[Federal Register Volume 87, Number 146 (Monday, August 1, 2022)]
[Notices]
[Pages 47025-47028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16368]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0068; Notice 2]


General Motors 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: General Motors LLC, (GM) has determined that certain model 
year (MY) 2017-2020 Cadillac XT5, MY 2020 Cadillac XT6, and MY 2017-
2019 GMC Acadia motor vehicles do not fully comply with Federal Motor 
Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior 
Materials. GM filed a noncompliance report dated May 29, 2020. GM 
subsequently petitioned NHTSA on June 19, 2020, for a decision that the 
subject noncompliance is inconsequential as it relates to motor vehicle 
safety. This notice announces the grant of GM's petition.

FOR FURTHER INFORMATION CONTACT: Kelley Adams-Campos, Safety Compliance 
Engineer, Office of Vehicle Safety Compliance, NHTSA, 
[email protected].

SUPPLEMENTARY INFORMATION: 
    I. Overview: GM has determined that certain MY 2017-2020 Cadillac 
XT5, MY 2020 Cadillac XT6, and MY 2017-2019 GMC Acadia motor vehicles 
do not fully comply with the requirements of paragraphs S4.2 and 
S4.3(a) of FMVSS No. 302, Flammability of Interior Materials (49 CFR 
571.302). GM filed a noncompliance report dated May 29, 2020, pursuant 
to 49 CFR part 573, Defect and Noncompliance Responsibility and 
Reports. GM

[[Page 47026]]

subsequently petitioned NHTSA on June 19, 2020, for an exemption from 
the notification and remedy requirements of 49 U.S.C. Chapter 301 on 
the basis that this noncompliance is inconsequential as it relates to 
motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of GM's petition was published with a 30-day 
public comment period, in the Federal Register (86 FR 27957, May 24, 
2021). No comments were 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-2020-0068.''
    II. Vehicles Involved: Approximately 166,938 MY 2017-2020 Cadillac 
XT5, MY 2020 Cadillac XT6, and MY 2017-2019 GMC Acadia motor vehicles 
manufactured between October 29, 2015, and March 20, 2020, are 
potentially involved.
    III. Noncompliance: GM explains that the noncompliance is that the 
subject vehicles are equipped with ventilated front seats that do not 
meet the flammability requirements set forth in paragraphs S4.2 and 
S4.3(a) of FMVSS No. 302. Specifically, when tested separately, one out 
of four composite layers had burn rates that ranged from 186 mm/min to 
189 mm/min, exceeding the maximum burn rate of 102 mm/min.
    IV. Rule Requirements: Paragraphs S4.2 and S4.3(a) of FMVSS No. 302 
include the requirements relevant to this petition. Any portion of a 
single or composite material which is within 13 mm of the occupant 
compartment air space shall meet the requirements of S4.3. ``Occupant 
compartment air space'' means the space within the occupant compartment 
that normally contains refreshable air. The requirements of S4.3 shall 
be met when any material that does not adhere to other material(s) at 
every point of contact is tested separately, and when any material that 
does adhere to other material(s) at every point of contact is tested as 
a composite.
    V. Summary of GM's Petition: The following views and arguments 
presented in this section, ``V. Summary of GM's Petition,'' are the 
views and arguments provided by GM and do not reflect the views of the 
Agency. GM describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, GM submitted the following:
    1. Background:
    Noncompliance Description: The seat cushions in the subject 
vehicles equipped with ventilated front seats fail to conform to FMVSS 
No. 302. Certain components and/or composite layers of the seat-vent 
mat assembly (``vent bags'') do not ``adhere to other material(s) at 
every point of contact,'' therefore, per S4.2.1 of FMVSS No. 302, must 
meet the requirements of S4.3 when tested separately. When tested 
separately, one of four layers did not meet the burn rate requirement. 
All other components of the seat required to meet FMVSS No. 302 comply 
with the standard.
    The one noncompliant ``layer'' is a composite made up of four 
different materials with a fifth material, cushion scrim (``scrim''), 
located peripherally on the underside of the seat foam. The scrim's 
presence on a FMVSS No. 302 test sample depends on the location where 
the sample is cut for testing. The sample may not have any scrim if cut 
in the center, or it may have scrim if cut closer to the edges of the 
seat. (See Figure 6 of the petition). When the FMVSS No. 302 test 
sample is cut from an area containing the scrim, a very thin pressure 
sensitive adhesive tape (``adhesive tape'' or ``PSA tape'') does not 
comply with the flammability requirements because the scrim shields the 
flame from the self-extinguishing foam just above it. This combination 
of adhesive tape, scrim, and a small amount of foam only exists in an 
FMVSS No. 302 test sample and does not exist as a stand-alone group of 
materials exposed to flame as installed in the subject vehicles' seats. 
As installed in the seat, the very thin adhesive tape and scrim are 
roughly 11.4 mm from the occupant (refreshable) air space underneath 
the seat and are sandwiched among many other materials, including the 
self-extinguishing seat foam.
    The Layers Tested: The vent bag assembly has four layers that must 
be tested separately for FMVSS No. 302. (See Figures 4A and 4B in the 
petition) Layer 1 is adjacent to the occupant (refreshable) air space 
under the seat. Layer 4 is closest to the seated occupant but furthest 
from the air space under the seat.
    The following materials make up each layer, bottom to top:

