[Federal Register Volume 76, Number 175 (Friday, September 9, 2011)]
[Rules and Regulations]
[Pages 55825-55829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-23047]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 571

[Docket No. NHTSA-2011-0139]
RIN 2127-AJ44


Federal Motor Vehicle Safety Standards, Child Restraint Systems

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

ACTION: Final rule.

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SUMMARY: This final rule, the first of two under the designation RIN 
2127-AJ44, amends a provision in Federal Motor Vehicle Safety Standard 
No. 213, ``Child restraint systems,'' that permits NHTSA to allow 
manufacturers of child restraint systems (CRSs) manufactured before 
August 1, 2010, to choose to have NHTSA test the CRSs with either the 
Hybrid II 6-year old child (H2-6C) dummy or the Hybrid III 6-year-old 
child (HIII-6C) dummy. This final rule amends the provision to permit 
manufacturers of currently-manufactured CRSs the choice of

[[Page 55826]]

NHTSA testing their child restraints with either the H2-6C dummy or the 
HIII-6C dummy until further notice. While the HIII-6C is an advanced 
test dummy with state-of-the-art capabilities, NHTSA believes the 
agency should complete ongoing research programs to improve the 
usability of the HIII-6C dummy in FMVSS No. 213 before testing child 
restraints solely with this crash test dummy.

DATES: This final rule is effective September 9, 2011. If you wish to 
petition for reconsideration of this rule, your petition must be 
received by October 24, 2011.

ADDRESSES: If you wish to petition for reconsideration of this rule, 
you should refer in your petition to the docket number of this document 
and submit your petition to: Administrator, National Highway Traffic 
Safety Administration, 1200 New Jersey Avenue, SE., West Building, 
Washington, DC 20590.
    The petition will be placed in the docket. Anyone is able to search 
the electronic form of all documents received into any of our dockets 
by the name of the individual submitting the comment (or signing the 
comment, if submitted on behalf of an association, business, labor 
union, etc.). You may review DOT's complete Privacy Act Statement in 
the Federal Register published on April 11, 2000 (Volume 65, Number 70; 
Pages 19477-78).

FOR FURTHER INFORMATION CONTACT: For technical issues, you may call 
Cristina Echemendia, Office of Rulemaking (Telephone: 202-366-6345) 
(Fax: 202-493-2990). For legal issues, you may call Deirdre Fujita, 
Office of Chief Counsel (Telephone: 202-366-2992) (Fax: 202-366-3820). 
You may send mail to these officials at the National Highway Traffic 
Safety Administration, U.S. Department of Transportation, 1200 New 
Jersey Avenue, SE., West Building, Washington, DC 20590.

SUPPLEMENTARY INFORMATION: S7.1.3 of FMVSS No. 213 permits NHTSA to 
allow manufacturers of CRSs manufactured before August 1, 2010, to 
choose to have NHTSA test the CRSs with either the H2-6C dummy or the 
HIII-6C dummy when the CRS is subject to testing with a test dummy 
representative of a 6-year-old child.\1\ NHTSA is amending S7.1.3 to 
permit manufacturers of currently-manufactured CRSs the choice of NHTSA 
testing their child restraints with either the H2-6C dummy or the HIII-
6C dummy until further notice.
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    \1\ These are CRSs that are recommended by the manufacturer for 
use by children in a specified mass range that includes any children 
having a mass greater than 18 kilograms (40 pounds) or by children 
in a height range greater than 1100 millimeters. See S7.1.2(d) of 
FMVSS No. 213.
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    A supplemental notice of proposed rulemaking (SNPRM) preceding this 
final rule was published on November 24, 2010 (75 FR 71648, Docket No. 
NHTSA-2010-0158). This final rule is the first of two under the 
designation RIN 2127-AJ44. The second decisional document will be 
published later this year.\2\
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    \2\ Pending proposals made by the agency in NPRMs published 
August 31, 2005, January 23, 2008, and November 24, 2010 will be 
addressed.
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Background

