[Federal Register Volume 60, Number 26 (Wednesday, February 8, 1995)]
[Rules and Regulations]
[Pages 7461-7464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3038]



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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. 74-09; Notice 39]
RIN 2127-AF39

Federal Motor Vehicle Safety Standards; Child Restraint Systems
AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: In response to petitions for reconsideration of a February 
1994 final rule, this rule amends labeling requirements in Federal 
Motor Vehicle Safety Standard (FMVSS) 213, Child Restraint Systems. The 
final rule requires each rear-facing infant restraint system to bear a 
label warning against using the restraint in any vehicle seating 
position equipped with an air bag. This document increases the 
effectiveness of that warning.

DATES: This rule is effective May 9, 1995.
    Petitions for reconsideration of the rule must be received by March 
10, 1995.

ADDRESSES: Petitions for reconsideration should refer to the docket and 
number of this document and be submitted to: Administrator, Room 5220, 
National Highway Traffic Safety Administration, 400 Seventh Street 
S.W., Washington, D.C., 20590.

FOR FURTHER INFORMATION CONTACT: Dr. George Mouchahoir, Office of 
Vehicle Safety Standards, National Highway Traffic Safety 
Administration, 400 Seventh St., S.W., Washington, D.C., 20590 
(telephone 202-366-4919).

SUPPLEMENTARY INFORMATION:

Background

    On February 16, 1994 (59 FR 7643), NHTSA published a final rule 
amending Standard 213. The amendment required, inter alia, that each 
add-on child restraint system designed to be used while it and its 
occupant are rearward facing (referred to as a ``rear-facing infant 
restraint'') bear a label warning against using the restraint while it 
is rearward-facing on any vehicle seat equipped with an air bag.
    For a rear-facing restraint designed to be used only while rearward 
facing and only for infants (referred to below as an ``infant-only 
restraint''), the rule required the warning to state:

    WARNING: PLACE THIS RESTRAINT IN A VEHICLE SEAT THAT DOES NOT 
HAVE AN AIR BAG.

    For a convertible child restraint (i.e., one that is adjustable so 
that in one adjustment position, it can be placed on a seat and used 
rearward facing by an infant and in another position, it can be used 
forward facing by a toddler), the rule required the warning to state:

    WARNING: WHEN YOUR BABY'S SIZE REQUIRES THAT THIS RESTRAINT BE 
USED SO THAT YOUR BABY FACES THE REAR OF THE VEHICLE, PLACE THE 
RESTRAINT IN A VEHICLE SEAT THAT DOES NOT HAVE AN AIR BAG.

    The rule required the warning to be placed on a red, yellow or 
orange contrasting background so that it would be conspicuous to the 
user.
    The purpose of the warning is to reduce the likelihood that an 
infant would be injured or possibly killed by a deploying air bag. The 
rule explained why a rear-facing restraint must not be installed on a 
seat equipped with an air bag:

    When a rear-facing infant restraint is placed on a vehicle seat, 
the restraint's seat back projects forward, far in front of the 
vehicle seat back. If the vehicle seating position is a front 
passenger one equipped with an air bag, the forward-projecting seat 
back of the infant restraint may rest on or be located close to the 
part of the vehicle instrument panel containing the air bag.
    Placing a rear-facing restraint on such a vehicle seat raises a 
safety concern of the interaction between those restraints and air 
bags. An air bag must inflate quickly to create a protective cushion 
that protects occupants during frontal crashes. The quickly 
deploying air bag might injure an infant when it strikes the seat 
back of a rear-facing infant restraint.

