Hemphill Brothers Leasing Company; Receipt of Petition for Temporary Exemption From Shoulder Belt Requirement for Side-Facing Seats on Motorcoaches |
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Topics: Hemphill Brothers Coach Company
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Raymond R. Posten
National Highway Traffic Safety Administration
28 March 2019
[Federal Register Volume 84, Number 60 (Thursday, March 28, 2019)]
[Proposed Rules]
[Pages 11735-11738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05444]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 555
[Docket No. NHTSA-2019-0019]
Hemphill Brothers Leasing Company; Receipt of Petition for
Temporary Exemption From Shoulder Belt Requirement for Side-Facing
Seats on Motorcoaches
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Notice of receipt of a petition for a temporary exemption;
request for comment.
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SUMMARY: Hemphill Brothers Leasing Company, LLC (Hemphill) has
submitted a petition, dated April 5, 2018, for a temporary exemption
from a shoulder belt requirement of Federal Motor Vehicle Safety
Standard (FMVSS) No. 208, ``Occupant crash protection,'' for side-
facing seats on motorcoaches. NHTSA is publishing this document in
accordance with statutory and administrative provisions, and requests
[[Page 11736]]
comments on the petition and this notice. NHTSA has made no judgment on
the merits of Hemphill's petition, except to note a few aspects of the
petition that appear not to accord with the provisions of Part 555.
DATES: If you would like to comment on the petition, you should submit
your comment not later than April 29, 2019.
FOR FURTHER INFORMATION CONTACT: Deirdre Fujita, Office of the Chief
Counsel, NCC-200, National Highway Traffic Safety Administration, 1200
New Jersey Avenue SE, Washington, DC 20590. Telephone: 202-366-2992;
Fax: 202-366-3820.
ADDRESSES: You may submit your comment, identified by the docket number
in the heading of this document, by any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Fax: 1-202-493-2251.
Mail: U.S. Department of Transportation, Docket
Operations, M-30, Room W12-140, 1200 New Jersey Avenue SE, Washington,
DC 20590.
Hand Delivery: 1200 New Jersey Avenue SE, West Building
Ground Floor, Room W12-140, Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal Holidays.
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. NHTSA will
consider all comments received before the close of business on the
comment closing date indicated above. To the extent possible, NHTSA
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 a.m. and 5 p.m. Monday through Friday,
except Federal Holidays. Telephone: 202-366-9826.
Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits
comments from the public to better inform its rulemaking process. DOT
posts these comments, without edit, to www.regulations.gov, as
described in the system of records notice, DOT/ALL-14 FDMS, accessible
through www.dot.gov/privacy. In order to facilitate comment tracking
and response, the agency encourages commenters to provide their name,
or the name of their organization; however, submission of names is
completely optional. Whether or not commenters identify themselves, all
timely comments will be fully considered. If you wish to provide
comments containing proprietary or confidential information, please see
below.
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 a copy, 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. Background
a. Statutory Authority for Temporary Exemptions
The National Traffic and Motor Vehicle Safety Act (Safety Act),
codified as 49 U.S.C. chapter 301, provides the Secretary of
Transportation authority to exempt, on a temporary basis, under
specified circumstances, and on terms the Secretary deems appropriate,
motor vehicles from a motor vehicle safety standard or bumper standard.
This authority and circumstances are set forth in 49 U.S.C. 30113. The
Secretary has delegated the authority for implementing this section to
NHTSA.
NHTSA established 49 CFR part 555, Temporary Exemption from Motor
Vehicle Safety and Bumper Standards, to implement the statutory
provisions concerning temporary exemptions. Under Part 555 subpart A, a
vehicle manufacturer seeking an exemption must submit a petition for
exemption containing specified information. Among other things, the
petition must set forth (a) the reasons why granting the exemption
would be in the public interest and consistent with the objectives of
the Safety Act, and (b) required information showing that the
manufacturer satisfies one of four bases for an exemption.\1\ Hemphill
is applying on the basis that compliance with the standard would
prevent the manufacturer from selling a motor vehicle with an overall
safety level at least equal to the overall safety level of nonexempt
vehicles (see 49 CFR 555.6(d)). A manufacturer is eligible for an
exemption under this basis only if NHTSA determines the exemption is
for not more than 2,500 vehicles to be sold in the U.S. in any 12-month
period. An exemption under this basis may be granted for not more than
2 years but may be renewed upon reapplication.\2\
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\1\ 49 CFR 555.5(b)(5) and 555.5(b)(7).
