[Federal Register Volume 71, Number 46 (Thursday, March 9, 2006)]
[Rules and Regulations]
[Pages 12145-12148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2108]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2006-23848]
RIN 2127-AJ84


Federal Motor Vehicle Safety Standards; Head Restraints

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule; partial response to petitions for reconsideration.

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SUMMARY: This document responds, in part, to petitions for 
reconsideration of the December 2004 final rule amending our head 
restraints standard. The amended standard contains new requirements 
applicable to head restraints voluntarily installed in rear outboard 
designated seating positions. Because of the time constraints faced by 
vehicle manufacturers in certifying voluntarily installed rear outboard 
head restraints to the new requirements, we are bifurcating our 
response. This document addresses those issues we feel are most time 
sensitive. In particular, we are responding to those petitions asking 
the agency to delay the application of the new requirements to 
voluntarily installed rear outboard head restraints. This final rule 
delays the date on which the manufacturers must comply with the 
requirements applicable to head restraints voluntarily installed in 
rear outboard designated seating positions from September 1, 2008 until 
September 1, 2010. The remaining petitions for reconsideration will be 
addressed in a separate notice.

DATES: Effective Date: The amendments made in this rule are effective 
May 8, 2006.
    Petitions: Petitions for reconsideration of the amendments made by 
this rule must be received by April 24, 2006.

ADDRESSES: Petitions for reconsideration should refer to the docket and 
notice number of this document and be submitted to: Administrator, 
National Highway Traffic Safety Administration, 400 Seventh Street, 
SW., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: For non-legal issues, you may contact 
David Sutula of the Office of Crashworthiness Standards, Light Duty 
Vehicle Division, NVS-112, (Phone: (202) 366-3273; Fax: (202) 366-4329; 
E-mail: [email protected]).
    For legal issues, you may contact George Feygin of the Office of 
Chief Counsel, NCC-112, (Phone: (202) 366-2992; Fax (202) 366-3820; E-
mail: [email protected]).
    You may send mail to both of these officials at the National 
Highway Traffic Safety Administration, 400 7th Street, SW., Washington, 
DC 20590.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Petitions for Reconsideration
III. Response to Rear Seat Lead-time Issues in Petitions
IV. Regulatory Analyses and Notices

I. Background

    On December 14, 2004, we published in the Federal Register a final 
rule (December 2004 final rule) upgrading Federal Motor Vehicle Safety 
Standard (FMVSS) No. 202, ``Head restraints.'' \1\ The standard, which 
seeks to reduce whiplash injuries in rear collisions, was upgraded to 
provide better whiplash protection for a wider range of occupants. For 
front seats, the final rule established a higher minimum height 
requirement, a requirement limiting the distance between the back of an 
occupant's head and the occupant's head restraint (backset), as well as 
a limit on the size of gaps and openings within head restraints. There 
were also new requirements for height, strength, position retention, 
and energy absorption. In addition, the final rule established new 
requirements for head restraints voluntarily installed in rear outboard 
designated seating positions, and added certain requirements specific 
to rear head restraints capable of folding or retracting into a ``non-
use position'' to accommodate stowable rear seats, or to increase 
rearward visibility. The upgraded provisions were designated FMVSS No. 
202a.
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    \1\ See 69 FR 74848.
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    In response to the final rule, vehicle manufacturers expressed 
concern that adoption of the rear seat head restraint requirements 
would reduce vehicle

[[Page 12146]]

utility by interfering with or even reducing the ability to provide the 
sort of folding seats currently available in ``multi-configuration'' 
vehicles such as vans and multipurpose passenger vehicles.

