
substantively alter or remove from Part 571 any of the existing 
incorporations by reference in that Part, except for those publications 
only referenced in the obsolete requirements that were removed from the 
CFR. For this reason, the agency determined that it was not necessary 
to provide an opportunity for public comment. However, we believe that 
the incorporation by reference of a different version of standard, like 
ASTM E274-11/E274M-11, is beyond the scope of this rulemaking and would 
likely require an opportunity for public comment. Accordingly, we are 
denying the Alliance's request.
    The agency further notes that the only rationale offered by the 
Alliance for incorporating a different version of ASTM E274 into FMVSS 
Nos. 208 and 301 is the fact that the recommended version is the 
current version of the standard. The Alliance provided neither 
comparative information regarding the different versions of the 
standard nor information on how incorporation of the current version 
would affect (or not affect) the requirements of FMVSS Nos. 208 and 
301.
    Reviewing the Alliance's request and the relevant sections of Part 
571, the agency notes that FMVSS No. 301 was not listed as one of the 
sections incorporating ASTM E274-65T by reference in the consolidated 
list of material incorporated by reference nor was a cross-reference to 
the consolidated list included in FMVSS

[[Page 21852]]

No. 301. This notice amends the relevant sections to reflect this 
incorporation by reference.

C. Clarifying Correction to 1985 Annual Book of ASTM Standards Citation

    The Alliance petition states that clarification should be provided 
for several references to the 1985 Annual Book of ASTM Standards, Vol. 
05.04, ``Test Methods for Rating Motor, Diesel, Aviation Fuels, A2. 
Reference Materials and Blending Accessories, (``ASTM Motor Fuels 
section''),'' A2.3.2, A2.3.3, and A2.7. Specifically, the Alliance 
requests that the citation in the consolidated list of material 
incorporated by reference be amended to read as follows (the underlined 
text indicates text suggested by the Alliance), Section I of the 1985 
Annual Book of ASTM Standards, Vol. 05.04, ``Test Methods for Rating 
Motor, Diesel, Aviation Fuels, A2. Reference Materials and Blending 
Accessories, (``ASTM Motor Fuels section''),'' A2.3.2, A2.3.3, and A2.7 
of Annex 2. The Alliance further requests that the citation in 
paragraph S5.1.1.1(d) of FMVSS No. 205(a) be amended to include the 
following underlined text ``A2.7 in the ASTM Motor Fuels section Annex 
2 * * *.''
    Agency Response--The agency is denying the Alliance's request to 
amend these citations. The regulations regarding incorporation by 
reference require that the language incorporating a publication by 
reference must be as precise as possible.\5\ Prior to the January 6, 
2012 final rule, the material was cited as located in ``Annex 2'' of 
``Motor Fuels, Section 1'' of the 1985 Annual Book of ASTM standards. 
However, after examining the agency's copy of the standard, the 
reference was slightly edited in the final rule to reflect precisely 
the title of the relevant material and its location.
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    \5\ 1 CFR 51.9.
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    We note that although the portion of Volume 05.04 referenced may be 
known as Annex 2 of ``Motor Fuels, Section 1''or listed as Annex 2 
elsewhere, the precise title of that portion is ``A2. Reference 
Materials and Blending Accessories.'' The citation clarifies that A2 is 
associated with the Motor Fuels section of the volume so as not to 
confuse it with the annexes to other sections (e.g., aviation fuel). 
The Alliance petition did not provide any additional information as to 
why the requested amendments were necessary to identify the material 
incorporated by reference nor did the petition identify any error or 
potential confusion associated with the amended citation. Based on the 
foregoing, the agency is denying this request.

III. Corrections to FMVSS Nos. 121 and 209

    This document adds a cross-reference to Section 571.5 in FMVSS No. 
121, Air Brake Systems, and makes minor corrections to the citation 
format of two ASTM standards incorporated by reference. This document 
also deletes an extra period in FMVSS No. 209, Seat Belt Assemblies.

