Tesla Motors, Inc.; Grant of Petition for Temporary Exemption From the Electronic Stability Control Requirements of FMVSS No. 126 |
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Topics: National Highway Traffic Safety Administration, Tesla Roadster
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David L. Strickland
Federal Register
September 28, 2011
[Federal Register Volume 76, Number 188 (Wednesday, September 28, 2011)]
[Notices]
[Pages 60124-60127]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-24899]
[[Page 60124]]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2011-0110]
Tesla Motors, Inc.; Grant of Petition for Temporary Exemption
From the Electronic Stability Control Requirements of FMVSS No. 126
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of grant of a petition for temporary exemption from
Federal Motor Vehicle Safety Standard (FMVSS) No. 126, Electronic
Stability Control Systems.
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SUMMARY: This notice grants the petition of Tesla Motors, Inc. (Tesla)
for the temporary exemption of its Roadster model from the electronic
stability control requirements of FMVSS No. 126. The basis for the
exemption is that the exemption would facilitate the development or
field evaluation of a low-emission motor vehicle and would not
unreasonably reduce the safety level of that vehicle.
DATES: The exemption is effective September 28, 2011, and remains in
effect until November 7, 2011.
FOR FURTHER INFORMATION CONTACT: David Jasinski, 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: (202) 366-2992; Fax: (202) 366-3820.
SUPPLEMENTARY INFORMATION:
I. Statutory Basis for Temporary Exemptions
The National Traffic and Motor Vehicle Safety Act (Safety Act),
codified as 49 U.S.C. Chapter 301, authorizes the Secretary of
Transportation to exempt, on a temporary basis and under specified
circumstances, motor vehicles from a motor vehicle safety standard or
bumper standard. This authority is set forth at 49 U.S.C. 30113. The
Secretary has delegated the authority in this section to NHTSA.
NHTSA established 49 CFR part 555, Temporary Exemption from Motor
Vehicle Safety and Bumper Standards, to implement the statutory
provisions concerning temporary exemptions. A vehicle manufacturer
wishing to obtain an exemption from a standard must demonstrate in its
application (A) That an exemption would be in the public interest and
consistent with the Safety Act and (B) that the manufacturer satisfies
one of the following four bases for an exemption: (i) Compliance with
the standard would cause substantial economic hardship to a
manufacturer that has tried to comply with the standard in good faith;
(ii) the exemption would make easier the development or field
evaluation of a new motor vehicle safety feature providing a safety
level at least equal to the safety level of the standard; (iii) the
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the
safety level of that vehicle; or (iv) compliance with the standard
would prevent the manufacturer from selling a motor vehicle with an
overall safety level at least equal to the overall safety level of
nonexempt vehicles.
For an exemption petition to be granted on the basis that the
exemption would make the development or field evaluation of a low-
emission motor vehicle easier and would not unreasonably lower the
safety level of the vehicle, the petition must include specified
information set forth at 49 CFR 555.6(c). The main requirements of that
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 a 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.
II. Electronic Stability Control Systems Requirement
In April 2007, NHTSA published a final rule requiring that vehicles
with a gross vehicle weight rating of 4,536 kilograms (kg) (10,000
pounds) or less be equipped with electronic stability control (ESC)
systems. ESC systems use automatic computer-controlled braking of
individual wheels to assist the driver in maintaining control in
critical driving situations in which the vehicle is beginning to lose
directional stability at the rear wheels (spin out) or directional
control at the front wheels (plow out). 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.
Preventing single-vehicle loss-of-control crashes is the most
effective way to reduce deaths resulting from rollover crashes. This is
because most loss-of-control crashes culminate in the vehicle leaving
the roadway, which dramatically increases the probability of a
rollover. NHTSA's crash data study of existing vehicles equipped with
ESC demonstrated that these systems reduce fatal single-vehicle crashes
of passenger cars by 55 percent and fatal single-vehicle crashes of
light trucks and vans (LTVs) by 50 percent.\1\ NHTSA estimates that ESC
has the potential to prevent 56 percent of the fatal passenger car
rollovers and 74 percent of the fatal LTV first-event rollovers that
would otherwise occur in single-vehicle crashes.\2\
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\1\ Sivinski, R., Crash Prevention Effectiveness of Light-
Vehicle Electronic Stability Control: An Update of the 2007 NHTSA
Evaluation; DOT HS 811 486 (June 2011).
\2\ Id.
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The ESC requirement became effective for substantially all vehicles
on September 1, 2011.
