[Federal Register Volume 84, Number 220 (Thursday, November 14, 2019)]
[Notices]
[Pages 61966-61969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24490]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0120]


Hemphill Brothers Leasing Company; Grant 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 grant of a petition for temporary exemption.

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SUMMARY: In accordance with the procedures in our regulations, NHTSA is 
granting a petition from Hemphill Brothers Leasing Company, LLC 
(Hemphill), 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. The grant 
permits Hemphill to install Type 1 seat belts (lap belt only) at side-
facing seating positions, instead of Type 2 seat belts (lap and 
shoulder belts). After reviewing the petition and the comments 
received, the agency has determined that the requested exemption is 
warranted to enable the petitioner to sell a vehicle whose overall 
level of safety or impact protection is at least equal to that of a 
nonexempted vehicle.

DATES: This exemption applies to the petitioner's motorcoaches produced 
from November 14, 2019 until November 15, 2021.

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

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

[[Page 61967]]

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 
authority for implementing this section has been delegated to NHTSA by 
49 CFR 1.95.
    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 
has applied on the basis that the applicant is otherwise unable to sell 
a motor vehicle with an overall safety level at least equal to that 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\ 49 CFR 555.8(b) and (e).
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b. FMVSS No. 208

    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 (OTRBs) (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).\3\
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    \3\ 78 FR 70416 (November 25, 2013); response to petitions for 
reconsideration, 81 FR 19902 (April 6, 2016). 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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    In the notice of proposed rulemaking (NPRM) preceding the final 
rule (75 FR 50958, August 18, 2010) NHTSA proposed to permit 
manufacturers the option of installing either a Type 1 (lap belt) or a 
Type 2 (lap and shoulder belt) on side-facing seats.\4\ The 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. NHTSA proposed the option because the agency was unaware 
of any demonstrable increase in associated risk of lap belts compared 
to lap and shoulder belts on side-facing seats. NHTSA believed that \5\ 
``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.'' \6\
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    \4\ 75 FR at 50971.
    \5\ 75 FR at 50971-50972.
    \6\ http://ec.europa.eu/enterprise/automotive/projects/safety_consid_long_stg.pdf.
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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 delegated to NHTSA) to ``prescribe regulations requiring 
safety belts to be installed in motorcoaches at each designated seating 
position.'' \7\ As MAP-21 defined ``safety belt'' to mean an integrated 
lap and shoulder belt, the final rule amended FMVSS No. 208 to require 
lap and shoulder belts at all designated seating positions, including 
side-facing seats, on OTRBs.\8\
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    \7\ 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.''
    \8\ For side-facing seats on buses other than OTRBs, in the 
final rule NHTSA permitted either lap or lap/shoulder belts at the 
manufacturer's option.
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    Even as it did so, however, the agency reiterated its view that 
``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.'' \9\ NHTSA also reiterated that there have been 
concerns expressed in literature in this area about shoulder belts 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.\10\ The agency also noted that Australian Design 
Rule ADR 5/04, ``Anchorages for Seatbelts'' specifically prohibits 
shoulder belts for side-facing seats.
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    \9\ 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.
    \10\ Editors: Fildes, B., Digges, K., ``Occupant Protection in 
Far Side Crashes,'' Monash University Accident Research Center, 
Report No. 294, April 2010, pg. 57.
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    Given that background, and believing there would be few side-facing 
seats on OTRBs, NHTSA stated in the November 2013 final rule that the 
manufacturers at issue may petition NHTSA for a temporary exemption 
under 49 CFR part 555 to install lap belts instead of lap and shoulder 
belts at side-facing seats.\11\ The basis for the petition would be 
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. In other 
words, for side-facing seats, lap belts provide at least an equivalent 
level of safety as lap and shoulder belts.
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    \11\ 78 FR at 70448.
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c. Overview of Petition

