Daimler Trucks North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, 25447-25452 [2023-08735]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Notices]
[Pages 25447-25452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08735]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0004; Notice 2]


Daimler Trucks North America, LLC, Grant of Petition for Decision 
of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Grant of petition.

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SUMMARY: Daimler Trucks North America, LLC (DTNA), has determined that 
certain model year (MY) 2013-2018 Thomas Built Buses do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, 
School Bus Passenger Seating and Crash Protection. DTNA filed a 
noncompliance report dated November 27, 2017. DTNA in collaboration 
with SynTec Seating Solutions, LLC (SynTec), the seating manufacturer, 
subsequently petitioned NHTSA on December 15, 2017, and later amended 
it on September 21, 2018, for a decision that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety. This document 
announces the grant of DTNA's petition.

FOR FURTHER INFORMATION CONTACT: Daniel Lind, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
telephone (202) 366-7235.

SUPPLEMENTARY INFORMATION: 

I. Overview

    DTNA has determined that certain MY 2013-2018 Thomas Built Buses do 
not fully comply with paragraph S5.3.1.3 of FMVSS No. 222, School Bus 
Passenger Seating and Crash Protection (See 49 CFR 571.222). DTNA filed 
a noncompliance report dated November 27, 2017, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. DTNA 
subsequently petitioned NHTSA on December 15, 2017, and later amended 
it on September 21, 2018, for an exemption from the notification and 
remedy requirements of 49 U.S.C. Chapter 301 on the basis that this 
noncompliance is inconsequential as it relates to motor vehicle safety, 
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556, 
Exemption for Inconsequential Noncompliance or Defect.
    Notice of receipt of DTNA's petition was published, with a 30-day 
public comment period on May 13, 2019, in the Federal Register (See 84 
FR 20951). One comment was received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at https://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2018-0004.''

II. Buses Involved

    Affected are approximately 3,222 MY 2013-2018 versions of the 
following Thomas Built Buses, manufactured between August 24, 2012, and 
May 1, 2017, specifically:

 Thomas Built Buses Saf-T-Liner C2
 Thomas Built Buses Saf-T-Liner EFX

[[Page 25448]]

 Thomas Built Buses Saf-T-Liner HDX
 Thomas Built Buses Minotour DRW

III. Noncompliance

    DTNA explains that the noncompliance is that the subject buses are 
equipped with seats that have Type 2 (lap/shoulder) seat belts, 
manufactured by SynTec, that do not meet the head form force 
distribution requirements as specified in paragraph S5.3.1.3 of FMVSS 
No. 222. Specifically, the Type 2 seat belts include a plastic bezel, 
where the seat belt is routed through the seat, located within the head 
protection zone.

IV. Rule Requirements

    Paragraph S5.3.1.3 of FMVSS No. 222, titled ``Head form force 
distribution'' includes the requirements relevant to this petition:

    When any contactable surface of the vehicle, within the zones 
specified in paragraph S5.3.1.1, is impacted from any direction at 
6.7 m/s by the head form described in paragraph S6.6, the energy 
necessary to deflect the impacted material shall be not less than 
4.5 joules before the force level on the head form exceeds 667 N. 
When any contactable surface, within such zones, is impacted by the 
head form from any direction at 1.5 m/s the contact area on the head 
form surface shall be not less than 1,935 mm\2\.

S4 of the standard defines ``contactable surface'' as follows:

    Contactable surface means any surface within the zone specified 
in S5.3.1.1 that is contactable from any direction by the test 
device described in S6.6, except any surface on the front of a seat 
back or restraining barrier 76 mm or more below the top of the seat 
back or restraining barrier.

