Midnight Regulation Provokes Controversy

Reprinted from The Safety Record, V5, I6; Nov/Dec. 2008

WASHINGTON, D.C. - The Designated Seating Position Final Rule has produced confusion around its measuring procedures and provoked controversy for its preemption clause and lack of statistical foundation as the Bush Administration tries to stampede another regulation to completion.

Before the comment period ended on November 24, Safety Research & Strategies, the American Association of Justice and Public Citizen filed petitions for reconsideration. The safety advocates argued that there was no way to determine if the rule would be effective in preventing occupants from using seating positions with no restraints because the agency's statistical analyses on which the rule was based were weak or non-existent. Specifically, SRS argued that the agency had failed to adhere to the Department of Transportation's quality data standards in establishing a calculation procedure for determining the number of DSPs. The AAJ focused its objections on the preemption provision in the regulation. The Society of Automotive Engineers raised numerous questions about everything from the measurement of the void to the definition of "trim."

The Final Rule was published in October three years after the agency proposed a new definition of Designation Seating Position which attempted to prevent manufacturers from featuring extra seating in generously proportioned rear bench seats without the appropriate number of seat belts. The proposed rule also contained a preemption clause, inserted into many federal regulations over the course of the Bush administration.

Under the Final Rule, any seat position with a surface width method that corresponds to a fifth percentile adult female would have to have a seat belt. Under the new definition, which drops the "likely to be used" calculation, a seat location is regarded as having a designated seat if it has a seat surface width of at least 330 mm (13 inches). Any seat with more than 50 inches of hip room should have a minimum of three designated seating positions, unless the seat design or vehicle design clearly prevents a passenger from sitting in the center position.

Manufacturers could prevent occupants from using a space as a seating position by designing an impediment or gap that meets prescribed dimensions. The separation would be required to contain either: a fixed unpadded impediment that is at least 5 mm (0.2 inches) higher than the highest point on the upper surface; a void that can accommodate a rectangular box 150 mm (5.9 inches) wide; or a parking brake or gear shift handle, that when placed in the lowest possible position, is at least 25 mm (1 inch) higher than the highest point of the seat cushion. The Final Rule also covers previously exempted seats, such as temporary folding or jump seats, and those vehicles currently excluded because their Gross Vehicle Weight Rating (GVWR) exceeds 10,000 lbs.

In their petitions for reconsideration, Public Citizen and Safety Research again objected to the tortured logic that led to the amended definition. Safety Research argued that the agency had violated the Department of Transportation's own information quality guidelines which require that: "disseminated information is accurate, clear, complete, and unbiased, both as to substance and presentation, and in a proper context. The originating office will use reliable data sources and sound analytical techniques. To the extent possible and consistent with confidentiality protections, the originating office will identify the source of disseminated information so that the public can assess whether the information is objective."

SRS noted that NHTSA had ignored these policies because the data were not reliable or complete. For example, the specifications for the impediment / void, which the agency deemed critical to the success in preventing non-DSP usage, were not supported by its data. In addition, SRS argued, the agency's reliance on this countermeasure, absent any scientific human factors analyses of the potential effectiveness of designs to keep occupants from occupying a non-DSP, was another contradiction to its data quality guidelines.

Public Citizen echoed this omission and pointed out that the agency had not provided "sufficient analysis supporting two central assertions: (1) that the change in average seat width between 2001 and 2006 has reduced the safety problem; and (2) the human factors related to reduced belt use rates when an additional occupant is seated in a 2-DSP seat." Nor did the agency update its analysis to include more recent data, beyond that cited in the NPRM, supporting the claim that the reduction in average seat width for 2-DSP seats likely to be affected by this rule will resolve the safety problem.

In reaction to the Final Rule, the AAJ joined the fight against preemption. The trial lawyer's group requested that the agency drop the preemption clause and argued that the language directly contradicted Congressional intent to preserve an injured consumer's right to hold a negligent company accountable in court. The association pointed out that a number of senators, Republican and Democratic, have been questioning this agency practice since 2005 and that the issue has surfaced repeatedly in the debate over the upgrade to the proposed roof crush rule (which is still pending). Among those who raised an eyebrow over NHTSA's sudden desire to make the due-care floor the new ceiling were the then-current Chairman and Ranking Member of the Senate Judiciary Committee, Sens. Arlen Specter (R-PA) and Patrick Leahy (D-VT), and Senators Mark Pryor (D-AR) and Tom Coburn (R-OK). The latter two reminded NHTSA during an oversight hearing that preemption overstepped the agency's authority, and would set back vehicle safety.

It also maintained that the decision in Geier v. American Honda Motor Co. was too narrow to be used as a basis to preempt state tort law claims. The Geier decision involved a specific and an unusual set of facts concerning the range and phase-in of compliance options for the passive restraint rule and the lengthy history behind it. None of those circumstances applied to the DSP rule.

Public Citizen reiterated the AAJ's protest over the preemption language, pointing out that NHTSA had misapplied Geier's specific remedy to a completely different set of facts. The advocacy group further criticized NHTSA's creative claim that a state tort law judgment could cause automakers to install an excessive number of seat belts, compromising seatbelt comfort and convenience, thereby reducing their use.

PC settled for: "This explanation is unconvincing. NHTSA claims that it suspects that manufacturers are more likely to comply by using the void space or impediment options. If automakers comply with the federal standard, and the agency's countermeasures are sufficient to discourage excessive occupancy, then there would be no ambiguous seating position for which to provide an additional seat belt."

As a matter of policy, the agency responds to petitions for reconsideration within 90 days, which would occur after the transition to the Barack Obama administration. Or the agency could work overtime to complete its midnight run before the new president takes office.

Copyright © Safety Research & Strategies, Inc. 2008

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