[Federal Register: September 15, 2004 (Volume 69, Number 178)]
[Rules and Regulations]
[Page 55517-55531]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se04-14]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
[Docket No. NHTSA 2004-19032]
RIN 2127-AG36
Federal Motor Vehicle Safety Standards; Power-Operated Window,
Partition, and Roof Panel Systems
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends our standard for power-operated
windows, partitions, and roof panel systems 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. The
purpose of this amendment is to reduce the number of injuries and
fatalities to people, especially children, that occur when they
unintentionally close those 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.
There are simple, effective and inexpensive manufacturing solutions
that vehicle manufacturers can use to meet the requirements of this
final rule. Vehicle manufacturers could comply by shielding or
recessing their switches or by designing them so that pressing on them
in the manner described above will not cause these windows and other
items to begin to close.
Although they need not do so, manufacturers may choose instead to
address the problem through the use of more advanced technology.
Manufacturers that install power-operated windows, partitions or roof
panel systems meeting the automatic reversal requirements of the
standard need not comply with the requirements of this final rule.
In this document, the agency is also denying two petitions for
rulemaking requesting that the agency require power windows in new
vehicles to be equipped with an automatic reversal system or other
anti-entrapment feature.
DATES: Effective Date: The amendment made in this final rule is
effective November 15, 2004.
Compliance Date: This final rule becomes mandatory for all vehicles
manufactured for sale in the U.S. on or after October 1, 2008.
Voluntary compliance is permitted before that date.
Petitions: If you wish to submit a petition for reconsideration for
this rule, your petition must be received by November 1, 2004.
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
X; Rulemaking Analyses and Notice) 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 the 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:
Table of Contents
I. Executive Summary
II. Background
A. Requirements of FMVSS No. 118
B. Power Window Switches in Motor Vehicles
III. Petitions for Rulemaking
A. The Moore Petition
B. The Little Petition
C. Center for Auto Safety Petition
IV. Notice of Proposed Rulemaking and Public Comments
A. The NPRM
B. Public Comments on the NPRM
V. Post-Comment Period Developments
VI. Summary of the Safety Problem
VII. The Final Rule
A. Decision To Move to Final Rule
B. Summary of the Requirements
C. Effectiveness of New Switch Requirements
D. Test Device and Methodology
E. Orientation and Placement of Switches
F. Automatic Reversal
VIII. Denial of Petitions for Rulemaking
IX. Methods of Compliance
X. Lead Time and Compliance Date
XI. Benefits
XII. Costs
XIII. Rulemaking Analyses and Notices
[[Page 55518]]
I. Executive Summary
This final rule amends Federal Motor Vehicle Safety Standard No.
118, Power-Operated Window, Partition, and Roof Panel Systems, to add a
requirement for new vehicles that will make switches for those systems
resistant to accidental actuation, particularly by children.\1\ 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 lbs.) or less.\2\
---------------------------------------------------------------------------
\1\ We note this rulemaking does not address incidents in which
one occupant intentionally operates the switch by hand and either
knowingly or unknowingly entraps another person.
\2\ For the sake of simplicity, the preamble to this final rule
collectively refers to these three types of systems--power windows,
interior partitions, and power roof panels (sunroofs)--as ``power
windows,'' all of which are covered by FMVSS No. 118. Power roof
panels and partitions are similar to power windows in their
operation. However, any distinctions in applicability among the
three types of systems will be delineated clearly in both the
preamble and the amended regulatory text.
---------------------------------------------------------------------------
Available information indicates that a small, but persistent
problem of injuries and fatalities are occurring when vehicle 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 are generally low-frequency
events, averaging about 1.5 deaths per year in recent years (1999-
2002), there is a higher incidence in some individual years (e.g., five
deaths of this type were recorded in 1998, and a similar number have
been reported in 2004).
These tragic incidents continued to occur despite other safeguards
in the standard (i.e., requirement in S4 that power windows will only
operate when the key is in the ignition \3\ or when the presence of an
adult can be presumed for some other reason, e.g., the key has been
removed, but neither vehicle front door has been opened since the
removal of the key).
---------------------------------------------------------------------------
\3\ In adopting that provision, the agency reasoned that the key
would normally be in the ignition only if the driver were still in
or near the vehicle, and thus in a position to supervise the
operation of the vehicle windows.
---------------------------------------------------------------------------
Research has led the agency to conclude that switch design is
related to such injuries. In the accidental actuation incidents for
which the type of switch is known, virtually all of the vehicles
involved had ``rocker'' and ``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.\4\ 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
Accordingly, the agency has decided to amend FMVSS No. 118 by
adding a new paragraph S6, specifying that power window 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. When the test device is applied with a
force not to exceed 135 Newtons (30 lbs.) 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. In
addition, they do not apply to power-operated systems that meet the
automatic reversal requirements of S5 of the Standard. We note that
while a number of vehicles have automatic reversal systems, we are not
aware of any that are certified to meet the requirements of S5.
