Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12925 

1To view the application or public comments, 

please go to: http://www.regulations.gov (Docket 

No. NHTSA–2007–0107). 

• Government-wide rulemaking Web 

site: Go to http://www.regulations.gov 

and follow the instructions for sending 

your comments electronically. 

• Mail: Send comments to the Docket 

Management Facility; U.S. Department 

of Transportation (DOT), 1200 New 

Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590. 

• Fax: Fax comments to the Docket 

Management Facility at 202–493–2251. 

• Hand Delivery: Bring comments to 

the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

Privacy: We will post all comments 

we receive, without change, to http:// 

www.regulations.gov, including any 

personal information you provide. 

Using the search function of our docket 

Web site, anyone can find and read the 

comments received into any of our 

dockets, including the name of the 

individual sending the comment (or 

signing the comment for an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (65 FR 

19477–78). 

Docket: To read background 

documents or comments received, go to 

http://www.regulations.gov at any time 

or to the Docket Management Facility in 

Room W12–140 of the West Building 

Ground Floor at 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Laverne Brunache (202) 267–3133 or 

Tyneka Thomas (202) 267–7626, Office 

of Rulemaking, Federal Aviation 

Administration, 800 Independence 

Avenue, SW., Washington, DC 20591. 

This notice is published pursuant to 

14 CFR 11.85. 

Issued in Washington, DC, on March 20, 

2009. 

Pamela Hamilton-Powell, 

Director, Office of Rulemaking. 

Petition for Exemption 

Docket No.: FAA–2009–0083. 

Petitioner: CitationShares 

Management, LLC. 

Section of 14 CFR Affected: 14 CFR 

91.23, 91.1001. 

Description of Relief Sought: 

CitationShares Management, LLC (CM), 

a fractional program manager and 

certificated air carrier, has petitioned 

the Federal Aviation Administration to 

provide an exemption from the 

following regulations pertaining to part 

91 subpart K fractional ownership 

operations: 

(1) CM requests an exemption from 

§ 91.1001 to the extent necessary to 

clarify that ‘‘fractional owner or owner,’’ 

and ‘‘fractional ownership interest,’’ as 

defined in § 91.1001(b)(3) and (b)(4), of 

subpart K, are not limited to FAA 

registered owners but may include a 

beneficial owner or beneficial 

ownership interest arising under a 

single Delaware statutory trust structure 

outlined in the CM Fractional Program 

Trust Structure; 

(2) CM requests an exemption from 

§ 91.1001 to the extent necessary to 

clarify that ‘‘dry lease exchange,’’ as 

defined in § 91.1001(b)(2) of subpart K, 

may include the arrangement for 

exchange of aircraft arising under the 

CM Fractional Program Trust Structure; 

and 

(3) CM requests an exemption from 

§ 91.23 to the extent necessary to 

confirm that the arrangements among 

and between the fractional owners and 

CM, in its capacity as a part 135 

certificate holder, does not require 

further compliance with that section. 

The purpose of the exemption would 

be to permit CM to implement a 

Fractional Program Trust Structure for 

ownership, registration, and operation 

of fractional ownership program aircraft. 

A key feature of the proposed structure 

is that participating fractional owners 

would no longer hold legal title to a 

fractional share of a program aircraft. 

Instead, a Delaware statutory trust 

would hold legal title to the entire 

aircraft, and fractional ownership 

program participants would be 

beneficial owners of a series in the trust. 

CM would act as the fractional 

ownership program manager, would 

administer the statutory trust, and 

would continue operating program 

aircraft as a part 135 certificate holder. 

The CM Fractional Program Trust 

Structure would continue to follow the 

operational control provisions as set 

forth in §§ 91.1009–91.1013 of subpart 

K. 

Additionally, CM seeks an exemption 

from § 91.1001 pertaining to dry-lease 

aircraft exchanges. Under the CM 

Fractional Program Trust Structure, 

there would not be a dry-lease aircraft 

exchange arrangement among all of the 

fractional owners. Instead, CM would 

hold a lease to the program aircraft 

entered into a statutory trust, and 

fractional owners would have access to 

all of the program aircraft, without crew, 

on an as needed basis through a 

sublease directly from CM. 

Finally, CM requests an exemption 

from § 91.23, the truth-in-leasing 

requirements in leases and conditional 

sales contracts, to confirm that those 

requirements would not be applicable to 

the dry-lease exchange component of 

the CM Fractional Program Trust 

Structure because CM is a part 135 

certificate holder. 

