BMW of North America, LLC; Jaguar Land Rover North America, LLC; and Autoliv, Inc.; Decisions of Petitions for Inconsequential Noncompliance |
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Topics: Autoliv
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Jeffrey Mark Giuseppe
National Highway Traffic Safety Administration
7 May 2019
[Federal Register Volume 84, Number 88 (Tuesday, May 7, 2019)]
[Notices]
[Pages 19994-19999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09301]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2016-0115; Notice 2; Docket No. NHTSA-2016-0138;
Notice 2; Docket No. NHTSA-2016-0139; Notice 2]
BMW of North America, LLC; Jaguar Land Rover North America, LLC;
and Autoliv, Inc.; Decisions of Petitions for Inconsequential
Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Decisions of petitions.
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SUMMARY: Petitioners BMW of North America, LLC and Jaguar Land Rover
North America, LLC, have each determined that certain seat belt
assemblies equipped in certain 2016-2017 model year vehicles do not
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No.
208, Occupant Crash Protection, and FMVSS No. 209, Seat Belt
Assemblies. Autoliv, Inc. has determined that certain seat belt
assemblies sold as replacement parts for use in certain 2016-2017 model
year vehicles do not fully comply with FMVSS No. 209, Seat Belt
Assemblies. The petitioners have requested that NHTSA deem the subject
noncompliances inconsequential to motor vehicle safety and based on an
agency review and analysis, NHTSA denies the petitioners' request for
an inconsequentiality determination. BMW and Jaguar are therefore
obligated to provide notification of, and a free remedy for, that
noncompliance.
FOR FURTHER INFORMATION CONTACT: You may contact either Mr. Daniel
Koblenz, Office of Chief Counsel, Telephone: 202-366-2992, Facsimile:
202-366-3820, or Mr. Jack Chern, Office of Vehicle Safety Compliance,
Telephone: 202-366-0661, Facsimile: 202-366-3081. The mailing address
for these officials is: The National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
I. Overview
BMW of North America, LLC (BMW) has determined that certain model
year (MY) 2016-2017 BMW, Mini, and Rolls-Royce vehicles do not fully
comply with paragraph 4.3(j)(2)(ii) of Federal Motor Vehicle Safety
Standard (FMVSS) No. 209, Seat Belt Assemblies (49 CFR 571.209) and
paragraph 4.1.5.1(a)(3) of FMVSS No. 208, Occupant Crash Protection.
BMW filed a report dated October 13, 2016, pursuant to 49 CFR part 573,
Defect and Noncompliance Responsibility and Reports. BMW also
petitioned NHTSA on November 4, 2016, 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) & 30120(h) and 49 CFR
part 556. Notice of receipt of the BMW petition was published, with a
30-day public comment period, on January 18, 2017, in the Federal
Register (82 FR 5641). One comment was received. Subsequent to
publication of receipt of the petition, BMW has since amended both its
573 report and petition on July 6, 2018.
Petitioner Jaguar Land Rover North America, LLC (Jaguar) has
determined that certain MY 2016-2017 Land Rover Range Rover and Land
Rover Range Rover Sport vehicles do not fully comply with paragraph
4.3(j)(2)(ii) of FMVSS No. 209 and paragraphs 4.2.6 and 7.1.1.3 of
FMVSS No. 208, Occupant Crash Protection. Jaguar filed a report dated
December 2, 2016, pursuant to 49 CFR part 573, Defect and Noncompliance
Responsibility and Reports. Jaguar also petitioned NHTSA on December
23, 2016, 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) & 30120(h) and 49 CFR part 556. Notice
of receipt of the Jaguar petition was published, with a 30-day public
comment period, on May 12, 2017, in the Federal Register (82 FR 22183).
No comments were received. Jaguar amended both its 573 report and
petition on June 21, 2018.
