[Federal Register Volume 84, Number 60 (Thursday, March 28, 2019)]
[Proposed Rules]
[Pages 11735-11738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05444]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 555

[Docket No. NHTSA-2019-0019]


Hemphill Brothers Leasing Company; Receipt of Petition for 
Temporary Exemption From Shoulder Belt Requirement for Side-Facing 
Seats on Motorcoaches

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

ACTION: Notice of receipt of a petition for a temporary exemption; 
request for comment.

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SUMMARY: Hemphill Brothers Leasing Company, LLC (Hemphill) has 
submitted a petition, dated April 5, 2018, for a temporary exemption 
from a shoulder belt requirement of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 208, ``Occupant crash protection,'' for side-
facing seats on motorcoaches. NHTSA is publishing this document in 
accordance with statutory and administrative provisions, and requests

[[Page 11736]]

comments on the petition and this notice. NHTSA has made no judgment on 
the merits of Hemphill's petition, except to note a few aspects of the 
petition that appear not to accord with the provisions of Part 555.

DATES: If you would like to comment on the petition, you should submit 
your comment not later than April 29, 2019.

FOR FURTHER INFORMATION CONTACT: Deirdre Fujita, Office of the Chief 
Counsel, NCC-200, National Highway Traffic Safety Administration, 1200 
New Jersey Avenue SE, Washington, DC 20590. Telephone: 202-366-2992; 
Fax: 202-366-3820.

ADDRESSES: You may submit your comment, identified by the docket number 
in the heading of this document, by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
     Fax: 1-202-493-2251.
     Mail: U.S. Department of Transportation, Docket 
Operations, M-30, Room W12-140, 1200 New Jersey Avenue SE, Washington, 
DC 20590.
     Hand Delivery: 1200 New Jersey Avenue SE, West Building 
Ground Floor, Room W12-140, Washington, DC, between 9 a.m. and 5 p.m., 
Monday through Friday, except Federal Holidays.
    Instructions: All submissions must include the agency name and 
docket number.
    Note that all comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. Please see the Privacy Act discussion below. NHTSA will 
consider all comments received before the close of business on the 
comment closing date indicated above. To the extent possible, NHTSA 
will also consider comments filed after the closing date.
    Docket: For access to the docket to read background documents or 
comments received, go to http://www.regulations.gov at any time or to 
1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, 
Washington, DC 20590, between 9 a.m. and 5 p.m. Monday through Friday, 
except Federal Holidays. Telephone: 202-366-9826.
    Privacy Act: In accordance with 5 U.S.C. 553(c), DOT solicits 
comments from the public to better inform its rulemaking process. DOT 
posts these comments, without edit, to www.regulations.gov, as 
described in the system of records notice, DOT/ALL-14 FDMS, accessible 
through www.dot.gov/privacy. In order to facilitate comment tracking 
and response, the agency encourages commenters to provide their name, 
or the name of their organization; however, submission of names is 
completely optional. Whether or not commenters identify themselves, all 
timely comments will be fully considered. If you wish to provide 
comments containing proprietary or confidential information, please see 
below.
    Confidential Business Information: If you wish to submit any 
information under a claim of confidentiality, you should submit three 
copies of your complete submission, including the information you claim 
to be confidential business information, to the Chief Counsel, NHTSA, 
at the address given under FOR FURTHER INFORMATION CONTACT. In 
addition, you should submit a copy, from which you have deleted the 
claimed confidential business information, to Docket Management at the 
address given above. When you send a comment containing information 
claimed to be confidential business information, you should include a 
cover letter setting forth the information specified in our 
confidential business information regulation (49 CFR part 512).

SUPPLEMENTARY INFORMATION:

I. Background

a. Statutory Authority for Temporary Exemptions

    The National Traffic and Motor Vehicle Safety Act (Safety Act), 
codified as 49 U.S.C. chapter 301, provides the Secretary of 
Transportation authority to exempt, on a temporary basis, under 
specified circumstances, and on terms the Secretary deems appropriate, 
motor vehicles from a motor vehicle safety standard or bumper standard. 
This authority and circumstances are set forth in 49 U.S.C. 30113. The 
Secretary has delegated the authority for implementing this section to 
NHTSA.
    NHTSA established 49 CFR part 555, Temporary Exemption from Motor 
Vehicle Safety and Bumper Standards, to implement the statutory 
provisions concerning temporary exemptions. Under Part 555 subpart A, a 
vehicle manufacturer seeking an exemption must submit a petition for 
exemption containing specified information. Among other things, the 
petition must set forth (a) the reasons why granting the exemption 
would be in the public interest and consistent with the objectives of 
the Safety Act, and (b) required information showing that the 
manufacturer satisfies one of four bases for an exemption.\1\ Hemphill 
is applying on the basis that compliance with the standard would 
prevent the manufacturer from selling a motor vehicle with an overall 
safety level at least equal to the overall safety level of nonexempt 
vehicles (see 49 CFR 555.6(d)). A manufacturer is eligible for an 
exemption under this basis only if NHTSA determines the exemption is 
for not more than 2,500 vehicles to be sold in the U.S. in any 12-month 
period. An exemption under this basis may be granted for not more than 
2 years but may be renewed upon reapplication.\2\
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    \1\ 49 CFR 555.5(b)(5) and 555.5(b)(7).
    \2\ 555.8(b) and 555.8(e).
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b. Receipt of Petition

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
part 555, Hemphill submitted an April 5, 2018 dated petition asking 
NHTSA for a temporary exemption from the shoulder belt requirement of 
FMVSS No. 208 for side-facing seats on its motorcoaches. The basis for 
the application is that compliance would prevent Hemphill from selling 
a motor vehicle with an overall safety level at least equal to the 
overall safety level of nonexempt vehicles (49 CFR 555.6(d)). To view 
the petition (and documents Hemphill later submitted amending it), go 
to http://www.regulations.gov and enter the docket number set forth in 
the heading of this document.\3\
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    \3\ On December 26, 2018, NHTSA published a final rule that 
amended 49 CFR part 555, effective January 25, 2019, to eliminate a 
provision that called for the agency to determine that a petition is 
complete before NHTSA publishes a notice summarizing the petition 
and soliciting public comments on it (83 FR 66158).
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    Hemphill describes itself as a second-stage manufacturer \4\ 
organized under the laws of Tennessee. The petitioner states that it 
typically receives a bus shell \5\ from an ``original manufacturer'' 
and ``customizes the Over-the-Road Bus (`OTRB') to meet the needs of 
entertainers, politicians, musicians, celebrities and other specialized 
customers who use motorcoaches as a necessity for their businesses.''

[[Page 11737]]

Hemphill states that it ``builds out the complete interior'' of the bus 
shell, including--
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    \4\ While ``second-stage manufacturer'' is not defined in 
NHTSA's regulations, the agency believes Hemphill is referring to a 
``final-stage manufacturer,'' which is defined in NHTSA's 
certification regulation (49 CFR part 567) as ``a person who 
performs such manufacturing operations on an incomplete vehicle that 
it becomes a completed vehicle'' (49 CFR 567.3).
    \5\ The petition states (p. 2) that the bus shell ``generally 
contains the following components: exterior frame; driver's seat; 
dash cluster, speedometer, emissions light and emissions diagnosis 
connector; exterior lighting, headlights, marker lights, turn 
signals lights, and brake lights; exterior glass, windshield and 
side lights with emergency exits; windshield wiper system; braking 
system; tires, tire pressure monitoring system and suspension; and 
engine and transmission.''

roof escape hatch; fire suppression systems (interior living space, 
rear tires, electrical panels, bay storage compartments, and 
generator); ceiling, side walls and flooring; seating; electrical 
system, generator, invertor and house batteries; interior lighting; 
interior entertainment equipment; heating, ventilation and cooling 
system; galley with potable water, cooking equipment, refrigerators, 
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and storage cabinets; bathroom and showers; and sleeping positions.

    Hemphill states that it also operates the vehicles as a for-hire 
motor carrier of passengers, ``leas[ing] the vehicle with driver to a 
customer on an exclusive basis for a designated period of time.'' The 
petitioner states that ``fewer than 100 entertainer-type motorcoaches 
with side-facing seats are manufactured and enter the U.S. market each 
year.'' Hemphill seeks to install Type 1 seat belts (lap belt only) at 
side-facing seating positions, instead of Type 2 seat belts (lap and 
shoulder belts) as required by FMVSS No. 208. Hemphill states that, 
absent the requested exemption, it will otherwise be unable to sell a 
motorcoach whose overall level of safety or impact protection is at 
least equal to that of a nonexempted motorcoach.
    Pursuant to 49 CFR 555.6(d), an application must provide ``[a] 
detailed analysis of how the vehicle provides the overall level of 
safety or impact protection at least equal to that of nonexempt 
vehicles.'' Hemphill refers to NHTSA's discussions in an earlier NHTSA 
rulemaking, summarized below, about the absence of the need for, and 
safety concerns about, the shoulder portion of Type 2 belts on side-
facing seats in certain buses.

