Parts and Accessories Necessary for Safe Operation; Denial of an Exemption Application From the Entertainer Motorcoach Council

Topics:  Entertainer Motorcoach Council

T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
December 7, 2015

[Federal Register Volume 80, Number 234 (Monday, December 7, 2015)]
[Notices]
[Pages 76062-76064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30802]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2015-0113]


Parts and Accessories Necessary for Safe Operation; Denial of an 
Exemption Application From the Entertainer Motorcoach Council

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Denial of exemption application.

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SUMMARY: FMCSA denies an exemption application from the Entertainer 
Motorcoach Council (EMC) to allow its members to operate certain 
vehicles that do not meet the emergency exit requirements in the 
Federal Motor Carrier Safety Regulations (FMCSR). The FMCSRs require 
buses with a gross vehicle weight rating (GVWR) of more than 10,000 
pounds, manufactured on or after September 1, 1994, to meet the 
emergency exit requirements of Federal Motor Vehicle Safety Standard 
(FMVSS) No. 217, ``Bus Emergency exits and window retention and 
release,'' in effect on the date of manufacture. FMVSS No. 217 requires 
side exits and at least one rear exit, but when the bus configuration 
precludes installation of an accessible rear exit, a roof exit is 
required in the rear half of the bus to provide a means of egress when 
the bus is overturned on either side. While EMC contends that 
``Entertainer Coaches'' that do not have a rear or roof exit have 
emergency exit windows that open manually at the rear sides of the 
vehicle that provide openings large enough to admit unobstructed 
passage, it did not provide evidence to enable the Agency to conclude 
that motor carriers operating such vehicles could achieve a level of 
safety that is equivalent to, or greater than, the level of safety that 
would be obtained by complying with the regulation.

FOR FURTHER INFORMATION CONTACT: Mr. Luke W. Loy, Vehicle and Roadside 
Operations Division, Office of Bus and Truck Standards and Operations, 
MC-PSV, (202) 366-0676; Federal Motor Carrier Safety Administration, 
1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century 
(TEA- 21) [Pub. L. 105-178, June 9, 1998, 112 Stat. 401] amended 49 
U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from 
the FMCSRs. On August 20, 2004, FMCSA published a final rule (69 FR 
51589) implementing section 4007. Under this rule, FMCSA must publish a 
notice of each exemption request in the Federal Register (49 CFR 
381.315(a)). The Agency must provide the public with an opportunity to 
inspect the information relevant to the application, including any 
safety analyses that have been conducted. The Agency must also provide 
an opportunity for public comment on the request.
    The Agency reviews the safety analyses and the public comments and 
determines whether granting the exemption would likely achieve a level 
of safety equivalent to or greater than the level that would be 
achieved by the current regulation (49 CFR 381.305). The decision of 
the Agency must be published in the Federal Register (49 CFR 
381.315(b)). If the Agency denies the request, it must state the reason 
for doing so. If the decision is to grant the exemption, the notice 
must specify the person or class of persons receiving the exemption and 
the regulatory provision or provisions from which an exemption is 
granted. The notice must specify the effective period of the exemption 
(up to 2 years) and explain the terms and conditions of the exemption. 
The exemption may be renewed (49 CFR 381.315(c) and 49 CFR 381.300(b)).

EMC Application for Exemption

    EMC applied for an exemption from 49 CFR 393.62(a) to allow motor 
carriers to operate certain ``Entertainer Coaches'' that do not comply 
with the regulation's emergency exit requirements. A copy of the 
application is included in the docket referenced at the beginning of 
this notice.
    Section 393.62(a) of the FMCSRs requires buses with a GVWR of more 
than 10,000 pounds, manufactured on or after September 1, 1994, to meet 
the emergency exit requirements of FMVSS No. 217 in effect on the date 
of manufacture. FMVSS No. 217 requires all buses (other than school 
buses) to provide unobstructed openings for emergency exit which 
collectively amount, in total square centimeters, to at least 432 times 
the number of designated seating positions on the bus.