 Layer 1: Composite; Bottom Felt plus Film (not adhered to all 
points of contact to layer 2; tested separately)
 Layer 2: Single; Filler (not adhered to all points of contact 
to layer 3; tested separately)
 Layer 3: Composite; Film plus Top Felt plus PSA tape plus 
Cushion Scrim plus Cushion Foam
 Layer 4: Composite; Same as layer 3 less the cushion scrim

    The difference between Layers 3 and 4 is the presence of scrim. 
Unlike the other materials, the scrim is localized, resulting in two 
(2) different composite ``layers'' dependent on the seat foam cross 
section. The materials present in layer 3 and layer 4 are adhered at 
all points of contact and each layer is tested as a composite. The seat 
foam is cut to comply with S5.2.1, which requires a maximum composite 
thickness of 13 mm. One sample of each ``layer'' was taken from 
different locations on the seat to ensure one captured the scrim. Layer 
3 was cut to capture scrim and layer 4 was cut closer to the center of 
the seat and does not capture any scrim. (See Figure 6 in the 
petition). The only layer that did not meet FMVSS No. 302 is layer 3, 
containing scrim. All other layers meet the burn rate requirements. 
When testing layer 3 in accordance with FMVSS No. 302, which required a 
flame applied directly to the felt-with-film liner, the burn rates 
ranged from 186 mm per minute to 189 mm per minute and did not pass the 
requirements of FMVSS No. 302 S4.3(a). Layer 4, however, which is the 
same composite but without the scrim, had a burn rate of only 12 mm per 
minute to 24 mm per minute when tested in the same manner. The higher 
burn rates for layer 3 were caused by the unique interaction of the 
adhesive tape, scrim, and truncated seat foam. The scrim is flame-
retardant, but the thin layer of adhesive tape is not. In layer 3, the 
scrim shields the flame from interacting with, and being slowed down or 
extinguished by, the self-extinguishing foam above. With layer 4, which 
had a much lower burn rate, the foam has a bigger effect and 
significantly slows down the burn rate.
    2. GM's Reasoning: GM describes the subject noncompliance and 
contends that the noncompliance is inconsequential as it relates to 
motor vehicle safety. In support of its petition, GM submitted the 
following:
    a. The seat vent bag assembly as installed in the vehicle meets 
FMVSS No. 302 flammability requirements. The noncompliance is created 
not by the materials in the seat but by the unique way in which the 102 
\1\ x 356 mm section is selected for purposes of FMVSS No. 302 testing. 
When that section is taken from the edge of the seat, the 13-mm 
composite contains portions of scrim which, in combination