\2\ 555.8(b) and 555.8(e).
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b. Receipt of Petition
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR
part 555, Hemphill submitted an April 5, 2018 dated petition asking
NHTSA for a temporary exemption from the shoulder belt requirement of
FMVSS No. 208 for side-facing seats on its motorcoaches. The basis for
the application is that compliance would prevent Hemphill from selling
a motor vehicle with an overall safety level at least equal to the
overall safety level of nonexempt vehicles (49 CFR 555.6(d)). To view
the petition (and documents Hemphill later submitted amending it), go
to http://www.regulations.gov and enter the docket number set forth in
the heading of this document.\3\
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\3\ On December 26, 2018, NHTSA published a final rule that
amended 49 CFR part 555, effective January 25, 2019, to eliminate a
provision that called for the agency to determine that a petition is
complete before NHTSA publishes a notice summarizing the petition
and soliciting public comments on it (83 FR 66158).
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Hemphill describes itself as a second-stage manufacturer \4\
organized under the laws of Tennessee. The petitioner states that it
typically receives a bus shell \5\ from an ``original manufacturer''
and ``customizes the Over-the-Road Bus (`OTRB') to meet the needs of
entertainers, politicians, musicians, celebrities and other specialized
customers who use motorcoaches as a necessity for their businesses.''
[[Page 11737]]
Hemphill states that it ``builds out the complete interior'' of the bus
shell, including--
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\4\ While ``second-stage manufacturer'' is not defined in
NHTSA's regulations, the agency believes Hemphill is referring to a
``final-stage manufacturer,'' which is defined in NHTSA's
certification regulation (49 CFR part 567) as ``a person who
performs such manufacturing operations on an incomplete vehicle that
it becomes a completed vehicle'' (49 CFR 567.3).
\5\ The petition states (p. 2) that the bus shell ``generally
contains the following components: exterior frame; driver's seat;
dash cluster, speedometer, emissions light and emissions diagnosis
connector; exterior lighting, headlights, marker lights, turn
signals lights, and brake lights; exterior glass, windshield and
side lights with emergency exits; windshield wiper system; braking
system; tires, tire pressure monitoring system and suspension; and
engine and transmission.''
roof escape hatch; fire suppression systems (interior living space,
rear tires, electrical panels, bay storage compartments, and
generator); ceiling, side walls and flooring; seating; electrical
system, generator, invertor and house batteries; interior lighting;
interior entertainment equipment; heating, ventilation and cooling
system; galley with potable water, cooking equipment, refrigerators,
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and storage cabinets; bathroom and showers; and sleeping positions.
Hemphill states that it also operates the vehicles as a for-hire
motor carrier of passengers, ``leas[ing] the vehicle with driver to a
customer on an exclusive basis for a designated period of time.'' The
petitioner states that ``fewer than 100 entertainer-type motorcoaches
with side-facing seats are manufactured and enter the U.S. market each
year.'' Hemphill seeks to install Type 1 seat belts (lap belt only) at
side-facing seating positions, instead of Type 2 seat belts (lap and
shoulder belts) as required by FMVSS No. 208. Hemphill states that,
absent the requested exemption, it will otherwise be unable to sell a
motorcoach whose overall level of safety or impact protection is at
least equal to that of a nonexempted motorcoach.
Pursuant to 49 CFR 555.6(d), an application must provide ``[a]
detailed analysis of how the vehicle provides the overall level of
safety or impact protection at least equal to that of nonexempt
vehicles.'' Hemphill refers to NHTSA's discussions in an earlier NHTSA
rulemaking, summarized below, about the absence of the need for, and
safety concerns about, the shoulder portion of Type 2 belts on side-
facing seats in certain buses.
c. Seat Belt Rulemaking
On November 25, 2013, NHTSA published a final rule amending FMVSS
No. 208 to require seat belts for each passenger seating position in
all new over-the-road buses (regardless of gross vehicle weight rating
(GVWR)), and all other buses with GVWRs greater than 11,793 kilograms
(kg) (26,000 pounds (lb)) (with certain exclusions).\6\ The final rule
became effective November 28, 2016 for buses manufactured in a single
stage, and a year later for buses manufactured in more than one stage.
