60316 Federal Register / Vol. 69, No. 159 / Friday, October 8, 2004 / Rules and Regulations 

154, 227 and 303(r); and 47 CFR 64.1200 

of the Commission’s rules, and the DoNot-Call Implementation Act, Public 

Law Number 108–10, 117 Statute 557, 

the Order in CG Docket No. 02–278 IS 

ADOPTED, and Part 64 of the 

Commission’s rules, 47 CFR 64.1200 is 

amended as set forth in the Final Rules. 

As discussed herein, the amended rule 

at 47 CFR 64.1200(c)(2)(i)(D) will 

become effective January 1, 2005.

The Petition for Declaratory Ruling

filed by the Direct Marketing 

Association and Newspaper Association 

of America on January 29, 2004, is 

denied to the extent discussed herein. 

The Commission’s Consumer & 

Governmental Affairs Bureau, Reference 

Information Center, shall send a copy of 

this Order, including the Final 

Regulatory Flexibility Analysis, to the 

Chief Counsel for Advocacy of the Small 

Business Administration.

List of Subjects in 47 CFR Part 64

Telephone.

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary.

Rule Changes

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR Part 64 as 

follows:

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS

■ 1. The authority citation for part 64 

continues to read as follows:

Authority: 47 U.S.C. 154, 254 (k); secs. 403 

(b)(2) (B), (C), Public Law 104–104, 110 Stat. 

56. Interpret or apply 47 U.S.C. 201, 218, 225, 

226, 228, and 254 (k) unless otherwise noted.

* * * * *

■ 2. Section 64.1200 is amended by 

adding paragraph (a)(1)(iv) and revising 

paragraph(c)(2)(i)(D) and adding a note 

to paragraph (c)(2)(i)(D) to read as 

follows:

§ 64.1200 Delivery restrictions. 

(a) * * *

(1) * * *

(iv) A person will not be liable for 

violating the prohibition in paragraph 

(a)(1)(iii) when the call is placed to a 

wireless number that has been ported 

from wireline service and such call is a 

voice call; not knowingly made to a 

wireless number; and made within 15 

days of the porting of the number from 

wireline to wireless service, provided 

the number is not already on the 

national do-not-call registry or caller’s 

company-specific do-not-call list.

* * * * *

(c) * * *

(2) * * *

(i) * * *

(D) Accessing the national do-not-call 

database. It uses a process to prevent 

telephone solicitations to any telephone 

number on any list established pursuant 

to the do-not-call rules, employing a 

version of the national do-not-call 

registry obtained from the administrator 

of the registry no more than 31 days 

prior to the date any call is made, and 

maintains records documenting this 

process.

Note to paragraph (c)(2)(i)(D): The 

requirement in paragraph 64.1200(c)(2)(i)(D) 

for persons or entities to employ a version of 

the national do-not-call registry obtained 

from the administrator no more than 31 days 

prior to the date any call is made is effective 

January 1, 2005. Until January 1, 2005, 

persons or entities must continue to employ 

a version of the registry obtained from the 

administrator of the registry no more than 

three months prior to the date any call is 

made.

* * * * *

[FR Doc. 04–22755 Filed 10–7–04; 8:45 am] 

BILLING CODE 6712–01–P

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73

[DA 04–3057: MB Docket No. 03–190; RM–

10738] 

Radio Broadcasting Services; Athens 

and Doraville, GA

AGENCY: Federal Communications 

Commission.

ACTION: Final rule.

SUMMARY: In response to petition for 

rule making filed by CXR Holdings, Inc. 

and Cox Radio, Inc. this document 

reallots Channel 238C1 from Athens to 

Doraville, Georgia, and modifies the 

Station WBTS license to specify 

Doraville as the community of license. 

See 68 FR 54879, September 19, 2003. 

The reference coordinates for the 

Channel 238C1 allotment at Doraville, 

Georgia, are 34–07–32 and 83–51–32. 

Station WBTS was granted a license to 

specify operation on Channel 238C1 in 

lieu of Channel 238C at Athens, Georgia. 

