Federal Register, Volume 69 Issue 46 (Tuesday, March 9, 2004)

[Federal Register Volume 69, Number 46 (Tuesday, March 9, 2004)]
[Rules and Regulations]
[Pages 10928-10936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5168]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2003-17140]
RIN 2127-AI88

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: In response to a petition from a child restraint manufacturer,
the agency issued an interim final rule published on October 22, 2002,
and amended on November 28, 2003, adopting a temporary provision
permitting the manufacture of harnesses for use on a school bus that
attach to a school bus seat back. Harnesses and other types of child
restraints are otherwise generally prohibited by the standard from
having any means designed for attaching the system to a vehicle seat
back. The provision is set to terminate on September 1, 2004.
This final rule eliminates the termination date for that provision,
thus extending indefinitely the permission for manufacture of the
harnesses. The harnesses must bear a warning label informing users that
the harness must be used only on school bus seats, and that the entire
seat directly behind the child wearing the seat-mounted harness must be
either unoccupied or occupied by restrained passengers.

DATES: Effective Date: The amendments made in this rule are effective
on September 1, 2004. Petitions: Petitions for reconsideration must be
received by April 23, 2004.

ADDRESSES: Petitions for reconsideration, identified by DOT DMS docket
number of this notice, should be submitted to: Administrator, National
Highway Traffic Safety Administration, 400 Seventh St., SW.,
Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: The following persons at the National
Highway Traffic Safety Administration, 400 Seventh Street, SW,
Washington, DC, 20590:
For technical issues: Mr. Tewabe Asebe, Office of Rulemaking, NVS-
113, telephone (202) 366-2365, facsimile (202) 493-2739.
For legal issues: Mr. Christopher Calamita, Office of Chief
Counsel, NCC-112, telephone (202) 366-2992, facsimile (202) 366-3820.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
II. Background
III. Public Comments
IV. Response to Comments
V. Final Rule
VI. Rulemaking Analysis and Notices

I. Introduction

This document permanently adopts the interim amendments to Federal
Motor Vehicle Safety Standard (FMVSS) No. 213, Child restraint systems
(49 CFR 571.213), which excluded properly labeled harnesses
manufactured for use on school bus seats from the prohibition in that
standard against child restraints that are designed to attach to a
vehicle seat back. A harness restraint system consists primarily of
flexible material, such as straps, webbing or similar material, and
that does not include a rigid seating structure for the child.
(FMVSS No. 213 uses the term ``harness'' in specifying requirements
for this type of child restraint system. We consider the terms ``vest''
and ``harness'' to be interchangeable. However, in this preamble we use
the term ``harness'' to maintain consistency with the regulatory
language. However, we re-emphasize our belief that the terms are
synonymous.)

II. Background

On October 22, 2002, NHTSA published an interim final rule to
permit the temporary manufacture of harnesses designed to attach to
school bus seats. (67 FR 64818; Interim Rule). The Interim Rule was
adopted to facilitate the transportation of preschool and special needs
children and to relieve the restriction imposed by FMVSS No. 213 for
the new school year.
The Interim Rule responded to a petition for rulemaking from
Constance S. Murray (Petitioner), president of E-Z-On Products, Inc.
(E-Z-On), requesting that NHTSA amend the prohibition against seat-
mounted harnesses in S5.3.1 of FMVSS No. 213 in order to allow their
manufacture and sale for use in school buses. S5.3.1 provides:

(e)xcept for components designed to attach to a child restraint
anchorage system, each add-on child restraint system shall not have
any means designed for attaching the system to a vehicle seat
cushion or vehicle seat back and any component (except belts) that
is designed to be inserted between the vehicle seat cushion and
vehicle seat back.

The petition was submitted in response to an agency interpretation
letter in which we determined that a product with straps that ``wrap
the seat back and are independent of the seat belt'' was subject to
FMVSS No. 213 and

[[Page 10929]]