[[Page 76063]]

At least 40 percent of the total required area of unobstructed openings 
shall be provided on each side of a bus. However, in determining the 
total unobstructed openings provided by a bus, no emergency exit, 
regardless of its area, shall be credited with more than 3,458 square 
centimeters of the total area requirement.
    For buses with a GVWR of more than 10,000 pounds, FMVSS No. 217 
requires that the unobstructed openings requirements be met by 
providing side exits and at least one rear exit. The rear exit must 
meet the requirements of S5.3-S5.5 of the standard when the bus is 
upright and when the bus is overturned on either side, with the 
occupant standing facing the exit. When the bus configuration precludes 
installation of an accessible rear exit, a roof exit that meets the 
requirements of S5.3-S5.5 of the standard when the bus is overturned on 
either side, with the occupant standing facing the exit, shall be 
provided in the rear half of the bus.
    Neither the FMVSSs nor the FMCSRs define the term ``Entertainer 
Coach.'' In its application, EMC describes these vehicles as ``motor 
vehicles constructed on a bus or MPV chassis which provide temporary 
residential accommodations, as evidenced by the presence of at least 
four of the following facilities: Cooking, refrigeration, self-
contained bathroom, heating and/or air conditioning, a potable water 
supply including a faucet and sink, and a separate 110-125 volt 
electric power supply. This definition generally tracks the definition 
of `motor home' in the FMVSS and appropriately describes coaches that 
are built as temporary residential accommodations for the entertainment 
industry.''
    In support of its application, EMC states:

    EMC seeks this exemption because the rear exit and roof hatch 
requirements in FMVSS 217 and FMCSR 393.62(a) preclude the efficient 
and effective operation of Entertainer Coaches. As required by 49 
CFR part 381.310(c)(5), Entertainer Coaches provide an equivalent 
level of safety when equipped with emergency exit windows at the 
rear sides of the vehicle that open manually and provide openings 
large enough to admit unobstructed passage. Entertainer Coaches are 
designed and used to provide temporary residential accommodations 
and, because the occupants are celebrities, their families and their 
staff, require an additional level of security to ensure security 
and protection for their occupants.
    The requirement for rear exits in buses over 10,000 lbs. GVWR is 
intended to ensure a sufficient amount of rear egress for vehicles 
that carry a large number of passengers. The typical motorcoach is 
45 feet in length and carry as many as 59 passengers. Entertainer 
Coaches, in contrast, typically carry less than 15 passengers, and 
many carry less than 10 passengers. EMC recognizes the importance of 
assuring access through the rear of the vehicles, even when the 
number of passengers is small. Such egress, however is readily 
available--as applied to Entertainer Coaches--by the emergency exit 
windows that come standard on the chassis generally used by the 
Entertainer Coach industry, the Prevost Entertainer 2000. Those 
windows allow for an egress area of 17'' tall by 24'' wide. The 
Prevost roof hatch allows for a similar egress area, 23'' x 23''. As 
a practical matter, the egress area is equivalent. As a result, 
Entertainer Coaches with emergency exit windows offer an equivalent 
level of safety as those with a roof hatch . . .
    Entertainer Coaches have an exemplary safety experience. Unlike 
the typical motorcoach passengers, these vehicle occupants are well 
acquainted with the vehicle. In particular, they are fully aware of 
the location and need for fast exit in the event of an emergency. 
Although fires can and do occur on these vehicles, the small number 
of occupants ensures safe exit from either the front or the back of 
the vehicle without the need for additional roof hatches. Such 
fires, furthermore, typically come from the back of the bus and 
occur when the bus is upright, further offsetting the practical need 
for a rear exit that meets the specific requirements of FMVSS 217.

    EMC states that ``If the exception is not granted, the entertainers 
will suffer serious disruption to their tour schedules. Denial of the 
exemption will also lead to significant economic impacts due to the 
failure of the entertainers to be able to appear as scheduled. The 
substantial disruption is not merited by any insistence on the strict 
construction of any overly broad requirement that does not take the 
unique circumstances of Entertainer Coaches into account.''

