[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Proposed Rules]
[Pages 76326-76329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29728]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. 2007-27027]


Conaway Hip-Hugger; Denial of Petition for Rulemaking

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

ACTION: Denial of petition for rulemaking.

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SUMMARY: This notice denies a petition for rulemaking submitted by Mr. 
Brian J. Conaway, which, among other things, requested that the NHTSA 
amend the language and definitions in Federal Motor Vehicle Safety 
Standard (FMVSS) No. 213, ``Child restraint systems,'' to apply the 
standard to products that are not yet defined by the standard, such as 
belt positioning devices. Alternatively, the petitioner asked the 
agency to adopt a new definition, which would allow his product, the 
Hip-Hugger, to be recognized and defined as a child restraint device 
under FMVSS No. 213. NHTSA is denying the petition because it does not 
see a safety need to apply a FMVSS to seat belt positioners and it does 
not believe that a denial would hamper child restraint system 
innovation or design. Furthermore, the agency is concerned that 
applying FMVSS No. 213 to seat belt positioners may actually degrade 
child occupant protection by promoting premature graduation to lap/
shoulder belts.

FOR FURTHER INFORMATION CONTACT: For technical issues: Mr. Sean Doyle, 
NHTSA Office of Crashworthiness Standards. Telephone: (202) 366-1740. 
Facsimile: (202) 493-2990.
    For legal issues: Ms. Deirdre Fujita, NHTSA Office of the Chief 
Counsel. Telephone: (202) 366-2992. Facsimile: (202) 366-3820.
    Both officials can be reached by mail at the National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, 
DC 20590.

SUPPLEMENTARY INFORMATION:

I. Background

A. FMVSS No. 213

    Federal Motor Vehicle Safety Standard (FMVSS) No. 213, ``Child 
restraint systems,'' has been in effect since January 1, 1970. It was 
established to ``minimize the likelihood of death and injury to 
children in vehicle crashes or sudden stops. * * *'' \1\ In 1979, the 
standard was upgraded to include certain dynamic performance 
requirements.\2\ The standard applies to ``child restraint systems'' 
and stipulates several definitional requirements for the various child 
restraint systems used in motor vehicles. A ``child restraint system'' 
is defined in FMVSS No. 213 to be ``any device except Type I or Type II 
seat belts, designed for use in a motor vehicle or aircraft to 
restrain, seat, or position children. * * *'' \3\ Belt-positioning 
seats, built-in child restraint systems, backless child restraint 
systems, and car beds are among several of the applicable, defined 
``child restraint systems'' covered by FMVSS No. 213. Seat belt 
positioning devices are not included in the definition of ``child 
restraint system'' in FMVSS No. 213, and are therefore not regulated by 
this standard.
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    \1\ 34 FR 1172, January 24, 1969. Originally the standard was 
called ``Child Seating Systems'' and applied to motor vehicle 
equipment for seating and restraining a child being transported in a 
passenger car.
    \2\ 44 FR 72131, December 13, 1979.
    \3\ Standard No. 209 defines a Type I seat belt as ``a lap belt 
for pelvic restraint,'' and a Type II seat belt as ``a combination 
of pelvic and upper torso restraints.''
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B. The Petition

