Federal Motor Vehicle Safety Standards, Child Restraint Systems |
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Topics: National Highway Traffic Safety Administration, Federal Motor Vehicle Safety Standards
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David L. Strickland
Federal Register
September 9, 2011
[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Rules and Regulations]
[Pages 55825-55829]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23047]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA-2011-0139]
RIN 2127-AJ44
Federal Motor Vehicle Safety Standards, Child Restraint Systems
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: This final rule, the first of two under the designation RIN
2127-AJ44, amends a provision in Federal Motor Vehicle Safety Standard
No. 213, ``Child restraint systems,'' that permits NHTSA to allow
manufacturers of child restraint systems (CRSs) manufactured before
August 1, 2010, to choose to have NHTSA test the CRSs with either the
Hybrid II 6-year old child (H2-6C) dummy or the Hybrid III 6-year-old
child (HIII-6C) dummy. This final rule amends the provision to permit
manufacturers of currently-manufactured CRSs the choice of
[[Page 55826]]
NHTSA testing their child restraints with either the H2-6C dummy or the
HIII-6C dummy until further notice. While the HIII-6C is an advanced
test dummy with state-of-the-art capabilities, NHTSA believes the
agency should complete ongoing research programs to improve the
usability of the HIII-6C dummy in FMVSS No. 213 before testing child
restraints solely with this crash test dummy.
DATES: This final rule is effective September 9, 2011. If you wish to
petition for reconsideration of this rule, your petition must be
received by October 24, 2011.
ADDRESSES: If you wish to petition for reconsideration of this rule,
you should refer in your petition to the docket number of this document
and submit your petition to: Administrator, National Highway Traffic
Safety Administration, 1200 New Jersey Avenue, SE., West Building,
Washington, DC 20590.
The petition will be placed in the docket. Anyone is able to search
the electronic form of all documents received into any of our dockets
by the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review DOT's complete Privacy Act Statement in
the Federal Register published on April 11, 2000 (Volume 65, Number 70;
Pages 19477-78).
FOR FURTHER INFORMATION CONTACT: For technical issues, you may call
Cristina Echemendia, Office of Rulemaking (Telephone: 202-366-6345)
(Fax: 202-493-2990). For legal issues, you may call Deirdre Fujita,
Office of Chief Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820).
You may send mail to these officials at the National Highway Traffic
Safety Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., West Building, Washington, DC 20590.
SUPPLEMENTARY INFORMATION: S7.1.3 of FMVSS No. 213 permits NHTSA to
allow manufacturers of CRSs manufactured before August 1, 2010, to
choose to have NHTSA test the CRSs with either the H2-6C dummy or the
HIII-6C dummy when the CRS is subject to testing with a test dummy
representative of a 6-year-old child.\1\ NHTSA is amending S7.1.3 to
permit manufacturers of currently-manufactured CRSs the choice of NHTSA
testing their child restraints with either the H2-6C dummy or the HIII-
6C dummy until further notice.
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\1\ These are CRSs that are recommended by the manufacturer for
use by children in a specified mass range that includes any children
having a mass greater than 18 kilograms (40 pounds) or by children
in a height range greater than 1100 millimeters. See S7.1.2(d) of
FMVSS No. 213.
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A supplemental notice of proposed rulemaking (SNPRM) preceding this
final rule was published on November 24, 2010 (75 FR 71648, Docket No.
NHTSA-2010-0158). This final rule is the first of two under the
designation RIN 2127-AJ44. The second decisional document will be
published later this year.\2\
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\2\ Pending proposals made by the agency in NPRMs published
August 31, 2005, January 23, 2008, and November 24, 2010 will be
addressed.