c. Seat Belt Rulemaking

    On November 25, 2013, NHTSA published a final rule amending FMVSS 
No. 208 to require seat belts for each passenger seating position in 
all new over-the-road buses (regardless of gross vehicle weight rating 
(GVWR)), and all other buses with GVWRs greater than 11,793 kilograms 
(kg) (26,000 pounds (lb)) (with certain exclusions).\6\ The final rule 
became effective November 28, 2016 for buses manufactured in a single 
stage, and a year later for buses manufactured in more than one stage.
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    \6\ 78 FR 70416 (November 25, 2013); response to petitions for 
reconsideration, 81 FR 19902 (April 6, 2016).
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    Hemphill is a final-stage manufacturer of buses covered by the seat 
belt rule. Thus, Hemphill's over-the-road buses and buses with a GVWR 
greater than 11,793 kg (26,000 lb), manufactured on or after November 
28, 2017, are required to have Type 2 seat belts (lap and shoulder seat 
belts) at all passenger seating positions.
    NHTSA commenced the seat belt rulemaking by publishing a notice of 
proposed rulemaking (NPRM) on August 18, 2010.\7\ For side-facing 
seating positions, the NPRM proposed to provide manufacturers the 
option of installing either a Type 1 (lap belt) or a Type 2 (lap and 
shoulder belt).\8\ This proposed option was consistent with a provision 
in FMVSS No. 208 that allows lap belts for side-facing seats on buses 
with a GVWR of 4,536 kg (10,000 lb) or less. The agency proposed to 
permit lap belts in side-facing seats because NHTSA was unaware of any 
demonstrable increase in associated risk of lap belts compared to lap/
shoulder belts. The agency also stated \9\ that ``a study commissioned 
by the European Commission regarding side-facing seats on minibuses and 
motorcoaches found that due to different seat belt designs, crash modes 
and a lack of real world data, it cannot be determined whether a lap 
belt or a lap/shoulder belt would be the most effective.'' \10\
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    \7\ 75 FR 50958.
    \8\ 75 FR at 50971.
    \9\ 75 FR at 50971-50972.
    \10\ http://ec.europa.eu/enterprise/automotive/projects/safety_consid_long_stg.pdf. [Footnote in text.]
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    However, after the NPRM was published, the Motorcoach Enhanced 
Safety Act of 2012 was enacted as part of the Moving Ahead for Progress 
in the 21st Century Act (MAP-21), Public Law 112-141 (July 6, 2012). 
Section 32703(a) of MAP-21 directed the Secretary of Transportation 
(authority has been delegated to NHTSA) to ``prescribe regulations 
requiring safety belts to be installed in motorcoaches at each 
designated seating position.'' \11\ MAP-21 stated in Sec.  32702(12): 
``The term `safety belt' has the meaning given the term in section 
153(i)(4)(B) of title 23, United States Code.'' This provision defines 
``safety belt'' as ``an occupant restraint system consisting of 
integrated lap shoulder belts.'' Thus, in response to MAP-21, NHTSA's 
final rule amended FMVSS No. 208 to require lap/shoulder belts at all 
designated seating positions, including side-facing seats, on over-the-
road buses.\12\
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    \11\ MAP-21 states at Sec.  32702(6) that ``the term 
`motorcoach' has the meaning given the term `over-the-road bus' in 
section 3038(a)(3) of the Transportation Equity Act for the 21st 
Century (49 U.S.C. 5310 note), but does not include a bus used in 
public transportation provided by, or on behalf of, a public 
transportation agency; or a school bus, including a multifunction 
school activity bus.'' Section 3038(a)(3) (49 U.S.C. 5310 note) 
states: ``The term `over-the-road bus' means a bus characterized by 
an elevated passenger deck located over a baggage compartment.''
    \12\ For side-facing seats on buses other than over-the-road 
buses, in the final rule NHTSA permitted either lap or lap/shoulder 
belts at the manufacturer's option.
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    At the same time, in the November 25, 2013 final rule preamble, 
NHTSA acknowledged that the agency had declined to require lap/shoulder 
belts on side-facing seats of light vehicles because NHTSA believed 
``the addition of a shoulder belt at [side-facing seats on light 
vehicles] is of limited value, given the paucity of data related to 
side facing seats.'' \13\ NHTSA also recognized there have been 
concerns in the past about a shoulder belt on side-facing seats, noting 
in the final rule that, although the agency has no direct evidence that 
shoulder belts may cause serious neck injuries when applied to side-
facing seats, there are simulation data indicative of potential carotid 
artery injury when the neck is loaded by the shoulder belt.\14\ In 
addition, the agency noted that Australian Design Rule ADR 5/04, 
``Anchorages for Seatbelts'' has specifically prohibited shoulder belts 
for side-facing seats since 1975. In the November 2013 final rule, 
NHTSA stated that given there would likely be few side-facing seats on 
over-the-road buses, and in view of the unknowns about shoulder belt 
loading of an occupant's neck on a side-facing seat,
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    \13\ 78 FR at 70448, quoting from the agency's Anton's Law final 
rule which required lap/shoulder belts in forward-facing rear 
seating positions of light vehicles, 59 FR 70907.
    \14\ Editors: Fildes, B., Digges, K., ``Occupant Protection in 
Far Side Crashes,'' Monash University Accident Research Center, 
Report No. 294, April 2010, pg. 57. [Footnote in text.]

