[Federal Register Volume 71, Number 70 (Wednesday, April 12, 2006)]
[Rules and Regulations]
[Pages 18673-18683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3505]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Parts 571

[Docket No. NHTSA 2006-24455]
RIN 2127-AJ78


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

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

ACTION: Final rule; response to petitions for reconsideration.

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SUMMARY: This document responds to two petitions for reconsideration of 
our September 2004 final rule amending the Federal motor vehicle safety 
standard for power-operated windows, partitions, and roof panel 
systems. The amendments required that switches for these windows and 
other items in new motor vehicles be resistant to accidental actuation 
that causes those items to begin to close. The purpose of the 
amendments was to reduce the number of injuries and fatalities to 
people, especially children, that occur when they unintentionally close 
the power-operated items on themselves by accidentally leaning against 
or kneeling or standing on the switch or when other occupants 
accidentally actuate the switch in that manner.
    The petitions for reconsideration requested that the agency adopt 
additional amendments. The petitions are granted in part and denied in 
part. In responding to the petitions' request to require ``pull-up-to-
close'' power window switches, we are simultaneously implementing a 
congressional mandate to require such switches. In addition, through 
this document, we are amending the standard to make a number of 
technical amendments.

DATES: Effective Date: The amendments made in this final rule are 
effective June 12, 2006.
    Compliance Date: The requirements of the September 2004 final rule, 
as amended by today's rule, become mandatory for all vehicles subject 
to the standard that are manufactured for sale in the U.S. on or after 
October 1, 2008. Voluntary compliance is permitted before that date.
    Petitions for Reconsideration: If you wish to submit a petition for 
reconsideration for this rule, your petition must be received by May 
30, 2006.

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

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

SUPPLEMENTARY INFORMATION:

[[Page 18674]]

Table of Contents

I. Executive Summary
II. Background
    A. The September 15, 2004 Final Rule
    B. The Congressional Mandate in the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
III. Petitions for Reconsideration
IV. Discussion and Analysis
    A. Pull-To-Close Power Window Switches
    B. Orientation and Placement of Switches
    C. Test Device and Methodology
    1. Size of the Test Device
    2. Composition and Surface Finish of the Test Device
    D. Automatic Reversal
V. Technical Correction
VI. Lead Time and Compliance Date
VII. Benefits and Costs
VIII. Rulemaking Analyses and Notices

I. Executive Summary

    This document responds to two petitions for reconsideration of our 
September 15, 2004 final rule \1\ amending Federal Motor Vehicle Safety 
Standard (FMVSS) No. 118, Power-Operated Window, Partition, and Roof 
Panel Systems. That final rule amended the standard to require that 
switches for these windows and other items in new motor vehicles be 
resistant to accidental actuation that causes those items to begin to 
close. Petitions for reconsideration were submitted by the Alliance of 
Automobile Manufacturers \2\ and a consortium of special interest 
groups advocating highway safety.\3\ The petitions requested additional 
amendments to Standard No. 118.
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    \1\ 69 FR 55517 (Sept. 15, 2004) (Docket No. NHTSA-2004-19032-
1).
    \2\ This November 1, 2004 petition for reconsideration was 
submitted by the Alliance of Automobile Manufacturers, an industry 
trade organization whose members include BMW Group, DaimlerChrysler, 
Ford Motor Company, General Motors, Mazda, Mitsubishi Motors, 
Porsche, Toyota, and Volkswagen. (Docket No. NHTSA-2004-19032-5 and 
6.)
    \3\ This October 21, 2004 petition for reconsideration was filed 
by the following advocacy organizations: Advocates for Highway and 
Auto Safety (Advocates), KIDS AND CARS, The Zoie Foundation, the 
Trauma Foundation, Consumers for Auto Reliability and Safety, 
Consumer Federation of America, Consumers Union, Public Citizen, 
Kids In Cars, 4RKidsSake, and the Center for Auto Safety. (Docket 
No. NHTSA-2004-19032-3 and 4.)
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    The purpose of the September 2004 amendments was to reduce the 
number of injuries and fatalities to people, particularly children, 
that occur when they unintentionally close the power-operated items on 
themselves by accidentally leaning against or kneeling or standing on 
the switch or when other occupants accidentally actuate the switch in 
that manner. 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 pounds) or less.
    In summary, the rule amended FMVSS No. 118 by adding a new 
paragraph S6, specifying that power-operated window, partition, and 
roof panel 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. Under the final rule, 
when the test device is applied with a force not to exceed 135 Newtons 
(30 pounds) 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, and it does also not apply to power-operated systems that meet 
the automatic reversal requirements of S5 of Standard No. 118.
    The petitioners requested amendments pertaining to matters that 
they deemed either to be inadequately addressed by our September 2004 
final rule or to be newly arising therefrom. Specifically, the advocacy 
groups' petition asked the agency to reconsider its decision not to 
require automatic reversal systems and its decision to adopt a 
performance test for accidental actuation, rather than prohibiting the 
use of ``rocker'' or ``toggle'' switch designs.\4\ The advocacy groups 
also requested that the agency amend the standard to reduce the size of 
the test device in the accidental actuation test, in order to account 
for the potential for inadvertent switch actuation by the hands, ball 
of foot, knuckles, elbows, toes, and even knees of young children.
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    \4\ ``Rocker'' switches are designed to pivot on a center hinge, 
effectively operating like a ``see-saw.'' ``Toggle'' switches 
operate using small levers that push back and forth to open and 
close a window. As a result of their design, downward pressure 
(e.g., caused by a child kneeling or leaning) on a rocker or toggle 
switch could result in a window's either opening or closing, 
depending upon how such force is applied.
    In contrast, ``push-pull'' switches function such that pressing 
down on the switch will only cause the window to open, but the 
switch must be actively pulled up in order to close the window. 
Thus, accidental pressing with a hand, knee, or foot on a push-pull 
switch could not cause a window to close, although it might cause it 
to open.
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    The Alliance's petition requested technical amendments involving 
exemption of vertically-mounted switches from the accidental actuation 
test, as well as specification/modification of certain characteristics 
of the test device (e.g., composition, surface finish, tolerance on 
size). (See section IV of this document for a complete discussion of 
issues raised in the petitions and their resolution).
    Also, during the pendency of the agency's consideration of the 
petitions for reconsideration, Congress passed the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU).\5\ Section 10308 of that legislation specifically 
addresses power window switches in motor vehicles, stating:
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    \5\ Pub. L. 109-59, 119 Stat. 1144 (2005).

The Secretary [of Transportation] shall upgrade Federal Motor 
Vehicle Safety Standard 118 to require that power windows in motor 
vehicles not in excess of 10,000 pounds have switches that raise the 
window only when the switch is pulled up or out. The Secretary shall 
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issue a final rule implementing this section by April 1, 2007.