III. Overview of Petition
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR
Part 555, Tesla Motors, Inc. (Tesla) submitted a petition dated June 7,
2011 asking the agency for a temporary exemption from the electronic
stability control requirements of FMVSS No. 126. The bases for the
application are, first, that the exemption would make the development
or field evaluation of a low-emission vehicle easier and would not
unreasonably lower the safety level of that vehicle and, second, that
compliance would cause substantial economic hardship to a petitioner
that has tried in good faith to comply with the standard. However, the
agency has decided to grant the petition on the basis that an exemption
would make the development or field evaluation of a low-emission
vehicle easier and would not unreasonably lower the safety level of the
vehicle. Accordingly, this document will not further discuss the
portions of the petition related to only the economic hardship
arguments.
Tesla has requested an exemption for the Roadster model for a
period from September 1, 2011 to December 31, 2011. In a supplemental
filing, Tesla stated that it now intends to manufacture no more than 80
vehicles under the requested exemption and that manufacturing would be
complete by October 20, 2011.
Tesla is a Delaware corporation headquartered in California with
sales offices throughout the United States and overseas. Although Tesla
currently sells
[[Page 60125]]
only one vehicle, the Roadster, Tesla is scheduled to begin production
and sale of a new all-electric vehicle, the Model S, in 2012. Tesla is
also developing electric vehicle power train solutions for the Toyota
Motor Corporation RAV 4 sport utility vehicle and the Daimler AG
Mercedes A Class electric vehicle.
Tesla began production of the all-electric Roadster in 2008. The
Roadster has a single-speed electrically actuated automatic
transmission and three phase, four pole AC induction motor. The
Roadster has a combined range of 245 miles on a single charge. Under an
agreement with Group Lotus plc (Lotus), Tesla purchases the Roadster
``glider,'' which uses the chassis and several other systems of the
Lotus Elise. The gliders are manufactured under Tesla's supervision and
direction at a Lotus factory in the United Kingdom and then shipped to
Menlo Park, California, where installation of the power train and other
final steps are taken prior to sale of the vehicle in the United
States.
According to Tesla, the Roadster was conceived as a limited proof-
of-concept vehicle for later generations of Tesla vehicles. Tesla is
preparing to introduce its next electric vehicle, the four-door fully
electric Model S sedan. Tesla states that the Model S will meet or
exceed all FMVSSs in effect when the vehicle is released for production
in 2012. The Model S will carry up to seven passengers for 300 miles on
a single charge, but at less than half the price of the Tesla Roadster.
In parallel with the development of the Model S, Tesla is developing
electric power trains for two other vehicles intended for wide
distribution--the Toyota RAV 4 and Mercedes A Class electric vehicles.
For these reasons, Tesla asserts that granting the exemption will
support the development and evaluation of electric vehicles by Toyota
and Mercedes, as well as by Tesla itself.
Tesla explains in its petition how the continued sale of Roadster
vehicles will support development and field evaluation of a highway-
capable electric vehicle. Tesla states that the development and sale of
the Roadster model has allowed it to develop its next all-electric
vehicle, the Model S. Tesla states that, with the permission of vehicle
owners, it has used data from computers installed in on-road Roadsters
related to vehicle operation, operating conditions, charging
conditions, state of charge, and other vehicle performance parameters
to determine how best to optimize its battery design and vehicle
software for future vehicle offerings such as the Model S. Tesla
believes that allowing the sale of additional Roadsters will continue
to enrich and add to its database of information for future electric
vehicle development. Tesla states that it cannot replicate this data in
laboratory or other non-highway conditions. Tesla contends that the
database from Roadster vehicles is the most substantial real-world
database available to government agencies such as NHTSA that are
involved in the evaluation of electric vehicles. Tesla also contends
that the 80 additional Roadster vehicles covered by its exemption
request have the most up-to-date software, hardware, controls and power
electronics of any Tesla vehicles, and that their operation therefore
will generate particularly valuable additional data that is most
valuable addition to the Tesla database. Because these Roadsters
incorporate the latest generation of technology and apply the most up-
to-date knowledge developed by Tesla, the company also asserts that
they are the most valuable vehicles for the development and release of
Tesla's next electric vehicle, the Model S.