Petitioner Autoliv, Inc. (Autoliv) has determined that certain
replacement seat belt assemblies sold to BMW and Jaguar for
installation in their vehicles do not fully comply with paragraph
4.3(j)(2)(ii) of FMVSS No. 209. Autoliv filed a report dated December
1, 2016, pursuant to 49 CFR part 573, Defect and Noncompliance
Responsibility and Reports. Autoliv also petitioned NHTSA on December
23, 2016, 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) & 30120(h) and 49 CFR part 556. Notice
of receipt of the Autoliv petition was published, with a 30-day public
comment period, on May 11, 2017, in the Federal Register (82 FR 22050).
No comments were received.
To view these petitions and all supporting documents, you may 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-2016-0115'' for BMW's petition, docket
number ``NHTSA-2016-0138'' for Jaguar's petition, or docket number
``NHTSA-2016-0139'' for Autoliv's petition.
II. Vehicles Involved
Approximately 15,630 of the following MY 2016-2017 BMW, Mini, and
Rolls-Royce vehicles manufactured between June 29, 2016 and October 10,
2016, are potentially affected:
2017 BMW X1 SAV (X1 sDrive28i, X1 xDrive28i)
2017 BMW 5 Series Gran Turismo (535i Gran Turismo, 535i xDrive
Gran Tursimo, 550i xDrive Gran Turismo)
2016 BMW 5 Series (528i, 528i xDrive, 535i, 535i xDrive, 550i,
550i xDrive, M5)
2016 BMW 5 Series (535d, 535d xDrive)
2016 Mini Cooper Clubman and Mini Cooper S Clubman
Mini Hardtop 4-door Cooper and Mini Hardtop 4-door Cooper S
2017 Rolls-Royce Ghost
Approximately 16,502 of the following MY 2016-2017 Land Rover
vehicles manufactured between May 3, 2016 and October 14, 2016, are
potentially affected:
2016-2017 Land Rover Range Rover
2016-2017 Land Rover Range Rover Sport
Approximately 31,682 Autoliv R230.2 and R200.2 front seat
LH10[ordm] seat belt
[[Page 19995]]
assemblies manufactured between May 6, 2016 and October 18, 2016, and
sold to BMW and Jaguar are potentially affected.
IV. Relevant Regulatory Requirements
Paragraph S4.1.5.1(a)(3) of FMVSS No. 208 includes the requirements
relevant to this petition:
At each front designated seating position that is an
``outboard designated seating position,'' as that term is defined at 49
CFR 571.3, and at each forward-facing rear designated seating position
that is a ``rear outboard designated seating position,'' as that term
is defined at paragraph S4.1.4.2(c) of FMVSS No. 208, have a Type 2
seat belt assembly that conforms to Standard No. 209 and paragraphs
S7.1 through S7.3 of FMVSS No. 208, and, in the case of the Type 2 seat
belt assemblies installed at the front outboard designated seating
positions, meet the frontal crash protection requirements with the
appropriate anthropomorphic test dummy restrained by the Type 2 seat
belt assembly in addition to the means that requires no action by the
vehicle occupant.
Paragraph S4.2.6 of FMVSS No. 208 includes the requirements
relevant to this petition:
Trucks, buses, and multipurpose passenger vehicles with a
GVWR of 8,500 pounds or less and a unloaded vehicle weight of 5,500
pounds or less manufactured on or after September 1, 1997, shall comply
with the requirements of paragraph S4.1.5.1 of this standard (as
specified for passenger cars), except that walk-in van-type trucks and
vehicles designed to be sold exclusively to the U.S. Postal Service may
meet the requirements of paragraphs S4.2.1.1 and S4.2.1.2 of FMVSS No.
208 instead of the requirements of paragraph S4.1.5.1.
Paragraph S7.1.1.3 of FMVSS No. 208 includes the requirements
relevant to this petition:
A Type 1 lap belt or the lap belt portion of any Type 2
seat belt assembly installed at any forward-facing outboard designated
seating position of a vehicle with a gross vehicle weight rating of
10,000 pounds or less, to comply with a requirement of this standard,
shall meet the requirements of S7.1 by means of an emergency locking
retractor that conforms to Standard No. 209.
