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Daimler Trucks North America, LLC, Denial of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Signing Official: Anne L. Collins Agency: National Highway Traffic Safety Administration Date: 10 August 2022 Topic: Thomas Built Saf-T-Liner  
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[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48752-48756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17132]
[[Page 48752]]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2020-0005; Notice 2]
Daimler Trucks North America, LLC, Denial of Petition for
Decision of Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
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SUMMARY: Daimler Trucks North America, LLC (DTNA) has determined that
certain model year (MY) 2011-2021 Thomas Built Saf-T-Liner HDX school
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 December 17, 2019, and later
amended the report on January 16, 2020. DTNA subsequently petitioned
NHTSA on January 16, 2020, (DTNA incorrectly dated their petition
January 16, 2019) for a decision that the subject noncompliance is
inconsequential as it relates to motor vehicle safety. This document
announces and explains the denial 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, facsimile (202) 366-3081.
SUPPLEMENTARY INFORMATION:
I. Overview: Following notice from NHTSA of a failed compliance
test, DTNA has determined that certain MY 2011-2021 Thomas Built Saf-T-
Liner HDX school buses do not fully comply with the requirements of
paragraph S5.2.3 of FMVSS No. 222, School Bus Passenger Seating and
Crash Protection (49 CFR 571.222). DTNA filed a noncompliance report
dated December 17, 2019, and later amended its report on January 16,
2020, pursuant to 49 CFR part 573, Defect and Noncompliance
Responsibility and Reports. DTNA subsequently petitioned NHTSA on
January 16, 2020, 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.
See 49 U.S.C. 30118(d), 30120(h); 49 CFR part 556, Exemption for
Inconsequential Defect or Noncompliance.
Notice of receipt of DTNA's petition was published with a 30-day
public comment period, on June 12, 2020, in the Federal Register (85 FR
35992). One comment was received. To view the petition and all related
documents, members of the public can log onto the Federal Docket
Management System (FDMS) website at https://www.regulations.gov/ and
then follow the online search instructions to locate docket number
NHTSA-2020-0005.
II. Buses Involved: Approximately 7,601 MY 2011-2021 Thomas Built
Saf-T-Liner HDX school buses manufactured between October 21, 2009, and
December 16, 2019 (the subject buses), are potentially involved.
III. Noncompliance: DTNA explains in its petition that the
noncompliance at issue is that the subject school buses are equipped
with a wall-mounted restraining barrier that does not meet the
requirements specified in paragraph S5.2.3 of FMVSS No. 222.
Specifically, when tested according to the specified test procedure,
the restraining barrier did not meet the force/deflection curve or
deflection requirements. DTNA contends that the restraining barrier
failed to meet these requirements because the upper loading bar
contacted the trim panel on the front entry door of the bus, which
caused the upper loading bar force to exceed the allowable limit.
IV. Rule Requirements: Paragraph S5.2.3(a) of FMVSS No. 222
includes the requirement relevant to this petition. This requirement
states that, ``[w]hen force is applied to the restraining barrier in
the same manner as specified in paragraphs S5.1.3.1 through S5.1.3.4
for seating performance tests,'' the restraining barrier ``[f]orce/
deflection curve shall fall within the zone specified in Figure 1.''
V. Summary of DTNA's Petition: The views and arguments described in
this section, ``V. Summary of DTNA's Petition,'' are the views and
arguments presented by DTNA and do not reflect the views of the Agency.
In its petition, DTNA describes the subject noncompliance and contends
that the noncompliance is inconsequential as it relates to motor
vehicle safety.
In its petition, DTNA submits the following views and arguments:
1. Background and description of the noncompliance: DTNA states
that it modified the restraining barrier design for the subject buses
in October 2009, following an update to FMVSS No. 222, that increased
the seat back height requirement to 24 inches. DTNA states that, for
aesthetic purposes and not for functional or compliance reasons, it
similarly chose to adjust the profiles (slope and angle) of the
restraining barrier to match the new higher seatback height. To do so,
DTNA added approximately \5/8\ inch of foam padding to each side of the
restraining barrier. The foam was added onto the outside of the frame
of the barrier, which did not widen the frame structure itself. The
additional padding is used for cosmetic purposes (to promote uniformity
of design of the seat profiles at that time) and is not needed to
provide protection beyond the construction of the restraining barrier
itself.
