Federal Register Document 2003-16214, Airspace Docket 02-ANM-11, published on April 13, 2004 (69 FR 19317), revised Class E Airspace at Glacier Park International Airport, Kalispell, MT, effective August 5, 2004. An error was discovered in the geographic coordinates for the east and west sides of the Class E airspace boundary. This action corrects this error.

On February 9, 2004, final and temporary regulations (TD 9113) relating to the duplicate filing requirements for Form 5472 were published in the Federal Register (69 FR 5931). The temporary regulation addressed how the duplicate filing requirements for Form 5472 apply when a reporting corporation electronically files its income tax return (including any attachments such as Form 5472). On February 9, 2004, a notice of proposed rulemaking and public hearing (REG-167217-03) was also published in the Federal Register (69 FR 5940) with respect to the provisions of the temporary regulation. No written or electronic comments were received in response to the notice of proposed rulemaking. No requests to speak at the public hearing were received, and, accordingly, the hearing was canceled.

This Treasury decision adopts the language of the proposed regulation without change. The temporary regulation is removed.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to this regulation, and because this regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking preceding this regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

The principal author of this regulation is Edward R. Barret, Office of the Associate Chief Counsel (International). However, other personnel from the IRS and Treasury Department participated in its development.

The PBGC's regulations prescribe actuarial assumptions—including interest assumptions—for valuing and paying plan benefits of terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974. The interest assumptions are intended to reflect current conditions in the financial and annuity markets.

Three sets of interest assumptions are prescribed: (1) A set for the valuation of benefits for allocation purposes under section 4044 (found in Appendix B to part 4044), (2) a set for the PBGC to use to determine whether a benefit is payable as a lump sum and to determine lump-sum amounts to be paid by the PBGC (found in Appendix B to part 4022), and (3) a set for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology (found in Appendix C to part 4022).

Accordingly, this amendment (1) adds to Appendix B to part 4044 the interest assumptions for valuing benefits for allocation purposes in plans with valuation dates during October 2004, (2) adds to Appendix B to part 4022 the interest assumptions for the PBGC to use for its own lump-sum payments in plans with valuation dates during October 2004, and (3) adds to Appendix C to part 4022 the interest assumptions for private-sector pension practitioners to refer to if they wish to use lump-sum interest rates determined using the PBGC's historical methodology for valuation dates during October 2004.

For valuation of benefits for allocation purposes, the interest assumptions that the PBGC will use (set forth in Appendix B to part 4044) will be 4.00 percent for the first 20 years following the valuation date and 5.00 percent thereafter. These interest assumptions represent a decrease (from those in effect for September 2004) of 0.20 percent for the first 20 years following the valuation date and are otherwise unchanged.

The interest assumptions that the PBGC will use for its own lump-sum payments (set forth in Appendix B to part 4022) will be 3.00 percent for the period during which a benefit is in pay status and 4.00 percent during any years preceding the benefit's placement in pay status. These interest assumptions represent a decrease (from those in effect for September 2004) of 0.25 percent for the period during which a benefit is in pay status and are otherwise unchanged.

For private-sector payments, the interest assumptions (set forth in Appendix C to part 4022) will be the same as those used by the PBGC for determining and paying lump sums (set forth in Appendix B to part 4022).

The PBGC has determined that notice and public comment on this amendment are impracticable and contrary to the public interest. This finding is based on the need to determine and issue new interest assumptions promptly so that the assumptions can reflect, as accurately as possible, current market conditions.

Because of the need to provide immediate guidance for the valuation and payment of benefits in plans with valuation dates during October 2004, the PBGC finds that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication.

The PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM because the threat to U.S. assets and the public currently exists and is ongoing. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because the threat of maritime attacks is real as evidenced by the October 2002 attack of a tank vessel off the coast of Yemen and the continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002), that the security of the U.S. is endangered by the September 11, 2001, attacks and that such disturbances continue to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks, (67 FR 58317, September 13, 2002); Continuation of the National Emergency With Respect To Persons Who Commit, Threaten To Commit, Or Support Terrorism, (67 FR 59447, September 20, 2002). Additionally, a Maritime Advisory was issued to: Operators of U.S. Flag and Effective U.S. controlled Vessels and other Maritime Interests, detailing the current threat of attack, MARAD 02-07 (October 10, 2002). As a result, a heightened level of security has been established around all cruise ships, tank vessels, and High Interest Vessels (HIVs) in Monterey Bay and Humboldt Bay, California. Additionally, the measures contemplated by this rule are intended to prevent future terrorist attacks against individuals and facilities within or adjacent to cruise ships, tank vessels, and HIVs located in Monterey Bay and Humboldt Bay. Any delay in the effective date of this TFR is impractical and contrary to the public interest.

In addition to this temporary final rule (TFR), we will be publishing a notice of proposed rulemaking (NPRM) under docket COTP San Francisco Bay 04-003, in which we propose to make permanent these temporary security zones around cruise ships, tank vessels, and HIVs in Monterey Bay and Humboldt Bay. In the NPRM, we propose to amend 33 CFR 165.1183, which was added by the final rule (COTP San Francisco Bay 02-019) published in the Federal Register (67 FR 79854) on December 31, 2002, and later amended by final rule (COTP San Francisco Bay 03-002) published in the Federal Register (69 FR 8817) on February 26, 2004. Section 165.1183, “Security Zones; Cruise Ships, Tank Vessels, and High Interest Vessels, San Francisco Bay and Delta ports, California”, established security zones around cruise ships, tank vessels, and HIVs in the San Francisco Bay and Delta ports, but does not address security zones around these vessels when they are located in Monterey Bay and Humboldt Bay, California. This temporary rule will provide security in Monterey Bay and Humboldt Bay during a notice-and-comment rulemaking for a permanent rule, and § 165.1183 will remain in effect until amended by a future rule.

Since the September 11, 2001, terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing hostilities in Afghanistan and the conflict in Iraq have made it prudent for U.S. ports to be on a higher state of alert because Al-Qaeda and other organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

The threat of maritime attacks is real as evidenced by the attack on the USS COLE and the subsequent attack in October 2002 against a tank vessel off the coast of Yemen. These threats manifest a continuing threat to U.S. assets as described in the President's finding in Executive Order 13273 of August 21, 2002 (67 FR 56215, September 3, 2002), that the security of the U.S. is endangered by the September 11, 2001, attacks and that such aggression continues to endanger the international relations of the United States. See also Continuation of the National Emergency with Respect to Certain Terrorist Attacks (67 FR 58317, September 13, 2002), and Continuation of the National Emergency with Respect to Persons Who Commit, Threaten To Commit, Or Support Terrorism (67 FR 59447, September 20, 2002). The U.S. Maritime Administration (MARAD) in Advisory 02-07 advised U.S. shipping interests to maintain a heightened status of alert against possible terrorist attacks. MARAD more recently issued Advisory 03-05 informing operators of maritime interests of increased threat possibilities to vessels and facilities and a higher risk of terrorist attack to the transportation community in the United States. Ongoing foreign hostilities have made it prudent for U.S. ports and waterways to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide.

In its effort to thwart terrorist activity, the Coast Guard has increased safety and security measures on U.S. ports and waterways. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. The Coast Guard also has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ), and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of part 6 of title 33 of the Code of Federal Regulations.

In this particular rulemaking, to address the aforementioned security concerns, and to take steps to prevent the catastrophic impact that a terrorist attack against a cruise ship, tank vessel, or HIV would have on the public interest, the Coast Guard is extending the enforcement period for security zones around and under cruise ships, tank vessels, and HIVs entering, departing, moored or anchored within designated waters of Monterey Bay and Humboldt Bay, California. These security zones help the Coast Guard to prevent vessels or persons from engaging in terrorist actions against these types of vessels. Due to these heightened security concerns, and the catastrophic impact a terrorist attack on a cruise ship, tank vessel, or HIV would have on the crew and passengers on board, and the surrounding area and communities, security zones are prudent for these types of vessels.

On December 31, 2002, we published the final rule (COTP San Francisco Bay 02-019) adding § 165.1183, “Security Zones; Cruise Ships and Tank Vessels, San Francisco Bay and Delta ports, California” in the Federal Register (67 FR 79854). That section set forth security zones for cruise ships and tank vessels in San Francisco Bay and delta ports. A subsequent final rule (COTP San Francisco Bay 03-002) published in the Federal Register (69 FR 8817) on February 26, 2004, amended section 165.1183 to include HIVs as protected vessels in that section, along with cruise ships and tank vessels.

On March 29, 2004, we published a temporary final rule (COTP San Francisco Bay 04-002) in the Federal Register (69 FR 16163) that established security zones around all cruise ships, tank vessels, and HIVs that are anchored, moored or underway within designated waters of Monterey Bay and Humboldt Bay, California. In this temporary rule, the Coast Guard is extending the enforcement period of these security zones for an additional six months.

For Monterey Bay, a security zone is activated when any cruise ship, tank vessel, or HIV passes shoreward of a line drawn between Santa Cruz Light (LLNR 305) to the north in position 36°57.10′ N, 122°01.60′ W, and Cypress Point, Monterey to the south, in position 36°34.90′ N, 121°58.70′ W.

For Humboldt Bay, a security zone is activated when any cruise ship, tank vessel, or HIV enters an area within a 4 nautical mile radius line drawn west of the Humboldt Bay Entrance Lighted Whistle Buoy HB (LLNR 8130), in position 40°46.25′ N, 124°16.13′ W, or enters waters within the Humboldt Bay Harbor.

The security zone remains in effect while the cruise ship, tank vessel, or HIV is underway, anchored or moored within the designated waters of Monterey Bay or Humboldt Bay. When activated, the security zone will encompass all waters, extending from the surface to the sea floor, within 100 yards ahead, astern and extending 100 yards along either side of the vessel. This security zone is automatically deactivated when the vessel departs from the areas of Monterey Bay or Humboldt Bay designated in this rule. Vessels and people may be allowed to enter an established security zone on a case-by-case basis with authorization from the Captain of the Port.

The Captain of the Port will enforce this zone and may enlist the aid and cooperation of any Federal, State, county, municipal, and private agency to assist in the enforcement of the regulation. Section 165.33 of title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a security zone. Vessels or persons violating this section may be subject to the penalties set forth in 33 U.S.C. 1232 and 50 U.S.C. 192. Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment from 5 to 10 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, will also face imprisonment from 10 to 25 years. Vessels or persons violating this section are also subject to the penalties set forth in 50 U.S.C. 192: Seizure and forfeiture of the vessel to the United States, a maximum criminal fine of $10,000, imprisonment up to 10 years, and a civil penalty of not more than $25,000 for each day of a continuing violation.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Although this regulation restricts access to a portion of navigable waters, the effect of this regulation will not be significant because: (i) The zones encompass only a small portion of the waterway; (ii) vessels are able to pass safely around the zones; and (iii) vessels may be allowed to enter these zones on a case-by-case basis with permission of the Captain of the Port or his designated representative.

