[Federal Register Volume 69, Number 178 (Wednesday, September 15, 2004)]
[Rules and Regulations]
[Pages 55517-55531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20714]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA 2004-19032]
RIN 2127-AG36


Federal Motor Vehicle Safety Standards; Power-Operated Window, 
Partition, and Roof Panel Systems

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends our standard for power-operated 
windows, partitions, and roof panel systems to require that switches 
for these windows and other items in new motor vehicles be resistant to 
accidental actuation that causes those items to begin to close. The 
purpose of this amendment is to reduce the number of injuries and 
fatalities to people, especially children, that occur when they 
unintentionally close those power-operated items on themselves by 
accidentally leaning against or kneeling or standing on the switch or 
when other occupants accidentally actuate the switch in that manner.
    There are simple, effective and inexpensive manufacturing solutions 
that vehicle manufacturers can use to meet the requirements of this 
final rule. Vehicle manufacturers could comply by shielding or 
recessing their switches or by designing them so that pressing on them 
in the manner described above will not cause these windows and other 
items to begin to close.
    Although they need not do so, manufacturers may choose instead to 
address the problem through the use of more advanced technology. 
Manufacturers that install power-operated windows, partitions or roof 
panel systems meeting the automatic reversal requirements of the 
standard need not comply with the requirements of this final rule.
    In this document, the agency is also denying two petitions for 
rulemaking requesting that the agency require power windows in new 
vehicles to be equipped with an automatic reversal system or other 
anti-entrapment feature.

DATES: Effective Date: The amendment made in this final rule is 
effective November 15, 2004.
    Compliance Date: This final rule becomes mandatory for all vehicles 
manufactured for sale in the U.S. on or after October 1, 2008. 
Voluntary compliance is permitted before that date.
    Petitions: If you wish to submit a petition for reconsideration for 
this rule, your petition must be received by November 1, 2004.

ADDRESSES: Petitions for reconsideration should refer to the docket 
number above and be submitted to: Administrator, Room 5220, National 
Highway Traffic Safety Administration, 400 Seventh Street, SW., 
Washington, DC 20590.
    See the SUPPLEMENTARY INFORMATION portion of this document (Section 
X; Rulemaking Analyses and Notice) for DOT's Privacy Act Statement 
regarding documents submitted to the agency's dockets.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may call Mr. 
Michael Pyne, Office of Crash Avoidance Standards (Telephone: 202-366-
2720) (Fax: 202-366-4329).
    For legal issues, you may call Mr. Eric Stas, Office of the Chief 
Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820).
    You may send mail to these officials at National Highway Traffic 
Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Background
    A. Requirements of FMVSS No. 118
    B. Power Window Switches in Motor Vehicles
III. Petitions for Rulemaking
    A. The Moore Petition
    B. The Little Petition
    C. Center for Auto Safety Petition
IV. Notice of Proposed Rulemaking and Public Comments
    A. The NPRM
    B. Public Comments on the NPRM
V. Post-Comment Period Developments
VI. Summary of the Safety Problem
VII. The Final Rule
    A. Decision To Move to Final Rule
    B. Summary of the Requirements
    C. Effectiveness of New Switch Requirements
    D. Test Device and Methodology
    E. Orientation and Placement of Switches
    F. Automatic Reversal
VIII. Denial of Petitions for Rulemaking
IX. Methods of Compliance
X. Lead Time and Compliance Date
XI. Benefits
XII. Costs
XIII. Rulemaking Analyses and Notices

[[Page 55518]]

I. Executive Summary

    This final rule amends Federal Motor Vehicle Safety Standard No. 
118, Power-Operated Window, Partition, and Roof Panel Systems, to add a 
requirement for new vehicles that will make switches for those systems 
resistant to accidental actuation, particularly by children.\1\ These 
amendments to the standard apply to passenger cars, multipurpose 
passenger vehicles, and trucks with a gross vehicle weight rating 
(GVWR) of 4,536 kg (10,000 lbs.) or less.\2\
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    \1\ We note this rulemaking does not address incidents in which 
one occupant intentionally operates the switch by hand and either 
knowingly or unknowingly entraps another person.
    \2\ For the sake of simplicity, the preamble to this final rule 
collectively refers to these three types of systems--power windows, 
interior partitions, and power roof panels (sunroofs)--as ``power 
windows,'' all of which are covered by FMVSS No. 118. Power roof 
panels and partitions are similar to power windows in their 
operation. However, any distinctions in applicability among the 
three types of systems will be delineated clearly in both the 
preamble and the amended regulatory text.
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    Available information indicates that a small, but persistent 
problem of injuries and fatalities are occurring when vehicle occupants 
(particularly young children) unintentionally close power windows on 
themselves or other occupants when they accidentally actuate power 
window switches by leaning against or kneeling or standing on them. 
Although these power window incidents are generally low-frequency 
events, averaging about 1.5 deaths per year in recent years (1999-
2002), there is a higher incidence in some individual years (e.g., five 
deaths of this type were recorded in 1998, and a similar number have 
been reported in 2004).
    These tragic incidents continued to occur despite other safeguards 
in the standard (i.e., requirement in S4 that power windows will only 
operate when the key is in the ignition \3\ or when the presence of an 
adult can be presumed for some other reason, e.g., the key has been 
removed, but neither vehicle front door has been opened since the 
removal of the key).
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    \3\ In adopting that provision, the agency reasoned that the key 
would normally be in the ignition only if the driver were still in 
or near the vehicle, and thus in a position to supervise the 
operation of the vehicle windows.
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    Research has led the agency to conclude that switch design is 
related to such injuries. In the accidental actuation incidents for 
which the type of switch is known, virtually all of the vehicles 
involved had ``rocker'' and ``toggle'' switches, which are much more 
prone to accidental actuation as compared to pull up-push down type 
switches that must be lifted to close the window.\4\ If the accidental 
pressure of a knee, foot or elbow actuated a pull up-push down switch, 
it would cause the window to open, not close. Rocker and toggle 
switches are also much more prone to accidental actuation if they are 
not shielded or recessed so that they cannot readily be contacted by a 
foot, knee or elbow.
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    \4\ ``Rocker'' switches are designed to pivot on a center hinge, 
effectively operating like a ``see-saw.'' ``Toggle'' switches 
operate using small levers that push back and forth to open and 
close a window. As a result of their design, downward pressure 
(e.g., caused by a child kneeling or leaning) on a rocker or toggle 
switch could result in a window's either opening or closing, 
depending upon how such force is applied.
    In contrast, ``push-pull'' switches function such that pressing 
down on the switch will only cause the window to open, but the 
switch must be actively pulled up in order to close the window. 
Thus, accidental pressing with a hand, knee or foot on a push-pull 
switch could not cause a window to close, although it might cause it 
to open.
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    Accordingly, the agency has decided to amend FMVSS No. 118 by 
adding a new paragraph S6, specifying that power window switches in new 
motor vehicles subject to the standard must pass an accidental 
actuation test that uses a test device simulating a child's knee. The 
test device is a hemisphere with a smooth, rigid surface and a radius 
of 20 mm  1 mm. When the test device is applied with a 
force not to exceed 135 Newtons (30 lbs.) to any switch or the housing 
surrounding a switch that can be used to close a power-operated window, 
partition, or roof panel, such application must not cause the window, 
partition, or roof panel to begin to close.
    The accidental actuation test in S6 does not apply to switches that 
are both roof-mounted and incapable of ``one-touch'' closure. In 
addition, they do not apply to power-operated systems that meet the 
automatic reversal requirements of S5 of the Standard. We note that 
while a number of vehicles have automatic reversal systems, we are not 
aware of any that are certified to meet the requirements of S5. 
However, we believe that exclusion from the accidental actuation test 
in S6 would be appropriate for any such systems, because either 
inadvertent actuation would not occur or entrapment would be prevented 
by the system.
    We believe that the accidental actuation test in S6 provides a 
simple and effective means of evaluating power window systems and will 
enhance the protection of people, especially children, thereby 
furthering NHTSA's mission of preventing motor vehicle-related deaths 
and injuries. We estimate that, on average, at least one child fatality 
and one serious injury (e.g., brain damage from near suffocation) per 
year could be prevented by the requirements of this final rule. The 
agency believes that this estimate is conservative because, in making 
our estimate, we excluded cases in which more than one child was in the 
vehicle (because both inadvertent switch actuation and intentional 
switch actuation are possible causes of the injury in those cases) and 
cases in which the type of switch was unknown. If further information 
on these cases were available, it might indicate that the estimated 
benefits should be higher.
    There are simple, effective, and inexpensive manufacturing 
solutions that vehicle manufacturers can use to meet the requirements 
of this final rule. Vehicle manufacturers could comply by shielding or 
recessing their switches or by designing them so that pressing on them 
in the manner described above will not cause these windows and other 
items to close. Many vehicles already incorporate those solutions.
    Although they need not do so, manufacturers may choose to address 
the problem through more advanced technology. Manufacturers need not 
comply with the new requirement if they use power-operated windows, 
partitions or roof panel systems meeting the automatic reversal 
requirements of the standard.
    All new light vehicles produced on or after October 1, 2008, for 
sale in the U.S. must comply with the amended power window switch 
requirements in this final rule. The agency believes that this four-
year lead time will allow manufacturers to incorporate the required 
changes into their vehicles in accordance with their normal production 
cycles. As a result, the cost impacts of this rule should be close to 
zero.
    Further, this document denies two petitions for rulemaking 
requesting that the agency mandate the installation of automatic 
reversal systems that comply with the requirements of S5 in all new 
vehicles. We have reached this decision because much of the potential 
benefit that might be provided by those systems will instead be 
provided by the accidental actuation test. Further, while the cost of 
better switches will be negligible, the cost of automatic reversal 
systems is significant.