59 FR at 7643.

Petitions for Reconsideration

    NHTSA received timely petitions for reconsideration from Kolcraft 
Enterprises and Jerome Koziatek & Associates. Evenflo Juvenile 
Furniture Company, Century Products Company, and Ms. Kathy Weber of the 
University of Michigan Child Protection Program (UM-CPP) submitted 
petitions for reconsideration after the date such petitions were due. 
Under NHTSA's procedures for the adoption and amendment of rules, 49 
CFR 553.35, these petitions were too late to be considered petitions 
for reconsideration and are considered instead petitions for 
rulemaking.
    All the parties responding to the rule raised almost identical 
concerns in their petitions. None of them disagreed with the agency's 
conclusion in the rule that a safety need exists for the warning label, 
or objected to the rule's requirement to place a label on each affected 
child restraint. Instead, the petitioners expressed misgivings about 
particular aspects of the wording of the warning, particularly the 
warning for convertible child restraints.
    The warning for convertible restraints was more elaborate than that 
for infant-only restraints, because convertible restraints are more 
complex in design than infant-only restraints. As noted above, a 
convertible restraint is used rearward-facing with an infant and 
forward-facing with a toddler or older child. An infant must be 
positioned rear-facing so that, in a crash, the forces are spread 
evenly across the infant's back and shoulders, the strongest part of an 
infant's body.
    In issuing the final rule, NHTSA was concerned that consumers might 
respond to a warning not to use a convertible restraint rear-facing 
with an air bag by turning the convertible restraint forward so that 
the infant is forward-facing in an air bag equipped seating position, 
or by not using any child restraint at all. To reduce the likelihood of 
those responses, NHTSA adopted a suggestion made in a 
[[Page 7462]] comment on the rulemaking from the American Academy of 
Pediatrics (AAP).
    AAP suggested that the warning should be clearer that an infant 
restraint must be used rear-facing, regardless of the presence of an 
air bag. To accomplish this, AAP suggested that the warning include the 
statement, ``When your baby's size requires that this restraint be used 
in a rear-facing position * * *'' as a condition for the instruction 
not to use the restraint in an air-bag equipped seating position. NHTSA 
agreed the wording should refer to the baby's size and adopted a 
requirement that the warning use that specific language.
    Kolcraft petitioned for reconsideration of the requirement to label 
convertible restraints with the phrase ``When your baby's size requires 
that this restraint be used in a rear-facing position * * *.'' The 
petitioner concurred that the warning label should not inadvertently 
encourage parents to turn convertible restraints to the forward-facing 
position when used for infants. However, Kolcraft believed that the new 
language may exacerbate the risk that parents will mistakenly reverse 
the orientation of a convertible restraint, because ``the language 
seems to focus on whether the baby's size `requires' the baby to be 
rearward facing.'' ``[T]his will confuse parents, and appear to 
introduce a new criterion for deciding whether to orient a convertible 
seat front-facing or rear-facing.'' Kolcraft petitioned NHTSA to delete 
the reference to a baby's size, or replace it with ``When using this 
restraint with an infant, the restraint must be rear facing * * *.''
    Mr. Koziatek petitioned for reconsideration of three aspects of the 
warning. First, similar to Kolcraft, Mr. Koziatek believed that NHTSA 
should reconsider the rule's reference to ``baby's size'' as a 
condition for positioning a convertible restraint to face the rear of 
the vehicle. The petitioner faulted the rule for giving no information 
as to when the child restraint system should be used rear-facing, and 
suggested remedying that shortcoming by beginning the warning with 
``This restraint must face the rear for infants less than 20 pounds.'' 
Second, Mr. Koziatek believed that the warning is too limited in that 
it implies that the front center seating position in a vehicle equipped 
with a passenger-side air bag is suitable for a rear-facing child 
restraint. The petitioner was concerned that future air bag designs may 
encompass the widespread use of an air bag system that deploys from the 
passenger side position, yet inflates widely enough to protect an 
occupant in the front center seating position. (The petitioner 
apparently was alluding to an air bag system like General Motor's 
advertised ``air bank'' system for the Cadillac line.) Mr. Koziatek 
suggested broadening the language of the warning to warn against using 
a rear-facing child restraint ``in the front seat with a passenger side 
air bag.'' Third, Mr. Koziatek said that the agency should reconsider 
its decision not to require the label to specify the consequences of 
not following the warning against using the child restraint with an air 
bag. The petitioner believed that the consequences have to be spelled 
out for the public because ``The general public has been conditioned to 
expect an air bag to be life-saving and not life-threatening.''