    The petitions are granted in part and denied in part, and through 
this document, we are amending the standard accordingly. Because the 
issue of requiring installation of ``pull-up-to-close'' power window 
switches is already before us in one of the petitions, we are, through 
this final rule, simultaneously implementing the congressional mandate 
to require switches that raise the window only when the switch is 
pulled up or out.
    The following points highlight the amendments to Standard No. 118 
that we are adopting in response to the petitions for reconsideration 
of the September 15, 2004 final rule and to the mandate of section 
10308 of SAFETEA-LU.
     The agency is amending paragraph S6 of the standard to 
require that any actuation device for closing a power-operated window 
must operate by pulling away from the surface in the vehicle on which 
the device is mounted (i.e.,, ``pull-to-close'' switches). An actuation 
device must operate by being pulled vertically up (if horizontally 
mounted), or out (if vertically mounted), or in a direction 
perpendicular to the surrounding surface if mounted in a sloped 
orientation, in order to cause the window to move in the closing 
direction. This provision implements the mandate of section 10308 of 
SAFETEA-LU.
     In order to further clarify and increase the repeatability 
of testing under the standard, the agency is further amending paragraph 
S6 to specify a composition (stainless steel) and a surface finish 
(between 8 and 4 micro inches) for the test device used in the 
accidental actuation test.
     In addition, we have decided to amend paragraph S6 to 
reduce the

[[Page 18675]]

tolerance range for the radius of the test device from 20 mm  1 mm, as specified in the September 15, 2004 final rule, to 20 
mm  0.2 mm. Reduction of this tolerance range, which was 
incorporated to facilitate testing, is reasonable in light of the 
precision of current manufacturing capabilities. Such modification 
would enhance test repeatability while keeping the size of the test 
device close to the 40 mm diameter intended to represent the knee of a 
small child.
    The agency is denying the request in the advocacy groups' petition 
for reconsideration to mandate the installation of automatic reversal 
systems. We are also denying the Alliance's request to amend the 
standard to exclude switches mounted on vertical or nearly vertical 
surfaces from the standard's safer switch requirements (including the 
accidental actuation test).
    In addition, this document also makes a technical correction to 
resolve a testing anomaly that has been brought to the agency's 
attention. Specifically, we have learned that, in certain cases, the 
shape of the test device specified in the final rule (a hemisphere) may 
result in switch actuation under the test in S6, but such actuation is 
an artifact of the test and does not correspond to any real world risk. 
Accordingly, the agency has decided to amend paragraph S6 to change the 
shape of the test device in the accidental actuation test from a 
hemisphere to a sphere, as originally proposed.

Lead Time and Compliance Date

    In amending Standard No. 118 in response to the petitions for 
reconsideration, the agency has decided to retain the mandatory 
compliance date of October 1, 2008 for the safer switches provisions, 
as provided in the September 15, 2004 final rule. In light of industry 
trends and the close proximity in time between promulgation of the 
final rule and passage of the SAFETEA-LU legislation, we believe that 
adequate lead time remains for vehicle manufacturers to make any 
necessary design changes to incorporate the required pull-to-close 
power window switches as part of their normal production process. All 
other changes to the standard involve minor technical modifications. 
Accordingly, we believe that retention of an October 1, 2008 mandatory 
compliance date will continue to permit manufacturers to comply with 
the standard's safer switch requirements at minimal cost. Voluntary 
compliance is permitted before that date.

II. Background

A. The September 15, 2004 Final Rule

    In a final rule published in the Federal Register on September 15, 
2004, the agency amended FMVSS No. 118 to require new passenger cars, 
multipurpose passenger vehicles, and trucks with a GVWR of 4,536 kg 
(10,000 pounds) or less equipped with power-operated windows, 
partitions, and roof panel systems to pass an accidental actuation test 
that uses a device simulating a small child's knee (see S6). (For a 
complete discussion of the history of this rulemaking, including 
related research, see 69 FR 55517.)
    This rulemaking was conducted because available information 
indicated that a small, but persistent problem of injuries and 
fatalities has been occurring when 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 were found to be generally low-frequency events, 
averaging one to two deaths per year in recent years (1999-2002), there 
has been a higher incidence in some individual years (e.g., five deaths 
of this type were recorded in 1998, and a similar number were reported 
in 2004). Furthermore, these tragic incidents continued to occur 
despite other safeguards in the standard (e.g., the requirements in S4 
that power windows will only operate when the key is in the ignition).
    According to the agency's research, switch design is related to 
such injuries; in virtually all of the accidental actuation incidents, 
for which the type of switch is known, the vehicle was equipped with 
``rocker'' or ``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. 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.
    In order to address the identified problem, the final rule amended 
the standard to specify the following requirements for an accidental 
actuation test. 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 pounds) to any 
switch or the housing surrounding the switch that can be used to close 
a power-operated window, partition, or roof panel, such application 
must not cause those items to begin to close.
    As discussed in the final rule, the accidental actuation test in S6 
does not apply to switches that are both roof-mounted and incapable of 
``one-touch'' closure, because switches in those locations are very 
unlikely to be inadvertently actuated. In addition, the requirements of 
S6 do not apply to power-operated systems that meet the automatic 
reversal requirements of S5 of Standard No. 118.
    In the September 2004 final rule, we stated that the accidental 
actuation test provides a simple, effective, and inexpensive means of 
evaluating power window systems and that it will enhance occupant 
protection, especially of children. The final rule was drafted to be 
technology-neutral, so as to permit compliance with any available 
technology that meets the standard's performance requirements. 
Accordingly, the agency anticipated that vehicle manufacturers could 
comply by: (1) Shielding or recessing their switches, (2) designing 
switches so that pressing on them in the manner described above will 
not cause these windows and other items to close, or (3) installing 
more advanced technology (i.e., automatic reversal systems).
    The September 15, 2004 final rule required compliance with the 
amended power window switch requirements of the standard for vehicles 
subject to the standard that are manufactured on or after October 1, 
2008 (i.e., MY 2009) for sale in the United States. (Voluntary 
compliance was permitted immediately.) The agency determined that four 
years of lead time would allow manufacturers sufficient time to 
incorporate the required changes into their vehicles in accordance with 
their normal production cycles. As a result, we concluded that the cost 
impacts of the rulemaking should be close to zero.
    The September 15, 2004 final rule also denied two petitions for 
rulemaking requesting that the agency mandate the installation of 
automatic reversal systems in all new vehicles. We reached that 
decision because much of the potential benefit that might be provided 
by those systems will instead be provided by the accidental actuation 
test requirement. Further, we stated that while the cost of better 
switches will be negligible, the cost of automatic reversal systems is 
significant.

[[Page 18676]]

B. The Congressional Mandate in the Safe, Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)

    Since publication of the final rule amending Standard No. 118, 
Congress enacted the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users on August 10, 2005. As 
noted previously, section 10308 of that Act requires the Secretary of 
Transportation to issue a final rule by April 1, 2007 to ``upgrade 
Federal Motor Vehicle Safety Standard 118 to require that power windows 
in motor vehicles not in excess of 10,000 pounds have switches that 
raise the window only when the switch is pulled up or out.'' 
Responsibility for this rulemaking was delegated to NHTSA.