II. Background

Requirements of FMVSS No. 118

    Federal Motor Vehicle Safety Standard (FMVSS) No. 118, Power-
Operated Window, Partition, and Roof Panel Systems, regulates power-
operated windows, partitions, and roof panels by specifying 
requirements to

[[Page 55519]]

reduce the likelihood of death or injury from their accidental 
operation. As a matter of particular concern, the standard addresses 
the threat to unsupervised children of being strangled or suffering 
limb-crushing injuries by closing power windows. The standard applies 
to passenger cars, multipurpose passenger vehicles, and trucks with a 
gross vehicle weight rating (GVWR) of 4,536 kg (10,000 lbs.) or less.
    When the standard was first adopted, it required that activation of 
power windows be linked to the vehicle's ignition lock. The standard 
prohibited activation of power windows unless the vehicle's ignition 
was turned to the ``On,'' ``Start,'' or ``Accessory'' position. The 
agency presumed that making the presence of the ignition key a 
precondition to power window activation would help ensure that a driver 
would be present to provide adult supervision and also would provide a 
simple means of disabling the power windows in a parked vehicle (i.e., 
key removal).
    Since its initial adoption, FMVSS No. 118 has undergone periodic 
revision in order to accommodate technological developments related to 
power window systems. For example, the standard has been amended to 
permit power windows to close in certain situations in which the key is 
not in the ignition, but the existence of adult supervision could be 
presumed for other reasons (see section S4 of FMVSS No. 118).
    In the most recent rulemaking, which was in 1991, NHTSA responded 
to the interest of manufacturers in offering remote controls for window 
closing (see 56 FR 15290 (April 16, 1991)). When amending the standard, 
the agency was mindful that the unrestricted allowance of remote 
controls, especially ones that activated windows using radio frequency 
signals that can penetrate obstructing walls, could pose a danger to 
child occupants because the person activating the window might not be 
able to see a child in the window opening. Therefore, to help ensure 
the proximity of a supervising person, the agency amended the standard 
to permit power windows to be operable through the use of remote 
controls only if the controls had a very limited range (i.e., not more 
than 6 meters (m) (20 ft)). A longer range, up to 11 m (36 ft), was 
permitted for controls that were operable only if there were an 
unobstructed line of sight between the control and the vehicle.
    Another condition enumerated in section S4 allows power windows to 
operate in the interval after ignition key removal but before either 
front door of the vehicle is opened. Another condition allows windows 
to close by use of a key lock on the outside of the vehicle. Windows 
are also permitted to close if they initially are open only 4 mm (0.16 
in) (i.e., to facilitate closing of doors on a vehicle with an air-
tight occupant compartment).
    Section S5 makes an exception to the allowable conditions for power 
window operation listed in section S4 if the vehicle is equipped with 
an automatic reversal or ``anti-entrapment'' feature that complies with 
specified operational force levels. In adopting this exception, the 
agency reasoned that the provisions permitting remote control of a 
power window need not be premised on the likely proximity of 
supervision, if the window closing system itself could sense the 
child's hand or head when it became trapped between the window and the 
window frame, and thereupon stop and reverse to release the child. 
Therefore, the agency established a provision permitting power windows 
equipped with an automatic reversal system to be closed in any manner 
(e.g., with or without a key) desired by the manufacturer. It also 
permitted remote controls of unrestricted range, as well as new 
products (e.g., devices to open and close windows automatically in 
response to heat and rain), if there is an automatic reversal system.
    However, we note here that the present rulemaking action was deemed 
necessary because deaths and serious injuries involving power windows 
continue to occur, despite the safeguards already incorporated in the 
standard. The complete success of the earlier safeguards is dependent 
on children not being left unattended in vehicle, or, if they are, on 
removal of the ignition key. However, power window injuries and 
fatalities are occurring in cases where children were left alone in 
vehicles with keys in the ignition. These tragic injuries and loss of 
life could have been prevented if a supervising adult had removed the 
key from the ignition, but the persistent recurrence of such incidents 
involving children have led us to the conclusion that the additional 
protections set forth in this rulemaking are necessary.

Power Window Switches in Motor Vehicles

    Prior to the amendments contained in this final rule, FMVSS No. 118 
has not regulated the switches provided in motor vehicle occupant 
compartments for operating power windows. In vehicles equipped with 
power windows, those switches generally are of three types: (1) 
``Rocker'' switches, (2) ``toggle'' switches, and (3) ``push-pull'' 
switches.
    Power windows with rocker switches, which are very common in 
current motor vehicles, are particularly susceptible to inadvertent 
closure because almost any contact with the switch can cause the window 
to operate. Power windows with toggle switches are similarly 
susceptible to inadvertent actuation.
    In contrast, power windows operated by push-pull (fishhook-style) 
switches are considered resistant to inadvertent closure because 
incidental contact with those switches will not readily cause a window 
to begin to close, although it may cause a window to open. Only by 
actively pulling upwards on push-pull switches is it possible to 
operate such windows in the closing direction.
    Protection from inadvertent actuation of power windows also may 
depend on switch location and orientation in a vehicle. For example, a 
rocker switch that is set into a recess on a vertical door panel is 
inherently less susceptible to casual contact by occupants, especially 
a child standing or kneeling on a door armrest while being partially 
extended outside of the open window, than is a switch mounted flush on 
a horizontal surface. Likewise, console-mounted switches for sunroofs 
are very susceptible to inadvertent actuation as compared to switches 
located on the vehicle's headliner, because a child attempting to look 
out of an open sunroof would very likely stand on the console to do so.

III. Petitions for Rulemaking

The Moore Petition

    On September 26, 1995, Michael Garth Moore, an attorney in 
Hilliard, Ohio, submitted a petition for rulemaking \5\ to NHTSA 
requesting that the agency amend FMVSS No. 118 in two areas. First, the 
petitioner asked the agency to require that all power windows be 
equipped with an anti-entrapment safety feature, so that a vehicle's 
windows would stop and reverse direction if they were to encounter an 
obstruction while closing.
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    \5\ Docket No. NHTSA-2004-17216-21. (The original docket number 
for this rulemaking was Docket No. NHTSA-96-117. However, with the 
advent of NHTSA's electronic docketing system, available at http://dms.dot.gov/, all relevant materials discussed in this notice have 
also been included in Docket No. NHTSA-2004-17216.)
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    In his petition, Mr. Moore stated that automatic reversal 
technology is of proven effectiveness and is economically feasible for 
mandatory installation. The petitioner further stated that, while it 
was difficult to determine the magnitude of child injuries and 
fatalities related to power windows, the prevention of even one

[[Page 55520]]

catastrophic incident warranted action, given the minimal costs 
associated with such a requirement.
    However, the agency denied that request primarily because of its 
high cost, and for other reasons associated with the limitations of 
force-sensing automatic reversal systems (discussed in further detail 
subsequently).
    Second, the petitioner requested that the agency modify FMVSS No. 
118 to prevent the inadvertent closure of power windows by requiring 
manufacturers to protect switches from unintended operation either by 
shielding them or by placing them in a less accessible location (e.g., 
in a recess in a door panel). In addition, Mr. Moore asked that 
manufacturers be required to design switches such that ``downward 
pressure on any control can only cause the window/partition/roof panel 
to open,'' thereby preventing inadvertent closure. The petitioner 
argued that such a requirement would protect a child left in a vehicle 
with its ignition enabled, because the child would no longer be at risk 
of inadvertently closing a power window merely by kneeling or standing 
on a power window switch.
    NHTSA granted that portion of the Moore petition related to safer 
power window switches. Accordingly, the agency initiated rulemaking on 
this topic, as discussed in further detail below.

The Little Petition

    On January 13, 2003, David W. Little, an attorney in Oklahoma City, 
Oklahoma, submitted a petition for rulemaking \6\ to NHTSA requesting 
essentially the same rulemaking actions contained in the Moore 
petition. Mr. Little represented the families of five victims of power 
window accidents, and he petitioned the agency on behalf of the Zoie 
Foundation. The Little petition sought to amend FMVSS No. 118 to 
require that all new U.S. vehicles be equipped with automatic reversal 
systems and with power window switches that are resistant to 
inadvertent actuation.
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    \6\ Docket No. NHTSA-2004-17216-20.
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    To supplement his petition, Mr. Little provided a ``sampling'' of 
cases, including various records such as death certificates, coroners' 
reports, and police investigation reports for five instances of 
children either severely injured or killed by power windows. In 
addition, the petitioner provided news articles, copies of comments to 
NHTSA's public docket, and manufacturers' information on automatic 
reversal systems (e.g., information from Brose and Omron). The Little 
petition also included a listing of consumer complaints through 
February 1996 from NHTSA's Office of Defects Investigation (ODI) 
database, which reported 107 power window complaints; twelve of these 
complaints involved entrapment, out of about 350,000 total consumer 
complaints. These complaints included some severe injuries (e.g., limb 
amputation) and fatalities, several of which involved children.
    We decided to address the Little petition in this document.

The Center for Auto Safety Petition

    On August 19, 2003, a coalition of petitioners consisting of the 
Center for Auto Safety (CAS), Public Citizen, Kids and Cars, Advocates 
for Highway and Automotive Safety, the Consumer Federation of America, 
Consumers for Auto Reliability and Safety, the Zoie Foundation, and the 
Trauma Foundation, submitted a petition for rulemaking \7\ (hereinafter 
referred to as the CAS petition) to NHTSA requesting essentially the 
same rulemaking actions contained in the earlier Moore and Little 
petitions.
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    \7\ Docket No. NHTSA-2004-17216-19.
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    The CAS petition discussed the history of the agency's power window 
rulemaking in some detail, and it included a list of 33 fatalities (all 
children) killed in power window accidents since FMVSS No. 118 first 
took effect in 1971. In its petition, CAS stated, ``More power window 
deaths have been recorded in the last two years than in any other two-
year period since 1971.'' CAS claimed that the rate of power window 
accidents has increased as power windows have proliferated, stating 
that the 18 fatalities recorded in the last seven years are more than 
the 15 fatalities recorded over the previous 25 years. CAS provided 
data indicating that power window installations on North American-
produced vehicles numbered 1.9 million in 1971 (19.2 percent of the 
market), but grew to 7.9 million (62 percent of the market) in 1994.
    In support of its requests, CAS mentioned a 1997 NHTSA technical 
report that extrapolated from 10 actual cases of power window-related 
injuries and estimated that annually, there are 499 power window-
related incidents nationwide that result in emergency room visits.\8\ 
That report included incidents of both inadvertent and intentional 
actuation of power window switches. The report found that most of these 
injuries were minor (i.e., 91% of those injured persons were treated 
and released without hospitalization), and none of the actual 10 cases 
involved a fatality.
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    \8\ ``Injuries Associated With Specific Motor Vehicle Hazards: 
Radiators, Batteries, Power Windows, and Power Roofs,'' (DOT 808 
598) (July 1997) (Docket No. NHTSA-2004-17216-29).
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    The CAS petition also argued that with an automatic reversal system 
in place, defects in power windows could be prevented from becoming 
deadly. Petitioners provided the example of three child fatalities 
associated with a defect case involving Model Year 1982-1986 Jeep 
Wagoneers, which, in certain cases, the failure of a key-operated 
switch on the tailgate caused the tailgate windows to close 
uncontrollably. The CAS petition argued that injuries and fatalities in 
the Wagoneer cases could have been prevented, had the vehicles been 
equipped with power window automatic reversal systems.
    The CAS petition also suggested that other power-operated features, 
such as power sliding doors on minivans, are similarly likely to 
proliferate. Accordingly, CAS and the other petitioners urged NHTSA to 
be proactive in this area by establishing safety performance standards 
to protect children from entrapment and injury.
    In addition, the CAS petition argued that automatic reversal 
technology for power windows is both available and sufficiently 
inexpensive to be mandated in new vehicles. The petition cited a letter 
from Nartron Corp. estimating the cost for a proprietary anti-
entrapment automatic reversal system using capacitive sensing 
technology to be $12.50 per vehicle window. The CAS petition analogized 
the technology for power window automatic reversal systems to that 
which the Consumer Product Safety Commission (CPSC) has required on 
residential garage door-closing systems since 1991. CAS stated that the 
CPSC standard was later upgraded in 1993 and now requires automatic 
garage door to have two types of sensors to prevent bodily entrapment 
(e.g., pressure sensors on their leading edge and ``electronic 
eyes'').\9\
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    \9\ See 16 CFR Part 1211 (CPSC Safety Standard for Automatic 
Residential Garage Door Operators).
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    We decided to address the CAS petition in this document.