    In a letter dated March 5, 2007, Mr. Brian Conaway petitioned the 
NHTSA to amend the language and definitional requirements of FMVSS No. 
213 to permit what he said were advancements in child restraint design 
and to encourage new approaches to child protection. The petitioner 
believed that the effectiveness of the regulation is restricted by 
narrow definitions. The petitioner contended that there are many 
innovative child safety vehicle devices ``which do not `* * * restrain, 
seat, or position children * * *' in a manner consistent with any of 
the current definitions,'' yet these devices are fully capable of 
complying with Standard 213's dynamic performance requirements. The 
petitioner further alleged that the ``process of system `definitions' * 
* * limits innovation and advancements in child restraint design to 
those approaches which already exist and fit a product type already 
defined in the standard.'' Mr. Conaway went on to say, ``this results 
in designing to a standard instead of designing to optimize a child's 
comfort and safety in the event of a crash.'' In particular, Mr. 
Conaway explained that the device which he developed, the Hip-Hugger, 
or Conaway devise, is excluded from FMVSS No. 213, ``not based on the 
crash data or protection it provides, but based on its inability to 
meet the definition of any of the recognized alternative and already 
existing approaches to child protection.'' The petitioner further 
noted, ``this is in spite of the fact that it outperforms booster seats 
when crash tested under FMVSS-213 dynamic test standards.'' As a 
result, Mr. Conaway specifically requested that FMVSS No. 213 be 
``changed to allow for products not yet defined to be included as long 
as they meet the appropriate age, weight, and height related 
performance and labeling standards.'' Alternatively, Mr. Conaway 
petitioned the agency to adopt a new definition into FMVSS No. 213 that 
would permit his device to be recognized as a child restraint system.
    Mr. Conaway's Hip Hugger device is a type of seat belt positioning 
device. Mr. Conaway first wrote to NHTSA about the Hip Hugger in 2001, 
asking whether it was a ``child restraint system'' under FMVSS No. 213. 
The following is a description of the device, taken from the agency's 
June 1, 2001, letter written in response to Mr. Conaway, in which we 
explained that the device was not a child restraint system:

    You [Mr. Conaway] explained * * * that one part of the product 
performs similarly to

[[Page 76327]]

a device called a ``locking clip'' used to secure some child 
restraint systems. A locking clip is a bracket into which the 
webbing of a Type II seat belt is threaded. A locking clip typically 
prevents movement of the latchplate and the webbing of the lap and/
or shoulder belt. Your product is not used with child restraints, 
but acts similarly to a locking clip by ``locking'' the lap belt 
portion of the Type II belt over the child's lap. You would instruct 
parents to lock the lap belt tight enough over the child such that 
the child will not be able to slouch or scoot forward, even to bend 
his or her knees at the vehicle seat cushion's edge. Attached to the 
locking device is a plastic guide through which the shoulder belt 
portion of a Type II belt is threaded. The guide positions the 
shoulder belt ``so that it does not ride across the neck of the 
child.'' * * *