IV. Rulemaking Analyses and Notices

    We have considered the impact of this rulemaking action under 
Executive Order 12866, ``Regulatory Planning and Review,'' Executive 
Order 13563, ``Improving Regulation and Regulatory Review,'' and the 
Department of Transportation's regulatory policies and procedures. This 
rulemaking document was not reviewed by the Office of Management and 
Budget under those two Executive Orders. This rule makes several minor 
changes to the regulatory text of FMVSS Nos. 121, 202a, 209, and 301, 
as well as to the consolidated list of materials incorporated by 
reference in 49 CFR 571.5. This rule does not increase the regulatory 
burden on manufacturers. It has been determined to be not 
``significant'' under Executive Order 12866 and the Department of 
Transportation's regulatory policies and procedures.
    Executive Order 13563 also requires agencies to review existing 
rules to determine if they are outmoded, ineffective, insufficient, or 
excessively burdensome. Pursuant to this Executive Order, the agency 
conducted a detailed review of the final rule, including the provisions 
identified by the Alliance's petition, and identified several 
additional technical errors that this document corrects.
    The agency has discussed the relevant requirements of the Vehicle 
Safety Act, the National Environmental Policy Act, the Regulatory 
Flexibility Act, Executive Order 13132 (Federalism), Executive Order 
12988 (Civil Justice Reform), the Unfunded Mandates Reform Act, the 
Paperwork Reduction Act, Executive Order 13045 (Protection of Children 
from Environmental Health and Safety Risks), the National Technology 
Transfer and Advancement Act, and Executive Order 13211(Energy 
Effects), as applicable, in the underlying substantive rules 
establishing and amending the various sections of Part 571. Those 
discussions are not affected by these amendments.

Effective Date

    We are making the amendments effective 30 days after publication of 
this document. Section 30111(d) of title 49, United States Code, 
provides that a FMVSS may not become effective before the 180th day 
after the standard is prescribed or later than one year after it is 
prescribed except when a different effective date is, for good cause 
shown, in the public interest. These amendments do not impose new 
requirements on manufacturers, but instead make amendments to the 
regulatory text of several FMVSSs and the list of materials 
incorporated by reference to correct minor errors. Therefore, good 
cause exists for these amendments to be made effective before the 180th 
day after issuance of this final rule.

Regulatory 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.

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.regulations.gov.

List of Subjects in 49 CFR Part 571

    Imports, Incorporation by reference, 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

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

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.95.


0
2. Amend Sec.  571.5 by revising paragraph (d)(28) to read as follows:

[[Page 21853]]

Sec.  571.5  Matter incorporated by reference.

* * * * *
    (d) * * *
    (28) ASTM E274-65T, ``Tentative Method of Test for Skid Resistance 
of Pavements Using a Two-Wheel Trailer,'' issued 1965, into Sec. Sec.  
571.208; 571.301.
* * * * *

0
3. Amend Sec.  571.121 by revising paragraph S5.3.6.1 to read as 
follows:


Sec.  571.121  Standard No. 121; Air brake systems.

* * * * *
    S5.3.6.1 Using a full-treadle brake application for the duration of 
the stop, stop the vehicle from 30 mph or 75 percent of the maximum 
drive-through speed, whichever is less, on a 500-foot radius curved 
roadway with a wet level surface having a peak friction coefficient of 
0.5 when measured on a straight or curved section of the curved roadway 
using an ASTM E1136-93 (Reapproved 2003) (incorporated by reference, 
see Sec.  571.5) standard reference tire, in accordance with ASTM 
E1337-90 (Reapproved 2008) (incorporated by reference, see Sec.  
571.5), at a speed of 40 mph, with water delivery.
* * * * *

0
4. Amend Sec.  571.202a by revising paragraph S5 and paragraph S5.3.4 
to read as follows:


Sec.  571.202a  Standard No. 202a; Head restraints; Mandatory 
applicability begins on September 1, 2009.