V. Summary of DTNA's Petition

    DTNA described the subject noncompliance and stated its belief that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety.
    In support of its petition, DTNA provided the following background 
information:
    1. In January 2011, SynTec introduced the M2K lap/shoulder seat to 
provide several additional safety features to passengers. The company 
sold 2,272 M2K lap/shoulder seats to Thomas Built Buses before 
discontinuing the product in 2012. SynTec then improved upon the M2K 
lap/shoulder seat design with the S3C seat, which the Company 
introduced in 2012. The seat backs of these seats are substantially 
higher than earlier school bus passenger seats and are equipped with 
lap/shoulder seat belts. The seat also includes: color coding and key 
buckles to prevent improper buckling, a fixed buckle anchorage to 
prevent side occupant incursion, flip up buckles in pockets to be out 
of the way from debris, high shoulder anchorage, and contoured seat 
cushion. The plastic ``bezel'' (the location from which the lap/
shoulder harness exits the seat back) was intentionally set high on the 
seat fronts to provide protection to the maximum range of occupants. 
Some M2K and S3C seats also are equipped with an integrated child seat.
    2. To ensure that the Affected Seats complied with all laws and 
regulations, SynTec contracted with a third party, MGA Research 
Corporation (MGA), to conduct certification testing under FMVSS No. 
222. Specifically, MGA conducted tests on the M2K seat in June 2011, 
and on the S3C seat in August 2012. The M2K and S3C complied with FMVSS 
No. 222 requirements with respect to the back of the seat. Consistent 
with the industry norm and MGA's past practice, MGA did not test 
targets on the front of the seat. Based on its interactions and 
conversations with MGA, SynTec understood that back seat-only testing 
represents the industry norm. Front of the seat testing is not 
conducted due to the low risk of harm from the front, and because the 
small head impact zone makes it impossible to conduct the test per the 
recommended test procedure. Indeed, as referenced above, the testing 
was designed to ensure that the back of the seat was an energy absorber 
and that various hazards were eliminated from the top. Nonetheless, 
these early MGA tests results, specifically, the product's head injury 
criterion (HIC) values and the strong contact area and impact velocity 
scores on the back of the seat, highlighted the improved safety 
benefits of SynTec's new seat design.
    In support of its petition, DTNA provided the following reasoning:
    1. The S5.3.1.3 tests are outmoded for the front of the seat and 
the equipment's HIC scores represent the most accurate accounting of 
the seat's safety.
    2. As highlighted above, the original intent of the contact surface 
test was to precipitate the elimination of metal grab bars and other 
hostile objects above the passenger seats that could come into contact 
with the occupant's head in the event of a crash. See 38 FR 4776 (Feb. 
22, 1973) (Proposed Rule) stating the goal of ``eliminating exposed 
metal bars and similar designs and making the seat itself a significant 
energy absorber.'' Likewise, the head form force distribution test was 
designed to ensure that the seat would depress and distribute the force 
of impact in a manner that could not be achieved with exposed metal 
surfaces on the seat.
    3. Although SynTec was noncompliant with these two tests, the 
requirements are now outmoded with respect to the front of the affected 
seats because the various hazards they are seeking to guard against no 
longer exist. Indeed, the noncompliance did not occur because of a 
hazard that the regulations were designed to protect against. Rather, 
as explained below, the noncompliance resulted from a high-placed bezel 
that actually makes the affected seats safer for more occupants. The 
two tests were crafted for a school bus seat design that was 
substantially different and less safe than the superior versions that 
exist in the market today.
    4. Given that these tests are outmoded, the most accurate measure 
of head safety for the front of the seat is the product's HIC value. 
The HIC is the most widely accepted measure of head injury in use 
today. Indeed, it is the standard measure of head injury throughout the 
FMVSSs. See, e.g., FMVSS No. 201 and 208. Similarly, HIC is the metric 
used by NHTSA's New Car Assessment Program. See 80 FR 78522, 78533 
(2015) noting that the HIC value ``is currently in use in FMVSS No. 208 
and frontal NCAP tests.'' The HIC measure is particularly valuable 
since it accounts for energy absorption and contact area by measuring 
the deceleration of the head form over time.
    5. Over the past few years, both SynTec and NHTSA, internally and 
at accredited external test agencies, have conducted HIC testing on the 
front of the affected seats. During testing, the seats were positioned 
at various angles, and impacts were performed on multiple locations of 
the seat within the head protection zone ``hits'', including on the 
portion of the plastic bezel that protrudes into the top 76 mm on the 
front. These test results always produced a HIC value well below 1,000. 
For instance, since March 2017 SynTec has conducted 253 ``hits'' on the 
front of the seat. The average HIC value during these tests was 114.1, 
with a low score of 51.7 and a high HIC value of 311.8. Even the 
product's highest HIC value falls far short of the 1,000 maximum 
requirement. These values illustrate the safety of SynTec's product and 
the inconsequentiality of the noncompliance with the other FMVSS No. 
222 test requirements.
    6. Simply stated, the tests which prompted DTNA and SynTec's 573 
Reports, are searching for hazards on the front of the seat that do not 
exist in the affected seats. See 38 FR 4776 (Feb. 22, 1973) (Proposed 
Rule). As the product's HIC values show, the technical noncompliance of 
the SynTec seats on these two tests is not relevant to the