The size of the zones is the minimum necessary to provide adequate protection for all cruise ships, tank vessels, and HIVs, other vessels operating in the vicinity of these vessels, adjoining areas, and the public. The entities most likely to be affected are fishing vessels and pleasure craft engaged in recreational activities and sightseeing.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. We expect this rule may affect owners and operators of vessels, some of which may be small entities, intending to fish, sightsee, transit, or anchor in the waters affected by these security zones. These security zones will not have a significant economic impact on a substantial number of small entities for several reasons: Small vessel traffic will be able to pass safely around the area and vessels engaged in recreational activities, sightseeing and commercial fishing have ample space outside of the security zones to engage in these activities. Small entities and the maritime public will be advised of these security zones via public notice to mariners.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a security zone.

A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” will be available in the docket where located under ADDRESSES.

The final regulations that are the subject of this correction apply to the use of personal paper-to-paper copiers at the National Archives at College Park and affect the public.

As published, the final regulations omitted the Office of Management and Budget (OMB) Control Number for the information collection described in § 1254.86(a).

A final rule revising certain patent fee amounts for fiscal year 2005 was published as FR Doc. 69-52604 in the Federal Register of August 27, 2004 (69 FR 52604). The final rule contains an error for an appeal fee in section 41.20(b)(3). The fee amount for fiscal year 2005 was incorrectly stated as $170.00 for a small entity, and $340.00 for other than a small entity. This correction revises this appeal fee amount.

Amendment of part 501 is necessary to ensure that the cautionary labels required to be placed on rented postage meters contain current information.

You may be potentially affected by this action if you a Federal or State Government Agency involved in administration of environmental quality programs (i.e. United States Departments of Agriculture, Environment, etc). Potentially affected entities may include, but are not limited to:

• Federal or State Government Entity (NAICS 9241)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

EPA, on its own initiative, in accordance with sections 408(e) and 408 (l)(6) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, is establishing a tolerance for combined residues of the insecticide thiamethoxam and CGA-322704, in or on cranberries at 0.02 parts per million (ppm). This tolerance will expire and is revoked on December 31, 2007. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations.

Section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. EPA does not intend for its actions on section 18 related tolerances to set binding precedents for the application of section 408 of the FFDCA and the new safety standard to other tolerances and exemptions. Section 408(e) of the FFDCA allows EPA to establish a tolerance or an exemption from the requirement of a tolerance on its own initiative, i.e., without having received any petition from an outside party.

Section 408(b)(2)(A)(i) of the FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of the FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of the FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Section 18 of the FIFRA authorizes EPA to exempt any Federal or State agency from any provision of FIFRA, if EPA determines that “emergency conditions exist which require such exemption.” This provision was not amended by the Food Quality Protection Act of 1996 (FQPA). EPA has established regulations governing such emergency exemptions in 40 CFR part 166.

The State of Massachusetts has requested the use of thiamethoxam on cranberries to control cranberry weevil. EPA has authorized under FIFRA section 18 the use of thiamethoxam on cranberries for control of cranberry weevil in Massachusetts. After having reviewed the submission, EPA concurs that emergency conditions exist for this State.

As part of its assessment of this emergency exemption, EPA assessed the potential risks presented by residues of thiamethoxam in or on cranberries. In doing so, EPA considered the safety standard in section 408(b)(2) of the FFDCA, and EPA decided that the necessary tolerance under section 408(l)(6) of the FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of the FFDCA. Although this tolerance will expire and is revoked on December 31, 2007, under section 408(l)(5) of the FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on cranberries after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by this tolerance at the time of that application. EPA will take action to revoke this tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Because this tolerance is being approved under emergency conditions, EPA has not made any decisions about whether thiamethoxam meets EPA's registration requirements for use on cranberries or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this tolerance serves as a basis for registration of thiamethoxam by a State for special local needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for any State other than Massachusetts to use this pesticide on this crop under section 18 of FIFRA without following all provisions of EPA's regulations implementing FIFRA section 18 as identified in 40 CFR part 166. For additional information regarding the emergency exemption for thiamethoxam, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT .

EPA performs a number of analyses to determine the risks from aggregate exposure to pesticide residues. For further discussion of the regulatory requirements of section 408 of the FFDCA and a complete description of the risk assessment process, see the final rule on Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997) (FRL-5754-7).

Consistent with section 408(b)(2)(D) of the FFDCA, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of thiamethoxam and to make a determination on aggregate exposure, consistent with section 408(b)(2) of the FFDCA, for a time-limited tolerance for combined residues of thiamethoxam and CGA-322704 in or on cranberries at 0.02 ppm. EPA's assessment of the dietary exposures and risks associated with establishing the tolerance follows.

The dose at which no adverse effects are observed (the NOAEL) from the toxicology study identified as appropriate for use in risk assessment is used to estimate the toxicological endpoint. However, the lowest dose at which adverse effects of concern are identified (the LOAEL) is sometimes used for risk assessment if no NOAEL was achieved in the toxicology study selected. An uncertainty factor (UF) is applied to reflect uncertainties inherent in the extrapolation from laboratory animal data to humans and in the variations in sensitivity among members of the human population as well as other unknowns. An UF of 100 is routinely used, 10X to account for interspecies differences and 10X for intraspecies differences.

For dietary risk assessment (other than cancer) the Agency uses the UF to calculate an acute or chronic reference dose (acute RfD or chronic RfD) where the RfD is equal to the NOAEL divided by the appropriate UF (RfD = NOAEL/UF). Where an additional safety factor is retained due to concerns unique to the FQPA, this additional factor is applied to the RfD by dividing the RfD by such additional factor. The acute or chronic Population Adjusted Dose (aPAD or cPAD) is a modification of the RfD to accommodate this type of FQPA SF.

For non-dietary risk assessments (other than cancer) the UF is used to determine the level of concern (LOC). For example, when 100 is the appropriate UF (10X to account for interspecies differences and 10X for intraspecies differences) the LOC is 100. To estimate risk, a ratio of the NOAEL to exposures (margin of exposure (MOE) = NOAEL/exposure) is calculated and compared to the LOC.

The linear default risk methodology (Q*) is the primary method currently used by the Agency to quantify carcinogenic risk. The Q* approach assumes that any amount of exposure will lead to some degree of cancer risk. A Q* is calculated and used to estimate risk which represents a probability of occurrence of additional cancer cases (e.g., risk is expressed as 1 x10 -6 or one in a million). Under certain specific circumstances, MOE calculations will be used for the carcinogenic risk assessment. In this non- linear approach, a “point of departure” is identified below which carcinogenic effects are not expected. The point of departure is typically a NOAEL based on an endpoint related to cancer effects though it may be a different value derived from the dose response curve. To estimate risk, a ratio of the point of departure to exposure (MOE cancer = point of departure/exposures) is calculated. For a detailed summary of the toxicological endpoints for thiamethoxam used for human risk assessment, refer to Table 1 in the August 27, 2003 Federal Register (68 FR 51471, FRL-7320-2) final rule establishing tolerances for the combined residues of thiamethoxam on hops, bean, succulent, and bean, dried.

1. Dietary exposure from food and feed uses. Tolerances have been established (40 CFR 180.565) for the combined residues of thiamethoxam, in or on a variety of raw agricultural commodities. The following crop sites have established tolerances: Barley, canola, cotton, sorghum, wheat, tuberous and corn vegetables crop subgroup, fruiting vegetables crop group, tomato paste, cucurbit vegetables crop group, pome fruits crop group, milk and meat, and meat by products of cattle, goats, horses, and sheep. Risk assessments were conducted by EPA to assess dietary exposures from thiamethoxam in food as follows:

i. Acute exposure . Acute dietary risk assessments are performed for a food-use pesticide if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a one day or single exposure. The Dietary Exposure Evaluation Model (DEEM TM ) analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 nationwide Continuing Surveys of Food Intake by Individuals (CSFII) and accumulated exposure to the chemical for each commodity. The following assumptions were made for the acute exposure assessments: Tolerance level residues and 100% crop treated.

ii. Chronic exposure . In conducting this chronic dietary risk assessment the DEEM TM analysis evaluated the individual food consumption as reported by respondents in the USDA 1994-1996 nationwide CSFII and accumulated exposure to the chemical for each commodity. The following assumptions were made for the chronic exposure assessments: Tier 3 analyses that incorporate anticipated residues and percent crop treated (PCT) refinements for most commodities.

iii. Cancer . The cancer exposure estimates are based on Tier 3 analyses that incorporate anticipated residues and PCT information for most commodities.

iv. Anticipated residue and PCT information . Section 408(b)(2)(E) of the FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide chemicals that have been measured in food. If EPA relies on such information, EPA must require that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. Following the initial data submission, EPA is authorized to require similar data on a time frame it deems appropriate. As required by section 408(b)(2)(E) of the FFDCA, EPA will issue a Data Call-In for information relating to anticipated residues to be submitted no later than 5 years from the date of issuance of this tolerance.

Section 408(b)(2)(F) of the FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if the Agency can make the following findings: Condition 1, that the data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain such pesticide residue; Condition 2, that the exposure estimate does not underestimate exposure for any significant subpopulation group; and Condition 3, if data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area. In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by section 408(b)(2)(F) of the FFDCA, EPA may require registrants to submit data on PCT.

The Agency used PCT information as follows: Potatoes, 19%; fruiting vegetables, 15%; cucumbers, 5%; melons, 13%; casabas, 44%; crenshaws, 44%; squash, 44%; pumpkins, 44%; apples, 5%; crabapples, 53%; pears, 9%; quinces, 53%; loquat, 53%; barley, 0.1%; sorghum, 9%; wheat, 2%; canola, 55%; cotton, 20%.

The Agency believes that the three conditions listed above have been met. With respect to Condition 1, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. EPA uses a weighted average PCT for chronic dietary exposure estimates. This weighted average PCT figure is derived by averaging State-level data for a period of up to 10 years, and weighting for the more robust and recent data. A weighted average of the PCT reasonably represents a person's dietary exposure over a lifetime, and is unlikely to underestimate exposure to an individual because of the fact that pesticide use patterns (both regionally and nationally) tend to change continuously over time, such that an individual is unlikely to be exposed to more than the average PCT over a lifetime. For acute dietary exposure estimates, EPA uses an estimated maximum PCT. The exposure estimates resulting from this approach reasonably represent the highest levels to which an individual could be exposed, and are unlikely to underestimate an individual's acute dietary exposure. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions 2 and 3, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available information on the regional consumption of food to which thiamethoxam may be applied in a particular area.