that such a product did not meet the standard's prohibition against
child restraints that attach to the vehicle seat back.\1\ Petitioner
submitted documentation of the current usage of seat-mounted harnesses
in school buses along with accounts of crashes in which a seat-mounted
harness was used and that there were no injuries reported or described.
Subsequent to NHTSA's receipt of the petition, a number of pupil
transporters wrote identical ``petitions'' to NHTSA in support of the
E-Z-On petition.
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\1\ See agency interpretation letter to Kathy Durkin (Hold Me
Tight Products), August 31, 2001. In that letter NHTSA discussed
S5.3.1. The letter explained that child restraints are prohibited
from attaching to the vehicle seat back because they will load the
seat back in a crash. The seat back might not be able to withstand
the additional load applied to it by an attached, occupied child
restraint. NHTSA concluded the letter by stating that child
restraints that are designed to attach to a vehicle seat back do not
meet S5.3.1.
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The Interim Rule amended FMVSS No. 213 to exclude harnesses
manufactured and sold for use on school bus seats from the prohibition
in S5.3.1, thereby permitting the manufacture and sale of seat-mounted
harnesses for pupil and Head Start transportation. NHTSA stated that it
believed that permitting the manufacture and sale of seat-mounted
harnesses for use on school buses would enhance the safe transportation
of preschool and special needs children, provided that certain
conditions were met to ensure that the seat back would not be
overloaded in a collision and subject to failure. To prevent such
failure, the entire seat directly rearward of a child restrained in a
seat-mounted harness must remain vacant or occupied by restrained
passengers. Under the Interim Rule, the agency required that harnesses
manufactured on or after February 1, 2003, must bear a permanent
warning label, set forth in Figure 12 of the standard, in order to be
excluded. The label must be placed on the part of the restraint that
attaches the harness to the vehicle seat back, and must be visible when
the harness is installed. It must contain a pictogram and the following
statement: ``WARNING! This restraint must only be used on school bus
seats. Entire seat directly behind must be unoccupied or have
restrained occupants.''
The label must state that the restraint is manufactured for use
only on ``school bus seats'' rather than on ``school buses.'' The
reference in the Interim Rule to ``school bus seats'' accommodates the
possible use of seat-mounted harnesses on alternate vehicles, as
defined by the Department of Health and Human Services final rule
published on January 18, 2001, which are not school buses, but which
have school bus seats (66 FR 5296). A school bus seat is a seat in a
vehicle that meets FMVSS No. 222, School bus seating and crash
protection (49 CFR Sec. 571.222).
The Interim Rule also added a definition of ``harness'' to the
standard. The definition of a harness is ``a combination pelvic and
upper torso child restraint system that consists primarily of flexible
material, such as straps, webbing or similar material, and that does
not include a rigid seating structure for the child.'' As noted
previously, we consider the term ``harness,'' to be interchangeable
with the term ``vest,'' which is commonly used to describe seat-mounted
restraints.
The Interim Rule made several other amendments to FMVSS No. 213
relating to the exclusion. It amended S5.3.2 and an accompanying table
specifying the means of attachment by which a harness must be capable
of meeting the requirements of FMVSS No. 213. The table in S5.3.2 was
modified to provide that harnesses designed for use on school bus seats
must be capable of meeting the requirements when attached to the seat
back by a seat mount. The Interim Rule also amended the table to
S5.1.3.1(a) of the standard, which specifies the head and knee
excursion requirements that add-on forward-facing child restraints must
meet.
In addition, the dynamic test procedures of the standard were
amended to specify procedures for testing seat-mounted harnesses. Up to
that time, the procedures had reflected attachment of add-on child
restraints by a lap belt, lap belt and tether, lap and shoulder belt,
and child restraint anchorage system. Seat-mounted harnesses are not
attached by those means. Accordingly, S6.1.2(a)(1)(i)(A) and
S6.1.2(d)(1)(ii) were revised to include specifications appropriate for
the manner in which seat-mounted harnesses are attached.
NHTSA determined that it was in the public interest to make the
changes effective immediately on an interim basis until December 1,
2003. We also requested comments on the Interim Rule and on whether to
amend the standard permanently. The termination date was subsequently
extended until September 1, 2004. (68 FR 66741; November 28, 2003.)

III. Public Comments

The agency received 100 comments on the Interim Rule, including
comments from state departments of education, school transportation
associations, public and independent school districts, school bus
transportation facilities, school bus operators, Head Start programs,
individuals employed in the pupil transportation industry, physical
therapists, child restraint manufacturers, the University of Michigan
Transportation Research Institute (UMTRI), the American Academy of
Pediatrics, and a certified child passenger safety technician. A large
majority of the 100 commenters supported adopting a permanent exclusion
for harnesses manufactured and sold for use on school bus seats from
the prohibition against such a design.
While there was general support for the interim rule becoming
permanent, some commenters raised concerns regarding the warning label
text and placement. They were particularly concerned with the
requirement for the label to contain the following statement: ``Entire
seat directly behind must be unoccupied or have restrained occupants.''
Comments were also received on the use of the harnesses on non-lap-belt
ready school bus seats and on the specific test conditions of the
standard.
Ten comments were received in opposition to extending the exception
adopted in the Interim Rule. Several of these comments raised issues
not related to the design or use of the harness, such as excessive
vehicle speed and school bus driver fatigue, and as such were beyond
the scope of the rulemaking. The relevant opposing comments cited
concerns about the effects of harness use on evacuation, use
difficulties (e.g., children pulling on excess webbing and
unwillingness of students to remain restrained), and the potential for
false charges of sexual abuse arising from school bus operators
securing the harness crotch straps.

A. Warning Label--Seating Configuration

Several commenters objected to or had concerns about the labeling
requirement as adopted in the Interim Rule. James Fey, North Florida
Child Development, Inc., Montgomery County Schools Department of
Transportation, Earl Henry, and Robin Melton stated that because the
warning directs that the seat behind the harness-restrained child
remain vacant or contain a restrained individual, more buses would be
required to transport the same number of children. Montgomery County
Schools Department of Transportation also commented that, in the past,
there had not been any issue with

[[Page 10930]]

unrestrained children sitting directly behind harness-restrained
students.
Robin Melton asked that the agency consider a ``size of child''
stipulation for this warning, possibly amending the warning language to
state that unrestrained students between the grades of kindergarten
through second grade could be seated directly behind a safety harness-
restrained child. Several commenters asked for clarification of the
term ``restrained passenger.''
UMTRI commented that the warning requirement is based on the
results of severe frontal impact test conditions that are unlikely to
occur in the foreseeable future for school bus transportation. UMTRI
argued that the warning not to place any unrestrained children behind
safety harness-restrained children is inappropriate and unreasonable.

