[Federal Register Volume 84, Number 88 (Tuesday, May 7, 2019)]
[Notices]
[Pages 19994-19999]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09301]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0115; Notice 2; Docket No. NHTSA-2016-0138; 
Notice 2; Docket No. NHTSA-2016-0139; Notice 2]


BMW of North America, LLC; Jaguar Land Rover North America, LLC; 
and Autoliv, Inc.; Decisions of Petitions for Inconsequential 
Noncompliance

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

ACTION: Decisions of petitions.

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SUMMARY: Petitioners BMW of North America, LLC and Jaguar Land Rover 
North America, LLC, have each determined that certain seat belt 
assemblies equipped in certain 2016-2017 model year vehicles do not 
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 
208, Occupant Crash Protection, and FMVSS No. 209, Seat Belt 
Assemblies. Autoliv, Inc. has determined that certain seat belt 
assemblies sold as replacement parts for use in certain 2016-2017 model 
year vehicles do not fully comply with FMVSS No. 209, Seat Belt 
Assemblies. The petitioners have requested that NHTSA deem the subject 
noncompliances inconsequential to motor vehicle safety and based on an 
agency review and analysis, NHTSA denies the petitioners' request for 
an inconsequentiality determination. BMW and Jaguar are therefore 
obligated to provide notification of, and a free remedy for, that 
noncompliance.

FOR FURTHER INFORMATION CONTACT: You may contact either Mr. Daniel 
Koblenz, Office of Chief Counsel, Telephone: 202-366-2992, Facsimile: 
202-366-3820, or Mr. Jack Chern, Office of Vehicle Safety Compliance, 
Telephone: 202-366-0661, Facsimile: 202-366-3081. The mailing address 
for these officials is: The National Highway Traffic Safety 
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Overview

    BMW of North America, LLC (BMW) has determined that certain model 
year (MY) 2016-2017 BMW, Mini, and Rolls-Royce vehicles do not fully 
comply with paragraph 4.3(j)(2)(ii) of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 209, Seat Belt Assemblies (49 CFR 571.209) and 
paragraph 4.1.5.1(a)(3) of FMVSS No. 208, Occupant Crash Protection. 
BMW filed a report dated October 13, 2016, pursuant to 49 CFR part 573, 
Defect and Noncompliance Responsibility and Reports. BMW also 
petitioned NHTSA on November 4, 2016, 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) & 30120(h) and 49 CFR 
part 556. Notice of receipt of the BMW petition was published, with a 
30-day public comment period, on January 18, 2017, in the Federal 
Register (82 FR 5641). One comment was received. Subsequent to 
publication of receipt of the petition, BMW has since amended both its 
573 report and petition on July 6, 2018.
    Petitioner Jaguar Land Rover North America, LLC (Jaguar) has 
determined that certain MY 2016-2017 Land Rover Range Rover and Land 
Rover Range Rover Sport vehicles do not fully comply with paragraph 
4.3(j)(2)(ii) of FMVSS No. 209 and paragraphs 4.2.6 and 7.1.1.3 of 
FMVSS No. 208, Occupant Crash Protection. Jaguar filed a report dated 
December 2, 2016, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Jaguar also petitioned NHTSA on December 
23, 2016, 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) & 30120(h) and 49 CFR part 556. Notice 
of receipt of the Jaguar petition was published, with a 30-day public 
comment period, on May 12, 2017, in the Federal Register (82 FR 22183). 
No comments were received. Jaguar amended both its 573 report and 
petition on June 21, 2018.
    Petitioner Autoliv, Inc. (Autoliv) has determined that certain 
replacement seat belt assemblies sold to BMW and Jaguar for 
installation in their vehicles do not fully comply with paragraph 
4.3(j)(2)(ii) of FMVSS No. 209. Autoliv filed a report dated December 
1, 2016, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Autoliv also petitioned NHTSA on December 
23, 2016, 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) & 30120(h) and 49 CFR part 556. Notice 
of receipt of the Autoliv petition was published, with a 30-day public 
comment period, on May 11, 2017, in the Federal Register (82 FR 22050). 
No comments were received.
    To view these petitions and all supporting documents, you may 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-2016-0115'' for BMW's petition, docket 
number ``NHTSA-2016-0138'' for Jaguar's petition, or docket number 
``NHTSA-2016-0139'' for Autoliv's petition.