[[Page 47027]]

with the adhesive tape, increases the burn rate of that sample, i.e., 
layer 3. FMVSS No. 302 requires the flame to be applied directly to the 
felt-with-film liner, which is adjacent to the adhesive tape and 
cushion scrim, and that interaction limited the foam's ability to slow 
down the burn rate, exceeding the 102 mm per minute requirement.
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    \1\ In their petition, GM mistakenly refers to 102 mm as 100 mm.
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    In their installed application, however, the adhesive tape and 
scrim would never be exposed to an open flame because they are well 
encased from the air spaces below (and above) the seat by layers of 
self-extinguishing or FMVSS No. 302 compliant materials. Specifically, 
the scrim is encased by at least 11.4 mm of materials from the air 
space below. Encasing the scrim from the air space below are two layers 
of the felt-with-film liner composite, the filler, and the adhesive 
tape. Tested separately, the felt-with-film liner has a burn rate of 42 
mm per minute and the filler is self-extinguishing. Moreover, the as-
installed seat has more than 13 mm of self-extinguishing seat foam 
above the adhesive tape and scrim, and the scrim is localized and only 
exists in certain areas. Taken as a whole, the adhesive tape and scrim 
have a negligible effect on the overall burn rate. Layer 4 (same as 
layer 3 less the scrim) is a closer representation of the relative 
percentage of component materials and has a burn rate of only 12 mm per 
minute to 24 mm per minute.
    The purpose of FMVSS No. 302 is to ``reduce the deaths and injuries 
to motor vehicle occupants caused by vehicle fires, especially those 
originating in the interior of the vehicle from sources such as matches 
or cigarettes.'' The combination of adhesive tape, scrim, and truncated 
seat foam that is causing the FMVSS No. 302 noncompliance would never 
be exposed to an open flame or an ignition source (like matches or 
cigarettes) in its installed application, because they are within and 
surrounded by FMVSS No. 302 complying materials. A flame emanating from 
the occupant (refreshable) air space below the seat must travel through 
the felt-with-film liner (described as layer 1 above) and the filler 
(described as layer 2 above) before even having the potential to 
contact the adhesive layer or scrim.
    b. GM testing and design review of the vent bag assembly and its 
components indicate that the chance of fire or flame induced by a 
malfunctioning ventilator is essentially zero. Unlike the situation in 
Toyota's February 21, 2014, petition for inconsequentiality, which 
NHTSA granted, (see 80 FR 4035, January 26, 2015) there are no heater 
elements in GM's seat. In contrast, the subject seats contain a seat 
ventilator which circulates unheated air. The ventilator and associated 
motor are at least 27 mm from the adhesive tape and scrim and are 
separated by self-extinguishing and FMVSS No. 302 compliant materials. 
There is essentially zero risk that the seat ventilator or the 
associated motor could cause the seat materials to ignite.
    c. As installed in the vehicle, the adhesive tape is a very small 
portion of the soft mass of the seat and has an insignificant (i.e., 
negligible) adverse effect on the burn rate of the vent bag assembly. 
The adhesive tape is only 0.03% of the seat mass and is positioned 
within the seat material stack more than 11.4 mm from the occupant 
(refreshable) air space below. Therefore, the adhesive tape would have 
an insignificant adverse effect on the overall interior material burn 
rate and the potential for occupant injury due to interior fire.
    d. The exact same seats with the exact same materials meet FMVSS 
No. 302 when assembled in a different manner, changing the composition 
of the composite test sample to include the filler (layer 2). Using a 
``heated surface'' molding process, versus ``radio frequency'' welding 
used in the subject vehicles, the filler layer adheres at all points of 
contact to the upper felt-with-film material of layer 3 and layer 4. 
Unlike in the subject vehicles, where the filler layer was required to 
be tested separately, the filler layer becomes part of the composite 
sample for testing. The applied flame must travel through the self-
extinguishing 10 mm thick filler layer prior to contacting the adhesive 
tape in the upper composite material. The new composite burn rate is 
self-extinguishing to 53 mm per minute.
    e. GM is not aware of any injuries or customer complaints 
associated with this condition.
    3. NHTSA has granted similar inconsequential petitions in the past. 
NHTSA has granted at least two petitions for inconsequentiality for 
similar issues: Toyota's February 2014 petition for inconsequential 
noncompliance (see 80 FR 4035, January 26, 2015), and Cosco Inc.'s 1998 
petition for a similar issue. (See 63 FR 30809, June 5, 1998.)
    4. Correction of Noncompliance: To address this noncompliance, GM's 
suppliers have begun to use the ``heated surface'' molding process 
which results in the filler and felt-with-film liner to be adhered at 
all points. Through testing, GM confirmed that the vent bags assembled 
with this process comply with S4.3(a) for FMVSS No. 302. This process 
will be used to correct the noncompliant vehicles in production and 
parts in service inventory. This noncompliance was addressed in 
production for all applicable vehicles manufactured on or after May 26, 
2020.
    GM concludes that the subject noncompliance is inconsequential as 
it relates to motor vehicle safety, and that its petition to be 
exempted from providing notification of the noncompliance, as required 
by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 
49 U.S.C. 30120, should be granted.
    VI. NHTSA's Analysis: NHTSA has reviewed GM's analyses that the 
subject noncompliance is inconsequential to motor vehicle safety. 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.\2\ 
Potential performance failures of safety-critical equipment, like seat 
belts or air bags, are rarely deemed inconsequential.
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    \2\ 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 is the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\3\ 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.'' \4\ 
``[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.'' \5\ NHTSA considered several