III. Petitions for Reconsideration

    NHTSA received two petitions for reconsideration submitted in 
response to the September 15, 2004 final rule amending FMVSS No. 118 to 
require safer switches. One petition was submitted by a consortium of 
special interest groups advocating highway safety, including Advocates 
for Highway and Auto Safety, KIDS AND CARS, The Zoie Foundation, the 
Trauma Foundation, Consumers for Auto Reliability and Safety, Consumer 
Federation of America, Consumers Union, Public Citizen, Kids In Cars, 
4RKidsSake, and the Center for Auto Safety (hereinafter ``Advocates et 
al.,''). The other petition was submitted by the Alliance of Automobile 
Manufacturers (Alliance). These petitions may be found in Docket No. 
NHTSA-2004-19032.
    As noted above, the petitioners requested further amendments to 
FMVSS No. 118 regarding issues they deemed to be either inadequately 
addressed by our September 2004 final rule or newly arising therefrom. 
Specifically, the Advocates et al., petition asked the agency to amend 
the standard by adopting a requirement for pull-to-close power window 
switches (thereby prohibiting rocker and toggle switches), and by 
adopting a requirement for automatic reversal systems. The advocacy 
groups also requested that the agency amend the standard to reduce the 
size of the test device in the accidental actuation test.
    The Alliance's petition requested a number of technical amendments 
to the standard, including an exclusion from the accidental actuation 
test for certain switches based upon their orientation and placement in 
the vehicle (i.e., vertically-mounted switches) and specification/
modification of certain characteristics of the test device (e.g., 
composition, surface finish, size of tolerance). All of the issues 
raised in the petitions for reconsideration are addressed in section 
IV, Discussion and Analysis, immediately below.

IV. Discussion and Analysis

A. Pull-To-Close Power Window Switches

    The September 15, 2004 final rule established a performance test 
under paragraph S6, Actuation Devices, applicable to any actuation 
device mounted in the occupant compartment of a vehicle that can be 
used to close a power-operated window, partition, or roof panel, unless 
such device falls within one of two specified exclusions. Because this 
provision was intended to be technology-neutral, it neither mandates 
nor prohibits any particular switch design.
    The Advocates et al., petition for reconsideration argued that the 
September 15, 2004 final rule should have prohibited installation of 
``rocker'' and ``toggle'' switch designs. According to the advocacy 
groups, due to NHTSA's failure to outlaw rocker and toggle switches, 
``manufacturers are permitted to continue to install these obviously 
inferior safety designs that are inherently susceptible to incidental 
actuation.'' Instead of adopting a performance test, the Advocates et 
al., petition argued that the agency should have mandated installation 
of ``push-pull'' switches, which it stated is the type used exclusively 
in vehicles produced by European and Japanese manufacturers.
    Although the advocacy group acknowledged that NHTSA normally avoids 
mandating the use of one particular design to the exclusion of others 
in its rulemakings, their petition suggested that other FMVSSs contain 
design-restrictive requirements (e.g., FMVSS No. 101, Controls and 
Displays, FMVSS No. 108, Lamps, Reflective Devices, and Associated 
Equipment, FMVSS No. 111, Rearview Mirrors). According to the Advocates 
et al., petition, in light of NHTSA's past adoption of design-
restrictive safety requirements, strict adherence to a technology-
neutrality principle should not constitute an impediment to mandating 
the use of a single type of switch (i.e., pull-to-close switches) which 
possesses superior safety-related characteristics.
    In the final rule, the agency decided to adopt a switch performance 
test, rather than prohibit any particular switch design, for a number 
of reasons. First, the agency concluded that an appropriately designed 
rocker or toggle switch (i.e., one that is properly shrouded or 
recessed) would be greatly improved as compared to an unprotected 
rocker or toggle switch and should have essentially the same resistance 
to inadvertent operation as a pull-to-close switch. Second, the 
performance test should ensure that all switches are adequately 
protective no matter how they are designed or where they are mounted in 
a vehicle.
    In their petition for reconsideration, the advocacy groups 
suggested that the agency's sole reason for specifying a performance 
test rather than a design criterion was to avoid being design 
restrictive. On the contrary, we adopted that requirement because the 
agency believes that a performance test is the best way to identify 
switches that are reasonably safe and to provide an objective means of 
determining compliance. Such an approach generally has the added 
advantages of obviating the need to precisely describe a particular 
switch construction and operation that is required in order to qualify 
as a certain type of switch and of not retarding technological 
innovation.
    However, the agency's decision in this area has been superseded as 
a result of the congressional mandate in section 10308 of SAFETEA-LU, 
which requires all power windows in new vehicles not in excess of 
10,000 pounds to have switches that raise the window only when the 
switch is ``pulled up or out.'' After thoroughly considering this 
mandate, it is clear that the intent of the Congress is to specify a 
strict design requirement so that only pull-to-close power window 
switches, the type of switch espoused in the Advocates et al., 
petition, would be allowed. Accordingly, we are granting the request in 
the Advocates et al., petition to mandate pull-to-close switches, and 
we are amending Standard No. 118 in a manner that will satisfy the 
agency's mandate under SAFETEA-LU. The balance of this discussion 
explains the steps we have taken to implement our mandate under section 
10308 of SAFETEA-LU and related issues.
    In overview, we have revised paragraph S6 of the standard to 
include a new regulatory requirement (i.e., pull-to-close operability) 
for power window switches under S6(c), as a supplement to the 
performance test implemented in the September 2004 final rule. 
Specifically, the paragraph S6 of the standard has been amended to 
provide:

    (c) Any actuation device for closing a power-operated window 
must operate by pulling away from the surface in the vehicle on 
which the device is mounted. An

[[Page 18677]]

actuation device must operate only when pulled vertically up (if 
horizontally mounted), or out (if vertically mounted), or in a 
direction perpendicular to the surrounding surface if mounted in a 
sloped orientation, in order to cause the window to move in the 
closing direction.

    As noted above, as part of implementing the SAFETEA-LU mandate, we 
have decided to retain the final rule's accidental actuation 
performance test, subject to certain technical modifications (discussed 
below) that were suggested in the petitions. Our rationale is that even 
given the design requirements for pull-to-close switches, we believe 
that the performance test is crucial to guard against poorly designed 
pull-up switches or any unforeseen switch design that could be 
construed as meeting the newly mandated design requirement but which, 
for some reason, is still susceptible to inadvertent actuation.
    In further clarification of our implementation, we note that the 
SAFETEA-LU legislation did not mandate pull-to-close switches for 
power-operated partitions and roof panels. However, we believe that 
because those switches are already covered under the accidental 
actuation test, there is not a safety need to extend requirements 
impacting design beyond those set forth by Congress. All power-operated 
partition and roof panel switches in vehicles (with the exception of 
ceiling-mounted ones) are already required to either meet the 
performance test of the September 2004 final rule (as amended) or be 
equipped with an automatic reversal system. Thus, we are denying the 
request in the Advocates et al., petition to require pull-to-close 
switches in those cases that exceed our mandate under SAFETEA-LU.