C. Agency Past Assessment of Seat Belt Positioners

    NHTSA has considered regulating seat belt positioning devices on 
several occasions, but has declined to do so. In a notice of proposed 
rulemaking (NPRM) dated March 16, 1994 (59 FR 12225), the agency 
requested comments on whether FMVSS No. 213 should be applied to belt 
positioning devices, and if so, what requirements would be appropriate. 
After considering comments on the issue, on July 6, 1995, the agency 
published a document explaining that it decided against regulating belt 
positioning devices in FMVSS No. 213 because it needed to ``better 
assess the safety benefits of such rulemaking, and the feasibility of a 
test procedure and practicability of performance requirements'' (60 FR 
at 35137). On January 31, 1996, petition for rulemaking, the American 
Academy of Pediatrics (AAP) voiced concern that some belt positioning 
devices had a tendency to interfere with proper lap and shoulder belt 
fit and often introduced slack in the shoulder belt. The AAP contended 
that since belt positioners are generally marketed as child protection 
devices, they should be exposed to the same certification and testing 
as child restraint systems, and should thus be regulated by FMVSS No. 
213. The agency responded to the AAP petition by declining to undertake 
rulemaking on FMVSS No. 213, for the reasons given below. Instead, the 
agency proposed amending its consumer information regulations (49 CFR 
Part 575) to require proper warnings and labeling of the products 
(August 13, 1999 (64 FR 44164)),\4\ and requested comments on an 
alternative or additional approach to establishing a minimum dynamic 
performance requirement for belt positioners. NHTSA determined that it 
was inappropriate for belt positioners to be regulated by FMVSS No. 213 
because the agency believed that doing so could have a negative net 
effect on child safety. The reasons for this conclusion were as 
follows:
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    \4\ In the NPRM, NHTSA proposed to define ``seat belt 
positioner'' as ``a device, other than a belt-positioning seat, that 
is manufactured to alter the positioning of Type I and/or Type II 
belt systems in motor vehicles.''
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     A comparison study of dynamic sled tests with the Hybrid 
II 3-year-old and 6-year-old dummies, restrained with either the lap/
shoulder belt and one of three different belt positioners, or with a 
lap/shoulder belt only, indicated that belt positioning devices 
generally reduced belt performance of the lap/shoulder belt system, and 
led to increased head and chest injury criteria measurements, and head 
and knee excursions measurements for the 3-year-old dummy.\5\ \6\ 
Testing with the 6-year-old also revealed the dummy's tendency to roll 
out of the seat belt positioner and around the shoulder belt, not to 
mention the possible introduction of belt slack, when a belt positioner 
was used.\7\
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    \5\ These tests were conducted by the agency in 1994 in an 
attempt to better assess the benefits of a rulemaking for belt 
positioning devices as the Agency looked to amend FMVSS No. 213. See 
NHTSA Test Nos. 3101--3114.
    \6\ 64 FR 44166, August 13, 1999.
    \7\ ``Evaluation of Devices to Improve Shoulder Belt Fit,'' DOT 
HS 808 383, Sullivan and Chambers, August 1994. The report is 
available from the National Technical Information Service, 
Springfield, VA 22161.
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     A comparison study of tests for belt positioning devices 
to FMVSS No. 213 compliance tests compiled between 1993 and 1998 for 
both the 3-year-old and the 6-year-old child dummies positioned in 
either convertible child restraints or belt-positioning booster seats 
indicated that children are typically afforded greater levels of 
protection when using either type of child restraint than when using a 
lap/shoulder belt system with a belt positioner.\8\
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    \8\ 64 FR 44168, August 13, 1999. FMVSS No. 213 compliance test 
data from 1993 to 1998 can be found through the National Technical 
Information Service, Springfield, VA 22161.
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     It was unknown whether the requirements of FMVSS No. 213 
could adequately assess belt positioners and discern between acceptable 
and unacceptable performance. Also, abdominal loading could not be 
evaluated because the applicable child dummies were not fitted with 
abdominal sensors and no abdominal injury criteria existed.
     Child restraint systems offered additional benefits for 
toddlers over seat belt positioners, including (1) A high back and side 
support, which permit neck support and support in side impacts, (2) an 
internal harness which diverts and distributes dynamic crash forces 
away from vulnerable soft tissues and organs, and (3) a comfortable 
fit, which discourages slouching and thus the repositioning of the lap 
belt over a child's soft abdominal area.
     Some consumers may prematurely graduate their child from a 
recommended age/size-appropriate child restraint such as a toddler seat 
or a belt-positioning booster seat to the lap/shoulder belt with seat 
belt positioner, thereby degrading the child's crash protection.\9\
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    \9\ NHTSA recommends that children weighing over 40 lbs. be 
restrained in a booster seat until they are tall enough so that they 
can, without the aid of a booster seat: (1) Wear the shoulder belt 
comfortably across their shoulder, and secure the lap belt across 
their pelvis, and (2) bend their legs over the front of the seat 
when their backs are against the vehicle seat back.
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    In a Federal Register notice published on March 23, 2004 (69 FR 
13503), the agency terminated the rulemaking regarding the consumer 
information requirement for seat belt positioners. The decision was 
made because crash data did not quantify a safety need to regulate seat 
belt positioners, and because NHTSA became concerned that the labeling 
proposed in the NPRM could be misconstrued by some parents as an agency 
recommendation that it would be acceptable to restrain 6-year-old 
children in a vehicle belt system if a belt-positioner were used. Such 
a conclusion would be contrary to the recommendation of the agency that 
6-year-old children are best restrained when in a belt-positioning 
booster seat. Also, further testing was being planned for belt guidance 
devices pursuant to Anton's Law.\10\ Section 3(b)(2) of Anton's Law 
directed the NHTSA to consider whether to establish injury performance 
requirements for seat belt fit when used with booster seats and other 
belt guidance devices.
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    \10\ Pub. L. 107-318, 116 Stat. 2772.
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    In response to Section 3(b)(2) of Anton's Law, the agency analyzed 
several studies exploring the extent to which booster seats differ in 
how they affect the fit of a vehicle's belts on a child. The agency did 
determine that various booster seats could differ in how belts fit but 
was unable to conclude that the small differences translated into 
associated differences in the dynamic performance of a belt system in a 
crash. The agency also found that belt positioning devices improved 
belt fit, but was unable to conclude how these devices would affect 
belt performance when tested dynamically. The agency decided that 
proposing performance criteria for safety belt fit for booster