B. Warning Label--Required Language

UMTRI commented that the warning label should be changed from,
``Warning! This restraint must only be used on school bus seats. * *
*'' to, ``Warning! This restraint must only be used on school buses
when installed by attaching to the seatback. * * *'' UMTRI stated that
the current language assumes that harnesses cannot be installed in a
more conventional manner (one not requiring a seat-mount for
attachment) that complies with the current FMVSS No. 213.

C. Other Warning Label Issues

Some commenters stated that the warning label should be placed on
the ``cam wrap'' and not the harness. Peter J. Grandolfo, Chicago
Public Schools, suggested that a warning label should also be placed in
a conspicuous spot on the bus interior to advise personnel on the safe
use of harnesses.
E-Z-On suggested that CRS manufacturers provide a similar warning
concerning unrestrained occupants on rear-facing child systems that
would be installed on school bus seats. E-Z-On stated that rear-facing
seats required similar warning labels because ``in a dynamic situation,
infant seats are designed to move towards the seat back, while the back
of a school bus seat is designed to flex forward.'' E-Z-On also
suggested that currently used seat-mounts should have a warning label.

D. Lap-Belt-Ready School Buses

One commenter requested that the final rule distinguish between
school bus seats and lap-belt-ready school bus seats. The commenter
stated that because of additional forces placed on the school bus seat
by a harness that attaches to a seat back, such a harness could only be
used safely on a lap-belt-ready school bus seat.

E. Test Conditions

Q'Straint commented that the resultant acceleration limits at the
location of the upper thorax be reviewed due to the difficulties in all
harnesses meeting the requirement of S5.1(b) of FMVSS No. 213.
Q'Straint also suggested utilizing a regular FMVSS No. 222 approved
school bus seat for testing harnesses instead of the FMVSS No. 213
bench seat, stating that this would be more representative of real
world usage.
E-Z-On commented that tightening the tension of the seat-mount
strap to not less than 53.5 N and not more than 67 N, as required by
the Interim Rule, could affect the dynamic performance resulting in
failure. E-Z-On suggested that the range be expanded from 67 N to 132
N. Because installation instructions for the seat-mounted harness
require the seat-mount strap be tightened as much as possible, E-Z-On
argued that the 67 N minimum would be more representative of actual
installation.

F. Emergency Evacuation and Use Difficulties

Three commenters raised concern with the potential impact of
harness use on school bus evacuation time. Commenters raised the
possibility that more time may be required to remove a child from a
safety harness than from other types of child restraints. One commenter
stated, ``[W]e have timed a [sic] evacuation drill and it approximately
takes the driver and aide 12 minutes to get all children unfasten [sic]
and off [sic] bus to safety. We believe that is too long.''
One of these commenters expressed concern about the potential for
excess webbing to hang off the portion of the restraint that attaches
to the seat back. She stated that other children could possibly pull on
the excess webbing and injure the child secured in the harness. A
different commenter expressed concern that children would choose not to
stay in the restraints.

F. Use of Crotch Straps

One individual commented that the use of crotch straps on the
harnesses might result in mistaken claims of sexual abuse against those
individuals fastening children in the harnesses. This commenter was
particularly concerned with children unable to fasten themselves and
who required adult assistance. However, a separate individual stated
that in practical use, this problem had not been encountered.

IV. Response to Comments

A majority of the commenters supported making no changes to the
provisions adopted in the Interim Rule. Even among commenters who
raised issues with specific portions of the rule, there was a general
consensus that child restraint systems that attach to the seat back and
are manufactured and sold for the exclusive use on school bus seats
should be permitted.

A. Warning Label--Seating Configuration

The portion of the warning label stating that the seat directly
behind the harness-restrained child should either remain unoccupied or
be occupied only by restrained passengers attracted the most comments.
Representatives from child transportation organizations, schools, and
individuals were concerned that this warning would necessitate an
increase in the number of school buses because of the loss of seating
positions. UMTRI commented that this language was based on severe
frontal impacts that are not representative of real world crashes.
The agency is adopting the warning language as it exists in the
Interim Rule. This labeling requirement was based on data that showed
an increase in the head injury criteria (HIC) values of a harness
restrained HII-3-year-old test dummy (HII-3YO) seated in front of an
unrestrained 50th percentile male test dummy. In testing, when
unrestrained 50th percentile male test dummies were seated directly
behind restrained HII-3YOs, the HIC values for three of the four HII-
3YOs were above the limit set forth in S5.1.2 of FMVSS No. 213. The
high HIC values were a result of overloading of the seat back during a
frontal crash by unrestrained passengers seated behind it. This danger
is magnified when a mix of special needs and pre-K to 12th grade
students with varied weight distributions are transported on a single
bus. As reflected in comments by Earl Henry and Mark E. Wagstaff, some
Headstart programs coordinate transportation with the local school
districts. This creates a potential for children of disparate sizes
(pre-K and high school students) to be seated on the same bus. Also, as
pointed out in comments from Terri Wontrobski, adult bus monitors might
sit behind harness-restrained children. Seating a large, full grown
unrestrained 12th grader directly behind a seat-mounted-harness-
restrained pre-K student could result in forces on the seat back in a
crash that would generate a HIC value above the allowable limit for the
pre-K

