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From Products Liability Law Daily, November 15, 2013

NHTSA completes work on definition of “designated seating position”

By Pamela C. Maloney, J.D.

The National Highway Traffic Safety Administration (NHTSA) has issued a final rule that amends the definition of the term, “designated seating position,” and has made the new definition applicable to all vehicles manufactured on and after September 1, 2010. The final rule, which was issued in response to a number of petitions for reconsideration, takes effective on December 16, 2013 (NHTSA Notice78 FR 68748, November 15, 2013).

Background. On October 8, 2008, NHTSA published a final rule (73 FR 58887) revising the definition of “designated seating position” (DSP), as used in the federal motor vehicle safety standards (FMVSS), to indicate more clearly which areas within the interior of a vehicle met that definition. The final rule also established a calculation procedure for determining the number of designated seating positions at a seat location for trucks and multipurpose passenger vehicles with a gross vehicle weight rating less than 10,000 pounds, passenger cars, and buses. The October 2008 final rule further noted that the inclusion of auxiliary seats in the definition of “designated seating position” and the newly established procedure for determining the number of DSPs would require minor redesign of a small number of vehicles. To allow manufacturers the opportunity to make such redesigns, the agency provided approximately two years of lead time, requiring that, on September 1, 2010, all vehicles would need to comply with the new requirements.

Petitions for reconsideration. NHTSA received ten petitions for reconsideration of the October 8 final rule and, on December 9, 2009, the agency published a final rule (74 FR 68185), providing a partial response to those petitions and extending the lead time for implementing the new definition of DSP from September 1, 2010 to September 1, 2011. The December 23 rule also removed the portion of the regulatory text stating that state tort law requirements are preempted, and made technical corrections.

Current rulemaking. In the final rule, NHTSA addressed the remaining requests for reconsideration. First, NHTSA denied a request by Global Automakers that the agency amend the definition of DSP to revert back to the old definition. Prior to September 1, 2011, the basis for determining whether a location was considered a designated seating position was whether it was a plan (i.e., side) view location capable of accommodating a person at least as large as a 5th percentile adult female if the configuration and design of the vehicle were such that it was likely to be used as a seating position while the vehicle is in motion. The October 2008 final rule replaced this definition with one setting forth a more objective manner of determining whether a seating surface is considered a DSP. As defined in the October 2008 final rule, a designated seating position is a seat location with a seating surface width of at least 330 mm.

NHTSA also rejected claims by Public Citizen and SRS that in formulating the definition of DSP, the agency did not utilize adequately updated data and sound scientific techniques. Public Citizen also asserted that the agency did not consider human factors related to reduced seat belt use rates when a third occupant was seated in a seating area with two DSPs. NHTSA stated that it had addressed many of the same issues raised by these two petitioners in its October 2008 final rule and found that the petitioners did not provide any additional information on these issues to the agency, nor did they provide any suggested changes to the requirements.

The agency went onto address the petitions that raised issues relating to the seating surface measuring procedures. For the most part, the agency simply clarified the measuring process. However, the agency did agree to make technical amendments to the definition and added graphics as necessary to illustrate the measurement process. Several of the requests for changes were denied.

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