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Daimler Trucks North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Otto G. Matheke III Date: 26 April 2023 Subjects: American Government  , Buses
Topic: Thomas Built |
[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Notices]
[Pages 25447-25452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08735]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2018-0004; Notice 2]
Daimler Trucks North America, LLC, Grant of Petition for Decision
of Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Grant of petition.
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SUMMARY: Daimler Trucks North America, LLC (DTNA), has determined that
certain model year (MY) 2013-2018 Thomas Built Buses do not fully
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 222,
School Bus Passenger Seating and Crash Protection. DTNA filed a
noncompliance report dated November 27, 2017. DTNA in collaboration
with SynTec Seating Solutions, LLC (SynTec), the seating manufacturer,
subsequently petitioned NHTSA on December 15, 2017, and later amended
it on September 21, 2018, for a decision that the subject noncompliance
is inconsequential as it relates to motor vehicle safety. This document
announces the grant of DTNA's petition.
FOR FURTHER INFORMATION CONTACT: Daniel Lind, Office of Vehicle Safety
Compliance, the National Highway Traffic Safety Administration (NHTSA),
telephone (202) 366-7235.
SUPPLEMENTARY INFORMATION:
I. Overview
DTNA has determined that certain MY 2013-2018 Thomas Built Buses do
not fully comply with paragraph S5.3.1.3 of FMVSS No. 222, School Bus
Passenger Seating and Crash Protection (See 49 CFR 571.222). DTNA filed
a noncompliance report dated November 27, 2017, pursuant to 49 CFR part
573, Defect and Noncompliance Responsibility and Reports. DTNA
subsequently petitioned NHTSA on December 15, 2017, and later amended
it on September 21, 2018, for an exemption from the notification and
remedy requirements of 49 U.S.C. Chapter 301 on the basis that this
noncompliance is inconsequential as it relates to motor vehicle safety,
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556,
Exemption for Inconsequential Noncompliance or Defect.
Notice of receipt of DTNA's petition was published, with a 30-day
public comment period on May 13, 2019, in the Federal Register (See 84
FR 20951). One comment was received. To view the petition and all
supporting documents log onto the Federal Docket Management System
(FDMS) website at https://www.regulations.gov/. Then follow the online
search instructions to locate docket number ``NHTSA-2018-0004.''
II. Buses Involved
Affected are approximately 3,222 MY 2013-2018 versions of the
following Thomas Built Buses, manufactured between August 24, 2012, and
May 1, 2017, specifically:
Thomas Built Buses Saf-T-Liner C2
Thomas Built Buses Saf-T-Liner EFX
[[Page 25448]]
Thomas Built Buses Saf-T-Liner HDX
Thomas Built Buses Minotour DRW
III. Noncompliance
DTNA explains that the noncompliance is that the subject buses are
equipped with seats that have Type 2 (lap/shoulder) seat belts,
manufactured by SynTec, that do not meet the head form force
distribution requirements as specified in paragraph S5.3.1.3 of FMVSS
No. 222. Specifically, the Type 2 seat belts include a plastic bezel,
where the seat belt is routed through the seat, located within the head
protection zone.
IV. Rule Requirements
Paragraph S5.3.1.3 of FMVSS No. 222, titled ``Head form force
distribution'' includes the requirements relevant to this petition:
When any contactable surface of the vehicle, within the zones
specified in paragraph S5.3.1.1, is impacted from any direction at
6.7 m/s by the head form described in paragraph S6.6, the energy
necessary to deflect the impacted material shall be not less than
4.5 joules before the force level on the head form exceeds 667 N.
When any contactable surface, within such zones, is impacted by the
head form from any direction at 1.5 m/s the contact area on the head
form surface shall be not less than 1,935 mm\2\.
S4 of the standard defines ``contactable surface'' as follows:
Contactable surface means any surface within the zone specified
in S5.3.1.1 that is contactable from any direction by the test
device described in S6.6, except any surface on the front of a seat
back or restraining barrier 76 mm or more below the top of the seat
back or restraining barrier.
V. Summary of DTNA's Petition
DTNA described the subject noncompliance and stated its belief that
the noncompliance is inconsequential as it relates to motor vehicle
safety.
