Hemphill Brothers Leasing Company; Grant 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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James Clayton Owens
National Highway Traffic Safety Administration
14 November 2019
[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Notices]
[Pages 61966-61969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24490]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2019-0120]
Hemphill Brothers Leasing Company; Grant 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 grant of a petition for temporary exemption.
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SUMMARY: In accordance with the procedures in our regulations, NHTSA is
granting a petition from Hemphill Brothers Leasing Company, LLC
(Hemphill), 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. The grant
permits Hemphill to install Type 1 seat belts (lap belt only) at side-
facing seating positions, instead of Type 2 seat belts (lap and
shoulder belts). After reviewing the petition and the comments
received, the agency has determined that the requested exemption is
warranted to enable the petitioner to sell a vehicle whose overall
level of safety or impact protection is at least equal to that of a
nonexempted vehicle.
DATES: This exemption applies to the petitioner's motorcoaches produced
from November 14, 2019 until November 15, 2021.
FOR FURTHER INFORMATION CONTACT: Deirdre R. Fujita, Office of the Chief
Counsel, NCC-200, National Highway Traffic Safety Administration, 1200
New Jersey Avenue SE, West Building, Washington, DC 20590. Telephone:
(202) 366-2992; Fax: (202) 366-3820.
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
[[Page 61967]]
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
authority for implementing this section has been delegated to NHTSA by
49 CFR 1.95.
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
has applied on the basis that the applicant is otherwise unable to sell
a motor vehicle with an overall safety level at least equal to that 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\ 49 CFR 555.8(b) and (e).
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b. FMVSS No. 208
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 (OTRBs) (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).\3\
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\3\ 78 FR 70416 (November 25, 2013); response to petitions for
reconsideration, 81 FR 19902 (April 6, 2016). 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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In the notice of proposed rulemaking (NPRM) preceding the final
rule (75 FR 50958, August 18, 2010) NHTSA proposed to permit
manufacturers the option of installing either a Type 1 (lap belt) or a
Type 2 (lap and shoulder belt) on side-facing seats.\4\ The 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. NHTSA proposed the option because the agency was unaware
of any demonstrable increase in associated risk of lap belts compared
to lap and shoulder belts on side-facing seats. NHTSA believed that \5\
``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.'' \6\
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\4\ 75 FR at 50971.
\5\ 75 FR at 50971-50972.
\6\ http://ec.europa.eu/enterprise/automotive/projects/safety_consid_long_stg.pdf.
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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 delegated to NHTSA) to ``prescribe regulations requiring
safety belts to be installed in motorcoaches at each designated seating
position.'' \7\ As MAP-21 defined ``safety belt'' to mean an integrated
lap and shoulder belt, the final rule amended FMVSS No. 208 to require
lap and shoulder belts at all designated seating positions, including
side-facing seats, on OTRBs.\8\
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\7\ 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.''
\8\ For side-facing seats on buses other than OTRBs, in the
final rule NHTSA permitted either lap or lap/shoulder belts at the
manufacturer's option.
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Even as it did so, however, the agency reiterated its view that
``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.'' \9\ NHTSA also reiterated that there have been
concerns expressed in literature in this area about shoulder belts 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.\10\ The agency also noted that Australian Design
Rule ADR 5/04, ``Anchorages for Seatbelts'' specifically prohibits
shoulder belts for side-facing seats.
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\9\ 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.
\10\ Editors: Fildes, B., Digges, K., ``Occupant Protection in
Far Side Crashes,'' Monash University Accident Research Center,
Report No. 294, April 2010, pg. 57.
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Given that background, and believing there would be few side-facing
seats on OTRBs, NHTSA stated in the November 2013 final rule that the
manufacturers at issue may petition NHTSA for a temporary exemption
under 49 CFR part 555 to install lap belts instead of lap and shoulder
belts at side-facing seats.\11\ The basis for the petition would be
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. In other
words, for side-facing seats, lap belts provide at least an equivalent
level of safety as lap and shoulder belts.
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\11\ 78 FR at 70448.
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c. Overview of Petition
In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR
part 555, Hemphill submitted a petition dated April 5, 2018, asking
NHTSA for a temporary exemption from the shoulder belt requirement of
FMVSS No. 208 for side-facing seats on its OTRBs under 49 CFR 555.6(d).
A copy of the petition may be found in the docket (go to http://www.regulations.gov and enter Docket No. NHTSA-2019-0019).
Hemphill describes itself as a second-stage manufacturer \12\
organized under the laws of Tennessee. The petitioner states that it
typically receives a bus shell \13\ 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.''
Hemphill states that it ``builds out the complete interior'' of the bus
shell, including--
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\12\ While ``second-stage manufacturer'' is not defined in
NHTSA's regulations, 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). 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.''
\13\ The petition states in its petition (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
[[Page 61968]]
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, and storage
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cabinets; bathroom and showers; and sleeping positions.
The petitioner states that ``fewer than 100 entertainer-type
motorcoaches with side-facing seats are manufactured and enter the U.S.
market each year.''