Paragraph S4.3(j)(2)(ii) of FMVSS No. 209 includes the requirements
relevant to this petition:
For seat belt assemblies manufactured on or after February
22, 2007 and for manufacturers opting for early compliance. An
emergency-locking retractor of a Type 1 or Type 2 seat belt assembly,
when tested in accordance with the procedures specified in paragraph
S5.2(j)(2), shall lock before the webbing payout exceeds the maximum
limit of 25 mm when the retractor is subjected to an acceleration of
0.7 g under the applicable test conditions of S5.2(j)(2)(iii)(A) or
(B). The retractor is determined to be locked when the webbing belt
load tension is at least 35 N.
III. Noncompliance
The petitioners \1\ explain that the subject noncompliance involves
the Emergency Locking Retractor (ELR) in the seat belt assembly of the
affected vehicles' front left seats. The petitioners report that these
vehicle-sensitive ELRs do not lock as required when subjected to the
conditions set out in S4.3(j)(2)(ii) of FMVSS No. 209. Specifically,
when subjected to an acceleration of 0.7 g, the ELR shall lock before
the webbing payout exceeds the maximum limit of 25 mm. However, the
ELRs on affected vehicles lock up after paying out 90 mm of webbing,
which is 3.6 times of the permitted maximum payout of 25 mm. The
affected ELRs will lock at the permitted 25 mm payout when subjected to
an acceleration of 1.0 g.
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\1\ BMW, Jaguar, and Autoliv filed separate petitions with the
agency as described above. Due to the similarity of the issues
addressed by the petitions, the agency is addressing them all
together in this notice.
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This noncompliance with the ELR locking requirements of FMVSS No.
209 is also a noncompliance with FMVSS No. 208 because S7.1.1.3 of
FMVSS No. 208 requires that all forward-facing outboard designated
seating positions be equipped with an FMVSS No. 209-compliant seat belt
assembly.
V. Background
An ELR is a component of a seat belt assembly that is intended to
protect vehicle occupants against injury or death by limiting how much
webbing the assembly's retractor pays out when a belted occupant is
subjected to rapid deceleration, as would happen during panic braking
or a crash. ELRs do this by locking the webbing spool and restraining
an occupant's travel distance before the occupant strikes the vehicle's
interior structure.
There are two basic types of ELR: Vehicle-sensitive and webbing-
sensitive. In a vehicle-sensitive ELR, the locking mechanism activates
when it senses rapid deceleration of the vehicle itself. In a webbing-
sensitive ELR, the locking mechanism activates when the webbing payout
rate from the retractor exceeds a predetermined threshold. In many
cases, vehicle manufacturers voluntarily equip their vehicles with both
vehicle-sensitive and webbing-sensitive ELRs, as the two types of
locking mechanisms behave differently and have their own advantages and
disadvantages.
ELRs on new vehicles are primarily regulated by FMVSS Nos. 208 and
209. These two standards measure ELR performance in different ways.
FMVSS No. 208 is a vehicle-level standard that establishes requirements
for how the entire vehicle (including ELRs) must perform in a set
number of dynamic frontal crash test scenarios. FMVSS No. 208 requires
that the forces and accelerations that an anthropomorphic test device
experiences during these dynamic crash tests (collectively ``injury
assessment reference values'' or ``IARVs'') do not exceed a specified
value. FMVSS No. 208 also requires that vehicles be equipped with
certain active and passive restraint systems, including the requirement
that all forward-facing outboard designated seating positions in
vehicles with a gross vehicle weight rating of 10,000 pounds or less be
equipped with ELRs meeting the requirements of FMVSS No. 209.\2\
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\2\ FMVSS No. 208 S7.1.1.3.
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Unlike FMVSS No. 208, FMVSS No. 209 is an equipment-level standard
which sets out minimum performance requirements for seat belt
assemblies and their individual components. These include static
testing requirements like a requirement that components of the seat
belt assembly can withstand certain loads and that its components do
not degrade when exposed to different types of wear.\3\ The
requirements that apply specifically to ELRs are set out in FMVSS No.
