NHTSA Publishes Final DSP Rule; SRS Vows Challenge

Reprinted from The Safety Record, V5, I5

WASHINGTON, D.C. - Three years after proposing to close the flagrant loopholes in the Designated Seating Position rule, NHTSA has published a Final Rule that tweaks its initial proposal, but fails to address its core weakness - the lack of underlying data to support the change.

The Final Rule, published on October 8, attempts to prevent manufacturers from offering extra rear seating while skirting the requirement for a seat belt in each designated seating position. For years, manufacturers of vehicles with generous rear bench seats equipped with only two three-point belts hung their hats on four words in the current rule's definition of a designated seating position: "likely to be used." This allowed automakers to pretend that only two positions in the rear seat were likely to be used, even as consumers were clearly occupying three positions.

Under the proposed changes, any seat position with 13 inches of hip room - the width of a fifth percentile female - would have to have a seat belt, using a new measurement procedure. The rule also proposed to cover now-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. The proposal also specified that 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 prevented a passenger from sitting in the center position.

Manufacturers could satisfy the proposed requirements by increasing the number of belts, or 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.

Finally, the rule contains a pre-emption clause, a staple of the Bush administration back-door tort reform movement.

The Final Rule is largely unchanged from proposed rulemaking, save for the way the hip measurement is derived. The final rule instead uses a surface width method that corresponds to a fifth percentile adult female. 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).

"We believe that the actual seat surface width is more reflective of a location's ability to accommodate an occupant than the proposed hip room measurement. The proposed hip room measurement potentially included voids between a seat and interior vehicle trim (e.g., the space between a seat and the inside of a door), or locations underneath trim (e.g., an arm rest) that would be unlikely to accommodate a seated occupant," the agency said.

Safety Research & Strategies, which submitted comments and data showing that the rulemaking was fatally flawed, challenged the proposal. The SRS assessment of the NHTSA analysis of the scope of the safety problem revealed serious gaps in the vehicle selection and the limited years and models in the data set. More significantly, the agency failed to impose statistical controls to ensure that their conclusions were not based on anything more than random chance. SRS President Sean Kane, says that his firm is prepared to mount a challenge to the Final Rule.

"We were surprised to see the agency release this Final Rule. This sets the agency up for a challenge that they are unlikely to withstand" says Kane. "The Final Rule appears to be an attempt to railroad through another rule, regardless of its merit, that includes a preemption clause."

The new amendments were prompted by a lawsuit filed by a family whose teenage son, an avid seat-belt user, died in a crash while riding in the rear middle position of a 1994 two-door Explorer (Edgar V. Ford Motor Company.) In April 2001, Kane used this case to alert NHTSA's compliance office that the two-door Ford Explorer appeared to be in violation of the DSP section of FMVSS 208, which requires seat belts in each designated seating position. As Kane pointed out, the agency's own interpretations of the rule included strong language warning manufacturers against looking for ways around the rule. Kane also presented FARS data from 11 crashes involving the 2-door Explorer in which there were three passengers in the rear seat. Rear middle position occupants accounted for six fatalities.

The Explorer seat is a flat bench-style, split fold, with no protrusions or impediments that preclude a third occupant from comfortably occupying the middle position. Neither the marketing material nor the owner's manual identified it as a four-passenger vehicle. At least one major auto enthusiast magazine identified the two-door as a five-passenger vehicle. Further, a market research survey of 100 owners found that 50 percent acknowledged carrying three rear seat passengers.

Ford Explorer two-door rear seat with two Designated Seating Positions

Ford Explorer two-door rear seat with two Designated Seating Positions

In June 2001, NHTSA opened a formal non-compliance investigation (PE-208-010326). Nearly a year later NHTSA quietly closed the probe without taking action against the automaker - even though the agency concluded that Ford violated the spirit of the rule and urged the company to "make every effort to alert current and future owners of these vehicles that the seat capacity is two."

Kane petitioned the agency for rulemaking in September 2002, asking the agency to reevaluate the definition of Designated Seating Position and modify the language so that it could and would be enforced. As part of his petition, Kane reminded the agency of the consequences of DSP non-enforcement - including the effect on NHTSA's stability testing, because it was intended to assess vehicles at maximum occupancy. Vehicles with only two seat belts in the rear that are clearly being used by three occupants, like the Ford Explorer two-door model, would benefit in the maximum occupancy rollover resistance testing.

Although Kane received verbal assurances from NHTSA counsel that his petition was granted, the agency posted a Federal Register notice two and half years later proposing changes and claiming his petition was moot because the agency had already initiated work on the issue.

In the Final Rule, the agency outlined some of its rationale for the changes, while noting that this action is, for all practical purposes, unnecessary:

Data from 1997 through 2001 indicated that real world occupancy rates were exceeding the number of designated seating positions, particularly on bench and split bench seats. Since 2001, vehicle seat designs have changed.

The agency wrote "The most notable change since 2001 has been a decrease in the size of 2-DSP seat locations. The width of the average seating surface for a 2-DSP seating location in MY 2001 sports utility vehicles surveyed by the agency was 1,118 mm (44 inches). The width of the average seating surface for a 2-DSP seating location in comparable MY 2006 vehicles surveyed by the agency was 979 mm (38.5 inches). Both values reflect the measurement method in this final rule. The reduced seat size more clearly indicates to occupants the capacity for which crash protection is provided."

The agency addressed the criticisms of SRS and Public Citizen, which also took issue with the agency's method of determining countermeasures, but dismissed them as irrelevant. The agency said that data did not demonstrate a problem with three-DSP seats being occupied by four passengers, as the two groups suggested. Nor did the agency agree that its research was inadequate.

"The data relied upon by the agency did not indicate a problem of four occupants seated at 3-DSP locations. The vehicle population surveyed did not exclude used vehicles (i.e., vehicles after second retail sale)," the agency said. "Commenters did not provide any data to indicate that the usage pattern in larger vehicles was changing in a manner as they discussed. Therefore, today's final rule maintains the two separate calculations based on seating surface width. The calculation procedures adopted today specify that the seat measurement is divided by the appropriate factor, and that the resulting value is rounded down to produce the number of DSPs. Again, as already noted, the procedure adopted today relies on seating surface width as opposed to hip room. Rounding down results in the determination of the number of DSPs that is consistent with the vehicle designs of the current fleet, which as discussed above, provide a better indication of the number of DSPs."

Copyright © Safety Research & Strategies, Inc., 2008

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