[[Page 10931]]

student, potentially resulting in injuries to that pre-K student.
From some of the comments received, it appears that there is a
misunderstanding as to the meaning of the warning. The warning does not
direct that the seat directly behind the harness-restrained child
remain empty. The warning states that this seat should remain
unoccupied or occupied only by restrained passengers. As we have
previously explained in the preamble to the Interim Rule and in a
subsequent interpretation letter,\2\ the term ``restrained'' refers to
the use of any type of user appropriate vehicle restraint or child
restraint system. This includes lap belts, lap and shoulder belts,
booster seats, child seats, and harnesses.
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\2\ See agency interpretation letter to Ms. Lori Crouzillat (E-
Z-ON Products, Inc.), March 13, 2003.
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Robin P. Melton asked the agency to establish a ``child size''
threshold for the warning. In general, we agree that an unrestrained 6-
year-old seated directly behind a harness-restrained 3-year old child
may not cause the severe injury measurements that might occur if an
adult equal in size to the 50th percentile male sat behind the 3-year-
old. However, the agency does not have the data or resources to
determine a threshold weight limit below which it would be safe to
place an unrestrained student directly and immediately behind a
harness-restrained student. Even if the agency were able to determine
such a threshold, it could confuse the warning and make it less
effective. Further, a weight threshold could prove impractical to
follow because such a warning would necessitate vehicle operators and
caregivers determining the weight of each child being seated in the
school bus seats.
UMTRI commented that the test procedures used to justify the
warning language were not representative of crashes experienced by
school buses. As stated in the preamble to the Interim Rule, the test
conditions represented a 30 mile-per-hour (mph) small school bus crash
with a vehicle of comparable mass traveling at the same speed. These
crash conditions take into account the fact that harness-restrained
children will be transported on small school buses and multifunction
school activity buses.\3\ So long as school children are transported in
smaller vehicles with school bus seats, there is a likelihood for crash
conditions similar to those used in our testing. The warning language
reflects the agency's commitment to protect all students transported in
all school buses, including those transported in small school buses.
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\3\ A multifunction school activity bus is defined as a school
bus whose purposes do not include transporting students to and from
home or school bus stops. 49 CFR 571.3(b). (68 FR 44892; July 31,
2003)
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NHTSA anticipates that any loss of seating space resulting from
following the warning language will be negligible. We agree with
comments submitted by Robert W. Markwardt, in which he states that seat
loss can be minimized by optimizing seating patterns. By optimizing
seating patterns, harnesses can be used while nearly maintaining the
current occupant levels on school buses.

B. Warning Label--Required Language

The warning label limits the use of harnesses to school bus seats.
UMTRI recommended that the warning language be amended to state, in
part, ``Warning! This restraint must only be used on school buses when
installed by attaching to the seatback. * * * This change, UMTRI
argues, would reflect that some safety harnesses might be able to be
installed in a more conventional manner, and thus be used on vehicle
seats other than school bus seats.
The current label language is intended to discourage the use of
seat-mounted harnesses on non-school bus seats. FMVSS No. 222, School
bus passenger seating and crash protection, imposes seat back strength
requirements on school bus seats that seats for other types of vehicles
are not required to meet. In a crash, a non-school bus seat back might
not be able to withstand the additional load applied to it by an
attached, occupied child restraint.
If a manufacturer designs a harness that either attaches to the
seat back or to the seat belt assembly, the warning label would only be
required on the portion of the harness that attaches to the seat back.
For a restraint that could be installed in a more conventional manner
as well as with the seat wrap, the label's prominence would be reduced
when the restraint was installed by the more conventional means.
Further, the current warning language helps ensure that use of
harnesses is limited to their intended use on school bus seats.

C. Other Warning Label Issues

The warning labels are required to be placed on the part of the
restraint that attaches the harness to the vehicle seat back and must
be visible when installed. Comments were received requesting that the
text of the warning require the label to be placed on the ``seat-
mount.'' The ``seat-mount'' is the part of the restraint that attaches
the restraint to the seat back. However, not all manufacturers may use
the term ``seat-mount'' (e.g., the E-Z-On cam wrap). The rule language
is written in general terms so as to be understood by all
manufacturers.
Peter J. Grandolfo requested that the final rule require a warning
label to be placed in the interior of school buses in order to educate
transportation personnel. We agree with Mr. Grandolfo that it is
important for all school bus operators to know about the safe uses of
these harnesses. However, a label on every bus would serve no purpose
in most situations, since the harnesses are not usually used in school
buses. Accordingly, the agency is not mandating the label. If a State
or individual district wanted to require such a label in its school
buses, it may do so.
E-Z-On suggested that rear facing child seats used in school buses
and all harness restraints currently in use be provided with similar
warning labels. First, unlike a rear facing child seat, a harness
restraint that attaches to the seat back of a school bus transfers the
entire load of the occupant to the seat back. A rear facing child
restraint attaches to the bus by means of a lap belt or LATCH and does
not transfer a load to the seat back. The harness restraint thus
presents a unique situation that NHTSA believes needs to be addressed
by this label. Second, NHTSA does not have legal authority to mandate
labels for seat mounts already in service. However, the agency believes
that the label information is important for all seat mounted restraints
and strongly encourages manufacturers to send labels voluntarily to
owners of seat mounts that were manufactured prior to the label
requirement.