209 S4.3(j), and the requirement that an ELR lock before the webbing
extends 25 mm when the retractor is subjected to an acceleration of 0.7
g is set out at S4.3(j)(2)(ii).
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\3\ FMVSS No. 209, S4.2.
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VI. Summary of Petitions
According to the petitioners, the affected vehicles and equipment
do not comply with paragraph S4.3(j)(2)(ii) of FMVSS No. 209. By
extension, the affected vehicles also do not comply with aspects of
FMVSS No. 208 that require seat belt assemblies conforming to FMVSS No.
209 be installed in vehicles.\4\ As explained above, FMVSS
[[Page 19996]]
No. 209, S4.3(j)(2)(ii) requires that ELRs lock within 25 mm of webbing
payout when tested at an acceleration of 0.7 g under the procedures
specified in S5.2(j)(2)(iii)(A) or (B). According to the petitioners,
the ELRs payout more webbing than is permitted under the standard at
the specified acceleration of 0.7 g, but that the payout decreases at
higher accelerations. Specifically, the affected ELRs payout 90 mm of
webbing before locking when tested with an acceleration of 0.7 g, and
they payout the required 25 mm of webbing before locking when tested
with an acceleration of 1.0 g.
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\4\ BMW amended their Part 573 and their petition to address the
noncompliance with FMVSS No. 208, S4.1.5.1(a)(3) since their
petition applied to passenger vehicles. Jaguar acknowledged a
noncompliance with FMVSS No. 208, S7.1.1.3, however, they also
amended their Part 573 report and their petition to include a
noncompliance with FMVSS No. 208, S4.2.6 since their petition
applied to light trucks, buses, or multipurpose passenger vehicles
applicable to this requirement.
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The petitioners stated their belief that the noncompliance is
inconsequential as it relates to motor vehicle safety. In support, the
petitioners submitted the following arguments:
(a) The vehicle-sensitive locking mechanism functions, but the
noncompliance involves what the petitioners assert is a ``slight''
exceedance of the FMVSS No. 209 Section S4.3(j)(2)(ii) requirement.
(b) The affected vehicles' seat belt assemblies also contain a
voluntary webbing-sensitive locking mechanism which provides crash and
rollover restraint performance comparable to the performance provided
by an FMVSS No. 209 compliant vehicle-sensitive locking mechanism.
(c) Crash test results comparing FMVSS No. 209 S4.3(j)(2)(ii)
compliant ELRs and ELRs in which the vehicle-sensitive locking
mechanism has been disabled (to demonstrate a ``worst-case scenario'',
even though in affected vehicles the vehicle-sensitive mechanism
remains functional) demonstrate comparable results according to dynamic
test assessments. According to the petitioners, the test results
indicate that any performance differences between a compliant and
noncompliant vehicle-sensitive ELR are within normal ``data scatter''
and can be attributed to test tolerances.\5\
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\5\ The petitioners performed sled tests and ``quasi-static''
rollover tests in which they compared the performance of vehicles
with compliant and noncompliant vehicle-sensitive ELRs in a crash.
In addition, Jaguar submitted data from a run of a simulated ``cork-
screw'' rollover test using computer modelling. The petitioners
argue that the results of these tests support a finding that the
subject noncompliance is inconsequential because there was no
significant difference in performance between compliant and disabled
vehicle-sensitive ELRs, both for tests that measured occupant
movement during a crash and tests that measured IARVs in a crash.
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(d) Affected seat belt assemblies comply with all other applicable
provisions of FMVSS No. 209. (BMW specifically points out that the
tilt-lock function of the ELRs on its vehicles are compliant with FMVSS
No. 209, since it locks at angles greater than 15-deg up to 41-deg when
subjected to the FMVSS No. 209 Section S4.3(j)(2) rollover
requirements.)