2. Dietary exposure from drinking water . The Agency lacks sufficient monitoring exposure data to complete a comprehensive dietary exposure analysis and risk assessment for thiamethoxam in drinking water. Because the Agency does not have comprehensive monitoring data, drinking water concentration estimates are made by reliance on simulation or modeling taking into account data on the physical characteristics of thiamethoxam.

The Agency uses the Generic Estimated Environmental Concentration (GENEEC) or the Pesticide Root Zone/Exposure Analysis Modeling System (PRZM/EXAMS) to estimate pesticide concentrations in surface water and Screening Concentrations in Groundwater (SCI-GROW), which predicts pesticide concentrations in ground water. In general, EPA will use GENEEC (a tier 1 model) before using PRZM/EXAMS (a tier 2 model) for a screening-level assessment for surface water. The GENEEC model is a subset of the PRZM/EXAMS model that uses a specific high-end runoff scenario for pesticides. GENEEC incorporates a farm pond scenario, while PRZM/EXAMS incorporate an index reservoir environment in place of the previous pond scenario. The PRZM/EXAMS model includes a percent crop area factor as an adjustment to account for the maximum percent crop coverage within a watershed or drainage basin.

None of these models include consideration of the impact processing (mixing, dilution, or treatment) of raw water for distribution as drinking water would likely have on the removal of pesticides from the source water. The primary use of these models by the Agency at this stage is to provide a coarse screen for sorting out pesticides for which it is highly unlikely that drinking water concentrations would ever exceed human health levels of concern.

Since the models used are considered to be screening tools in the risk assessment process, the Agency does not use estimated environmental concentrations (EECs) from these models to quantify drinking water exposure and risk as a %RfD or %PAD. Instead drinking water levels of comparison (DWLOCs) are calculated and used as a point of comparison against the model estimates of a pesticide's concentration in water. DWLOCs are theoretical upper limits on a pesticide's concentration in drinking water in light of total aggregate exposure to a pesticide in food, and from residential uses. Since DWLOCs address total aggregate exposure to thiamethoxam they are further discussed in the aggregate risk sections below.

Based on the PRZM/EXAMS and SCI-GROW models the estimated environmental concentrations (EECs) of thiamethoxam for acute exposures are estimated to be 7.1 parts per billion (ppb) for surface water and 1.94 ppb for ground water. The EECs for chronic exposures are estimated to be 0.43 (non-cancer) and 0.13 ppb (cancer) for surface water and 1.94 ppb for ground water (cancer and non-cancer).

3. From non-dietary exposure . The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Thiamethoxam is not registered for use on any sites that would result in residential exposure.

4. Cumulative exposure to substances with a common mechanism of toxicity . Section 408(b)(2)(D)(v) of the FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA does not have, at this time, available data to determine whether thiamethoxam has a common mechanism of toxicity with other substances or how to include this pesticide in a cumulative risk assessment. Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, thiamethoxam does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that thiamethoxam has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the final rule for Bifenthrin Pesticide Tolerances (62 FR 62961, November 26, 1997).

1. In general . Section 408 of the FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base on toxicity and exposure unless EPA determines that a different margin of safety will be safe for infants and children. Margins of safety are incorporated into EPA risk assessments either directly through use of a MOE analysis or through using uncertainty (safety) factors in calculating a dose level that poses no appreciable risk to humans.

2. Prenatal and postnatal sensitivity . The developmental toxicity studies indicated no quantitative or qualitative evidence of increased susceptibility of rat or rabbit fetus to in utero exposure based on the fact that the developmental NOAELs are either higher than or equal to the maternal NOAELs. However, the reproductive studies indicate effects in male rats in the form of increased incidence and severity of testicular tubular atrophy. These data are considered to be evidence of increased quantitative susceptibility for male pups when compared to the parents.

3. Conclusion. Based on :

i. Effects on endocrine organs observed across species.

ii. The significant decrease in alanine amino transferase levels in the companion animal studies and in the dog studies.

iii. The mode of action of this chemical in insects (interferes with the nicotinic acetyl choline receptors of the insect's nervous system) thus a developmental neurotoxicity study is required.

iv. The transient clinical signs of neurotoxicity in several studies across species.

The Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 2401(b), 2671-2680, waives the federal government's sovereign immunity to civil suits for damages in certain instances arising out of the negligent or otherwise wrongful acts or omissions committed by federal employees while acting within the scope of their employment. General regulations issued by the U.S. Department of Justice for processing FTCA claims, found at 28 CFR 14.11, authorize federal agencies to issue supplementing regulations. Accordingly, the CSB is adopting this rule to inform the public about the CSB's method of accepting and processing claims arising under the FTCA filed against the agency. This rule provides the public with guidance in presenting a tort claim against the CSB, while also ensuring that the agency has established procedures to receive, investigate and adjudicate such claims. The CSB published a proposed rule on administrative claims arising under the FTCA, and invited public comments on the rule, in the Federal Register of June 17, 2004 (69 FR 33879). No comments were received. This final rule is being published unchanged from the proposed version.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires that a rule that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation's impact on such small entities. This analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The CSB has considered the impact of this rule under the Regulatory Flexibility Act. The CSB's General Counsel hereby certifies that this rule will not have a significant economic impact on a substantial number of small business entities.

This rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

This rule does not require the preparation of an assessment statement in accordance with the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531. This rule does not include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.

On April 17, 2003, the Secretary of Health and Human Services published an interim final rule with request for comments. 68 FR 18895. The interim final rule adopted rules of procedure for the imposition by the Department of Health and Human Services (HHS) of civil money penalties on entities that violate standards and requirements adopted by HHS under the Administrative Simplification provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Public Law 104-191. These rules are codified at 45 CFR part 160, subpart E (subpart E).

As corrected at 68 FR 22453 (April 28, 2003), subpart E expires on September 16, 2004. HHS intends to propose in the near future a rule to establish complete procedural and substantive provisions for the enforcement of the HIPAA rules through the imposition of civil money penalties. The final rule that will result from this forthcoming rulemaking will supersede subpart E. However, as additional time is needed to complete the rulemaking, HHS has decided to extend the expiration date of subpart E from September 16, 2004 to September 16, 2005.

The April 17, 2003 interim final rule requested comment, and HHS received 19 public comments during the public comment period. We will describe and respond to those comments in the preamble to the forthcoming proposed rule.

As noted, HHS expects to propose a rule to amend subpart E in the near future. However, this forthcoming rulemaking will not be completed by September 16, 2004, when the interim final rule that adopted subpart E is scheduled to expire. The resulting hiatus in the procedures for civil money penalty enforcement actions could create confusion for both the public and HHS with respect to enforcement during this period. Thus, HHS hereby extends the expiration date of subpart E by one year. This action is being taken under HHS's authority at 42 U.S.C. 1302(a) and 1320d-6.

Notwithstanding this extension, HHS fully expects to issue the final rule that will result from the forthcoming rulemaking as soon as possible rather than at or near the new September 16, 2005 expiration date. However, a one-year extension should provide HHS with a period sufficient to avoid another extension, should unexpected circumstances delay the regulatory development process.

The Administrative Procedure Act generally requires agencies to provide advance notice and an opportunity to comment on agency rulemakings. However, there are certain exceptions to this requirement. As the preamble to the April 17, 2003 interim final rule explained, subpart E sets out—

We have also determined that good cause exists to waive the requirement of publication 30 days in advance of the rule's effective date under 5 U.S.C. 553(d)(3). Since subpart E is already in effect, no useful purpose would be served in delaying the effective date of this action, as those entities who are subject to subpart E are already on notice of its terms. Making this extension effective on less than 30 days notice accordingly will not impose a burden upon anyone. In addition, to the extent that a delayed effective date occasioned a hiatus in the effectiveness of subpart E, it could cause the confusion that the extension seeks to avoid. Accordingly, we find good cause under 5 U.S.C. 553(d)(3) for not delaying the effective date of this action.

We have reviewed this final rule under the following statutes and executive orders governing rulemaking procedures: the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq. ; the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ; the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq. ; the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. ; Executive Order 12866 (Regulatory Planning and Review), as amended by Executive Order 13258; and Executive Order 13132 (Federalism). Since this rule merely extends the expiration date of subpart E, the information in the compliance statements that we published on April 17, 2003 with the existing rule continues to apply.

On August 24, 2004, the Office of Management and Budget (OMB) approved the information collection requirement contained in §§ 25.110, 25.114, 25.115, 25.116, 25.117, 25.118(a), 25.130, 25.131, and 25.154, pursuant to OMB Control No. 3060-0678.

Accordingly, the information collection requirement contained in these rules became effective on August 24, 2004.

The FCC published a document in the Federal Register of April 1, 2004, (69 FR 17063) relating to the resolution of petitions for reconsiderations filed in the Commission's Part 22 Cellular Biennial Regulatory Review proceeding. In FR Doc. 04-6822, published in the Federal Register of April 1, 2004, the document incorrectly indicated that a new or modified information collection exists that requires approval by the Office of Management and Budget (“OMB”), and contained an incorrect DATES: section. This document corrects the DATES section to read: DATES: Effective June 1, 2004.

This is a synopsis of the Memorandum Opinion and Order in MB Docket No. 02-335 adopted September 1, 2004, and released September 3, 2004. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals II, CY-A257, 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or www.BCPIWEB.com. The Commission will not send a copy of this Memorandum Opinion and Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because this document denied the petition for reconsideration.

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 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

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).

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.

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.

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 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.

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.

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.

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 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.

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.

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.

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.

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.

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

We decided to address the CAS petition in this document.

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 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.

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

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.

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.

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 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).

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.

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.

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.

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.

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

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.

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-Nexis TM 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).

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-Nexis TM search. The resulting report, which was published in May 2004, 16 yielded the following information.

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-Nexis TM 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

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.

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.

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 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.

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.

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.

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 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.

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).

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:

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.

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

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.

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.

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.

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.

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

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.

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.

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.

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

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.

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.

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 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.

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.

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).

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 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.

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.

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.

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.

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.

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.

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 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.

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).

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.

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.