Tesla believes that safety will not be unduly compromised if the
exemption is granted. In support of this assertion, Tesla cites its
inclusion of a traction control system (TCS) on its vehicles. Tesla's
TCS is comprised of software, wheel speed sensors, and the drive system
electronic control unit (ECU). Tesla states that its TCS has many
elements of an ESC system required by FMVSS No. 126. Tesla claims that
the TCS is able to detect slip in the drive wheels through the
vehicle's ECU and that the vehicle will limit drive power until wheel
spin is controlled. However, Tesla notes that the TCS does not have the
capability to independently monitor or adjust steering inputs to
prevent oversteer or understeer, nor is it capable of applying brakes
independent of driver input, both of which are required by FMVSS No.
126.
Further, Tesla believes that the lack of ESC systems on the
Roadster will not unduly compromise safety based on the intended use of
the Roadster. The Roadster is a low, two-seat sport coupe. Tesla
believes that, while the Roadster is capable of handling slippery roads
due to ice and snow, most owners either do not use their Roadsters
during winter months or sharply limit their use.
Tesla contends that denial of its petition will jeopardize Tesla's
ability to make the transition to production of the Model S and other
electric vehicles. Tesla states that it currently employs approximately
1,100 people, primarily in Palo Alto and Fremont, California. Tesla had
intended its manufacturing and production line workers to complete
manufacture of the remaining Roadsters and then so shift their duties
over to the Model S. Tesla asserts that it is not yet ready to transfer
many Roadster manufacturing employees to the production operations for
the Model S, and that it therefore cannot support Roadster
manufacturing employees for the final quarter of 2011. Without the
additional 80 vehicles covered by its exemption request, Tesla's
production and manufacturing would have a significant gap in production
time lines. As a result, Tesla may be forced to lay off a significant
number of employees if it is not granted an exemption. Further, because
the Roadster is the only vehicle Tesla offers for sale in the United
States, Tesla contends that the cancellation of the program would
result in a significant loss of market for Tesla.
In its petition, Tesla asserts that the continued sale of a high-
profile vehicle like the Roadster will make the U.S. public familiar
with the new possibilities of electric vehicles. The Roadster was
intended to demonstrate that electric vehicles can provide all the
performance, range and capabilities of internal combustion engine
vehicles, but without any emissions. Tesla contends that continued
production of the Roadster will help to ensure that the public remains
aware of the viability and practicality of high performance, long range
electric vehicles, as it makes the transition to the Model S.
Tesla also believes that the exemption is in the public interest.
As stated above, Tesla asserts that, without the exemption, it may be
required to lay off a significant number of employees. Further, Tesla
notes that denying this petition would result in fewer electric
vehicles for sale in the United States. Tesla points out that, on the
basis of each mile driven, vehicles like the Roadster that operate only
on electricity have the greatest impact on reducing U.S. dependence on
foreign oil. As Tesla states in its petition, electric vehicles are not
just low-emission vehicles that would qualify for this exemption, but
zero emission vehicles. Finally, Tesla believes that continuing to sell
a long range, highway-capable, battery-powered electric vehicle in the
United States will lead to more electric vehicles entering the fleet.
IV. Notice of Receipt
On August 5, 2011, we published in the Federal Register (76 FR
47639) a notice of receipt of Tesla's petition for temporary exemption,
and provided an opportunity for public comment. We received one comment
from the Advocates for Highway & Auto Safety (Advocates).
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V. Agency Analysis, Response to Comment, and Decision
In this section, we provide our analysis and decision regarding
Tesla's temporary exemption request concerning the ESC requirements of
FMVSS No. 126, including our response to the comment received by the
Advocates.
As discussed below, we are granting Tesla's petition for the
Roadster to be exempted, for a period of 40 days after the date of
publication of this notice in the Federal Register, from the
requirements of FMVSS No. 126. The agency's rationale for this decision
is as follows:
First, we conclude that Tesla has shown that an exemption from the
ESC requirements would make the development or field evaluation of a
low-emission motor vehicle easier. Specifically, we agree with Tesla
that, by producing additional Roadster models, Tesla will be able to
use data from computers installed on those vehicles to assist it in
optimizing its battery design and vehicle software for future all-
electric vehicle offerings, including its upcoming Model S, as well as
vehicles produced by other manufacturers working with Tesla.
Furthermore, Tesla's willingness to share data from its Roadster
database with NHTSA and other federal agencies means that the
additional data from the operation of these additional Roadsters will
help to advance the development, and to ensure the safety, of other
electric vehicles. We believe that the data from the Roadster database
can be used to ensure the safety of not only Tesla's future vehicles,
but also electric vehicles produced by all other manufacturers.