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\6\ 78 FR 70416 (November 25, 2013); response to petitions for
reconsideration, 81 FR 19902 (April 6, 2016).
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Hemphill is a final-stage manufacturer of buses covered by the seat
belt rule. Thus, Hemphill's over-the-road buses and buses with a GVWR
greater than 11,793 kg (26,000 lb), manufactured on or after November
28, 2017, are required to have Type 2 seat belts (lap and shoulder seat
belts) at all passenger seating positions.
NHTSA commenced the seat belt rulemaking by publishing a notice of
proposed rulemaking (NPRM) on August 18, 2010.\7\ For side-facing
seating positions, the NPRM proposed to provide manufacturers the
option of installing either a Type 1 (lap belt) or a Type 2 (lap and
shoulder belt).\8\ This proposed option was consistent with a provision
in FMVSS No. 208 that allows lap belts for side-facing seats on buses
with a GVWR of 4,536 kg (10,000 lb) or less. The agency proposed to
permit lap belts in side-facing seats because NHTSA was unaware of any
demonstrable increase in associated risk of lap belts compared to lap/
shoulder belts. The agency also stated \9\ that ``a study commissioned
by the European Commission regarding side-facing seats on minibuses and
motorcoaches found that due to different seat belt designs, crash modes
and a lack of real world data, it cannot be determined whether a lap
belt or a lap/shoulder belt would be the most effective.'' \10\
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\7\ 75 FR 50958.
\8\ 75 FR at 50971.
\9\ 75 FR at 50971-50972.
\10\ http://ec.europa.eu/enterprise/automotive/projects/safety_consid_long_stg.pdf. [Footnote in text.]
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However, after the NPRM was published, the Motorcoach Enhanced
Safety Act of 2012 was enacted as part of the Moving Ahead for Progress
in the 21st Century Act (MAP-21), Public Law 112-141 (July 6, 2012).
Section 32703(a) of MAP-21 directed the Secretary of Transportation
(authority has been delegated to NHTSA) to ``prescribe regulations
requiring safety belts to be installed in motorcoaches at each
designated seating position.'' \11\ MAP-21 stated in Sec. 32702(12):
``The term `safety belt' has the meaning given the term in section
153(i)(4)(B) of title 23, United States Code.'' This provision defines
``safety belt'' as ``an occupant restraint system consisting of
integrated lap shoulder belts.'' Thus, in response to MAP-21, NHTSA's
final rule amended FMVSS No. 208 to require lap/shoulder belts at all
designated seating positions, including side-facing seats, on over-the-
road buses.\12\
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\11\ MAP-21 states at Sec. 32702(6) that ``the term
`motorcoach' has the meaning given the term `over-the-road bus' in
section 3038(a)(3) of the Transportation Equity Act for the 21st
Century (49 U.S.C. 5310 note), but does not include a bus used in
public transportation provided by, or on behalf of, a public
transportation agency; or a school bus, including a multifunction
school activity bus.'' Section 3038(a)(3) (49 U.S.C. 5310 note)
states: ``The term `over-the-road bus' means a bus characterized by
an elevated passenger deck located over a baggage compartment.''
\12\ For side-facing seats on buses other than over-the-road
buses, in the final rule NHTSA permitted either lap or lap/shoulder
belts at the manufacturer's option.
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At the same time, in the November 25, 2013 final rule preamble,
NHTSA acknowledged that the agency had declined to require lap/shoulder
belts on side-facing seats of light vehicles because NHTSA believed
``the addition of a shoulder belt at [side-facing seats on light
vehicles] is of limited value, given the paucity of data related to
side facing seats.'' \13\ NHTSA also recognized there have been
concerns in the past about a shoulder belt on side-facing seats, noting
in the final rule that, although the agency has no direct evidence that
shoulder belts may cause serious neck injuries when applied to side-
facing seats, there are simulation data indicative of potential carotid
artery injury when the neck is loaded by the shoulder belt.\14\ In
addition, the agency noted that Australian Design Rule ADR 5/04,
``Anchorages for Seatbelts'' has specifically prohibited shoulder belts
for side-facing seats since 1975. In the November 2013 final rule,
NHTSA stated that given there would likely be few side-facing seats on
over-the-road buses, and in view of the unknowns about shoulder belt
loading of an occupant's neck on a side-facing seat,
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\13\ 78 FR at 70448, quoting from the agency's Anton's Law final
rule which required lap/shoulder belts in forward-facing rear
seating positions of light vehicles, 59 FR 70907.