See BLH–20011016AAF. The FM Table 

of Allotments does not reflect this 

change. With this action, the proceeding 

is terminated.

DATES: Effective November 18, 2004.

FOR FURTHER INFORMATION CONTACT:

Robert Hayne, Media Bureau (202) 418–

2177.

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Report and Order in MB 

Docket No. 03–190 adopted September 

23, 2004, and released September 27, 

2004. The full text of this decision is 

available for inspection and copying 

during normal business hours in the 

FCC Reference Information Center at 

Portals ll, CY–A257, 445 12th Street, 

SW., Washington, DC. The complete 

text of this decision may also be 

purchased from the Commission’s copy 

contractor, Best Copy and Printing, Inc., 

445 12th Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 1–

800–378–3160 or http://

www.BCPIWEB.com. The Commission 

will send a copy of the Report and 

Order in this proceeding in a report to 

be sent to Congress and the General 

Accounting Office pursuant to the 

Congressional Review Act, see 5 

U.S.C.801(a)(1)(A).

List of Subjects in 47 CFR Part 73

Radio, Radio broadcasting.

■ Part 73 of the Code of Federal 

Regulations is amended as follows:

PART 73—RADIO BROADCAST 

SERVICES

■ 1. The authority citation for part 73 

continues to read as follows:

Authority: 47 U.S.C. 154, 303, 334 and 336.

§ 73.202 [Amended]

■ 2. Section 73.202(b), the Table of FM 

Allotments under Georgia, is amended 

by removing Channel 238C at Athens, 

and adding Doraville, Channel 238C1.

Federal Communications Commission. 

John A. Karousos, 

Assistant Chief, Audio Division, Media 

Bureau.

[FR Doc. 04–22751 Filed 10–7–04; 8:45 am] 

BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety 

Administration 

49 CFR Part 571

[Docket No. NHTSA–04–19284] 

Federal Motor Vehicle Safety 

Standards; Occupant Crash Protection

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT).

ACTION: Denial of petition for 

reconsideration. 

SUMMARY: The agency denies Porsche’s 

petition for reconsideration of the 

agency’s May 5, 2003 final rule 

expanding the limited line manufacturer

Federal Register / Vol. 69, No. 159 / Friday, October 8, 2004 / Rules and Regulations 60317

exemption from the advanced air bag 

phase-in requirements published on 

May 12, 2000, and amended January 6, 

2003. In the petition for reconsideration, 

Porsche requested that NHTSA 

reconsider its position that advanced 

credits are not available to 

manufacturers taking advantage of the 

exemption. The agency is denying the 

petition because it does not believe 

manufacturers who can advance vehicle 

production sufficiently to use credits 

need the relief provided by the limited 

line manufacturer exception, and that 

further relief for limited line 

manufacturers is not merited.

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may call Mr. Louis 

Molino, Office of Crashworthiness 

Standards, NVS–112, telephone (202) 

366–2264, facsimile (202) 493–2739. 

For legal issues, you may call Mr. 

Christopher M. Calamita of the NHTSA 

Office of the Chief Counsel, NCC–112, 

telephone (202) 366–2992, facsimile 

(202) 366–3820. 

You may send mail to both of these 

officials at National Highway Traffic 

Safety Administration, 400 Seventh 

Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: On May 

12, 2000, we published in the Federal 

Register (65 FR 30680) a rule to require 

advanced air bags. (Docket No. NHTSA 

00–7013; Notice 1.) The rule amended 

Standard No. 208, Occupant Crash 

Protection, to require that future air bags 

be designed so that, compared to air 

bags then installed in production 

vehicles, they create less risk of serious 

air bag-induced injuries and provide 

improved frontal crash protection for all 

occupants, by means that include 

advanced air bag technology. The rule is 

being phased in during two stages. 

During the first phase-in, from 

September 1, 2003, through August 31, 

2006, increasing percentages of motor 

vehicles are required to meet 

requirements for minimizing air bag 

risks. 