In support of its petition, DTNA provided the following background
information:
1. In January 2011, SynTec introduced the M2K lap/shoulder seat to
provide several additional safety features to passengers. The company
sold 2,272 M2K lap/shoulder seats to Thomas Built Buses before
discontinuing the product in 2012. SynTec then improved upon the M2K
lap/shoulder seat design with the S3C seat, which the Company
introduced in 2012. The seat backs of these seats are substantially
higher than earlier school bus passenger seats and are equipped with
lap/shoulder seat belts. The seat also includes: color coding and key
buckles to prevent improper buckling, a fixed buckle anchorage to
prevent side occupant incursion, flip up buckles in pockets to be out
of the way from debris, high shoulder anchorage, and contoured seat
cushion. The plastic ``bezel'' (the location from which the lap/
shoulder harness exits the seat back) was intentionally set high on the
seat fronts to provide protection to the maximum range of occupants.
Some M2K and S3C seats also are equipped with an integrated child seat.
2. To ensure that the Affected Seats complied with all laws and
regulations, SynTec contracted with a third party, MGA Research
Corporation (MGA), to conduct certification testing under FMVSS No.
222. Specifically, MGA conducted tests on the M2K seat in June 2011,
and on the S3C seat in August 2012. The M2K and S3C complied with FMVSS
No. 222 requirements with respect to the back of the seat. Consistent
with the industry norm and MGA's past practice, MGA did not test
targets on the front of the seat. Based on its interactions and
conversations with MGA, SynTec understood that back seat-only testing
represents the industry norm. Front of the seat testing is not
conducted due to the low risk of harm from the front, and because the
small head impact zone makes it impossible to conduct the test per the
recommended test procedure. Indeed, as referenced above, the testing
was designed to ensure that the back of the seat was an energy absorber
and that various hazards were eliminated from the top. Nonetheless,
these early MGA tests results, specifically, the product's head injury
criterion (HIC) values and the strong contact area and impact velocity
scores on the back of the seat, highlighted the improved safety
benefits of SynTec's new seat design.
In support of its petition, DTNA provided the following reasoning:
1. The S5.3.1.3 tests are outmoded for the front of the seat and
the equipment's HIC scores represent the most accurate accounting of
the seat's safety.
2. As highlighted above, the original intent of the contact surface
test was to precipitate the elimination of metal grab bars and other
hostile objects above the passenger seats that could come into contact
with the occupant's head in the event of a crash. See 38 FR 4776 (Feb.
22, 1973) (Proposed Rule) stating the goal of ``eliminating exposed
metal bars and similar designs and making the seat itself a significant
energy absorber.'' Likewise, the head form force distribution test was
designed to ensure that the seat would depress and distribute the force
of impact in a manner that could not be achieved with exposed metal
surfaces on the seat.
3. Although SynTec was noncompliant with these two tests, the
requirements are now outmoded with respect to the front of the affected
seats because the various hazards they are seeking to guard against no
longer exist. Indeed, the noncompliance did not occur because of a
hazard that the regulations were designed to protect against. Rather,
as explained below, the noncompliance resulted from a high-placed bezel
that actually makes the affected seats safer for more occupants. The
two tests were crafted for a school bus seat design that was
substantially different and less safe than the superior versions that
exist in the market today.
4. Given that these tests are outmoded, the most accurate measure
of head safety for the front of the seat is the product's HIC value.
The HIC is the most widely accepted measure of head injury in use
today. Indeed, it is the standard measure of head injury throughout the
FMVSSs. See, e.g., FMVSS No. 201 and 208. Similarly, HIC is the metric
used by NHTSA's New Car Assessment Program. See 80 FR 78522, 78533
(2015) noting that the HIC value ``is currently in use in FMVSS No. 208
and frontal NCAP tests.'' The HIC measure is particularly valuable
since it accounts for energy absorption and contact area by measuring
the deceleration of the head form over time.
5. Over the past few years, both SynTec and NHTSA, internally and
at accredited external test agencies, have conducted HIC testing on the
front of the affected seats. During testing, the seats were positioned
at various angles, and impacts were performed on multiple locations of
the seat within the head protection zone ``hits'', including on the
portion of the plastic bezel that protrudes into the top 76 mm on the
front. These test results always produced a HIC value well below 1,000.