II. Vehicles Involved

    Approximately 15,630 of the following MY 2016-2017 BMW, Mini, and 
Rolls-Royce vehicles manufactured between June 29, 2016 and October 10, 
2016, are potentially affected:

 2017 BMW X1 SAV (X1 sDrive28i, X1 xDrive28i)
 2017 BMW 5 Series Gran Turismo (535i Gran Turismo, 535i xDrive 
Gran Tursimo, 550i xDrive Gran Turismo)
 2016 BMW 5 Series (528i, 528i xDrive, 535i, 535i xDrive, 550i, 
550i xDrive, M5)
 2016 BMW 5 Series (535d, 535d xDrive)
 2016 Mini Cooper Clubman and Mini Cooper S Clubman
 Mini Hardtop 4-door Cooper and Mini Hardtop 4-door Cooper S
 2017 Rolls-Royce Ghost

    Approximately 16,502 of the following MY 2016-2017 Land Rover 
vehicles manufactured between May 3, 2016 and October 14, 2016, are 
potentially affected:

 2016-2017 Land Rover Range Rover
 2016-2017 Land Rover Range Rover Sport

    Approximately 31,682 Autoliv R230.2 and R200.2 front seat 
LH10[ordm] seat belt

[[Page 19995]]

assemblies manufactured between May 6, 2016 and October 18, 2016, and 
sold to BMW and Jaguar are potentially affected.

IV. Relevant Regulatory Requirements

    Paragraph S4.1.5.1(a)(3) of FMVSS No. 208 includes the requirements 
relevant to this petition:
     At each front designated seating position that is an 
``outboard designated seating position,'' as that term is defined at 49 
CFR 571.3, and at each forward-facing rear designated seating position 
that is a ``rear outboard designated seating position,'' as that term 
is defined at paragraph S4.1.4.2(c) of FMVSS No. 208, have a Type 2 
seat belt assembly that conforms to Standard No. 209 and paragraphs 
S7.1 through S7.3 of FMVSS No. 208, and, in the case of the Type 2 seat 
belt assemblies installed at the front outboard designated seating 
positions, meet the frontal crash protection requirements with the 
appropriate anthropomorphic test dummy restrained by the Type 2 seat 
belt assembly in addition to the means that requires no action by the 
vehicle occupant.
    Paragraph S4.2.6 of FMVSS No. 208 includes the requirements 
relevant to this petition:
     Trucks, buses, and multipurpose passenger vehicles with a 
GVWR of 8,500 pounds or less and a unloaded vehicle weight of 5,500 
pounds or less manufactured on or after September 1, 1997, shall comply 
with the requirements of paragraph S4.1.5.1 of this standard (as 
specified for passenger cars), except that walk-in van-type trucks and 
vehicles designed to be sold exclusively to the U.S. Postal Service may 
meet the requirements of paragraphs S4.2.1.1 and S4.2.1.2 of FMVSS No. 
208 instead of the requirements of paragraph S4.1.5.1.
    Paragraph S7.1.1.3 of FMVSS No. 208 includes the requirements 
relevant to this petition:
     A Type 1 lap belt or the lap belt portion of any Type 2 
seat belt assembly installed at any forward-facing outboard designated 
seating position of a vehicle with a gross vehicle weight rating of 
10,000 pounds or less, to comply with a requirement of this standard, 
shall meet the requirements of S7.1 by means of an emergency locking 
retractor that conforms to Standard No. 209.
    Paragraph S4.3(j)(2)(ii) of FMVSS No. 209 includes the requirements 
relevant to this petition:
     For seat belt assemblies manufactured on or after February 
22, 2007 and for manufacturers opting for early compliance. An 
emergency-locking retractor of a Type 1 or Type 2 seat belt assembly, 
when tested in accordance with the procedures specified in paragraph 
S5.2(j)(2), shall lock before the webbing payout exceeds the maximum 
limit of 25 mm when the retractor is subjected to an acceleration of 
0.7 g under the applicable test conditions of S5.2(j)(2)(iii)(A) or 
(B). The retractor is determined to be locked when the webbing belt 
load tension is at least 35 N.