IV. Notice of Proposed Rulemaking (NPRM) and Public Comments

The NPRM

    On November 15, 1996, NHTSA published a notice of proposed 
rulemaking (NPRM) in the Federal Register (61 FR 58504) proposing to 
amend FMVSS No. 118 to require each power-operated window, interior 
partition, and roof panel in a motor vehicle to be equipped with a 
switch designed so that contact by a form

[[Page 55521]]

representing a child's knee would not cause inadvertent closure.
    As noted previously, in the NPRM, the agency denied the Moore 
petition's request to require that all power windows be equipped with 
an automatic reversal feature. NHTSA concluded that such a requirement 
would be unreasonably expensive (i.e., costing approximately $100 per 
window or $400 per vehicle) and not practicable with the technology 
(i.e., force-sensing) then in existence (e.g., such devices prevent 
reliable window closure in the presence of snow, ice, and even the 
friction of cold or tight weather stripping). The reasoning for the 
agency's denial of the request for an automatic reversal requirement 
was explained in detail in the NPRM (see 61 FR 58504, 58505-06).
    However, the agency decided to grant the petitioner's request to 
initiate rulemaking to amend FMVSS No. 118 in other ways (e.g., 
shielding switches and using switches that, if accidentally leaned on, 
would open, not close windows) to provide additional protection from 
inadvertent closure of power windows. At the time of the NPRM, NHTSA 
recognized the potential safety problem raised in the Moore petition 
and had collected a number of anecdotal reports of power window 
injuries and fatalities. In light of the anticipated safety benefits 
associated with remedying this problem, NHTSA decided to issue an NPRM 
proposing new switch requirements. Specifically, the agency proposed 
that if a switch used to close a power-operated window is contactable 
by a rigid spherical ball 25 mm (1 inch) in diameter, pressing that 
ball in a nondestructive way against the switch in any direction must 
not cause the window to begin to close. A 25 mm (1 inch) ball was 
considered by the agency to be generally representative of the bent 
knee of a child under the age of six.
    The agency proposed this amendment for several reasons, as 
explained in the NPRM. First, the agency stated its belief that the 
proposed requirements would offer a safety benefit in reducing the 
number of fatalities and injuries resulting from inadvertent closure of 
power windows. The information available to NHTSA demonstrated that 
such injuries were occurring, and children's natural curiosity, coupled 
with the ongoing problem of children being left unsupervised in 
vehicles, suggested that the problem would be likely to continue absent 
regulatory intervention.
    Further, the agency expressed its belief in the NPRM that the 
proposed requirement would be practicable and would result in very 
little cost burden on vehicle manufacturers, particularly if sufficient 
lead time were provided. The required switch modifications could be 
achieved merely by changing the shape of the switches and/or the 
surrounding housing and would not affect any other aspects of the 
operation of the power windows. In addition, the agency noted in the 
NPRM that several major vehicle manufacturers already had incorporated 
push-pull switches or recessed switches across all or some of their 
model lines.

Public Comments on the NPRM

Overview
    Comments on the NPRM were received from 14 entities, including a 
consumer advocacy group, trade associations, automobile manufacturers, 
a manufacturer of power window equipment, and a law firm, as well as 
one individual.\10\
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    \10\ Comments were received from: (1) Advocates for Highway and 
Auto Safety (Advocates); (2) American Automobile Manufacturers 
Association (AAMA); (3) Association of International Automobile 
Manufacturers (AIMA); (4) BMW of North America, Inc. (BMW); (5) Ford 
Motor Company (Ford); (6) American Honda Motor Co., Ltd. (Honda); 
(7) Mitsubishi Motors R&D of America, Inc. (Mitsubishi); (8) 
Mercedes-Benz of North America, Inc. (Mercedes); (9) Nissan North 
America, Inc. (Nissan); (10) Toyota Technical Center USA, Inc. 
(Toyota); (11) Volkswagen of America, Inc. (Volkswagen); (12) Volvo 
Cars of North America, Inc. (Volvo); (13) Brose North America, Inc. 
(Brose); (14) Libbey & Suddock, P.C.; and (15) Mr. Thomas P. 
Flanagan. All comments and other correspondence discussed in this 
notice are available under Docket No. NHTSA-2004-17216.
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    Commenters expressed an array of views on the NPRM, ranging from 
support to opposition. Commenters opposing the proposed amendment 
claimed that the agency had not conducted a sufficiently methodical 
effort to quantify the alleged safety problem or to identify the types 
of switches involved in the few known cases of death or serious injury. 
Generally, these commenters argued that existing safety measures (i.e., 
requiring keys to be in the ignition in order for the power windows to 
operate) are adequate. They also stated that most vehicles also have a 
driver-controlled lock-out for at least the rear windows, if not all 
the windows. In addition, these commenters argued that the agency had 
not provided evidence to demonstrate that the proposed switch 
requirements would achieve the desired goal of preventing power window 
entrapment incidents.
Specific Comments
Justification for the Regulation
    AAMA, AIAM, Volkswagen and Mercedes commented that neither the 
petitioner nor the agency had provided any data demonstrating a safety 
need for the NPRM's proposed requirements, particularly when NHTSA 
itself had acknowledged that manufacturers were voluntarily developing 
and implementing design changes consistent with the agency's regulatory 
goals. Mercedes also argued that the proposed regulatory language is 
overly broad and too vague to address the alleged safety problem. 
Further, Mercedes questioned whether the agency had any data to show 
that push-pull switches are also not susceptible to inadvertent 
actuation by children and suggested that the agency should conduct 
additional research. For all these reasons, Mercedes argued that the 
proposal could not be justified in its present form.
    Volvo's comments acknowledged that an improved design of power 
window switch to make them safer against inadvertent closure could 
provide some added protection to children left unattended in vehicles. 
However, Volvo also questioned whether regulation is necessary, in 
light of the trend toward installation of recessed or lift-up switches 
and the effects of market forces.
    AAMA commented that the agency has not investigated any of the 
reported incidents of power window injury discussed in the NPRM to 
determine whether the proposed regulatory changes would have prevented 
the reported injuries.
    The comments of Mr. Flanagan, an individual, expressed a contrary 
view, stating that the agency should concentrate very seriously on 
enacting regulations that would require push-down/pull-up power window 
switches. Mr. Flanagan asserted that such action would eliminate the 
overwhelming majority of inadvertent power window switch activation 
resulting in serious child injuries.

Test Objectivity

    Advocates for Highway and Auto Safety expressed concern that the 
test procedures for the proposed amendments to FMVSS No. 118 were not 
objective. Specifically, Advocates stated that the rigidity of the test 
ball was not specified, that the term ``nondestructive'' was not 
defined, and that no force level was specified for pressing the 25 mm 
(1 inch) ball against the switch. Mercedes commented that the phrase 
``in a non-destructive manner'' in the regulatory language is 
meaningless and unenforceable.
    Volvo suggested using an alternative test device similar to one 
used in Economic Commission for Europe

[[Page 55522]]

Regulation No. 21,\11\ European Union (EU) Council Directives 74/60/EEC 
\12\ and 78/632.\13\ (These European standards are identical with 
regard to the test device suggested by Volvo.) However, Volvo 
recommended a reduction in the radius of that device from 60 mm (2.4 
inch) (as shown in Annex 7 of ECE Regulation No. 21) to 25 mm (1 inch).
---------------------------------------------------------------------------

    \11\ Uniform Provisions Concerning the Approval of Vehicles With 
Regard to Their Interior Fittings (ECE R21).
    \12\ On the Approximation of the Laws of the Member States 
Relating to the Interior Fittings of Motor Vehicles (Interior Parts 
of the Passenger Compartment Other Than the Interior Rear-View 
Mirrors, Layout of Controls, the Roof or Sliding Roof, the Backrest 
and Rear Part of the Seats) (74/60/EEC).
    \13\ Adapting to Technical Progress Council Directive 74/60/EEC 
On the Approximation of the Laws of the Member States Relating to 
the Interior Fittings of Motor Vehicles (Interior Parts of the 
Passenger Compartment Other Than the Interior Rear-View Mirrors, 
Layout of Controls, the Roof or Sliding Roof, the Backrest and Rear 
Part of the Seats) (78/632/EEC).
---------------------------------------------------------------------------

Size of the Test Ball

    Some commenters raised the issue of whether the size of the 
proposed test ball was appropriate. Specifically, Advocates questioned 
whether a test ball 25 mm (1 inch) in diameter would account for 
inadvertent switch operation as a result of pressure from a child's 
elbow, suggesting that a smaller size would be more representative.
    In contrast, the AAMA argued that the agency had not provided 
adequate evidence to suggest that the 25 mm (1 inch) diameter rigid 
test ball appropriately represents the knee or ``flat softer tissue'' 
of the foot, arm, or leg, of a child under the age of six. AAMA also 
stated that such a small diameter test device could necessitate switch 
designs that would pose operational difficulties for persons with a 
limited range of motion in their hands or fingers (e.g., occupants with 
arthritis or even long fingernails), or with a gloved hand.\14\ 
According to AAMA, such persons may have difficulty operating recessed, 
shielded, or pull-type switches, a situation that may distract from the 
primary driving task and put vehicle occupants at higher risk of being 
injured in a crash.
---------------------------------------------------------------------------

    \14\ Although it did not provide a source for the information, 
AAMA stated that existing data indicate that the average size of a 
95th-percentile male's finger at the first knuckle is 22.8 mm (0.9 
inch). AAMA argued that when this dimensional value is coupled with 
an average glove tolerance of 5-7 mm (0.20-0.28 inch), the 25 mm (1 
inch) testing diameter is rapidly exceeded.
---------------------------------------------------------------------------

    Volvo commented that a 25 mm (1 inch) diameter is too small for the 
test ball to be representative of the bent knee of a child, suggesting 
that 50 mm (2 inches) would be more representative. According to Volvo, 
even some designs of lift-up switches might fail in certain test 
directions if a 25 mm (1 inch) test ball were used, due to the fact 
that a certain amount of space is required around the switch to allow a 
proper grip for fingers.