As initially adopted, the rule would 

have required that the majority of 

vehicle manufacturers meet the 

following phase-in requirements: 9/1/03 

through 8/31/04—35 percent; 9/1/04 

through 8/31/05—65 percent; 9/1/05 

through 9/1/06—100 percent, with 

manufacturers allowed to use credits for 

early compliance. Effective September 

1, 2006, all vehicles thereafter 

manufactured must comply with the 

advanced air bag technologies; credits 

for early compliance are not permitted. 

On January 31, 2003, NHTSA published 

a final rule that adjusted the first year 

of the phase-in to 20 percent (68 FR 

4961). 

On May 5, 2003 NHTSA published 

another final rule that expanded the 

limited line manufacturer exception to 

the first advanced air bag phase-in 

schedule (68 FR 23614). We decided to 

amend the definition of a limited line 

manufacturer for purposes of the first 

phase-in only, to a manufacturer that 

produces three or fewer carlines, as that 

term is defined in 49 CFR 583.4, for sale 

or distribution in the United States. We 

also decided to exclude a limited line 

manufacturer from the first two years of 

the first phase-in, with full compliance 

required in the third year. Without this 

relief, a limited line manufacturer, then 

defined as a manufacturer that produces 

two or fewer lines, would have been 

required to achieve 100% compliance 

by the second year of the phase-in, a 

point at which other manufacturers 

need only certify 65% of their fleet. 

NHTSA reiterated that no credits for 

early compliance were allowed. NHTSA 

stated its belief that such additional 

relief was not justified, since a limited 

line manufacturer that was able to take 

advantage of early credits could design 

its product plans to meet the relaxed 

phase-in requirements and should not 

be able to take advantage of one element 

of a compliance system it has opted not 

to pursue. 

Porsche submitted a petition for 

reconsideration of the May 5, 2003 final 

rule, asking NHTSA to reconsider its 

position on early credits for limited line 

manufacturers opting out of the phasein schedule. In its petition, Porsche 

stated that without advanced credits it 

would be prohibited from selling a 

small number of highly specialized 

‘‘niche’’ vehicles in the United States 

from September 1, 2005, through August 

31, 2006. It went on to claim that it 

could not simply advance production of 

those vehicles intended for the U.S. 

market to some time prior to September 

1, 2005, in order to certify those 

vehicles to the older air bag 

requirements and then sell the vehicles 

after that date because the 

manufacturing process is so specialized 

as to preclude stockpiling of a portion 

of the fleet for future sales. 

Porsche based its petition on four 

arguments, three of which were based 

on a mistaken belief that NHTSA had 

changed its position on advanced 

credits for limited line manufacturers in 

the May 5, 2003 final rule. First, Porsche 

stated that eliminating credits would 

remove its niche vehicles from the 

marketplace, while allowing larger 

manufacturers to continue production of 

their niche vehicles, without 

modification, until September 1, 2006. 

Second, it averred that NHTSA based 

it’s decision to eliminate credits on an 

assumption, first articulated in the May 

5, 2003 final rule (i.e., that credits were 

not needed by limited line 

manufacturers because such 

manufacturers that were able to generate 

credits by producing compliant vehicles 

could likely meet the phase-in 

schedule), which is based on incorrect 

assumptions, i.e., that a manufacturer of 

three or fewer carlines would be able to 

fully meet a 20–65–100% phase-in 

schedule if it was able to certify one or 

more of its carlines as advanced air bag 

compliant prior to September 1, 2005. 

Third, Porsche claimed that NHTSA had 

failed to provide notice before 

eliminating advanced credits. Finally, 

Porsche argued that not allowing 

advanced credits was directly contrary 

to the mandate in the Transportation 

Equity Act (TEA–21, 112 Stat. 466, June 

9, 1998) that credits be allowed for those 

manufacturers exceeding the phase-in 

requirements of an advanced air bag 

final rule. For the reasons discussed 

below, NHTSA rejects each of Porsche’s 

arguments. 