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

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

This final rule amends FMVSS No. 118, Power-Operated Window, Partition, and Roof Panel Systems, to specify test procedures for a new type of non-contact automatic reversal system. Specifically, these amendments accommodate and effectively evaluate automatic reversal systems based on infrared reflectance (IR) technology, which is capable of stopping and reversing a window prior to contacting an obstruction ( e.g., a head or arm). NHTSA determined that the existing test procedures were inappropriate for IR-based systems.

This rulemaking arose out of a petition for rulemaking submitted by Prospects Corporation, which the agency granted. Subsequently, NHTSA issued a notice of proposed rulemaking  1 that proposed test procedures for testing of IR-based automatic reversal systems. We received seven public comments on this proposal. These comments were generally supportive of the rulemaking, but sought modification of certain technical aspects of the proposed amendments.

Based upon all available information, the agency has decided to issue a final rule that replaces the standard's current single set of test procedures for contact and non-contact reversal systems with one set for reversal systems designed to detect obstructions by physical contact or by light beam interruption and a second set for reversal systems designed to detect proximity of obstructions using infrared reflectance. The first set of requirements and procedures is the same as the current set; the second set is new.

Thus, the final rule does not substantively modify or eliminate existing requirements in FMVSS No. 118 that relate to contact reversal systems based on force-sensing and non-contact reversal systems based on light beam interruption, nor does it change the circumstances under which power windows, roof panels, and partitions must automatically reverse direction, with one minor exception. This rulemaking amends the standard to specify that rods used for testing window reversal systems based on beam interruption are not transparent.

Although a more detailed discussion is provided later in this notice, the following summarizes the provisions of this final rule related to IR-based automatic reversal systems. The final rule accommodates those systems by specifying that the agency will test them using a different rod than the ones used in testing other types of reversal systems. Instead of a rod with a constant diameter as small as 4 mm, the agency will use a rod that has a tip with a length of 40 mm and a diameter of 10 mm, followed by a segment with a length of 300 mm and a diameter of 20 mm, followed by an additional length to permit the rod to be held during testing ( see Figure 3).

The final rule ensures the effective evaluation of IR-based reversal systems by specifying that the test rod will have a reflectance of 1 percent. We believe that these size and reflectance specifications are reasonably representative of a small child (approximately 15 months in age) whose arm is reaching for a window opening from inside a vehicle with hand held flat and on edge relative to the emitter/sensor of the IR system, and whose hand is covered by snug-fitting fabric. The covering of the hand represents, for example, the situation of a child whose sleeves are too long or who has pulled his or her sleeves down. When an IR system senses an obstacle with the above characteristics, it must halt the window's closing and reverse direction to one of the specified positions under S5.2 of the standard.

These requirements apply to power-operated windows, roof panels, and interior partitions. However, we note that powered interior partitions represent a special case, because they can have occupant compartment space on both sides of the partition. Therefore, it is necessary that interior partitions be capable of reversing when obstacles enter from either side of the partition.

We do not expect this final rule to have a significant impact on the standard's expected benefits and costs. Because these IR-based systems are required to meet the same performance requirements as other automatic reversal systems (although in a different manner), the level of benefits under the standard is expected to remain unchanged. As to costs, because IR-based automatic power window reversal systems are not required under FMVSS No. 118, there are not expected to be any compliance costs imposed by this final rule. Further, manufacturers may utilize any technology that meets the performance requirements in paragraph S5 of the standard as tested in accordance with the procedures in paragraph S7.

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 for such systems designed to minimize the likelihood of death or injury from their inadvertent operation. Of particular concern, the standard addresses the threat to unsupervised children of being strangled or suffering limb-crushing injuries by closing power windows. 2 The standard applies to passenger cars, multipurpose passenger vehicles, and trucks with a gross vehicle weight rating of 4,536 kg (10,000 lbs.) or less.

FMVSS No. 118 has undergone periodic revision in order to accommodate technological developments related to power window systems. Originally, the standard required that the activation of power windows be linked to an ignition interlock. The standard prohibited the activation of power windows unless the key was in the ignition and turned to the “On,” “Start,” or “Accessory” position, based upon the presumption that this precondition would ensure that a driver was present to supervise children. It also ensured that the driver is provided with a simple means of disabling the power windows of a parked vehicle ( i.e., key removal).

Over the years, however, paragraph S4 of the standard has been amended to permit power windows closing in situations in which the key is not in the ignition, but the existence of adult supervision could be presumed for other reasons. Most recently, in 1991, NHTSA issued a final rule that responded to the interest of manufacturers in offering remote controls for window closing ( see 56 FR 15290 (April 16, 1991)). In doing so, 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, in an effort to ensure the presence 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)). A longer range, up to 11 m, was permitted for remote controls that were operable only if there were an unobstructed line of sight between the control and the vehicle. (We note that the power windows of all vehicles sold in the U.S. are still linked to an ignition interlock or one of the exceptions under S4.)

Further, in that rulemaking, the agency reasoned that the provisions permitting remote control of a power window need not be premised on the likely existence of supervision if the window were equipped with an automatic reversal system. 3 If the system could sense a 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, then supervision would not be necessary. Similarly, if the window closing system could sense a child's hand or head and reverse before making contact, supervision would not be necessary. Therefore, the agency also established a provision (S5) permitting power windows equipped with an automatic reversal system meeting certain performance requirements to be closed in any manner desired by the manufacturer ( e.g., with or without a key). In addition, the rule permitted power windows equipped with such a system to be closed by remote controls of unrestricted range, as well as by sensors of adverse environmental conditions ( e.g., devices to open and close windows automatically in response to heat and rain) because the automatic reversal system would provide protection in those situations.

S5 specifies a single set of performance requirements and test procedures for all automatic reversal systems. The systems must reverse a closing power window either before the window contacts a semi-rigid cylindrical rod from 4 mm to 200 mm in diameter or before it exerts a squeezing force of 100 Newtons on the rod. The rods represent portions of a person's body, ranging in size from infant fingers to juvenile heads, inserted in the window openings. Further, the systems are required to open the window to any one of several specified points for the purpose of enabling a child to remove his or her hand or head from the window opening.

NHTSA worded S5 so as to allow the use of not only “force-sensing” systems, but also “proximity-sensing” systems by allowing automatic reversal systems that reversed the power window at any time prior to contact with the test rods in response to a commenter on the proposed 1991 amendments. That commenter expressed interest in developing reversal systems triggered by the blockage of light by a child's body (the same principle used by automatic reversal mechanisms on some garage doors with remote controls).

On November 4, 1994, Prospects Corporation (Prospects) submitted a petition for rulemaking  4 to NHTSA requesting that the agency amend FMVSS No. 118 to provide alternative testing requirements for non-contact automatic reversal systems. Prospects sought this change because the company had developed an automatic power window reversal system that operates on the principle of detecting the proximity of some portion of a person's body by sensing the reflection (instead of the blockage) of reflected infrared light. According to Prospects, the existing test procedure is inappropriate for non-contact automatic reversal systems that do not rely on light-blocking technology.

As described in its petition, the Prospects system employs an infrared emitter and a detector within the interior of the vehicle that are not aligned with one another. According to the petitioner, its system operates as follows. When no object is present in or near the plane of the window, the reflector receives a constant background level of infrared radiation reflected by the inside of the vehicle. In that situation, the window may close. However, when an occupant's head, hand or foot approaches the window, it will reflect a certain amount of additional radiation from the emitter to the detector. The detector senses the increase and electronically stops or reverses the window, even before the occupant's hand reaches the plane of the window.

To work properly under a variety of circumstances, an IR system must be sufficiently sensitive to detect a variety of materials, such as skin, hair, and clothing fabrics. Different materials have different abilities to reflect infrared radiation, a property called “reflectance.” The amount of radiation reflected is affected by the wavelength of the radiation, the angle of incidence of the radiation, the color and texture of the material, and the amount of surface area exposed.

Prospects was correct that, in amending FMVSS No. 118, NHTSA had not contemplated non-contact reversal systems that use IR technology. As a result, the associated requirements and test procedures were not designed to accommodate and effectively evaluate such systems. For example, the standard currently does not specify the amount of reflectance of the test rods.

NHTSA decided to grant the Prospects petition in order to facilitate the development and ensure the effective evaluation of automatic reversal systems based on IR principles, a potentially promising new technology. The agency believes that an IR system could provide safety benefits, because it does not require any contact between the window (or window frame) and an obstruction ( e.g. , a person's hand, arm, or head) in order to reverse.

Because an IR-based system might not be able to detect a rod with constant diameter of 4 mm, and because such a system can detect light reflected from an area large enough to include a child's whole hand, the use of a rod representative of a child's hand would appropriately accommodate such a system. Because the standard currently does not specify the infrared reflectance of the test rods, it cannot adequately assess the safety of an automatic window reversal system based on infrared reflectance. Use of a test rod with a higher reflectance than that of a child's hand might allow a system to pass NHTSA's compliance test even though that system might not be sufficiently sensitive to detect a child's hand placed in or near the window opening. To promote safety, test requirements should simulate unfavorable conditions that are likely to occur in a motor vehicle. Further, without a specification for test rod reflectance, results of tests conducted by different laboratories or manufacturers are likely to be inconsistent. Therefore, the agency decided to initiate rulemaking to modify the test procedures for IR-based systems.

On June 4, 1996, NHTSA published a notice of proposed rulemaking (NPRM) in the Federal Register (61 FR 28124) proposing to amend FMVSS No. 118 to permit the use of an automatic reversal system based upon infrared reflectance technology. The NPRM was summarized in the NPRM itself as follows:

The NPRM provided a detailed discussion of a number of relevant issues, including the size of the target inboard of the window plane, the reflectance of the target (discussing both testing methods and results), protection of persons outside the vehicle, the presumption of supervision, and the need for reversal. The notice also asked a series of seven questions, most of which related to the details for addressing the Prospects petition; however, two of the questions dealt with the topics of “express-up” operation ( i.e. , a closing mode which requires only momentary switch contact to close the window, rather than continuous activation) and the possibility of requiring a driver-controlled rear lock-out of the rear power windows.

Regarding the size of the target, the NPRM stated that because the existing standard does not specify the size of the portion of the test rod that is inboard of the window ( i.e. , the area in or near the plane of the window when it is closed), it does not specify one of the most important test conditions for the IR proximity detection system developed by the petitioner. The NPRM proposed 15 mm as a reasonable worst-case dimension for targets inboard of the plane of the window, which corresponds to the thickness of the edge view of a 15-month-old infant's hand, as reported by the petitioner. The agency considered this to be a reasonably conservative estimate, because newborn babies with somewhat smaller hands would be incapable of raising themselves up to an exposed position, and even the smallest hands would present a target wider than 15 mm in most orientations. Although the petitioner suggested a hand-shaped test rod, the agency tentatively decided that the use of cylindrical test rods remains preferable, because they are easier to manufacture and they remove the need to consider the orientation of the target along its axis.