Exclusions

    Some commenters (BMW, Mitsubishi, Volvo) suggested that vehicles 
equipped with an automatic reversal system that meets the requirements 
of S5 should be excluded from the proposed requirements related to 
switches. BMW stated that this approach would afford manufacturers 
design flexibility without degrading the level of protection for 
occupants in unsupervised conditions.
    Comments from BMW and Toyota also argued that the agency should 
exclude from the new requirements any power window switch that could be 
locked out or disabled by the driver.
    Toyota commented that the proposed new requirements should not 
apply to any switches that can be reached from the front seat by a 5th-
percentile female, arguing that the proposal is too strict and would 
unnecessarily limit design flexibility. Toyota argued that it is 
unnecessary to impose the proposed requirements on switches that can 
easily be observed and reached by the driver (e.g., switches in the 
front passenger compartment), because the driver would be able to 
provide the necessary supervision of those switches' operation.
    Several commenters (Nissan, Mitsubishi, Mercedes, Volvo, 
Volkswagen) commented that the agency should exclude sunroof systems 
from the proposed requirement in cases where the switch is mounted in 
the vertical interior roof lining, because there is virtually no chance 
that a child's knee or foot could activate such a switch. Nissan stated 
that it does not use a ``one-touch'' closure feature and that its roof 
panel switches do not function without the ignition key or if the key 
is in the ``Off'' or ``Accessory'' position.
    Other commenters, such as Honda, argued that the proposed 
requirements should not apply to switches installed on approximately 
vertical surfaces. Honda also stated that switches on a console located 
on the centerline of the vehicle between the front seats should be 
excluded from the proposed requirements, because a small child would 
not have sufficient reach to activate such controls and still be in the 
path of the window. More generally, Honda recommended that the agency 
should consider excluding from the standard's switch requirements those 
switches where the distance between the switch and the window it 
operates is so great that a person could not simultaneously actuate the 
switch and be in a position with the potential for entrapment. Honda 
did not provide any data in support of its proffered proximity-based 
exclusion.

Automatic Reversal Systems

    Some commenters questioned the agency's decision to not propose to 
require automatic reversal systems on new vehicles equipped with power 
windows. For example, Advocates stated that NHTSA had not substantiated 
that automatic reversal systems are ``unreasonably costly'' and had not 
attempted to analyze the costs and benefits of such systems. Brose, a 
manufacturer of automatic power window reversal systems, stated that 
the agency's estimate of consumer costs for such systems, approximately 
$100 per window, overestimates the actual cost, which Brose expected 
would be approximately half of that figure.
    In addition, Advocates challenged the agency's statement that 
automatic reversal technology falls short of desirable performance, in 
that ice, snow, and even friction caused by cold or tight weather 
stripping can prevent window closure. Advocates pointed to the Cadillac 
Catera, a vehicle equipped with an automatic reversal system, as proof 
that such systems are capable of reliable operation and may prevent 
injuries.
    Brose stated that the pinch force-sensing automatic reversal 
systems it produces are able, in most cases, to differentiate adverse 
environmental influences (e.g., ice) from occupant entrapment 
situations and that they can do so reliably for the life of the 
vehicle. Brose also stated that automatic reversal systems may be 
active when subject to variable closure conditions, rather than 
operating only in the ``express-up'' mode, and that such systems also 
are available on rear side windows to protect children.

Lead Time

    Vehicle manufacturers generally commented that they would require 
adequate lead time to incorporate the new switch requirements in their 
production processes. Mitsubishi stated that it would require a four-
year lead time to implement the further design work necessary to comply 
with the requirements in the proposed rule. Mercedes commented that the 
lead time for any such rule should be at least five years, in order to 
reduce its cost impact. Toyota and Volkswagen each stated that the 
necessary modifications to its

[[Page 55523]]

vehicles could be made with a lead time of three years.

V. Post-Comment Period Developments

    As noted in the NPRM, NHTSA has periodically received reports from 
lawyers, doctors, and the public describing deaths and serious injuries 
of unattended children in power window accidents. Additional incident 
reports were provided as part of the Moore petition and in public 
comments (Libbey & Suddock). These incidents occurred despite the fact 
that power window operation in these vehicles was tied directly to the 
ignition locking system. Such reports strongly suggested to the agency 
that additional requirements were needed to protect children.

Injuries Associated With Power Windows

    Data obtained since the NPRM confirms the existence of an ongoing 
problem at a national level. In March 2000, NHTSA responded to 
questions from some commenters on the NPRM about the justification for 
the rulemaking by undertaking a review of death certificates from the 
50 U.S. States for calendar year 1997. As part of that review, the 
agency examined three types of non-crash accidents related to motor 
vehicles, including child (age 10 or younger) fatalities related to 
vehicle windows. This study was augmented with a search for relevant 
news articles in the Lexis-NexisTM database, both to confirm 
cases found in death certificates and to identify additional cases from 
1997 and later years.
    The study looked at the issue of child fatalities in power window 
incidents generally, including any fatalities involving vehicle power 
windows, to obtain an overview of the problem.
    A final report, which was published in May 2002,\15\ states that in 
1997, four deaths of children were associated with vehicle windows, and 
in two of those cases, it was possible to identify the window system in 
question as being a power-operated one. In all of those cases, the 
victims were very young children (three three-year-olds and one four-
year-old).
---------------------------------------------------------------------------

    \15\ ``NHTSA Pilot Study: Non-Traffic Motor Vehicle Safety 
Issues,'' NHTSA (May 6, 2002) (Docket No. NHTSA-2004-17216-27).
---------------------------------------------------------------------------

    In order to confirm the pattern of injuries discussed above, NHTSA 
supplemented this research with a similar review of death certificates 
for calendar year 1998 and updated the Lexis-NexisTM search. 
The resulting report, which was published in May 2004,\16\ yielded the 
following information.
---------------------------------------------------------------------------

    \16\ ``Data Collection Study: Deaths and Injuries Resulting From 
Certain Non-Traffic and Non-Crash Events,'' NHTSA (May 2004) (Docket 
No. NHTSA-2004-17216-28).
---------------------------------------------------------------------------

    The results of the review of the 1998 death certificate data were 
similar to the earlier findings. Four child deaths were recorded as a 
result of interaction with a vehicle window. Of the four cases, two 
were identified as involving a power-operated window. In the third 
case, it was not possible to identify from the death certificate 
whether the window involved was power-operated, and in the fourth case, 
no window movement took place, so whether the window was power-operated 
was not relevant. Victims in those cases were ages two, three (two 
cases), and six.
    As discussed in the second NHTSA report, the results of the updated 
Lexis-NexisTM search identified 11 child deaths and one 
injury for calendar years 1998-2002 associated with vehicle windows 
(one of these deaths involved a sunroof). We concluded that power-
operated windows or sunroofs caused nine of the deaths and the one 
injury. In two cases, it was not possible to identify whether the 
windows involved in the incident were power-operated. Except for one 
six-year-old, all of the victims were either age two or three.
    These data also indicate that the annual incidence rate for power 
window-related fatalities involving children is, on average, in the low 
single digits. However, with such a low rate of occurrence, the number 
of cases may fluctuate (spike or ebb) in any single year, without 
necessarily signaling a trend or a generalized change in 
circumstances.\17\
---------------------------------------------------------------------------

    \17\ A spike has reportedly occurred this year in power window 
deaths. This situation is similar to one that the agency encountered 
with trunk entrapment cases. In a three-week period in the summer of 
1998, 11 children died in several trunk entrapment cases.
---------------------------------------------------------------------------

Estimate of Injuries Preventable by Safer Switches

    The potential benefits attributable to safer switches are limited 
to power-window incidents resulting from inadvertent actuation. In some 
cases, however, it is not possible to determine whether a power-window 
incident resulted from inadvertent or intentional operation of the 
power window switch.
    None of the deaths mentioned in the previous section that may have 
involved inadvertent actuation involved power windows controlled by 
pull-up, push-down switches. Thus, they were potentially preventable by 
safer switches.
    As discussed later in this document, in the section titled 
``Benefits,'' we conservatively estimate that, on average, safer 
switches could prevent at least one child fatality and at least one 
serious injury per year.

Estimate of Injuries Potentially Preventable by Automatic Reversal 
Systems

    There is an overlap between the target population for this final 
rule and the target population of the automatic reversal system 
requirement sought by petitioners. As noted previously, the target 
population for this final rule consists of persons killed or injured by 
inadvertent actuation of power window switches. The target population 
of the automatic reversal system requirement sought by petitioners is 
larger, but only slightly, consisting of persons killed or injured by 
either intentional or inadvertent actuation of those switches. Based on 
the data, discussed above, on the number of deaths identified as 
involving a power-operated window, we believe that in the absence of 
this final rule, an automatic reversal system requirement might prevent 
at least two fatalities per year. (We are unaware of any deaths caused 
by a power window with an automatic reversal feature.) Given the 
issuance of this final rule, the benefit of an automatic reversal 
system requirement would be reduced to the prevention of at least one 
fatality per year.