[FR Doc. E9–6563 Filed 3–24–09; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2008–0107, Notice 2] 

Spyker Automobielen B.V.; Grant of 

Application for Limited Extension of 

Temporary Exemption From Certain 

Requirements of FMVSS No. 208 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Grant of petition for limited 

extension of a Temporary Exemption 

from certain provisions of Federal Motor 

Vehicle Safety Standard (FMVSS) No. 

208, Occupant Crash Protection. 

SUMMARY: This notice grants the Spyker 

Automobielen B.V. (‘‘Spyker’’) 

application for a limited extension of a 

previously received temporary 

exemption from certain requirements of 

Federal Motor Vehicle Safety Standard 

(FMVSS) No. 208, Occupant Crash 

Protection, for the Spyker C vehicle line. 

In accordance with 49 CFR Part 555, the 

basis for the grant is that compliance 

would cause substantial economic 

hardship to a low-volume manufacturer 

that has tried in good faith to comply 

with the standard, and the exemption 

would have a negligible impact on 

motor vehicle safety. The exemption is 

effective through December 15, 2010. 

In accordance with the requirements 

of 49 U.S.C. 30113(b)(2), we published 

a notice of receipt of the application and 

asked for public comments.1

DATES: The exemption from the 

applicable Federal motor vehicle safety 

standards is effective from March 25, 

2009 through December 15, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Alves, Office of the Chief 

Counsel, NCC–112, National Highway 

Traffic Safety Administration, 1200 New 

Jersey Avenue, SE., Washington, DC 

20590. Phone: 202–366–2992; Fax: 202– 

366–3820; e-Mail: sarah.alves@dot.gov. 

SUPPLEMENTARY INFORMATION: 

I. Advanced Air Bag Requirements and Small 


PWALKER on PROD1PC71 with NOTICES
12926 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 

2See 65 FR 30680 (May 12, 2000). 

3The petition is available at http:// 

www.regulations.gov, Docket No. NHTSA–2007– 

0107. 

4The original petition of Spyker is available at 

http://www.regulations.gov, Docket No. NHTSA– 

2005–20455. The notice granting that petition, 

Spyker Automobielen B.V.; Grant of Application for 

a Temporary Exemption From Federal Motor 

Vehicle Safety Standards Nos. 201 and 208; and 

Part 581 Bumper Standard, was published at 70 FR 

39007, July 6, 2005. 

5 49 U.S.C. 30113(b)(1). 

6Only parties with an interest of more than 5% 

are known and need to register with the Dutch 

authority for financial markets. 

Volume Manufacturers 

II. Overview and Statutory Background of 

Petition for Economic Hardship 

Exemption 

III. Petition of Spyker 

IV. Federal Register Notice of May 27, 2008 

V. NHTSA Analysis of Petition 

VI. Agency Decision 

I. Advanced Air Bag Requirements and 

Small Volume Manufacturers 

In 2000, NHTSA upgraded the 

requirements for air bags in passenger 

cars and light trucks, requiring what are 

commonly known as ‘‘advanced air 

bags.’’ 2 The upgrade was designed to 

meet the goals of improving protection 

for occupants of all sizes, belted and 

unbelted, in moderate-to-high-speed 

crashes, and of minimizing the risks 

posed by air bags to infants, children, 

and other occupants, especially in lowspeed crashes. 

The advanced air bag requirements 

were a culmination of a comprehensive 

plan that the agency announced in 1996 

to address the adverse effects of air bags. 

This plan also included an extensive 

consumer education program to 

encourage the placement of children in 

rear seats. The new requirements were 

phased in beginning with the 2004 

model year. 

Small volume manufacturers were not 

subject to the advanced air bag 

requirements until September 1, 2006, 

but their efforts to bring their respective 

vehicles into compliance with these 

requirements began several years earlier. 

However, because the new requirements 

were challenging, major air bag 

suppliers concentrated their efforts on 

working with large volume 

manufacturers, and thus, until recently, 

small volume manufacturers had 

limited access to advanced air bag 

technology. Because of the nature of the 

requirements for protecting out-ofposition occupants, ‘‘off-the-shelf’’ 

systems could not be readily adopted. 