(e) NHTSA previously granted a petition from General Motors in
which the ELR's vehicle-sensitive locking mechanism was completely non-
functional,\6\ whereas the ELR's vehicle-sensitive locking mechanism in
the affected BMW vehicles is functional, but may experience a
``slight'' exceedance of the FMVSS No. 209 S4.3(j)(2)(ii) requirement.
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\6\ See 69 FR 19897 (Apr. 14, 2004). The agency's view on this
issue has evolved since that decision. The agency granted in part
that petition as to certain vehicles because it found, based on the
facts and circumstances presented, that there was not a significant
likelihood of increased injury due to the absence of a complying
ELR. See id. at 19900-01. For the reasons described below in the
agency's response to petitioners' arguments, NHTSA has concluded
here that the absence of a complying ELR would impose risks to motor
vehicle safety.
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(f) The petitioners have not received any customer complaints
related to this issue.
(g) The petitioners are not aware of any accidents or injuries
related to this issue.
(h) Both BMW and Jaguar have corrected vehicle production and
Autoliv has corrected production of the seat belt assemblies.
On these bases, the petitioners stated their belief that the
subject noncompliances are inconsequential as they relate to motor
vehicle safety, and that their petitions to be exempted from providing
notification of the noncompliance, as required by 49 U.S.C. 30118, and
a remedy for the noncompliances, as required by 49 U.S.C. 30120, should
be granted.
To view the petitions and accompanying test data and analyses, you
can visit https://www.regulations.gov by following the online
instructions for accessing the dockets and by using the docket ID
number for this petition shown in the heading of this notice.
VII. Public Comments
NHTSA received one comment concerning BMW's petition, from Mr.
Brian Birchler. Mr. Birchler was of the opinion that NHTSA should grant
BMW's request on the basis that a prior petition, similar in nature,
was partially granted. NHTSA appreciates Mr. Birchler's input, however,
for the reasons described below, NHTSA disagrees with his
recommendation.
NHTSA did not receive any comments on either Jaguar's or Autoliv's
petitions.
VIII. 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. 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). 49 U.S.C. 30111. The Secretary has delegated
this authority to NHTSA. 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. 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. 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.''
[[Page 19997]]
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).
Where the subject noncompliance involves a failure to comply with a
performance requirement or standard, petitioners have a greater burden
to show that the noncompliance is inconsequential due to the direct
effects of such a noncompliance on vehicle safety. Accordingly, the
agency has found few such noncompliances to be inconsequential. One
area in which the agency has granted such petitions has been where the
noncompliance is expected to be imperceptible, or nearly so, to vehicle
occupants or approaching drivers. For example, in one case, NHTSA
determined that the use of an improper upper beam filament that results
in a luminous flux 4% below the lower limit, but which still passes
photometry requirements, was an inconsequential noncompliance with
FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. See
Osram Sylvania Products Incorporate, Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 46000 (July 30, 2013) (NHTSA-2012-
0008; Notice 2).
Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected by a noncompliance will not justify
granting an inconsequentiality petition. Similarly, NHTSA has rejected
petitions based on the assertion that only a small percentage of the
vehicles or items of equipment covered by a noncompliance determination
are likely to actually exhibit the noncompliance. In many such cases,
it may not be readily apparent which vehicles or items of equipment are
actually noncompliant. More importantly, however, the key issue in
determining inconsequentiality is not the aggregate safety consequences
of the noncompliance as a percentage of all drivers, but instead,
whether the noncompliance in question is likely to increase the safety
risk to individual occupants. See Cosco, Inc., Denial of Application
for Decision of Inconsequential Noncompliance, 64 FR 29408 (June 1,
1999) (NHTSA-98-4033-2); General Motors Corporation, Ruling on Petition
for Determination of Inconsequential Noncompliance, 69 FR 19897 (April
14, 2004) (NHTSA-2002-12366, Notice 2).
B. Response to BMW and Jaguar's Arguments
NHTSA has considered the petitioners' arguments and determined that
the subject noncompliance is not inconsequential. NHTSA therefore
denies the petitioners' request for an inconsequentiality
determination. We respond to the petitioners' arguments below.