VI. Summary of the Safety Problem

    We believe that the design of power window switches is influential 
in incidents in which power windows result in death or injury. 
Specifically, we believe that rocker and toggle switches are more 
susceptible to inadvertent operation, because even incidental contact 
(e.g., a slight bump or nudge of the switch) can cause the window to 
begin to close. In contrast, by making it necessary to install either 
recessed/shielded switches or push-pull switches, injuries and 
fatalities are likely to be significantly reduced because accidental 
switch contact would not occur or would not cause window closure.
    Some commenters argued that push-pull switches might not resolve 
the problem of inadvertent activation. The agency notes that because 
power window accidents typically are not witnessed, there will always 
be a measure of uncertainty as to whether a child inadvertently 
actuated an exposed rocker or toggle switch, resulting in a window-
closing injury or fatality. It is theoretically possible, as some 
commenters argued, that some of the

[[Page 55524]]

children may have closed windows on themselves by actuating power 
windows in the normal way (i.e., using fingers to actuate the switch). 
In such cases, switch redesign could not have prevented those 
accidents.
    We note that pulling up a switch to close a window is an operation 
requiring a conscious decision to perform. A person cannot accidentally 
press against a push-pull switch and cause a window to begin to close. 
Therefore, inadvertent actuation and entrapment with push-pull type 
switches are unlikely events. Thus, we continue to believe that switch 
design is a major factor in the identified injuries and fatalities 
associated with inadvertent power window actuation.
    We note that there are other scenarios in which power windows may 
cause death or injury. In some cases involving two children playing in 
a vehicle, one child may intentionally activate the power window switch 
(as the switch was functionally intended to operate) with the 
unintentional effect of entrapping the other child. In other cases, a 
driver may be distracted and close a power window on a child whose head 
is in the window opening. The present rulemaking, which focuses on 
power window switch designs that are resistant to inadvertent 
actuation, would not prevent those cases, some of which stem from 
driver distraction or insufficient adult supervision. In such cases, no 
particular switch design would prevent the relevant injuries or 
fatalities, although automatic reversal systems might be an effective, 
although very costly countermeasure.

VII. The Final Rule

Decision To Move to a Final Rule

    Although there has been a longer than usual interval between the 
NPRM and the resulting final rule, we have decided to move directly to 
a final rule for several reasons. First, more recent data confirm an 
ongoing problem of injuries and fatalities related to the inadvertent 
actuation of power window switches. The nature and extent of that 
problem have not changed drastically since the time of the NPRM. We 
note that while there has been an increase in the use of shielded or 
recessed switches or push-pull switches since the NPRM, we would not 
necessarily expect a gradual increase in the use of these switches to 
track with changes in the number of fatalities, given the rare, 
sporadic nature of these events.
    Second, the technology that we expect to be used to comply with the 
final rule is essentially unchanged since the NPRM. The shielded or 
recessed switches and push-pull switches of today are similar to the 
ones at the time of the NPRM.
    Third, as indicated above, there has been an increasing trend among 
vehicle manufacturers to equip vehicles with shielded or recessed 
switches or push-pull switches. We expect those vehicles to meet the 
requirements of the standard, particularly given the increase in the 
diameter of the test device specified in this final rule, as compared 
to the device in the NPRM. This final rule is thus consistent with a 
safety solution already being implemented in the marketplace. Our final 
rule will accelerate this trend and ensure that all light vehicles 
comply.
    Fourth, other than relatively minor technical changes, the 
requirements of this rulemaking are largely the same as presented in 
the NPRM. Coupled with adequate lead time, we expect implementation of 
any necessary changes to be relatively simple and of de minimis cost. 
We expect that such changes would be accomplished during the normal 
vehicle redesign process.
    For these reasons, we do not see any significant possibility that 
obtaining further public comment would change the information before 
this agency. Accordingly, we have decided that it is in the public 
interest to proceed at this time to issue a final rule.

Summary of Requirements

    After carefully considering the comments on the proposed rule and 
other available information, we have decided to amend FMVSS No. 118 by 
adding a new section S6, which specifies requirements for power window 
switches in passenger cars, multipurpose passenger vehicles, and trucks 
with a GVWR of 4,536 kg (10,000 lbs.) or less. These requirements apply 
to switches that are located in the occupant compartment of those 
vehicles and control the closing operation of power-operated windows, 
partitions, and roof panels.
    The provisions of S6 specify that power window switches must meet 
new performance requirements when tested using a test device consisting 
of a hemisphere with a smooth, rigid surface and a radius of 20 mm 
 1 mm. The device reasonably represents the knee of a small 
child (2-3 years old). When the test device is applied with a force not 
to exceed 135 Newtons (30 lbs.) to any switch (or in the case of 
shielded or recessed switches, to the shielding/housing of any switch 
with the force directionally applied in a manner that, if unimpeded, 
would make contact with the switch) in the vehicle occupant compartment 
that can be used to close a power-operated window, partition, or roof 
panel, such application must not cause the window, partition, or roof 
panel to begin to close. The force is applied to the geometric center 
of and perpendicular to the flat surface of the hemisphere. While 
applying a force in the specified range, the hemisphere may be in 
contact with any part of the actuation device (switch) (or of the 
switch shielding/housing) at any angle.
    The requirements of S6 do not apply to switches that are both roof-
mounted and not capable of ``one-touch'' closure. In addition, power-
operated systems that meet the automatic reversal requirements of S5 
are also excluded from the requirements of S6.
    We believe that the test requirement set forth in section S6 
provides a simple and practicable means of evaluating power window 
systems so as to provide enhanced protection of children. Accordingly, 
this final rule furthers NHTSA's mission of preventing motor vehicle-
related deaths and injuries.
    The following provides more in-depth discussion of the standard's 
new requirements and rationale related to switches for power-operated 
windows, partitions, and roof panels, including a response to public 
comments.

Effectiveness of the New Switch Requirements

    Our examination of the existing data on injuries and fatalities 
associated with inadvertent actuation of power windows not only aided 
us in defining the nature and extent of the safety problem, but it also 
contributed to the identification of the remedy included in this final 
rule. As discussed below, the agency's research indicated the types of 
power window switches that are most susceptible to inadvertent 
actuation, as well as those most resistant to inadvertent actuation.
    Among the fatalities identified in the agency's research reports, 
which consider only cases in which a child was left alone in the 
vehicle with no sibling or other person present in the vehicle and in 
which the vehicle model and type of switch were identified, there were 
a total of nine fatalities in the last ten calendar years (i.e., 
calendar year 1994 or later) caused by closing power windows. As noted 
above, none of those nine cases involved vehicles with push-pull type 
switches.
    Further, there are several complaints documented in NHTSA's Vehicle 
Owner Questionnaire (VOQ) database related to power-operated 
windows.\18\

[[Page 55525]]

In a few of those cases, it was apparent that adults observed a child 
closing a vehicle window by kneeling or standing on the power window 
switch (and at least one case of a dog observed doing the same). None 
of the involved switches were of a push-pull design.
---------------------------------------------------------------------------

    \18\ A search of this database may be conducted by accessing 
http://www-odi.nhtsa.dot.gov/cars/problems/complain/complaintsearch.cfm and entering the appropriate terms.
---------------------------------------------------------------------------

    These data indicate both the mode of action of most power window-
related incidents (i.e., kneeling or standing on switches), as well as 
the types of switches that are most susceptible to inadvertent 
actuation (i.e., rocker and toggle switches).\19\ The same information 
also indicates that push-pull type switches provide superior protection 
against inadvertent actuation. As noted above, the design of push-pull 
switches require a more conscious effort to effectuate window closure 
(i.e., active pulling with a finger rather than inadvertent contact).
---------------------------------------------------------------------------

    \19\ Available data do not indicate whether those rocker and 
toggle switches involved in power window-related incidents were 
shielded or recessed. However, we believe that to be unlikely.
---------------------------------------------------------------------------

    The Japan Automobile Manufacturers Association (JAMA) has 
acknowledged the importance of careful switch design. Although we 
believe that its recommendation does not go far enough, the following 
statement by JAMA underscores the need for the present rulemaking:

    Switches should be constructed so that they are less prone to 
incorrect operation, taking into account the extent of their 
projection and configuration in relation to the surrounding area. If 
the switch for closing a window is installed on a plane whose angle 
is within 30 degrees from the horizontal plane, it should not be a 
``see-saw'' type or push-type switch.\20\
---------------------------------------------------------------------------

    \20\ Docket No. NHTSA-2004-17216-23.

    We do not believe that the switch requirements contained in this 
final rule will negatively impact normal, intentional operation of the 
windows, such as operation in the dark or operation with gloved hands. 
We also believe that switches designed to conform to the standard will 
be easy to operate and will not distract drivers. We note that there 
are many vehicle models currently being sold in the U.S. that would 
already meet the requirement of this final rule, so the suggestion that 
compliant power window switch designs would pose operability problems, 
as alleged, does not appear to be valid in light of current production.
    Thus, although inadvertent operation comprises only a very small 
percentage of overall usage, we expect that a safety benefit could be 
realized through relatively simple switch redesigns that would not 
compromise normal operation. Consistent with the above, we believe that 
a requirement resulting in either push-pull switches or recessed 
switches resistant to inadvertent actuation would eliminate the vast 
majority of incidents of the type reflected in the data.

Test Device and Methodology

(1) Shape of the Test Device
    In the NRPM, we proposed that the shape of the test device would be 
a sphere.
    As previously discussed, one commenter (Volvo) suggested the use of 
an alternative device similar to one specified in ECE Regulation No. 21 
and EU Directives 74/60 and 78/632. Those documents relate to interior 
fittings in motor vehicles generally, including power window 
switches.\21\
---------------------------------------------------------------------------

    \21\ We note that the EU adopted Directive 2000/4/EC in February 
2000. (Amending Council Directive 74/60/EEC on the Approximation of 
the Laws of the Member States Relating to the Interior Fittings of 
Motor Vehicles (Interior Parts of the Passenger Compartment Other 
Than the Interior Rear-View Mirrors, Layout of Controls, the Roof or 
Sliding Roof, the Backrest and Rear Part of the Seat) (Directive 
2000/4/EC). In essence, the new directive incorporated requirements 
similar to those in FMVSS No. 118 and also included the following 
requirement related to power window switches: ``Switches * * * shall 
be located or operated in such a way to minimise [sic] the risk of 
accidental closing.'' However, the Directive does not provide any 
additional performance requirements for those switches.
---------------------------------------------------------------------------

    Volvo suggested using the shape and proportions of the ECE test 
device, but scaling it down to child size by reducing its edge radius 
from 60 mm (2.4 inches) as shown in Annex 7 of ECE Reg. No. 21 (which 
approximates the size of an adult knee) to 25 mm (1 inch), which Volvo 
stated is the size of a child's knee.
    The resulting test device suggested by Volvo is depicted in a 
figure attached to Volvo's comment.\22\ The device is in the shape of a 
rounded triangle of 50 mm (2 inches) thickness, with rounded edges of 
25 mm (1 inch) radius. The rounded vertex of the triangle--the part 
that would be in contact with a power window switch during testing--is 
effectively a sphere with a 50 mm (2 inches) diameter.
---------------------------------------------------------------------------

    \22\ Docket No. NHTSA-2004-17216-11.
---------------------------------------------------------------------------