As an initial matter, NHTSA believes 

it is beneficial to explain its position on 

limited line manufacturers, phase-ins, 

and advanced credits related to phaseins. S14.1(a) and S14.3(a) of FMVSS No. 

208 each specify a general phase-in 

schedule for vehicles certified to the 

standard’s advanced air bag 

requirements: the first for vehicles 

manufactured prior to September 1, 

2006, and the second for vehicles 

manufactured between September 1, 

2007, and August 31, 2010. As noted in 

Porsche’s petition for reconsideration, 

§ 7103 of TEA–21 directed NHTSA to 

adopt a phase-in schedule that 

commenced no later than September 1, 

2003, and that resulted in every vehicle 

subject to the advanced air bag 

requirements and manufactured on or 

after September 1, 2006 being certified 

to those requirements.

At its discretion, NHTSA decided to 

bifurcate the advanced air bag 

requirements and to establish a phasein schedule for each of the two sets of 

requirements. NHTSA excluded three 

types of vehicle manufacturers from 

each of the two phase-ins because it 

recognized that these types of 

manufacturers faced certain hardships 

not faced by the larger manufacturers. 

Under the May 12, 2000 final rule, 

manufacturers of vehicles built in two 

or more stages and small volume 

manufacturers are not required to certify 

any of their vehicles to the advanced air 

bag requirements before the final 

effective date of those requirements, i.e., 

September 1, 2006 (S14.1 (c) and (d)) 

and September 1, 2010 (S14.3(c) and 

(d)). NHTSA recognized that these

60318 Federal Register / Vol. 69, No. 159 / Friday, October 8, 2004 / Rules and Regulations 

1Section 7103(5) of TEA–21 states: ‘‘To 

encourage early compliance, the Secretary is 

directed to include in the notice of proposed 

rulemaking required by paragraph (1) means by 

which manufacturers may earn credits fro future 

compliance. Credits, on a one-vehicle for onevehicle basis, may be earned for vehicles certified 

as being in full compliance under section 30115 of 

title 29, United States Code, with the rule required 

by paragraph (2) which are either—

(A) So certified in advance of the phase-in period; 

or 

(B) In excess of the percentage requirements 

during the phase-in period. 

NHTSA does not believe this provision requires 

the agency to allow advance credits for 

manufacturers exempted from the mandated phasein requirements.

manufacturers, because of their very 

small size, possess virtually no 

bargaining power with air bag suppliers, 

who the agency expected would be 

primarily engaged in satisfying the 

needs of larger manufacturers. 

In addition, a manufacturer falling 

within the definition of a ‘‘limited line 

manufacturer’’ may decide to opt out of 

the general phase-in requirement as long 

as one hundred percent of the vehicles 

it makes for the U.S. market are certified 

as compliant with the applicable 

advanced air bag requirements by a 

specified date, i.e., September 1, 2005 

(as amended by the May 5, 2003 final 

rule) and September 1, 2008 (S14.1(b) 

and S14.3(b), respectively). This 

provision was created because NHTSA 

believed it was unreasonable to expect 

limited line manufacturers to certify a 

greater percentage of their fleet to the 

advanced air bag requirements than was 

required of manufacturers of more 

carlines. NHTSA’s analysis was based 

on the presumption that a limited line 

manufacturer would certify an entire 

vehicle line to the advanced air bag 

requirements, creating a compliance 

burden of half of their carlines in the 

first year of the phase-in. This would 

likely represent much more than 35% of 

their production. Larger manufacturers 

would have borne a first year 

compliance burden of 35% under the 

May 12, 2000 final rule. 

No alternative phase-in schedule was 

adopted for any manufacturers falling 

within one of these three groups. Rather, 

each manufacturer type was exempted 

from the phase-in requirements adopted 

by NHTSA and mandated generally by 

TEA–21. As specified by the regulatory 

text of S14.1(a) and S14.3(a), only those 

manufacturers that comply with the 

phase-in requirements are entitled to 

advanced credits.1

Porsche’s assertion that the agency 

has changed its position on advanced 

credits without notice and contrary to 

congressional intent is incorrect. The 

language in TEA–21 regarding advanced 

credits is directly linked to the phasein also mandated by TEA–21. It does not 

specify that advanced credits must be 

provided for those manufacturers 

excluded from the phase-in 

requirements. Additionally, the 

explanation of the limited line 

manufacturer exception provided in the 

preamble of both the NPRM and the 

final rule never discussed the possibility 

of advanced credits and noted that 

under the exception, full compliance 

would be required for these 

manufacturers before it was required for 

those manufacturers meeting the more 

stringent phase-in requirements. 