II. Petitions for Reconsideration

    We received eight petitions for reconsideration of the December 14, 
2004, final rule. These petitions were filed by the Alliance of 
Automobile Manufacturers (Alliance), Syson-Hille and Associates (Syson-
Hille), Keiper, Johnson Controls (JC), BMW, Ford Motor Company (Ford), 
and DaimlerChrysler (DCX). GM filed comments in support of the Alliance 
petition, and Kongsberg Automotive (Kongsberg) submitted a late 
petition.
    The petitions from the Alliance, Syson-Hille, Keiper, JC, BMW, 
Ford, DCX and Kongsberg requested revisions to the final rule in the 
areas of backset measurement and limit, height measurement and limit, 
clearance between the head restraint and roofline, measurement of the 
gap between the head restraint and seat back, retention test procedure, 
dynamic test alternative, energy absorption tests, and owner's manual 
requirements. Many petitioners also argued for delaying the September 
1, 2008, effective date for all new requirements. Our response to these 
particular issues will be addressed in a subsequent notice.
    The remaining petitions for reconsideration pertained to the 
requirements for optional rear head restraints. The Alliance argued 
that recently many new vehicles have been designed such that the rear 
seats retract into the floor. The head restraints on these seats can be 
lowered to a position nearly flush with the top of the seat back, 
allowing the seat to be stowed without head restraint removal. The 
Alliance argued that the new requirements applicable to folding rear 
head restraints are so stringent that it would be impossible for 
manufacturers to provide rear head restraints that can retract enough 
to allow flat-folding rear seats. Ford argued that strong customer 
demand for vehicle functionality requires rear seats with folding or 
otherwise stowable seats and stated that the current requirements are 
not reasonable, necessary or practicable.
    The Alliance, BMW, and DCX requested that the manually stowed non-
use position compliance option originally in the NPRM be reinstated 
except that the required torso angle change should be no more than 5 
degrees. The Alliance commented that the final rule prohibits designs 
that meet the 10-degree torso angle requirement from the NPRM even 
though those designs could provide occupants with an obvious physical 
cue that the head restraint is not properly positioned. The Alliance 
added that design work on seats that meet the NPRM criteria are well 
underway by some companies, and those companies would experience 
hardship if those designs are prohibited by the final rule.
    The Alliance petitioned the agency to allow non-use positions of 
less than 700 mm, and in-use adjustment positions between 700 and 750 
mm. In effect, this petition is asking the agency to lower the minimum 
height requirement for rear seat head restraints from 750 mm to 700 mm, 
while maintaining that the head restraint be capable of reaching 750 
mm. In addition, the Alliance requested that the clearance between the 
head restraint and roofline be clarified to ``inside of the 
headliner.'' The Alliance commented that a clearance of at least 50 mm, 
with the roof in place, is needed in the rear seat outboard locations 
to permit convertible roof mechanisms to operate freely. DCX requested 
that during the roof folding process a clearance of 10 mm be permitted.
    Finally, the Alliance and DCX petitioned that NHTSA modify the 
effective date to require 80 percent compliance with FMVSS 202a 
beginning September 1, 2008, and 100 percent beginning September 1, 
2009, with carry forward credits as has been allowed in other NHTSA 
rulemakings. The Alliance commented that the effective date set forth 
in the final rule does not provide sufficient lead-time for design 
modifications to mechanisms that allow for conversion of passenger 
compartments to cargo areas. The Alliance further stated that certain 
vehicle models that are past final design release will continue in 
production beyond the September 1, 2008, effective date, but would 
require extensive changes to comply with the mandatory FMVSS 202a 
requirements. DCX commented that the phase-in would alleviate the need 
for design and development activity to occur all at once, and 
potentially eliminate short seat production runs.
    GM \2\ submitted additional comments on the final rule requesting 
additional lead-time to permit development of the Global Technical 
Regulation on head restraints. GM argued that without relief from the 
existing requirements, an unintended consequence of the final rule 
would be that manufacturers may opt not to install head restraints in 
rear seats instead of installing head restraints that present stowage 
incompatibility or visibility concerns. The Alliance \3\ submitted 
additional comments in support of GM's position.
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    \2\ Docket NHTSA-04-19807-17.
    \3\ Docket NHTSA-04-19807-19.
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III. Response to Rear Seat Lead-time Issues in Petitions

    This document responds only to those portions of the petitions 
regarding the lead-time for manufacturers to meet the requirements for 
head restraints voluntarily installed in rear outboard seating 
positions. Resolution of the remaining petition for reconsideration 
issues will be addressed in a subsequent notice.
    We agree that manufacturers need additional time to design manually 
retractable rear head restraints that meet the new performance 
requirements. In meetings with DCX \4\, Ford \5\, and GM \6\, the 
petitioners stated that the final rule adversely impacts the design of 
head restraints for stowable seating. For example, DCX argued that 
saddle-type (shingle-type) head restraints, often used on stowable 
folding seats, would not meet the minimum height requirement when 
adjusted to their lowest position, and would not meet the non-use 
position criteria. Ford argued that a flat vehicle floor is a key 
requirement of consumers that would be affected if the final rule were 
not amended. GM argued that less stringent criteria with respect to 
non-use positions is preferable to a situation where vehicle operators 
are forced to remove the rear head restraint to fold the rear seats. GM 
argued that the standard should be amended to permit seat designs that 
allow consumers to keep the head restraint attached to the seat when 
folding, because it will help reduce the risks of improper head 
restraint installation, non-installation, and potential seat damage.
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    \4\ Docket number NHTSA-2004-19807-13.
    \5\ Docket number NHTSA-2004-19807-20.
    \6\ Docket number NHTSA-2004-19807-17.
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    In meetings \7\ held with the agency in August of 2005, GM proposed 
several options for visual cues that a rear seat head restraint is in a 
non-use position. These included a permanent label similar to that 
already present in some Volvo models, and indicators that deploy only 
when the head restraint is in the lowest position. GM suggested that 
visual cues such as these could be employed to ensure that consumers 
properly adjust rear seat head restraints for use after stowage. A 
delay in the final rule is needed for the agency to fully analyze these 
cues as an option.
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    \7\ Dockets NHTSA-04-19807-14 and NHTSA-04-19807-17.