For instance, since March 2017 SynTec has conducted 253 ``hits'' on the
front of the seat. The average HIC value during these tests was 114.1,
with a low score of 51.7 and a high HIC value of 311.8. Even the
product's highest HIC value falls far short of the 1,000 maximum
requirement. These values illustrate the safety of SynTec's product and
the inconsequentiality of the noncompliance with the other FMVSS No.
222 test requirements.
6. Simply stated, the tests which prompted DTNA and SynTec's 573
Reports, are searching for hazards on the front of the seat that do not
exist in the affected seats. See 38 FR 4776 (Feb. 22, 1973) (Proposed
Rule). As the product's HIC values show, the technical noncompliance of
the SynTec seats on these two tests is not relevant to the
[[Page 25449]]
product's safety. Accordingly, NHTSA should grant this petition for
inconsequentiality.
7. The source of SynTec's noncompliance enhances the product's
safety. SynTec's seats are safer than regulators could have envisioned
in 1976. Indeed, the cause of the noncompliance, the location of the
plastic bezel, renders the seat safer than it would be with a bezel
that was not placed in the head protection zone. This higher
positioning combined with higher seat backs provides a belt for a
maximum range of occupants and keeps hard objects away from the most
vulnerable passengers. SynTec utilized automotive best practices and
BELFIT software from the Motor Industry Research Association to
determine the optimum geometric place for the belt position. SynTec's
objective was to provide maximum protection, considering the wide range
of occupant sizes riding on a school bus. Based on this analysis, it
placed the bezel at the higher portion of the seat. The position also
allowed for more adjustment by the d-ring, for better torso restraint,
and for a more comfortable fit (thereby encouraging use).
8. The higher shoulder harnesses also keep hard surfaces away from
small occupants who are most vulnerable. A typical occupant in the
vehicle would have a greater chance of coming into contact with a lower
bezel. In seats with lap/shoulder belts with a lower bezel, the bezel
would land in a smaller occupant's head area. Similarly, most designs
that include an integrated child seat, have a hard surface that sits
behind a smaller occupant's head. In contrast, the affected seat's
higher bezel location places the bezel outside of a smaller occupant's
head area. Likewise, for smaller occupants using integrated child
seats, the bezel also falls outside of the occupant head area.
Essentially, the higher bezel ensures better protection for the most
vulnerable riders. Rather than cause any safety issues, the
noncompliance, which occurred because of the location of the plastic
bezels, makes the affected seats safer.
9. The noncompliance at issue relates to front-of-seat tests
designed to address features that are no longer present in school
buses, such as metal bars at the top of seat backs and low seat backs.
Therefore, DTNA believes the noncompliance is inconsequential as it
relates to school bus safety. Moreover, the location of the plastic
bezel on the lap/shoulder belts, which is the source of the
noncompliance, is actually a safety improvement, in that its high
position allows for maximum occupant ranges and fit and protects the
smallest seat occupants. A typical occupant in the vehicle would have a
greater chance of encountering a compliant lower bezel.
10. Thus, the design represents an enhanced level of safety for
school bus occupants, especially younger passengers who are more
vulnerable in the event of a crash. Consistent with the enhanced safety
design of the lap/shoulder belt, DTNA is not aware of any complaints,
injuries or reports of safety concerns regarding this issue. DTNA's
seat supplier, SynTec, implemented a new seat design which corrected
the noncompliance by replacing the hard plastic bezel with a soft vinyl
harness cover and increasing the seat thickness by 3/8 inches as of May
3, 2017.
11. NHTSA Precedents--DTNA notes that NHTSA has previously granted
petitions for decisions of inconsequential noncompliance for a wide
range of issues where a technical non-compliance exists but does not
create a negative impact on safety. In the case detailed within this
petition, the lap/shoulder belt is an optional feature on the clear
majority of school buses. When added, lap/shoulder belts increase the
safety of the occupants as compared to a bus without passenger
seatbelts. Also, the high bezel increases the child protection
performance requirements by reducing the likelihood of an occupant
coming into contact with the hard surface. The following examples are
petitions for inconsequentiality that were granted by NHTSA and are
described within this petition to support DTNA's argument that, while
technically non-compliant, NHTSA has previously granted
inconsequentiality for cases where an additional level of safety above
the requirements of the standard is provided.