    The agency adopted the HIII-6C into FMVSS No. 213 in a final rule 
\3\ published in response to a mandate in the Transportation Recall 
Enhancement, Accountability and Documentation Act (the TREAD Act) 
(November 1, 2000, Public Law 106-414, 114 Stat. 1800) that required 
NHTSA undertake rulemaking on child restraint systems. Section 14 of 
the TREAD Act directed NHTSA to initiate a rulemaking for the purpose 
of improving the safety of child restraints by November 1, 2001, and to 
complete it by issuing a final rule or taking other action by November 
1, 2002. Section 14 specified nine elements for consideration by NHTSA 
in improving child restraint safety, including considering whether to 
require the use of the HIII-6C and other Hybrid III ATDs in FMVSS No. 
213 compliance tests.
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    \3\ June 24, 2003, 68 FR 37620, Docket No. NHTSA-2003-15351.
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    Consistent with the TREAD Act, NHTSA decided in its rulemaking to 
adopt the HIII-6C into FMVSS No. 213. NHTSA considered the dummy to be 
``considerably more biofidelic'' than its predecessor, the H2-6C dummy, 
and with enhanced potential to measure an array of impact responses 
never before measured by a child ATD, such as neck moments and chest 
deflections.
    However, the agency acknowledged there was mixed acceptance by the 
commenters of the HIII-6C dummy. Some commenters believed that the 
HIII-6C exhibited large neck elongation in the FMVSS No. 213 test 
environment that resulted in chin-to-chest and head-to-knee contact and 
correspondingly high head injury criterion (HIC) values. In evaluating 
those comments, NHTSA carefully analyzed its test data of sled testing 
conducted with the HIII-6C, but found no data indicating that head-to-
chest or head-to-knee impacts were an issue or were typical. 68 FR at 
37644. Accordingly, the HIII-6C was adopted into the standard, with 
what was then considered to be sufficient lead time to enable 
manufacturers to become familiar with the dummy. The compliance date 
for the mandatory use of the HIII-6C dummy was set as August 1, 2005.
    Eventually, after examining the performance of the HIII-6C in the 
FMVSS No. 213 environment, NHTSA extended the compliance date to August 
1, 2010.\4\ We reiterated our belief that the HIII-6C dummy is more 
biofidelic in its components than its predecessor the H2-6C, and that 
the HIII-6C also has more extensive instrumentation to measure impact 
responses such as forces, accelerations, moments and deflections, which 
are crucial in evaluating vehicle occupant protection systems.\5\ Some 
CRS manufacturers have found the HIII-6C to be a satisfactory test 
instrument and are using the dummy to certify the compliance of their 
CRSs to FMVSS No. 213. These manufacturers are positioning the test 
dummy and measuring the head injury criterion (HIC) as currently 
required by FMVSS No. 213.
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    \4\ August 5, 2008, 73 FR 45355, Docket No. NHTSA-2008-0137.
    \5\ FMVSS No. 208, ``Occupant crash protection,'' uses Hybrid 
III dummies, including the HIII-6C dummy, in its compliance tests. 
The HIII-6C has been suitable for FMVSS No. 208 testing because the 
test environment for that standard is different than the FMVSS No. 
213 environment, due to the presence of the air bag.
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    However, while the HIII-6C is an advanced test dummy with state-of-
the-art capabilities and is being used to an extent today, NHTSA 
proposed \6\ that the agency should complete ongoing efforts to improve 
the HIII-6C dummy to make it more useful as an FMVSS No. 213 test 
device before testing child restraints solely with this device. The 
HIII-6C dummy has a softer neck than the H2-6C, which results in 
slightly greater head excursion results and larger HIC values (chin-to-
chest contact) than the H2-6C. This, coupled with the stiff thorax of 
the HIII-6C dummy, accentuates the HIC values recorded by the dummy.
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    \6\ 75 FR 71648, November 24, 2010, Docket No. NHTSA-2010-0158.
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    Several measures are underway to improve the Hybrid III dummy (see 
discussion in 75 FR at 71660). Until such time the HIII-6C is improved, 
we proposed on November 24, 2010 that FMVSS No. 213 should be amended 
to permit NHTSA to allow manufacturers the option of specifying that 
NHTSA use either the H2-6C or the HIII-6C dummy to test the 
manufacturer's child restraints until further notice.