    Because the shape of the critical feature of the test device 
suggested by Volvo closely resembles that of a simple sphere, we 
believe that the test device specified in this final rule is similar to 
the one suggested in Volvo's comment and has the added benefit of 
simplicity, since only radius and surface characteristic must be 
specified. Accordingly, we have retained the spherical shape of the 
test device as part of this final rule.
    However, in order to simplify the application of the test device in 
actual testing, we have decided to utilize a hemisphere, rather than a 
full sphere. This will permit attaching of a rod to the flat surface of 
the hemisphere for easier maneuvering of the test device during a test. 
Only the spherical surface of the test device will be used for 
contacting the switch or switch housing during testing.
(2) Size of the Test Device
    In the NPRM, we proposed that the test device would have a diameter 
of 25 mm (1 inch).
    Commenters expressed divergent views as to the appropriate size of 
the test device. Some commenters, such as Advocates, questioned whether 
a sphere with a 25 mm (1 inch) diameter would be too large to be 
effective in minimizing potential power window activation by means 
other than fingers (with special attention drawn to children's elbows). 
Other commenters, such as AAMA, stated that a test device with a 25 mm 
(1 inch) diameter would be too small, possibly restricting switch use 
by persons with decreased dexterity or gloved hands. Volvo recommended 
a device whose relevant surface had the equivalent of a 25 mm (1 inch) 
radius (50 mm (2 inches) diameter).
    In order to determine the appropriate size for the test device, the 
agency also examined anthropomorphic data submitted to the docket by 
General Motors.\23\ The GM submission indicates that the average width 
of the legs of children (ages 2 to 3\1/2\), measured at the knee, is 66 
mm (2.5 inches) and that the minimum measurement among 212 children 
within that age range was approximately 53 mm (2.1 inches). Those 
figures are corroborated by Volvo's estimated child knee width of 50 mm 
(2 inches) and by data contained in a 1976 NHTSA research report,\24\ 
which found knee breadth of 66 mm (2.6 inches) for a three-year-old.
---------------------------------------------------------------------------

    \23\ Docket No. NHTSA-2004-17216-22.
    \24\ ``Development and Evaluation of Masterbody Forms For Three-
year and Six-year Old Child Dummies,'' (DOT HS 801 811) (Docket No. 
NHTSA-2004-17216-31).
---------------------------------------------------------------------------

    Based upon these data alone, a test sphere of approximately 50 mm 
(2 inches) in diameter seems appropriate. However, other factors lead 
us to believe that the test sphere should have a somewhat smaller 
diameter. First, the agency's research indicates at least one confirmed 
case of a power window fatality involving a child less than two years 
of age (22 months). Second, the measurements provided by GM are of the 
overall width of the leg measured at the knee. However, the kneecap 
itself is smaller than that dimension, even for a bent knee.

[[Page 55526]]

    Further, we believe that inclusion of a compliance margin is 
appropriate to ensure that the new requirements address a wide variety 
of circumstances. Inadvertent actuation of power windows occurs in 
vehicles with switches of various shapes and sizes, mounted in a 
variety of locations and orientations, and involves children of 
different ages and sizes. Body surfaces may interact with and activate 
switches in a variety of ways. Too large a test device might lead to 
switches that are susceptible to inadvertent operation in foreseeable 
but unproven circumstances, such as by elbow contact.\25\
---------------------------------------------------------------------------

    \25\ Examination of the relevant data does not reveal any cases 
in which inadvertent elbow contact was identified as the cause of a 
power window injury or fatality. Instead, most cases involved a 
child kneeling or standing on a power window switch. Furthermore, 
from a logistical standpoint, we believe that it would be extremely 
rare for inadvertent elbow contact to result in entrapment. 
Accordingly, our calculations to determine the size of the test 
sphere focused on dimensions of children's knees, rather than 
elbows.
---------------------------------------------------------------------------

    For the above reasons and after considering all available 
information, we have decided to adopt a hemisphere with a radius of 20 
mm  1 mm (0.8 inch). We have selected this dimension 
because we believe it is a reasonable representation of the predominant 
size and shape of a small child's knee, with a compliance margin 
appropriate for the circumstances. As to the alleged problem of 
operating power window switches with gloved hands or by persons with 
limited finger dexterity, we are not aware of any significant problem 
in current vehicles that incorporate either recessed switches or 
switches with a push-pull design. However, we believe that the 
increased size of the test device in this final rule should eliminate 
any such concerns.
(3) Surface of the Test Device
    The NPRM did not provide detail as to the surface of the test 
device, other than to state that the device would be a ``rigid 
spherical ball.'' \26\ Commenters stated that the agency should provide 
additional specificity in this regard in order to increase objectivity.
---------------------------------------------------------------------------

    \26\ 61 FR 58504, 58507.
---------------------------------------------------------------------------

    We agree that further clarification is appropriate, and we have 
modified the regulatory text as follows. Our experience with different 
test device sizes and types indicates that rotation of the test sphere 
as it is pressed against a switch under test influences whether the 
switch can resist actuation. We also found that a ball with a 
relatively high level of surface friction exacerbated the effect of 
ball rotation. For these reasons, we have decided to specify that the 
test device be rigid and have a smooth surface, in order to limit the 
effect of rotation.
(4) Application of the Test Device
    As discussed above, some commenters argued that the agency's 
proposal was not objective because it did not specify of level and 
direction of force to be applied to the test sphere. Instead, the NPRM 
stated that the test ball would contact the switch in ``any non-
destructive manner.'' \27\
---------------------------------------------------------------------------

    \27\ Id.
---------------------------------------------------------------------------

    In response to concerns raised about the objectivity of the how the 
test device will be applied to the switch, we have decided to specify a 
level of force for application of the test device as part of the test 
procedure. For the following reasons, we have decided that the test 
device is to be applied with a force not to exceed 135 Newtons (30 
lbs.), which is applied to the geometric center of and perpendicular to 
the flat surface of the hemisphere. While applying this force level, 
the hemisphere may be in contact with the switch at any angle. For 
shielded or recessed switches, the same test device and range of force 
are used at any angle to attempt to make contact with the switch. In 
such cases, the test device is directionally applied in such a manner 
that, if unimpeded, contact would be made with the actuation device.
    As the standard does not contain a strength requirement for power 
window switches, our goal in selecting a force level was not to 
determine whether switches could withstand relatively high force 
levels. In addition, we note that power window switches normally 
actuate under force levels on the order of several ounces.
    As noted above, we based our decision as to the appropriate size of 
the test device on the dimensions of the knee of small children (2-3 
years old). Therefore, in the interest of consistency in selecting the 
force to be applied to the test device, we have decided that it is 
appropriate to use a force consistent with the weight (30 lbs.) of a 2-
year-old to 3-year-old child.
    We believe that 135 Newtons (30 lbs.) of force is consistent with 
the weight of the majority of children involved in power window-related 
incidents and would test the resistance of switches to inadvertent 
actuation in the closing direction without imposing any requirement for 
switch durability.\28\ Although most power window switches in isolation 
may actuate at lower force levels, the force specified in this final 
rule will preclude shielding/housing around shielded or recessed 
switches that deforms to such an extent that inadvertent actuation of 
the switch becomes possible.
---------------------------------------------------------------------------

    \28\ According to statistics provided by the Society for 
Automotive Engineers (SAE), the 95th-percentile weight for children 
ages 19-24 months was 13.8 kg (approximately 30 lbs.). See 
``Anthropometry of U.S. Infants and Children,'' Society of 
Automotive Engineers (SAE) SP-394 (1975) (Instructions on how to 
view a copy of this document are provided at Docket No. NHTSA-2004-
17216-26).
    This value is also representative of the weight of an average 
three-year-old. Therefore, the selected force closely approximates 
the weight of the majority of children who were most frequently 
involved in incidents of inadvertent power window actuation.
---------------------------------------------------------------------------

    We expect all existing vehicle power window switches would be 
sufficiently robust as to withstand this maximum force when applied 
during testing.\29\ If a switch were to break during testing, it would 
not be a noncompliance under the standard, provided that breakage did 
not cause the window to begin to close.
---------------------------------------------------------------------------

    \29\ The agency recently conducted informal tests of power 
window switches from six 2004 vehicles, some outside the vehicle and 
some inside the vehicle. There did not appear to be any breakage 
even when 445 Newtons (100 pounds) of force was applied to these 
switches.
---------------------------------------------------------------------------

Orientation and Placement of Switches

    With the exception of roof-mounted switches not capable of ``one-
touch'' activation, this final rule does not exclude window switches 
from the standard's requirements based on location or orientation of 
the switch. Even switches mounted on vertical surfaces could be 
unintentionally contacted, resulting in inadvertent window closure. We 
do not believe the standard's requirements will impose unreasonable 
design restrictions on manufacturers. As previously noted, push-pull 
switches or shielded/recessed switches are already incorporated in many 
vehicles, and they are used in various locations and orientations.
    However, after reviewing the available information, we have decided 
to exclude certain ceiling-mounted switches (e.g., switches located in 
an overhead console) from the new switch performance requirements of 
the standard because they are not susceptible to inadvertent actuation. 
There is no feasible way for an occupant to stand or kneel on overhead 
switches while leaning out of an open window or sunroof, as may occur 
with switches mounted in other locations.
    Nonetheless, an overhead switch is only excluded from the 
requirements set forth in this final rule, if such switch requires 
continuous pressure to close the window or sunroof. Switches with a 
``one-touch'' capability, even if they are mounted overhead, pose an 
elevated risk because they can set a window or sunroof in motion, even 
if they are actuated only momentarily and then

[[Page 55527]]

released. Therefore, overhead switches are excluded from the 
requirements of this final rule only if they require continuous 
actuation for the window or sunroof to continue closing.
    Several commenters requested the exclusion of switches located at a 
relatively large (``stand-off'') distance from the window or sunroof 
that they control (e.g., center console-mounted switches controlling 
rear vent windows in minivans). The underlying rationale for this 
request is that because an occupant (particularly a child) would not be 
large enough to span the distance between such a switch and the window/
sunroof opening, there would not be any way for that person to lean 
against the switch while in a position in which that person is in 
danger of becoming entrapped.
    After considering this suggestion, we have decided not to exclude 
switches based upon their distance from a window or sunroof for the 
following reasons. First, the interiors of motor vehicles are, in 
general, not very large compared to the length/height of children, 
particularly when children are reaching with outstretched limbs. Based 
upon available data, we estimate that the height of a 95th-percentile 
six-year-old is approximately four feet.\30\ The same publication lists 
the lower arm length for the 95th-percentile six-year-old as just over 
one foot. If this length is added to the height measurement, it gives a 
reasonable approximation of the maximum distance that a child can reach 
with an outstretched arm (i.e., 5 feet). Although we have not received 
any data regarding what would constitute a safe stand-off distance, we 
believe that it would have to be at least four to five feet. Although 
there may be some switches operating windows beyond this distance 
(e.g., back vent window in minivans), we have concluded that in most 
other cases, as long as switches are located in placements that are 
reasonable for normal operation, they are unlikely to be sufficiently 
out of reach of the windows and sunroofs they control to make 
inadvertent actuation impossible.
---------------------------------------------------------------------------

    \30\ See ``Anthropometry of U.S. Infants and Children,'' Society 
of Automotive Engineers (SAE) SP-394 (1975) (Instructions on how to 
view a copy of this document are provided at Docket No. NHTSA-2004-
17216-26).
---------------------------------------------------------------------------

    Second, there have been a limited number of cases in which two 
children were left in a vehicle, and one of the children was strangled 
by a power window. In those cases, it is not always clear which child 
actuated the power window switch and whether such actuation was 
intentional or unintentional. Nonetheless, we do not believe that it is 
appropriate to exclude such switches from the final rule's 
requirements, since unintentional actuation of a power window switch by 
one child could result in a fatality to another child, the basic 
mechanism of injury is the same, and associated costs are negligible.
    In addition, we are not adopting commenters' suggestion to exclude 
vehicles with a power window lock-out feature from the requirements of 
the final rule. Unlike an automatic reversal system that can be 
expected to operate at all times, there is not any guarantee that a 
power window lock-out feature will be used in all or even many cases. 
In addition, on at least some vehicle models, the lock-out feature does 
not disable the driver's window switches, and in other models, it only 
disables the rear window switches. Consequently, we believe that window 
lock-out features are not sufficiently protective to substitute for 
improved switch designs.