manufacturers of over-the-road buses seeking to install lap belts on 
side-facing seats may petition NHTSA for a temporary exemption from 
the requirement to install lap/shoulder belt at side-facing seats, 
under 49 CFR part 555. The basis for the petition is that the 
applicant is unable to sell a bus whose overall level of safety is 
at least equal to that of a non-exempted vehicle. The agency would 
be receptive to the argument that, for side-facing seats, lap belts 
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provide an equivalent level of safety to lap/shoulder belts.

78 FR at 70448.

d. Summary of Petitioner's Arguments

    After reiterating NHTSA's discussions in the seat belt rulemaking, 
the petitioner states that NHTSA has not conducted testing on the 
impact or injuries to passengers in side-facing seats in motorcoaches, 
so ``there is no available credible data that supports requiring a Type 
2 belt at the side-facing seating positions.'' Hemphill says that it 
believes if it complies with the final rule

[[Page 11738]]

as published, it would be ``forced to offer'' customers--

a motorcoach with a safety feature that could make the occupants 
less safe, or certainly at least no more safe, than if the feature 
was not installed. The current requirement in FMVSS 208 for Type 2 
belts at side-facing seating positions in OTRBs makes the applicants 
unable to sell a motor vehicle whose overall level of safety is 
equivalent to or exceeds the level of safety of a non-exempted 
vehicle.

    Pursuant to 49 CFR 555.5(b)(7), the petitioner must state why 
granting an exemption allowing it to install Type 1 instead of Type 2 
seat belts in side-facing seats would be in the public interest and 
consistent with the objectives of the Safety Act.
    In a May 11, 2018 email providing this information, Hemphill states 
that granting an exemption to allow manufacturers an option of 
installing a Type 1 lap belt at side-facing seating positions is 
consistent with the public interest because ``NHTSA's analysis in 
developing this rule found that such belts presented no demonstrable 
increase in associated risk.'' The petitioner also states that the 
final rule requiring Type 2 belts at side-facing seats ``was not the 
result of any change in NHTSA policy or analysis, but rather resulted 
from an overly broad mandate by Congress for `safety belts to be 
installed in motorcoaches at each designated seating position.' '' 
Hemphill states that, ``based on the existing studies referenced herein 
and noted in the rulemaking, petitioners assert that Type 1 belts at 
side-facing seats may provide equivalent or even superior occupant 
protection than Type 2 belts.''
    The petitioner believes that an option for Type 1 belts at side-
facing seats is consistent with the objectives of 49 U.S.C. chapter 301 
(the Safety Act) because, Hemphill states, Sec.  30111(a) of the Safety 
Act states that the Secretary shall establish motor vehicle safety 
standards that ``shall be practicable, meet the need for motor vehicle 
safety, and be stated in objective terms.'' The petitioner states 
that--

an option for Type 1 or Type 2 belts at side-facing seating 
positions is practicable as it allows the manufacturer to determine 
the best approach to motor vehicle safety depending on the intended 
use of the vehicle and its overall design. Additionally, the option 
to install either Type 1 or Type 2 belts at such locations meets the 
need for motor vehicle safety as it is consistent with current 
analysis by NHTSA and the European Commission that indicates no 
demonstrable difference in risk between the two types of belts when 
installed in sideways-facing seats. Finally, the option for Type 1 
or Type 2 belts at side-facing seat locations provides an objective 
standard that is easy for manufacturers to understand and meet.