III. Noncompliance

    The petitioners \1\ explain that the subject noncompliance involves 
the Emergency Locking Retractor (ELR) in the seat belt assembly of the 
affected vehicles' front left seats. The petitioners report that these 
vehicle-sensitive ELRs do not lock as required when subjected to the 
conditions set out in S4.3(j)(2)(ii) of FMVSS No. 209. Specifically, 
when subjected to an acceleration of 0.7 g, the ELR shall lock before 
the webbing payout exceeds the maximum limit of 25 mm. However, the 
ELRs on affected vehicles lock up after paying out 90 mm of webbing, 
which is 3.6 times of the permitted maximum payout of 25 mm. The 
affected ELRs will lock at the permitted 25 mm payout when subjected to 
an acceleration of 1.0 g.
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    \1\ BMW, Jaguar, and Autoliv filed separate petitions with the 
agency as described above. Due to the similarity of the issues 
addressed by the petitions, the agency is addressing them all 
together in this notice.
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    This noncompliance with the ELR locking requirements of FMVSS No. 
209 is also a noncompliance with FMVSS No. 208 because S7.1.1.3 of 
FMVSS No. 208 requires that all forward-facing outboard designated 
seating positions be equipped with an FMVSS No. 209-compliant seat belt 
assembly.

V. Background

    An ELR is a component of a seat belt assembly that is intended to 
protect vehicle occupants against injury or death by limiting how much 
webbing the assembly's retractor pays out when a belted occupant is 
subjected to rapid deceleration, as would happen during panic braking 
or a crash. ELRs do this by locking the webbing spool and restraining 
an occupant's travel distance before the occupant strikes the vehicle's 
interior structure.
    There are two basic types of ELR: Vehicle-sensitive and webbing-
sensitive. In a vehicle-sensitive ELR, the locking mechanism activates 
when it senses rapid deceleration of the vehicle itself. In a webbing-
sensitive ELR, the locking mechanism activates when the webbing payout 
rate from the retractor exceeds a predetermined threshold. In many 
cases, vehicle manufacturers voluntarily equip their vehicles with both 
vehicle-sensitive and webbing-sensitive ELRs, as the two types of 
locking mechanisms behave differently and have their own advantages and 
disadvantages.
    ELRs on new vehicles are primarily regulated by FMVSS Nos. 208 and 
209. These two standards measure ELR performance in different ways. 
FMVSS No. 208 is a vehicle-level standard that establishes requirements 
for how the entire vehicle (including ELRs) must perform in a set 
number of dynamic frontal crash test scenarios. FMVSS No. 208 requires 
that the forces and accelerations that an anthropomorphic test device 
experiences during these dynamic crash tests (collectively ``injury 
assessment reference values'' or ``IARVs'') do not exceed a specified 
value. FMVSS No. 208 also requires that vehicles be equipped with 
certain active and passive restraint systems, including the requirement 
that all forward-facing outboard designated seating positions in 
vehicles with a gross vehicle weight rating of 10,000 pounds or less be 
equipped with ELRs meeting the requirements of FMVSS No. 209.\2\
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    \2\ FMVSS No. 208 S7.1.1.3.
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    Unlike FMVSS No. 208, FMVSS No. 209 is an equipment-level standard 
which sets out minimum performance requirements for seat belt 
assemblies and their individual components. These include static 
testing requirements like a requirement that components of the seat 
belt assembly can withstand certain loads and that its components do 
not degrade when exposed to different types of wear.\3\ The 
requirements that apply specifically to ELRs are set out in FMVSS No. 
209 S4.3(j), and the requirement that an ELR lock before the webbing 
extends 25 mm when the retractor is subjected to an acceleration of 0.7 
g is set out at S4.3(j)(2)(ii).
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    \3\ FMVSS No. 209, S4.2.
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VI. Summary of Petitions

    According to the petitioners, the affected vehicles and equipment 
do not comply with paragraph S4.3(j)(2)(ii) of FMVSS No. 209. By 
extension, the affected vehicles also do not comply with aspects of 
FMVSS No. 208 that require seat belt assemblies conforming to FMVSS No. 
209 be installed in vehicles.\4\ As explained above, FMVSS

[[Page 19996]]