Regarding reflectance of the target, the agency proposed a minimum reflectance of 0.7 percent for the test rods, a conservative value that equals the minimum reflectance of black cotton/polyester. As discussed in the NPRM, “reflectance” is a critical concept for IR systems, with the term being defined as the ratio of the intensity of the light (measured by a detector as energy) reflected by the surface of a material to that of the light that strikes the surface of the material. As noted above, without a specification for test rod reflectance, the safety of an IR-based automatic reversal system could not be assessed, because use of a test rod with a higher reflectance than a child's hand might allow the system to pass NHTSA's compliance test even though the system might not be sufficiently sensitive to detect a child's hand placed in or near the window opening.

The proposed value for test rod reflectance was based upon supplementary data provided by the petitioner. Because color affects reflectance, the reflective properties of skin of different shades and colors are important, as are the reflective properties of gloves and clothing, which may be more difficult to detect than bare skin. Consequently, the petitioner provided measurements of the infrared light reflected from human skin and a large variety of leathers and fabrics, using the following methodology.

Measurements of reflectance were conducted by the petitioner with an apparatus incorporating an infrared light source (nominal wavelength 950 nanometers (nm)) and a light sensor of the type used in the prototype window reversal system appearing in Appendix 1 of the petitioner's report. 5 According to the petitioner, its reflectance testing was conducted as follows. The apparatus projected infrared light on the skin or material sample and received the reflected (or scattered) light at an equal angle of reflection. The angle of incidence was 16 degrees. The distance from the source to the sample, and the distance from the sample to the light sensor, were the same (about 135 mm). The light reaching the sensor was measured with and without the sample in place, so that the light reflected from the sample holder could be discounted. 6

In order to ensure that NHTSA's test procedures are as general and as design-independent as possible, the agency sought to propose requirements that express the infrared reflective properties of skin and other materials in terms that are not specific to a particular light source and sensor. Accordingly, we decided to propose the use of a high reflectance mirror as a comparison medium. A mirror that reflects 99.99 percent of infrared light was mounted in the apparatus as a sample. The presence of the mirror caused the infrared sensor to receive 47 microwatts. The power measured with the sample materials was divided by this power, and the resulting ratio was multiplied by 100 percent to produce a value that is characteristic of each sample. When normalized by the mirror measurement in this way, the skin and material measurements become independent of the power, beam size and dispersion of the light source, and the size and sensitivity of the infrared sensor.

This method of normalizing the power measurements also has the benefit of producing results of general utility, regardless of the size of the sample. The sensitivity of the reflectance determination to changes in the light path length of the apparatus is low, because measurements using the sample and the mirror would be affected in the same proportion by a change in light path length. Therefore, the length of the light path need not be specified.

However, NHTSA specified a proposed angle of incidence and reflection (16 degrees) to be used when determining the reflectance of the test rods, in order to avoid changes in the relative composition of reflected and scattered light from textured samples. We note that specifying these angles does not restrict vehicle design in any way, but only defines the parameters to be used when producing test rods.

In conducting its testing, the petitioner measured the skin of Caucasian, African-American, and Asian persons at the back of the hand and at the palm, and the total range of reflectance was determined to be from 2.04 to 2.96 percent. The petitioner also tested 37 samples of potential skin coverings, including various colors, textures, and types of fabric and leather ( e.g. , wool, silk, cotton, polyester, and a 35% cotton/65% polyester blend). The range of reflectance for these samples was 0.70 to 6.09 percent, with the worst case being a black cotton/polyester material. NHTSA's proposed reflectance level for the test rods was intended to provide protection in this worst-case scenario.

In the NPRM, NHTSA also considered whether IR-based systems would provide protection to a person who is outside the vehicle and is reaching toward or into the vehicle. Such consideration is important because paragraph S5 of the Standard No. 118 relieves power window systems with automatic reversal from the presence-of-supervision-assuring restrictions of S4. It cannot be assumed that an infrared proximity detector will operate on objects shielded by window glass, and thus, the proposal was drafted such that only portions of a person's body inside the window would be capable of triggering the system.

However, the agency's analysis suggested that IR-based systems do not pose a great danger to persons outside of the vehicle. Although the agency recognized the possibility for abuse of the system ( e.g. , children on either side of the window playing “chicken” with the system), we stated our belief that that possibility is not serious enough to warrant declining to facilitate the use of power window systems with infrared sensors. This belief was based on the assumption that manufacturers would not make automatic window closing possible in the absence of the ignition key, except possibly for rain protection or for a limited time after key removal. In addition, children who can reach the top of the window from the ground are old enough to possess some level of experience and judgment, and a very slight withdrawal motion is all that is necessary for self-protection.

In response to public concerns about the safety of the existing standard, we thought it appropriate to address such concerns in the NPRM, particularly because the proposal would make the standard more permissive. The agency expressed its intention, before proceeding to a final rule, to examine certain design possibilities, not prohibited by S4, that may reduce either the likelihood or the effectiveness of driver supervision. Specific examples include: (1) The possibility of windows closing when the ignition key is in the “accessory,” as well as the “on” and “start” positions, and (2) an “express up” closing mode, which requires only momentary switch contact rather than continuous activation to close the window.

The NPRM also discussed the reversal requirement in the context of IR-based systems. The existing standard requires that closing power windows halt to avoid applying excessive squeezing force on a passenger, and then reverse their travel to release the person so that the person does not remain trapped by the window. However, because non-contact window systems can detect the proximity of a person over a large interior space and can halt the window before the person enters the pinch zone, the NPRM proposed to exclude such systems from this reversal requirement. However, it was noted that systems with limited sensitivity must be able to reverse in order to avoid the possibility of trapping a child's head.

Finally, NHTSA proposed to make the proposed amendments effective 30 days after publication of a final rule, and manufacturers offering IR-based window systems would have to comply with the requirements on the same date. The agency stated that there would be good cause for such an effective date because the amendments would not impose any new requirements but would instead relieve a restriction.

Comments on the NPRM were received from six organizations (Prospects Corporation, Advocates for Highway and Auto Safety, BMW of North America, Chrysler Corporation, Pektron Ltd., and Toyota Motor Corporate Services) and one individual (Mr. Thomas P. Flanagan). 7 Issues raised by the commenters generally can be categorized into five key topics: (1) Size and shape of the test rods; (2) reflectance of the test rods; (3) material reflectance test methods; (4) sunlight and other ambient factors; and (5) need for reversal. These subject areas (corresponding to specific questions raised in the NPRM) each will be discussed in turn, along with a brief discussion of one or two unrelated comments.

This notice also discusses additional clarifying information provided by the petitioner at the request of the agency after the comment period was over. That information was needed in order to supplement the petitioner's NPRM comments and to clarify a number of details.

Only Prospects Corporation commented on the proposed size and shape of the test rods. In general, Prospects agreed with the intent of the NPRM to further refine the standard's test procedures to accommodate new types of detection systems, stating that requirements should focus on the safety of heads, necks, arms and hands. Prospects supported the agency's position in the NPRM that the smallest relevant obstruction that must be detected by an infrared reflectance system would not be a single finger, but a hand as a whole held on edge. Prospects again suggested that the agency should adopt a hand-shaped test device, but as we noted in the NPRM, in a worst-case scenario, a hand could be held flat and oriented to the sensor such that only the edge of the hand is exposed. Prospects acknowledged the possibility of a child's hand being oriented in this way, and it agreed that test rod orientation in compliance tests would be easier with a cylindrically shaped device.

However, Prospects expressed concerns that the test requirements outlined in the proposal, in an attempt to be conservative, may be overly strict and could rule out further development of infrared reflection systems. Specifically, Prospects stated its belief that a 15 mm test rod is conservative and that combined with a surface reflectance of 0.7 percent, the test would not be representative of any real world situation. The company stated that by combining the worst case values for the two key test rod characteristics ( i.e. , cross-sectional diameter and IR) would make it nearly impossible for an IR-based system to detect the test rod in all locations in a vehicle window opening. Further, Prospects argued that to the extent the proposed requirements retard the development of IR-based systems, the safety benefits of such non-contact systems may be lost ( i.e. , recognizing a person's head/neck/arm/hand before exerting a potentially injurious force).

Ultimately, Prospects did incorporate the 15 mm cylindrical test rod size and shape proposed in the NPRM into at least one of its own suggested options for amending FMVSS No. 118.

The issue of test rod reflectance characteristics was discussed in the comments of both Prospects and Pektron. Pektron, a British firm that manufactures power window sensors, asked whether the petitioner had conducted exhaustive testing of materials to determine the lowest reflectance level. It also questioned whether it would be acceptable to use the petitioner's lowest measured reflectance level (0.7 percent, as proposed in the NPRM) without a safety factor.

Prospects expressed concern about the low value of reflectance (0.7 percent) proposed for the test rods in the NPRM. It instead suggested adoption of a test procedure incorporating a reflectance of 2.2 percent, which was the lowest average reflectance measurement for a bare hand. Prospects reasoned that materials used for gloves would likely have an even higher reflective value.

As mentioned above, Prospects stated that the material with a 0.7 percent reflectance, on which the NPRM based its proposed reflectance value, was a very thin, 35 percent cotton/65 percent polyester blend that would not be appropriate for making gloves. Instead, the material was partially transparent, allowing infrared energy to pass through it easily. Prospects argued that the material with the second lowest reflectance (1.5 percent) also was not glove material.

Prospects stated that the fabric used in gloves is thicker, and more importantly, has a more woven texture, especially on a microscopic level. For example, Prospects asserted that actual wool gloves would have reflectance signals that are approximately double the signal of the tested sample of thin, black wool. Color also makes a difference in terms of reflectance, as both of the above materials reported much higher reflectances for colors other than black.

According to Prospects, the next lowest reflectance measurement was for a bare hand, which had a low value of 2.04 percent reflectance and a three-sample average of 2.2 percent. All of the other materials tested by the petitioner reported higher reflectance values. Based upon the above reasoning, Prospects expressed its belief that if the standard specifies a small diameter test rod designed to represent a child's finger or hand edge, then only the reflectance value of bare skin or materials likely to be worn on the hands should be considered when determining the reflectance of the test rods.

The NPRM asked specific questions regarding whether the proposed test rod size and reflectance value are appropriate, when considered in combination. A follow-up question asked whether, under those circumstances, the prototype IR-based system developed by Prospects would be capable of detecting an obstruction at all points in a vehicle window opening.