Further, the production of additional Roadster models would allow
consumers of all-electric vehicles an additional option during the
exemption period. We agree with Tesla that continued production of a
high-profile vehicle like the Roadster, even for the very limited
period of 40 days and in the limited quantity of 80 vehicles, will help
to demonstrate to the U.S. public the performance, range and
capabilities of electric vehicles. We also agree with Tesla that
continued production of the Roadster for the limited period requested
by Tesla will ease Tesla's transition to the development and production
of the all-electric Model S. For that reason we agree that denial of
the petition could jeopardize Tesla's ability to produce the Model S
and other electric vehicles in the future. For these reasons, we agree
with Tesla that granting this petition will encourage the development
and sale of highway-capable electric vehicles by Tesla and also by
other manufacturers.
Second, NHTSA concludes that the grant of this exemption would not
unreasonably lower the safety or impact protection level of the
vehicle. In particular, we have considered that Tesla produces a low,
two-seat sport vehicle. The low center of gravity provides some
additional protection from loss-of-control crashes. Furthermore, the
nature of the vehicle is such that we agree with Tesla's assertion that
Roadster owners would be less likely to use their vehicles in winter
months or during rain. Because the Roadster would be used less during
winter months or during rain, a Roadster is likely to be driven fewer
miles compared to an average vehicle. We believe that this factor
diminishes the likelihood that the failure to include an ESC system on
the Roadster would unreasonably lower the safety level of the vehicle.
The Advocates argue that ESC is an important and proven safety
improvement. In support of their argument, the Advocates cite agency
and industry research, including the agency's most recent study of ESC
system effectiveness.\3\ While the agency continues to believe that ESC
has a substantial effect on the number of vehicle crashes, the relevant
inquiry is not the effectiveness of ESC systems. Rather, the relevant
inquiry is whether an exemption would unreasonably lower the safety
level of the vehicle in question. Although the agency has found
substantial benefits resulting from ESC systems on passenger cars, the
agency finds that the absence of ESC on the Roadster does not
unreasonably lower the safety level of that specific vehicle. We
believe that the expected use patterns of the Roadster, including the
relatively low number of miles driven by the average Roadster owner,
support this finding.
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\3\ See supra, note 1.
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The Advocates also argue that Tesla cannot guarantee the conditions
under which the vehicle will be used. That is, although Tesla argues
that Roadsters are less likely to be driven in winter months or during
rain, Tesla cannot guarantee that. However, we believe that the
Advocates would hold Tesla to too high of a burden of proof that would
essentially foreclose the possibility of any exemption being granted.
Moreover, although Tesla has not provided data in support of its
assertions, we find Tesla's assertions that a low, soft-top convertible
vehicle is less likely to be driven in the rain, snow, or winter months
to be plausible and persuasive.
The Advocates also argue that Tesla's limited production of
exempted vehicles does not justify an exemption. The Advocates argue
that rarer vehicles are not safer just because they are rarer. While
the agency cannot dispute the assertion that rarer vehicles are not
safer because they are rarer, it does not follow that the agency should
not consider the expected production volume in support of an exemption
request. If Tesla intended to produce 2,500 vehicles per year over two
years rather than 80 vehicles in a little over a month, the agency
would judge Tesla's petition differently than the petition now before
it.
Moreover, it is not just the limited number of Roadsters that would
be produced under the exemption, but the limited number of miles the
average Roadster is driven compared to other cars that Tesla cites in
support of its petition. The Advocates do not dispute the relatively
small number of vehicles that Tesla intends to produce under the
exemption and the relatively low-mileage use of the Roadster when
compared to other vehicles.
The Advocates also contend that, because an FMVSS establishes only
the minimum performance requirements necessary for occupant protection,
an exemption must only be granted when absolutely necessary. However,
the statutory requirements for granting an exemption require only a
finding that an exemption is in the public interest and meets the
objectives of the Safety Act, in addition to the specific requirements
set forth for each of the four bases for an exemption.
We also observe that a very limited number of vehicles would be
produced under this temporary exemption. Manufacturers granted
exemptions on the basis of furthering the development or field
evaluation of a low-emission vehicle are allowed to sell as many as
2,500 exempted vehicles in any 12-month period. Tesla has stated that
it intends to produce only 80 vehicles during the exemption period.