Further complicating matters, because 

small volume manufacturers build so 

few vehicles, the costs of developing 

custom air bag systems compared to 

potential benefits discouraged some air 

bag suppliers from working with small 

volume manufacturers. 

The agency has carefully tracked 

occupant fatalities resulting from air bag 

deployment. Our data indicate that the 

agency’s efforts in the area of consumer 

education and manufacturers’ providing 

depowered air bags were successful in 

reducing air bag fatalities even before 

advanced air bag requirements were 

implemented. As always, we are 

concerned about the potential safety 

implication of any temporary 

exemptions granted by this agency. 

In a petition submitted on August 17, 

2007,3 Spyker Automobielen B.V. 

(‘‘Spyker’’) requested a limited 

extension of the temporary exemption 

that it previously received,4 i.e., a threeyear hardship exemption from the 

‘‘basic’’ air bag requirements and 

advanced air bag provisions of FMVSS 

No. 208, Occupant Crash Protection, as 

well as from 49 CFR Part 581, Bumper 

Standard. The requested exemption 

would apply to the Spyker C vehicle 

line and would apply to certain 

advanced air bag requirements, 

specifically the requirements in S19, 

S21, S23, and S25 (the child and 5th 

percentile adult female driver out-ofposition portions of the advanced air 

bag provisions of FMVSS No. 208). 

Spyker requested an extension for 

exemption from these requirements 

through December 15, 2010. 

II. Overview and Statutory Background 

of Petition for Economic Hardship 

Exemption 

In accordance with 49 U.S.C. 30113 

and the procedures in 49 CFR Part 555, 

Spyker has petitioned the agency for a 

limited extension of a temporary 

exemption from certain requirements of 

FMVSS No. 208. The basis for the 

application was 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). 

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 include any 

provision indicating that a manufacturer 

might have 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(a)(5)) 

to be sufficiently broad to include 

sponsors, depending on the 

circumstances. Thus, 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. 

Finally, while 49 U.S.C. 30113(b) 

states that exemptions from a Safety Act 

standard are to be granted on a 

‘‘temporary basis,’’ the statute also 

expressly provides for renewal of an 

exemption on reapplication.5

Manufacturers are nevertheless 

cautioned that the agency’s decision to 

grant an initial petition in no way 

predetermines that the agency will 

repeatedly grant renewal petitions, 

thereby imparting semi-permanent 

exemption from a safety standard. 

Exempted manufacturers seeking 

renewal must bear in mind that the 

agency is directed to consider financial 

hardship as but one factor, along with 

the manufacturer’s on-going good faith 

efforts to comply with the regulation, 

the public interest, consistency with the 

Safety Act, generally, as well as other 

such matters provided in the statute. 

III. Petition of Spyker 

Background. NHTSA notes that a 

manufacturer is eligible to apply for a 

hardship exemption if its total motor 

vehicle production in its most recent 

year of production does not exceed 

10,000, as determined by the NHTSA 

Administrator (49 U.S.C. 30113(d)). In 

its petition, Spyker stated that it 

manufactured 94 automobiles in 2006 

and estimated a total production of 106 

automobiles in 2007. Spyker stated that 

60 automobiles were imported into the 

U.S. in 2006, and Spyker projected that 

U.S. imports would total 70 Spyker 

automobiles in 2007. Subsequently, 

Spyker advised NHTSA that it 

manufactured 22 automobiles in 2007 

and 43 in 2008. Seven Spyker 

automobiles were imported into the U.S. 

in 2007 and 6 were imported in 2008. 

Spyker is a wholly owned subsidiary 

of Spyker Cars NV, a publicly traded 

Dutch company. Spyker stated that it is 

unaware of any other automobile 

manufacturer having an ownership 

interest in Spyker.6 Moreover, Spyker 

stated that Spyker Cars NV has no 

ownership interest in any other vehicle 


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Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12927 

7The previous exemption covered these 

provisions by including S14. 

8We note that under 49 CFR 555.8(e), ‘‘if an 

application for renewal of temporary exemption 

that meets the requirements of § 555.5 has been 

filed not later than 60 days before the termination 

date of an exemption, the exemption does not 

terminate until the Administrator grants or denies 

the application for renewal.’’ 

9See 70 FR 39007 (July 6, 2005). 

10All dollar values are based on an exchange rate 

of 1 Euro = $1.30. 

