[Federal Register Volume 76, Number 154 (Wednesday, August 10, 2011)]
[Notices]
[Pages 49533-49536]
From the Federal Register Online via the Government Publishing 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:
    <bullet> 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.''
    <bullet> Fax: 1-202-493-2251.
    <bullet> Mail: U.S. Department of Transportation, Docket 
Operations, M-30, Room W12-140, 1200 New Jersey Avenue, SE., 
Washington, DC 20590.
    <bullet> 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]]

    <bullet> 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]
BILLING CODE 4910-59-P