B. Orientation and Placement of Switches

    Under the September 15, 2004 final rule, there are two exceptions 
to the accidental actuation test. Specifically, paragraph S6(d) states 
that the requirement in S6(a)--regarding prevention of window closure 
due to unintentional switch actuation--does not apply to either:

    (1) Actuation devices that are mounted in a vehicle's roof, 
headliner, or overhead console and that can close a window, 
partition, or roof panel only by continuous rather than momentary 
switch actuation, or
    (2) Actuation devices for closing power-operated windows, 
partitions, and roof panels that comply with S5 of this standard 
[i.e., related to automatic reversal].

    In its petition for reconsideration, the Alliance recommended that 
the exception in S6(d)(1) should be expanded to include power window 
switches mounted on vertical or nearly vertical surfaces inside the 
vehicle. Specifically, the Alliance suggested that the exception should 
apply to switches ``mounted on surfaces of 75 degrees of incline or 
greater.'' The Alliance argued that such modification to the standard 
would be appropriate because children cannot climb on or stand on 
vertical surfaces, and it also stated that known fatalities related to 
power window switches involved toggle switches mounted on relatively 
flat (horizontal) surfaces. According to the Alliance, the final rule 
as promulgated would require a number of vehicles with toggle power 
window switches on the console or instrument panel to be redesigned at 
significant cost, but with no benefit.
    After careful consideration, we have decided not to expand the 
standard's exceptions to the accidental actuation test, so as to 
include switches mounted on vertical or nearly vertical surfaces. As 
noted in the final rule, there is some uncertainty surrounding the 
precise mechanism of action by which occupants may inadvertently 
actuate power window switches. It is reasonable to conclude that most 
fatalities/injuries occur when children kneel or stand on the 
horizontal surface of an armrest containing an exposed window switch or 
switches. However, it is easily foreseeable that a child or other 
vehicle occupant might lean against a vertical door panel, in which 
case a window switch mounted vertically there would present at least as 
great a risk as a horizontally mounted one.
    In contrast, the switches excluded under paragraph S6(d)(1) of the 
final rule are excluded because they are effectively out of reach for 
inadvertent contact. The same cannot be said of switches mounted on 
door panels, whether or not they are vertically oriented. Accordingly, 
we are not adopting the recommendation in the Alliance's petition to 
expand the exemption in S6(d)(1) to include power window switches 
mounted on vertical or nearly vertical surfaces.

C. Test Device and Methodology

1. Size of the Test Device
    For the actuation test of S6, the September 15, 2004 final rule 
specified use of a test device in the form of a hemisphere with a 
smooth, rigid spherical surface and a radius of 20 mm  1 mm 
(see S6(b)(1)).
    The Advocates et al., petition argued that the diameter of the test 
device is too large, particularly because the agency increased the size 
of the device by 60 percent (from 1 inch to 1.6 inches) over that 
proposed in the our November 1996 notice of proposed rulemaking 
(NPRM).\6\ The advocacy groups stated that the larger test device would 
permit manufacturers to utilize recessed openings for switches that are 
far larger and shallower than those which could have been used under 
the proposal, and as a result, power window switches will still be 
susceptible to inadvertent actuation by the hands, ball of foot, 
knuckles, elbows, toes, and even knees of young children. According to 
the Advocates et al., petition, the agency's final rule provides for a 
test device so large as to neglect the possibility of operation by 
those other body parts. The Advocates et al., petition urged the agency 
to amend the standard to provide for a smaller test device that would 
better represent the body parts of small children that might 
inadvertently actuate a power window switch.
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    \6\ 61 FR 58504 (Nov. 15, 1996) (Docket No. NHTSA-2004-17216-1).
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    The Alliance's petition also raised an issue related to the size of 
the test device. Specifically, it objected to the incorporation of the 
1 mm tolerance on the size of the test device, which was not proposed 
in the NPRM, for the following reasons. The Alliance argued that such 
tolerance is unnecessary, particularly since other types of test 
apparatus under FMVSS No. 118 do not have size tolerances specified 
(e.g., test rods under S5). Furthermore, the Alliance's petition stated 
that a  1 mm radial tolerance in effect changes the 
required diameter of the test device from 40 mm to 38 mm, because 
manufacturers need to assume worst-case conditions when they conduct 
certification tests.
    In order to remedy this perceived problem, the Alliance recommended 
amending the standard to specify a minimum radius of 20 mm for the test 
device. The Alliance's petition indicated that with current production 
capabilities for machined parts, tolerances can be held to 0.003 to 
0.005 inches (0.076 to 0.127 mm).
    Consistent with the reasoning in the final rule, we continue to 
believe that the size of the test device specified in the final rule is 
appropriate, and in their petition, the advocacy groups did not present 
any data to demonstrate that body parts smaller than a child's knee 
have resulted in inadvertent switch actuation that caused injury. For 
the reasons that follow, we have decided to deny the request in the 
Advocates et al.,., petition that we amend the standard to specify a 
smaller test device.

[[Page 18678]]