12. See 70 FR. 24464 (May 9, 2005), Docket No. NHTSA 2005-20545
(Grant of Petition for IC Corporation) for an example of a petition for
inconsequentiality that was granted by NHTSA. In this instance, school
buses were manufactured that were not compliant with FMVSS 217, but it
was deemed inconsequential because it did not compromise safety. ``. .
. The Agency agrees with IC that in this case the noncompliance does
not compromise safety in terms of emergency exit capability in
proportion to maximum occupant capacity, access to side emergency
doors, visibility of the exits, or the ability of bus occupants to exit
after an accident.''
13. See also 63 FR 32694 (June 15, 1998), Docket No. NHTSA 98-3791
(Grant of Petition for New Flyer of America, Inc.) for another example
of a petition for inconsequentiality that was granted. In this case,
non-school buses were manufactured that were not compliant with FMVSS
No. 217 but were granted inconsequentiality because the buses had
additional safety features that were not required in the standard. The
following quote is from NHTSA's notice granting the petition: ``Thus,
the buses have the minimum number of emergency exits required by FMVSS
No. 217. However, these exits were not distributed properly. Instead of
a second emergency exit on the right side, these buses have an
additional roof exit. This additional roof exit would provide for much
needed emergency exit openings should the bus occupants need to
evacuate due to a rollover incident. While this additional roof exit is
not required by the standard, it does provide for an additional level
of safety in the above situation. In consideration of the foregoing,
NHTSA has decided that the applicant has met its burden of persuasion
that the noncompliance it described above is inconsequential to motor
vehicle safety.'' Id.
DTNA's complete petition and all supporting documents are available
by logging onto the Federal Docket Management System (FDMS) website at:
https://www.regulations.gov/ and following the online search
instructions to locate the docket number listed in the title of this
notice.
In summation, DTNA believes that the described noncompliance in the
subject buses is inconsequential as it relates to motor vehicle safety,
and that its petition to exempt DTNA from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
VI. Public Comments
One comment was received from Freedman Seating Company (FSC), which
has designed and manufactured passenger seats for the school/activity
bus market for over 20 years. The commenter agreed with DTNA's
arguments regarding rear surface seat back-only testing represents the
industry norm, that front of the seat back testing is generally not
conducted due to the low risk of harm from the front, that the front
surface of the seat back is low risk for head impact and injury
potential as the normal position of the seat occupant is with the head
against the front surface of the seat back or very close to it, that
the head impact zones identified in the FMVSS No. 222 test procedure
are relatively small areas and would make it challenging to do head
impact testing given the size of the
[[Page 25450]]
head form and the seat contour of some seat designs, and that the most
accurate measure of head safety for the front of the seat is the
product's HIC values.
VII. NHTSA's Analysis
A. General Principles
Congress passed the National Traffic and Motor Vehicle Safety Act
of 1966 (the ``Safety Act'') with the express purpose of reducing motor
vehicle accidents, deaths, injuries, and property damage. See 49 U.S.C.
30101. To this end, the Safety Act empowers the Secretary of
Transportation to establish and enforce mandatory Federal Motor Vehicle
Safety Standards (FMVSS). See 49 U.S.C. 30111. The Secretary has
delegated this authority to NHTSA. See 49 CFR 1.95.
NHTSA adopts an FMVSS only after the agency has determined that the
performance requirements are objective and practicable and meet the
need for motor vehicle safety. See 49 U.S.C. 30111(a). Thus, there is a
general presumption that the failure of a motor vehicle or item of
motor vehicle equipment to comply with an FMVSS increases the risk to
motor vehicle safety beyond the level deemed appropriate by NHTSA
through the rulemaking process. To protect the public from such risks,
manufacturers whose products fail to comply with an FMVSS are normally
required to conduct a safety recall under which they must notify
owners, purchasers, and dealers of the noncompliance and provide a free
remedy. See 49 U.S.C. 30118-30120. However, Congress has recognized
that, under some limited circumstances, a noncompliance could be
``inconsequential'' to motor vehicle safety. It therefore established a
procedure under which NHTSA may consider whether it is appropriate to
exempt a manufacturer from its notification and remedy (i.e., recall)
obligations. See 49 U.S.C. 30118(d), 30120(h). The agency's regulations
governing the filing and consideration of petitions for
inconsequentiality exemptions are set out at 49 CFR part 556.