11See Supplement to Petition of Spyker Cars for 

Limited Extension of Temporary Exemption (April 

7, 2008), Docket No. NHTSA–2008–0107–0003. 

manufacturer, and is not under any 

common control with another 

automobile manufacturer. 

In July 2005, NHTSA granted Spyker 

a three-year hardship exemption from 

the ‘‘basic’’ air bag requirements and 

advanced air bag provisions of FMVSS 

No. 208 (S4.1.5.3; S14), and Part 581, 

expiring on June 15, 2008 (70 FR 39007; 

July 6, 2005). In this same grant, NHTSA 

also exempted Spyker from S7 of 

FMVSS No. 108, Lamps, Reflective 

Devices, and Associated Equipment, for 

the first 10 Spyker C8 vehicles imported 

into the United States. 

Requested exemption. Spyker is 

requesting a limited extension of that 

temporary exemption. Spyker is 

requesting an exemption from the child 

and 5th percentile adult female driver 

out-of-position portions of the advanced 

air bag provisions of FMVSS No. 208 

(S19, S21, S23, and S25).7 Spyker’s 

previous exemption extended until June 

15, 2008,8 and Spyker requested a twoand-a-half year extension that would 

exempt Spyker’s C8 vehicle line from 

the listed advanced air bag requirements 

through December 15, 2010. Spyker 

submitted a supplement to their petition 

on April 7, 2008, which is posted in this 

docket, and which included updated 

financial information from 2007. See 

Docket No. NHTSA–2008–0107–0003. 

Economic hardship. Spyker stated 

that its previously established financial 

hardship 9 continues, in part due to the 

start-up nature of the company. 

Specifically, Spyker’s financial 

information submission showed a net 

operating loss of 13,000,000 Euros 

($16,900,000) from 2004 to 2006.10

Spyker originally projected a further 

loss in 2007 of 6,500,000 Euros 

($8,450,000). Moreover, based on 2008– 

2010 projections, Spyker estimated that 

if the limited extension is denied, 

Spyker will bear a loss of over 2,000,000 

Euros ($2,600,000) during that time. 

Spyker also stated that the loss of sales 

in the U.S. that would result if the 

limited extension is 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 

argued that such consequences 

demonstrate ‘‘substantial economic 

hardship’’ within the meaning of 49 

U.S.C. 30113(b)(3)(B)(i). 

On April 7, 2008, Spyker submitted to 

NHTSA a supplement to their petition 

because Spyker had recently updated its 

accounts for 2007.11 Spyker stated in its 

supplement to its petition that 2007 

losses now total 16,000,000 Euros 

($20,800,000), and stated that this 

higher number was due to their parent 

company having sold its interest in its 

Formula 1 (‘‘F1’’) racing team, and 

extraordinary financing and consulting 

costs. This new financial statement 

information is in further support of the 

substantial economic hardship criterion. 

Good faith efforts to comply. Spyker 

stated that when it filed for the original 

exemption, the C vehicle line had no air 

bag system at all, and that the 

windshield design does not permit a 

top-mounted air bag on the passenger 

side, thereby precluding the use of a low 

risk deployment system. Spyker 

indicated that it has spent over 

3,500,000 Euros bringing the C vehicle 

line into compliance with all of the 

high-speed belted and unbelted crash 

test requirements of the Advanced Air 

Bag rule by developing an ‘‘interim’’ 

driver air bag system for the C vehicle 

line. However, it stated that it has not 

been able to bring the vehicle into 

compliance with the child out-ofposition requirements (S19, S21, and 

S23), and the 5th percentile adult 

female out-of-position requirements for 

the driver seat (S25). Despite efforts to 

involve numerous potential suppliers, 

Spyker has not identified any that are 

willing to work with the company to 

develop an automatic suppression 

system for compliance with S19, S21, 

and S23. Spyker has budgeted an 

additional 3,500,000 Euros for 2008– 

2010 to develop, test and build a fullycompliant advanced air bag system for 

the new C line vehicle. Spyker also 

indicated that by the time its new D 

vehicle line is launched, Spyker will 

have spent 5,500,000 Euros developing 

for this new line an advanced air bag 

system fully compliant with FMVSS No. 

208. 