    First, power window switches must be of sufficient size to render 
them reasonably ergonomic and accessible for normal operation. In 
contrast, a switch that could resist the wide range of actuation 
possibilities that the advocacy groups assert should be encompassed 
under the rule would be significantly compromised in terms of normal 
use. For example, if switches needed to be resistant to actuation by 
children's knuckles and toes, then even the pull-to-close switches 
mandated under section 10308 of SAFETEA-LU would fail to meet the 
requirement, because those child body parts are at least as small, if 
not smaller, than adult fingers which switches must be able to 
accommodate.
    Second, there is no indication in our review of over two years of 
child fatality cases that power window switches were inadvertently 
operated in any way other than the most obvious one (i.e., where a 
child knelt upon an armrest while leaning out of an open window).
    Furthermore, focusing on ways in which switches theoretically might 
be unintentionally actuated by smaller body parts causes one to lose 
sight of the reality of the underlying safety problem. Although the 
evidence from the case data is limited, it appears that the power 
window switches involved in events leading to death and injury are 
primarily designs where the switches were largely or totally exposed. 
It is evident that even minor design changes in the configuration of 
those switches could have made a significant safety difference.
    For these reasons and in light of the congressional mandate for 
pull-to-close power window switches, we believe that the size of the 
test device in the final rule, which represents the knee form of a 
small child, is sufficient to eliminate unsafe switches while 
maintaining functionality. Accordingly, we are denying the request in 
the Advocates et al.,., petition to decrease the size of the test 
device.
    Turning to the issue raised in the Alliance's petition, we note 
that the agency's intent in including a size tolerance for the test 
device in the final rule was to facilitate testing under the standard. 
However, after considering the petitioner's arguments related to the 
size of the final rule's  1 mm manufacturing tolerance for 
the actuation test device, we agree that a smaller tolerance is 
appropriate.
    Because the test device specified in the accidental actuation test 
is intended to be representative of the knee form of a small child (the 
worst-case scenario corresponding to actual cases of inadvertent power 
window switch actuation), the agency believes it is appropriate to 
specify and to test with a test device that is representative of the 
minimum radius specified under the standard (i.e. , 20 mm) in order to 
ensure that the switch demonstrates the desired level of resistance to 
inadvertent actuation. Devices with a larger radius would certainly 
pass an accidental actuation test already passed by a device with a 
smaller radius.
    By specifying a size tolerance, it is possible to facilitate 
testing by ensuring that the test device meets the standard's 
specifications so as to be representative of a small child's knee 
within a reasonable degree of manufacturing variability. However, in 
light of the information provided on production capabilities for 
machined parts, we have decided to reduce the tolerance on the test 
device from  1 mm to  0.2 mm. We believe that 
this revision will provide a reasonable manufacturing tolerance that 
will continue to closely represent the knee form of a small child.
2. Composition and Surface Finish of the Test Device
    As noted above, for the actuation test of S6, the September 15, 
2004 final rule specified use of a test device in the form of a 
hemisphere with a smooth, rigid spherical surface and a radius of 20 mm 
 1 mm (see S6(b)(1)).
    The Alliance's petition for reconsideration expressed concern that 
the final rule does not specify either the material composition or the 
surface finish of the test device. The Alliance recommended 
specification and use of a test device made of stainless steel and with 
a surface ``polished to between 8 and 4 micro inches.''
    The agency's intent in specifying the material and surface finish 
for the test device in qualitative terms was to be as unrestrictive as 
possible in order to facilitate testing under the standard. However, we 
agree that it would be possible to specify a material composition and 
surface finish parameters for the test device without increasing 
testing costs or compliance burdens. We believe that the test would 
still be easily implemented with such modification, and test 
repeatability may be enhanced to some extent.
    Regarding the choice of material to be used to fabricate the test 
device, we agree that a more detailed specification is appropriate 
because of the wide range of possible materials that could be 
considered ``rigid'' (e.g., wood, plastic, Teflon, cast iron) and 
thereby introduce variation into test results. Accordingly, we have 
decided to adopt the Alliance's recommendation to specify the use a 
test device made of stainless steel.
    Regarding the surface finish of the test device, we note that the 
actuation test, as adopted in the final rule, was intended to emphasize 
contact in the normal direction (i.e., perpendicular to the surface of 
the test device) and to eliminate frictional force in the planar 
direction (i.e., tangent to the surface of the test device). 
Nevertheless, if specifications as to the surface of the test device 
are provided, as suggested by the Alliance, then the potential for 
lateral friction may be further minimized. Accordingly, we have decided 
to adopt the Alliance's recommendation that the test device should have 
a surface finish of between 8 and 4 micro inches, because we believe 
that this specification would be both practical and appropriate.

D. Automatic Reversal

    As discussed in some detail in the preamble of the September 15, 
2004 final rule, the agency decided not to amend Standard No. 118 so as 
to require vehicles equipped with power-operated windows to have an 
automatic reversal system.\7\ Instead, the standard continues to 
provide automatic reversal as a manufacturer option for certifying 
compliance under the standard (see S5). In the final rule, we stated 
that we were not mandating automatic reversal systems in light of their 
substantial cost ($8-12.50 per window or $32-50 per vehicle) and the 
fact that the amendments to the standard to require power window 
switches resistant to inadvertent actuation will reduce the limited 
benefits that could be obtained from those systems.\8\
---------------------------------------------------------------------------

    \7\ See 69 FR 55517, 55527-28.
    \8\ Id. at 55523.
---------------------------------------------------------------------------

    The Advocates et al., petition for reconsideration requested that 
the agency reexamine its decision not to require automatic reversal 
capability for power-operated windows, partitions, and roof panel 
systems. In explaining why it believes there is a need for automatic 
reversal, the Advocates et al., petition began by arguing that FMVSS 
No. 118 ``is based on the flawed premise'' that adult supervision can 
be assumed if the ignition key is present in the vehicle. According to 
the Advocates et al.,., petition, the provisions of S4, to which all 
power window systems are certified for compliance, rely on vigilance 
and ``adult supervision''--not on fail-safe design and operation--to 
prevent power window-related deaths and injuries. However, the advocacy 
groups point to discussion in the preamble to the September 2004 final 
rule, stating that most power window-related deaths of young children

[[Page 18679]]

occurred while the vehicle's key was in the ignition. Thus, the 
Advocates et al., petition argued that real-world behavior and 
circumstances are at variance with the underlying rationale of the 
standard, so in keeping with the premise of public health 
countermeasures, the agency should change the nature of the environment 
in order to abate risk (i.e., by requiring automatic reversal), rather 
than to rely on the judgment of individuals and human behavior. Thus, 
the advocacy groups stated that the agency should have gone further to 
safeguard power windows, addressing all power window fatality scenarios 
by adopting an automatic reversal requirement, rather than focusing 
solely on switch design and thereby neglecting a large portion of the 
problem.
    Furthermore, the advocacy groups argued that the agency's cost-
benefit assessment related to automatic reversal was inadequate and 
unpersuasive. In their petition, the advocacy groups asserted that the 
fatality and injury data relied upon by the agency were unreliable and 
that the breadth of the safety problem is much greater than the data 
indicate (especially since many cases may go unreported). More 
specifically, the Advocates et al., petition stated that current power 
window systems result in a substantial exposure to risk of death or 
injury, even if actual harm only occurs in a small percentage of cases, 
because children are left unsupervised in vehicles with an active power 
window system (the key in the ignition or the availability of a remote 
control) thousands of times each day.
    In addition, the advocacy groups stated that NHTSA should not have 
been deterred from mandating automatic reversal merely because of a low 
benefit-to-cost ratio for that safety system, based upon the precedent 
in other rulemakings. As examples, the Advocates et al., petition 
pointed to the agency's 1995 final rule \9\ under FMVSS No. 201, 
Occupant Protection in Interior Impact (including rear seats in the 
interior occupant protection rule) and our 2000 final rule \10\ 
amending FMVSS No. 208, Occupant Crash Protection (issued in part to 
protect children from air bag-related injuries). The advocacy groups 
stated that NHTSA adopted requirements in these rulemakings, despite 
considerable cost to industry and relatively few fatalities.
---------------------------------------------------------------------------

    \9\ 60 FR 43031 (August 18, 1995).
    \10\ 65 FR 30680 (May 12, 2000).
---------------------------------------------------------------------------

    After careful consideration, we have decided to deny the request in 
the Advocates et al., petition to include an automatic reversal 
requirement under FMVSS No. 118. We note that the advocacy groups have 
not provided any new data regarding either: (1) The incidence of 
fatalities and injuries for inadvertent or intentional actuation of 
power window switches, or (2) the costs of automatic reversal systems. 
We continue to believe that the limited benefits that could be expected 
from an automatic reversal requirement are not justified by the high 
cost of such systems, particularly given the potential for the safer 
switches requirements (both the pull-to-close mandate of section 10308 
of SAFETEA-LU and the performance test in S6) to prevent power window-
related injuries and fatalities. The following discussion explains our 
reasoning in light of the arguments raised in the Advocates et al., 
petition; however, for a more complete discussion, please also read the 
discussion in the September 15, 2004 final rule regarding automatic 
reversal systems.
    First, we disagree with the characterization in the Advocates et 
al., petition that FMVSS No. 118 depends upon supervision of children 
for safety, and the conclusion that flows therefrom, i.e. that because 
reliance on adult supervision has proven inadequate, the agency must 
mandate automatic reversal. Supervision of children and supervisory 
control of the ignition key, in fact, are not the same. Because of 
FMVSS No. 118 requirements, control of the ignition key (and of any 
remote control which can operate the windows) is sufficient for 
ensuring safety vis-[agrave]-vis power windows, thereby obviating the 
need for direct supervision of children with respect to power window 
operation. By requiring the simple act of key removal, the standard 
ensures power windows can be rendered inoperable, rather than making 
supervision of child occupants a necessary condition for safety, as the 
advocacy groups assert.\11\
---------------------------------------------------------------------------