However, we believe that exclusion from the accidental actuation test
in S6 would be appropriate for any such systems, because either
inadvertent actuation would not occur or entrapment would be prevented
by the system.
We believe that the accidental actuation test in S6 provides a
simple and effective means of evaluating power window systems and will
enhance the protection of people, especially children, thereby
furthering NHTSA's mission of preventing motor vehicle-related deaths
and injuries. We estimate that, on average, at least one child fatality
and one serious injury (e.g., brain damage from near suffocation) per
year could be prevented by the requirements of this final rule. The
agency believes that this estimate is conservative because, in making
our estimate, we excluded cases in which more than one child was in the
vehicle (because both inadvertent switch actuation and intentional
switch actuation are possible causes of the injury in those cases) and
cases in which the type of switch was unknown. If further information
on these cases were available, it might indicate that the estimated
benefits should be higher.
There are simple, effective, and inexpensive manufacturing
solutions that vehicle manufacturers can use to meet the requirements
of this final rule. Vehicle manufacturers could comply by shielding or
recessing their switches or by designing them so that pressing on them
in the manner described above will not cause these windows and other
items to close. Many vehicles already incorporate those solutions.
Although they need not do so, manufacturers may choose to address
the problem through more advanced technology. Manufacturers need not
comply with the new requirement if they use power-operated windows,
partitions or roof panel systems meeting the automatic reversal
requirements of the standard.
All new light vehicles produced on or after October 1, 2008, for
sale in the U.S. must comply with the amended power window switch
requirements in this final rule. The agency believes that this four-
year lead time will allow manufacturers to incorporate the required
changes into their vehicles in accordance with their normal production
cycles. As a result, the cost impacts of this rule should be close to
zero.
Further, this document denies two petitions for rulemaking
requesting that the agency mandate the installation of automatic
reversal systems that comply with the requirements of S5 in all new
vehicles. We have reached this decision because much of the potential
benefit that might be provided by those systems will instead be
provided by the accidental actuation test. Further, while the cost of
better switches will be negligible, the cost of automatic reversal
systems is significant.
II. Background
Requirements of FMVSS No. 118
Federal Motor Vehicle Safety Standard (FMVSS) No. 118, Power-
Operated Window, Partition, and Roof Panel Systems, regulates power-
operated windows, partitions, and roof panels by specifying
requirements to
[[Page 55519]]
reduce the likelihood of death or injury from their accidental
operation. As a matter of particular concern, the standard addresses
the threat to unsupervised children of being strangled or suffering
limb-crushing injuries by closing power windows. The standard applies
to passenger cars, multipurpose passenger vehicles, and trucks with a
gross vehicle weight rating (GVWR) of 4,536 kg (10,000 lbs.) or less.
When the standard was first adopted, it required that activation of
power windows be linked to the vehicle's ignition lock. The standard
prohibited activation of power windows unless the vehicle's ignition
was turned to the ``On,'' ``Start,'' or ``Accessory'' position. The
agency presumed that making the presence of the ignition key a
precondition to power window activation would help ensure that a driver
would be present to provide adult supervision and also would provide a
simple means of disabling the power windows in a parked vehicle (i.e.,
key removal).
Since its initial adoption, FMVSS No. 118 has undergone periodic
revision in order to accommodate technological developments related to
power window systems. For example, the standard has been amended to
permit power windows to close in certain situations in which the key is
not in the ignition, but the existence of adult supervision could be
presumed for other reasons (see section S4 of FMVSS No. 118).
In the most recent rulemaking, which was in 1991, NHTSA responded
to the interest of manufacturers in offering remote controls for window
closing (see 56 FR 15290 (April 16, 1991)). When amending the standard,
the agency was mindful that the unrestricted allowance of remote
controls, especially ones that activated windows using radio frequency
signals that can penetrate obstructing walls, could pose a danger to
child occupants because the person activating the window might not be
able to see a child in the window opening. Therefore, to help ensure
the proximity of a supervising person, the agency amended the standard
to permit power windows to be operable through the use of remote
controls only if the controls had a very limited range (i.e., not more
than 6 meters (m) (20 ft)). A longer range, up to 11 m (36 ft), was
permitted for controls that were operable only if there were an
unobstructed line of sight between the control and the vehicle.
Another condition enumerated in section S4 allows power windows to
operate in the interval after ignition key removal but before either
front door of the vehicle is opened. Another condition allows windows
to close by use of a key lock on the outside of the vehicle. Windows
are also permitted to close if they initially are open only 4 mm (0.16
in) (i.e., to facilitate closing of doors on a vehicle with an air-
tight occupant compartment).