[[Page 47028]]

factors specific to this petition and provides the following analysis:
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    \3\ 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).
    \4\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \5\ 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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    1. The adhesive tape layer of the seat-vent mat assembly (``vent 
bag'') as installed in the subject vehicles is covered by more than 13 
mm of self-extinguishing seat foam above and approximately 11.4 mm of 
combined felt-with-film liner (with a burn rate of 42 mm/min) and self-
extinguishing filler below. These materials comply with FMVSS No. 302 
thus, the adhesive tape is protected from contact with an ignition 
source originating from the occupant space.
    2. When the same materials, having the same thicknesses, relative 
positioning and properties as those in the subject vehicles, are 
assembled such that the filler, i.e., layer 2, is instead adhered to 
the upper felt-with-film liner at all points of contact, the resulting 
test sample, with a burn rate of self-extinguishing to 53 mm per 
minute, complies with FMVSS No. 302.
    3. GM also stated that NHTSA has granted previous petitions whose 
facts align with those at issue in the instant case. These include a 
Toyota petition (80 FR 4035, January 26, 2015), and a Cosco petition 
(63 FR 30809, June 5, 1998). In each of these prior petitions, the 
noncompliant material would not normally be exposed to ignition sources 
in its installed application because it was surrounded by materials 
compliant with FMVSS No. 302 and the noncompliant material represented 
a small percentage (no greater than 1.1 percent in either case) of the 
interior fabric. NHTSA evaluates each petition on its individual facts 
and does not consider itself to be bound by these earlier grants. The 
relative measure, i.e., percentage, of a material characteristic, i.e., 
mass, surface area, thickness, etc. without consideration of other 
factors, e.g., the surrounding of the noncompliant material with 
complying materials, does not alone mean such a material would not 
significantly fuel a fire upon exposure to an ignition source. 
Nonetheless, NHTSA has evaluated the subject petition and has made a 
determination in a similar fashion.
    VII. NHTSA's Decision: In consideration of the foregoing, NHTSA 
finds that GM has met its burden of persuasion that the subject FMVSS 
No. 302 noncompliance in the affected vehicles is inconsequential to 
motor vehicle safety. Accordingly, GM's petition is hereby granted, and 
GM is consequently exempted from the obligation of providing 
notification of, and a free remedy for, that 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 GM 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 GM 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. 2022-16368 Filed 7-29-22; 8:45 am]
BILLING CODE 4910-59-P