No. 209, S4.3(j)(2)(ii) requires that ELRs lock within 25 mm of webbing 
payout when tested at an acceleration of 0.7 g under the procedures 
specified in S5.2(j)(2)(iii)(A) or (B). According to the petitioners, 
the ELRs payout more webbing than is permitted under the standard at 
the specified acceleration of 0.7 g, but that the payout decreases at 
higher accelerations. Specifically, the affected ELRs payout 90 mm of 
webbing before locking when tested with an acceleration of 0.7 g, and 
they payout the required 25 mm of webbing before locking when tested 
with an acceleration of 1.0 g.
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    \4\ BMW amended their Part 573 and their petition to address the 
noncompliance with FMVSS No. 208, S4.1.5.1(a)(3) since their 
petition applied to passenger vehicles. Jaguar acknowledged a 
noncompliance with FMVSS No. 208, S7.1.1.3, however, they also 
amended their Part 573 report and their petition to include a 
noncompliance with FMVSS No. 208, S4.2.6 since their petition 
applied to light trucks, buses, or multipurpose passenger vehicles 
applicable to this requirement.
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    The petitioners stated their belief that the noncompliance is 
inconsequential as it relates to motor vehicle safety. In support, the 
petitioners submitted the following arguments:
    (a) The vehicle-sensitive locking mechanism functions, but the 
noncompliance involves what the petitioners assert is a ``slight'' 
exceedance of the FMVSS No. 209 Section S4.3(j)(2)(ii) requirement.
    (b) The affected vehicles' seat belt assemblies also contain a 
voluntary webbing-sensitive locking mechanism which provides crash and 
rollover restraint performance comparable to the performance provided 
by an FMVSS No. 209 compliant vehicle-sensitive locking mechanism.
    (c) Crash test results comparing FMVSS No. 209 S4.3(j)(2)(ii) 
compliant ELRs and ELRs in which the vehicle-sensitive locking 
mechanism has been disabled (to demonstrate a ``worst-case scenario'', 
even though in affected vehicles the vehicle-sensitive mechanism 
remains functional) demonstrate comparable results according to dynamic 
test assessments. According to the petitioners, the test results 
indicate that any performance differences between a compliant and 
noncompliant vehicle-sensitive ELR are within normal ``data scatter'' 
and can be attributed to test tolerances.\5\
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    \5\ The petitioners performed sled tests and ``quasi-static'' 
rollover tests in which they compared the performance of vehicles 
with compliant and noncompliant vehicle-sensitive ELRs in a crash. 
In addition, Jaguar submitted data from a run of a simulated ``cork-
screw'' rollover test using computer modelling. The petitioners 
argue that the results of these tests support a finding that the 
subject noncompliance is inconsequential because there was no 
significant difference in performance between compliant and disabled 
vehicle-sensitive ELRs, both for tests that measured occupant 
movement during a crash and tests that measured IARVs in a crash.
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    (d) Affected seat belt assemblies comply with all other applicable 
provisions of FMVSS No. 209. (BMW specifically points out that the 
tilt-lock function of the ELRs on its vehicles are compliant with FMVSS 
No. 209, since it locks at angles greater than 15-deg up to 41-deg when 
subjected to the FMVSS No. 209 Section S4.3(j)(2) rollover 
requirements.)
    (e) NHTSA previously granted a petition from General Motors in 
which the ELR's vehicle-sensitive locking mechanism was completely non-
functional,\6\ whereas the ELR's vehicle-sensitive locking mechanism in 
the affected BMW vehicles is functional, but may experience a 
``slight'' exceedance of the FMVSS No. 209 S4.3(j)(2)(ii) requirement.
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    \6\ See 69 FR 19897 (Apr. 14, 2004). The agency's view on this 
issue has evolved since that decision. The agency granted in part 
that petition as to certain vehicles because it found, based on the 
facts and circumstances presented, that there was not a significant 
likelihood of increased injury due to the absence of a complying 
ELR. See id. at 19900-01. For the reasons described below in the 
agency's response to petitioners' arguments, NHTSA has concluded 
here that the absence of a complying ELR would impose risks to motor 
vehicle safety.
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    (f) The petitioners have not received any customer complaints 
related to this issue.
    (g) The petitioners are not aware of any accidents or injuries 
related to this issue.
    (h) Both BMW and Jaguar have corrected vehicle production and 
Autoliv has corrected production of the seat belt assemblies.
    On these bases, the petitioners stated their belief that the 
subject noncompliances are inconsequential as they relate to motor 
vehicle safety, and that their petitions to be exempted from providing 
notification of the noncompliance, as required by 49 U.S.C. 30118, and 
a remedy for the noncompliances, as required by 49 U.S.C. 30120, should 
be granted.
    To view the petitions and accompanying test data and analyses, you 
can visit https://www.regulations.gov by following the online 
instructions for accessing the dockets and by using the docket ID 
number for this petition shown in the heading of this notice.

