[Federal Register Volume 71, Number 100 (Wednesday, May 24, 2006)]
[Notices]
[Pages 30016-30019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7866]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-22176; Notice 2]


Nissan Motor Company and Nissan North America, Denial of Petition 
for Decision of Inconsequential Noncompliance

    Nissan Motor Company, Ltd. and Nissan North America, Inc. (Nissan) 
have determined that certain vehicles that they produced in 2004 
through 2005 do not comply with S9.2.2 of 49 CFR 571.225, Federal Motor 
Vehicle Safety Standard (FMVSS) No. 225, ``Child restraint anchorage 
systems.'' Pursuant to 49 U.S.C. 30118(d) and 30120(h), Nissan has 
petitioned for a determination that this noncompliance is 
inconsequential to motor vehicle safety and has filed an appropriate 
report pursuant to 49 CFR part 573, ``Defect and Noncompliance 
Reports.'' Notice of receipt of the petition was published, with a 30 
day comment period, on August 25, 2005 in the Federal Register (70 FR 
49972). NHTSA received a comment from Advocates for Highway and Auto 
Safety (Advocates) as well as a comment by Nissan responding to 
Advocates' comment.
    Affected are a total of approximately 24,655 model year (MY) 2005 
Infiniti FX vehicles manufactured from September 1, 2004 to July 13, 
2005, and 65,361 MY 2005 Nissan Maxima vehicles manufactured from 
September 1, 2004 to July 11, 2005. There was also mention in the 
Federal Register notice of 167

[[Page 30017]]

MY 2005 Infiniti Q45 vehicles with rear power seats manufactured from 
September 1, 2004 to June 30, 2005; however, this reference was in 
error and the Infiniti Q45 vehicles are not the subject of this 
petition.
    A child restraint anchorage system consists of two lower anchorages 
and a tether anchorage that can be used to attach a child restraint 
system to a vehicle. These systems are sometimes referred to as LATCH 
(Lower Anchorages and Tethers for Children) systems and are intended to 
help ensure proper installation of child restraint systems.
    S9.2.2 of FMVSS No. 225 requires:

    With adjustable seats adjusted as described in S9.2.3, each 
lower anchorage bar shall be located so that a vertical transverse 
plane tangent to the front surface of the bar is (a) Not more than 
70 mm behind the corresponding point Z of the CRF [child restraint 
fixture], measured parallel to the bottom surface of the CRF and in 
a vertical longitudinal plane, while the CRF is pressed against the 
seat back by the rearward application of a horizontal force of 100 N 
at point A on the CRF.

    The lower anchorage bars in the subject vehicles do not comply with 
this requirement. Nissan states that tests performed for NHTSA by MGA 
Research revealed a noncompliance in a 2005 Infiniti FX, and Nissan 
subsequently investigated its other vehicle models on this issue.
    Nissan believes that the noncompliance is inconsequential to motor 
vehicle safety and that no corrective action is warranted. However, 
NHTSA has reviewed the petition and has determined that the 
noncompliance is not inconsequential to motor vehicle safety. The 
Agency stated in the March 5, 1999 final rule (64 FR 10786) that,

    This final rule is being issued because the full effectiveness 
of child restraint systems is not being realized. The reasons for 
this include design features affecting the compatibility of child 
restraints and both vehicle seats and vehicle seat belt systems. By 
requiring an easy-to-use anchorage system that is independent of the 
vehicle seat belts, this final rule makes possible more effective 
child restraint installation and will thereby increase child 
restraint effectiveness and child safety. 64 FR 10786.

    The language of the March 5, 1999 final rule clearly indicates that 
ease of use is consequential to the proper installation of child 
restraints and ultimately the safety of the child passenger. The ease 
of use for the child restraint anchorage system is directly impacted by 
the rearward location or depth of the anchorage bars.
    In its petition, Nissan first states that the vehicles comply with 
the alternative requirements S15 of FMVSS No. 225, which were available 
as a compliance option until September 1, 2004. Advocates makes the 
comment that this is irrelevant because it was not a legal method of 
compliance at the time the vehicles were built, which is correct.
    When the agency established the safety standard on March 5, 1999 
(64 FR 10786), the final rule did not permit the International 
Organization for Standardization (ISO) compliance option. The agency 
received petitions for reconsideration of the final rule from the 
Alliance of Automobile Manufacturers (Alliance), as well as others. On 
August 31, 1999 (64 FR 47568), the agency allowed manufacturers to 
comply, as an option, with the requirements set forth in a draft 
standard issued by the ISO group until September 1, 2002. This 
provision was later extended to September 1, 2004.
    The ISO requirements permitted lower anchorage strength that was 
less than that required by the March 5, 1999 final rule and did not 
specify a horizontal force to be applied to the CRF when measuring the 
distance between Point Z and the anchorage bar. The reasons for 
permitting this interim compliance option are discussed in the August 
31, 1999 notice:

    These amendments are made to provide manufacturers lead time to 
develop lower anchorages that meet the strength requirements of our 
standard. Lower anchorages meeting the draft ISO requirements will 
provide an improved means of attaching child restraints. While the 
11,000 N strength requirement is preferable to the ISO 8,000 N 
requirement, we are balancing the benefits associated with lower 
anchorages meeting the draft ISO requirements in the short run 
against the possibility of there being no improved means of 
attaching child restraints. Lower anchorages meeting the draft ISO 
requirements will still provide an improvement to parents who have 
difficulty attaching a child restraint correctly in a vehicle or 
whose vehicle seats are incompatible with child restraints. In the 
short term, we are adopting an alternative allowing compliance with 
a lesser requirement as a practicable temporary approach that would 
reap benefits not otherwise obtainable during the interim. The 
agency is thus amending the standard to enable manufacturers to 
provide child restraint anchorage systems in vehicles as quickly as 
possible. 64 FR 47570.

    Thus, the ISO provisions and specifically S15 were permitted as an 
interim step to provide some improvements to the public as quickly as 
possible while balancing the testing and lead time necessary for 
manufacturers to provide a system that complies with the regulation.
    Prior to September 1, 2004, Nissan was able to comply with the S15 
requirement for anchorage bar depth by applying a horizontal force that 
exceeded the 100 N requirement of S9.2.2, since S15 did not specify a 
limit on horizontal force. NHTSA's compliance test data for the 2005 
Infiniti FX35 show that it took a horizontal force of 213 N to achieve 
the 70 mm distance, more than twice the 100 N horizontal application 
force limit in the current standard.
    The March 5, 1999 final rule specified a horizontal force 
application of 5 N at point A on the CRF for determining the distance 
between point Z and the anchorage bars. A force application was 
specified to obtain an objective measurement. The June 27, 2003 
response to petitions for reconsideration (68 FR 38208) revised the 
horizontal application force specified in S9.2.2 to 100 N. General 
Motors had requested that the 5 N requirement be deleted or increased; 
the Alliance requested deletion or an increase to 150 N. In the June 
27, 2003 notice the agency discussed the decision to increase the force 
limit to 100 N.

    On reconsideration, while a force specification is needed for 
objectivity, increasing the force level will result in a larger area 
provided to vehicle manufacturers for installing the LATCH lower 
anchorages, which facilitates the installation of the anchorages. We 
estimate that a 5th percentile adult female would be able to exert a 
100 N force pushing back on a child restraint without problem. 68 FR 
38214.

    The 213 N force necessary to achieve a measurement of 70 mm in the 
Infiniti FX35 far exceeds what was determined to be reasonable (100 N) 
in the June 27, 2003 notice. This means that more than twice the 
permitted force would be needed to achieve a distance of 70 mm or less 
between point Z and the anchorage bars.
    Second, Nissan states that the extent of the noncompliance is not 
significant. Specifically, it says:

    The left and right lower anchorages in the MY 2005 FX vehicle 
were located 76 mm and 83 mm behind Point Z, respectively, when 
tested by MGA under the procedures of S9.2.2. During its subsequent 
investigation using the MGA CRF, Nissan measured the lower anchorage 
location in the left and right rear seats in five other FX vehicles. 
The average distance from Point Z was 78 mm, and the greatest 
distance was 81 mm. The average distance for the four 5-seat Nissan 
Maxima vehicles tested was 76 mm, and the greatest distance was 81 
mm. The average distance for the three 4-seat Maxima vehicles tested 
was 92 mm, and the greatest distance was 94 mm. At most, this 
reflects a distance of less than an inch beyond the distance 
specified in the standard, and the difference

[[Page 30018]]

is less than one-half of an inch for the FX and the 5-seat Maxima 
models.

