Daimler Trucks North America, LLC, Denial of Petition for Decision of Inconsequential Noncompliance, 48752-48756 [2022-17132]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[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