Automatic Reversal

Automatic Reversal Systems at the Time of the NPRM
    In the NPRM, NHTSA addressed the Moore petition's request for the 
agency to mandate automatic reversibility. As discussed above, we 
concluded then that such a feature would be too costly to be mandated 
on all new light vehicles, that the then existing technology was 
insufficient to provide the desired safety performance and that it 
would not be practicable to redesign such systems to provide that 
performance and at the same time retain the ability to close under 
certain common environmental conditions. Therefore, the agency denied 
the Moore petition's request related to an automatic reversal 
requirement, based upon the following reasoning.
    At the time of the 1996 NPRM, the only type of automatic reversal 
systems available for broad application utilized force-sensing 
technology. The agency estimated the cost for such systems to be 
approximately $100 per window, which translated to $400 for a vehicle 
with four power windows. The petitioner did not provide any information 
to substantiate his claim that automatic reversal systems were not 
unreasonably expensive.
    In the NPRM, the agency also identified certain functional problems 
with such systems that cast doubt on their efficacy in addressing the 
problem of power window caused injuries and fatalities. The agency 
determined that the then available automatic reversal technology could 
not reliably close vehicle windows in the presence of snow or ice, or 
even the friction of cold or tight window seals. As a result, the 
automatic reversal capability was active only during one touch 
``express-up'' window operation. It was overridden during the normal 
closure mode (i.e., when the power window switch was continuously held 
in the window closing position). Automatic reversal technology of that 
type and capability would not have prevented window closure from 
occurring when occupants stood, knelt, or leaned on power window 
switches.
    One commenter on the NPRM (Advocates) argued that some vehicles 
then available in the U.S. market (e.g., Cadillac Catera) were equipped 
with an automatic reversal system that they presumed met the pinch 
force protection requirements of S5 of the standard. However, we do not 
know if the system in those vehicles actually met those requirements. 
We believe that none of those vehicles was certified under FMVSS No. 
118 as complying with S5. Instead, they were certified under S4, which 
provides that the power windows operate only when the ignition key is 
in the ``On,'' ``Start,'' or ``Accessory'' position (or in other 
specified, permissible positions).
Automatic Reversal Systems Today
    Since the NPRM, the agency has received two additional petitions 
for rulemaking (i.e., the 2003 petitions from Little and CAS) 
requesting that we require automatic reversal systems on all new 
vehicles equipped with power windows.
    Although there has been improvement in the technology for force 
sensing automatic reversal systems since the NPRM (e.g., a Brose system 
using an electric current-sensing technique that causes a closing 
window to reverse automatically in the normal operation mode as well as 
express mode), we believe that these systems still might not meet the 
requirements of S5 relating to protection of very small appendages, 
such as a child's fingers. We base this belief upon the fact that 
force-detecting reversal systems on vehicles now being sold in the 
U.S.\31\ were generally designed to meet a German performance 
requirement,\32\ under which power windows are limited to 100 N of 
pinch force; however, the requirement permitted the window to move a

[[Page 55528]]

considerable distance (several millimeters) before reaching a force 
level high enough to trigger reversal. This European requirement has 
not changed since the NPRM. Consequently, systems designed to satisfy 
the requirement might not protect small fingers as effectively as 
systems certified to meet S5 of FMVSS No. 118.
---------------------------------------------------------------------------

    \31\ The agency believes that all automatic reversal systems on 
vehicles currently being sold in the U.S. use force-sensing 
technology.
    \32\ Road Traffic Act (Germany), No. 60, paragraph 30 STVZO 
(Guidelines for power-operated windows of passenger vehicles) (1983) 
(Docket No. NHTSA-2004-17216-25). The German requirement was 
absorbed into the EU standard in 2000.
---------------------------------------------------------------------------

    Recently, new technology has become available which could address 
some of the shortcomings noted in the NPRM regarding the then existing 
force-sensing systems. For example, in its petition, CAS discusses a 
non-contact automatic reversal system produced by Nartron Corporation, 
which uses a capacitive sensing \33\ technology to provide automatic 
reversal. Such newer automatic reversal systems appear to have 
addressed earlier concerns regarding the systems' reliability in terms 
of closing when the weather stripping is very cold or when ice is 
present. It appears that with these improvements, it may be feasible 
for such systems to comply with the requirements of S5.
---------------------------------------------------------------------------

    \33\ Capacitive sensing means the detection of an object by the 
measurement of a disturbance in an electric field.
---------------------------------------------------------------------------

    However, the cost per vehicle of these systems is significant. 
According to CAS, the Nartron system has a cost of $12.50 per window, 
or $50 per vehicle. Available information suggests that all production-
ready automatic reversal systems (i.e., ones based on force-sensing) 
average approximately $8 to $10 per window ($32 to $40 per vehicle).
    In addition, we note that automatic reversal systems based on still 
other types of technology are under development. One example is a non-
contact automatic reversal system of the type developed by Prospects 
Corporation that uses infrared reflectance technology to sense 
obstacles, although no cost estimates are available for this system. 
(Rights to that technology have been licensed to Delphi Corporation.) 
Non-contact automatic reversal systems have also been developed using 
light beam interruption technology, but again, no reliable cost figures 
are available.
    In sum, we believe that mandating the installation of these systems 
on all new light U.S. vehicles would still involve a very high level of 
cost. As discussed previously, we believe that supplementing this final 
rule by mandating an automatic reversal system might save one 
additional life per year, on average. Such a mandate would address 
those cases where a driver or other vehicle occupant intentionally 
closes a window while unaware that another occupant is in a position to 
become entrapped. Given the substantial cost of automatic reversal 
systems and the fact that this final rule will reduce the limited 
benefits that could be obtained from those systems, we are denying the 
requests in the Little and CAS petitions to mandate automatic reversal 
systems.

VIII. Denial of Petitions for Rulemaking

Response to the Little and CAS Petitions

    As discussed above, the Little and CAS petitions request the same 
regulatory actions that the Moore petition requested be taken related 
to power-operated window, partition, and roof panel systems. Regarding 
the request by Little and CAS for the agency to require power window 
switches that are resistant to inadvertent actuation, the issuance of 
this final rule renders that request moot. As to the request by Little 
and CAS that the agency require automatic reversal systems on all new 
light vehicle equipped with power windows, we deny that request for the 
reasons discussed above.

IX. Methods of Compliance

    As noted above, the methods for compliance with the requirements of 
this final rule are low in cost and involve simple technology that is 
largely unchanged since the NPRM. These methods are discussed below.
    One way to meet the requirements would be to install push-pull 
window switches instead of rocker or toggle switches. The cost 
difference between these switches is negligible.
    Another way would be to shield rocker or toggle switches or to 
recess them in a protective housing built into the armrest, console, or 
other surface containing the switches so that a child's knee could 
casually contact the housing, but not the switch.
    These designs are being used in increasing numbers of vehicles.
    In addition, vehicle manufacturers need not comply with the 
requirements of this final rule if they equip their power windows with 
automatic reversal systems that meet the requirements of paragraph S5 
of the standard. The number of different technological approaches used 
in designing automatic reversal systems has increased since the NPRM. 
Further, their effectiveness has improved, even as their cost has been 
reduced.

X. Lead Time and Compliance Date

    In the NPRM, we proposed that compliance with the amended standard 
would be required three years after publication of the final rule in 
the Federal Register. We stated in the proposed rule that we intended 
to provide sufficient lead time to allow vehicle manufacturers to 
incorporate compliant power window safety switches as part of normal 
vehicle redesign plans. We believed that providing this lead time would 
reduce the cost associated with this final rule to essentially zero.
    Comments from vehicle manufacturers stated that lead times ranging 
from three to five years would be necessary, in order to build the 
required changes into normal product production cycles. After 
considering the comments and other available information, e.g., the 
typical vehicle manufacturer production cycles, we have decided to 
require that all new vehicles produced on or after October 1, 2008, for 
sale in the U.S. must comply with the amended power window switch 
requirements in this notice.
    This four-year lead time, reflected in the above compliance date, 
is within the range recommended by vehicle manufacturers in 1996 as to 
the time required to incorporate the necessary switch design changes 
into their normal vehicle redesign processes. We recognize, given that 
the percentage of vehicles equipped with power windows that comply with 
the requirements of this rule has risen since the NPRM, the overall 
task of compliance is easier now than it was eight years ago. However, 
that fact has no bearing on the duration of the redesign process for a 
particular vehicle model that does not already have compliant switches. 
As discussed previously, we believe that such lead time is appropriate 
in order to minimize the costs associated with this rulemaking.
    Manufacturers are free to meet the new requirements of FMVSS No. 
118 prior to the date for mandatory compliance.