[[Page 55827]]

Summary of Comments

    The agency received three comments on the November 24, 2010 
proposal, from: the Juvenile Products Manufacturers Association (JPMA), 
Evenflo Company Inc. (Evenflo), and the Advocates for Highway Safety 
(Advocates).
    JPMA and Evenflo expressed support for the proposal to reinstate 
the optional use of the H2-6C and HIII-6C dummies in compliance testing 
until such time that design issues with the HIII-6C dummy are 
addressed. JPMA noted that both the HIII-6C and H2-6C dummies are being 
used to test and certify CRS models to FMVSS No. 213 by various CRS 
manufacturers. Evenflo noted that the H2-6C has been used for many 
years to permit qualification of CRSs which have provided good crash 
protection for children in real world crashes. Both JPMA and Evenflo 
expressed support of NHTSA's effort to fully implement the HIII-6C 
dummy into FMVSS No. 213, but noted that it must not be done until the 
issues with this dummy are addressed.
    Advocates stated that it generally opposes allowing alternative 
compliance options because it allows manufacturers to select the option 
that affords the widest degree of manufacturing latitude, not 
necessarily safety protection, and may lead to confusion and ambiguous 
results. However, it stated that in this particular case, in light of 
concerns expressed about the biofidelity of the HIII-6C dummy, it 
understands the necessity to extend the optional use of the H2-6C 
dummy. Nonetheless, Advocates requested that the period of the 
extension be limited, and better defined, than simply left open-ended 
to ``until such time FMVSS [No.] 213 is further amended to specify 
otherwise,'' as stated in the preamble of the SNPRM. Advocates 
suggested that a date certain be established for termination of the 
optional use of the H2-6C dummy in compliance testing.

Response and Decision

    For the reasons stated in the November 2010 SNPRM and after 
consideration of the comments on the proposed optional use of the H2-6C 
dummy, NHTSA has decided to adopt the proposed amendment to FMVSS No. 
213 that allows, at the manufacturer's option, the use of either the 
H2-6C or the HIII-6C dummy in the agency compliance tests of child 
restraints.
    We understand and generally concur with Advocates' concerns about 
the potential for compliance options to engender opportunities for 
confusion and ambiguity about compliance test results. For reasons such 
as those described by Advocates, NHTSA seeks to avoid incorporating 
compliance options into the FMVSSs whenever possible. However, in the 
case at hand, we have decided against establishing a termination date 
on the optional use of the H2-6C dummy.
    As noted in the November 2010 SNPRM and earlier in this document, 
the agency has research projects underway to improve the capability of 
child dummies to assess CRS performance.\7\ After the agency fully 
evaluates the new dummy, the improved HIII-6C dummy will be considered 
for incorporation into FMVSS No. 213 and 49 CFR Part 572. At that time, 
the agency will consider the mandatory use of the improved dummy in 
FMVSS No. 213 and the termination of the optional use of the H2-6C 
dummy in the agency's compliance tests. If a termination date were 
included in S7.1.3, as the termination date approached, CRS 
manufacturers using the H2-6C to certify their CRSs may question 
whether their continued use of the dummy is well-advised. If the HIII-
6C dummy were not sufficiently improved by the termination date, as the 
termination date approached, all CRS manufacturers would again be faced 
with uncertainty about how NHTSA would test their child restraints. To 
avoid these uncertainties, we have decided against including a 
termination date for the optional use of the H2-6C dummy.
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    \7\ The near-term Phase I upgrades to the HIII-6C dummy that are 
expected to be completed in the 2013 timeframe include improvements 
in the biofidelity of the dummy kinematics. The Phase II research is 
directed toward developing biomechanical response data for 
developing future improved child dummies. The Phase III of this 
research includes design, development, and evaluation of a new 
prototype 6-year old child dummy which is expected to be completed 
in the 2015 timeframe. 75 FR at 71660.
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Compliance Date

    This final rule is effective on publication in the Federal 
Register. There is good cause for this effective date, as this final 
rule clarifies FMVSS No. 213 requirements as to how NHTSA will test 
child restraints and provides relief to manufacturers by allowing 
flexibility in the test dummy used in agency compliance tests of child 
restraints.