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    The agency believes that a delay in the effective date of the 
requirements applicable to rear head restraints would permit 
development of seat designs that meet the new requirements and still 
provide for stowage. It is not the agency's intent to discourage 
vehicle manufacturers from offering head restraints in rear seats. 
Further, because the vehicles that will become subject to the new 
requirements in 2008 are either already in production or in the final 
design stages, we believe that a delay is necessary at this time. 
Without this action, vehicle manufacturers indicated that they would be 
forced to remove rear head restraints from MY 2008 vehicles while they 
are attempting to resolve the issues raised above.
    We considered the option of only delaying the application of ``non-
use'' provisions for the rear seats. However, to allow a position of 
non-use below 750 mm, without any limitations, is tantamount to 
allowing a height lower than 750 mm. Thus, we believe a 2-year delay in 
regulations for the rear seat head restraints will give manufacturers 
the extra lead-time needed to address the folding rear seat packaging 
issues while implementing the front seat regulations.
    NHTSA believes that this delay is a reasonable change. Based on 
National Analysis Sampling System (NASS) data from 2001 to 2003, the 
distribution of occupants by seating position for all vehicle types 
shows that 10 percent of all occupants sit in the second (or higher) 
row of outboard seats. Fewer rear seat occupants are exposed to risks 
in rear impacts because rear seats are much less likely to be occupied 
than front seats. We note that children and small adults derive less 
benefit from taller head restraints because their head center of 
gravity often does not reach the height of 750 mm above the H point.\8\ 
Therefore, if we further refine these data to include only occupants 
who are 13 years or older, the relevant percentage is reduced to 
approximately 5.1 percent. Our conclusions about rear seat occupancy 
are further supported by the FRIA (Final Regulatory Impact Analysis) 
data, which indicate that out of a total of 272,464 annually occurring 
whiplash injuries, approximately 21,429 (7.8 percent) occur to the rear 
seat occupants. In sum, only a small percentage of occupants who are 
tall enough to benefit from taller head restraints sit in rear outboard 
seating positions. Furthermore, without this delay, manufacturers would 
likely exercise the option to remove rear seat head restraints 
entirely.
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    \8\ The H-point is defined by a test machine placed in the 
vehicle seat (Society of Automotive Engineers (SAE) J826, July 
1995). From the side, the H-point represents the pivot point between 
the torso and upper leg portions of the test machine. It can be 
thought of, roughly, as the hip joint of a 50th percentile male 
occupant viewed laterally.
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    In light of the foregoing, NHTSA is granting an additional 2 years 
for manufacturers to develop designs that comply with the voluntarily 
installed rear head restraint requirements. The requirements applicable 
to head restraints installed in rear outboard designated seating 
positions will become effective September 1, 2010.

IV. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under 
Executive Order 12866 and the Department of Transportation's regulatory 
policies and procedures. This rulemaking document was not reviewed 
under E.O. 12866, ``Regulatory Planning and Review.'' Although this 
document amends the agency's December 2004 final rule, which was 
economically significant, NHTSA has determined that this document does 
not affect the costs and benefits analysis for that final rule. Readers 
who are interested in the overall costs and benefits of head restraints 
are referred to the agency's Final Economic Assessment for the December 
2004 FMVSS No. 202 final rule (NHTSA Docket No. 04-19807). This notice 
has also been determined not to be significant under the Department's 
regulatory policies and procedures. The amendments made by this 
document provide some relief rather than impose additional costs on 
manufacturers or consumers. Their impacts are so minimal that a full 
regulatory evaluation is not merited.

B. Regulatory Flexibility Act

    We have considered the effects of this rulemaking action under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) This action will not 
have a significant economic impact on a substantial number of small 
businesses because it does not significantly change the requirements of 
the December 2004 final rule. Instead, this document delays the 
effective date of some of the requirements. Small organizations and 
small governmental units will not be significantly affected since the 
potential cost impacts associated with this rule will not affect the 
price of new motor vehicles.

