[Federal Register Volume 71, Number 135 (Friday, July 14, 2006)]
[Proposed Rules]
[Pages 40057-40060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-11136]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 2006-24342]


Federal Motor Vehicle Safety Standards

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

[[Page 40058]]


ACTION: Denial of Petitions for Rulemaking and Defect Determination.

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SUMMARY: This document denies a petition for rulemaking and defect 
determinations submitted by Mr. James E. Hofferberth to prevent the 
installation by States of seat belts in large school buses and declare 
school buses equipped with seat belts to be safety defects. After 
reviewing the petition, NHTSA concludes that there is no justification 
for changing its longstanding position that States may require seat 
belts at passenger seating positions in large public school buses. We 
also conclude that there is no basis to declare that school buses 
equipped with seat belts have safety-related defects, or to recall 
existing school buses installed with seat belts. The petitioner did not 
provide any data that NHTSA has not considered in the past.

FOR FURTHER INFORMATION CONTACT: For legal issues: Ms. Dorothy Nakama, 
Office of the Chief Counsel, phone (202) 366-2992.
    For technical issues: Mr. Charles R. Hott, Office of 
Crashworthiness Standards, NVS-113, phone (202) 366-0247.
    You can reach both of these officials at the National Highway 
Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 
20590.

SUPPLEMENTARY INFORMATION: On April 26, 2005, NHTSA received a petition 
from Mr. James E. Hofferberth to preempt and prevent the installation 
of seat belts in large school buses (gross vehicle weight rating 
greater than 4,536 kg (10,000 pounds) (also called ``full-sized school 
buses'' by the petitioner) and declare school buses equipped with seat 
belts defective. He petitioned to:
    1. Preempt, prevent and preclude the possibility of the 
installation of seat belts or safety belts in full sized school buses.
    2. Declare school buses equipped with seat belts or safety belts as 
defective relative to safety and order that all such vehicles be 
recalled and repaired immediately to full compliance with letter and 
intent of the applicable motor vehicle safety standard.
    3. Initiate criminal, civil or any alternative punitive action 
available to [the Secretary of Transportation] under the law against 
any individual or organization that ordered or performed the 
installation of seat belts or safety belts in school buses.
    4. Require that any device installed in full sized school buses be 
proven to neither reduce the overall safety of children of all relevant 
sizes and ages during transportation related to school activities with 
due consideration to all factors affecting that safety nor preclude or 
diminish in any way the safety provision of the motor vehicle safety 
standards related to school buses.
    In his petition, Mr. Hofferberth stated his belief that several 
State and local governments have enacted or are considering 
requirements for seat belts or safety belts in full sized school buses, 
that full sized school buses are subject to established Federal motor 
vehicle safety standards (FMVSS), that installation of seat belts or 
safety belts in full sized school buses overrides or precludes the 
effectiveness of the safety features required in full sized school 
buses, and that the installation of seat belts or safety belts in full 
sized school buses creates an unnecessary and unacceptable risk of 
injury and fatality to school bus passengers.
    He also submitted supplemental information and analysis on November 
16, 2005 \1\. He reviewed cited tests in the agency's April 2002 report 
to Congress, ``School Bus Safety: Crashworthiness Research,'' and 
concluded that abdominal injury measurements, which he alleged were not 
included in the report to Congress, for lap and shoulder belted 
occupants were between 1.6 and 2.3 times higher than for comparable 
unbelted occupants. For lap belted occupants, he stated that the 
abdominal injury measurements were between 2.9 and 5.6 times higher 
than for comparable unbelted occupants, and that these loadings of the 
belted occupants were well above the threshold of serious to fatal 
injury. He stated that abdominal loading of the unbelted child was 135 
pounds, and this type of loading is substantially less injurious than 
when belts are used to apply the loads, and would not be likely to 
cause serious abdominal injury. He believed that the increases in 
injury severity for belted occupants are consistent with ``seat belt 
syndrome'' and provided a bibliography of various research reports and 
articles on the subject.
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    \1\ For a full copy of Mr. Hofferberth's supplemental 
information, please refer to dms.dot.gov (Docket Number 24342).
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    Mr. Hofferberth argued that the modification of standard seats to 
accommodate belt loading increased the head, neck and chest injury 
readings for all unbelted occupants and degraded the level of safety 
performance provided by standard seats designed for use with the 
compartmentalization requirements of FMVSS No. 222.
    The petitioner stated that section 103(d) of the National Traffic 
and Motor Vehicle Safety Act (recodified at 49 U.S.C. 30103(b)) 
provides that no ``State or political subdivisions [sic] of a State 
shall have any authority either to establish or continue in effect, 
with respect to any motor vehicle or item of motor vehicle equipment 
any motor vehicle [sic] safety standard applicable to the same aspect 
of [performance of such vehicle or item of] equipment which is not 
identical to the Federal standard.'' It was his opinion that the 
``aspect'' which overlaps the ``motor vehicle or item of motor vehicle 
equipment'' regulated by FMVSS No. 222 is the level of injury 
protection provided by the school buses and the compartmentalization 
restraint equipment and performance required by FMVSS No. 222. 
Therefore, he argued that FMVSS No. 222 preempts all State and local 
requirements relating to the installation of belt restraints in full 
size school buses, and that the use of belt restraints installed in 
full size school buses should be prohibited until such time as the 
belts can be removed or otherwise rendered inoperable.