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Background
The agency adopted the HIII-6C into FMVSS No. 213 in a final rule
\3\ published in response to a mandate in the Transportation Recall
Enhancement, Accountability and Documentation Act (the TREAD Act)
(November 1, 2000, Public Law 106-414, 114 Stat. 1800) that required
NHTSA undertake rulemaking on child restraint systems. Section 14 of
the TREAD Act directed NHTSA to initiate a rulemaking for the purpose
of improving the safety of child restraints by November 1, 2001, and to
complete it by issuing a final rule or taking other action by November
1, 2002. Section 14 specified nine elements for consideration by NHTSA
in improving child restraint safety, including considering whether to
require the use of the HIII-6C and other Hybrid III ATDs in FMVSS No.
213 compliance tests.
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\3\ June 24, 2003, 68 FR 37620, Docket No. NHTSA-2003-15351.
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Consistent with the TREAD Act, NHTSA decided in its rulemaking to
adopt the HIII-6C into FMVSS No. 213. NHTSA considered the dummy to be
``considerably more biofidelic'' than its predecessor, the H2-6C dummy,
and with enhanced potential to measure an array of impact responses
never before measured by a child ATD, such as neck moments and chest
deflections.
However, the agency acknowledged there was mixed acceptance by the
commenters of the HIII-6C dummy. Some commenters believed that the
HIII-6C exhibited large neck elongation in the FMVSS No. 213 test
environment that resulted in chin-to-chest and head-to-knee contact and
correspondingly high head injury criterion (HIC) values. In evaluating
those comments, NHTSA carefully analyzed its test data of sled testing
conducted with the HIII-6C, but found no data indicating that head-to-
chest or head-to-knee impacts were an issue or were typical. 68 FR at
37644. Accordingly, the HIII-6C was adopted into the standard, with
what was then considered to be sufficient lead time to enable
manufacturers to become familiar with the dummy. The compliance date
for the mandatory use of the HIII-6C dummy was set as August 1, 2005.
Eventually, after examining the performance of the HIII-6C in the
FMVSS No. 213 environment, NHTSA extended the compliance date to August
1, 2010.\4\ We reiterated our belief that the HIII-6C dummy is more
biofidelic in its components than its predecessor the H2-6C, and that
the HIII-6C also has more extensive instrumentation to measure impact
responses such as forces, accelerations, moments and deflections, which
are crucial in evaluating vehicle occupant protection systems.\5\ Some
CRS manufacturers have found the HIII-6C to be a satisfactory test
instrument and are using the dummy to certify the compliance of their
CRSs to FMVSS No. 213. These manufacturers are positioning the test
dummy and measuring the head injury criterion (HIC) as currently
required by FMVSS No. 213.
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\4\ August 5, 2008, 73 FR 45355, Docket No. NHTSA-2008-0137.
\5\ FMVSS No. 208, ``Occupant crash protection,'' uses Hybrid
III dummies, including the HIII-6C dummy, in its compliance tests.
The HIII-6C has been suitable for FMVSS No. 208 testing because the
test environment for that standard is different than the FMVSS No.
213 environment, due to the presence of the air bag.
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However, while the HIII-6C is an advanced test dummy with state-of-
the-art capabilities and is being used to an extent today, NHTSA
proposed \6\ that the agency should complete ongoing efforts to improve
the HIII-6C dummy to make it more useful as an FMVSS No. 213 test
device before testing child restraints solely with this device. The
HIII-6C dummy has a softer neck than the H2-6C, which results in
slightly greater head excursion results and larger HIC values (chin-to-
chest contact) than the H2-6C. This, coupled with the stiff thorax of
the HIII-6C dummy, accentuates the HIC values recorded by the dummy.
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\6\ 75 FR 71648, November 24, 2010, Docket No. NHTSA-2010-0158.
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Several measures are underway to improve the Hybrid III dummy (see
discussion in 75 FR at 71660). Until such time the HIII-6C is improved,
we proposed on November 24, 2010 that FMVSS No. 213 should be amended
to permit NHTSA to allow manufacturers the option of specifying that
NHTSA use either the H2-6C or the HIII-6C dummy to test the
manufacturer's child restraints until further notice.
[[Page 55827]]
Summary of Comments
The agency received three comments on the November 24, 2010
proposal, from: the Juvenile Products Manufacturers Association (JPMA),
Evenflo Company Inc. (Evenflo), and the Advocates for Highway Safety
(Advocates).