Agency Decision

    NHTSA has decided to grant the petitions for reconsideration of 
Kolcraft and Mr. Koziatek, and is amending the labeling requirement of 
S5.5.2(k) of Standard 213 in accordance with the petitioners' 
suggestions. With regard to the suggestion that the warning label 
should provide better information to the consumer about when an infant 
should face rearward, the agency agrees that such information is 
desirable. The information would reduce the likelihood that consumers 
would misinterpret the warning as instructing them to face an infant 
(weighing less than 20 pounds) forward rather than rearward in an air 
bag equipped seating position. Accordingly, this rule requires the 
warning for convertible restraints to include the statement, ``PLACE 
THIS CHILD RESTRAINT IN A REAR-FACING POSITION WHEN USING IT WITH AN 
INFANT WEIGHING LESS THAN (insert a recommended weight that is not less 
than 20 pounds).'' As noted in the highlighted text, manufacturers 
would insert a recommended weight that is not less than 20 pounds.
    The 20 pound minimum criterion is in accordance with established 
practice and advice in the child passenger safety community that 
infants weighing less than 20 pounds must face rearward. The American 
Academy of Pediatrics recommends that parents ``[us]e the infant car 
seat until your child reaches 17-20 pounds or until your child's head 
reaches the top of the car seat. If your baby outgrows it before 20 
pounds, use a rear-facing convertible car seat until your child weighs 
20 pounds.'' As noted above in this preamble, infants weighing less 
than 20 pounds lack the skeletal and muscular structure to withstand 
crash forces in a forward-facing position. All rear-facing child 
restraint manufacturers currently specify that their child restraints 
must be used rear-facing until the child is at least 20 pounds.
    With regard to the concern that the warning should not imply that 
the front center seating position in a vehicle equipped with a 
passenger-side air bag is suitable for a rear-facing child restraint, 
NHTSA concurs that the implication should be avoided. Not enough is 
known about the interaction of ``air bank'' type systems with rear-
facing child restraints to warrant discounting the possibility that an 
air bank system might be incompatible with a rear-facing restraint. 
Accordingly, the agency has amended the warning to state, ``WHEN THIS 
RESTRAINT IS USED REAR-FACING, DO NOT PLACE IT IN THE FRONT SEAT OF A 
VEHICLE THAT HAS A PASSENGER SIDE AIR BAG.''
    Finally, NHTSA agrees with Mr. Koziatek that the warning label 
should specify the consequences of using the child restraint with an 
air bag. NHTSA decided against such a requirement in the final rule, 
since the rule requires the use instructions accompanying the child 
restraint to contain this information. 59 FR at 7645. On 
reconsideration, NHTSA concludes that placing a description of the 
consequences next to the warning would help alert consumers to the 
importance of the warning. The agency concurs with the petitioner that 
the fact that an air bag can cause injury is counter-intuitive to the 
public generally. Information about the consequences of placing a rear-
facing restraint near an air bag could more convincingly communicate 
the important safety need for placing the child in the rear seat. 
Accordingly, this rule amends the warning statement for convertible and 
infant-only restraints to require manufacturers to insert a statement 
that describes the consequences of not following the warning. NHTSA has 
not prescribed the exact language that must be used and instead is 
providing manufacturers the flexibility to describe the consequences in 
their own words. The agency anticipates that the description will 
accurately describe the potentially grave consequences of not following 
the warning, yet will avoid frightening consumers into not using a 
rear-facing restraint with an infant.
    The three changes adopted today were also sought by the parties 
who, because their petitions for reconsideration were untimely, were 
deemed under the agency's rulemaking procedures to have submitted 
petitions for rulemaking. The requests in the petitions for rulemaking 
are, with one exception, substantially the same as the requests made by 
the reconsideration petitions granted today. [[Page 7463]] The granting 
of the petitions for reconsideration thus serves as final action on 
these requests.
    One issue raised in Evenflo's rulemaking petition was not addressed 
by the petitions for reconsideration. Evenflo said that Cosco Inc., a 
child restraint manufacturer, ``joins'' in Evenflo's petition and has 
asked that NHTSA not require the air bag warning to be placed on a 
color contrasting background. According to Evenflo, Cosco believes that 
the requirement ``gives the airbag language undue emphasis over the 
other labels required by FMVSS 213. Highlighting one warning de-
emphasizes and somewhat negates other equally important warnings and 
labels.'' Since a Cosco representative did not sign the Evenflo 
petition, NHTSA considers the request to be Evenflo's.
    The rulemaking request is denied. The purpose of the requirement 
that the air bag warning label be on a color contrasting background is 
to make the warning conspicuous. This is important because, as noted 
above, the agency is concerned that, in the words of Mr. Koziatek, 
consumers have been conditioned to expect an air bag to be life-saving 
and not life-threatening. Moreover, there is little information 
indicating consumers are aware of the potential safety problems between 
air bags and rear-facing child restraints. Air bags are typically and 
usually correctly associated with ``safety.'' Accordingly, without a 
conspicuous warning to negate this association, consumers may seek to 
place an infant in an air bag equipped seating position, thinking that 
the air bag will protect the child in a crash. Since the association 
between air bags and safety is strong and may induce consumers to 
engage unwittingly in behavior that is contrary to safety, NHTSA 
concludes that this rule must require highlighting of the warning 
against use of a rear-facing child restraints in air bag equipped 
positions. Accordingly, since there is no reasonable possibility that 
the agency would issue the requested amendment at the conclusion of a 
rulemaking proceeding, the petition is denied.