[[Page 76328]]

seats or belt guidance devices was unwarranted.

D. Correspondence on the Hip-Hugger

    As noted above, the agency first corresponded with Mr. Brian J. 
Conaway about the Hip-Hugger in 2001. At that time, Mr. Conaway 
requested an interpretation of whether the Hip-Hugger, a small, plastic 
device which attaches to Type II seat belts to restrain children 
weighing between 50 and 100 pounds (lb), would be classified as a child 
restraint system under FMVSS No. 213, and alternatively if it would be 
considered a seat belt positioner. In an interpretation letter dated 
June 1, 2001, the agency informed Mr. Conaway that his product did not 
meet the definition of a child restraint system as set forth in FMVSS 
No. 213.\11\ The agency explained that Mr. Conaway's device was 
designed to position a seat belt, not to restrain, seat, or position 
children. The agency noted that at that time, it did not have a 
standard or regulation for seat belt positioners, but acknowledged that 
the description of the Hip-Hugger did seem to conform to the definition 
of a seat belt positioner proposed in the August 13, 1999 NPRM (``a 
device, other than a belt-positioning seat, that is manufactured to 
alter the positioning of Type I and/or Type II belt systems in motor 
vehicles''). In 2006 and 2007, Mr. Conaway wrote follow-up letters to 
NHTSA raising the same issues as those raised in his 2001 letters, to 
which NHTSA replied on October 26, 2006, and March 12, 2007. In each of 
the agency's responses, NHTSA maintained the position that the Hip-
Hugger did not meet the definition of a child restraint system set 
forth in FMVSS No. 213 because the Hip-Hugger does not itself restrain, 
seat, or position a child occupant in a crash.
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    \11\  http://isearch.nhtsa.gov/files/Conawaylockingmechanism.html.
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III. Analysis of Petition