[[Page 25449]]

product's safety. Accordingly, NHTSA should grant this petition for 
inconsequentiality.
    7. The source of SynTec's noncompliance enhances the product's 
safety. SynTec's seats are safer than regulators could have envisioned 
in 1976. Indeed, the cause of the noncompliance, the location of the 
plastic bezel, renders the seat safer than it would be with a bezel 
that was not placed in the head protection zone. This higher 
positioning combined with higher seat backs provides a belt for a 
maximum range of occupants and keeps hard objects away from the most 
vulnerable passengers. SynTec utilized automotive best practices and 
BELFIT software from the Motor Industry Research Association to 
determine the optimum geometric place for the belt position. SynTec's 
objective was to provide maximum protection, considering the wide range 
of occupant sizes riding on a school bus. Based on this analysis, it 
placed the bezel at the higher portion of the seat. The position also 
allowed for more adjustment by the d-ring, for better torso restraint, 
and for a more comfortable fit (thereby encouraging use).
    8. The higher shoulder harnesses also keep hard surfaces away from 
small occupants who are most vulnerable. A typical occupant in the 
vehicle would have a greater chance of coming into contact with a lower 
bezel. In seats with lap/shoulder belts with a lower bezel, the bezel 
would land in a smaller occupant's head area. Similarly, most designs 
that include an integrated child seat, have a hard surface that sits 
behind a smaller occupant's head. In contrast, the affected seat's 
higher bezel location places the bezel outside of a smaller occupant's 
head area. Likewise, for smaller occupants using integrated child 
seats, the bezel also falls outside of the occupant head area. 
Essentially, the higher bezel ensures better protection for the most 
vulnerable riders. Rather than cause any safety issues, the 
noncompliance, which occurred because of the location of the plastic 
bezels, makes the affected seats safer.
    9. The noncompliance at issue relates to front-of-seat tests 
designed to address features that are no longer present in school 
buses, such as metal bars at the top of seat backs and low seat backs. 
Therefore, DTNA believes the noncompliance is inconsequential as it 
relates to school bus safety. Moreover, the location of the plastic 
bezel on the lap/shoulder belts, which is the source of the 
noncompliance, is actually a safety improvement, in that its high 
position allows for maximum occupant ranges and fit and protects the 
smallest seat occupants. A typical occupant in the vehicle would have a 
greater chance of encountering a compliant lower bezel.
    10. Thus, the design represents an enhanced level of safety for 
school bus occupants, especially younger passengers who are more 
vulnerable in the event of a crash. Consistent with the enhanced safety 
design of the lap/shoulder belt, DTNA is not aware of any complaints, 
injuries or reports of safety concerns regarding this issue. DTNA's 
seat supplier, SynTec, implemented a new seat design which corrected 
the noncompliance by replacing the hard plastic bezel with a soft vinyl 
harness cover and increasing the seat thickness by 3/8 inches as of May 
3, 2017.
    11. NHTSA Precedents--DTNA notes that NHTSA has previously granted 
petitions for decisions of inconsequential noncompliance for a wide 
range of issues where a technical non-compliance exists but does not 
create a negative impact on safety. In the case detailed within this 
petition, the lap/shoulder belt is an optional feature on the clear 
majority of school buses. When added, lap/shoulder belts increase the 
safety of the occupants as compared to a bus without passenger 
seatbelts. Also, the high bezel increases the child protection 