    \11\ We note that key removal is essential for other safety 
reasons as well, such as to prevent roll-aways and to prevent 
children from moving the gear selector or starting the engine. Even 
if all vehicles were equipped with automatically reversing power 
windows, it still would always be advisable to never leave the 
ignition key in an unattended vehicle.
---------------------------------------------------------------------------

    Furthermore, the September 2004 final rule was intended to prevent 
fatalities and injuries associated with inadvertent actuation of power 
window switches, even if children are left unsupervised with the key 
left in the ignition. Based upon the data examined by the agency (as 
discussed in the final rule), we believe that the amendments to the 
standard (i.e., the accidental actuation test and the requirement for 
pull-to-close switches) will prevent the types of power-window 
incidents that have been documented.
    In their petition, the advocacy groups presented other possible 
scenarios, involving either inadvertent or intentional (but accidental) 
switch actuation that have the potential to produce power window-
related injuries. For example, the Advocates et al., petition discussed 
the possibility of a child becoming entrapped when two or more children 
are left unattended in the presence of enabled power windows, and the 
second child inadvertently actuates a switch. In their petition, the 
advocacy groups alleged that there are cases of this type. However, 
there is not any documentation that any such cases have actually 
occurred. Even so, the risk of unintentional switch operation in the 
two-child scenario presented in the Advocates et al., petition is 
already addressed by the safer switch requirement of the final rule.
    In the case of intentional switch operation (i.e., operating the 
switch as designed with a finger), one child could entrap another child 
only if the first child were manipulating switches at the driver's 
window (the only vehicle location with comprehensive controls for all 
windows) or if the two children were at the same window. However, the 
available data did not include any cases in which it could be verified 
that one child accidentally caused entrapment of another child by 
intentionally actuating a power window switch.\12\ We are aware of only 
one documented case of a fatality in which a driver may have closed a 
window while unaware that a child was being entrapped in the window 
opening.\13\
---------------------------------------------------------------------------

    \12\ See 69 FR 55517, 55523-24 (Sept. 15, 2004).
    \13\ See Appendix K of the August 19, 2003 Center for Auto 
Safety et al.,. petition for rulemaking (Docket No. NHTSA-2004-
17216-19).
---------------------------------------------------------------------------

    Furthermore, we do not believe that the speculative arguments in 
the Advocates et al., petition about magnitude of risk justify their 
request for the agency to require automatic reversal systems, absent 
data demonstrating a safety problem. It is not feasible to eliminate 
all potentially conceivable risks through regulation. We do not believe 
that the high cost of automatic reversal systems are justified in the 
absence of data demonstrating a safety need, particularly where the 
standard's safer switches provision is expected to address the problems 
which led to this rulemaking.
    We likewise find no merit to the argument in the Advocates et al., 
petition seeking to link the agency's adoption of requirements in other 
safety

[[Page 18680]]

standards (despite allegedly low benefit-to-cost ratios) as 
justification for requiring automatic reversal systems in FMVSS No. 
118. On that point, the agency considers each potential amendment to a 
safety standard on its own merits, and such considerations are not 
limited to costs. Consequently, the agency's analysis in the 
rulemakings for FMVSS Nos. 201 and 208 are not relevant to our 
determination not to require automatic reversal systems under FMVSS No. 
118.
    For the reasons above, we do not believe that there is significant 
safety need that would justify the high costs of requiring automatic 
reversal systems under Standard No. 118, particularly given the 
potential of current requirements for pull-to-close switches and the 
accidental actuation test to prevent the types of power window-related 
incidents documented in the available data. Accordingly, the request in 
the Advocates et al., petition for an automatic reversal requirement is 
denied.

V. Technical Correction

    Since publication of the September 2004 final rule, a testing 
anomaly related to the accidental actuation test under S6 of the 
standard has been brought to our attention. Specifically, it is 
possible for the hemisphere-shaped test device to contact switches in 
an unintended manner, one in which a sphere-shaped test device could 
not.\14\ Available information suggests that a hemisphere, unlike a 
whole sphere, could fit into a side-by-side switch recess designed for 
fingertips and could actuate a pull-up switch. However, window closure 
in this situation is the result of an artifact of the test design and 
has no relevant safety implications, because a hemisphere held in the 
orientation necessary to cause the problem is not representative of a 
child's knee.
---------------------------------------------------------------------------

    \14\ A representative from Toyota Motors North American, Inc. 
(Toyota) discussed this issue with NHTSA staff on June 21, 2005, 
providing a schematic illustrating the potential actuation problem 
with a hemisphere-shaped test device. (See Docket No. NHTSA-2004-
19032-8.) General Motors provided similar information regarding the 
shape of the test device. (See Docket No. NHTSA-2004-19032-10.)
---------------------------------------------------------------------------

    To resolve this anomaly, we are making a technical correction to S6 
to return the shape of the test device to a full sphere, as we 
originally proposed.\15\ The reason for this change from a complete 
sphere to a hemisphere was primarily to facilitate attachment of a 
handle to the device and alignment of the applied force in the 
requisite direction (i.e., through the center of the point of contact 
of the device's spherical surface with a switch being tested). We do 
not believe that this technical correction will have any impact upon 
the conduct of the accidental actuation test.
---------------------------------------------------------------------------

    \15\ 61 FR 58504, 58507 (Nov. 15, 1996).
---------------------------------------------------------------------------