    In accordance with 49 U.S.C. 30113 and the procedures in 49 CFR 
part 555, Hemphill submitted a petition dated April 5, 2018, asking 
NHTSA for a temporary exemption from the shoulder belt requirement of 
FMVSS No. 208 for side-facing seats on its OTRBs under 49 CFR 555.6(d). 
A copy of the petition may be found in the docket (go to http://www.regulations.gov and enter Docket No. NHTSA-2019-0019).
    Hemphill describes itself as a second-stage manufacturer \12\ 
organized under the laws of Tennessee. The petitioner states that it 
typically receives a bus shell \13\ 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.'' 
Hemphill states that it ``builds out the complete interior'' of the bus 
shell, including--
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    \12\ While ``second-stage manufacturer'' is not defined in 
NHTSA's regulations, 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). 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.''
    \13\ The petition states in its petition (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

[[Page 61968]]

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, and storage 
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cabinets; bathroom and showers; and sleeping positions.

    The petitioner states that ``fewer than 100 entertainer-type 
motorcoaches with side-facing seats are manufactured and enter the U.S. 
market each year.''
    In support of its assertion that the exempted vehicles would 
provide an overall level of safety or impact protection at least equal 
to that of nonexempt vehicles, Hemphill reiterates NHTSA's statements 
in the November 2013 final rule. 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 states that if it complies with the final rule 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.

    In support of its assertion that the exemption would be consistent 
with the public interest, Hemphill states ``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.' '' It 
states that, based on the existing studies noted in the rulemaking, 
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 the Safety Act 
because 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, Hemphill states the option meets the 
need for motor vehicle safety because data indicate no demonstrable 
difference in risk between the two types of belts when installed in 
side-facing seats. Finally, the petitioner notes that the option would 
provide an objective standard that is easy for manufacturers to 
understand and meet.
Notice of Receipt
    On March 28, 2019, NHTSA published a notice of receipt of 
Hemphill's petition for temporary exemption and requested comment on 
the petition.\14\ The agency received 8 comments on the petition, all 
of which supported the request. NHTSA received no comments opposing the 
petition.
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    \14\ 84 FR 11735, Docket No. NHTSA-2019-0019.
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    Several commenters, all similarly-positioned final-stage 
manufacturers of entertainer-type motorcoaches, submitted identical 
comments supporting Hemphill's petition.\15\ These commenters state 
that their entertainer motorcoaches are custom built and typically 
include side-facing, perimeter seating. They state that fewer than 100 
entertainer motorcoaches are manufactured each year. They believe that 
there is no available data supporting requiring a Type 2 belt at side-
facing seats and are concerned that serious injury to passengers could 
result if they installed the shoulder belts at those seats. Another 
entertainer motorcoach manufacturer \16\ stated that there are no 
statistics or test models showing that a shoulder belt provides a 
benefit on side-facing seats.
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    \15\ D&S Classic Coach, Pioneer Coach, Roberts Brothers Coach 
Co., Russell Coach, and Nitetrain Coach Co. These commenters were 