performance requirements by reducing the likelihood of an occupant 
coming into contact with the hard surface. The following examples are 
petitions for inconsequentiality that were granted by NHTSA and are 
described within this petition to support DTNA's argument that, while 
technically non-compliant, NHTSA has previously granted 
inconsequentiality for cases where an additional level of safety above 
the requirements of the standard is provided.
    12. See 70 FR. 24464 (May 9, 2005), Docket No. NHTSA 2005-20545 
(Grant of Petition for IC Corporation) for an example of a petition for 
inconsequentiality that was granted by NHTSA. In this instance, school 
buses were manufactured that were not compliant with FMVSS 217, but it 
was deemed inconsequential because it did not compromise safety. ``. . 
. The Agency agrees with IC that in this case the noncompliance does 
not compromise safety in terms of emergency exit capability in 
proportion to maximum occupant capacity, access to side emergency 
doors, visibility of the exits, or the ability of bus occupants to exit 
after an accident.''
    13. See also 63 FR 32694 (June 15, 1998), Docket No. NHTSA 98-3791 
(Grant of Petition for New Flyer of America, Inc.) for another example 
of a petition for inconsequentiality that was granted. In this case, 
non-school buses were manufactured that were not compliant with FMVSS 
No. 217 but were granted inconsequentiality because the buses had 
additional safety features that were not required in the standard. The 
following quote is from NHTSA's notice granting the petition: ``Thus, 
the buses have the minimum number of emergency exits required by FMVSS 
No. 217. However, these exits were not distributed properly. Instead of 
a second emergency exit on the right side, these buses have an 
additional roof exit. This additional roof exit would provide for much 
needed emergency exit openings should the bus occupants need to 
evacuate due to a rollover incident. While this additional roof exit is 
not required by the standard, it does provide for an additional level 
of safety in the above situation. In consideration of the foregoing, 
NHTSA has decided that the applicant has met its burden of persuasion 
that the noncompliance it described above is inconsequential to motor 
vehicle safety.'' Id.
    DTNA's complete petition and all supporting documents are available 
by logging onto the Federal Docket Management System (FDMS) website at: 
https://www.regulations.gov/ and following the online search 
instructions to locate the docket number listed in the title of this 
notice.
    In summation, DTNA believes that the described noncompliance in the 
subject buses is inconsequential as it relates to motor vehicle safety, 
and that its petition to exempt DTNA from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.

VI. Public Comments

    One comment was received from Freedman Seating Company (FSC), which 
has designed and manufactured passenger seats for the school/activity 
bus market for over 20 years. The commenter agreed with DTNA's 
arguments regarding rear surface seat back-only testing represents the 
industry norm, that front of the seat back testing is generally not 
conducted due to the low risk of harm from the front, that the front 
surface of the seat back is low risk for head impact and injury 
potential as the normal position of the seat occupant is with the head 
against the front surface of the seat back or very close to it, that 
the head impact zones identified in the FMVSS No. 222 test procedure 
are relatively small areas and would make it challenging to do head 
impact testing given the size of the

[[Page 25450]]

head form and the seat contour of some seat designs, and that the most 
accurate measure of head safety for the front of the seat is the 
product's HIC values.