JPMA and Evenflo expressed support for the proposal to reinstate
the optional use of the H2-6C and HIII-6C dummies in compliance testing
until such time that design issues with the HIII-6C dummy are
addressed. JPMA noted that both the HIII-6C and H2-6C dummies are being
used to test and certify CRS models to FMVSS No. 213 by various CRS
manufacturers. Evenflo noted that the H2-6C has been used for many
years to permit qualification of CRSs which have provided good crash
protection for children in real world crashes. Both JPMA and Evenflo
expressed support of NHTSA's effort to fully implement the HIII-6C
dummy into FMVSS No. 213, but noted that it must not be done until the
issues with this dummy are addressed.
Advocates stated that it generally opposes allowing alternative
compliance options because it allows manufacturers to select the option
that affords the widest degree of manufacturing latitude, not
necessarily safety protection, and may lead to confusion and ambiguous
results. However, it stated that in this particular case, in light of
concerns expressed about the biofidelity of the HIII-6C dummy, it
understands the necessity to extend the optional use of the H2-6C
dummy. Nonetheless, Advocates requested that the period of the
extension be limited, and better defined, than simply left open-ended
to ``until such time FMVSS [No.] 213 is further amended to specify
otherwise,'' as stated in the preamble of the SNPRM. Advocates
suggested that a date certain be established for termination of the
optional use of the H2-6C dummy in compliance testing.
Response and Decision
For the reasons stated in the November 2010 SNPRM and after
consideration of the comments on the proposed optional use of the H2-6C
dummy, NHTSA has decided to adopt the proposed amendment to FMVSS No.
213 that allows, at the manufacturer's option, the use of either the
H2-6C or the HIII-6C dummy in the agency compliance tests of child
restraints.
We understand and generally concur with Advocates' concerns about
the potential for compliance options to engender opportunities for
confusion and ambiguity about compliance test results. For reasons such
as those described by Advocates, NHTSA seeks to avoid incorporating
compliance options into the FMVSSs whenever possible. However, in the
case at hand, we have decided against establishing a termination date
on the optional use of the H2-6C dummy.
As noted in the November 2010 SNPRM and earlier in this document,
the agency has research projects underway to improve the capability of
child dummies to assess CRS performance.\7\ After the agency fully
evaluates the new dummy, the improved HIII-6C dummy will be considered
for incorporation into FMVSS No. 213 and 49 CFR Part 572. At that time,
the agency will consider the mandatory use of the improved dummy in
FMVSS No. 213 and the termination of the optional use of the H2-6C
dummy in the agency's compliance tests. If a termination date were
included in S7.1.3, as the termination date approached, CRS
manufacturers using the H2-6C to certify their CRSs may question
whether their continued use of the dummy is well-advised. If the HIII-
6C dummy were not sufficiently improved by the termination date, as the
termination date approached, all CRS manufacturers would again be faced
with uncertainty about how NHTSA would test their child restraints. To
avoid these uncertainties, we have decided against including a
termination date for the optional use of the H2-6C dummy.
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\7\ The near-term Phase I upgrades to the HIII-6C dummy that are
expected to be completed in the 2013 timeframe include improvements
in the biofidelity of the dummy kinematics. The Phase II research is
directed toward developing biomechanical response data for
developing future improved child dummies. The Phase III of this
research includes design, development, and evaluation of a new
prototype 6-year old child dummy which is expected to be completed
in the 2015 timeframe. 75 FR at 71660.
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Compliance Date
This final rule is effective on publication in the Federal
Register. There is good cause for this effective date, as this final
rule clarifies FMVSS No. 213 requirements as to how NHTSA will test
child restraints and provides relief to manufacturers by allowing
flexibility in the test dummy used in agency compliance tests of child
restraints.