Analysis of the Petition for Rulemaking

    The agency has conducted a review of the rulemaking petition in 
accordance with 49 CFR Section 552.6. We are denying the petition, 
based on that review.
    NHTSA is responsible for establishing Federal motor vehicle safety 
standards (FMVSSs) to reduce the number of fatalities and injuries from 
motor vehicle crashes, including those involving school buses. NHTSA 
also works with the States on school bus safety and occupant protection 
programs. New school buses must meet safety standards for various 
aspects of school bus safety, including the passenger crash protection 
requirements of FMVSS No. 222. Rather than requiring passenger seat 
belts on large school buses, FMVSS No. 222 provides crash protection 
through a concept called ``compartmentalization.'' Children are 
compartmentalized in a protective envelope consisting of strong, 
closely-spaced seats that have energy-absorbing seat backs. Through 
compartmentalization, children are protected without the need to buckle 
up.
    Currently, there are four States that require seat belts in all 
school buses. New York, New Jersey and Florida require lap belts, and 
California requires lap and shoulder belts in all school buses. NHTSA 
does not maintain a record of local school boards that also may require 
seat belts on buses. However, a University of South Florida

[[Page 40059]]

(USF) study \2\ revealed that many districts might require such systems 
even though it is not mandatory in their State. At the time of the USF 
study, only New York required seat belts in all school buses.
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    \2\ ``To Belt or Not To Belt, Experiences of School Districts 
that Operate Large School Buses Equipped with Seat Belts,'' Final 
Report, August 1994, Center for Urban Transportation Research, 
College of Engineering, University of South Florida.
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    Federal preemption of State motor vehicle safety standards is 
governed by Section 30103(b) of 49 U.S.C. 30101 et seq. (the ``Vehicle 
Safety Act''). Section 30103(b)(1) states:

    When a motor vehicle safety standard is in effect under this 
chapter [49 USCS Sec. Sec.  30101 et seq.], a State or a political 
subdivision of a State may prescribe or continue in effect a 
standard applicable to the same aspect of performance of a motor 
vehicle or motor vehicle equipment only if the standard is identical 
to the standard prescribed under this chapter [49 USCS Sec. Sec.  
30101 et seq.]. However, the United States Government, a State, or a 
political subdivision of a State may prescribe a standard for a 
motor vehicle or motor vehicle equipment obtained for its own use 
that imposes a higher performance requirement than that required by 
the otherwise applicable standard under this chapter [49 USCS 
Sec. Sec.  30101 et seq.].