VII. Public Comments

    NHTSA received one comment concerning BMW's petition, from Mr. 
Brian Birchler. Mr. Birchler was of the opinion that NHTSA should grant 
BMW's request on the basis that a prior petition, similar in nature, 
was partially granted. NHTSA appreciates Mr. Birchler's input, however, 
for the reasons described below, NHTSA disagrees with his 
recommendation.
    NHTSA did not receive any comments on either Jaguar's or Autoliv's 
petitions.

VIII. NHTSA's Analysis

A. General Principles

    Congress passed the National Traffic and Motor Vehicle Safety Act 
of 1966 (the ``Safety Act'') with the express purpose of reducing motor 
vehicle accidents, deaths, injuries, and property damage. 49 U.S.C. 
30101. To this end, the Safety Act empowers the Secretary of 
Transportation to establish and enforce mandatory Federal Motor Vehicle 
Safety Standards (FMVSS). 49 U.S.C. 30111. The Secretary has delegated 
this authority to NHTSA. 49 CFR 1.95.
    NHTSA adopts an FMVSS only after the agency has determined that the 
performance requirements are objective and practicable and meet the 
need for motor vehicle safety. See 49 U.S.C. 30111(a). Thus, there is a 
general presumption that the failure of a motor vehicle or item of 
motor vehicle equipment to comply with an FMVSS increases the risk to 
motor vehicle safety beyond the level deemed appropriate by NHTSA 
through the rulemaking process. To protect the public from such risks, 
manufacturers whose products fail to comply with an FMVSS are normally 
required to conduct a safety recall under which they must notify 
owners, purchasers, and dealers of the noncompliance and provide a free 
remedy. 49 U.S.C. 30118-30120. However, Congress has recognized that, 
under some limited circumstances, a noncompliance could be 
``inconsequential'' to motor vehicle safety. It therefore established a 
procedure under which NHTSA may consider whether it is appropriate to 
exempt a manufacturer from its notification and remedy (i.e., recall) 
obligations. 49 U.S.C. 30118(d) & 30120(h). The agency's regulations 
governing the filing and consideration of petitions for 
inconsequentiality exemptions are set out at 49 CFR part 556.
    Under the Safety Act and Part 556, inconsequentiality exemptions 
may be granted only in response to a petition from a manufacturer, and 
then only after notice in the Federal Register and an opportunity for 
interested members of the public to present information, views, and 
arguments on the petition. In addition to considering public comments, 
the agency will draw upon its own understanding of safety-related 
systems and its experience in deciding the merits of a petition. An 
absence of opposing argument and data from the public does not require 
NHTSA to grant a manufacturer's petition.
    Neither the Safety Act nor Part 556 define the term 
``inconsequential.''

[[Page 19997]]

Rather, the agency determines whether a particular noncompliance is 
inconsequential to motor vehicle safety based upon the specific facts 
before it in a particular petition. In some instances, NHTSA has 
determined that a manufacturer met its burden of demonstrating that a 
noncompliance is inconsequential to safety. For example, a label 
intended to provide safety advice to an owner or occupant may have a 
misspelled word, or it may be printed in the wrong format or the wrong 
type size. Where a manufacturer has shown that the discrepancy with the 
safety requirement is unlikely to lead to any misunderstanding, NHTSA 
has granted an inconsequentiality exemption, especially where other 
sources of correct information are available. See, e.g., General 
Motors, LLC., Grant of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 92963 (Dec. 20, 2016).
    Where the subject noncompliance involves a failure to comply with a 
performance requirement or standard, petitioners have a greater burden 
to show that the noncompliance is inconsequential due to the direct 
effects of such a noncompliance on vehicle safety. Accordingly, the 
agency has found few such noncompliances to be inconsequential. One 
area in which the agency has granted such petitions has been where the 
noncompliance is expected to be imperceptible, or nearly so, to vehicle 
occupants or approaching drivers. For example, in one case, NHTSA 
determined that the use of an improper upper beam filament that results 
in a luminous flux 4% below the lower limit, but which still passes 
photometry requirements, was an inconsequential noncompliance with 
FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. See 
Osram Sylvania Products Incorporate, Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 46000 (July 30, 2013) (NHTSA-2012-
0008; Notice 2).
    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected by a noncompliance will not justify 
granting an inconsequentiality petition. Similarly, NHTSA has rejected 
petitions based on the assertion that only a small percentage of the 
vehicles or items of equipment covered by a noncompliance determination 
are likely to actually exhibit the noncompliance. In many such cases, 
it may not be readily apparent which vehicles or items of equipment are 
actually noncompliant. More importantly, however, the key issue in 
determining inconsequentiality is not the aggregate safety consequences 
of the noncompliance as a percentage of all drivers, but instead, 
whether the noncompliance in question is likely to increase the safety 
risk to individual occupants. See Cosco, Inc., Denial of Application 
for Decision of Inconsequential Noncompliance, 64 FR 29408 (June 1, 
1999) (NHTSA-98-4033-2); General Motors Corporation, Ruling on Petition 
for Determination of Inconsequential Noncompliance, 69 FR 19897 (April 
14, 2004) (NHTSA-2002-12366, Notice 2).