Regulatory Analyses and Notices
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563, and DOT Regulatory Policies and Procedures
The agency has considered the impact of this rulemaking action
under E.O. 12866, E.O. 13563, and the Department of Transportation's
regulatory policies and procedures. This action was not reviewed by the
Office of Management and Budget under E.O. 12866. This action is not
``significant'' under the Department of Transportation's regulatory
policies and procedures (44 FR 11034; February 26, 1979). The final
rule does not impose any new requirements on manufacturers that produce
child restraint systems, but only reinstates a provision that allowed
NHTSA to provide flexibility to manufacturers in directing NHTSA which
test dummy (the H2-6C or the HIII-6C) to use in testing their
restraints. The agency believes that the impact is so minimal as to not
warrant the preparation of a full regulatory evaluation.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, we have considered the
impacts of this rulemaking action will have on small entities (5 U.S.C.
601 et seq.). I certify that this rulemaking action will not have a
significant economic impact upon a substantial number of small entities
within the context of the Regulatory Flexibility Act.
The following is the agency's statement providing the factual basis
for the certification (5 U.S.C. 605(b)). This final rule affects child
restraint manufacturers. According to the size standards of the Small
Business Association (at 13 CFR part 121.601), the small business size
standard for manufacturers of ``Motor Vehicle Seating and Interior Trim
Manufacturing'' (NAICS Code 336360) is 500 employees or fewer. Many
child restraint manufacturers would be classified as small businesses
under this standard. However, the final rule does not impose any new
requirements on manufacturers that produce child restraint systems, but
only reinstates a provision that allowed manufacturers flexibility in
telling NHTSA which test dummy to use in testing their restraints.
Accordingly, we have not prepared a Final Regulatory Flexibility
Analysis.
Executive Order 13132 (Federalism)
NHTSA has examined today's rule pursuant to Executive Order 13132
(64 FR 43255, August 10, 1999) and concluded that no additional
[[Page 55828]]
consultation with States, local governments or their representatives is
mandated beyond the rulemaking process. The agency has concluded that
the rulemaking would not have sufficient federalism implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The rule would not have
``substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.''
NHTSA rules can preempt in two ways. First, the National Traffic
and Motor Vehicle Safety Act contains an express preemption provision:
When a motor vehicle safety standard is in effect under this chapter, a
State or a political subdivision of a State may prescribe or continue
in effect a standard applicable to the same aspect of performance of a
motor vehicle or motor vehicle equipment only if the standard is
identical to the standard prescribed under this chapter. 49 U.S.C.
30103(b)(1). It is this statutory command by Congress that preempts any
non-identical State legislative and administrative law addressing the
same aspect of performance.
The express preemption provision described above is subject to a
savings clause under which ``[c]ompliance with a motor vehicle safety
standard prescribed under this chapter does not exempt a person from
liability at common law.'' 49 U.S.C. 30103(e). Pursuant to this
provision, State common law tort causes of action against motor vehicle
manufacturers that might otherwise be preempted by the express
preemption provision are generally preserved. However, the Supreme
Court has recognized the possibility, in some instances, of implied
preemption of such State common law tort causes of action by virtue of
NHTSA's rules, even if not expressly preempted. This second way that
NHTSA rules can preempt is dependent upon there being an actual
conflict between an FMVSS and the higher standard that would
effectively be imposed on motor vehicle manufacturers if someone
obtained a State common law tort judgment against the manufacturer,
notwithstanding the manufacturer's compliance with the NHTSA standard.
Because most NHTSA standards established by an FMVSS are minimum
standards, a State common law tort cause of action that seeks to impose
a higher standard on motor vehicle manufacturers will generally not be
preempted. However, if and when such a conflict does exist--for
example, when the standard at issue is both a minimum and a maximum
standard--the State common law tort cause of action is impliedly
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
Pursuant to Executive Order 13132 and 12988, NHTSA has considered
whether this rule could or should preempt State common law causes of
action. The agency's ability to announce its conclusion regarding the
preemptive effect of one of its rules reduces the likelihood that
preemption will be an issue in any subsequent tort litigation. To this
end, the agency has examined the nature (e.g., the language and
structure of the regulatory text) and objectives of today's rule and
finds that this rule, like many NHTSA rules, would prescribe only a
minimum safety standard. As such, NHTSA does not intend that this rule
would preempt state tort law that would effectively impose a higher
standard on motor vehicle manufacturers than that established by
today's rule. Establishment of a higher standard by means of State tort
law would not conflict with the minimum standard adopted here. Without
any conflict, there could not be any implied preemption of a State
common law tort cause of action.