    Hemphill indicates that if there is no future NHTSA research, 
testing or analysis to justify the use of Type 2 belts in side-facing 
seats in over-the-road buses, it expects it will seek to renew the 
exemption, if granted, at the end of the exemption period.

e. NHTSA's Observations on Aspects of the Petition

    There are aspects of Hemphill's petition that appear inconsistent 
with the provisions of Part 555 Subpart A. The agency acknowledges them 
here for the benefit of the reader.
    First, in its petition, Hemphill asks that if NHTSA grants the 
exemption, the agency should apply the exemption ``retroactively to 
November 28, 2017.'' Petitions for temporary exemptions are prospective 
in application, not retroactive. Section 555.7(f) states: ``Unless a 
later effective date is specified in the notice of the grant, a 
temporary exemption is effective upon publication of the notice in the 
Federal Register and exempts vehicles manufactured on and after the 
effective date.'' Thus, if the petition is granted, it would apply to 
vehicles manufactured on and after the effective date of the exemption, 
which would be on publication of the notice or a later date.\15\
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    \15\ For vehicles that have already been manufactured, a 
manufacturer may petition for an exemption from the Safety Act's 
notice and remedy requirements when a noncompliance is 
inconsequential to motor vehicle safety. See 49 CFR part 556, 
``Exemption for Inconsequential Defect or Noncompliance.''
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    In its May 11, 2018 email, Hemphill argues that NHTSA has authority 
to establish a November 17, 2017 \16\ effective date for the exemption 
under 49 U.S.C. 30111(d) of the Safety Act. Section 30111 authorizes 
NHTSA to prescribe FMVSSs, with subsection (d) generally prescribing 
the effective dates that NHTSA may specify for the FMVSSs.\17\ Section 
30111 does not apply to the effective dates for temporary exemptions.
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    \16\ The petitioner does not explain why it changed the 
requested date from November 28 to November 17. NHTSA assumes 
Hemphill meant November 28.
    \17\ Regarding the motorcoach seat belt rulemaking, Sec.  
32703(e)(1) of MAP-21 prescribed the effective date for the rule. 
That section states that the regulation shall ``apply to all 
motorcoaches manufactured more than 3 years after the date on which 
the regulation is published as a final rule.'' NHTSA provided multi-
stage manufacturers and alterers an additional year of lead time, in 
accordance with 49 CFR 571.8(b). See, 78 FR at 70463, col. 3.
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    Second, Hemphill states in its petition that it covers 39 ``other 
petitioners'' listed in an attachment to the petition. Under Part 555 
Subpart A, only one petitioner is covered by a petition. Section 
30113(b)(2) of the Safety Act provides that the agency may begin a 
proceeding ``when a manufacturer'' applies for an exemption (emphasis 
added). Under the terms of 49 CFR 555.5, ``a manufacturer'' may apply 
for a temporary exemption. In contrast, 49 CFR part 555 subpart B, 
``Vehicles Built in Two or More Stages and Altered Vehicles,'' allows 
an industry trade association representing a group of alterers or 
manufacturers of motor vehicles built in two or more stages to file an 
economic hardship petition representing the interests of multiple 
manufacturers.\18\ When NHTSA proposed to adopt subpart B, NHTSA 
described subpart B's allowing manufacturers to bundle petitions as 
``relief not contained in the current version of part 555.'' \19\ Thus, 
it appears Hemphill's April 5, 2018 petition for temporary exemption 
could be considered as only from Hemphill, and not as a bundled 
petition covering the other parties listed in the attachment to the 
petition.
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    \18\ Subpart B applies to applications, based on substantial 
economic hardship, that seek a temporary exemption from a 
performance requirement for which an FMVSS specifies the use of a 
dynamic test procedure to determine compliance. Among other matters, 
the application must explain the substantial economic hardship to 
each of the manufacturers covered by the petition and provide a 
complete financial statement for each manufacturer and a complete 
description of each manufacturer's good faith efforts to comply with 
the standard. See 49 CFR 555.13.
    \19\ Supplemental notice of proposed rulemaking, 69 FR 36038, 
36045 (June 28, 2004). The ``current version of part 555'' is a 
reference to Part 555 Subpart A, which is the subpart under which 
Hemphill submits its petition for temporary exemption.
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f. Comment Period

    The agency seeks comment from the public on the merits of 
Hemphill's petition for a temporary exemption from FMVSS No. 208's 
shoulder belt requirement for side-facing seats. After considering 
public comments and other available information, NHTSA will publish a 
notice of final action on the petition in the Federal Register.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.95 and 501.8.
Raymond R. Posten,
Associate Administrator for Rulemaking.
[FR Doc. 2019-05444 Filed 3-27-19; 8:45 am]
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