    The Agency's opinion regarding Mr. Conaway's device has not changed 
since its first correspondence with him in 2001; the petitioner has not 
suggested that the design of this device has been altered. The Hip-
Hugger is a belt positioning device. The petitioner seeks to revise 
FMVSS No. 213's definition of child restraint system to include devices 
such as belt-positioning devices.
    We do not agree to this suggestion for several reasons. First, 
there is no evidence of a real-world safety problem with seat belt 
positioners. There is no safety need for an FMVSS to apply to seat belt 
positioners or a need to incorporate seat belt positioners into FMVSS 
No. 213. NHTSA has considered the safety need for the requested 
rulemaking, agency resources and agency priorities, and has determined 
that the petition should be denied.
    Second, we do not believe that a denial ``limits innovation and 
advancements in child restraint design'' as the petitioner maintains. 
The main effect of the denial is that petitioner may not refer to it as 
a child restraint system or certify that it meets FMVSS No. 213. The 
petitioner may continue to produce and market his device even when 
FMVSS No. 213 does not apply to it. This denial does not hamper the 
production of the device in any way. Seat belt positioners are 
considered motor vehicle equipment and their manufacturers are thus 
subject to the requirements of 49 U.S.C. 30119 and 30120 concerning the 
recall and remedy of products with safety-related defects.
    Third, we are denying the petition because the agency also remains 
concerned, as discussed in the August 13, 1999 NPRM, that FMVSS No. 213 
is not an appropriate standard for the devices. Including seat belt 
positioners in FMVSS No. 213 could unintentionally encourage premature 
graduation to lap/shoulder belts with belt positioners, which could 
degrade a child's safety by inducing injuries, such as abdominal 
injuries, caused by submarining.\12\ A recent study of abdominal 
injuries conducted by Partners for Child Passenger Safety showed that 
children aged four to eight years whose restraint use was suboptimal, 
were more than three times more likely to sustain an abdominal injury 
than optimally restrained children.\13\ Additionally, since FMVSS No. 
213 does not currently have abdominal injury limits, as none of the 
child test dummies have an abdominal insert capable of measuring injury 
levels, nor has an abdominal injury criterion been established for any 
of the child crash test dummies utilized in FMVSS No. 213, FMVSS No. 
213 might not adequately distinguish ``acceptable'' performers from 
``unacceptable'' ones, and thus a certification to the standard could 
be meaningless.
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    \12\ Submarining occurs when the pelvis becomes unrestrained by 
the lap belt portion of a safety belt assembly and then slides under 
the lap belt in a frontal impact. As a result, the belt is free to 
enter the abdominal cavity and cause injury to the unprotected 
internal organs and lumbar spine.
    \13\ Annals of Surgery, January 2004.
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    In April 2005, the Agency conducted dynamic testing in accordance 
with FMVSS No. 213 using the Hybrid III 6-year-old and 10-year-old 
dummies in booster seats, belt positioning devices, and vehicle lap/
shoulder belts as part of the preparation for the August 31, 2005 NPRM 
(70 FR 51731) to incorporate the Hybrid III 10-year-old dummy into 
FMVSS No. 213. The results substantiated the agency's past concerns 
with incorporating belt positioners into the current standard. On 
average, this testing produced head and chest readings for both dummies 
that were as high or higher when belt positioning devices were used 
compared to when only a lap/shoulder belt or a belt positioning booster 
was used.\14\ \15\ Therefore, this data suggests that child belt 
positioning devices, which do not meet the standard's definitional 
requirements, do not generally perform better than other devices that 
do meet the standard's definitional requirements.
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    \14\ Associated sled test data can be found along with this 
petition response in Docket  2007-27027.
    \15\ In accords with that suggested in the August 31, 2005 NPRM, 
the Hybrid III-10C dummy was positioned in both an upright seating 
posture and a slouched posture to determine if posture has an effect 
on the performance of belts and belt positioning devices. This dummy 
has yet to be adopted into FMVSS No. 213.
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    Contrary to Mr. Conaway's assertion that the definitions detailed 
in FMVSS No. 213 stifle child safety benefits, the current Standard has 
proven to be very effective. Real world crash data have shown that 
current child restraints, as defined by FMVSS No. 213, reduce the 
likelihood of fatalities in passenger car crashes by 71% for infants 
(less than one-year-old) and 54% for toddlers (one-to four-years-old). 
For infants and toddlers in light trucks, the corresponding reductions 
are 58% and 59%, respectively.\16\ Also, belt-positioning booster seats 
lower the risk of injury to children aged four through seven years by 
59 percent compared to the use of vehicle seat belts alone.\17\
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    \16\ 2005 Traffic Safety Facts, NHTSA.
    \17\ Journal of American Medical Association, June 2003.
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IV. Conclusion

    The agency has decided to deny Mr. Conaway's petition for 
rulemaking. For the reasons listed herein, the agency disagrees that 
the definitions in FMVSS No. 213 are too restrictive and therefore sees 
no reason to alter the definitional requirements at this time. 
Furthermore, because the agency does not believe that belt positioners 
offer the same level of occupant protection as age-appropriate child 
restraint systems, the agency is also denying Mr. Conaway's request to 
incorporate a new definition for belt positioning devices into FMVSS 
No. 213.

    Authority: 49 U.S.C. 30162; delegations of authority at 49 CFR 
1.50 and 49 CFR 501.8.


[[Page 76329]]


    Issued on: December 11, 2008.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. E8-29728 Filed 12-15-08; 8:45 am]
BILLING CODE 4910-59-P