Under the Safety Act and Part 556, inconsequentiality exemptions
may be granted only in response to a petition from a manufacturer, and
then only after notice in the Federal Register and an opportunity for
interested members of the public to present information, views, and
arguments on the petition. In addition to considering public comments,
the agency will draw upon its own understanding of safety-related
systems and its experience in deciding the merits of a petition. An
absence of opposing argument and data from the public does not require
NHTSA to grant a manufacturer's petition. Neither the Safety Act nor
Part 556 define the term ``inconsequential.'' Rather, the agency
determines whether a particular noncompliance is inconsequential to
motor vehicle safety based upon the specific facts before it in a
particular petition. In some instances, NHTSA has determined that a
manufacturer met its burden of demonstrating that a noncompliance is
inconsequential to safety. For example, a label intended to provide
safety advice to an owner or occupant may have a misspelled word, or it
may be printed in the wrong format or the wrong type size. Where a
manufacturer has shown that the discrepancy with the safety requirement
is unlikely to lead to any misunderstanding, NHTSA has granted an
inconsequentiality exemption, especially where other sources of correct
information are available. See, e.g., General Motors, LLC., Grant of
Petition for Decision of Inconsequential Noncompliance, 81 FR 92963
(Dec. 20, 2016).
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a standard--as opposed to a
labeling requirement--is more substantial and difficult to meet.
Accordingly, the Agency has not found many such noncompliances
inconsequential.\1\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
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\1\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\2\ NHTSA also does not
consider the absence of complaints or injuries to show that the issue
is inconsequential to safety. ``Most importantly, the absence of a
complaint does not mean there have not been any safety issues, nor does
it mean that there will not be safety issues in the future.'' \3\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \4\
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\2\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
\3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
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Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions
based on the assertion that only a small percentage of vehicles or
items of equipment are likely to actually exhibit a noncompliance. The
percentage of potential occupants that could be adversely affected by a
noncompliance does not determine the question of inconsequentiality.
Rather, the issue to consider is the consequence to an occupant who is
exposed to the consequence of that noncompliance.\6\
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\5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23,
2001) (rejecting argument that noncompliance was inconsequential
because of the small number of vehicles affected); Aston Martin
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663,
21664 (Apr. 12, 2016) (rejecting argument that petition should be
granted because the vehicle was produced in very low numbers and
likely to be operated on a limited basis).
\6\ See Gen. Motors Corp.; Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14,
2004); Cosco, Inc.; Denial of Application for Decision of
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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B. Response to DTNA's Arguments
NHTSA reviewed DTNA's arguments that the subject noncompliance is
inconsequential to motor vehicle safety. DTNA contends that the plastic
bezel, where the Type 2 seat belt is routed through the seat, being
located within the head protection zone and not meeting the head form
force distribution requirements as specified in paragraph S5.3.1.3 of
FMVSS No. 222, poses little, if any, risk to motor vehicle safety.
NHTSA agrees. NHTSA's decision considered the following arguments:
The purpose of FMVSS No. 222 is to reduce the number of deaths and
the severity of injuries that result from the
[[Page 25451]]
impact of school bus occupants against structures within the vehicle
during crashes and sudden driving maneuvers (See 49 CFR 571.222 S2).
The requirements at S5.3.1.3 Head Form Force Distribution of FMVSS No.
222, at issue here, are specific to the areas of school bus seats where
one's head may impact during an emergency event. The head protection
zone is an area in front of each school passenger seat that is not
occupied by bus sidewall, window, or door structure.\7\ For seats other
than the front seat, this area encompasses the seat back of the seat in
front of it. When the front of a seat back falls within the head
protection zone of the seat behind it, only the top 76 mm (3 inches) of
the front of the seat back is a contactable surface. The seat backs of
the rearmost seats do not fall within the head protection zone and are
not contactable surfaces. We can therefore conclude that the head
protection requirements were not designed to protect an occupant from
impacting a surface located behind them.
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\7\ These areas are defined as a combination of the Head
Protection Zone (See 49 CFR 571.222 S5.3.1) and Contactable Surface
(See 49 CFR 571.222 S4).