Effective Date

    This amendment is effective in 90 days. An effective date earlier 
than 180 days after the date of issuance of this rule is in the public 
interest for the following reasons. The effective date of the labeling 
requirement reconsidered in today's rule was August 15, 1994. Thus, 
rear-facing child restraints manufactured on or after that date must be 
labeled with the warning specified in the earlier rule. There is good 
cause for having today's amendments of the earlier rule become 
effective as early as possible since NHTSA believes today's rule 
clarifies the required warning and increases its effectiveness. Yet, a 
90-day effective date is distant enough to provide manufacturers 
sufficient leadtime to print revised warning labels. Also, a 90-day 
effective date will provide some time for manufacturers to use existing 
stocks of labels that met the previous rule's requirement.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    This rulemaking document was not reviewed under E.O. 12866, 
``Regulatory Planning and Review.'' The agency has considered the 
impact of this rulemaking action under the Department of 
Transportation's regulatory policies and procedures, and has determined 
that it is not ``significant'' under them. NHTSA has further determined 
that the effects of this rulemaking are minimal and that preparation of 
a full final regulatory evaluation is not warranted. The effects of 
today's rule are minor because it only makes slight changes to the 
labeling required by the February 1994 final rule. The costs of that 
earlier final rule requiring a specific warning to be labeled on rear-
facing child restraints was estimated to range from $0.09 to $0.17 per 
rear-facing restraint. (NHTSA's regulatory evaluation for that rule was 
placed in docket 74-09, notice 34.) Today's rule does not change those 
costs. The agency also anticipated that the earlier rule could save 2 
to 4 lives and could reduce 445 injuries a year, assuming that the 
warning is effective at preventing any placing of rear-facing 
restraints in air bag positions. NHTSA believes today's rule could 
improve the potential effectiveness of the warning.

Regulatory Flexibility Act

    NHTSA has considered the effects of this rulemaking action under 
the Regulatory Flexibility Act. I hereby certify that it will not have 
a significant economic impact on a substantial number of small 
entities. Of the 11 current child restraint manufacturers known to the 
agency (not counting vehicle manufacturers that produce and install 
built-in restraints), there are three that qualify as small businesses. 
This is not a substantial number of small entities.
    Regardless of the number of small entities, NHTSA believes the 
economic impact on them is not significant since today's rule only 
makes minor changes to the existing labeling requirements for rear-
facing restraints. The agency believes this rule has no impact on the 
cost of child restraint systems, and that small organizations and 
governmental jurisdictions that purchase the systems will therefore not 
be significantly affected by the rule. In view of the above, the agency 
has not prepared a final regulatory flexibility analysis.

Executive Order 12612 (Federalism)

    This rulemaking action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 12612. The agency 
has determined that this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Assessment.

National Environmental Policy Act

    NHTSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of this action will not have any significant impact on 
the quality of the human environment.

Executive Order 12778 (Civil Justice Reform)

    This rule does not have any retroactive effect. Under section 49 
U.S.C. 30103, whenever a Federal motor vehicle safety standard is in 
effect, a state may not adopt or maintain a safety standard applicable 
to the same aspect of performance which is not identical to the Federal 
standard, except to the extent that the state requirement imposes a 
higher level of performance and applies only to vehicles procured for 
the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial 
review of final rules establishing, amending or revoking Federal motor 
vehicle safety standards. That section does not require submission of a 
petition for reconsideration or other administrative proceedings before 
parties may file suit in court.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles.

PART 571--[AMENDED]

    In consideration of the foregoing, NHTSA amends 49 CFR Part 571 as 
set forth below.
    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. [[Page 7464]] 


Sec. 571.213  [Amended]

    2. Section 571.213 is amended by revising S5.5.2(k) to read as 
follows:


Sec. 571.213  Standard No. 213, Child Restraint Systems.

* * * * *
    S5.5.2  * * *
    (k)(1) In the case of each rear-facing child restraint system that 
is designed for infants only, the following statements--
    (i) ``PLACE THIS INFANT RESTRAINT IN A REAR-FACING POSITION WHEN 
USING IT IN THE VEHICLE.''
    (ii) ``WARNING: DO NOT PLACE THIS RESTRAINT IN THE FRONT SEAT OF A 
VEHICLE THAT HAS A PASSENGER SIDE AIR BAG. (Insert a statement that 
describes the consequences of not following the warning.)
    (2) In the case of a child restraint system that is designed to be 
used rearward-facing for infants and forward facing for older children, 
the following statements--
    (i) ``PLACE THIS CHILD RESTRAINT IN A REAR-FACING POSITION WHEN 
USING IT WITH AN INFANT WEIGHING LESS THAN (insert a recommended weight 
that is not less than 20 pounds).''
    (ii) ``WARNING: WHEN THIS RESTRAINT IS USED REAR-FACING, DO NOT 
PLACE IT IN THE FRONT SEAT OF A VEHICLE THAT HAS A PASSENGER SIDE AIR 
BAG. (Insert a statement that describes the consequences of not 
following the warning.)''
    (3) The statements required by paragraphs (k)(1)(ii) and (k)(2)(ii) 
shall be on a red, orange or yellow contrasting background, and placed 
on the restraint so that it is on the side of the restraint designed to 
be adjacent to the front passenger door of a vehicle and is visible to 
a person installing the rear-facing child restraint system in the front 
passenger seat.
* * * * *
    Issued on February 2, 1995.
Ricardo Martinez,
Administrator.
[FR Doc. 95-3038 Filed 2-7-95; 8:45 am]
BILLING CODE 4910-59-P