VI. Lead Time and Compliance Date

    In the September 2004 final rule, the agency stated its intention 
to provide sufficient lead time to allow vehicle manufacturers to 
incorporate compliant power window switches as part of the normal 
vehicle redesign process (which manufacturers suggested range from 
three to five years). As discussed in that rule, we expressed our 
belief that providing this lead time would reduce the costs associated 
with the final rule to essentially zero. Accordingly, the final rule 
required that all new vehicles subject to the standard that are 
produced on or after October 1, 2008 for sale in the U.S. must comply 
with the amended power window switch requirements. The final rule noted 
that voluntary compliance is permitted prior to the mandatory 
compliance date.
    In setting forth the amended requirements to FMVSS No. 118 
contained in this final rule responding to petitions for 
reconsideration, we have decided to retain the mandatory compliance 
date of October 1, 2008, for the reasons that follow. The primary 
change effected by this final rule involves a requirement for power 
window switches with pull-to-close operability, a new requirement which 
implements the agency's mandate under section 10308 of SAFETEA-LU. (All 
of the other amendments to the standard adopted pursuant to this 
response to petitions for reconsideration are minor technical changes 
which should not affect lead time considerations.)
    However, the enactment of the SAFETEA-LU legislation followed the 
September 2004 final rule by a relatively short period of time 
(approximately 11 months), and vehicle manufacturers presumably were 
aware of this new and relatively straight-forward mandate soon after 
enactment, if not before.
    It is unlikely that vehicle manufacturers committed significant 
resources to redesigning their switches during that intervening time 
period, and that they chose a recessed rocker or toggle switch design 
(as permitted under the September 2004 final rule), as opposed to a 
pull-to-close switch design that would meet the statutory mandate. In 
fact, we would note that certain high-volume vehicle models which 
previously had rocker or toggle switches have been converted to pull-
to-close switches since publication of the September 2004 final rule 
(e.g., Ford Explorer, Chevrolet Impala). This suggests that the 
September 2004 final rule only accelerated the industry trend toward 
installation of pull-to-close switches (the most common design in 
current vehicles).
    In any event, we believe that vehicle manufacturers have adequate 
lead time to effect changes related to incorporation of pull-to-close 
power window switches. For these reasons, we believe that additional 
time to comply with the power window switch requirements in this notice 
is unnecessary.

VII. Benefits and Costs

    Section XI of the September 15, 2004 final rule summarized the 
benefits associated with our amendments to FMVSS No. 118 to require 
safer power window switches, and Section XII of that final rule 
described the associated costs. In summary, those sections of the final 
rule stated that based upon all available evidence, the agency expects 
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 the final rule. As discussed 
in that final rule, we believe that this is a conservative estimate and 
that actual benefits are likely to be higher.
    In terms of costs, we stated in the September 2004 final rule that 
we expect that the new requirements will impose very little cost burden 
on vehicle manufacturers, particularly given the ample lead time 
provided (i.e., compliance date of October 1, 2008). Modifications made 
to comply with the final rule were expected to consist merely of 
changes in the mode of switch operation and/or in the shape of 
surrounding trim pieces, and the final rule was not expected to affect 
any other aspect of the operation of power windows. The cost to 
manufacturers, while perhaps greater than zero, were expected to be 
negligible, given that any necessary switch modifications will 
presumably be incorporated during the course of normal product design 
cycles.
    The agency has determined that the technical amendments resulting 
from this final rule responding to petitions for reconsideration, 
including the congressional mandate for pull-to-close power window 
switches, will not appreciably change the costs and benefits reported 
in the September 2004 final rule. We continue to believe that there is 
adequate lead time to allow manufacturers to comply with the amended 
standard without appreciable cost. Accordingly, the agency has decided 
that the estimates in that

[[Page 18681]]

document remain valid and that additional analysis is not required.

VIII. Rulemaking Analyses and Notices

A. Vehicle Safety Act

    Under 49 U.S.C. Chapter 301, Motor Vehicle Safety (49 U.S.C. 30101 
et seq.), the Secretary of Transportation is responsible for 
prescribing motor vehicle safety standards that are practicable, meet 
the need for motor vehicle safety, and are stated in objective 
terms.\16\ These motor vehicle safety standards set a minimum standard 
for motor vehicle or motor vehicle equipment performance.\17\ When 
prescribing such standards, the Secretary must consider all relevant, 
available motor vehicle safety information.\18\ The Secretary also must 
consider whether a proposed standard is reasonable, practicable, and 
appropriate for the type of motor vehicle or motor vehicle equipment 
for which it is prescribed and the extent to which the standard will 
further the statutory purpose of reducing traffic accidents and 
associated deaths.\19\ The responsibility for promulgation of Federal 
motor vehicle safety standards has been delegated to NHTSA.\20\
---------------------------------------------------------------------------

    \16\ 49 U.S.C. 30111(a).
    \17\ 49 U.S.C. 30102(a)(9).
    \18\ 49 U.S.C. 30111(b).
    \19\ Id.
    \20\ 49 U.S.C. 105 and 322; delegation of authority at 49 CFR 
1.50.
---------------------------------------------------------------------------

    As noted previously, the agency published a final rule in the 
Federal Register on September 15, 2004, amending FMVSS No. 118 to 
require power window switches resistant to inadvertent actuation. The 
agency received two petitions for reconsideration of that final rule. 
In addition, in the intervening period, Congress passed section 10308 
of SAFETEA-LU, which directed the Secretary of Transportation ``to 
require that power windows in motor vehicles not in excess of 10,000 
pounds have switches that raise the window only when the switch is 
pulled up or out.'' In this final rule responding to petitions for 
reconsideration, the agency carefully considered the statutory 
requirements of both SAFETEA-LU and 49 U.S.C. Chapter 301.
    First, this final rule reflects the agency's careful consideration 
and analysis of all issues raised in the petitions for reconsideration. 
In responding to the issues raised in these petitions, the agency 
considered all relevant motor vehicle safety information. In preparing 
this document, the agency carefully evaluated relevant, available 
information related to various power window systems. We also carefully 
considered how best to implement the legislative mandate to require 
pull-to-close power window switches. In sum, this document reflects our 
consideration of all relevant, available motor vehicle safety 
information.
    Second, to ensure that the power window requirements remain 
practicable, the agency evaluated the potential impacts of the 
petitions' requested actions in light of the cost, availability, and 
suitability of various power window systems, consistent with our safety 
objectives and the requirements of SAFETEA-LU. As noted above, most of 
the changes resulting from this final rule involve relatively minor 
modifications to the September 15, 2004 final rule, and even the 
requirement for pull-to-close power window switches arguably falls in 
that category. In sum, we believe that this final rule responding to 
petitions for reconsideration is practicable and will maintain the 
benefits of the Standard No. 118, including minimizing the likelihood 
of death or injury from the accidental operation of power-operated 
window, partition, and roof panel systems.
    Third, the regulatory text following this preamble is stated in 
objective terms in order to specify precisely what performance is 
required and how performance will be tested to ensure compliance with 
the standard. Specifically, this final rule amends the standard to 
include a requirement for pull-to-close operability of power window 
switches, and it also makes minor modifications to better define the 
test device used for the accidental actuation test. The standard's test 
procedures continue to carefully delineate how testing will be 
conducted. The agency continues to believe that this test procedure is 
sufficiently objective and would not result in any uncertainty as to 
whether a given vehicle satisfies the requirements of the standard for 
power-operated window, partition, and roof panel systems.
    Fourth, we believe that this final rule responding to petitions for 
reconsideration will meet the need for motor vehicle safety by making 
certain modifications that will enhance the resistance of power window 
switches to inadvertent actuation, thereby preventing potentially 
injurious or fatal incidents, particularly those involving small 
children.
    Finally, we believe that this final rule responding to petitions 
for reconsideration is reasonable and appropriate for motor vehicles 
subject to the applicable requirements. As discussed elsewhere in this 
notice, the modifications to the standard resulting from this final 
rule will further the agency's efforts to address Congress' concern 
that power window switches be resistant to inadvertent actuation, which 
may lead to fatalities and serious injuries, particularly among 
children. Under section 10308 of SAFETEA-LU, Congress mandated issuance 
of a final rule to amend FMVSS No. 118 such that power windows in motor 
vehicles not in excess of 10,000 pounds have switches that raise the 
window only when the switch is pulled up or out. Because this is 
essentially the same modification requested by one of the petitions for 
reconsideration, addressing Congress's safety objective through this 
rulemaking was determined to be appropriate and allows us to 
expeditiously implement congressional intent. Accordingly, we believe 
that this final rule is appropriate for covered vehicles that are or 
would become subject to these provisions of FMVSS No. 118 because it 
furthers the agency's objective of minimizing the likelihood of death 
or injury resulting from the accidental operation of power-operated 
window, partition, and roof panel systems.