B. Response to BMW and Jaguar's Arguments

    NHTSA has considered the petitioners' arguments and determined that 
the subject noncompliance is not inconsequential. NHTSA therefore 
denies the petitioners' request for an inconsequentiality 
determination. We respond to the petitioners' arguments below.
The Magnitude of the Noncompliance Is Small
    The petitioners first argue that the vehicle-sensitive locking 
mechanism is functional, and that the magnitude of the affected 
vehicles' noncompliance with S4.3(j)(2)(ii) is minor and therefore 
inconsequential to motor vehicle safety. NHTSA rejects both the 
suggestion that the subject noncompliance is small, and that it is 
inconsequential to motor vehicle safety.
    As previously noted, S4.3(j)(2)(ii) of FMVSS No. 209 requires that 
ELRs lock within 25 mm of webbing payout when tested at an acceleration 
of 0.7 g. The petitioners state that the noncompliant ELRs on affected 
vehicles lock within 90 mm when tested at the required 0.7 g. Put 
another way, the webbing payout of the affected noncompliant ELRs 
exceeds the 25 mm locking requirement by approximately 3.6 times. This 
noncompliance is hardly ``slight,'' and in fact, was detectable through 
routine braking tests. Performance failures of safety-critical 
equipment, like seat belts, should rarely, if ever, be granted as 
inconsequential, and it seems clear that the subject noncompliance 
falls well outside of the bounds of inconsequentiality.
    The petitioners' assertion that the subject noncompliance is 
inconsequential because the retractor performs as required when tested 
at 1.0 g does not assuage our concerns regarding the magnitude of the 
noncompliance. According to the petitioners, the noncompliant 
retractors lock at the required distance of 25 mm when experiencing a 
1.0 g acceleration--the approximate minimum level of acceleration that 
an occupant would experience in a frontal crash. This argument ignores 
the fact that retractors are intended to protect occupants not just in 
a crash setting, but also during pre-crash (panic) braking.\7\ In many 
of these pre-crash situations, the retractor might experience an 
acceleration of between 0.7 g and 1.0 g. If the retractor fails to lock 
when it experiences these lower g-forces, it would negatively impact 
motor vehicle safety by increasing both the likelihood and severity of 
injuries from a crash.
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    \7\ We note that for some of the petitioners' sled testing, they 
positioned the test dummies in a way that they claim simulates pre-
crash braking. Positioning the dummies in this way does not address 
the underlying issue, which is that an ELR with a locking threshold 
of 1.0 g will not lock up during pre-crash braking, which could 
cause the driver to lose control or be out of position at the time 
of a crash.
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    Our concern with pre-crash panic braking is reflected in the 
regulatory history of FMVSS No. 209. In the NPRM that preceded NHTSA's 
adoption of a 0.7 g locking threshold, NHTSA had originally proposed a 
locking threshold of 2.0 g.\8\ In response to the NPRM proposing a 
locking threshold of 2.0 g, commenters contended that 2.0 g was too 
high a threshold because ELRs should optimally lock during both crashes 
and pre-crash panic braking. Commenters noted that, because panic 
braking causes deceleration forces of less than 1.0 g, the ELR would 
not lock during panic braking if the locking threshold were set to 2.0 
g. In response to these commenters and other data NHTSA received 
suggesting that a 2.0 g threshold was too high, NHTSA reduced the 
locking threshold in the final rule to 0.7 g.\9\ This requirement is 
still in effect today.
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    \8\ 35 FR 4641 (March 17, 1970).
    \9\ 36 FR 4607 (March 10, 1971).
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    NHTSA restated its concern with pre-crash braking in an August 22, 
2005 Final Rule addressing a petition submitted by the Automotive 
Occupant Restraints Council (AORC) in which the agency proposed a new 
acceleration corridor with an increased maximum onset rate.\10\ NHTSA 
explained in that final rule that it is essential to ensure seat belt 
assemblies perform their important safety function of locking up a seat 
belt in the event of a crash or emergency braking, and that the 
proposed corridor was sufficiently wide as to allow a range of onset 
rates to be tested that were preliminarily determined to be more 
representative of both real-world crashes and emergency braking events.
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    \10\ 70 FR 48883, 48885 (August 22, 2005).