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The requirements at issue are twofold: (1) the energy absorbed by
the seat ``shall be not less than 4.5 joules'', and (2) the contact
made with the seat by the test headform ``shall be not less than 1,935
mm\2\.'' In the present case, the seats fail to meet both of these
requirements at the locations where the plastic ``bezel'' (the location
from which the lap/shoulder harness exits the seat back) for the Type 2
seatbelts are integrated into the seats. However, the head protection
requirements are intended to protect occupants of the seat located
behind the seat back on which the bezel is mounted and it is unlikely
that such occupant's head would impact the bezel given the size of the
bezel, particularly if the occupant is belted. For this reason, NHTSA
accepts DTNA's argument that, in this case, the safety benefits of the
high-placed bezel location outweigh the safety risks. This is further
discussed below.
Reviewing the history of this standard and the definitions for the
Head Protection Zone and Contactable Surface, we found FMVSS No. 222
was initially proposed as a new vehicle safety standard on February 22,
1973 (See 38 FR 4776). The preamble in the proposed rule described the
intention behind the modern-day requirements of paragraph S5.3.1.3, as
it stated:
``A final characteristic of present bus seats, notably in school
buses and transit type buses, is the presence of metal bars on the
seat back to be used by standees. There is evidence that these hard
surfaces are often the causes of injury, particularly to the head
and face. A compilation of data from oral surgeons indicated that
approximately 1,350 mouth injuries occurred during 1971. This
represents only a part of the painful and disfiguring injuries that
are due to these features.
To eliminate exposed metal bars and similar designs and to make
the seat itself a significant energy absorber, NHTSA proposes to
require all surfaces within a specified area ahead of the seat to
meet a head impact criterion, similar to the one included in
Standard 208, occupant crash protection. The test is administered by
impacting a head form device into any surface within a specified
area in front of each seat. The impacted surface must be able to
keep the deceleration of the head form below a certain level. In
addition, the surface must depress in a manner that absorbs energy
and distributes the force of impact. Most types of exposed metal
surfaces would be too hard and would therefore not meet the
requirements of the proposed standard.''
In response to comments received on the proposed rule, a revised
proposed rule was published on July 30, 1974 (See 39 FR 27585). This
revised version of the proposed rule included the modern-day
requirements \8\ specified in paragraph S5.3.1.3 (albeit using English
units), including the definition for ``contactable surface'',\9\ which
is referred to in paragraph S5.3.1.3,
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\8\ There were two more proposed FMVSS No. 222 rules published,
as the rule continued to be developed and comments were received on
different sections of the proposed rule (See 40 FR 17855, April 23,
1975 and 40 FR 47141, October 8, 1975), however no further updates
were made to the definition of ``contactable surface'' or to the
requirements specified in paragraph S5.3.1.3. The final rule was
published on January 28, 1976 (See 41 FR 4018).
\9\ The definition for ``contactable surface'' includes the top
76 mm of the front of each school bus seat, which is the area at
issue here, and where the plastic bezels are located within.
``Contactable surface means any surface within the zone
specified in S5.3.1.1 that is contactable from any direction by the
test device described in S6.6, except any surface on the front of a
seat back or restraining barrier 76 mm or more below the top of the
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seat back or restraining barrier.''
Regarding the intent of the requirements at S5.3.1.3 related to the
top 76 mm of the front of each school bus seat, NHTSA agrees with DTNA
that such requirements were primarily for a time when the school bus
industry utilized exposed metal bars for standing passengers, which is
no longer the case. However, NHTSA does not agree with DTNA's argument
that the requirements at S5.3.1.3 are outmoded, as it is important to
retain such requirements to prevent the return of such hazards to
passengers riding school buses. As such, NHTSA is persuaded by DTNA's
argument that the original hazards which prompted the requirements at
S5.3.1.3 no longer exist, but NHTSA is not persuaded that such
requirements are outmoded.
Regarding the safety benefits of the high-placed bezel, NHTSA
agrees with DTNA that in this case, the safety benefits of the high-
placed bezel outweigh the safety risks. The head protection
requirements are intended to protect the occupant located behind the
seat back on which the bezel is located. While this location is a
contactable surface, it is unlikely that the occupant will override the
seat and impact the bezels given the location and size of the bezels,
particularly if the occupant is belted. Additionally, the low HIC
values presented by DTNA's testing and the higher location of the bezel
placements, indicate a low safety risk to passengers, especially more
vulnerable passengers. As such, NHTSA is persuaded by DTNA's argument
that the safety benefits of the high-placed bezel outweigh the safety
risks in the present case.