VII. NHTSA's Analysis

A. General Principles

    Congress passed the National Traffic and Motor Vehicle Safety Act 
of 1966 (the ``Safety Act'') with the express purpose of reducing motor 
vehicle accidents, deaths, injuries, and property damage. See 49 U.S.C. 
30101. To this end, the Safety Act empowers the Secretary of 
Transportation to establish and enforce mandatory Federal Motor Vehicle 
Safety Standards (FMVSS). See 49 U.S.C. 30111. The Secretary has 
delegated this authority to NHTSA. See 49 CFR 1.95.
    NHTSA adopts an FMVSS only after the agency has determined that the 
performance requirements are objective and practicable and meet the 
need for motor vehicle safety. See 49 U.S.C. 30111(a). Thus, there is a 
general presumption that the failure of a motor vehicle or item of 
motor vehicle equipment to comply with an FMVSS increases the risk to 
motor vehicle safety beyond the level deemed appropriate by NHTSA 
through the rulemaking process. To protect the public from such risks, 
manufacturers whose products fail to comply with an FMVSS are normally 
required to conduct a safety recall under which they must notify 
owners, purchasers, and dealers of the noncompliance and provide a free 
remedy. See 49 U.S.C. 30118-30120. However, Congress has recognized 
that, under some limited circumstances, a noncompliance could be 
``inconsequential'' to motor vehicle safety. It therefore established a 
procedure under which NHTSA may consider whether it is appropriate to 
exempt a manufacturer from its notification and remedy (i.e., recall) 
obligations. See 49 U.S.C. 30118(d), 30120(h). The agency's regulations 
governing the filing and consideration of petitions for 
inconsequentiality exemptions are set out at 49 CFR part 556.
    Under the Safety Act and Part 556, inconsequentiality exemptions 
may be granted only in response to a petition from a manufacturer, and 
then only after notice in the Federal Register and an opportunity for 
interested members of the public to present information, views, and 
arguments on the petition. In addition to considering public comments, 
the agency will draw upon its own understanding of safety-related 
systems and its experience in deciding the merits of a petition. An 
absence of opposing argument and data from the public does not require 
NHTSA to grant a manufacturer's petition. Neither the Safety Act nor 
Part 556 define the term ``inconsequential.'' Rather, the agency 
determines whether a particular noncompliance is inconsequential to 
motor vehicle safety based upon the specific facts before it in a 
particular petition. In some instances, NHTSA has determined that a 
manufacturer met its burden of demonstrating that a noncompliance is 
inconsequential to safety. For example, a label intended to provide 
safety advice to an owner or occupant may have a misspelled word, or it 
may be printed in the wrong format or the wrong type size. Where a 
manufacturer has shown that the discrepancy with the safety requirement 
is unlikely to lead to any misunderstanding, NHTSA has granted an 
inconsequentiality exemption, especially where other sources of correct 
information are available. See, e.g., General Motors, LLC., Grant of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 92963 
(Dec. 20, 2016).
    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--as opposed to a 
labeling requirement--is more substantial and difficult to meet. 
Accordingly, the Agency has not found many such noncompliances 
inconsequential.\1\ Potential performance failures of safety-critical 
equipment, like seat belts or air bags, are rarely deemed 
inconsequential.
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    \1\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    An important issue to consider in determining inconsequentiality 
based upon NHTSA's prior decisions on noncompliance issues was the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\2\ NHTSA also does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to safety. ``Most importantly, the absence of a 
complaint does not mean there have not been any safety issues, nor does 
it mean that there will not be safety issues in the future.'' \3\ 
``[T]he fact that in past reported cases good luck and swift reaction 
have prevented many serious injuries does not mean that good luck will 
continue to work.'' \4\
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    \2\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding 
noncompliance had no effect on occupant safety because it had no 
effect on the proper operation of the occupant classification system 
and the correct deployment of an air bag); Osram Sylvania Prods. 
Inc.; Grant of Petition for Decision of Inconsequential 
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using 
noncompliant light source would not be exposed to significantly 
greater risk than occupant using similar compliant light source).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. 
Cir. 1977) (finding defect poses an unreasonable risk when it 
``results in hazards as potentially dangerous as sudden engine fire, 
and where there is no dispute that at least some such hazards, in 
this case fires, can definitely be expected to occur in the 
future'').
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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions 
based on the assertion that only a small percentage of vehicles or 
items of equipment are likely to actually exhibit a noncompliance. The 
percentage of potential occupants that could be adversely affected by a 
noncompliance does not determine the question of inconsequentiality. 
Rather, the issue to consider is the consequence to an occupant who is 
exposed to the consequence of that noncompliance.\6\
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    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco, Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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B. Response to DTNA's Arguments