    Advocates commented that the safety issue is not the actual 
distance of the noncompliance but rather the effect of this 
noncompliance on safety. It states that even a ``noncompliance that 
involves a minimal deviation from the standard can be critical if it 
prevents the proper installation of child restraints in vehicles.'' 
NHTSA agrees. The 70 mm maximum distance between point Z on the fixture 
and the front of the anchorage bar was established to ensure easy 
installation of a child restraint system (CRS) and to reduce the 
likelihood of an improperly installed CRS. Locating the anchorage bars 
at this distance or less ensures that the anchorage bars are accessible 
and easy to use.
    In the March 5, 1999 final rule (64 FR 10786), the agency increased 
the anchorage bar location to the current 70 mm maximum distance after 
the ISO working group increased its limit from 50 mm to 70 mm. In 
requiring the 70 mm limit, NHTSA stated,

    * * * NHTSA believes that most vehicles, except those with 
highly contoured seats, will have the bars 50 to 60 mm from the CRF. 
At this distance the agency believes that the bars would generally 
be visible at the seat bight without compressing the seat cushion or 
seat back.

    Permitting lower anchorages at distances beyond 70 mm affects the 
ease of installation and proper installation of LATCH equipped child 
restraint systems, and compromises the benefits realized by a compliant 
child restraint anchorage system. The measurements of the subject lower 
anchorages exceed the requirements of S9.2.2 by up to 24 mm. Therefore, 
NHTSA finds that the extent of the noncompliance is significant.
    Third, Nissan conducted a survey program to assess the ease of 
installing CRSs in these vehicles, and set out the results as an 
attachment to its petition. Nissan points out that there were few 
unsuccessful attempts and says that the results ``clearly demonstrate 
that the noncompliance * * * does not adversely affect the ease of 
installation of the CRSs * * *.'' Nissan also indicates that the 
latchings were accomplished in an average time of between 22 seconds 
and 39 seconds.
    Advocates calls into question the validity of Nissan's survey 
conclusions, based on Nissan's use of its employees as testers and its 
dismissal of several failures because they were by one installer. NHTSA 
also finds Nissan's conclusions to be questionable.
    Survey participants were women employees of Nissan. No description 
is given of the women involved in the study except that they ``* * * 
included some relatively small women and some mothers * * *.'' Nissan 
indicates that ``These results show that, despite the noncompliance, 
parents and other consumers in the real world have very little 
difficulty installing CRSs in the vehicles covered by this petition.''
    Nissan made no attempt to obtain a sample that is representative of 
the general population but indicates that its results are 
generalizable. In the real world, parents include men, who were not 
included in this study. It seems by selection of a sample consisting of 
all women, Nissan assumes women would have more difficulty than men in 
installing CRSs to the lower anchor in the vehicle seat or that women 
would be more likely to install a CRS. But these may be incorrect 
assumptions. Men also install CRSs and there may be male physical 
attributes that may affect the ability of males to connect CRSs to the 
anchor. For example, in the tight space in the bight of the vehicle 
seat where the anchors are located, men--generally having larger hands 
than women--may have a more difficult time locating the anchor and 
connecting to it.
    Further, each of the twelve installers had the benefit of a short 
demonstration on how each of the CRS hardware types was to be installed 
for the vehicles in question. The installers were also shown a diagram 
from the owner's manual that illustrated the location of the anchorages 
in the seat. They were then shown a sample of a lower anchorage removed 
from a seat so that they would know what to look for in the seat. NHTSA 
is not convinced that this survey is predictive of likely real-world 
problems that would be encountered by members of the general public who 
were not given similar, detailed instructions immediately prior to 
attempting to install a CRS. Also, even with this detailed briefing, 20 
of the 336 installation attempts by this group were unsuccessful.
    It should be noted that Nissan did not include a control vehicle 
(with lower anchors that comply with the standard) in their study for 
comparison purposes. Also, the sample size is very small (12 
participants, and one participant's results were discounted). The 
ability to generalize the results of this study to the population at 
large is very doubtful.
    In addition, NHTSA finds no basis for dismissing several failures 
as anomalous because they were by a single installer. Nissan reports 
that 20 (1.9 %) attempts failed during the trials but adds that one 
participant accounted for 12 of the 20 failed attempts to latch the 
child restraint to the anchor and indicates its belief that her 
performance was ``* * * anomalous and not predictive of the general 
public in installing CRSs * * *.'' Nissan suggests that if the results 
from installer number 9 are discarded, then overall there would only be 
8 unsuccessful attempts (0.3% for the FX, 0.0 % for the 5-seat Maxima, 
and 2.3% for the 4-seat Maxima) to latch a child restraint to the 
anchor. However, installer number 9 did not fail across the board. She 
accomplished 72 successful child restraint installations out of 84 
attempts. Installer number 9 may represent a segment of the 
distribution of child restraint installing capabilities of the general 
public. In other words, there may be a significant number of number 9s 
in the general population. The sample, as stated earlier, is very small 
(and biased), and it could be the case that a sample of this size might 
have one or more data points that appear to be outliers but may prove 
not to be if a larger sample were taken. One other installer in 
Nissan's survey (installer number 8) had 4 unsuccessful installations 
and was retained in the study's assessment.
    Also, it should be noted that Nissan apparently did not obtain 
feedback from the participants concerning the unsuccessful installation 
attempts so it is impossible to know if the location of the anchor had 
any bearing on the installers' ability to attach the CRS to the anchor.
    For these reasons, NHTSA is not convinced that the results of this 
survey program make the case that this noncompliance does not have an 
effect on safety.
    Fourth, Nissan dismissed two complaints that were filed with 
NHTSA's Office of Defects Investigation in January of 2004. Nissan 
contacted the complainants eighteen months after the complaints were 
filed and determined one no longer had their notes and the second may 
have been installed using an improper procedure. NHTSA does not agree 
with Nissan that these complaints should be deemed irrelevant. Both 
complaints were filed by certified child safety technicians. Both 
complainants, as part of their jobs, installed child restraints in 
numerous other vehicles. NHTSA also contacted both complainants and 
determined it was their professional opinion at the time the complaint 
was registered that installation of child restraints into these 
vehicles was very difficult and worthy of sending a complaint to the 
agency.
    These complaints did not account for NHTSA's decision to test the 
Infiniti FX. NHTSA reviews vehicles continuously and identified the 
Infiniti FX as a test vehicle based on preliminary