Regulatory Analyses and Notices

Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563, and DOT Regulatory Policies and Procedures

    The agency has considered the impact of this rulemaking action 
under E.O. 12866, E.O. 13563, and the Department of Transportation's 
regulatory policies and procedures. This action was not reviewed by the 
Office of Management and Budget under E.O. 12866. This action is not 
``significant'' under the Department of Transportation's regulatory 
policies and procedures (44 FR 11034; February 26, 1979). The final 
rule does not impose any new requirements on manufacturers that produce 
child restraint systems, but only reinstates a provision that allowed 
NHTSA to provide flexibility to manufacturers in directing NHTSA which 
test dummy (the H2-6C or the HIII-6C) to use in testing their 
restraints. The agency believes that the impact is so minimal as to not 
warrant the preparation of a full regulatory evaluation.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act, we have considered the 
impacts of this rulemaking action will have on small entities (5 U.S.C. 
601 et seq.). I certify that this rulemaking action will not have a 
significant economic impact upon a substantial number of small entities 
within the context of the Regulatory Flexibility Act.
    The following is the agency's statement providing the factual basis 
for the certification (5 U.S.C. 605(b)). This final rule affects child 
restraint manufacturers. According to the size standards of the Small 
Business Association (at 13 CFR part 121.601), the small business size 
standard for manufacturers of ``Motor Vehicle Seating and Interior Trim 
Manufacturing'' (NAICS Code 336360) is 500 employees or fewer. Many 
child restraint manufacturers would be classified as small businesses 
under this standard. However, the final rule does not impose any new 
requirements on manufacturers that produce child restraint systems, but 
only reinstates a provision that allowed manufacturers flexibility in 
telling NHTSA which test dummy to use in testing their restraints. 
Accordingly, we have not prepared a Final Regulatory Flexibility 
Analysis.

Executive Order 13132 (Federalism)

    NHTSA has examined today's rule pursuant to Executive Order 13132 
(64 FR 43255, August 10, 1999) and concluded that no additional

[[Page 55828]]

consultation with States, local governments or their representatives is 
mandated beyond the rulemaking process. The agency has concluded that 
the rulemaking would not have sufficient federalism implications to 
warrant consultation with State and local officials or the preparation 
of a federalism summary impact statement. The rule would not 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.''
    NHTSA rules can preempt in two ways. First, the National Traffic 
and Motor Vehicle Safety Act contains an express preemption provision: 
When a motor vehicle safety standard is in effect under this chapter, a 
State or a political subdivision of a State may prescribe or continue 
in effect a standard applicable to the same aspect of performance of a 
motor vehicle or motor vehicle equipment only if the standard is 
identical to the standard prescribed under this chapter. 49 U.S.C. 
30103(b)(1). It is this statutory command by Congress that preempts any 
non-identical State legislative and administrative law addressing the 
same aspect of performance.
    The express preemption provision described above is subject to a 
savings clause under which ``[c]ompliance with a motor vehicle safety 
standard prescribed under this chapter does not exempt a person from 
liability at common law.'' 49 U.S.C. 30103(e). Pursuant to this 
provision, State common law tort causes of action against motor vehicle 
manufacturers that might otherwise be preempted by the express 
preemption provision are generally preserved. However, the Supreme 
Court has recognized the possibility, in some instances, of implied 
preemption of such State common law tort causes of action by virtue of 
NHTSA's rules, even if not expressly preempted. This second way that 
NHTSA rules can preempt is dependent upon there being an actual 
conflict between an FMVSS and the higher standard that would 
effectively be imposed on motor vehicle manufacturers if someone 
obtained a State common law tort judgment against the manufacturer, 
notwithstanding the manufacturer's compliance with the NHTSA standard. 
Because most NHTSA standards established by an FMVSS are minimum 
standards, a State common law tort cause of action that seeks to impose 
a higher standard on motor vehicle manufacturers will generally not be 
preempted. However, if and when such a conflict does exist--for 
example, when the standard at issue is both a minimum and a maximum 
standard--the State common law tort cause of action is impliedly 
preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).
    Pursuant to Executive Order 13132 and 12988, NHTSA has considered 
whether this rule could or should preempt State common law causes of 
action. The agency's ability to announce its conclusion regarding the 
preemptive effect of one of its rules reduces the likelihood that 
preemption will be an issue in any subsequent tort litigation. To this 
end, the agency has examined the nature (e.g., the language and 
structure of the regulatory text) and objectives of today's rule and 
finds that this rule, like many NHTSA rules, would prescribe only a 
minimum safety standard. As such, NHTSA does not intend that this rule 
would preempt state tort law that would effectively impose a higher 
standard on motor vehicle manufacturers than that established by 
today's rule. Establishment of a higher standard by means of State tort 
law would not conflict with the minimum standard adopted here. Without 
any conflict, there could not be any implied preemption of a State 
common law tort cause of action.

Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, 
section 3(b) of Executive Order 12988, ``Civil Justice Reform'' (61 FR 
4729; Feb. 7, 1996), requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect; (2) clearly specifies the effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct, while promoting simplification and burden reduction; 
(4) clearly specifies the retroactive effect, if any; (5) specifies 
whether administrative proceedings are to be required before parties 
file suit in court; (6) adequately defines key terms; and (7) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. This document is 
consistent with that requirement.
    Pursuant to this Order, NHTSA notes as follows. The issue of 
preemption is discussed above. NHTSA notes further that there is no 
requirement that individuals submit a petition for reconsideration or 
pursue other administrative proceedings before they may file suit in 
court.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires 
agencies to prepare a written assessment of the costs, benefits and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local or tribal 
governments, in the aggregate, or by the private sector, of more than 
$100 million annually. This action will not result in additional 
expenditures by state, local or tribal governments or by any members of 
the private sector. Therefore, the agency has not prepared an economic 
assessment pursuant to the Unfunded Mandates Reform Act.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
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. This final rule does not impose any new collection of 
information requirements for which a 5 CFR part 1320 clearance must be 
obtained.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78).

Environmental Impacts

    We have considered the impacts of this final rule under the 
National Environmental Policy Act. This rulemaking action only 
reinstates a provision that allowed NHTSA to provide flexibility to 
manufacturers in directing NHTSA which test dummy (the H2-6C or the 
HIII-6C) to use in testing their restraints. This rulemaking does not 
require any change that would have any environmental impacts. 
Accordingly, no environmental assessment is required.

Regulation Identifier Number (RIN)

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

[[Page 55829]]

document to find this action in the Unified Agenda.

Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:
     Have we organized the material to suit the public's needs?
     Are the requirements in the rule clearly stated?
     Does the rule contain technical language or jargon that 
isn't clear?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand?
     Would more (but shorter) sections be better?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
    If you have any responses to these questions, please send them to 
NHTSA.

List of Subjects in 49 CFR Part 571

    Imports, Motor vehicle safety, Motor vehicles, and Tires.

    In consideration of the foregoing, NHTSA amends 49 CFR part 571 as 
set forth below.

PART 571--FEDERAL MOTOR VEHICLE SAFETY STANDARDS

0
1. The authority citation for part 571 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 571.213 is amended by revising S7.1.3 to read as follows:


Sec.  571.213  Standard No. 213; Child restraint systems.

* * * * *
    S7.1.3 Voluntary use of alternative dummies. At the manufacturer's 
option (with said option irrevocably selected prior to, or at the time 
of, certification of the restraint), when this section specifies use of 
the 49 CFR part 572, subpart N (Hybrid III 6-year-old dummy) test 
dummy, the test dummy specified in 49 CFR part 572, subpart I (Hybrid 
II 6-year-old dummy) may be used in place of the subpart N test dummy.
* * * * *

    Issued: September 1, 2011.
David L. Strickland,
Administrator.
[FR Doc. 2011-23047 Filed 9-8-11; 8:45 am]
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