among the ``other petitioners'' listed in the attachment to the 
Hemphill petition NHTSA discussed in the notice of receipt of 
Hemphill's petition (84 FR at 11738). Hemphill's petition originally 
sought to cover 39 ``other petitioners'' listed in an attachment to 
the petition. NHTSA noted that the Safety Act and NHTSA's procedures 
did not clearly allow the bundling of petitions for the type of 
exemption Hemphill sought. Subsequently, the other manufacturers, 
including these commenters, submitted individual petitions for 
temporary exemptions. NHTSA will address those petitions separately 
from this document.
    \16\ Superior Coach Interiors, which is also among the ``other 
petitioners'' attached to the Hemphill petition.
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    The American Bus Association (ABA), a trade association for 
operators who transport the public, and the National Interstate 
Insurance Company, an insurance provider to the commercial passenger 
transportation industry, strongly supported Hemphill's petition.\17\ 
These commenters also affirm that fewer than 100 entertainer 
motorcoaches are manufactured each year. They expressed concern that 
serious injury to passengers could result from operators and 
manufacturers complying with the FMVSS No. 208 rule to install the 
shoulder belts and believe there is no data that supports requiring a 
Type 2 seat belt at side-facing seats.
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    \17\ National Interstate describes itself as currently insuring 
a significant share of the enetertainment motorcoach industry marke 
and states that it has consistently insured motorcoaches for 30 
years.
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Agency Analysis and Decision
    After reviewing Hemphill's petition for temporary exemption and the 
comments received on it, the agency is granting the petition. Granting 
the petition will enable the petitioner to sell a vehicle whose overall 
level of safety or impact protection is at least equal to that of a 
nonexempted vehicle.
    In the rulemaking implementing MAP-21's mandate for seat belts on 
motorcoaches, NHTSA's proposal in the NPRM was to allow manufacturers 
an option of installing Type 1 (lap belt) or Type 2 (lap and shoulder 
belt) on side-facing seats. The 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. NHTSA proposed 
the option because the agency was unaware of any demonstrable increase 
in associated risk of lap belts compared to lap and shoulder belts on 
side-facing seats. That is, the agency believed that lap belts were not 
less protective than lap and shoulder belts on side-facing seats.
    Commenters and the petitioner raise safety concerns about the 
shoulder belt portion of a lap and shoulder belt on side-facing seats. 
The commenters and the petitioner do not provide information supporting 
their beliefs about the potential for ``serious injury'' beyond 
reciting what NHTSA said on the matter in the November 2013 final rule. 
Accordingly, NHTSA believes that the potential safety risk at issue is 
theoretical at this point; as explained in the November 2013 final 
rule, the agency cannot affirmatively conclude, based on available 
information, that shoulder belts on side-facing seats are associated 
with a demonstrated risk of serious neck injuries in frontal crashes. 
However, at the same time, NHTSA believes a shoulder belt is of limited 
value on side-facing seats for the reasons explained in the final rule. 
Given the uncertainties about shoulder belts on side-facing seats, the 
few side-facing seats there are on buses subject to the November 2013 
final rule, and that FMVSS No. 208 does not require shoulder belts on 
side-facing seats on any other vehicle type, NHTSA is granting 
Hemphill's petition for temporary exemption. The grant will permit 
Hemphill to install Type 1 seat belts (lap belt only) at side-facing 
seating positions, instead of Type 2 seat