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[[Page 19998]]

Comparable Performance of Compliant and Noncompliant ELRs
    The petitioners next argue that the subject noncompliance is 
inconsequential because an occupant of a representative vehicle 
equipped with a disabled vehicle-sensitive ELR experiences comparable 
occupant displacement and IARVs as an occupant of the same vehicle 
equipped with compliant vehicle-sensitive ELR when involved in a 
crash.\11\ The petitioners' support this argument with data from a 
series of sled tests and rollover tests which is summarized in the 
petitions. All of the tests that the petitioners submitted involve a 
side-by-side comparison of two seat belt assemblies: one with a 
disabled vehicle-sensitive ELR and the other with a compliant vehicle-
sensitive ELR. The petitioners claim that the data collected from these 
tests show that during crash scenarios, an occupant secured in a 
seating position with a compliant vehicle-sensitive ELR will experience 
forces comparable to a dummy in a seating position that is equipped 
with a disabled vehicle-sensitive ELR.\12\ The petitioners argue that 
this comparable performance demonstrates that the noncompliance is 
inconsequential.
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    \11\ The petitioners' argument here is premised on a similar 
argument made by General Motors in an inconsequentiality petition in 
2002, which we partially granted. 69 FR 19897 (April 14, 2004). As 
stated above and for the reasons explained in this notice, the 
agency's view on this issue has evolved.
    \12\ The petitioners attribute the similar performance to the 
fact that both seat belt assemblies were equipped with an optional 
webbing-sensitive ELR. This webbing-sensitive ELR is also not 
compliant with FMVSS No. 209.
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    We disagree with the petitioners' assessment because it ignores the 
crucial role that the static testing requirements of FMVSS No. 209 play 
as a safety backstop for crash scenarios that are not accounted for in 
dynamic tests such as those performed by the petitioners. Dynamic tests 
are meant to assess whether a vehicle's occupant protection systems 
work cohesively in certain representative crashes. However, there are 
countless crash and pre-crash scenarios that these sorts of tests do 
not cover, which is why static requirements of FMVSS No. 209 are 
intended to ``fill in the gaps'' to ensure that the vehicle's seat belt 
equipment maintains a minimum level of performance in untested 
scenarios.
    For example, dynamic tests do not account for the fact that a seat 
belt assembly is intended to protect occupants even when they are out 
of position. This issue was highlighted by one anomalous result of one 
of BMW's sled tests, in which the results showed an elevated IARV 
metric for the left femur of a dummy in a seat with a disabled vehicle-
sensitive ELR. BMW explains that this result could be attributed to a 
``non-optimum positioning of the test dummy's knee relative to the knee 
air bag.'' While we take no view as to whether this elevated injury 
metric was due to ``non-optimum positioning'' of the dummy, the fact 
that non-optimum positioning can occur--even in a controlled testing 
environment--underscores the need to protect occupants to the greatest 
extent possible in all positions, including those not typically 
dynamically tested.
    FMVSS No. 209's role as a safety backstop that complements (rather 
than substitutes for) dynamic testing requirements is also apparent 
from NHTSA's hesitance to create exemptions from static requirements of 
FMVSS No. 209 that are based on a vehicle's compliance with other 
dynamic testing requirements.\13\ In the decades that FMVSS No. 209 has 
existed, NHTSA has seldom amended the standard to permit such an 
exemption. One exception was when the agency adopted S4.5 of FMVSS No. 
209. S4.5 exempts seat belt assemblies from the elongation requirements 
of S4.2(c), S4.4(a)(2), S4.4(b)(4), or S4.4(b)(5), if those seat belt 
assemblies are (1) equipped with load limiters, and (2) are installed 
at designated seating positions subject to the requirements of S5.1 of 
FMVSS No. 208 (i.e., in seating positions with frontal air bags).
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    \13\ Dynamic testing in this context consists of a 30 mile per 
hour crash test of the vehicle using test dummies as surrogates for 
human occupants in contrast to laboratory tests of the seat belt 
assembly.
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    NHTSA established S4.5 only after it determined through extensive 
research that this change would have a net benefit on vehicle safety. 
Prior to adopting this change, the agency found that both static and 
dynamic testing requirements were needed to ensure occupant safety 
because the safety contribution of seat belts assemblies and individual 
components in a crash can be affected by the presence of other occupant 
protection equipment, and that the level of occupant protection that 
the seat belt assembly afforded depended on the performance of the 
safety belts themselves and the structural characteristics and interior 
design of the vehicle.\14\ The agency has not conducted research into 
the potential safety impacts of a similar exemption for the requirement 
in FMVSS No. 209, S4.3(j)(2)(ii), and has no reason to believe that 
such a change would have anything but a negative effect on vehicle 
safety.
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    \14\ 56 FR 15295 (April 16, 1991).
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Remaining Arguments
    The petitioners also raise four additional points in support of 
their petitions: (1) That the affected safety belt assemblies comply 
with all other applicable provisions of FMVSS No. 209; (2) that they 
have not received any customer complaints related to the subject 
noncompliance; (3) that they are not aware of any accidents or injuries 
related to the subject noncompliance; and (4) that they have corrected 
the issue in new vehicle production. NHTSA has considered these 
arguments and determined that they should not factor into our 
inconsequentiality analysis.
    First, the fact that the seat belt assemblies comply with all other 
requirements of FMVSS No. 209 does not affect whether the subject 
noncompliance was inconsequential. All vehicles are required to comply 
with all applicable FMVSSs in effect at the time of manufacture, which 
means that a vehicle's compliance with some requirements cannot offset 
a vehicle's noncompliance with other requirements.
    Second, the fact that the petitioners have stated that they 
received no complaints or do not know of injuries related to the 
noncompliance does not inform the agency's analysis. Even a 
consequential noncompliance may result in very few complaints and/or 
injury reports because drivers may not realize that the noncompliance 
exists. For example, in this case, it is unlikely that customers would 
run their own tests to measure ELR performance, and it is unlikely that 
they would notice the retractor's failure to lock after paying out 25 
mm of webbing at an acceleration of 0.7 g unless they already knew 
about the noncompliance. Moreover, in the event of a crash, it would be 
very difficult for investigators to link crash-related injury 
specifically to the subject noncompliance, especially if the 
noncompliance only played an indirect role in causing the injury (such 
as by failing to restrain a driver in pre-crash braking, causing the 
driver to lose control of the vehicle). Lastly, given the size and age 
of the affected vehicle population, it is possible the noncompliance 
simply has not yet led to complaints or injuries, even if it is likely 
to in the future.
    Finally, the fact that new vehicle production has been corrected 
does not factor into our analysis of whether the noncompliance is 
inconsequential. The manufacturers were legally obligated to correct 
new vehicle production. See 49