2. Analysis: DTNA states that the purpose of the restraining
barrier is to provide compartmentalization for occupants of the first
row of school bus seats, where there is no seat back in a forward seat
to offer protection. FMVSS No. 222 includes a series of performance
requirements for school bus frontal barriers which include the distance
between the barrier and the seat (S5.2.1), the barrier height and
position (S5.2.2), and barrier forward performance (S5.2.3). The
purpose of the barrier forward performance requirement at S5.2.3 is to
ensure the front barrier can withstand the impact of certain set forces
while, at the same time, maintaining component integrity.
3. The forces measured in testing are a product of the test
apparatus that would not occur in the real world. DTNA states that the
effect of the additional foam outside the restraining barrier frame was
to slightly widen the restraining barrier. With a wider restraining
barrier, the placement of the upper restraining barrier is moved
outwards so that it now encounters the door frame trim. Because the
restraining barrier is wider, based on its calculated placement per the
test procedure, the corresponding length of the upper loading bar
becomes longer than that of the prior design. When the upper loading
bar is deployed, it contacts the front entrance door trim and causes
the upper loading bar to exceed the force limits.
DTNA states that the behavior of the upper loading bar is a product
of the test procedure and does not represent the behavior of the
barrier in actual use conditions. Prior to the 2009 design change,
there was an approximately two-inch gap at the height where the upper
loading arm was placed. This prior design met the barrier forward
performance requirements. Following the design change in 2009, that
space was filled in with soft foam, but the effect of doing so did not
have any impact on the performance or integrity of the barrier itself.
DTNA states that it has conducted its own analysis of the
restraining barrier performance in the 2009 design tested by the Agency
as well as the prior design. The results of that testing
[[Page 48753]]
demonstrate that the additional foam creates approximately 11 mm (.43
inches) of interference between the upper loading bar on the right side
of the vehicle and the bus entrance door frame. The additional foam was
not intended to and does not provide any safety or functional benefit.
Even though the prior design of the restraining barrier left a small
gap between the bus sidewall and the barrier itself, the barrier was
more than sufficient to meet the performance forward requirements. The
addition of foam for cosmetic purposes in 2009 does not deter from the
safety of the barrier.
DTNA states that removing the additional \5/8\ inches of foam
padding would eliminate the potential for any interference with the
upper loading bar as it then cannot come into physical contact with the
doorframe. The previous small gap in space did not expose occupants to
an increased risk of harm (as demonstrated by the lack of any reports
from the field potentially related to this issue), and the more recent
addition of the foam also does not create any safety concerns beyond
the operation of the test itself.
4. The current restraining barrier addresses the unreasonable risk
to safety identified by FMVSS No. 222. DTNA states that the purpose of
a restraining barrier is to compartmentalize and contain passengers
located in the first row of seats in the event of a crash or sharp
deceleration. The forward performance test evaluates the strength of
the restraining barrier in a forward impact and to deflect in a
controlled manner as it absorbs the energy of the occupant striking the
barrier.
DTNA states that the restraining barrier is intended to provide an
equivalent level of compartmentalization as the seat back for the
rearward seats. The safety benefit of compartmentalization is realized
through the height of the restraining barrier (or seatback), and a
restraining barrier that is too low could increase the likelihood that,
in a forward crash, an occupant could be thrown over the barrier. This
view is consistent with the requirement that the height and position of
the restraining barrier match or ``coincide'' with that of the
seatback. Because FMVSS No. 222 defines the unreasonable risk to safety
as the potential for being thrown over the barrier, it is the height
and position of the barrier that mitigate against this risk.
DTNA additionally states that, while the surface area of the
barrier must at least coincide with the surface area of the seatback,
any additional width of the barrier that extends beyond the frame of
the barrier is surplus material that does not address the unreasonable
risk to safety addressed by the standard. DTNA states that the Agency
has previously recognized that a ``restraining barrier must therefore
only coincide with or lie outside of the seatback surface required by
S5.1.2. If a seat back surface exceeds the size required in Standard
222, the size of the restraining barrier need not coincide.'' (Ltr.
from E. Jones, NHTSA, to L. Wort, Ill. Dept. of Transp. (Aug. 11,
1987).) \1\ The reverse also holds true. For the subject buses, the
surface area of the barrier is larger than that of the seat back and
exceeds the area required by S5.2.1. While the restraining barrier
surface area can be larger than the seat back, the unreasonable risk to
safety is addressed by maximizing the effects of compartmentalization
by ensuring the perimeter of the restraining barrier coincides with the
surface area of the seatback.