The Magnitude of the Noncompliance Is Small
The petitioners first argue that the vehicle-sensitive locking
mechanism is functional, and that the magnitude of the affected
vehicles' noncompliance with S4.3(j)(2)(ii) is minor and therefore
inconsequential to motor vehicle safety. NHTSA rejects both the
suggestion that the subject noncompliance is small, and that it is
inconsequential to motor vehicle safety.
As previously noted, S4.3(j)(2)(ii) of FMVSS No. 209 requires that
ELRs lock within 25 mm of webbing payout when tested at an acceleration
of 0.7 g. The petitioners state that the noncompliant ELRs on affected
vehicles lock within 90 mm when tested at the required 0.7 g. Put
another way, the webbing payout of the affected noncompliant ELRs
exceeds the 25 mm locking requirement by approximately 3.6 times. This
noncompliance is hardly ``slight,'' and in fact, was detectable through
routine braking tests. Performance failures of safety-critical
equipment, like seat belts, should rarely, if ever, be granted as
inconsequential, and it seems clear that the subject noncompliance
falls well outside of the bounds of inconsequentiality.
The petitioners' assertion that the subject noncompliance is
inconsequential because the retractor performs as required when tested
at 1.0 g does not assuage our concerns regarding the magnitude of the
noncompliance. According to the petitioners, the noncompliant
retractors lock at the required distance of 25 mm when experiencing a
1.0 g acceleration--the approximate minimum level of acceleration that
an occupant would experience in a frontal crash. This argument ignores
the fact that retractors are intended to protect occupants not just in
a crash setting, but also during pre-crash (panic) braking.\7\ In many
of these pre-crash situations, the retractor might experience an
acceleration of between 0.7 g and 1.0 g. If the retractor fails to lock
when it experiences these lower g-forces, it would negatively impact
motor vehicle safety by increasing both the likelihood and severity of
injuries from a crash.
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\7\ We note that for some of the petitioners' sled testing, they
positioned the test dummies in a way that they claim simulates pre-
crash braking. Positioning the dummies in this way does not address
the underlying issue, which is that an ELR with a locking threshold
of 1.0 g will not lock up during pre-crash braking, which could
cause the driver to lose control or be out of position at the time
of a crash.
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Our concern with pre-crash panic braking is reflected in the
regulatory history of FMVSS No. 209. In the NPRM that preceded NHTSA's
adoption of a 0.7 g locking threshold, NHTSA had originally proposed a
locking threshold of 2.0 g.\8\ In response to the NPRM proposing a
locking threshold of 2.0 g, commenters contended that 2.0 g was too
high a threshold because ELRs should optimally lock during both crashes
and pre-crash panic braking. Commenters noted that, because panic
braking causes deceleration forces of less than 1.0 g, the ELR would
not lock during panic braking if the locking threshold were set to 2.0
g. In response to these commenters and other data NHTSA received
suggesting that a 2.0 g threshold was too high, NHTSA reduced the
locking threshold in the final rule to 0.7 g.\9\ This requirement is
still in effect today.
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\8\ 35 FR 4641 (March 17, 1970).
\9\ 36 FR 4607 (March 10, 1971).
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NHTSA restated its concern with pre-crash braking in an August 22,
2005 Final Rule addressing a petition submitted by the Automotive
Occupant Restraints Council (AORC) in which the agency proposed a new
acceleration corridor with an increased maximum onset rate.\10\ NHTSA
explained in that final rule that it is essential to ensure seat belt
assemblies perform their important safety function of locking up a seat
belt in the event of a crash or emergency braking, and that the
proposed corridor was sufficiently wide as to allow a range of onset
rates to be tested that were preliminarily determined to be more
representative of both real-world crashes and emergency braking events.
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\10\ 70 FR 48883, 48885 (August 22, 2005).