[[Page 61969]]

belts (lap and shoulder belts) at those positions, on the OTRBs it 
manufactures. This exemption does not apply to forward-facing 
designated seating positions on the petitioner's vehicles. Under FMVSS 
No. 208, the forward-facing seating positions must have Type 2 lap and 
shoulder belts.\18\
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    \18\ On October 2, 2019, the National Transportation Safety 
Board (NTSB) issued Recommendation H-19-14 in connection with the 
NTSB's investigation of an October 6, 2018 Schoharie, New York 
limousine crash. H-19-14 recommends that NHTSA ``[r]equire lap/
shoulder belts for each passenger seating position on all new 
vehicles modified to be used as limousines.'' The limousine in the 
Schoharie crash had between 18 and 22 seating positions and a GVWR 
of 13,080 lb. Under FMVSS No. 208, vehicles with 11 or more seating 
positions and a GVWR between 10,000 lb and 26,000 lb are not 
required to have seat belts in passenger seats. The NTSB 
recommendation would apply a passenger seat belt requirement to 
those vehicles.
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    NHTSA believes that granting Hemphill's petition is consistent with 
the public interest. The exemption will enable the applicant to sell 
buses whose overall level of safety is at least equal to that of non-
exempted vehicles. Further, we believe that Hemphill is a small 
entity.\19\ Thus, this temporary exemption not only permits the 
manufacturer to sell vehicles whose overall level of safety is at least 
equal to that of non-exempted vehicles, but provides relief to a small 
business by, as the petitioner notes, providing ``an objective standard 
that is easy for manufacturers to understand and meet.''
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    \19\ According to 13 CFR 121.201, the Small Business 
Administration's size standards regulations used to define small 
business concerns, manufacturers of these buses fall under North 
American Industry Classification System (NAICS) No. 336213, Motor 
Home Manufacturing, which has a size standard of 1,250 employees or 
fewer.
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    A grant is consistent with the Safety Act. The requested exemption 
will not impact general motor vehicle safety because the exempted buses 
will provide overall safety at least equal to that of nonexempted 
buses. Further, Hemphill produces a small number of affected vehicles 
annually. Hemphill did not specify in its petition how many buses it 
would manufacture under the exemption but noted that ``fewer than 100 
entertainer-type motorcoaches with side-facing seats are manufactured 
and enter the U.S. market each year.'' As noted earlier, the ABA and 
the National Interstate Insurance Company, as well as the ``other 
petitioners'' who have separately filed petitions for temporary 
exemption, also affirm that fewer than 100 entertainer-type 
motorcoaches are manufactured each year. Thus, NHTSA concludes that 
Hemphill will manufacture very few vehicles relative to the 2,500 per 
manufacturer limit set forth in the Safety Act and 49 CFR 555.6(d)(4). 
Further, as explained below, in accordance with 49 CFR 555.9 and Sec.  
30113(h) of the Safety Act, prospective purchasers will also be 
notified of the exemption prior to making their purchasing decisions. 
The vehicles must have a label notifying prospective purchasers that 
the vehicles are exempted from the shoulder belt requirement of FMVSS 
No. 208 for the side-facing seats.
Labeling
    Under 49 CFR 555.9(b), a manufacturer of an exempted vehicle must 
securely affix to the windshield or side window of each exempted 
vehicle a label containing a statement that the vehicle meets all 
applicable FMVSSs in effect on the date of manufacture ``except for 
Standard Nos. [Listing the standards by number and title for which an 
exemption has been granted] exempted pursuant to NHTSA Exemption No. 
__.'' This label notifies prospective purchasers about the exemption 
and its subject. Under Sec.  555.9(c)(2), this information must also be 
included on the vehicle's certification label.\20\
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    \20\ 49 CFR 555.9(c)(2) refers to Sec.  567.5(c)(7)(iii) as the 
regulation setting forth the certification statement final-stage 
manufacturers are to use in their certification labels. That 
reference to Sec.  567.5(c)(7)(iii) is outdated; it should be to 
Sec.  567.5(d)(2)(v)(A). The certification label requirements for 
final-stage manufacturers formerly were in Sec.  567(c)(7)(iii) but 
the requirements were moved to Sec.  567.5(d)(2)(v)(A) (see, 70 FR 
7433; February 14, 2005).
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    The text of Sec.  555.9 does not expressly indicate how the 
required statement on the two labels should read in situations in which 
an exemption covers part, but not all, of an FMVSS. In this case, NHTSA 
believes that a blanket statement that the vehicle has been exempted 
from Standard No. 208, without an indication that the exemption is 
limited to the shoulder belt on side-facing seats, could be confusing. 
A purchaser might incorrectly believe that the vehicle has been 
exempted from all of FMVSS No. 208's requirements. For this reason, 
NHTSA believes the two labels should read in relevant part, ``except 
for the shoulder belt requirement for side-facing seats (Standard No. 
208, Occupant Crash Protection), exempted pursuant to * * *.''
    In accordance with 49 U.S.C. 30113(b)(3)(B)(iv), the applicant is 
granted NHTSA Temporary Exemption No. EX 19-01, from the shoulder belt 
requirement of 49 CFR 571.208 for side-facing seats on its 
motorcoaches. The exemption shall remain effective for the period 
designated at the beginning of this document in the DATES section.

    Authority: 49 U.S.C. 30113; delegation of authority at 49 CFR 
1.95.

    Issued on: November 5, 2019.
James Clayton Owens,
Acting Administrator.
[FR Doc. 2019-24490 Filed 11-13-19; 8:45 am]
 BILLING CODE 4910-59-P