\14\ Editors: Fildes, B., Digges, K., ``Occupant Protection in
Far Side Crashes,'' Monash University Accident Research Center,
Report No. 294, April 2010, pg. 57. [Footnote in text.]
manufacturers of over-the-road buses seeking to install lap belts on
side-facing seats may petition NHTSA for a temporary exemption from
the requirement to install lap/shoulder belt at side-facing seats,
under 49 CFR part 555. The basis for the petition is that the
applicant is unable to sell a bus whose overall level of safety is
at least equal to that of a non-exempted vehicle. The agency would
be receptive to the argument that, for side-facing seats, lap belts
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provide an equivalent level of safety to lap/shoulder belts.
78 FR at 70448.
d. Summary of Petitioner's Arguments
After reiterating NHTSA's discussions in the seat belt rulemaking,
the petitioner states that NHTSA has not conducted testing on the
impact or injuries to passengers in side-facing seats in motorcoaches,
so ``there is no available credible data that supports requiring a Type
2 belt at the side-facing seating positions.'' Hemphill says that it
believes if it complies with the final rule
[[Page 11738]]
as published, it would be ``forced to offer'' customers--
a motorcoach with a safety feature that could make the occupants
less safe, or certainly at least no more safe, than if the feature
was not installed. The current requirement in FMVSS 208 for Type 2
belts at side-facing seating positions in OTRBs makes the applicants
unable to sell a motor vehicle whose overall level of safety is
equivalent to or exceeds the level of safety of a non-exempted
vehicle.
Pursuant to 49 CFR 555.5(b)(7), the petitioner must state why
granting an exemption allowing it to install Type 1 instead of Type 2
seat belts in side-facing seats would be in the public interest and
consistent with the objectives of the Safety Act.
In a May 11, 2018 email providing this information, Hemphill states
that granting an exemption to allow manufacturers an option of
installing a Type 1 lap belt at side-facing seating positions is
consistent with the public interest because ``NHTSA's analysis in
developing this rule found that such belts presented no demonstrable
increase in associated risk.'' The petitioner also states that the
final rule requiring Type 2 belts at side-facing seats ``was not the
result of any change in NHTSA policy or analysis, but rather resulted
from an overly broad mandate by Congress for `safety belts to be
installed in motorcoaches at each designated seating position.' ''
Hemphill states that, ``based on the existing studies referenced herein
and noted in the rulemaking, petitioners assert that Type 1 belts at
side-facing seats may provide equivalent or even superior occupant
protection than Type 2 belts.''
The petitioner believes that an option for Type 1 belts at side-
facing seats is consistent with the objectives of 49 U.S.C. chapter 301
(the Safety Act) because, Hemphill states, Sec. 30111(a) of the Safety
Act states that the Secretary shall establish motor vehicle safety
standards that ``shall be practicable, meet the need for motor vehicle
safety, and be stated in objective terms.'' The petitioner states
that--
an option for Type 1 or Type 2 belts at side-facing seating
positions is practicable as it allows the manufacturer to determine
the best approach to motor vehicle safety depending on the intended
use of the vehicle and its overall design. Additionally, the option
to install either Type 1 or Type 2 belts at such locations meets the
need for motor vehicle safety as it is consistent with current
analysis by NHTSA and the European Commission that indicates no
demonstrable difference in risk between the two types of belts when
installed in sideways-facing seats. Finally, the option for Type 1
or Type 2 belts at side-facing seat locations provides an objective
standard that is easy for manufacturers to understand and meet.
Hemphill indicates that if there is no future NHTSA research,
testing or analysis to justify the use of Type 2 belts in side-facing
seats in over-the-road buses, it expects it will seek to renew the
exemption, if granted, at the end of the exemption period.
e. NHTSA's Observations on Aspects of the Petition
There are aspects of Hemphill's petition that appear inconsistent
with the provisions of Part 555 Subpart A. The agency acknowledges them
here for the benefit of the reader.