    NHTSA reviewed DTNA's arguments that the subject noncompliance is 
inconsequential to motor vehicle safety. DTNA contends that the plastic 
bezel, where the Type 2 seat belt is routed through the seat, being 
located within the head protection zone and not meeting the head form 
force distribution requirements as specified in paragraph S5.3.1.3 of 
FMVSS No. 222, poses little, if any, risk to motor vehicle safety. 
NHTSA agrees. NHTSA's decision considered the following arguments:
    The purpose of FMVSS No. 222 is to reduce the number of deaths and 
the severity of injuries that result from the

[[Page 25451]]

impact of school bus occupants against structures within the vehicle 
during crashes and sudden driving maneuvers (See 49 CFR 571.222 S2). 
The requirements at S5.3.1.3 Head Form Force Distribution of FMVSS No. 
222, at issue here, are specific to the areas of school bus seats where 
one's head may impact during an emergency event. The head protection 
zone is an area in front of each school passenger seat that is not 
occupied by bus sidewall, window, or door structure.\7\ For seats other 
than the front seat, this area encompasses the seat back of the seat in 
front of it. When the front of a seat back falls within the head 
protection zone of the seat behind it, only the top 76 mm (3 inches) of 
the front of the seat back is a contactable surface. The seat backs of 
the rearmost seats do not fall within the head protection zone and are 
not contactable surfaces. We can therefore conclude that the head 
protection requirements were not designed to protect an occupant from 
impacting a surface located behind them.
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    \7\ These areas are defined as a combination of the Head 
Protection Zone (See 49 CFR 571.222 S5.3.1) and Contactable Surface 
(See 49 CFR 571.222 S4).
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    The requirements at issue are twofold: (1) the energy absorbed by 
the seat ``shall be not less than 4.5 joules'', and (2) the contact 
made with the seat by the test headform ``shall be not less than 1,935 
mm\2\.'' In the present case, the seats fail to meet both of these 
requirements at the locations where the plastic ``bezel'' (the location 
from which the lap/shoulder harness exits the seat back) for the Type 2 
seatbelts are integrated into the seats. However, the head protection 
requirements are intended to protect occupants of the seat located 
behind the seat back on which the bezel is mounted and it is unlikely 
that such occupant's head would impact the bezel given the size of the 
bezel, particularly if the occupant is belted. For this reason, NHTSA 
accepts DTNA's argument that, in this case, the safety benefits of the 
high-placed bezel location outweigh the safety risks. This is further 
discussed below.
    Reviewing the history of this standard and the definitions for the 
Head Protection Zone and Contactable Surface, we found FMVSS No. 222 
was initially proposed as a new vehicle safety standard on February 22, 
1973 (See 38 FR 4776). The preamble in the proposed rule described the 
intention behind the modern-day requirements of paragraph S5.3.1.3, as 
it stated:

    ``A final characteristic of present bus seats, notably in school 
buses and transit type buses, is the presence of metal bars on the 
seat back to be used by standees. There is evidence that these hard 
surfaces are often the causes of injury, particularly to the head 
and face. A compilation of data from oral surgeons indicated that 
approximately 1,350 mouth injuries occurred during 1971. This 
represents only a part of the painful and disfiguring injuries that 
are due to these features.
    To eliminate exposed metal bars and similar designs and to make 
the seat itself a significant energy absorber, NHTSA proposes to 
require all surfaces within a specified area ahead of the seat to 
meet a head impact criterion, similar to the one included in 
Standard 208, occupant crash protection. The test is administered by 
impacting a head form device into any surface within a specified 
area in front of each seat. The impacted surface must be able to 
keep the deceleration of the head form below a certain level. In 
addition, the surface must depress in a manner that absorbs energy 
and distributes the force of impact. Most types of exposed metal 
surfaces would be too hard and would therefore not meet the 
requirements of the proposed standard.''

    In response to comments received on the proposed rule, a revised 
proposed rule was published on July 30, 1974 (See 39 FR 27585). This 
revised version of the proposed rule included the modern-day 
requirements \8\ specified in paragraph S5.3.1.3 (albeit using English 
units), including the definition for ``contactable surface'',\9\ which 
is referred to in paragraph S5.3.1.3,
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    \8\ There were two more proposed FMVSS No. 222 rules published, 
as the rule continued to be developed and comments were received on 
different sections of the proposed rule (See 40 FR 17855, April 23, 
1975 and 40 FR 47141, October 8, 1975), however no further updates 
were made to the definition of ``contactable surface'' or to the 
requirements specified in paragraph S5.3.1.3. The final rule was 
published on January 28, 1976 (See 41 FR 4018).
    \9\ The definition for ``contactable surface'' includes the top 
76 mm of the front of each school bus seat, which is the area at 
issue here, and where the plastic bezels are located within.

    ``Contactable surface means any surface within the zone 
specified in S5.3.1.1 that is contactable from any direction by the 
test device described in S6.6, except any surface on the front of a 
seat back or restraining barrier 76 mm or more below the top of the 
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seat back or restraining barrier.''

    Regarding the intent of the requirements at S5.3.1.3 related to the 
top 76 mm of the front of each school bus seat, NHTSA agrees with DTNA 
that such requirements were primarily for a time when the school bus 
industry utilized exposed metal bars for standing passengers, which is 
no longer the case. However, NHTSA does not agree with DTNA's argument 
that the requirements at S5.3.1.3 are outmoded, as it is important to 
retain such requirements to prevent the return of such hazards to 
passengers riding school buses. As such, NHTSA is persuaded by DTNA's 
argument that the original hazards which prompted the requirements at 
S5.3.1.3 no longer exist, but NHTSA is not persuaded that such 
requirements are outmoded.
    Regarding the safety benefits of the high-placed bezel, NHTSA 
agrees with DTNA that in this case, the safety benefits of the high-
placed bezel outweigh the safety risks. The head protection 
requirements are intended to protect the occupant located behind the 
seat back on which the bezel is located. While this location is a 
contactable surface, it is unlikely that the occupant will override the 
seat and impact the bezels given the location and size of the bezels, 
particularly if the occupant is belted. Additionally, the low HIC 
values presented by DTNA's testing and the higher location of the bezel 
placements, indicate a low safety risk to passengers, especially more 
vulnerable passengers. As such, NHTSA is persuaded by DTNA's argument 
that the safety benefits of the high-placed bezel outweigh the safety 
risks in the present case.
    Regarding the ability to test the front areas within the Head 
Protection Zone and Contactable Surface, NHTSA does not agree with 
DTNA's argument that it is impossible to conduct head impact testing 
within the top 76 mm of the front of each school bus seat, as NHTSA's 
own testing laboratories have been able to successfully perform such 
tests, as part of the school bus compliance test program. Additionally, 
DTNA's own argument indicates successful testing both ``internally and 
at accredited external test agencies'' for HIC measurements on seat 
backs where the bezels are located. As such, NHTSA is not persuaded by 
DTNA's argument that it is impossible to conduct such testing on the 
front of seats.