[[Page 30019]]

inspections that indicated a possible problem with the anchorage bar 
depth. After the noncompliance was determined to exist with the 
Infiniti FX, a check of the complaint database uncovered these 
complaints. The complaints are consistent with the test results that 
indicate the anchorage bars are too deep in the seat bight for easy 
installation.
    Fifth, Nissan states that ``other vehicle characteristics in these 
models compensate for the lower anchorage location to allow for ease of 
installation,'' including seat foam that compresses easily and 
suppleness of leather seats. Nissan has presented no objective data to 
support this assertion, and it is contradicted by NHTSA test data for 
the Infiniti FX35, which indicate that over twice the allowable 
horizontal load must be placed on the CRF to compress the foam before 
the 70 mm distance can be achieved.
    In conclusion, the fact that LATCH anchorages in some Nissan 
vehicles are at between 6 and 24 mm deeper in the seat bight than 
allowed by FMVSS No. 225 is consequential to safety. These LATCH 
anchorages may not be readily accessible and may not enable proper 
anchoring of the CRS to the vehicle, particularly since force 
considerably in excess of that specified in the standard would have to 
be exerted in order for the installer to make proper use of the 
anchorages in some circumstances. Moreover, since the anchorages are 
located deeper in the seat bight, improper anchoring of the CRS to 
other vehicle seat components such as wires and frame elements is more 
probable. The consequentiality may be significantly increased if a CRS 
has rigid attachments that are designed to attach to a vehicle 
anchorage located within the 70 mm distance. The agency believes that 
this noncompliance could well result in children riding in child 
restraint systems that are improperly installed and, therefore, do not 
provide the protection these systems are designed to provide. This is 
the danger the rule was intended to prevent.
    In consideration of the foregoing, NHTSA has decided that the 
petitioner has not met its burden of persuasion that the noncompliance 
described is inconsequential to motor vehicle safety. Accordingly, 
Nissan's petition is hereby denied.

    Authority: 49 U.S.C. 30118, 30120; delegations of authority at 
CFR 1.50 and 501.8.

    Issued on: May 18, 2006.
Daniel C. Smith,
Associate Administrator for Enforcement.
 [FR Doc. E6-7866 Filed 5-23-06; 8:45 am]
BILLING CODE 4910-59-P