D. Lap-Belt-Ready School Buses

This final rule makes no distinction between harness restraint use
on lap-belt-ready school bus seats and school bus seats that are not
lap-belt-ready. Bill Hanson from the Billings Montana Head Start
program raised concern that school bus seats that are not lap-belt-
ready may not be able to withstand the additional loading from the seat
mount.
The agency is not aware of any problem with the real world usage of
harnesses on non-seat-belt-ready seats. However, the agency is aware of
seat failures during laboratory testing of harnesses with non-seat-
belt-ready seats. Therefore, we continue to recommend the use of seat-
belt-ready seats when transporting a child in any child restraint on a
school bus. (See Guideline for the Safe Transportation of Pre-school
Age Children in School Buses.) We note that some States already require
that all child restraint

[[Page 10932]]

systems used in school buses must be used on seats that meet the
requirements of FMVSS No. 210.

E. Test Conditions

S5.1.2(b) of FMVSS No. 213 requires that seat mounted harnesses:

Limit the resultant acceleration at the location of the
accelerometer mounted in the test dummy upper thorax as specified in
part 572 to not more than 60 g's, except for intervals whose
cumulative duration is not more than 3 milliseconds.

While Q'Straint stated that there might be a problem in meeting
this requirement, it did not provide any data to support its claim. Our
testing of school bus harnesses has not shown a problem meeting this
requirement and we have no knowledge of such a problem from other
sources. As such, this document does not amend this provision of the
standard.
Q'Straint further suggested that that the testing procedure utilize
an FMVSS No. 222 approved school bus seat. While use of a school bus
seat may be more representative of real world usage, we are maintaining
the use of an FMVSS No. 213 bench seat. Incorporating an FMVSS No. 222
school bus seat into the test procedure would require further testing
to be performed and would need to be addressed through a separate
rulemaking. At this time, we have no indication that the performance of
the school bus harness would be different on an FMVSS No. 213 bench
seat versus an FMVSS No. 222 school bus seat.
E-Z-On recommended changing the tightening tension requirements for
testing the seat-mounted harnesses in order to replicate the tighter
tensions recommended in the installation instructions. We are currently
not aware of any data showing that the current tightening tension range
negatively affects the performance of the restraint. Further, E-Z-On
did not provide any data to support their request for a higher upper
bound tightening range (67 N to 132 N). Therefore, we are not making
revisions to the procedures as set forth in the Interim Rule.
Q'Straint requested a change to the table to S5.1.3.1(a) indicating
the installation method by which a restraint must meet the applicable
requirements. The commenter suggested that for a harness labeled per
S5.3.1(b)(1) through S5.3.1(b)(3) and Figure 12, the figure should
indicate seat back mount and child restraint anchorage system. FMVSS
No. 213 does not require harnesses to be capable of attaching to a
child restraint anchorage system (see S5.9(a)). Since the table
specifies only the mandated methods of attachment, the change has not
been made.

F. Emergency Evacuation and Use Difficulties

The agency is aware that use of seat-mounted harnesses may increase
evacuation time for school buses. Rhonda E. Smith commented that in an
evacuation drill in which students were restrained in harnesses, the
evacuation time was 12 minutes. However, Ms. Smith did not provide
details of the drill, such as the number of children in the bus, number
of adult monitors or aides, bus size, number of children restrained by
harnesses, etc. We are unable to determine if this drill was
representative of real world scenarios. Further, there has been no
indication that evacuation time has been a problem for those buses
using the seat-mounted harnesses. If emergency evacuation were to
become a problem, it would be better addressed on a case-by-case basis
by the school districts and school bus transportation industry. Plus,
if evacuation time were to be determined a problem, harness usage could
be supplemented with alternative devices for transporting special needs
students and pre-K students that are recommended by the agency's
``Guideline for the Safe Transportation of Pre-school Age Children in
School Buses.''
Ms. Smith and Amy Nelson also raised concerns about the potential
for difficulties arising from the use of the harnesses. Ms. Smith
argued that other children might pull on the excess webbing on the seat
wrap and Ms. Nelson stated that children might choose not to remain
restrained in the harnesses. The agency notes that commenters who have
had experience in using the harness, including Wayne Clutter of the
West Virginia Department of Education and Dee Jay Jennings of the
Killeen Independent School District, did not cite such difficulties.
Further, if such difficulties were to arise, other transportation
options are available, such as forward facing child seats.