Regarding the ability to test the front areas within the Head
Protection Zone and Contactable Surface, NHTSA does not agree with
DTNA's argument that it is impossible to conduct head impact testing
within the top 76 mm of the front of each school bus seat, as NHTSA's
own testing laboratories have been able to successfully perform such
tests, as part of the school bus compliance test program. Additionally,
DTNA's own argument indicates successful testing both ``internally and
at accredited external test agencies'' for HIC measurements on seat
backs where the bezels are located. As such, NHTSA is not persuaded by
DTNA's argument that it is impossible to conduct such testing on the
front of seats.
C. Remaining Arguments
DTNA referenced two inconsequential noncompliance petitions NHTSA
had previously granted to support its petition.
The first petition, from IC Corporation (IC) (See 70 FR 24464),
involved school buses where two side emergency exit doors were located
opposite each other within the same post and roof bow panel space. IC
argued that the requirement prohibiting two exit doors from being
located in this manner appeared to be related to the structural
integrity of a bus body with this configuration. IC indicated that it
had no reports of any structural failures in the area around the
emergency doors but stated that it would extend to owners of the
noncompliant vehicles a 15-year warranty for any structural or
[[Page 25452]]
panel failures related to the location of the doors. NHTSA agreed with
IC that, in this case, the noncompliance did not compromise safety in
terms of emergency exit capability in proportion to maximum occupant
capacity, access to side emergency doors, visibility of the exits, or
the ability of bus occupants to exit after an accident. NHTSA does not
agree that granting this prior petition supports DTNA's arguments in
this case. Here, the issue is occupant crash protection against
structures within the vehicle.
The second petition, from New Flyer of America, Inc. (See 63 FR
32694), involved transit buses that had only one emergency exit on the
right side of the bus instead of two, as required by FMVSS No. 217. In
this case, these buses had 3.28 times the required exit area, with two
emergency exit windows on the left side, one emergency exit window on
the right side and two roof exits. Thus, the buses had the minimum
number of emergency exits required by FMVSS No. 217. However, these
exits were not distributed properly. Instead of a second emergency exit
on the right side, these buses had an additional roof exit. The agency
decided that the additional roof exit provided for an additional level
of safety during a rollover event and granted the petition. Again,
NHTSA does not agree that granting this prior petition supports
granting DTNA's petition here, because occupant crash protection
against structures within the vehicle was not at issue.
D. Response to Public Comment Received
In response to the comment received, NHTSA agrees with the
commenter regarding rear surface seat back-only testing represents the
industry norm, as the industry has moved away from metal bars on the
seat back to be used by standees and the contactable surface of the
front of the seat is generally constructed only of soft materials.
NHTSA does not agree with the commenter that the head impact zones
identified in the FMVSS No. 222 test procedure are relatively small
areas and would make it challenging to do head impact testing, as such
testing has been successfully completed by NHTSA contracted labs in
past school bus compliance tests. NHTSA also agrees with the commenter
that the HIC values are an important measurement for evaluating head
impact protection in the head form force distribution requirements at
S5.3.1.3 of FMVSS No. 222, but notes that the energy absorption
requirements in S5.3.1.3 are also an important measurement to determine
how much energy a seat can absorb in an emergency event.
VIII. NHTSA's Decision
In the instant case, NHTSA has determined that it is unlikely given
the bezels' size and location that the occupants for which the head
protection requirements are intended to protect will impact the bezel,
and the overall safety benefits of retaining seats with three-point
seat belts in this application outweigh the safety risks of the actual
noncompliance. In consideration of the foregoing, NHTSA finds that DTNA
has met its burden of persuasion that the FMVSS No. 222 noncompliance
is inconsequential as it relates to motor vehicle safety. Accordingly,
DTNA's petition is hereby granted and DTNA is exempted from the
obligation of providing notification of, and a remedy for, the
noncompliance under 49 U.S.C. 30118 and 30120.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, this decision
only applies to the subject vehicles that DTNA no longer controlled at
the time it determined that the noncompliance existed. However, the
granting of this petition does not relieve vehicle distributors and
dealers of the prohibitions on the sale, offer for sale, or
introduction or delivery for introduction into interstate commerce of
the noncompliant vehicles under their control after DTNA notified them
that the subject noncompliance existed.
(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8.)
Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2023-08735 Filed 4-25-23; 8:45 am]
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