Prospects stated that under the proposed procedure ( i.e. , a 15 mm test rod combined with 0.7 percent surface reflectance), it would be nearly impossible for the system to detect an obstruction in all locations of a vehicle window opening. Specifically, Prospects stated that at the furthest corner from the IR sensor ( i.e. , an extreme standoff distance of 750 mm (30 inches)), the IR signal reflected from an obstruction would likely be too weak for the system to distinguish from background levels. Prospects argued that it is highly unlikely that these worst-case conditions of test rod size, reflectance, and location would occur simultaneously, and therefore, the test is unnecessarily strict.

Prospects also stated that in a real world situation, it is unlikely that a hand would continuously be held in a worst-case orientation, and that eventually, the window itself is likely to push on the hand, change its orientation, and expose a larger profile to the sensor. As a result of such contact in such unusual situations, it is argued that the IR-based system would automatically reverse the window.

Prospects and Pektron both commented on the NPRM's proposed method for measuring the characteristic reflectance of the test rod material and whether a nominal test value of 950 nm wavelength ( i.e. , in a range of 950 nm +mn; 100 nm) is appropriate.

Regarding wavelength test values, Prospects commented that it had chosen infrared devices operating at the 950 nm wavelength in order to maximize the sensitivity of its current system. However, the company expressed a willingness to test at other wavelengths outside this corridor, if the agency so requests.

Regarding the 16-degree angle of incidence/reflection used to measure the IR of materials, Pektron commented that scatter effects might influence the validity of reflectance values measured by the techniques proposed under the NRPM. It stated that while the proposed technique might be acceptable for obtaining a reference level from a mirror, it may not adequately account for the differing scatter characteristics of tested materials. Pektron also argued that relative measurements could vary depending upon the absolute size of the exposed sample area in the test fixture as a result of scatter. However, Pektron did not provide any quantitative information to support its assertion, nor did it suggest an alternative test method.

Pektron commented that the installed angle of the IR emitter and receiver may be important, but is currently undefined. However, Prospects stated that the 16-degree angle was not intended to represent the actual angle between the IR emitter and the sensor to be used in a vehicle. Although the system was initially tested at a 16-degree angle, Prospects stated that upon actual installation, the angle would be expected to be closer to zero degrees, thereby resulting in greater direct reflection from obstructions. Prospects added that it subsequently ran verification tests, during which the incidence/reflection angle was adjusted to 10 degrees and 20 degrees. According to Prospects, while the absolute reflectance intensities did change, the relationship among the values of the various materials remained approximately the same.

Both Advocates and Mr. Flanagan commented on the NPRM's proposed exclusion of IR reflectance systems from the automatic reversal requirement of paragraph S5 of the standard. The proposed exclusion was premised on the fact that an IR-based system could halt the closing motion of a power window prior to an obstruction entering the window opening. Because these systems can activate before entrapment can occur, it was tentatively decided that there would be no need for the window to reverse direction.

Advocates generally supported the NPRM's position on reversal for IR-based systems, provided those systems operate with proven reliability. However, Advocates stated that for windows with express-up capability, the reversal requirement should be maintained, regardless of the type of obstacle sensing device installed on the vehicle.

Mr. Flanagan opposed excluding IR-based systems from the reversal requirement of S5, arguing that such a change could endanger children. 8 He commented that the size of the 100 mm vertical dimension of the detection zone specified in S5(b) of the proposed amendment is inadequate. To support his contention, Mr. Flanagan described two scenarios in which a child might still be injured unless IR-based systems are subject to a reversal requirement. In the first, he described a situation in which a child's head could become entrapped in a vehicle window opening, even if the window was equipped with an IR-based detection system that complied with the NPRM's proposed detection zone requirements. Mr. Flanagan also described a scenario in which a child sitting in the vehicle's window opening could be pushed backward out of the vehicle and onto the ground by the closing window.

BMW, Pektron, and Prospects all commented on the issue of testing of IR-based systems in sunlight. Generally, the commenters supported the idea of testing in sunlight, but they argued that the requirement, as presented in the NPRM, was not sufficiently objective and that test results could be influenced by a variety of factors.

BMW stated that the proposed regulatory text regarding testing in sunlight is not specific enough to be objective. Instead, BMW recommended that the standard specify a uniform sunlight simulation in order to eliminate discrepancies in defining direct sunlight.

Pektron stated that the proposed rule's test requirements do not offer sufficient detail, such as specifying the direction from which the sun would be coming. Pektron also commented that a constant, ambient level of sunlight is not as difficult for a system to cope with as a rapidly changing level as might occur when a vehicle is passing by trees or fences.

Although Prospects agreed that testing should include the effect of sunlight, it stated that test results in natural sunlight may be inconsistent, because natural sunlight varies with incidence angle and intensity, which in turn, depends upon the time of year, time of day, longitude, and latitude. Prospects recommended that NHTSA solve these potential problems by defining a laboratory test using artificial sunlight. In its comments, Prospects stated that a repeatable test method could be developed by specifying light source intensity, incidence angle, and spectral content, although recommended values for these parameters were not provided.

Regarding suitable specifications for indoor solar simulation when conducting testing, Prospects stated that the worst case for sunlight interference occurs when the sun's rays are perpendicular to the system's sensor, and it recommended a lighting simulation based on the following. First, Prospects stated that, at the longitude and latitude of its offices in Massachusetts, a worst-case angle occurs at approximately 5 p.m. (time of year unspecified). The measured solar intensity at that time was said to be 35,300 lux with a handheld meter. In its own laboratory experimentation, Prospects subjected its system to 35,000 lux by using two 1M candlepower lamps placed 2.5 meters from the sensor. (Prospects did not specify the type of lamps, nor did it mention what the spectral content of their lighting arrangement was compared to natural sunlight, particularly in the infrared range.)

As discussed below, commenters generally opposed agency amendment of FMVSS No. 118 in the areas of power window operation with the key in the accessory position, express-up operation, and rear window lock-out, as part of this rulemaking. However, different reasons were offered, as discussed below.

Advocates opposed operation of power windows when the ignition switch is in the accessory position, a feature that currently exists on some vehicle models. Further, Advocates stated that some vehicles permit power window operation for a period of time without a key in the ignition, providing the example of a Mitsubishi passenger car that has windows with retained power operation for thirty seconds after key removal (unless the passenger door is opened, at which time power window operation is immediately canceled).

Regarding the NPRM's questions about rear window lock-out, Advocates strongly supported giving drivers the capability of locking out rear power windows to prevent use by children. However, Advocates stated that express-up power closure of side windows should be permitted only if the system can detect an intervening obstacle (even a small child's finger) and stop closure before contact is made.

Advocates stated that the agency lacks appropriate safety information on which to base a specific proposal in the areas of ignition switch settings, lock-out of rear seat power windows, and express-up operation. Accordingly, Advocates argued that NHTSA should not move to a final rule in these areas without an adequate basis for rulemaking, including issuance of proposed regulatory text for public review and comment.

Mr. Flanagan stated his opinion that the safety risk increases when an unsupervised child is no longer afforded the protection of an ignition lock-out, and he also argued that adequate child supervision should not be presumed, citing numerous cases of children being killed or injured by power windows, even with adults present. Mr. Flanagan stated his belief that remote operation of power windows is unsafe, and he advocated prohibiting express-up window operation because it is prone to inadvertent actuation, especially if operated by remote control.

In their comments, vehicle manufacturers generally opposed regulation in the areas of ignition switch settings, lock-out of rear seat power windows, and express-up operation. BMW stated that there is not a recognized safety problem and that regulation in these areas would not produce any quantifiable safety benefits. BMW stated that its passenger cars have had rear power window lock-out for twenty years, and it commented that express-up operation is already adequately regulated under the existing conditions of S4 of the standard. Chrysler also commented that the express-up feature should be permitted as a manufacturer design option. Toyota also expressed opposition to any amendment of the standard that would prohibit either power window closure with the key in the accessory position or express-up closure, because Toyota believes that the standard currently permits and should continue to permit these two operations.

Pektron commented that the fail-safe aspects of an IR reflectance system should be considered, and it stated that in order to achieve a fail-safe mode for the petitioner's system, it would be necessary to confirm the presence of an active beam. Pektron also commented regarding the potential for radio frequency interference and electromagnetic compatibility failures, and it recommended that a power window system should be required to tolerate a minimum level of ambient electromagnetic radiation.

BMW stated that, under the current standard, any non-contact system could be certified for compliance under S5 as long as the system could detect the test rods and reverse as required. However, BMW commented that, as proposed, the amendment to the standard would limit the applicability of the existing test procedures to contact detection systems, but at the same time, the new test procedures for non-contact detection systems would limit such systems to those using IR reflectance technology. Accordingly, BMW recommended that any new provisions added to the standard for non-contact systems should apply equally to all types of non-contact systems, whether or not they utilize IR reflectance technology. Pektron also urged the agency to afford equal treatment to other types of non-contact automatic reversal systems, including its beam blockage system.

Pektron commented that any final rule amending FMVSS No. 118 should give equal consideration to other types of non-contact systems, such as its own IR beam interruption system. In addition, Prospects stated that the same test specified for IR reflectance systems should be required for systems with infrared emitters and receivers in line with each other ( i.e. , systems that use beam interruption rather than reflectance).

As mentioned earlier, the agency contacted Prospects after the close of the comment period to obtain additional information in order to clarify three unanswered questions related to testing of IR-based systems. Both the agency's letter and the company's response have been filed in the docket. 9 The first question posed by the agency involved the influence of sunlight on testing of IR reflectance systems, a topic discussed earlier in this notice.

The agency's second question asked what the aggregate reflectance would be if a hand were covered by material with the lowest measured reflectance ( i.e. , 0.7 percent for the 35-percent cotton/65-percent polyester fabric). We sought this information because the fabric by itself, without a hand behind it, would never need to be detected. Therefore, the lowest reflectance value that is significant for occupant safety is that which represents a hand covered by the fabric. If the low reflectance of that fabric was due in part to its translucency, then the presence of a hand having higher reflectance behind the fabric might increase the measured value.

According to Prospects' response, placing a hand behind the 35-percent cotton/65-percent polyester fabric did result in an increase in measured reflectance from 0.7 percent to nearly 1.0 percent.

The agency's third question asked what would be a reasonable safety factor for the reflectance value. According to available data, the lowest reflectance of human skin in a single measurement was reported as 2.04 percent. Consequently, we believe that two-percent reflectance for the test rods would be an inappropriate minimum value, because it would leave no margin of safety to account for the presence of gloves or clothing that might decrease overall reflectance.