In support of its assertion that the exempted vehicles would
provide an overall level of safety or impact protection at least equal
to that of nonexempt vehicles, Hemphill reiterates NHTSA's statements
in the November 2013 final rule. 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 states that if it complies with the final rule 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.
In support of its assertion that the exemption would be consistent
with the public interest, Hemphill states ``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.' '' It
states that, based on the existing studies noted in the rulemaking,
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 the Safety Act
because 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, Hemphill states the option meets the
need for motor vehicle safety because data indicate no demonstrable
difference in risk between the two types of belts when installed in
side-facing seats. Finally, the petitioner notes that the option would
provide an objective standard that is easy for manufacturers to
understand and meet.
Notice of Receipt
On March 28, 2019, NHTSA published a notice of receipt of
Hemphill's petition for temporary exemption and requested comment on
the petition.\14\ The agency received 8 comments on the petition, all
of which supported the request. NHTSA received no comments opposing the
petition.
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\14\ 84 FR 11735, Docket No. NHTSA-2019-0019.
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Several commenters, all similarly-positioned final-stage
manufacturers of entertainer-type motorcoaches, submitted identical
comments supporting Hemphill's petition.\15\ These commenters state
that their entertainer motorcoaches are custom built and typically
include side-facing, perimeter seating. They state that fewer than 100
entertainer motorcoaches are manufactured each year. They believe that
there is no available data supporting requiring a Type 2 belt at side-
facing seats and are concerned that serious injury to passengers could
result if they installed the shoulder belts at those seats. Another
entertainer motorcoach manufacturer \16\ stated that there are no
statistics or test models showing that a shoulder belt provides a
benefit on side-facing seats.
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\15\ D&S Classic Coach, Pioneer Coach, Roberts Brothers Coach
Co., Russell Coach, and Nitetrain Coach Co. These commenters were
among the ``other petitioners'' listed in the attachment to the
Hemphill petition NHTSA discussed in the notice of receipt of
Hemphill's petition (84 FR at 11738). Hemphill's petition originally
sought to cover 39 ``other petitioners'' listed in an attachment to
the petition. NHTSA noted that the Safety Act and NHTSA's procedures
did not clearly allow the bundling of petitions for the type of
exemption Hemphill sought. Subsequently, the other manufacturers,
including these commenters, submitted individual petitions for
temporary exemptions. NHTSA will address those petitions separately
from this document.
\16\ Superior Coach Interiors, which is also among the ``other
petitioners'' attached to the Hemphill petition.
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The American Bus Association (ABA), a trade association for
operators who transport the public, and the National Interstate
Insurance Company, an insurance provider to the commercial passenger
transportation industry, strongly supported Hemphill's petition.\17\
These commenters also affirm that fewer than 100 entertainer
motorcoaches are manufactured each year. They expressed concern that
serious injury to passengers could result from operators and
manufacturers complying with the FMVSS No. 208 rule to install the
shoulder belts and believe there is no data that supports requiring a
Type 2 seat belt at side-facing seats.
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\17\ National Interstate describes itself as currently insuring
a significant share of the enetertainment motorcoach industry marke
and states that it has consistently insured motorcoaches for 30
years.
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Agency Analysis and Decision
After reviewing Hemphill's petition for temporary exemption and the
comments received on it, the agency is granting the petition. Granting
the petition will enable the petitioner to sell a vehicle whose overall
level of safety or impact protection is at least equal to that of a
nonexempted vehicle.
In the rulemaking implementing MAP-21's mandate for seat belts on
motorcoaches, NHTSA's proposal in the NPRM was to allow manufacturers
an option of installing Type 1 (lap belt) or Type 2 (lap and shoulder
belt) on side-facing seats. The 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. NHTSA proposed
the option because the agency was unaware of any demonstrable increase
in associated risk of lap belts compared to lap and shoulder belts on
side-facing seats. That is, the agency believed that lap belts were not
less protective than lap and shoulder belts on side-facing seats.
Commenters and the petitioner raise safety concerns about the
shoulder belt portion of a lap and shoulder belt on side-facing seats.
The commenters and the petitioner do not provide information supporting
their beliefs about the potential for ``serious injury'' beyond
reciting what NHTSA said on the matter in the November 2013 final rule.
Accordingly, NHTSA believes that the potential safety risk at issue is
theoretical at this point; as explained in the November 2013 final
rule, the agency cannot affirmatively conclude, based on available
information, that shoulder belts on side-facing seats are associated
with a demonstrated risk of serious neck injuries in frontal crashes.
However, at the same time, NHTSA believes a shoulder belt is of limited
value on side-facing seats for the reasons explained in the final rule.
