Spyker Automobielen B.V.; Receipt of Application for Temporary Exemption from FMVSS No. 126 |
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Topics: National Highway Traffic Safety Administration, Spyker
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Christopher J. Bonanti
Federal Register
August 10, 2011
[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Notices]
[Pages 49533-49536]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-20283]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2011-0114]
Spyker Automobielen B.V.; Receipt of Application for Temporary
Exemption from FMVSS No. 126
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of receipt of petition for a temporary exemption from
Federal Motor Vehicle Safety Standard (FMVSS) No. 126, Electronic
Stability Control Systems.
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SUMMARY: In accordance with the procedures in 49 CFR Part 555, Spyker
Automobielen B.V. (Spyker) has applied for a temporary exemption for
its C line of vehicles from the requirements of FMVSS No. 126, the
standard for electronic stability control systems. The basis of the
application is that compliance would cause substantial economic
hardship to a manufacturer that has tried in good faith to comply with
the standard.
NHTSA is publishing this notice of receipt of the application in
accordance with the requirements of 49 U.S.C. 30113(b)(2), and has made
no judgment on the merits of the application.
DATES: You should submit your comments not later than August 25, 2011.
FOR FURTHER INFORMATION CONTACT: Thomas Healy, Office of the Chief
Counsel, NCC-112, National Highway Traffic Safety Administration, 1200
New Jersey Avenue, SE., West Building 4th Floor, Room W41-212,
Washington, DC 20590. Telephone: (202) 366-2992; Fax: (202) 366-3820.
Comments: We invite you to submit comments on the application
described above. You may submit comments identified by the 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: 1-202-493-2251.
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.
[[Page 49534]]
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. Please see the Privacy Act discussion below. We
will consider all comments received before the close of business on the
comment closing date indicated above. To the extent possible, we will
also consider comments filed after the closing date.
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: (202) 366-9826.
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).
SUPPLEMENTARY INFORMATION:
I. Overview of Petition for Economic Hardship Exemption
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR
Part 555, Temporary Exemption from Motor Vehicle Safety and Bumper
Standards, Spyker has submitted a petition (dated November 19, 2010)
asking the agency for a temporary exemption from the requirements of
FMVSS No. 126, Electronic Stability Control Systems, for its C line of
vehicles. The basis for the application is that compliance would cause
substantial economic hardship to a manufacturer that has tried in good
faith to comply with the standard.
NHTSA established part 555 to implement the statutory provisions
concerning temporary exemptions. Vehicle manufacturers may apply for
temporary exemptions from Federal motor vehicle safety standards on
several bases, one of which is that compliance would cause substantial
economic hardship to a manufacturer that has tried in good faith to
comply with the standard.
A manufacturer is eligible to apply for a hardship exemption if its
total motor vehicle production in its most recent year of production
did not exceed 10,000 vehicles, as determined by the NHTSA
Administrator (49 U.S.C. 30113).
A petitioner must provide specified information in submitting a
petition for exemption. Foremost among these requirements are that the
petitioner must set forth the basis of the application under 49 CFR
555.6, and the reasons why the exemption would be in the public
interest and, as applicable, consistent with the objectives of the
National Traffic and Motor Vehicle Safety Act (Safety Act), 49 U.S.C.
Chapter 301. In a petition for economic hardship, the petitioner must
explain in detail ``how compliance or failure to obtain an exemption
would cause substantial economic hardship.'' 49 CFR 555.6(a)(1). The
petition must also describe the efforts of the petitioner to comply
with the standard at issue.
The agency closely examines and considers the information provided
by manufacturers in support of these factors, and, in addition,
pursuant to 49 U.S.C. 30113(b)(3)(A), determines whether an exemption
is in the public interest and consistent with the Safety Act. Spyker
requests a temporary exemption until September 1, 2013. Copies of
Spyker's petition \1\ are available for review and have been placed in
the docket for this notice.
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\1\ Spyker has requested confidential treatment under 49 CFR
Part 512 for certain business and financial information submitted as
part of its petition for temporary exemption. Accordingly, the
information placed in the docket does not contain the information
that is the subject of this request.
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II. Electronic Stability Control Systems Requirements
NHTSA published a final rule requiring that vehicles with a gross
vehicle weight rating of 4,536 kilograms (kg) (10,000 pounds) and less
be equipped with electronic stability control (ESC) in April of 2007.