Executive Order 12988 (Civil Justice Reform)
With respect to the review of the promulgation of a new regulation,
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR
4729; Feb. 7, 1996), requires that Executive agencies make every
reasonable effort to ensure that the regulation: (1) Clearly specifies
the preemptive effect; (2) clearly specifies the effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct, while promoting simplification and burden reduction;
(4) clearly specifies the retroactive effect, if any; (5) specifies
whether administrative proceedings are to be required before parties
file suit in court; (6) adequately defines key terms; and (7) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. This document is
consistent with that requirement.
Pursuant to this Order, NHTSA notes as follows. The issue of
preemption is discussed above. NHTSA notes further that there is no
requirement that individuals submit a petition for reconsideration or
pursue other administrative proceedings before they may file suit in
court.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires
agencies to prepare a written assessment of the costs, benefits and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. This action will not result in additional
expenditures by state, local or tribal governments or by any members of
the private sector. Therefore, the agency has not prepared an economic
assessment pursuant to the Unfunded Mandates Reform Act.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.),
a person is not required to respond to a collection of information by a
Federal agency unless the collection displays a valid OMB control
number. This final rule does not impose any new collection of
information requirements for which a 5 CFR part 1320 clearance must be
obtained.
Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; Pages 19477-78).
Environmental Impacts
We have considered the impacts of this final rule under the
National Environmental Policy Act. This rulemaking action only
reinstates a provision that allowed NHTSA to provide flexibility to
manufacturers in directing NHTSA which test dummy (the H2-6C or the
HIII-6C) to use in testing their restraints. This rulemaking does not
require any change that would have any environmental impacts.
Accordingly, no environmental assessment is required.
Regulation Identifier Number (RIN)
The Department of Transportation assigns a regulation identifier
number (RIN) to each regulatory action listed in the Unified Agenda of
Federal Regulations. The Regulatory Information Service Center
publishes the Unified Agenda in April and October of each year. You may
use the RIN contained in the heading at the beginning of this
[[Page 55829]]
document to find this action in the Unified Agenda.
Plain Language
Executive Order 12866 requires each agency to write all rules in
plain language. Application of the principles of plain language
includes consideration of the following questions:
Have we organized the material to suit the public's needs?
Are the requirements in the rule clearly stated?
Does the rule contain technical language or jargon that
isn't clear?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand?
Would more (but shorter) sections be better?
Could we improve clarity by adding tables, lists, or
diagrams?
What else could we do to make the rule easier to
understand?
If you have any responses to these questions, please send them to
NHTSA.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Motor vehicles, and Tires.
In consideration of the foregoing, NHTSA amends 49 CFR part 571 as
set forth below.
PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS
0
1. The authority citation for part 571 continues to read as follows:
Authority: 49 U.S.C. 322, 30111, 30115, 30117 and 30166;
delegation of authority at 49 CFR 1.50.
0
2. Section 571.213 is amended by revising S7.1.3 to read as follows:
Sec. 571.213 Standard No. 213; Child restraint systems.
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S7.1.3 Voluntary use of alternative dummies. At the manufacturer's
option (with said option irrevocably selected prior to, or at the time
of, certification of the restraint), when this section specifies use of
the 49 CFR part 572, subpart N (Hybrid III 6-year-old dummy) test
dummy, the test dummy specified in 49 CFR part 572, subpart I (Hybrid
II 6-year-old dummy) may be used in place of the subpart N test dummy.
* * * * *
Issued: September 1, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-23047 Filed 9-8-11; 8:45 am]
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