Given the uncertainties about shoulder belts on side-facing seats, the
few side-facing seats there are on buses subject to the November 2013
final rule, and that FMVSS No. 208 does not require shoulder belts on
side-facing seats on any other vehicle type, NHTSA is granting
Hemphill's petition for temporary exemption. The grant will permit
Hemphill to install Type 1 seat belts (lap belt only) at side-facing
seating positions, instead of Type 2 seat
[[Page 61969]]
belts (lap and shoulder belts) at those positions, on the OTRBs it
manufactures. This exemption does not apply to forward-facing
designated seating positions on the petitioner's vehicles. Under FMVSS
No. 208, the forward-facing seating positions must have Type 2 lap and
shoulder belts.\18\
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\18\ On October 2, 2019, the National Transportation Safety
Board (NTSB) issued Recommendation H-19-14 in connection with the
NTSB's investigation of an October 6, 2018 Schoharie, New York
limousine crash. H-19-14 recommends that NHTSA ``[r]equire lap/
shoulder belts for each passenger seating position on all new
vehicles modified to be used as limousines.'' The limousine in the
Schoharie crash had between 18 and 22 seating positions and a GVWR
of 13,080 lb. Under FMVSS No. 208, vehicles with 11 or more seating
positions and a GVWR between 10,000 lb and 26,000 lb are not
required to have seat belts in passenger seats. The NTSB
recommendation would apply a passenger seat belt requirement to
those vehicles.
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NHTSA believes that granting Hemphill's petition is consistent with
the public interest. The exemption will enable the applicant to sell
buses whose overall level of safety is at least equal to that of non-
exempted vehicles. Further, we believe that Hemphill is a small
entity.\19\ Thus, this temporary exemption not only permits the
manufacturer to sell vehicles whose overall level of safety is at least
equal to that of non-exempted vehicles, but provides relief to a small
business by, as the petitioner notes, providing ``an objective standard
that is easy for manufacturers to understand and meet.''
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\19\ According to 13 CFR 121.201, the Small Business
Administration's size standards regulations used to define small
business concerns, manufacturers of these buses fall under North
American Industry Classification System (NAICS) No. 336213, Motor
Home Manufacturing, which has a size standard of 1,250 employees or
fewer.
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A grant is consistent with the Safety Act. The requested exemption
will not impact general motor vehicle safety because the exempted buses
will provide overall safety at least equal to that of nonexempted
buses. Further, Hemphill produces a small number of affected vehicles
annually. Hemphill did not specify in its petition how many buses it
would manufacture under the exemption but noted that ``fewer than 100
entertainer-type motorcoaches with side-facing seats are manufactured
and enter the U.S. market each year.'' As noted earlier, the ABA and
the National Interstate Insurance Company, as well as the ``other
petitioners'' who have separately filed petitions for temporary
exemption, also affirm that fewer than 100 entertainer-type
motorcoaches are manufactured each year. Thus, NHTSA concludes that
Hemphill will manufacture very few vehicles relative to the 2,500 per
manufacturer limit set forth in the Safety Act and 49 CFR 555.6(d)(4).
Further, as explained below, in accordance with 49 CFR 555.9 and Sec.
30113(h) of the Safety Act, prospective purchasers will also be
notified of the exemption prior to making their purchasing decisions.
The vehicles must have a label notifying prospective purchasers that
the vehicles are exempted from the shoulder belt requirement of FMVSS
No. 208 for the side-facing seats.
Labeling
Under 49 CFR 555.9(b), a manufacturer of an exempted vehicle must
securely affix to the windshield or side window of each exempted
vehicle a label containing a statement that the vehicle meets all
applicable FMVSSs in effect on the date of manufacture ``except for
Standard Nos. [Listing the standards by number and title for which an
exemption has been granted] exempted pursuant to NHTSA Exemption No.
__.'' This label notifies prospective purchasers about the exemption
and its subject. Under Sec. 555.9(c)(2), this information must also be
included on the vehicle's certification label.\20\
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\20\ 49 CFR 555.9(c)(2) refers to Sec. 567.5(c)(7)(iii) as the
regulation setting forth the certification statement final-stage
manufacturers are to use in their certification labels. That
reference to Sec. 567.5(c)(7)(iii) is outdated; it should be to
Sec. 567.5(d)(2)(v)(A). The certification label requirements for
final-stage manufacturers formerly were in Sec. 567(c)(7)(iii) but
the requirements were moved to Sec. 567.5(d)(2)(v)(A) (see, 70 FR
7433; February 14, 2005).
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The text of Sec. 555.9 does not expressly indicate how the
required statement on the two labels should read in situations in which
an exemption covers part, but not all, of an FMVSS. In this case, NHTSA
believes that a blanket statement that the vehicle has been exempted
from Standard No. 208, without an indication that the exemption is
limited to the shoulder belt on side-facing seats, could be confusing.
A purchaser might incorrectly believe that the vehicle has been
exempted from all of FMVSS No. 208's requirements. For this reason,
NHTSA believes the two labels should read in relevant part, ``except
for the shoulder belt requirement for side-facing seats (Standard No.
208, Occupant Crash Protection), exempted pursuant to * * *.''
In accordance with 49 U.S.C. 30113(b)(3)(B)(iv), the applicant is
granted NHTSA Temporary Exemption No. EX 19-01, from the shoulder belt
requirement of 49 CFR 571.208 for side-facing seats on its
motorcoaches. The exemption shall remain effective for the period
designated at the beginning of this document in the DATES section.
Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR
1.95.
Issued on: November 5, 2019.
James Clayton Owens,
Acting Administrator.
[FR Doc. 2019-24490 Filed 11-13-19; 8:45 am]
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