The rule seeks to reduce the risk of rollover crashes by assisting the
driver in maintaining control of his or her vehicle in situations in
which the vehicle begins to lose directional stability at the rear
wheels (spin out) or directional control at the front wheels (plow
out).
Preventing single-vehicle loss-of control crashes is the most
effective way to reduce deaths resulting from rollover crashes. NHTSA's
crash data study shows that ESC systems reduce fatal single-vehicle
crashes of passenger cars by 36 percent and fatal single-vehicle
crashes of LTVs (light trucks and vans, including pickup trucks, SUVs,
minivans, and full-size vans) by 63 percent.\2\ The agency further
estimates that ESC has the potential to prevent 70 percent of the fatal
passenger car rollovers and 88 percent of the fatal LTV rollovers that
would otherwise occur in single-vehicle crashes.\3\
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\2\ Dang, J., Statistical Analysis of the Effectiveness of
Electronic Stability Control (ESC) Systems--Final Report, DOT HS 810
794, U.S. Department of Transportation, Washington, DC (July 2007).
Available at Docket No. NHTSA-2007-28629, item 2.
\3\ Id.
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ESC utilizes automatic computer-controlled braking of the
individual wheels of the vehicle in order to assist the driver in
maintaining vehicle control. An anti-lock brake system (ABS) is a
prerequisite for an ESC system because ESC uses many of the same
components as ABS. Thus, the cost of complying with FMVSS No. 126 is
less for vehicle models already equipped with ABS. The ESC requirement
becomes effective as to Spyker September 1, 2011.
III. Spyker's Petition
Spyker bases its request for exemption on the argument that
compliance with FMVSS No. 126 ``would cause substantial economic
hardship to a manufacturer that has tried to comply with the standard
in good faith.'' 49 U.S.C. 30113(b)(3)(B)(i). Spyker requests that the
exemption period begin on September 1, 2011 and extend 24 months until
September 1, 2013.
A. Eligibility
A manufacturer is eligible to apply for a hardship exemption if its
total motor vehicle production in its most recent year of production
did not exceed
[[Page 49535]]
10,000 vehicles, as determined by the NHTSA Administrator (49 U.S.C.
30113(d)). In determining whether a manufacturer of a vehicle meets
that criterion, NHTSA considers whether a second vehicle manufacturer
also might be deemed the manufacturer of that vehicle. The statutory
provisions governing motor vehicle safety (49 U.S.C. Chapter 301) do
not state that a manufacturer has substantial responsibility as
manufacturer of a vehicle simply because it owns or controls a second
manufacturer that assembled that vehicle. However, the agency considers
the statutory definition of ``manufacturer'' (49 U.S.C. 30102) to be
sufficiently broad to include sponsors, depending on the circumstances.
NHTSA has stated that a manufacturer may be deemed to be a sponsor and
thus a manufacturer of a vehicle assembled by a second manufacturer if
the first manufacturer had a substantial role in the development and
manufacturing process of that vehicle.
Spyker Automobielen B.V. is a small volume manufacturer of luxury
sports cars. Since 2005, Spyker Automobielen B.V. has manufactured less
than 100 vehicles annually worldwide, and the company projects that it
will manufacture 103 vehicles in 2011. However, the petition states
that Spyker Automobielen B.V. is a wholly owned subsidiary of Spyker
Cars NV, a publicly traded Netherlands corporation. Spyker Cars NV also
owns Saab Automobile AG, a large Swedish car manufacturer. Spyker
asserts that Spyker Automobielen B.V. is financially and operationally
independent from Saab Automobile AG and that, based on past NHTSA
determinations regarding the issue of sponsorship, Spyker Automobielen
B.V. remains eligible for a temporary exemption based on economic
hardship.
Since filing its petition, Spyker has informed the agency that
Spyker Cars NV plans to sell Spyker Automobielen B.V. to CPP Global
Holdings, a private holding company in the United Kingdom. Because of
the relationship between Spyker Automobielen B.V., Spyker Cars NV, and
Saab Automobile AG, and, in light of the plans to sell Spyker
Automobielen B.V. to CPP Global Holdings, NHTSA will closely examine
whether Spyker is eligible for a financial hardship exemption. NHTSA
specifically requests comments on the issue of Spyker's eligibility.