NHTSA has previously addressed the preemption issue raised by the 
petitioner \3\. A State law that requires seat belts on all large 
school buses conflicts with FMVSS No. 222 and is preempted. However, 
the last sentence of Sec.  30103(b) permits a State to prescribe a 
standard for school buses obtained for its own use that imposes a 
higher performance requirement than that required by the otherwise 
applicable FMVSS. (We have interpreted the phrase ``vehicles procured 
for (the State's) own use'' to include public school buses and those 
under contract to transport children to and from public school. 
However, school buses purchased by private schools would not be 
included). Thus, as the last sentence of Sec.  30103(b) makes clear, 
States are free to require seat belts on school buses which the State 
purchases for its own use.
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    \3\ Denial of Petition for Rulemaking, September 10, 1981 46 FR 
4571, interpretation letter to Mr. Martin Chauvin, February 20, 
1987.
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    NHTSA has permitted the co-existence of seat belts with 
compartmentalization requirements on large school buses since the 
beginning of FMVSS No. 222. NHTSA published the final rule establishing 
FMVSS No. 222 on January 28, 1976 (41 FR 4016). This regulation became 
effective for all newly manufactured school buses on and after April 1, 
1977. In the rulemaking leading to the 1976 final rule, four notices of 
proposed rulemaking (NPRM) were published.\4\ Throughout the course of 
that rulemaking, the issue of requiring seat belts and/or belt 
anchorages on large school buses was extensively contemplated. Although 
the agency decided not to require the belts or anchorage systems, the 
agency clearly intended to allow State and local jurisdictions the 
choice of installing seat belts. For example \5\, in the October 1975 
NPRM, the agency confirmed State and local jurisdictional choice to 
install belts when it stated (46 FR at 45171):
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    \4\ February 22, 1973 (38 FR 4776), July 30, 1974 (39 FR 27586), 
April 23, 1975 (40 FR 17855) and October 8, 1975 (40 FR 47141).
    \5\ See also April 23, 1975 NPRM, in which NHTSA proposed (but 
subsequently did not adopt) a provision for built-in seat belt 
anchorages in addition to compartmentalization requirements stating 
that it ``finds it desirable to allow local school boards the option 
of installing belts, if they decide the additional protection is 
worth the extra expense.''

    A greater measure of protection may be obtained [over 
compartmentalization alone] if a particular end user chooses to use 
the anchorages by installation of seat belts together with a system 
to assure that seat belts are worn, properly adjusted, and not 
misused. School bus users are free to choose whether or not to 
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install belts.

NHTSA has consistently construed the FMVSS as not preempting State 
requirements concerning seat belts in large school buses where there is 
no showing that those requirements adversely impact compliance with the 
FMVSS. Seat belts on large school buses can be considered to satisfy 
the ``higher performance'' threshold of the last sentence of Sec.  
30103(b) because, when properly worn, they can supplement 
compartmentalization by restraining passengers in crashes other than 
frontal crashes, e.g., in rollovers. In its 1999 report on seat belts 
on large school buses, the National Transportation Safety Board (NTSB) 
\6\ concluded that the compartmentalization requirement for school 
buses in FMVSS No. 222 is incomplete because it does not protect school 
bus passengers in rollovers or in lateral impacts from large vehicles, 
because in such accidents passengers do not always remain completely 
within the seating compartment. Despite the NTSB conclusion, NHTSA has 
not found that a sufficient safety need exists with respect to those 
non-frontal crashes to warrant requiring seat belts on large school 
buses.\7\ However, we have always permitted States to choose to require 
the safety devices over and above the Federal requirements in the 
school buses they purchase.
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    \6\ NTSB/SIR-99/04, Highway Safety Report, Bus Crashworthiness 
Issues, September 1999, National Transportation Safety Board.
    \7\ In its 1987 report on the crashworthiness of large, post-
April 1, 1977 school buses, NTSB concluded that passengers in the 
cases studied would have received no net benefit from lap belt use, 
and that most of the severe injuries and fatalities were due to 
passengers being seated directly in the impact zone (NTSB/SS-87/01, 
Safety Study, Crashworthiness of Large Post-standard School Buses, 
March 1987, National Transportation Safety Board). Likewise, the 
National Academy of Sciences (NAS) concluded that the overall 
potential benefits of requiring seat belts on large school buses are 
insufficient to justify a Federal requirement for mandatory 
installation. Special Report 222, Improving School Bus Safety, 
National Academy of Sciences, Transportation Research Board, 
Washington, DC, 1989. NAS also stated that the funds used to 
purchase and maintain seat belts might better be spent on other 
school bus safety programs and devices that could save more lives 
and reduce more injuries.
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    NHTSA's April 2002 report to Congress \8\ found that the addition 
of lap belts slightly raised the potential risk for head injury. 
However, these were severe frontal impacts that were studied for the 
report. Conversely, lap belts have been on large school buses for over 
30 years without any documented injuries resulting from the use of the 
seat belt restraint systems.\9\ We cannot make a determination, based 
on the results of limited testing with belt restraints in a severe 
frontal condition that showed performance only slightly reduced from 
that of compartmentalization, that the addition of seat belts in large 
school buses reduces overall occupant protection.
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    \8\ School Bus Safety: Crashworthiness Research, National 
Highway Traffic Safety Administration, April 2002.
    \9\ Crash data show that there are approximately 26,000 school 
bus crashes annually, involved in frontal, side, rear, and rollover 
collisions.
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    As for abdominal loading, NHTSA does not know the basis for the 
petitioner's conclusions regarding the significance of the dummy 
abdominal measures. The abdominal measurements made in these tests were 
for comparative research purposes, have not been biomechanically 
validated, and have no injury criteria associated with them. This was 
discussed on page 43 of the report to Congress.
    School buses constitute a very safe form of transportation. A 
recent NAS study \10\ shows that there are about 815 school 
transportation fatal injuries per year. Only 2 percent are associated 
with school buses, compared to 22 percent due to walking/bicycling, and 
75 percent from passenger car transportation. Every year, approximately 
450,000 public school buses travel about 4.3 billion miles to transport 
23.5 million children to and