C. National Environmental Policy Act

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

D. Executive Order 13132 (Federalism)

    The agency has analyzed this rulemaking in accordance with the 
principles and criteria contained in Executive Order 13132 and has 
determined that it does not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The final rule has no 
substantial effects on the States, or on the current Federal-State 
relationship, or on the current distribution of power and 
responsibilities among the various local officials.

E. Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 requires agencies to 
prepare a written assessment of the costs, benefits and other effects 
of proposed or final rules that include a Federal mandate likely to 
result in the expenditure by State, local or tribal governments, in the 
aggregate, or by the private sector, of more than $100 million annually 
(adjusted for inflation with base year of 1995). While the December 
2004 final rule is likely to result in over $100 million of annual 
expenditures by the private sector, today's final rule makes only small 
adjustments to the December 2004 rule. Accordingly, this final rule 
will not result in a significant increase in cost to the private 
sector.

F. Executive Order 12778 (Civil Justice Reform)

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

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, a person is not required 
to respond to a collection of information

[[Page 12148]]

by a Federal agency unless the collection displays a valid OMB control 
number. This rule does not establish any new information collection 
requirements.

H. Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier 
number (RIN) to each regulatory action listed in the Unified Agenda of 
Federal Regulations. The Regulatory Information Service Center 
publishes the Unified Agenda in April and October of each year. You may 
use the RIN contained in the heading at the beginning of this document 
to find this action in the Unified Agenda.

I. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. This final rule will not significantly impact the 
complexity of FMVSS 202.

J. Executive Order 13045

    Executive Order 13045 applies to any rule that: (1) Is determined 
to be economically significant as defined under E.O. 12866, and (2) 
concerns an environmental, health or safety risk that NHTSA has reason 
to believe may have a disproportionate effect on children. If the 
regulatory action meets both criteria, we 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 us. This rulemaking does not involve decisions based on health risks 
that disproportionately affect children.

K. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) requires NHTSA to evaluate and use existing voluntary 
consensus standards \9\ in its regulatory activities unless doing so 
would be inconsistent with applicable law (e.g., the statutory 
provisions regarding NHTSA's vehicle safety authority) or otherwise 
impractical. In meeting that requirement, we are required to consult 
with voluntary, private sector, consensus standards bodies. Examples of 
organizations generally regarded as voluntary consensus standards 
bodies include the American Society for Testing and Materials (ASTM), 
the Society of Automotive Engineers (SAE), and the American National 
Standards Institute (ANSI). If NHTSA does not use available and 
potentially applicable voluntary consensus standards, we are required 
by the Act to provide Congress, through OMB, an explanation of the 
reasons for not using such standards.
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    \9\ Voluntary consensus standards are technical standards 
developed or adopted by voluntary consensus standards bodies. 
Technical standards are defined by the NHTSA as ``a performance-
based or design specific technical specifications and related 
management systems practices. They pertain to products and 
processes, such as size, strength, or technical performance of a 
product, process or material.''
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    The agency is not aware of any new voluntary consensus standards 
addressing the changes made to the December 2004 final rule as a result 
of this final rule.

List of Subjects in 49 CFR Part 571

    Imports, Incorporation by reference, Motor vehicle safety, Motor 
vehicles, and Tires.

    In consideration of the foregoing, 49 CFR part 571 is amended as 
follows:

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 of title 49 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 30111, 30115, 30117, and 30166; 
delegation of authority at 49 CFR 1.50.

0
2. Section 571.202a is amended by revising S4.1 to read as follows:


Sec.  571.202a  Standard No. 202a; Head restraints.

* * * * *
    S4.1 Performance levels. In each vehicle other than a school bus, a 
head restraint that conforms to either S4.2 or S4.3 of this section 
must be provided at each front outboard designated seating position. In 
each vehicle manufactured after September 1, 2010 and equipped with 
rear outboard head restraints, the rear head restraint must conform to 
either S4.2 or S4.3 of this section. In each school bus, a head 
restraint that conforms to either S4.2 or S4.3 of this section must be 
provided for the driver's seating position. At each designated seating 
position incapable of seating a 50th percentile male Hybrid III test 
dummy specified in 49 CFR part 572, subpart E, the applicable head 
restraint must conform to S4.2 of this section.
* * * * *

    Issued on: March 1, 2006.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 06-2108 Filed 3-8-06; 8:45 am]
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