The Advocates express a concern that Tesla has, in this petition,
requested a shorter exemption period than in its request for an
exemption from the advanced air bag requirements of FMVSS No. 208. The
Advocates suggest that the longer exemption period sought in the
advanced air bag exemption petition suggests that Tesla may continue
Roadster production beyond the date sought for this exemption. We
reject this argument as a basis for denying Tesla's petition. We give
greater weight to Tesla's most recent statement
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that it intends to end Roaster production within less than 50 days of
the grant of this exemption than to any prior statements regarding its
production plans made in the context of prior submissions to the
agency.\4\
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\4\ Furthermore, the effect of Tesla expressing different
production plans in its submissions related to this petition than in
its submissions on the advanced air bag petition are better
addressed in the context of the agency's response to the advanced
air bag petition because Tesla sought a longer exemption from the
advanced air bag requirements.
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Based on the foregoing, we believe that any impact on safety from
granting the petition would be negligible and that Tesla has satisfied
the eligibility criteria for an exemption for the development or field
evaluation of a low-emission motor vehicle.
The Advocates raise other issues in their comments that the agency
need not address in detail. Specifically, the Advocates argue that
Tesla had ample time to develop an FMVSS No. 126-compliant ESC system
because the final rule mandating ESC systems was published in the same
year that Roadster production first began. The Advocates also state
that the cost of including an ESC system is small relative to the cost
of the Roadster.\5\ The Advocates further argue that the loss of income
from sales of Roadsters that Tesla did not intend to produce cannot be
considered an economic hardship. Each of these comments relate to
requirements for economic hardship petitions. Because the agency has
determined that Tesla's exemption is justified under a different basis,
the agency need not address these three issues specifically in this
notice.
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\5\ The agency does take note, however, that the cost of
implementing design modifications to the Roadster to accommodate ESC
would not be trivial.
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We also find that this exemption would be consistent with the
public interest and the objectives of the Safety Act. NHTSA has
traditionally found that the public interest is served by affording
consumers a wider variety of motor vehicles, by encouraging the
development of fuel-efficient and alternative-energy vehicles, and
providing additional employment opportunities. We believe that all
three of these public interest considerations would be served by
granting Tesla's petition.
We note that the denial of this request would remove one of the few
electric vehicles that is currently being sold in the U.S. market and
that granting this petition would afford U.S. consumers the continued
choice of this all-electric vehicle. As explained above, granting this
petition will ease the development of the Model S as well as other
electric vehicles, while conversely denial of the petition could
compromise Tesla's ability to move forward with the Model S. We believe
that granting this petition will have a positive impact on U.S.
employment in the automotive industry, and that denial of the petition
could directly impact the jobs of current Tesla employees supporting
the Roadster.
Additionally, we believe that the requested exemption will have a
limited impact on general motor vehicle safety because of the small
number of vehicles that can be produced under this exemption. Finally,
it is critical to the agency's decision that Tesla is requesting a very
short exemption period and intends to sell only vehicles that comply
with all applicable FMVSS after the exemption period.
We note that, as explained below, prospective purchasers will be
notified that the vehicle is exempted from the ESC requirements of
Standard No. 126. Under Sec. 555.9(b), a manufacturer of an exempted
vehicle must affix securely to the windshield or side window of each
exempted vehicle a label containing a statement that the vehicle
conforms to all applicable FMVSSs in effect on the date of manufacture
``except for Standard Nos. [listing the standards by number and title
for which an exemption has been granted] exempted pursuant to NHTSA
Exemption No. ----.'' This label notifies prospective purchasers about
the exemption and its subject. Under Sec. 555.9(c), this information
must also be included on the vehicle's certification label.\6\
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\6\ Tesla's label would be required to list both its exemption
from FMVSS No. 126 and its exemption from the advanced air bag
requirements of FMVSS No. 208, which has been extended in a separate
decision that is published in today's Federal Register.
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In consideration of the foregoing, we conclude that granting the
requested exemption from FMVSS No. 126, Electronic Stability Control
Systems, would facilitate the field evaluation or development of a low-
emission vehicle, and would not unreasonably lower the safety or impact
protection level of that vehicle. We further conclude that granting
this exemption would be in the public interest and consistent with the
objectives of the Safety Act.
In accordance with 49 U.S.C. 30113(b)(3)(B)(iii), Tesla is granted
NHTSA Temporary Exemption No. EX 11-03 from FMVSS No. 126. The
exemption is for the Roadster model and shall remain effective from the
date on which notice of this decision is published in the Federal
Register for a period of 40 days, as indicated in the DATES section of
this document.
Authority: (49 U.S.C. 30113; delegations of authority at 49 CFR
1.50. and 501.8)
Issued on: September 22, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-24899 Filed 9-27-11; 8:45 am]
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