F. Use of Crotch Straps

Crotch straps prevent children from sliding forward in their seats,
helping to prevent injuries in crash situations. Ms. Smith voiced
concern that the process of caregivers restraining children with crotch
straps may result in erroneous sexual abuse claims because of
incidental contact with the child. In response to Ms. Smith's comment,
Michelle Lupo commented that her staff has taught the children to get
the crotch strap through their legs by themselves minimizing the need
for staff to fasten the crotch straps and alleviating these types of
concerns.
The December 2002 issue of Transporting Students with Disabilities
(Volume 13) stated that crotch straps do not appear to be an issue with
parents and school bus transportation service providers and recognized
the benefits from using the crotch straps. The issue cited a court case
in which a Federal district judge for the Eastern District of
Pennsylvania ruled that a lawsuit could proceed against a school
district and special care facility, in which a special needs student
was strangled after apparently being improperly restrained in a four
point harness (without a crotch strap). See, Susavage v. Bucks County
Schools Intermediate Unit No. 22, 2002 U.S. Dist. Lexis 1274 (E.D. Pa.
January 22, 2002).\4\
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\4\ It has been reported that the lawsuit was settled in favor
of the student's parents for $3.6 million dollars. See Elliot
Grossman, Parties settle school bus strangulation case; disabled
Quaker girl's death led districts to change policies, Allentown
Morning Call, August 19, 2003.
---------------------------------------------------------------------------

Based on the benefits of the crotch strap and its reported
acceptance by parents, we are maintaining the crotch strap requirement
in S5.4.3.4(b).

V. Final Rule

This final rule excludes harnesses manufactured and sold for use on
school bus seats from the prohibition in FMVSS No. 213 against child
restraints that mount to a vehicle seat back. The regulation as set
forth in the October 2002 Interim Rule, which temporarily sanctioned
the manufacture and sale of seat-mounted harnesses for pupil and Head
Start transportation, is adopted indefinitely. The devices must bear a
permanent warning label to be excluded. See Figure 12, infra. The label
must be placed on the part of the restraint that attaches the harness
to the vehicle seat back, and must be visible when the harness is
installed. It must contain a pictogram and the following statements:
``WARNING! This restraint must only be used on school bus seats. Entire
seat directly behind must be unoccupied or have restrained occupants.''
The reference in today's rule to ``school bus seats'' accommodates the
possible use of seat-mounted harnesses on multifunction school activity
buses as defined in Sec. 571.3(b) and alternate vehicles as defined by
the Department of Health and Human Services. A school bus seat is a
seat in a vehicle that meets FMVSS No. 222, ``School Bus Seating and
Crash Protection'' (49 CFR 571.222).
To implement the exclusion, a definition of ``harness'' is added to
the standard. The definition of a harness is

[[Page 10933]]

``a combination pelvic and upper torso child restraint system that
consists primarily of flexible material, such as straps, webbing or
similar material, and that does not include a rigid seating structure
for the child.'' In developing the definition, we considered the
definition of a Type 3 seat belt assembly that FMVSS No. 209 once
had.\5\ The definition was as follows: ``a combination pelvic and upper
torso restraint for persons weighing not more than 50 pounds or 23
kilograms and capable of sitting upright by themselves, that is
children in the approximate range of 8 months to 6 years.'' As noted
previously, we consider the term ``harness,'' to be interchangeable
with the term ``vest,'' which is commonly used to describe seat-mounted
restraints.
---------------------------------------------------------------------------

\5\ The definition was removed in 1981, when the requirements
for child harnesses were moved to Standard No. 213.
---------------------------------------------------------------------------

This rule also makes several other amendments to FMVSS No. 213
relating to the exclusion. The table to S5.1.3.1(a), which specifies
the head and knee excursion requirements, is amended to include
requirements for harnesses for use on school bus seats. The table to
S5.3.2 is amended to indicate that harnesses labeled per S5.3.1(b)(1)
through S5.3.1(b)(3) and Figure 12 must meet the relevant requirements
of the standard when attached with a seat mount back.
In addition, the dynamic test procedures of the standard are
amended to specify procedures for testing seat-mounted harnesses. The
procedures had reflected attachment of add-on child restraints by a lap
belt, lap belt and tether, lap and shoulder belt, and child restraint
anchorage system. Seat-mounted harnesses are not attached by those
means. Accordingly, S6.1.2(a)(1)(i)(A) and S6.1.2(d)(1)(ii) are revised
to include specifications appropriate for the manner in which seat-
mounted harnesses are attached.
This rule also amends FMVSS No. 213 by adding a requirement
(S5.6.1.11) that the printed instructions accompanying these harnesses
must include the warning statement: ``WARNING! This restraint must only
be used on school bus seats. Entire seat directly behind must be
unoccupied or have restrained occupants.'' The purpose of this
requirement is to increase the likelihood that the seat back will not
be overloaded during a frontal crash by the forward movement of
unrestrained passengers who were sitting in the seat immediately behind
the child restrained in a harness. As explained above, the term
``restrained'' refers to the use of any type of user appropriate
vehicle restraint or child restraint system. This includes lap belts,
lap and shoulder belts, booster seats, child seats, and harnesses.