B. Substantial Economic Hardship
Spyker states that it is suffering financial hardship because of
lower than anticipated sales volumes due to the recent world wide
economic recession. Specifically, Spyker suffered a net operating loss
of approximately 132,000,000 Euros ($171,600,000) \4\ from 2004 to
2009. Spyker projected a further loss in 2010 of 12,000,000 Euros
($15,600,000). Based on 2011-2013 financial projections, Spyker
estimates that, if its petition were denied, it would bear a loss over
three years of more than 41,000,000 Euros ($53,300,000) as opposed to
an 8,000,000 Euros ($10,400,000) loss should the petition be granted,
representing a difference of 33,000,000 Euros ($42,900,000). Spyker
also states that the loss of sales in the U.S. that would result if the
exemption petition were denied could not be made up in the rest of the
world because the U.S. is the largest and most important market for the
vehicle. Spyker argues that such consequences demonstrate ``substantial
economic hardship'' within the meaning of 49 U.S.C. 30113(b)(3)(B)(i).
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\4\ All dollar values are based on an exchange rate of 1 Euro =
$1.30.
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C. Good Faith Efforts To Comply
Spyker states that in 2008 it began working with Bosch Engineering,
GmbH (Bosch) to develop an ESC system for the Spyker C line and D line
models. Spyker states that in order to develop an ESC system, it first
had to develop a new ABS system. In an effort to achieve compliance
with FMVSS No. 126, Spyker has developed a vehicle to test its new ABS
system and created a new ABS software package. Under its original
testing schedule, Spyker planned to complete development of the ABS/ESC
system before the September 1, 2011 compliance date of FMVSS No. 126.
However, due to the drop in sales resulting from the global economic
recession, Spyker did not have funds available to continue ESC
development as planned.
Spyker states that its inability to commence testing in 2010
delayed its development schedule for ESC because it will have to wait
an additional year for winter conditions necessary to test ESC.\5\
Spyker states that it has spent 781,000 Euros ($1,015,300) developing
an ESC system thus far. Spyker states that it will likely not have
sufficient funds to continue work on its ESC system until the end of
2011. Spyker states that it will be able to have a test vehicle
completed by the end of 2012 and an ESC system fully developed by 2013.
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\5\ Spyker states that it does not have the available financial
resources to travel to other parts of the world to conduct winter
testing and thus must wait for winter in Europe to complete ESC
testing.
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D. Public Interest
The petitioner put forth several arguments in favor of a finding
that the requested exemption is consistent with the public interest and
would not have a significant adverse impact on safety. Specifically:
1. Spyker states that the exempted vehicles will comply with all
FMVSSs other than the advanced airbag requirements of FMVSS No. 208,
Occupant crash protection, and the standard that is the subject of this
exemption request.\6\
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\6\ Spyker also submitted a request for an extension of its
previously granted exemption from compliance with the advanced air
bag requirements of FMVSS No. 208 on October 13, 2010.
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2. The petitioner states that an exemption will benefit U.S.
employment and U.S. companies because Spyker vehicles are distributed
by a U.S. company, Spyker of North America, and are sold and serviced
in the U.S. through a network of 18 dealers. Spyker argues that the
denial of this exemption will negatively impact these companies.
3. Spyker argues that if the exemption is not granted, U.S.
consumer choice would be harmed and that the agency has long maintained
that the Safety Act seeks, if possible, to avoid limiting consumer
choice.
4. The petitioner argues that given their exotic design and high-
performance nature, the C line vehicles are not expected to be used
extensively, nor are they expected to carry children with any
significant frequency.
IV. Issuance of Notice of Final Action
Upon receiving a petition, NHTSA conducts an initial review of the
petition with respect to whether the petition is complete and whether
the petitioner appears to be eligible to apply for the requested
petition. The agency has tentatively concluded that the petition is
complete and that the petitioner is eligible to apply for the requested
exemption. The agency has not made any judgment on the merits of the
application and is placing a non-confidential copy of the petition in
the docket.
We are providing a 15-day comment period in an effort to provide a
decision with respect to the petition before the September 1, 2011
compliance date for FMVSS No. 126. After considering public comments
and other available information, we will publish a notice of final
action on the application in the Federal Register.
[[Page 49536]]
Issued on: August 5, 2011.
Christopher J. Bonanti,
Associate Administrator for Rulemaking.
[FR Doc. 2011-20283 Filed 8-9-11; 8:45 am]
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