First, in its petition, Hemphill asks that if NHTSA grants the
exemption, the agency should apply the exemption ``retroactively to
November 28, 2017.'' Petitions for temporary exemptions are prospective
in application, not retroactive. Section 555.7(f) states: ``Unless a
later effective date is specified in the notice of the grant, a
temporary exemption is effective upon publication of the notice in the
Federal Register and exempts vehicles manufactured on and after the
effective date.'' Thus, if the petition is granted, it would apply to
vehicles manufactured on and after the effective date of the exemption,
which would be on publication of the notice or a later date.\15\
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\15\ For vehicles that have already been manufactured, a
manufacturer may petition for an exemption from the Safety Act's
notice and remedy requirements when a noncompliance is
inconsequential to motor vehicle safety. See 49 CFR part 556,
``Exemption for Inconsequential Defect or Noncompliance.''
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In its May 11, 2018 email, Hemphill argues that NHTSA has authority
to establish a November 17, 2017 \16\ effective date for the exemption
under 49 U.S.C. 30111(d) of the Safety Act. Section 30111 authorizes
NHTSA to prescribe FMVSSs, with subsection (d) generally prescribing
the effective dates that NHTSA may specify for the FMVSSs.\17\ Section
30111 does not apply to the effective dates for temporary exemptions.
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\16\ The petitioner does not explain why it changed the
requested date from November 28 to November 17. NHTSA assumes
Hemphill meant November 28.
\17\ Regarding the motorcoach seat belt rulemaking, Sec.
32703(e)(1) of MAP-21 prescribed the effective date for the rule.
That section states that the regulation shall ``apply to all
motorcoaches manufactured more than 3 years after the date on which
the regulation is published as a final rule.'' NHTSA provided multi-
stage manufacturers and alterers an additional year of lead time, in
accordance with 49 CFR 571.8(b). See, 78 FR at 70463, col. 3.
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Second, Hemphill states in its petition that it covers 39 ``other
petitioners'' listed in an attachment to the petition. Under Part 555
Subpart A, only one petitioner is covered by a petition. Section
30113(b)(2) of the Safety Act provides that the agency may begin a
proceeding ``when a manufacturer'' applies for an exemption (emphasis
added). Under the terms of 49 CFR 555.5, ``a manufacturer'' may apply
for a temporary exemption. In contrast, 49 CFR part 555 subpart B,
``Vehicles Built in Two or More Stages and Altered Vehicles,'' allows
an industry trade association representing a group of alterers or
manufacturers of motor vehicles built in two or more stages to file an
economic hardship petition representing the interests of multiple
manufacturers.\18\ When NHTSA proposed to adopt subpart B, NHTSA
described subpart B's allowing manufacturers to bundle petitions as
``relief not contained in the current version of part 555.'' \19\ Thus,
it appears Hemphill's April 5, 2018 petition for temporary exemption
could be considered as only from Hemphill, and not as a bundled
petition covering the other parties listed in the attachment to the
petition.
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\18\ Subpart B applies to applications, based on substantial
economic hardship, that seek a temporary exemption from a
performance requirement for which an FMVSS specifies the use of a
dynamic test procedure to determine compliance. Among other matters,
the application must explain the substantial economic hardship to
each of the manufacturers covered by the petition and provide a
complete financial statement for each manufacturer and a complete
description of each manufacturer's good faith efforts to comply with
the standard. See 49 CFR 555.13.
\19\ Supplemental notice of proposed rulemaking, 69 FR 36038,
36045 (June 28, 2004). The ``current version of part 555'' is a
reference to Part 555 Subpart A, which is the subpart under which
Hemphill submits its petition for temporary exemption.
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f. Comment Period
The agency seeks comment from the public on the merits of
Hemphill's petition for a temporary exemption from FMVSS No. 208's
shoulder belt requirement for side-facing seats. After considering
public comments and other available information, NHTSA will publish a
notice of final action on the petition in the Federal Register.
Issued in Washington, DC, under authority delegated in 49 CFR
1.95 and 501.8.
Raymond R. Posten,
Associate Administrator for Rulemaking.
[FR Doc. 2019-05444 Filed 3-27-19; 8:45 am]
BILLING CODE 4910-59-P