Public Comments

    On May 1, 2015, FMCSA published a notice of the EMC application and 
asked for public comment (80 FR 25002). The Agency received five 
comments, all opposed to EMC's exemption application.
    The National Transportation Safety Board (NTSB), Advocates for 
Highway and Auto Safety (Advocates), the Commercial Vehicle Safety 
Alliance (CVSA), the United Motorcoach Association (UMA), and an 
anonymous commenter all cited similar concerns in opposing the 
exemption application. The commenters noted that EMC had failed to 
demonstrate that an equivalent level of safety would be maintained in 
certain crash scenarios with only side emergency exit windows, but no 
rear and/or roof exits as required by FMVSS No. 217, specifically in a 
rollover crash scenario. For example, the NTSB stated ``A vehicle lying 
on its side with exits located only on the sides would be difficult to 
evacuate from because the only available emergency exits would be above 
the occupants. This could require an occupant to climb or be lifted as 
high as the width of the vehicle. The NTSB does not consider that 
emergency exits on two sides of a vehicle provide an alternative for 
emergency evacuation equivalent to the current requirements, which 
include either roof or rear emergency exits.'' Similarly, CVSA stated 
``In the event of a crash that leaves the bus on its side, the side 
window emergency exits and the entry door (which is usually counted as 
an emergency exit) will likely be unusable, which is why the National 
Highway Traffic Safety Administration's (NHTSA) Federal Motor Vehicle 
Safety Standards (FMVSS) require the rear window or roof emergency 
exits. The exemption request from EMC does not effectively demonstrate 
how an equivalent level of safety can be maintained.'' The Advocates 
stated that ``[t]he Applicants have not met the statutory and 
regulatory requirements for the exemption, including failing to provide 
an analysis of the safety impacts the requested exemption may cause and 
failing to provide information on the specific countermeasures to be 
undertaken to ensure an equivalent or greater level of safety than 
would be achieved absent the requested exemption.''
    FMCSA Response: On October 14, 1967, the Federal Highway 
Administration published an advance notice of proposed rulemaking 
(ANPRM) concerning the possible establishment of a standard regarding 
bus side and rear windows, push-out type windows, and emergency exits 
(32 FR 14278). On August 15, 1970, the National Highway Traffic Safety 
Administration (NHTSA) published a notice of proposed rulemaking (NPRM) 
proposing a standard that would require buses to meet minimum 
requirements in the above areas (35 FR 13025). The NPRM proposed that 
each bus, except school buses, have side and rear push-out windows 
which, when fully open, provide unobstructed openings for emergency 
exit. There were no provisions regarding roof exits in the NPRM.
    On May 10, 1972, NHTSA adopted FMVSS No. 217, a new motor vehicle 
safety standard establishing minimum requirements for bus window 
retention and release to reduce the likelihood of passenger ejection in 
accidents and enhance passenger exit in emergencies (37 FR 9394). While 
the 1970 NPRM did not include provisions regarding roof exits, the 
final rule permitted installation of an alternate roof exit when the 
bus configuration precludes

[[Page 76064]]

provision of a rear exit, providing that the roof exit meets the 
release, extension, and identification requirements of the standard. 
Specifically, the final rule noted ``The NHTSA has established this 
alternative in order to allow design flexibility while providing for 
emergency egress in rollover situations'' [Emphasis added]. Notably, 
the emergency exit requirements for buses with a GVWR of more than 
10,000 pounds have remained largely unchanged since the establishment 
of FMVSS No. 217 more than 40 years ago.
    FMCSA agrees with the commenters. The EMC application did not 
provide sufficient evidence to demonstrate that an Entertainer Coach 
without rear and/or roof emergency exits would be able to provide an 
equivalent level of safety when compared to a compliant vehicle, 
specifically in a rollover crash scenario. The intent of the 
requirements for rear and roof emergency exits in S5.2.2.2 of FMVSS No. 
217 is quite clear, in that those exits are required to meet the 
emergency exit release, opening, and identification requirements of the 
standard ``when the bus is overturned on either side, with the occupant 
standing facing the exit.'' Without the required rear and/or roof 
exits, emergency egress in rollover crash scenarios will likely be 
limited, possibly leading to increased numbers of fatalities and 
injuries in such crashes.

FMCSA Decision

    Based on the above, FMCSA denies the EMC exemption application. 
FMCSA is unable to determine--as required for an exemption by 49 CFR 
381.305(a)--that motor carriers would be able to maintain a level of 
safety equivalent to, or greater than, the level achieved without the 
exemption.

    Issued on: November 30, 2015.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2015-30802 Filed 12-4-15; 8:45 am]
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