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[[Page 19998]]
Comparable Performance of Compliant and Noncompliant ELRs
The petitioners next argue that the subject noncompliance is
inconsequential because an occupant of a representative vehicle
equipped with a disabled vehicle-sensitive ELR experiences comparable
occupant displacement and IARVs as an occupant of the same vehicle
equipped with compliant vehicle-sensitive ELR when involved in a
crash.\11\ The petitioners' support this argument with data from a
series of sled tests and rollover tests which is summarized in the
petitions. All of the tests that the petitioners submitted involve a
side-by-side comparison of two seat belt assemblies: one with a
disabled vehicle-sensitive ELR and the other with a compliant vehicle-
sensitive ELR. The petitioners claim that the data collected from these
tests show that during crash scenarios, an occupant secured in a
seating position with a compliant vehicle-sensitive ELR will experience
forces comparable to a dummy in a seating position that is equipped
with a disabled vehicle-sensitive ELR.\12\ The petitioners argue that
this comparable performance demonstrates that the noncompliance is
inconsequential.
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\11\ The petitioners' argument here is premised on a similar
argument made by General Motors in an inconsequentiality petition in
2002, which we partially granted. 69 FR 19897 (April 14, 2004). As
stated above and for the reasons explained in this notice, the
agency's view on this issue has evolved.
\12\ The petitioners attribute the similar performance to the
fact that both seat belt assemblies were equipped with an optional
webbing-sensitive ELR. This webbing-sensitive ELR is also not
compliant with FMVSS No. 209.
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We disagree with the petitioners' assessment because it ignores the
crucial role that the static testing requirements of FMVSS No. 209 play
as a safety backstop for crash scenarios that are not accounted for in
dynamic tests such as those performed by the petitioners. Dynamic tests
are meant to assess whether a vehicle's occupant protection systems
work cohesively in certain representative crashes. However, there are
countless crash and pre-crash scenarios that these sorts of tests do
not cover, which is why static requirements of FMVSS No. 209 are
intended to ``fill in the gaps'' to ensure that the vehicle's seat belt
equipment maintains a minimum level of performance in untested
scenarios.
For example, dynamic tests do not account for the fact that a seat
belt assembly is intended to protect occupants even when they are out
of position. This issue was highlighted by one anomalous result of one
of BMW's sled tests, in which the results showed an elevated IARV
metric for the left femur of a dummy in a seat with a disabled vehicle-
sensitive ELR. BMW explains that this result could be attributed to a
``non-optimum positioning of the test dummy's knee relative to the knee
air bag.'' While we take no view as to whether this elevated injury
metric was due to ``non-optimum positioning'' of the dummy, the fact
that non-optimum positioning can occur--even in a controlled testing
environment--underscores the need to protect occupants to the greatest
extent possible in all positions, including those not typically
dynamically tested.
FMVSS No. 209's role as a safety backstop that complements (rather
than substitutes for) dynamic testing requirements is also apparent
from NHTSA's hesitance to create exemptions from static requirements of
FMVSS No. 209 that are based on a vehicle's compliance with other
dynamic testing requirements.\13\ In the decades that FMVSS No. 209 has
existed, NHTSA has seldom amended the standard to permit such an
exemption. One exception was when the agency adopted S4.5 of FMVSS No.
209. S4.5 exempts seat belt assemblies from the elongation requirements
of S4.2(c), S4.4(a)(2), S4.4(b)(4), or S4.4(b)(5), if those seat belt
assemblies are (1) equipped with load limiters, and (2) are installed
at designated seating positions subject to the requirements of S5.1 of
FMVSS No. 208 (i.e., in seating positions with frontal air bags).
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\13\ Dynamic testing in this context consists of a 30 mile per
hour crash test of the vehicle using test dummies as surrogates for
human occupants in contrast to laboratory tests of the seat belt
assembly.
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NHTSA established S4.5 only after it determined through extensive
research that this change would have a net benefit on vehicle safety.