[[Page 40060]]

from school and school-related activities. The school bus occupant 
fatality rate of 0.2 fatalities per 100 million vehicle miles traveled 
(VMT) is much lower than the rates for passenger cars (1.46 per 100 
million VMT) or light trucks and vans (1.3 per 100 million VMT). These 
results reflect the safety record of large school buses that, for the 
most part, are not being fitted with any seat belts at passenger 
seating positions.
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    \10\ Special Report 269, ``The Relative Risks of School Travel: 
A National Perspective and Guidance for Local Community Risk 
Assessment,'' Transportation Research Board of the National 
Academies, 2002.
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    The petitioner believes that the dollars spent installing belts on 
large school buses could be more effectively spent purchasing 
additional buses to transport more children in the safest means 
available (in school buses). On our Web site information about seat 
belts in large school buses \11\, NHTSA does advise consideration of 
the overall safety consequences of bus purchasing decisions, to ensure 
that seat belt restraints are worn properly, and that no child is left 
seeking a less safe form of transportation. At the same time, the 
agency concludes that there is no justification for changing its 
longstanding position that States may order seat belts at passenger 
seating positions in large public school buses. For these reasons, and 
since the petitioner did not provide any data that NHTSA has not 
considered in the past, the agency is denying the rulemaking petition.
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    \11\ Http://www.nhtsa.dot.gov: click Traffic Safety tab: click 
School Buses under Browse Topics menu: click Seat Belts On School 
Buses
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Analysis of the Petition for Defect Determination

    The agency has conducted a technical review of the defect petition 
in accordance with 49 CFR 552.6. The Office of Defects Investigation 
(ODI) reviewed its databases for reports and complaints related to 
alleged problems with school buses equipped with seat belts. That 
review did not reveal any reports or complaints that would warrant 
opening a safety-related defects investigation. Moreover, the 
petitioner has not presented any data or argument that supports his 
basis for concluding that seat belts may pose an unreasonable risk to 
the safety of occupants of those buses. Based on ODI's review and lack 
of data to the contrary, the agency believes that there is insufficient 
data to warrant NHTSA commencing a defect investigation and is denying 
the petition.

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30118, and 30162; 
delegation of authority at 49 CFR 1.50 and 501.8.

    Issued on: July 10, 2006.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
Daniel C. Smith,
Associate Administrator for Enforcement.
 [FR Doc. E6-11136 Filed 7-13-06; 8:45 am]
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