Although the regulatory text has 

always provided that advanced credits 

are only available to manufacturers 

meeting the advanced air bag phase-in 

requirements, the issue of the 

relationship between the limited line 

manufacturer and advanced credits was 

fully addressed for the first time in the 

May 5, 2003 final rule. In the original 

NPRM proposing the new advanced air 

bag requirements, NHTSA stated that 

the exemption from the phase-in 

schedule was limited to manufacturers 

of two or fewer carlines because larger 

manufacturers could theoretically 

exempt themselves from the entire first 

year of the phase-in. The agency then 

went on to note ‘‘[h]owever, the agency 

doubts that any full-line vehicle 

manufacturers would want to take 

advantage of the alternative, given the 

need to achieve full compliance by 

September 1, 2003.’’ (63 FR 49958, 

49978; September 18, 1998). All 

portions of the industry were on notice, 

as early as 1998, that parties choosing to 

use the limited line manufacturer 

alternative would not be entitled to the 

panoply of discretion provided to larger 

manufacturers. Rather, in exchange for 

not having to produce any compliant 

vehicles during the first year of the 

phase-in, full compliance would be 

required effective the first day of the 

second year of the phase-in. In the May 

12, 2000 final rule, NHTSA reiterated 

that the limited carline exception 

relieved those manufacturers choosing 

to take advantage of it from the first year 

of the phase-in, but that full compliance

would be required as of September 1, 

2004, one year after the commencement 

of the phase-in. Never did the agency 

discuss the possibility that advanced or 

carryover credits would be available for 

these manufacturers. 

We have decided against expanding 

the advanced credit provisions because 

we continue to believe that such relief 

is unnecessary and would unduly favor 

limited line manufacturers. We note that 

limited line manufacturers have already 

been given substantial relief under both 

the May 12, 2000 final rule and the May 

5, 2003 amendment to that rule. While 

manufacturers of more than three 

carlines are allowed to use advanced 

credits to reach 100% compliance in the 

third year of the phase-in, they must 

also meet the 20% and 65% phase-in 

requirements during the first two years, 

a burden from which limited line 

manufacturers have been relieved. 

Advanced credits are not designed to 

allow manufacturers to manipulate the 

phase-in schedule and, ultimately, the 

number of compliant vehicles on the 

road prior to September 1, 2006. Rather, 

NHTSA acknowledges that there could 

be some problem vehicles for which 

early sensing or deployment technology 

is ill-suited. Rather than force a strict 

phase-in schedule where no recognition 

of these vehicles would be allowed 

anywhere in the phase-in, the final rule 

allows manufacturers to accommodate 

these vehicles as long as they meet the 

underlying phase-in requirements. 

If NHTSA were to grant Porsche’s 

petition and allow advanced credits for 

manufacturers using the limited line 

exception, it would provide these 

manufacturers with extended relief 

neither justified by their circumstances 

nor contemplated by the provision for 

advanced credits. For example, a 

limited line manufacturer could have 

chosen to certify one of its carlines as 

advanced air bag compliant as early as 

the first year of the phase-in. For a 

limited line manufacturer excluded 

from the phase-in, this compliant line 

would generate advanced credits each of 

the three years prior to the 100 percent 

compliance date, without any of the 

credits having to be used prior to that 

date. Assuming that carline represented 

slightly more than one-third of its total 

sales in the United States, the 

manufacturer could then delay all other 

vehicle changes necessary to certify the 

rest of its fleet to the advanced air bag 

requirements until September 1, 2006. 