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\1\ Available at: https://isearch.nhtsa.gov/gm/87/nht87-2.66.html.
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DTNA states that the test procedure considers the need to assess
the portion of the barrier that is intended to bear the force of the
loading. DTNA believes that when creating the test procedure, the
Agency intentionally limited the length of the loading bar to be
approximately 4 inches shorter than the width of the seat back or
restraining barrier. DTNA says NHTSA declined to reduce the size of the
range to two inches because it wanted ``to ensure loads would be
transferred to the seat structure without collapse of the seat back''
and to discourage manufacturers from adding a narrow structural member
to meet the requirements. See 39 FR 27585 (July 30, 1974). In other
words, the objective of the forward performance test is to measure the
operation and structural integrity of the restraining barrier by
ensuring the loads are concentrated in the core of the structure itself
and not the periphery of the structure which could cause it to
unnecessarily collapse. Thus, the additional foam installed outwards of
the restraining barrier frame has no bearing on the forward performance
of the restraining barrier.
5. DTNA states that it has corrected this issue in production by
adjusting the location of the installation of the barrier by moving it
away from the wall by \3/4\ inch. Doing so ensures that in any future
testing, the loading bar will not encounter the door frame.
6. Finally, DTNA states that it has used this seating design for
over a decade. It is not aware of any consumer complaints or reports of
accidents or injuries related to the forward displacement of the
restraining barrier.
DTNA concludes its petition by again contending that the subject
noncompliance is inconsequential as it relates to motor vehicle safety,
and requesting that its petition to be exempted 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, be
granted.
VI. Public Comment: NHTSA received one comment from the general
public concerning DTNA's petition. The commenter believed NHTSA should
deny DTNA's request on the basis that the subject vehicles failed to
meet test requirements. NHTSA appreciates the commenter's input and,
for the reasons described below, is denying DTNA's petition.
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 it has determined that the
performance requirements are objective, 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. To
protect the public from such risks, manufacturers whose products fail
to comply with an FMVSS are normally required to conduct a safety
recall in which they must notify owners, purchasers, and dealers of the
noncompliance and provide a free remedy. See 49 U.S.C. 30118-20.
However, Congress 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
[[Page 48754]]
governing the filing and consideration of petitions for
inconsequentiality exemptions are set forth 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 regarding 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 found very few noncompliances with
performance requirements to be inconsequential. Potential performance
failures of safety-critical equipment, like seat belts or air bags, are
rarely, if ever, found to be inconsequential.
An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance petitions is 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 be demonstrative on
the issue of whether the noncompliance is inconsequential to safety.
The Agency has explained that ``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\ Likewise, ``the 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 also have not resulted in 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 outcome 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 has reviewed DTNA's arguments that the subject noncompliance
is inconsequential to motor vehicle safety. DTNA contends that the
noncompliance of the passenger side barrier on the subject buses with
the barrier forward performance requirements specified in paragraph
S5.2.3 of FMVSS No. 222, poses little, if any, risk to motor vehicle
safety. NHTSA does not agree. In reaching this conclusion, NHTSA
considered the following:
The purpose of FMVSS No. 222 is to reduce the number of deaths and
the severity of injuries that result from the impact of school bus
occupants against structures within the vehicle during crashes and
sudden driving maneuvers (49 CFR 571.222 S2). The requirements of
S5.2.3 Barrier Performance Forward of FMVSS No. 222, at issue here are
specific to the energy a barrier can absorb during an emergency event,
and the rate at which such energy can be absorbed. These requirements
are threefold: (1) a barrier must be able to absorb a minimum amount of
energy within the first 356 mm of deflection,\7\ (2) the rate of energy
absorption must fall within a specified Force vs Deflection Zone,\8\
and (3) the barrier, and its components, must not separate at any
attachment point from the vehicle, nor interfere with normal door
operation. In the present case, during NHTSA's compliance test of the
barrier in question, the rate of energy absorption exceeded the upper
limit of the Force vs Deflection Zone before absorbing the minimum
required energy, thereby leading to a compliance test failure.
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\7\ The minimum energy required to be absorbed by the barrier is
based on the number of designated seating positions, W, of the seat
immediately behind the barrier. See 49 CFR 571.222 S5.1.3.4,
S4.1(a).
\8\ See 49 CFR 571.222 Figure 1.