Spyker further indicated that it plans 

to re-engineer the C vehicle line for 

model year 2011, at which time the D 

line advanced air bag system will be 

incorporated into the new C line, 

making the redesigned C line fully 

compliant with all advanced air bag 

requirements. Spyker stated that it will 

use the extension period, if granted, to 

develop, test, tool and implement the 

redesigned model. 

Spyker argues that an exemption 

would be in the 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 stated that the exempted 

vehicles will comply with all FMVSSs 

other than the provisions that are the 

subject of this extension request. 

2. The petitioner stated 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 17 

dealers. Spyker argued that denial of an 

extension will negatively impact these 

companies. 

3. Spyker argued that if the exemption 

is not granted, U.S. consumer choice 

would be harmed and that the agency 

has long maintained that the National 

Traffic and Motor Vehicle Safety Act 

seeks, if possible, to avoid limiting 

consumer choice. 

4. The petitioner argued that given its 

exotic design and high-performance 

nature, the C vehicle line is not 

expected to be used extensively, nor is 

it expected to carry children with any 

frequency. 

5. Spyker stated that as of the 

submission date of its application for 

extension, approximately 60 exempted 

C line Spykers have been imported into 

the U.S. and there have been no reports 

of any air bag-related injuries. 

6. Spyker stated that an important 

safety feature on the C line offers 

enhanced occupant protection. The 

petitioner stated that occupants are 

positioned in a protective ‘‘cell’’ 

because the main chassis structure is 

built around them. 

IV. Federal Register Notice of May 27, 

2008 

In the Federal Register of May 27, 

2008 (73 FR 30443), we published a 

notice announcing receipt of an 

application from Spyker for a limited 

extension of a previously received 

temporary exemption from the 

advanced air bag requirements of 

FMVSS No. 208 for the Spyker C vehicle 

line. We invited public comment on 

Spyker’s application. We received one 

comment in response to this publication 

from Spyker in support of its petition. 

See Docket No. NHTSA–2008–0107– 

0004. The comment was brief and 

provided an update on Spyker’s air bag 

development work, confirming that the 

driver air bag was incorporated into 

Spyker vehicle production as of the start 


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12928 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 

12The precise figures are provided in the 

confidential version of the petition. 

of the second quarter of 2008. It stated 

that the passenger air bag development 

has been proceeding with testing and 

would be incorporated into all vehicle 

production prior to the expiration of the 

current exemption. 

V. NHTSA Analysis of Petition 

The following discussion provides 

our decision regarding Spyker’s 

temporary exemption request pertaining 

to the advanced air bag requirement of 

FMVSS No. 208. 

In July 2005 Spyker was granted a 

temporary exemption from the bumper 

standard and from the ‘‘basic’’ air bag 

requirements. Despite significant 

expenditures of capital and labor in 

pursuit of compliance,12 Spyker was 

unable to bring its Spyker C vehicle line 

into compliance with all of the 

advanced air bag requirements 

(although, we note, it was able to 

comply with sections S14.5, S15, and 

S17 of Standard No. 208, as well as 49 

CFR Part 581, Bumper Standard). 

Spyker stated that the U.S. sales 

losses that would occur as the result of 

an exemption extension denial could 

not be made up in the rest of the world 

because the U.S. is by far the largest 

market for Spyker vehicles, representing 

approximately 70 percent of Spyker 

sales. At the time of the petition, Spyker 

estimated that the difference between 

granting and denying the extension 

would amount to 35,000,000 Euros 

($45,500,000). Spyker stated that such 

consequences demonstrate ‘‘substantial 

economic hardship’’ within the meaning 

of 49 U.S.C. 30113(b)(3)(B)(i). 

Spyker has requested that additional 

specific details regarding its finances 

and financial forecasts be afforded 

confidential treatment under 49 CFR 

512.4, asserting a claim for confidential 

information. NHTSA has granted the 

request and determined that this 

information is to be afforded 

confidential treatment. 

While it complies with a significant 

portion of the requirements of FMVSS 

No. 208, the petitioner has not been able 

to achieve full compliance despite 

considerable effort put forth to that end. 