* * * * *
    S5 Procedures. Demonstrate compliance with S4.2 through S4.4 of 
this section as follows. The positions of seat adjustment specified in 
S5 and S5.1 are conditions to be met concurrently and are not a 
sequential list of adjustments. Any adjustable lumbar support is 
adjusted to its most posterior nominal design position. If the seat 
cushion adjusts independently of the seat back, position the seat 
cushion such that the highest H-point position is achieved with respect 
to the seat back, as measured by SAE Standard J826 JUL95 (incorporated 
by reference, see Sec.  571.5) manikin, with leg length specified in 
S10.4.2.1 of Sec.  571.208 of this Part. If the specified position of 
the H-point can be achieved with a range of seat cushion inclination 
angles, adjust the seat inclination such that the most forward part of 
the seat cushion is at its lowest position with respect to the most 
rearward part. All tests specified by this standard are conducted with 
the ambient temperature between 18 degrees C. and 28 degrees C.
* * * * *
    S5.3.4 Seat Adjustment. The following seat adjustments specify 
conditions to be met concurrently and are not a sequential list of 
adjustments. At each outboard designated seating position, using any 
control that primarily moves the entire seat vertically, place the seat 
in the lowest position. Using any control that primarily moves the 
entire seat in the fore and aft directions, place the seat midway 
between the forwardmost and rearmost position. If an adjustment 
position does not exist midway between the forwardmost and rearmost 
positions, the closest adjustment position to the rear of the midpoint 
is used. Adjust the seat cushion and seat back as required by S5 of 
this section. If the seat back is adjustable, it is set at an 
inclination position closest to 25 degrees from the vertical, as 
measured by SAE Standard J826 JUL95 (incorporated by reference, see 
Sec.  571.5) manikin. If there is more than one inclination position 
closest to 25 degrees from the vertical, set the seat back inclination 
to the position closest to and rearward of 25 degrees. If the head 
restraint is adjustable, adjust the top of the head restraint to a 
position midway between the lowest position of adjustment and the 
highest position of adjustment. If an adjustment position midway 
between the lowest and the highest position does not exist, adjust the 
head restraint to a position below and nearest to midway between the 
lowest position of adjustment and the highest position of adjustment.
* * * * *

0
5. Amend Sec.  571.209 by revising the introductory text of paragraph 
S5.2(j)(2)(iii) to read as follows:


Sec.  571.209  Standard No. 209; Seat belt assemblies.

* * * * *
    S5.2 * * *
    (j) * * *
    (2) * * *
    (iii) Dynamic tests: Each acceleration pulse shall be recorded 
using an accelerometer having a full scale range of 10 g 
and processed according to the practices set forth in SAE Recommended 
Practice J211-1 DEC2003 (incorporated by reference, see Sec.  571.5) 
Channel Frequency Class 60. The webbing shall be positioned at 75 
percent extension, and the displacement shall be measured using a 
displacement transducer. For tests specified in S5.2(j)(2)(iii)(A) and 
(B), the 0.7 g acceleration pulse shall be within the acceleration-time 
corridor shown in Figure 8 of this standard.
* * * * *

0
6. Amend Sec.  571.301 by revising paragraph S7.5.4 to read as follows:


Sec.  571.301  Standard No. 301; Fuel system integrity.

* * * * *
    S7.5.4 The concrete surface upon which the vehicle is tested is 
level, rigid, and of uniform construction, with a skid number of 75 
when measured in accordance with ASTM E274-65T (incorporated by 
reference, see Sec.  571.5) at 64 km/h, omitting water delivery as 
specified in paragraph 7.1 of that method.
* * * * *

    Issued on: April 4, 2013.
Christopher J. Bonanti,
Associate Administrator for Rulemaking.
[FR Doc. 2013-08356 Filed 4-11-13; 8:45 am]
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