Prospects stated that it is very difficult to quantify a safety factor for an IR reflectance system, but the petitioner provided a number of reasons why it believes that a reasonable safety factor is already included in the test specifications included in its earlier comments ( i.e. , 15 mm test rod diameter with 2.2 percent test rod reflectance). It stated that the black 35-percent cotton/65-percent polyester fabric with a 0.7 percent reflectance was an outlier in the data compared to other materials tested. Samples of the same fabric in other colors had reflectances of 2.8 percent or more. Similarly, Prospects stated that its measurement of human skin reflectance ranged as high as 2.89 percent, with only one measurement as low as 2.04 percent. According to Prospects, the next lowest skin reflectance measurement, 2.23 percent, was considerably higher than the 2.04 percent low value, and the average for all the skin measurements was higher still. Thus, Prospects argued that 2.2 percent is a conservative reflectance value that would provide an adequate margin of safety.

In its supplemental submission, Prospects also elaborated on the characteristics of the detection area covered by the IR sensor. Prospects had previously stated that the detection area of the IR-based system installed on a vehicle would be three dimensional rather than planar. The petitioner stated that the detection area would extend a considerable distance into the vehicle occupant compartment and that the system could detect objects anywhere inside of the three-dimensional space.

Information provided by Prospects suggests that the width of the detection zone would be substantial compared with the dimensions of a child's hand, and the detection capability would be greatest near the top of the window opening (farther from the sensor) where the pinch potential for small appendages is greatest. Prospects stated that the width of the detection zone for its system would be at least 15 cm (5.9 inches).

After considering comments on the proposed rule and the information provided by the petitioner, we have decided to amend FMVSS No. 118 to specify test procedures for non-contact detection systems that use an infrared reflection technique. 11 Accordingly, this notice modifies paragraph S5 of the standard and also adds new paragraphs S7, S8, and S9 to make explicit the test procedures and test rod characteristics that are applicable to different types of automatic reversal systems.

The final rule does not modify or eliminate existing requirements in FMVSS No. 118 which relate to contact/force sensing reversal systems and light beam interruption, nor does it change the circumstances under which power windows, roof panels, and partitions must automatically reverse direction, with the exception of the following change.

In light of the comments submitted by Pektron and BMW about the need to accord fair treatment to other types of non-contact automatic reversal systems ( e.g. , light beam interruption systems), we decided to undertake a general review of the standard's test procedures in the course of modifying those procedures to accommodate systems using IR reflectance technology. After conducting this review, we determined that one additional, minor modification to the standard was necessary, as follows. This rulemaking amends FMVSS No. 118 to require that test rods used for testing window reversal systems using a beam interruption sensing method not be transparent ( i.e. , made of a material that allows significant infrared, visible, or ultraviolet light to pass through).

In actual use, these systems depend on blockage of a light beam by an obstruction in order to sense the obstruction, so it is possible that a transparent obstruction would not be detected. However, any obstruction relevant to safety ( i.e. , a human limb) will always be opaque. Prior to this rulemaking, FMVSS No. 118 had been silent as to test rod transparency. Therefore, if a transparent test rod were used and the system failed to activate as a result, this would not be an indication of an unsafe system, but merely an artifact in the standard. This amendment will ensure that FMVSS No. 118 test procedures better correspond to actual operating conditions and will prevent the discouragement of this technology.

The following provides more in-depth discussion of the standard's new requirements and rationale related to automatic window reversal systems based on infrared reflectance technology.

In response to comments on the need for the present rulemaking action, we would clarify that the standard currently permits and specifies requirements for power window systems that reverse direction “before contacting, or before exerting a maximum squeezing force” on an obstruction ( see S5(a)(1)). Thus, the existing test procedures in the standard are applicable to non-contact systems using IR beam interruption technology.

However, as discussed earlier, we have determined that the test procedures in the current standard are not appropriate for IR reflectance systems. While it is true that the amended standard will contain separate test procedures for different types of power window reversal systems, we do not see any problem with having two sets of test procedures, in light of the dissimilar technologies responsible for automatic reversal of the power windows. Accordingly, under the amended standard, one set of test procedures will apply to non-contact systems using IR reflection, and another set of test procedures ( i.e. , the procedures previously in S5) will apply to contact systems and non-contact systems using beam interruption. Other than one clarification regarding test rod opaqueness, we are not requiring beam interruption systems to meet any requirements different from those that apply to contact systems.

After consideration of the public comments and new information presented to the agency, we believe that the NPRM's proposed test rod with a 15 mm diameter (equivalent to the size of the palm edge of a 15-month-old) should be revised. We selected the proposed specifications for the proposed test rod based on the assumption that an IR-based system would need to detect an object as small as a small child's hand held on edge relative to the IR beam emitter. We assumed that only the hand of a small child would fall within the system's field of view and would be the only source of reflected IR energy in a worst case situation. However, it is evident from the information submitted by Prospects on the width of the detection zone, that a portion of the arm of a small child, in addition to the hand, would be exposed to the IR beam. Accordingly, in this final rule, we have decided to increase the test rod diameter to more adequately account for the wider cross-sectional area contributed by the forearm.

Therefore, we are specifying test rod dimensions as provided in Figure 3. Specifically, the tip of the test rod has a length of 40 mm and a diameter of 10 mm, and the next segment of the test rod has a length of 300 mm and a diameter of 20 mm. (Additional length is provided at the end of the test rod in order to hold and position the rod during testing.)

We are also specifying that the test rods will have an IR reflectance of 1 percent. As discussed in further detail below, we believe that these specifications are reasonably representative of a small child (approximately 15 months in age) reaching for a window opening from inside a vehicle with hand held flat and on edge relative to the emitter/sensor of the IR reflectance system, and whose hand is covered by snug-fitting fabric such that the relative reflectance rate of the covered hand is 1 percent, as measured by the procedure set forth in this final rule. Although some commenters may believe that these requirements are overly conservative, we believe that a desire to accommodate new technologies does not justify safety trade-offs that might permit certain injuries to fingers, even in rare cases (such as when a child's hand is covered with low reflectance materials and is held in an unfavorable orientation).

Testing is conducted at a 16-degree angle of incidence, using a flat sample, with an incandescent light source and sensor with a nominal wavelength of 950 nm ( i.e. , 950 nm ± 100 nm). In order to ensure an objective standard with repeatable test results, we believe that the test fixture incidence/reflection angle must be specified. Further, it is our understanding that bare skin and clothing materials are reasonably uniform, such that their measured reflectance should not be overly sensitive to whatever incidence/reflection angle is selected. This conclusion is supported by the results of the petitioner's experimentation using angles other than 16 degrees.

We believe that the proposed method of infrared reflectance measurement will achieve the goal of comparing the relative (rather than absolute) reflectance of different materials for use in test rods and that it will provide the requisite level of repeatability. Because there was not any information provided that would indicate that another angle would better serve this purpose, the 16-degree test angle proposed in the NPRM has been adopted as part of this final rule (see S8). Further, since no other commenter besides Prospects addressed the wavelength issue, we believe that a 950 nm nominal value (range of 850-1050 nm) is appropriate.

Testing is conducted under simulated sunlight conditions using lighting which projects 64,500 lux (6,000 foot candles) onto the infrared sensor. We agree with the commenters that requiring a test in actual sunlight would create an unnecessary burden on manufacturers and test laboratories, particularly after considering the potential effects of background infrared energy from sunlight on an IR-based power window reversal system. Therefore, in order to reasonably duplicate ambient sunlight, we have decided to specify the amount of background light to which the IR reflectance system's sensor must be subjected during testing. The selected value is based upon actual measurements of horizontal luminance made at 5 p.m. in San Diego, California, in August 1989 during evaluations of the conspicuity of daytime running lights. 12 Although this value is higher than the value recommended by the petitioner, we believe that it is necessary for the system to operate under such circumstances, which are foreseeable in many parts of the U.S.

The amended requirements also state that the lamps used for testing are arranged as close to perpendicular as possible to the plane of the lens of the IR sensor. This placement would account for the worst case test condition, which occurs when the sunlight is perpendicular to the IR emitter/sensor.

The following rationale serves as the basis for selecting the parameters for the test rod and other test requirements.

As a preliminary matter, we note that the purpose of estimating a detection zone width is to facilitate the selection of an appropriate test rod diameter that would reasonably represent the limb of a small child in a worst-case scenario. This final rule does not impose any requirement for detection zone width as part of the standard.

With that background, we note that Prospects indicated that the width of the three-dimensional detection zone covered by the IR reflection system ( i.e. , the distance from the plane of the window opening to a plane inside the vehicle representing the outer functional limit or edge of the detection zone) is at least 15 cm. Presumably, that width estimate corresponds to a location near the top of the window opening where the pinch potential is greatest.

However, we have decided that for the purpose of selecting a test rod diameter, it is inappropriate to rely on that suggested 15 cm dimension for two reasons. First, the IR reflectance systems tested by Prospects were prototypes, so it is uncertain whether the performance of systems in actual production would have the same detection zone width. Second, the 15 cm value was the distance to the limit of the detection zone, not to some intermediate point within it. If the rod size were selected based upon the portion of a child's arm at the limit of the detection zone, it would probably overestimate the reflective area of the arm. Instead, the test rod diameter should emulate the portion of a small child's arm that is situated well within the detection zone when the fingertip just reaches the window opening. In this way, the test rod will represent the predominant reflective cross-sectional area of the entire exposed forearm.

In selecting a test rod diameter, we estimated that a point 10 cm from the window opening is an appropriate intermediate point in the detection zone. Thus, the test rod would need to have the same diameter as a 15-month-old child's arm measured at a distance of 10 cm from the fingertip. We believe that this value is a conservative estimate that will provide a substantial margin of safety under foreseeable conditions.

With the above detection zone in mind, we then examined available information to determine the average size of a 15-month-old child's arm at a point 10 cm from the fingertip. Prospects provided anthropometric data on cross-sectional widths of the hands and arms of children of various ages, including those as young as two years of age. However, the petitioner's data did not include a value for the size of a 15-month-old's forearm at the desired measurement point, and we were similarly unable to find an exact figure in any published reference materials. Instead, we extrapolated available data to arrive at a suitable dimensional specification, utilizing Prospect's data and a scientific paper published by the Society of Automotive Engineers (SAE). 13 The SAE paper contains pertinent measurements of children's hands and arms which, when combined with data provided by Prospects for two-year-old children, gives a reasonable estimate of the appropriate test rod size.