Prior to adopting this change, the agency found that both static and
dynamic testing requirements were needed to ensure occupant safety
because the safety contribution of seat belts assemblies and individual
components in a crash can be affected by the presence of other occupant
protection equipment, and that the level of occupant protection that
the seat belt assembly afforded depended on the performance of the
safety belts themselves and the structural characteristics and interior
design of the vehicle.\14\ The agency has not conducted research into
the potential safety impacts of a similar exemption for the requirement
in FMVSS No. 209, S4.3(j)(2)(ii), and has no reason to believe that
such a change would have anything but a negative effect on vehicle
safety.
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\14\ 56 FR 15295 (April 16, 1991).
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Remaining Arguments
The petitioners also raise four additional points in support of
their petitions: (1) That the affected safety belt assemblies comply
with all other applicable provisions of FMVSS No. 209; (2) that they
have not received any customer complaints related to the subject
noncompliance; (3) that they are not aware of any accidents or injuries
related to the subject noncompliance; and (4) that they have corrected
the issue in new vehicle production. NHTSA has considered these
arguments and determined that they should not factor into our
inconsequentiality analysis.
First, the fact that the seat belt assemblies comply with all other
requirements of FMVSS No. 209 does not affect whether the subject
noncompliance was inconsequential. All vehicles are required to comply
with all applicable FMVSSs in effect at the time of manufacture, which
means that a vehicle's compliance with some requirements cannot offset
a vehicle's noncompliance with other requirements.
Second, the fact that the petitioners have stated that they
received no complaints or do not know of injuries related to the
noncompliance does not inform the agency's analysis. Even a
consequential noncompliance may result in very few complaints and/or
injury reports because drivers may not realize that the noncompliance
exists. For example, in this case, it is unlikely that customers would
run their own tests to measure ELR performance, and it is unlikely that
they would notice the retractor's failure to lock after paying out 25
mm of webbing at an acceleration of 0.7 g unless they already knew
about the noncompliance. Moreover, in the event of a crash, it would be
very difficult for investigators to link crash-related injury
specifically to the subject noncompliance, especially if the
noncompliance only played an indirect role in causing the injury (such
as by failing to restrain a driver in pre-crash braking, causing the
driver to lose control of the vehicle). Lastly, given the size and age
of the affected vehicle population, it is possible the noncompliance
simply has not yet led to complaints or injuries, even if it is likely
to in the future.
Finally, the fact that new vehicle production has been corrected
does not factor into our analysis of whether the noncompliance is
inconsequential. The manufacturers were legally obligated to correct
new vehicle production. See 49
[[Page 19999]]
U.S.C. 30112(a); 30115(a). A manufacturer cannot certify or manufacture
for sale a vehicle it knows to be noncompliant. Id. The fact that new
vehicle production has been corrected simply informs us that the
noncompliance is limited to the affected vehicles described in the
petitions. As we noted earlier, the fact that only a small number of
vehicles are affected by a noncompliance will not justify our granting
an inconsequentiality petition.
IX. NHTSA's Decision
In consideration of the foregoing, NHTSA finds that BMW and Jaguar
have not met their burden of persuading the agency that the subject
noncompliances with FMVSS Nos. 208 and 209 are inconsequential to motor
vehicle safety. Accordingly, NHTSA hereby denies the petitions
submitted by BMW and Jaguar. BMW and Jaguar are therefore obligated to
provide notification of, and a free remedy for, that noncompliance in
accordance with 49 U.S.C. 30118 through 30120.
NHTSA has reviewed Autoliv's petition and based on an email dated
February 28, 2017, Autoliv states that while they do sell a relatively
small quantity of replacement parts to Autoliv operations in Europe,
they do not sell directly to dealerships or the aftermarket. Autoliv
says that all of their sales are direct to the OEM's who in turn,
manage the distribution of those parts to their dealer networks. Thus,
Autoliv has no standing to file for an exemption in accordance with 49
CFR 556, in this case, and therefore, Autoliv's petition is hereby
moot.
Authority: 49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8.
Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2019-09301 Filed 5-6-19; 8:45 am]
BILLING CODE 4910-59-P