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NHTSA does not agree that the 2009 design change to the subject
buses did not have any impact on the barrier performance. DTNA states
that it adjusted the profiles (slope and angle) of the barrier to match
the new higher seatback height, in addition to adding approximately \5/
8\ inch of foam padding to each side of the barrier. DTNA did not
provide evidence demonstrating that, when DTNA was considering the new
barrier design, it tested the design or otherwise engaged in analyses
to ensure compliance to the existing requirements of FMVSS No. 222.
Similarly, DTNA did not provide evidence demonstrating that any testing
[[Page 48755]]
or analyses were ever performed that took into account the obstruction
between the new barrier design and front entrance door trim
combination.\9\ As such, NHTSA is not persuaded by DTNA's argument that
the design change was only aesthetic and had no impact on the
performance of the barrier, as no evidence was provided in support of
this claim.
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\9\ Manufacturers and testing laboratories may perform tests
that are either ``in-bus'' or ``outside of bus'' for barrier and
seat tests to evaluate barrier/seat performance. In the present
case, the interaction between the barrier and the front entrance
door trim is at issue, therefore only ``in-bus'' testing with the
same relative placement of the barrier to the door trim would be
appropriate for comparative purposes.
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NHTSA also does not agree that the compliance test failure was
caused by the upper loading bar contacting the front entrance door trim
during the test. The barrier foam thickness is 3.5 inches (88 mm) and
extends approximately 2 inches (51 mm) beyond the end of the loading
bar. For the loading bar to contact the front entrance door trim, the
loading bar would have had to compress 3.5 inches of foam to 0 inches
to directly contact the front entrance door trim. Further, the loading
bar is mounted to allow up to 30 degrees rotation in the horizontal
plane, so that, when the barrier contacted the front entrance door trim
and the foam began to compress on that side, the loading bar would
rotate about its pivot point and reduce or eliminate any potential
overlap between the loading bar and front entrance door trim. NHTSA
therefore is not persuaded by DTNA's argument that the upper loading
bar made contact with the front entrance door trim during the NHTSA
compliance test because DTNA provided no evidence demonstrating how the
3.5 inches of foam could be compressed to 0 inches, and no analysis
that accounted for the rotation of the loading bar away from the front
entrance door trim.
NHTSA also does not agree with DTNA's argument that ``placement of
the [upper loading bar] should be calculated based on the size of the
barrier from the frame inwards and not include the surplus material
that does not provide structure to the barrier.'' The NHTSA letter of
interpretation which DTNA referenced in support of this argument \10\
was responding to a question about whether the height of a barrier
needed to match the height of the seat immediately behind a barrier,
where the seat height was above the minimum required seat height
specified in FMVSS No. 222. This letter of interpretation does not
support DTNA's petition because energy absorption by the barrier was
not at issue in the letter of interpretation. As such, NHTSA is not
persuaded by DTNA's argument that the loading bar width should be
calculated based on the barrier frame.
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\10\ Available at: https://isearch.nhtsa.gov/gm/87/nht87-2.66.html.
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NHTSA does not agree with DTNA's argument regarding the length of
the loading bar or its contention that ``the objective of the forward
performance test is to measure the operation and structural integrity
of the restraining barrier by ensuring the loads are concentrated in
the core of the structure itself and not the periphery of the structure
which could cause it to unnecessarily collapse.'' The history of FMVSS
No. 222 and the requirements for the length of the loading bar show
that FMVSS No. 222 was initially proposed as a new vehicle safety
standard on February 22, 1973 (38 FR 4776). The preamble for this first
proposed rule did not include any discussion on the length of the
loading bar, and the proposed regulatory text stated that ``[t]he
length of a loading bar is 4 inches less than the width of the seat
back in each test.'' In response to comments received on the first
proposed rule, a second proposed rule was published on July 30, 1974
(39 FR 27585). The preamble for the second proposed rule included a
statement on the length of the loading bar, explaining that ``[t]he
specified loading bar remains 4 inches shorter than the seat back
width, despite several objections, to ensure that loads will be
transferred to the seat structure without collapse of the seat back.''