[[Page 19999]]

U.S.C. 30112(a); 30115(a). A manufacturer cannot certify or manufacture 
for sale a vehicle it knows to be noncompliant. Id. The fact that new 
vehicle production has been corrected simply informs us that the 
noncompliance is limited to the affected vehicles described in the 
petitions. As we noted earlier, the fact that only a small number of 
vehicles are affected by a noncompliance will not justify our granting 
an inconsequentiality petition.

IX. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that BMW and Jaguar 
have not met their burden of persuading the agency that the subject 
noncompliances with FMVSS Nos. 208 and 209 are inconsequential to motor 
vehicle safety. Accordingly, NHTSA hereby denies the petitions 
submitted by BMW and Jaguar. BMW and Jaguar are therefore obligated to 
provide notification of, and a free remedy for, that noncompliance in 
accordance with 49 U.S.C. 30118 through 30120.
    NHTSA has reviewed Autoliv's petition and based on an email dated 
February 28, 2017, Autoliv states that while they do sell a relatively 
small quantity of replacement parts to Autoliv operations in Europe, 
they do not sell directly to dealerships or the aftermarket. Autoliv 
says that all of their sales are direct to the OEM's who in turn, 
manage the distribution of those parts to their dealer networks. Thus, 
Autoliv has no standing to file for an exemption in accordance with 49 
CFR 556, in this case, and therefore, Autoliv's petition is hereby 
moot.

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

Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2019-09301 Filed 5-6-19; 8:45 am]
 BILLING CODE 4910-59-P