XI. Benefits

    Based upon all available information, we believe that, on average, 
at least one child fatality and at least one serious injury (e.g., 
amputation, brain damage from near suffocation) per year could be 
prevented by the requirements of this final rule. We believe that this 
estimate of safety benefits is conservative, and that the actual 
benefit is likely higher for two reasons.
    First, our estimate counts only cases in which the victim was a 
child left alone in a vehicle. We excluded several cases because the 
victim's sibling was also in the car, leading to the possibility that 
the sibling, and not the victim, operated the window and did so

[[Page 55529]]

intentionally. To the extent that these cases involved inadvertent 
operation of the power window by a second child, the new switch 
requirements could provide further benefit by preventing actuation.
    Second, our estimate counts only cases in which the vehicle make/
model was identified so that the type of power window switch was known. 
Several cases occurred at a time when relatively few U.S. vehicles had 
push-pull switches. Nevertheless, we decided not to assume that the 
switches in those cases were either the rocker or toggle type, and 
instead, we excluded those cases altogether. If further data were 
available on those cases, the calculated benefits conceivably could 
increase.
    Further, even after NHTSA's methodical survey of death 
certificates, we found cases in the Lexis-Nexis\TM\ search that did not 
show up among the death certificates. Likewise, the list of fatalities 
provided as an attachment to the CAS petition, which represents all of 
the cases compiled by a national organization dedicated to child safety 
with cars (Kids and Cars), includes at least one case that is not 
duplicated in NHTSA's data. The reverse is also true, in that more than 
one of the cases in NHTSA's study do not appear in the CAS list.
    Collectively, these factors suggest that any attempt to determine 
the size of this problem on a national level will undercount the actual 
number of incidents and, thus, will result in an under-estimation of 
the safety benefit.
    We also note that the agency's complaint database includes reports 
of ``near-miss'' incidents. In those cases, an occupant was actually 
observed inadvertently operating a power window and was saved from 
entrapment by nearby adults. Had adults not been present, it is likely 
that the child occupant would have been injured or killed in those 
cases. Although it is difficult to quantify the number of near-miss 
incidents, we believe that a significant number of such cases occur but 
go unreported, because no fatalities or serious injuries were involved. 
This pool of close calls demonstrates that, although the number of 
cases in any given year is typically in the single digits, there is 
potential for the annual figures of deaths and injuries to vary by a 
factor of two or three. We believe that such reports further 
demonstrate the potential of switch design changes to avert risk of 
injury or death.
    Further, the agency's experience with other non-crash safety 
problems exemplifies how a low-frequency type of safety problem can 
suddenly proliferate. In the case of trunk entrapment, one particular 
year (calendar year 1998) saw the number of deaths multiply by several 
times the annual average for that type of incident (see 64 FR 70672 
(Dec. 17, 1999)). Although it is unlikely that power window incidents 
will proliferate to an unexpectedly high level, our research identified 
five power window-related fatalities in 1998 alone, while the average 
for the other four years studied (1999-2002) was 1.5 deaths per year.

XII. Costs

    As stated previously, the agency believed at the time of the NPRM 
that the proposed requirements would impose very little cost burden on 
vehicle manufacturers, particularly if ample lead time were provided. 
Modifications made to comply with the proposal were expected to consist 
merely of changes in the mode of switch operation and/or in the shape 
of surrounding trim pieces. The proposal was not expected to affect any 
other aspects of the operation of power windows.
    These initial estimates regarding costs hold for this final rule as 
well. The cost to manufacturers, while perhaps greater than zero, will 
be negligible, as any necessary switch modifications will presumably be 
incorporated during the course of normal product design cycles. NHTSA 
notes that the commenters did not question those estimates.
    Further, several major vehicle manufacturers already have 
incorporated push-pull switches across all or part of their model lines 
and thus have already borne the cost of compliance. For example, for 
the current model year (MY 2004), General Motors has stated that 
approximately 55 percent of its sales volume in the U.S. incorporates 
push-pull switches.\34\ Although data for the current model year were 
not provided, Ford stated that it expects 61 percent of its fleet to 
have re-designed switches by the 2007 model year.\35\ DaimlerChrysler 
stated that four of its 26 model year 2003-2004 vehicle models have 
push-pull switches.\36\ Other Chrysler models employ toggle type 
switches, some of which may comply with the new requirements depending 
on how they are situated within the vehicle (i.e., whether they are 
recessed).
---------------------------------------------------------------------------

    \34\ Docket No. NHTSA-2004-17216-24.
    \35\ Id.
    \36\ Id.
---------------------------------------------------------------------------

    As to import manufacturers, Japanese import manufacturers currently 
use push-pull type switches in most, if not all, of their U.S. 
vehicles. While some European import manufacturers use switches that 
would comply with this final rule, NHTSA does not know the extent of 
this use. It does know that many of them offer auto-reverse power 
windows. However, those windows may not qualify for the exception 
provided in this final rule for power windows that meet the auto-
reverse requirements of FMVSS No. 118.

XIII. Rulemaking Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to OMB 
review and to the requirements of the Executive Order. The Order 
defines a ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rulemaking document was not reviewed under E.O. 12866. 
Further, this action has been determined to be ``not significant'' 
under the Department of Transportation's Regulatory Policies and 
Procedures. The amendments to FMVSS No. 118 contained in this final 
rule would require switch designs that are resistant to inadvertent 
actuation. However, in light of current industry design trends and the 
substantial lead time provided, the cost of this final rule is expected 
to be close to zero. On average, the annual benefits are expected to be 
a savings of one child's life and the avoidance of at least one serious 
injury. Therefore, the impacts of these amendments are so minor that a 
full regulatory evaluation is not required.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory

[[Page 55530]]

Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is 
required to publish a notice of rulemaking for any proposed or final 
rule, it must prepare and make available for public comment a 
regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). The Small Business Administration's 
regulations at 13 CFR Part 121 define a small business, in part, as a 
business entity ``which operates primarily within the United States.'' 
(13 CFR 121.105(a)). No regulatory flexibility analysis is required if 
the head of an agency certifies the rule will not have a significant 
economic impact on a substantial number of small entities. SBREFA 
amended the Regulatory Flexibility Act to require Federal agencies to 
provide a statement of the factual basis for certifying that a rule 
will not have a significant economic impact on a substantial number of 
small entities.
    NHTSA has considered the effects of this final rule under the 
Regulatory Flexibility Act. I certify that this final rule will not 
have a significant economic impact on a substantial number of small 
entities. The rationale for this certification is that the rule does 
not require use of any specific equipment design (e.g., either push-
pull type switches or other types of recessed switches could be used), 
and the substantial lead time brings costs close to zero.

C. Executive Order 13132 (Federalism)

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), 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'' are 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 compliance 
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, the agency consults with 
State and local governments, or the agency consults with State and 
local officials early in the process of developing the proposed 
regulation. NHTSA also may not issue a regulation with Federalism 
implications and that preempts a State law unless the agency consults 
with State and local officials early in the process of developing the 
regulation.
    NHTSA has analyzed this final rule in accordance with the 
principles and criteria contained in E.O. 13132 and has determined that 
the rule will not have sufficient Federalism implications to warrant 
consultations with State and local officials or the preparation of a 
Federalism summary impact statement. This final rule will not have any 
substantial effects on the States, or on the current distribution of 
power and responsibilities among the various local officials.

D. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996), the agency has considered whether this 
rulemaking will have any retroactive effect. This final rule does not 
have any retroactive effect. Under 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 a suit in 
court.

E. Executive Order 13045 (Protection of Children From Environmental 
Health and Safety Risks)

    Executive Order 13045, ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental, 
health, or safety risk that the agency has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the agency.
    Although this final rule is expected to have a positive safety 
impact on children, it is not an economically significant regulatory 
action under Executive Order 12866. Consequently, no further analysis 
is required under Executive Order 13045.

F. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), 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. There are 
not any information collection requirements associated with this final 
rule.

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 (15 U.S.C. 272) directs the 
agency to evaluate and use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or is 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) with explanations when the agency 
decides not to use available and applicable voluntary consensus 
standards. The NTTAA does not apply to symbols.
    Currently, there are no voluntary consensus standards directly 
related to power-operated window switch design. However, NHTSA will 
consider any such standards as they become available.

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 annually (adjusted for inflation with base year of 
1995). Before promulgating a NHTSA rule for which a written statement 
is needed, section 205 of the UMRA generally requires the agency to 
identify and consider a reasonable number of regulatory alternatives 
and adopt the

[[Page 55531]]

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 the agency 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 of why that 
alternative was not adopted.
    This final rule will not result in the expenditure by State, local, 
or tribal governments or the private sector, in the aggregate, or more 
than $100 million annually. Thus, this final rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.

I. 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.

J. Regulatory 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.

K. Privacy Act

    Please note that 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

    Imports, Motor vehicle safety, Reporting and recordkeeping 
requirements, Tires.


0
In consideration of the foregoing, NHTSA is amending 49 CFR Part 571 as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for Part 571 of Title 49 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 571.118 is amended by revising paragraph S2 and by adding 
paragraph S6 to read as follows:


Sec.  571.118  Standard No. 118; Power-operated window, partition, and 
roof panel systems.

* * * * *
    S2. Application. This standard applies to passenger cars, 
multipurpose passenger vehicles, and trucks with a gross vehicle weight 
rating of 4,536 kilograms or less. This standard's requirements for 
actuation devices, as provided in S6, need not be met for vehicles 
manufactured before October 1, 2008.
* * * * *
    S6. Actuation Devices.
    (a) Any actuation device that is mounted in the occupant 
compartment of a vehicle and can be used to close a power-operated 
window, partition, or roof panel, shall not cause such window, 
partition, or roof panel to begin to close from any open position when 
tested in accordance with paragraphs (b) and (c) of S6.
    (b)(1) Using a hemisphere with a smooth, rigid spherical surface 
and a radius of 20 mm  1 mm, place the spherical surface of 
the hemisphere against any portion of the actuation device.
    (2) Apply a force not to exceed 135 Newtons (30 lbs.) to the 
geometric center of and perpendicular ( 3 degrees) to the 
flat face of the hemisphere.
    (3) While this force level is being applied, the plane of the flat 
face of the hemisphere may be at any angle.
    (c) For actuation devices that cannot be contacted by the 
hemisphere specified in S6(b)(1) prior to the application of force, 
apply a force up to the level specified in S6(b)(2) at any angle in an 
attempt to make contact with the actuation device. The hemisphere is 
directionally applied in such a manner that, if unimpeded, it would 
make contact with the actuation device.
    (d) The requirement in S6(a) does not apply to either--
    (1) Actuation devices that are mounted in a vehicle's roof, 
headliner, or overhead console and that can close a window, partition, 
or roof panel only by continuous rather than momentary switch 
actuation, or
    (2) Actuation devices for closing power-operated windows, 
partitions, and roof panels that comply with S5 of this standard.

    Issued: September 9, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-20714 Filed 9-13-04; 9:30 am]
BILLING CODE 4910-59-P