VI. Rulemaking Analysis and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

NHTSA has considered the impact of this rule under Executive Order
12866 and the Department of Transportation's regulatory policies and
procedures. This rulemaking document was not reviewed under E.O. 12866,
``Regulatory Planning and Review.'' This action has been determined to
be ``nonsignificant'' under the Department of Transportation's
regulatory policies and procedures. The agency concludes that the
impacts of the amendments are so minimal that preparation of a full
regulatory evaluation is not required. The rule will not impose any new
requirements or costs on manufacturers, but instead will permit
manufacturers to produce a type of harness if the harness bears a label
regarding how the restraint should be used.

B. Regulatory Flexibility Act

NHTSA has considered the impacts of this rulemaking action under
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). I certify that
the amendment will not have a significant economic impact on a
substantial number of small entities. The rule will not impose any new
requirements or costs on manufacturers, but instead will permit
manufacturers to produce a type of harness, a seated-mounted harness,
if the harness bears a label regarding how the restraint should be
used. We anticipate that the seat-mounted harnesses will be sold to
school districts and to other pupil transportation providers. NHTSA has
learned of the existence of two manufacturers, both of which are small
businesses. The agency believes that this rule will not have a
significant impact on these businesses. Adding a warning label to a
harness strap will cost approximately eight cents per harness. Since
the cost of the label is minimal, purchasers will not be substantially
affected by the rule.

C. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, 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 document does
not establish any new information collection requirements.

D. National Environmental Policy Act

NHTSA has analyzed this amendment for the purposes of the National
Environmental Policy Act and determined that it will not have any
significant impact on the quality of the human environment.

E. Executive Order 13132 (Federalism)

Executive Order 13132 requires NHTSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implications'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, the agency may not issue a
regulation with Federalism implications, that imposes substantial
direct costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or the agency consults
with State and local officials early in the process of developing the
proposed regulation. NHTSA may also not issue a regulation with
Federalism implications and that preempts State law unless the agency
consults with State and local officials early in the process of
developing the proposed regulation.
The agency has analyzed this rulemaking action in accordance with
the principles and criteria contained in Executive Order 13132 and has
determined that it does not have sufficient federalism implications to
warrant consultation with State and local officials or the preparation
of a federalism summary impact statement. The rule will have no
substantial effects on the States, or on the current Federal-State
relationship, or on the current distribution of power and
responsibilities among the various local officials.

F. 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

[[Page 10934]]

imposes a higher level of performance and applies only to vehicles
procured for the State's use. Section 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.

G. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272)
directs us to use voluntary consensus standards in regulatory
activities unless doing so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies, such as the Society of Automotive
Engineers (SAE). The NTTAA directs us to provide Congress, through OMB,
explanations when we decide not to use available and applicable
voluntary consensus standards.
The agency searched for, but did not find any voluntary consensus
standards relevant to this final rule.

H. Unfunded Mandates Reform Act

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal 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 in any one year (adjusted for inflation with base
year of 1995). Before promulgating a rule for which a written statement
is needed, section 205 of the UMRA generally requires NHTSA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows NHTSA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
agency publishes with the final rule an explanation why that
alternative was not adopted.
This final rule will not impose any unfunded mandates under the
Unfunded Mandates Reform Act of 1995. This rule will not result in
costs of $100 million or more to either State, local, or tribal
governments, in the aggregate, or to the private sector. Thus, this
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.

I. 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 document
to find this action in the Unified Agenda.

J. 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) or you may visit
http://dms.dot.gov.

List of Subjects in 49 CFR Part 571

Motor vehicle safety, Reporting and recordkeeping requirement,
Tires.

PART 571--[AMENDED]

0
In consideration of the foregoing, NHTSA amends 40 CFR part 571 as set
forth below.
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:
0
(a) Amending S4 by adding, in alphabetical order, a definition of
``harness'';
0
(b) Revising the ``Table to S5.1.3.1(a)--Add-On Forward-Facing Child
Restraints'', and revising S5.3.1 and S5.3.2 (including the table in
S5.3.2);
0
(c) Adding S5.6.1.11;
0
(d) Revising S6.1.2(a)(1)(i)(A) and S6.1.2(d)(1)(ii); and
0
(e) Adding Figure 12 at the end of Sec. 571.213.
The revised and added sections read as follows:

Sec. 571.213 Standard No. 213; Child restraint systems.

* * * * *
S4. Definitions.
* * * * *
Harness means a combination pelvic and upper torso child restraint
system that consists primarily of flexible material, such as straps,
webbing or similar material, and that does not include a rigid seating
structure for the child.
* * * * *
S5.1.3.1 * * *