When Spyker applied for and was 

granted its original exemption, the C8 

vehicle line had no air bag system at all 

because the original vehicle was 

designed in 2000 without the U.S. 

market and air bags in mind. Spyker 

indicated that it has spent over 

3,500,000 Euros bringing the C vehicle 

line into compliance with all of the 

high-speed belted and unbelted crash 

test requirements of the advanced air 

bag requirements by developing an 

‘‘interim’’ driver air bag system for the 

C vehicle line. However, it stated that it 

has not been able to bring the vehicle 

into compliance with the child out-ofposition requirements (S19, S21, and 

S23), and the 5th percentile adult 

female out-of-position requirements for 

the driver seat (S25). Despite recent 

efforts to involve numerous potential 

suppliers, Spyker has not identified any 

that are willing to work with the 

company to develop an automatic 

suppression system for compliance with 

S19, S21, and S23. Spyker has budgeted 

an additional 3,500,000 Euros for 2008– 

2010 to develop, test and build a fullycompliant advanced air bag system for 

the new C line vehicle. Spyker also 

indicated that by the time its new D 

vehicle line is launched, Spyker will 

have spent 5,500,000 Euros developing 

for this new line an advanced air bag 

system fully compliant with FMVSS No. 

208. Additionally, Spyker stated in its 

petition that it plans to re-engineer the 

C line for MY 2011 (including new 

tooling), at which time the D line 

advanced air bag system will be 

incorporated into the C line, making the 

redesigned C line fully compliant with 

FMVSS No. 208. Spyker explains that it 

would use the exemption extension 

period to develop, test, tool, and 

implement the redesigned model. 

Given the above discussion, we 

conclude that Spyker has demonstrated 

good faith effort to bring its vehicles 

into compliance with the relevant 

advanced air bag requirements of 

FMVSS No. 208 and has also 

demonstrated the requisite financial 

hardship. 

We believe there are public interest 

considerations served by granting this 

petition. These include the general 

consideration of affording consumers a 

wider variety of motor vehicle choices 

and the economic benefits of affording 

continued employment to the Spyker’s 

U.S. work force and distribution 

network. Moreover, we believe this 

exemption will have a minimal impact 

on safety given the limited number of 

vehicles, the relatively low-use nature of 

the vehicle, and the rare use of the 

vehicle by young children. 

After considering all of the relevant 

information, including Spyker’s 

commitment to meet the advanced air 

bag requirements for the redesigned 

vehicle, we believe Spyker has 

presented a persuasive case for 

extending, in a limited way, the current 

exemption until December 15, 2010. 

The agency notes that the vehicle 

subject to this petition must comply 

with the other portions of FMVSS No. 

208 and all other applicable Federal 

motor vehicle safety standards. 

VI. Agency Decision 

In consideration of the foregoing, we 

conclude that compliance with the 

advanced air bag requirements of 

FMVSS No. 208, Occupant Crash 

Protection, would cause substantial 

economic hardship to a small-volume 

manufacturer that has tried in good faith 

to comply with the standard. We further 

conclude that granting of an exemption 

would be in the public interest and 

consistent with the objectives of traffic 

safety. 

We note that, as explained below, 

prospective purchasers will be notified 

that the vehicle is exempted from the 

specified advanced air bag requirements 

of FMVSS No. 208. Under 49 CFR 

§ 555.9(b), a manufacturer of an 

exempted passenger car 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 

Federal motor vehicle safety standards 

in effect on the date of manufacture 

‘‘except for Standards Nos. [listing the 

standards by number and title for which 

an exemption has been granted] 

exempted pursuant to NHTSA 

Exemption No.lllll.’’ This label 

notifies prospective purchasers about 

the exemption and its subject. Under 49 

CFR 555.9(c), this information must also 

be included on the vehicle’s 

certification label. 

We note that the text of 49 CFR 555.9 

does not expressly indicate how the 

required statement on the two labels 

should read in situations where an 

exemption covers part but not all of a 

Federal motor vehicle safety standard. 

Specifically in the case of FMVSS No. 

208, we believe that a statement that the 

vehicle has been exempted from FMVSS 

No. 208 generally, without an indication 

that the exemption is limited to the 

specified advanced air bag provisions, 

could be misleading. A consumer might 

incorrectly believe that the vehicle has 

been exempted from all of FMVSS No. 