C. Remaining Arguments

    DTNA referenced two inconsequential noncompliance petitions NHTSA 
had previously granted to support its petition.
    The first petition, from IC Corporation (IC) (See 70 FR 24464), 
involved school buses where two side emergency exit doors were located 
opposite each other within the same post and roof bow panel space. IC 
argued that the requirement prohibiting two exit doors from being 
located in this manner appeared to be related to the structural 
integrity of a bus body with this configuration. IC indicated that it 
had no reports of any structural failures in the area around the 
emergency doors but stated that it would extend to owners of the 
noncompliant vehicles a 15-year warranty for any structural or

[[Page 25452]]

panel failures related to the location of the doors. NHTSA agreed with 
IC that, in this case, the noncompliance did not compromise safety in 
terms of emergency exit capability in proportion to maximum occupant 
capacity, access to side emergency doors, visibility of the exits, or 
the ability of bus occupants to exit after an accident. NHTSA does not 
agree that granting this prior petition supports DTNA's arguments in 
this case. Here, the issue is occupant crash protection against 
structures within the vehicle.
    The second petition, from New Flyer of America, Inc. (See 63 FR 
32694), involved transit buses that had only one emergency exit on the 
right side of the bus instead of two, as required by FMVSS No. 217. In 
this case, these buses had 3.28 times the required exit area, with two 
emergency exit windows on the left side, one emergency exit window on 
the right side and two roof exits. Thus, the buses had the minimum 
number of emergency exits required by FMVSS No. 217. However, these 
exits were not distributed properly. Instead of a second emergency exit 
on the right side, these buses had an additional roof exit. The agency 
decided that the additional roof exit provided for an additional level 
of safety during a rollover event and granted the petition. Again, 
NHTSA does not agree that granting this prior petition supports 
granting DTNA's petition here, because occupant crash protection 
against structures within the vehicle was not at issue.

D. Response to Public Comment Received

    In response to the comment received, NHTSA agrees with the 
commenter regarding rear surface seat back-only testing represents the 
industry norm, as the industry has moved away from metal bars on the 
seat back to be used by standees and the contactable surface of the 
front of the seat is generally constructed only of soft materials. 
NHTSA does not agree with the commenter that the head impact zones 
identified in the FMVSS No. 222 test procedure are relatively small 
areas and would make it challenging to do head impact testing, as such 
testing has been successfully completed by NHTSA contracted labs in 
past school bus compliance tests. NHTSA also agrees with the commenter 
that the HIC values are an important measurement for evaluating head 
impact protection in the head form force distribution requirements at 
S5.3.1.3 of FMVSS No. 222, but notes that the energy absorption 
requirements in S5.3.1.3 are also an important measurement to determine 
how much energy a seat can absorb in an emergency event.

VIII. NHTSA's Decision

    In the instant case, NHTSA has determined that it is unlikely given 
the bezels' size and location that the occupants for which the head 
protection requirements are intended to protect will impact the bezel, 
and the overall safety benefits of retaining seats with three-point 
seat belts in this application outweigh the safety risks of the actual 
noncompliance. In consideration of the foregoing, NHTSA finds that DTNA 
has met its burden of persuasion that the FMVSS No. 222 noncompliance 
is inconsequential as it relates to motor vehicle safety. Accordingly, 
DTNA's petition is hereby granted and DTNA is exempted from the 
obligation of providing notification of, and a remedy for, the 
noncompliance under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject vehicles that DTNA no longer controlled at 
the time it determined that the noncompliance existed. However, the 
granting of this petition does not relieve vehicle distributors and 
dealers of the prohibitions on the sale, offer for sale, or 
introduction or delivery for introduction into interstate commerce of 
the noncompliant vehicles under their control after DTNA notified them 
that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8.)

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2023-08735 Filed 4-25-23; 8:45 am]
BILLING CODE 4910-59-P