Table to S5.1.3.1(a)--Add-On Forward-Facing Child Restraints
----------------------------------------------------------------------------------------------------------------
Explanatory note: In the
test specified in 2nd
column, the child restraint
When this type of child restraint is tested in these excursion limits is attached to the test
accordance with-- apply seat assembly in the manner
described below, subject to
certain conditions
----------------------------------------------------------------------------------------------------------------
Harnesses, backless booster seats S6.1.2(a)(1)(i)(A).... Head 813 mm;.......... Attached with lap belt; in
and restraints designed for use by Knee 915 mm........... addition, if a tether is
physically handicapped children. provided, it is attached.
Harnesses labeled per S5.3.1(b)(i) S6.1.2(a)(1)(i)(A).... Head 813 mm;.......... Attached with seat back
through S5.3.1(b)(iii) and Figure Knee 915 mm........... mount.
12.
Belt-positioning seats............. S6.1.2(a)(1)(ii)...... Head 813 mm;.......... Attached with lap and
Knee 915 mm........... shoulder belt; no tether
is attached.
All other child restraints, S6.1.2(a)(1)(i)(B).... Head 813 mm;.......... Attached with lap belt; no
manufactured before September 1, Knee 915 mm........... tether is attached.
1999.
All other child restraints, S6.1.2(a)(1)(i)(B).... Head 813 mm;.......... Attached with lap belt; no
manufactured on or after September Knee 915 mm........... tether is attached.
1, 1999.

[[Page 10935]]

S6.1.2(a)(1)(i)(D) Attached to lower
(beginning September anchorages of child
1, 2002). restraint anchorage
system; no tether is
attached.
S6.1.2(a)(1)(i)(A).... Head 720 mm;.......... Attached with lap belt; in
Knee 915 mm........... addition, if a tether is
provided, it is attached.
S6.1.2(a)(1)(i)(C) Attached to lower
(beginning September anchorages of child
1, 2002). restraint anchorage
system; in addition, if a
tether is provided, it is
attached.
----------------------------------------------------------------------------------------------------------------

* * * * *
S5.3.1 Add-on child restraints shall meet either (a) or (b), as
appropriate.
(a) Except for components designed to attach to a child restraint
anchorage system, each add-on child restraint system must not have any
means designed for attaching the system to a vehicle seat cushion or
vehicle seat back and any component (except belts) that is designed to
be inserted between the vehicle seat cushion and vehicle seat back.
(b) Harnesses manufactured for use on school bus seats must meet
S5.3.1(a) of this standard, unless a label that conforms in content to
Figure 12 and to the requirements of S5.3.1(b)(1) through S5.3.1(b)(3)
of this standard is permanently affixed to the part of the harness that
attaches the system to a vehicle seat back. Harnesses that are not
labeled as required by this paragraph must meet S5.3.1(a).
(1) The label must be plainly visible when installed and easily
readable.
(2) The message area must be white with black text. The message
area must be no less than 20 square centimeters.
(3) The pictogram shall be gray and black with a red circle and
slash on a white background. The pictogram shall be no less than 20 mm
in diameter.
S5.3.2 Each add-on child restraint system shall be capable of
meeting the requirements of this standard when installed solely by each
of the means indicated in the following table for the particular type
of child restraint system:

Table for S5.3.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Means of installation
-----------------------------------------------------------------------------------------------------
Child restraint
Type of add-on child restraint system Type 1 seat belt Type 1 seat belt anchorage system Type II seat belt Seat
assembly assembly plus a tether (effective September 1, assembly back
anchorage, if needed 2002) mount
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harnesses labeled per S5.3.1(b)(1) through .................. ........................ ........................ .................. X
S5.3.1(b)(3) and Figure 12.......................
Other harnesses................................... .................. X
Car beds.......................................... X
Rear-facing restraints............................ X ........................ X
Belt-positioning seats............................ .................. ........................ ........................ .................. X
All other child restraints........................ X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
S5.6.1.11 For harnesses that are manufactured for use on school bus
seats, the instructions must include the following statements:
``WARNING! This restraint must only be used on school bus seats.
Entire seat directly behind must be unoccupied or have restrained
occupants.'' The labeling requirement refers to a restrained occupant
as: an occupant restrained by any user appropriate vehicle restraint or
child restraint system (e.g. lap belt, lap and shoulder belt, booster,
child seat, harness . . .).
* * * * *
S6.1.2 Dynamic test procedure.
(a) * * *
(1) * * *
(i) * * *
(A) Install the child restraint system at the center seating
position of the standard seat assembly, in accordance with the
manufacturer's instructions provided with the system pursuant to
S5.6.1, except that the standard lap belt is used and, if provided, a
tether strap may be used. For harnesses that bear the label shown in
Figure 12 and that meet S5.3.1(b)(1) through S5.3.1(b)(3), attach the
harness in accordance with the manufacturer's instructions provided
with the system pursuant to S5.6.1, i.e., the seat back mount is used.
* * * * *
(d) * * *
(1) * * *
(ii) All Type I belt systems used to attach an add-on child
restraint system to the standard seat assembly, and any provided
additional anchorage belt (tether), are tightened to a tension of not
less than 53.5 N and not more than 67 N, as measured by a load cell
used on the webbing portion of the belt. All belt systems used to
attach a harness that bears the label shown in Figure 12 and that meets
S5.3.1(b)(i) through S5.3.1(b)(iii) are also tightened to a tension of
not less than 53.5 N and not more than 67 N, by measurement means
specified in this paragraph.
* * * * *

[[Page 10936]]

[GRAPHIC] [TIFF OMITTED] TR09MR04.023

Issued on: March 3, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-5168 Filed 3-8-04; 8:45 am]
BILLING CODE 4910-59-P