The proposed regulatory text was slightly revised to provide that
``[t]he length of the loading bar is at least 4 inches less than the
width of the seat back in each test.'' In response to comments received
on the second proposed rule, a third proposed rule was published on
April 23, 1975 (40 FR 17855). The preamble of the third proposed rule
included a statement on the length of the loading bar, explaining that
``[t]he loading bar specifications have been tightened to require the
bar to be 4 inches shorter than the seat back width, rather than `at
least 4 inches' shorter.' '' The proposed regulatory text in the third
proposed rule was essentially reverted back to the text in the first
proposed rule and provided that ``[t]he length of the loading bar is 4
inches less than the width of the seat back in each test.'' \11\ In
response to comments received on the third proposed rule, a fourth
proposed rule was published on October 8, 1975 (40 FR 47141). The
preamble of the fourth proposed rule included the following discussion
specifically related to the loading bar length:
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\11\ The third proposed rule language matches the modern-day
requirements specified in FMVSS No. 222 S5.6 (albeit in English
units).
Manufacturers also requested tolerances in positioning of the
loading bar at 16 inches above the seating reference point and in
the bar's 4-inch length.\12\ As has often been stated in NHTSA
interpretations on similar issues, such a request reflects a
misunderstanding of the legal nature of the safety standards. They
are not instructions, but performance levels that vehicles are
required by law to be capable of meeting. Any tolerance in this
context would be meaningless and misleading, since it would merely
have the effect of stating a performance level that the product must
meet when tested by the government, at one end or the other of the
tolerance gap, but in a confusing manner. Recognizing that no
measurement is perfectly precise, a manufacturer's testing should be
designed to show, using this case as an example, that if the seat
were tested with the loading bar at precisely 16 inches above the
seating reference point, and with a bar exactly 4 inches long, the
seat would meet the applicable requirements. This may be done in at
least two different ways: (1) by using a test procedure that
conforms so closely to the specified input measurements (16 inches,
4 inches, etc.)--that no significant differences in results could
occur as a result of the differences between the actual input
measurements and the specified ones, or (2)--by determining which
``side'' of the specified measurements is adverse to the product
tested, and being sure that the actual input measurements deviate
from the specified ones on the adverse side.
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\12\ In the preamble discussion of the fourth proposed rule for
FMVSS No. 222, references to the loading bar being 4 inches long are
actually in reference to the length of the loading bar being 4
inches less than the barrier width at the loading bar height.
The proposed regulatory text was unchanged from the third proposed
rule. Following public comment on the fourth proposed rule, a final
rule was published on January 28, 1976 (41 FR 4018). The preamble of
the final rule did not include any further discussion on the length of
the loading bar, and the regulatory text remained unchanged from the
third proposed rule. No additional rulemakings have impacted the
requirement specified in paragraph S5.6 of FMVSS No. 222 regarding the
length of the loading bar. Although DTNA states that ``NHTSA declined
to reduce the size of the range [from four inches] to two inches
because it wanted `to ensure loads would be transferred to the seat
structure without collapse of the seat back' and to discourage
manufacturers from adding a narrow structural member to meet the
requirements,'' the history of the rulemaking relating to this standard
does not support this statement. This
[[Page 48756]]
same history shows that the Agency, at one time, contemplated
increasing the size of the range at issue in its second proposed rule
with the addition of the phrase ``at least,'' \13\ but does not suggest
that NHTSA ever contemplated decreasing the size of the range.
Furthermore, although DTNA's argument implies that a longer loading bar
may not concentrate loads to the barrier structure and may in fact lead
to unnecessary collapse at the periphery of the barrier, DTNA provided
no analysis or data supporting this claim. As such, NHTSA is not
persuaded by DTNA's argument that ``the objective of the forward
performance test is to measure the operation and structural integrity
of the restraining barrier by ensuring the loads are concentrated in
the core of the structure itself and not the periphery of the structure
which could cause it to unnecessarily collapse.''
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\13\ For clarity, increasing the size of the range at issue
(which is the length of the loading bar relative to the width of the
barrier) would correspond to a shorter loading bar. On the same
note, decreasing the size of the range, would correspond to a longer
loading bar.
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NHTSA's Decision: In consideration of the foregoing, NHTSA has
decided that DTNA has not met its burden of persuasion that the subject
FMVSS No. 222 noncompliance is inconsequential to motor vehicle safety.
Accordingly, DTNA's petition is hereby denied, and DTNA is consequently
obligated to provide notification of and free remedy for that
noncompliance under 49 U.S.C. 30118 and 30120.
(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)
Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-17132 Filed 8-9-22; 8:45 am]
BILLING CODE 4910-59-P