According to the SAE report, the difference in the maximum forearm diameters of a 15-month-old and a two-year-old is small (45 mm vs. 48 mm, respectively), while the difference between the forearm lengths of those same children is more significant (203 mm vs. 237 mm). The report also states that the length of an outstretched hand of both a 15-month-old and a two-year-old is approximately 10 cm (9.3 cm and 10 cm, respectively). Therefore, a point 15 cm from each child's fingertip would fall well onto the forearm of both, and we estimate that the diameter at 15 cm for the 15-month-old would be roughly the same as for the two-year-old (37 mm according to Prospect's data). We expect that the widths would also be very similar at a point 10 cm from the fingertip (19 mm according to Prospect's data). However, at the 10 cm distance, the 15-month-old's cross-sectional width could be estimated to be slightly greater than that of the two-year-old, because that point falls closer to the wrist of the older child, while falling somewhat beyond the wrist, on a thicker part of the forearm of the younger child, due to the somewhat shorter length of the younger child's hand and forearm. Based upon this information, we are adopting a dimension of 20 mm (measured at 10 cm from the fingertip) for the test rod as part of this final rule, which reflects our assumption that the cross-sectional width of a 15-month-old would be 1 mm greater than the 19 mm measurement provided by Prospects for a two-year-old.

Although a test rod with a cylindrical shape and a continuous diameter of 20 mm is a reasonable representation of the predominant reflective area of a small child's hand and arm, we decided that unmodified, it would not be sufficiently realistic, because it would lack the dimensional features to represent a small child's fingers. A child's finger or, more appropriately, the cross-section of a child's hand profile measured at the fingers, is much smaller than 20 mm. Therefore, in order to better simulate a child's hand, we are specifying in the final rule that the test rod will have a smaller diameter at one end. The length of this reduced-diameter section is to be 40 mm, which is equivalent to the length of a 15-month-old's longest finger, according to the data provided by Prospects.

However, further analysis was necessary to determine the diameter of that narrower section of the test rod. While the diameter of a 15-month-old's finger averages 8 mm, we have decided that a somewhat larger diameter would be appropriate, taking into account the contribution of hand coverings ( e.g. , gloves) to the overall hand profile size. Our analysis of the effect of hand coverings is discussed immediately below.

Our next step in determining the parameters of an appropriate test rod for testing IR-based automatic reversal systems involved taking into account the additional thickness resulting from fabric that might cover a child's arm or hand ( e.g. , gloves, long shirt sleeves). Previously discussed dimension represented values for bare skin, but added thickness could be substantial for loose-fitting articles of clothing. Even thin, snug-fitting fabrics could be expected to add between 2 mm to 3 mm of cross-sectional area.

Based upon the information before us, we have decided to add 2 mm to the 8 mm width that is representative of a 15-month-old child's bare fingers. Thus, the resulting profile dimension of the smaller diameter portion of the test rod is set at 10 mm, as shown in Figure 3. We believe that such dimension would simulate the worst-case scenario of a small child's hand covered in a thin fabric.

Although these diameter measures are arguably the most critical aspect of the test rod's design, we have also specified length requirement for the various segments of the test rod as follows. We have determined that the length of small diameter section (representing the finger) should be 40 mm in length, which is derived from the data provided by the petitioner for a 15-month-old child. For the thicker part of the test rod (representing the arm), we have determined that the length should be 300 mm. An additional, undefined length would be permitted, in order for the test rod to be hand-held during a test without the test operator's own hand interfering with the test or influencing the amount of reflected infrared energy.

In addition to the dimensions of the test rod, another factor that has a significant bearing on an IR-based system's detection capabilities is the infrared reflectance of the obstacle. As discussed previously, some fabrics that might cover hands may have a lower IR reflectance than bare skin. Therefore, in order to be representative of actual conditions, test rods would need to have reflectance corresponding to either an uncovered hand ( i.e. , bare skin) or a hand covered in fabric. The reflectance value of any fabric by itself is irrelevant, as power window on fabric alone would not be expected to result in injury.

In setting a reflectance value for the test rod, we sought a value that represents the worst case likely to be encountered in the real world. When petitioner's test fabric with the lowest reflectance value ( i.e. , a black 35-percent cotton/65-percent polyester fabric with a 0.7 percent reflectance) was measured over bare skin using the original test procedure and apparatus, the resulting combination had a reflectance of approximately 1 percent. Bare skin, in contrast, had about a 2-percent reflectance.

Based upon this data, we are adopting a 1-percent surface reflectance as the minimum for rods used for testing IR reflectance systems. We have decided that the 1 percent value for the fabric-covered hand constitutes the appropriate specification for the safety standard, because it represent the worst case scenario relevant to the injury prevention purpose of FMVSS No. 118.

We disagree with Prospect's assertion that thin black polyester/cotton fabric (0.7 percent reflectance) and thin black wool material are not appropriate choices in setting an appropriate lower limit on relative IR reflectance of test rod materials. Although evidence has not been presented regarding the likelihood of such materials being worn on the hands, the possibility exists. For example, such fabrics may be used in children's costumes or “dress up” clothing, or in other cases, sleeves may be worn long, draping over a child's hands. Accordingly, we believe that an IR-based system may encounter thin black polyester/cotton fabric, so the system should be sufficiently sensitive to detect a target with a 0.7 percent IR reflectance.

It should be noted that we have decided to apply the 1 percent reflectance specification to the entire test rod, which would represent a forearm and hand covered by thin, low-reflectance fabric. We acknowledge that the diameter of the wider portion of the test rod assumed an uncovered forearm. However, for practical considerations, we have decided to adopt a 1 percent reflectance value for the entire test rod, without the slight size increase that the fabric would contribute.

We reason that producing a test rod that has different reflectances for its larger and smaller diameter segments would be difficult and potentially costly. By contrast, test rods with uniform reflectance should be easily obtainable. Further, we believe that uniform test rod reflectance may enhance the margin of safety under the standard.

We have decided to change our approach related to the need for reversal of IR reflectance-based systems under S5. Upon further consideration, we can envision certain worst-case situations, in which the size, orientation, reflectance, and location of a small child's hand could combine in a way that the IR-based system could potentially trap the hand, in which case it would be necessary for the window's motion to be reversed, rather than simply stopped. Therefore, we have decided that, as an extra safeguard, it would be advantageous to safety to require that all systems, regardless of detection method, reverse the window to one of the required positions upon detection of an obstacle. We believe that this change will not impose a significant burden on manufacturers, because reversal of the window, as opposed to halting it, should entail only minor changes in the power window circuitry. Further, this modification will simplify the standard by eliminating differences in performance requirements for different types of systems.

We note here that the same rationale discussed above also applies to powered roof panels (sun roofs) and interior partitions, which are similar to power windows in their operation. The primary difference is that they normally operate in planes of motion that are at right angles to powered side windows in motor vehicles.

However, powered interior partitions present a special case, because they can have occupant compartment space on both sides of the partition. Therefore, it is necessary to require that interior partitions be capable of reversing when obstacles ( e.g. , test rods) enter from either side of the partition. Accordingly, we have decided to include a requirement as part of this final rule that would account for powered interior partitions equipped with IR reflection sensing.

At least one commenter raised the issue of a fail-safe design requirement. Although fail-safe operation may be a useful aspect of power window design, we are not including a fail-safe requirement as part of this final rule. The standard does not currently contain a fail-safe requirement for any type of power window system, and there is not any specific reason to believe that the reliability of an IR reflectance automatic reversal system would be different from that of a contact/force sensing system. Thus, we believe that adopting a fail-safe requirement would unnecessarily add to the scope of the standard and increase burdens.

Regarding the issue of electromagnetic interference, we note that in theory, such interference has the potential to affect a variety of vehicle systems ( e.g. , the air bag system). However, the agency has not received any information that would support setting a specific tolerance level as part of this rulemaking.

Regarding comments on the express-up operation of side windows, we believe that some of these comments demonstrate a misunderstanding of the current requirements of FMVSS No. 118. The current standard does not distinguish express-up operation from other permissible closure modes, except that S4 prohibits one-touch activation by remote or exterior controls. Currently, power windows equipped with an express-up feature must meet either the requirements of S4 or S5. The NPRM asked questions about ignition switch settings, lock-out of rear seat power windows, and express-up operation, in order to provide information that may be relevant to future rulemakings. However, in issuing this final rule, we are not amending any of the existing requirements or establishing any new requirements related to ignition switch settings, driver-controlled lock-out, or express-up operation.

The amendments to FMVSS No. 118 contained within this final rule are effective September 1, 2005. Voluntary compliance is permitted before that date. We have determined that this timeframe is appropriate because this final rule does not change any substantive requirements of the standard, but instead, it offers an additional option for compliance under Standard No. 118 based upon new technology.

We note that the NPRM originally contemplated an effective date 30 days after publication of the final rule. However, in recognition of the fact that this final rule adopts new test procedures specific to power window automatic reversal systems based upon infrared reflectance technology, we have decided to grant lead time until September 1, 2005, for manufacturers who choose to equip vehicles with such systems. Accordingly, vehicles equipped with automatic reversal systems using IR reflectance technology that are certified under S5 must meet the requirements of S5.3 no later than that date. Voluntary compliance is permitted prior to that date.

As noted above, this final rule amends FMVSS No. 118 to permit automatic reversal systems based upon infrared reflectance, a new technology. Because these IR-based systems are expected to meet the same functional requirements of other automatic reversal systems (although in a different manner), the standard's overall level of benefits is expected to remain unchanged. It is possible that there may be some marginal additional benefit provided by these systems, in that they may stop and reverse a window prior to any contact (thereby preventing any pinching), but such benefits are difficult to quantify.

Because IR-based automatic power window reversal systems are not required under FMVSS No. 118, there are not expected to be any compliance costs associated with this final rule. Manufacturers are not required to install automatic reversal systems, and if they do, they are free to utilize any permissible technology under paragraph S5 of the standard.

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 “non-significant” under the Department of Transportation's Regulatory Policies and Procedures. The amendments to FMVSS No. 118 contained in this final rule do not impose any new requirements, but simply provide appropriate test procedures for a new technology, thereby allowing manufacturers to certify vehicles employing that technology as meeting the existing requirements of the standard. Therefore, the impacts of these amendments are so minimal that a full regulatory evaluation is not required.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory 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 impose any new requirements, but instead relieves a restriction resulting from a lack of specificity in the current requirement. Further, the infrared sensing technologies that will be permitted as a result of this final rule are only likely to be offered on a small number of vehicles produced by major automobile manufacturers.

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.

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.

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.

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.

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 specifically addressing infrared reflectance-based automatic reversal systems for power-operated window and their unique operating characteristics. However, NHTSA will consider any such standards as they become available.

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 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.

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.

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.

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.