Those manufacturers subject to the 

phase-in, however, could not adopt 

such an approach because they would 

have to rely on advanced credits each 

year of the phase-in. It is likely that 

manufacturers subject to the phase-in 

would have insufficient credits left over 

from the first year of the phase-in to 

meet the requirements established by 

NHTSA for the second year of the 

phase-in.

Alternatively, a limited line 

manufacturer could choose to produce 

no advanced air bag-compliant vehicles 

during the first year of the phase-in, but 

could choose to certify two (or even one 

and a half) of its carlines during the 

second year of the phase-in, and meet 

all of its certification responsibilities. As 

with the first option, this approach

Federal Register / Vol. 69, No. 159 / Friday, October 8, 2004 / Rules and Regulations 60319

2The arguable need for such credits is very 

limited; it appears that only Porsche is likely to be 

affected by our decision not to expand the 

availability of advanced credits, and then only if it 

can show that it manufactures no more than three 

carlines for the U.S. market.

would not be available to other 

manufacturers who must be able to 

certify a full 20% of their fleet in the 

first year of the phase-in and a full 65% 

in the second year. NHTSA finds these 

two alternatives unacceptable in that 

they provide a level of relief so at odds 

with the relief given to other 

manufacturers as to be patently unfair. 

Finally, a limited line manufacturer 

could choose to certify none of its fleet 

to the advanced air bag requirements 

until a couple of months before 

September 1, 2005, an approach that 

would result in very small numbers of 

advanced air bag-compliant vehicles 

being introduced earlier than currently 

required under the limited line 

manufacturer exception. This 

alternative would not result in 

significant numbers of compliant 

vehicles being introduced onto U.S. 

roads ahead of schedule, the only 

rationale for granting the relief 

requested by Porsche. Any one of these 

three scenarios (and doubtless others as 

well) would be permissible were 

NHTSA to grant Porsche’s petition. 

As a practical matter, we believe 

granting Porsche’s petition is unlikely to 

generate a sizeable number of vehicles 

that are certified to the advanced air bag 

requirements on U.S. roads in advance 

of FMVSS No. 208’s requirements.2

Given the criteria for determining 

whether a particular vehicle falls within 

a given carline, it is unlikely that many 

manufacturers of any size would be able 

to qualify for the exemption. Second, 

the manufacturer would need to 

manufacture more than 5,000 vehicles 

per year for the U.S. market. If its 

production numbers were lower than 

that, it could simply wait to certify any 

vehicles to the advanced air bag 

requirements until September 1, 2006. 

In its petition for reconsideration, 

Porsche indicated that it does not plan 

on introducing large numbers of 

advanced air bag-compliant vehicles 

into the U.S. prior to September 1, 2005. 

Rather, it appears that it would merely 

introduce production of such vehicles 

only to the extent necessary to receive 

an advanced credit for approximately 

500, custom-made vehicles. As such, the 

total number of vehicles likely to be 

introduced in advance of September 1, 

2005, is quite small, and appears to be 

no more than a few months of 

production.

As to Porsche’s assertion that 

NHTSA’s position on advanced credits 

will unfairly remove Porsche’s niche 

vehicles from the U.S. market for one 

year while allowing larger 

manufacturers to use advanced credits 

for their niche vehicles, NHTSA notes 

that the limited line manufacturer 

exception already affords Porsche 

significantly more relief than is given to 

larger manufacturers. Additionally, the 

decision to use the limited line 

manufacturer exception, rather than the 

more stringent phase-in schedule with 

advanced credits, was a business 

decision left solely within Porsche’s 

discretion. NHTSA finds that affording 

Porsche further relief is not merited. 

Accordingly, the petition for 

reconsideration is denied.

Authority: 49 U.S.C. 30162; delegation of 

authority at 49 CFR 1.50 and 501.8.

Issued: October 4, 2004. 

Stephen R. Kratzke, 

Associate Administrator for Rulemaking.

[FR Doc. 04–22749 Filed 10–7–04; 8:45 am] 

BILLING CODE 4910–59–P