208’s requirements. Moreover, we 

believe that the addition of a reference 

to such provisions by number without 

an indication of its subject matter would 

be of little use to consumers, since they 

would not know the subject of those 

specific provisions. For these reasons, 

we believe the two labels should read in 

relevant part, ‘‘except for S19, S21, S23, 

and S25 (Advanced Air Bag 

Requirements) of Standard No. 208, 

Occupant Crash Protection, exempted 

pursuant to * * *.’’ We note that the 

phrase ‘‘Advanced Air Bag 


PWALKER on PROD1PC71 with NOTICES
Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Notices 12929 

1Since 1989, the cost recovery procedures have 

required that the quarterly rail cost adjustment 

factor (RCAF) be adjusted for long-run changes in 

railroad productivity. The ICC Termination Act of 

1995 continues this requirement (49 U.S.C. 10708, 

as revised). The long-run measure of productivity 

is computed using a 5-year moving geometric mean. 

See Productivity Adjustment-Implementation, 9 

I.C.C.2d 1072 (1993). 

Requirements’’ is an abbreviated form of 

the title of S14 of FMVSS No. 208. 

In accordance with 49 U.S.C. 

30113(b)(3)(B)(i), Spyker is granted 

NHTSA Temporary Exemption No. EX 

08–03, from S19, S21, S23 and S25 of 

FMVSS No. 208. The exemption shall 

remain in effect until December 15, 

2010. 

(49 U.S.C. 30113; delegations of 

authority at 49 CFR 1.50. and 501.8) 

Issued on: March 19, 2009. 

Ronald L. Medford, 

Acting Deputy Administrator. 

[FR Doc. E9–6576 Filed 3–24–09; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

Surface Transportation Board 

[STB Ex Parte No. 290 (Sub-No. 4)] 

Railroad Cost Recovery Procedures— 

Productivity Adjustment 

AGENCY: Surface Transportation Board. 

ACTION: Adoption of a railroad cost 

recovery procedures productivity 

adjustment. 

SUMMARY: In a decision served on 

February 5, 2009, we proposed to adopt 

1.012 (1.2% per year) as the measure of 

average change in railroad productivity 

for the 2003–2007 (5-year) averaging 

period. This value represented no 

change from the current measure of 

1.2% that was developed for the 2002– 

2006 period. The decision stated that 

comments may be filed addressing any 

perceived data and computational errors 

in our calculation. It also stated that, if 

there were no further action taken by 

the Board, the proposed productivity 

adjustment would become effective on 

March 1, 2009.1

On February 23, 2009, the Board 

received comments from the 

Association of American Railroads 

(AAR). AAR noted that that they could 

not check the computation of the 

productivity value without access to 

certain input data. To ensure that 

release of this data would not violate 

our confidentiality practices, we 

conducted additional analysis of the 

data AAR referenced. In that review, we 

found inconsistencies in our application 

of the program processes used to 

compute our most recent estimate of 

productivity change. Therefore, we 

reopened this proceeding based on 

material error under 49 U.S.C. 722(c) to 

correct these inconsistencies and issued 

a modified annual productivity decision 

on March 20, 2009. We find that the 

increase in productivity in 2007 should 

have been reported as 1.018 instead of 

1.004. As a result, the 5-year geometric 

mean of the annual change in 

productivity is 1.015 (or 1.5% per year), 

not 1.012 (or 1.2% per year), as 

originally reported. 

In its comments, AAR also requested 

that we eliminate reference to the 

arithmetic mean over the previous five 

years, as that mean is not required by 

regulation. We had originally reported 

the 2003–2007 productivity growth 

using both an arithmetic and geometric 

mean. The AAR is correct to note that 

the arithmetic mean is not used in any 

required applications and can be a 

source of confusion. Therefore, we will 

no longer publish the arithmetic mean 

in future Ex Parte No. 290 (Sub-No. 4) 

decisions. 

DATES: Effective Date: The productivity 

adjustment is effective March 20, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Pedro Ramirez, (202) 245–0333. [Federal 

Information Relay Service (FIRS) for the 

hearing impaired: 1–800–877–8339.] 

SUPPLEMENTARY INFORMATION: 

Additional information is contained in 

the Board’s decision, which is available 

on our Web site http://www.stb.dot.gov. 

This action will not significantly 

affect either the quality of the human 

environment or energy conservation. 

Pursuant to 5 U.S.C. 605(b), we 

conclude that our action will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act. 

Decided: March 20, 2009. 

By the Board, Chairman Mulvey, and Vice 

Chairman Nottingham. 

Jeffrey Herzig, 

Clearance Clerk. 

[FR Doc. E9–6622 Filed 3–24–09; 8:45 am] 

BILLING CODE 4915–01–P 


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