B. Executive Order 12866 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to OMB 
review and to the requirements of the Executive Order. The Order 
defines a ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rulemaking document was not reviewed under E.O. 12866. 
Further, this action has been determined to be ``not significant'' 
under the Department of Transportation's Regulatory Policies and 
Procedures. This final rule

[[Page 18682]]

responding to petitions for reconsideration involves technical 
amendments to FMVSS No. 118, with the most noteworthy being a 
requirement that power window switches have pull-to-close operability. 
The agency has estimated that the incremental costs associated with 
these technical modifications to the standard resulting from this final 
rule will not appreciably change the costs of compliance with FMVSS No. 
118. 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, we expect that the September 2004 final rule for 
safer power window switches will result in annual benefits that are 
expected to be a saving of one child's life and the avoidance of at 
least one serious injury, and that this final rule responding to 
petitions for reconsideration will maintain that anticipated level of 
benefits. Therefore, the impacts of these amendments are so minor that 
a full regulatory evaluation is not required.

C. Regulatory Flexibility Act

    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 would not 
have a significant economic impact on a substantial number of small 
entities. The rationale for this certification is that the present 
final rule responding to petitions for reconsideration only makes 
technical modifications and corrections to the safety standard for 
power-operated window, partition, and roof panel systems. Although the 
final rule does implement a congressional mandate for pull-to-close 
power window switches, small entities would continue to have design 
freedom with respect to materials, subcomponents, electronics, and all 
other design factors other than the shape of the switch-finger 
interface. In addition, given the substantial lead time, we continue to 
expect that the costs associated with this rulemaking would be close to 
zero.

D. Executive Order 13132 (Federalism)

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 10, 
1999), requires NHTSA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' are defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Under 
Executive Order 13132, the agency may not issue a regulation with 
Federalism implications, that imposes substantial direct compliance 
costs, and that is not required by statute, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by State and local governments, the agency consults with 
State and local governments, or the agency consults with State and 
local officials early in the process of developing the proposed 
regulation. NHTSA also may not issue a regulation with Federalism 
implications and that preempts a State law unless the agency consults 
with State and local officials early in the process of developing the 
regulation.
    Although it simultaneously implements a statutory mandate for pull-
to-close power window switches, this final rule responding to petitions 
for reconsideration of September 15, 2004 final rule amending FMVSS No. 
118 was analyzed in accordance with the principles and criteria set 
forth in Executive Order 13132, and the agency determined that the rule 
would 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 is not expected to 
have any substantial effects on the States, or on the current 
distribution of power and responsibilities among the various local 
officials.

E. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729, February 7, 1996), the agency has considered whether this 
rulemaking would 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.

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

    Executive Order 13045, ``Protection of Children from Environmental 
Health and Safety Risks'' (62 FR 19855, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental, 
health, or safety risk that the agency has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the agency.
    Although this final rule responding to petitions for 
reconsideration 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.

G. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA), a person is not 
required to respond to a collection of information by a Federal agency 
unless the collection displays a valid OMB control number. There is not 
any information

[[Page 18683]]

collection requirement associated with this final rule.

H. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272) directs the 
agency to evaluate and use voluntary consensus standards in its 
regulatory activities unless doing so would be inconsistent with 
applicable law or is otherwise impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, and business practices) that are 
developed or adopted by voluntary consensus standards bodies, such as 
the Society of Automotive Engineers. The NTTAA directs us to provide 
Congress (through OMB) with explanations when we decide 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.

I. Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million annually (adjusted for inflation with base year of 
1995 (so currently about $112 million in 2001 dollars)). 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 responding to petitions for reconsideration will 
not result in the expenditure by State, local, or tribal governments or 
the private sector, in the aggregate, of more than $112 million 
annually. Thus, this final rule is not subject to the requirements of 
sections 202 and 205 of the UMRA.

J. National Environmental Policy Act

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

K. Regulatory Identifier Number (RIN)

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

L. Privacy Act

    Please note that anyone is able to search the electronic form of 
all comments received into any of our dockets by the name of the 
individual submitting the comment (or signing the comment, if submitted 
on behalf of an association, business, labor union, etc.). You may 
review DOT's complete Privacy Act Statement in the Federal Register 
published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

List of Subjects in 49 CFR Parts 571

    Motor vehicle safety, Reporting and recordkeeping requirements, 
Tires.


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

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

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

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


0
2. Section 571.118 is amended by revising S6 to read as follows:


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

* * * * *
    S6 Actuation Devices. Except as provided in paragraph S6(b), 
actuation devices in the occupant compartments of vehicles used to 
close power-operated windows, partitions, and roof panels must meet the 
following requirements:
    (a) An actuation device must not cause a window, partition, or roof 
panel to begin to close from any open position when tested as follows:
    (1) Using a stainless steel sphere having a surface finish between 
8 and 4 micro inches and a radius of 20 mm + 0.2 mm, place the surface 
of the sphere against any portion of the actuation device.
    (2) Apply a force not to exceed 135 Newtons (30 pounds) through the 
geometric center of the sphere. This force may be applied at any angle 
with respect to the actuation device.
    (3) For actuation devices that cannot be contacted by the sphere 
specified in S6(a)(1) prior to the application of force, apply a force 
up to the level specified in S6(a)(2) at any angle in an attempt to 
make contact with the actuation device. The sphere is directionally 
applied in such a manner that, if unimpeded, it would make contact with 
the actuation device.
    (b) The requirement in S6(a) does not apply to either--
    (1) actuation devices that are mounted in a vehicle's roof, 
headliner, or overhead console that can close power-operated windows, 
partitions, or roof panels only by continuous rather than momentary 
switch actuation, or
    (2) actuation devices for closing power-operated windows, 
partitions, or roof panels which comply with paragraph S5.
    (c) Any actuation device for closing a power-operated window must 
operate by pulling away from the surface in the vehicle on which the 
device is mounted. An actuation device must operate only when pulled 
vertically up (if horizontally mounted), or out (if vertically 
mounted), or in a direction perpendicular to the surrounding surface if 
mounted in a sloped orientation, in order to cause the window to move 
in the closing direction.
* * * * *

    Issued: April 7, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-3505 Filed 4-10-06; 8:45 am]
BILLING CODE 4910-59-P