Section S5 makes an exception to the allowable conditions for power
window operation listed in section S4 if the vehicle is equipped with
an automatic reversal or ``anti-entrapment'' feature that complies with
specified operational force levels. In adopting this exception, the
agency reasoned that the provisions permitting remote control of a
power window need not be premised on the likely proximity of
supervision, if the window closing system itself could sense the
child's hand or head when it became trapped between the window and the
window frame, and thereupon stop and reverse to release the child.
Therefore, the agency established a provision permitting power windows
equipped with an automatic reversal system to be closed in any manner
(e.g., with or without a key) desired by the manufacturer. It also
permitted remote controls of unrestricted range, as well as new
products (e.g., devices to open and close windows automatically in
response to heat and rain), if there is an automatic reversal system.
However, we note here that the present rulemaking action was deemed
necessary because deaths and serious injuries involving power windows
continue to occur, despite the safeguards already incorporated in the
standard. The complete success of the earlier safeguards is dependent
on children not being left unattended in vehicle, or, if they are, on
removal of the ignition key. However, power window injuries and
fatalities are occurring in cases where children were left alone in
vehicles with keys in the ignition. These tragic injuries and loss of
life could have been prevented if a supervising adult had removed the
key from the ignition, but the persistent recurrence of such incidents
involving children have led us to the conclusion that the additional
protections set forth in this rulemaking are necessary.
Power Window Switches in Motor Vehicles
Prior to the amendments contained in this final rule, FMVSS No. 118
has not regulated the switches provided in motor vehicle occupant
compartments for operating power windows. In vehicles equipped with
power windows, those switches generally are of three types: (1)
``Rocker'' switches, (2) ``toggle'' switches, and (3) ``push-pull''
switches.
Power windows with rocker switches, which are very common in
current motor vehicles, are particularly susceptible to inadvertent
closure because almost any contact with the switch can cause the window
to operate. Power windows with toggle switches are similarly
susceptible to inadvertent actuation.
In contrast, power windows operated by push-pull (fishhook-style)
switches are considered resistant to inadvertent closure because
incidental contact with those switches will not readily cause a window
to begin to close, although it may cause a window to open. Only by
actively pulling upwards on push-pull switches is it possible to
operate such windows in the closing direction.
Protection from inadvertent actuation of power windows also may
depend on switch location and orientation in a vehicle. For example, a
rocker switch that is set into a recess on a vertical door panel is
inherently less susceptible to casual contact by occupants, especially
a child standing or kneeling on a door armrest while being partially
extended outside of the open window, than is a switch mounted flush on
a horizontal surface. Likewise, console-mounted switches for sunroofs
are very susceptible to inadvertent actuation as compared to switches
located on the vehicle's headliner, because a child attempting to look
out of an open sunroof would very likely stand on the console to do so.
III. Petitions for Rulemaking
The Moore Petition
On September 26, 1995, Michael Garth Moore, an attorney in
Hilliard, Ohio, submitted a petition for rulemaking \5\ to NHTSA
requesting that the agency amend FMVSS No. 118 in two areas. First, the
petitioner asked the agency to require that all power windows be
equipped with an anti-entrapment safety feature, so that a vehicle's
windows would stop and reverse direction if they were to encounter an
obstruction while closing.
---------------------------------------------------------------------------
\5\ Docket No. NHTSA-2004-17216-21. (The original docket number
for this rulemaking was Docket No. NHTSA-96-117. However, with the
advent of NHTSA's electronic docketing system, available at http://dms.dot.gov/
, all relevant materials discussed in this notice have
also been included in Docket No. NHTSA-2004-17216.)
---------------------------------------------------------------------------
In his petition, Mr. Moore stated that automatic reversal
technology is of proven effectiveness and is economically feasible for
mandatory installation. The petitioner further stated that, while it
was difficult to determine the magnitude of child injuries and
fatalities related to power windows, the prevention of even one
[[Page 55520]]
catastrophic incident warranted action, given the minimal costs
associated with such a requirement.
However, the agency denied that request primarily because of its
high cost, and for other reasons associated with the limitations of
force-sensing automatic reversal systems (discussed in further detail
subsequently).
Second, the petitioner requested that the agency modify FMVSS No.
118 to prevent the inadvertent closure of power windows by requiring
manufacturers to protect switches from unintended operation either by
shielding them or by placing them in a less accessible location (e.g.,
in a recess in a door panel). In addition, Mr. Moore asked that
manufacturers be required to design switches such that ``downward
pressure on any control can only cause the window/partition/roof panel
to open,'' thereby preventing inadvertent closure. The petitioner
argued that such a requirement would protect a child left in a vehicle
with its ignition enabled, because the child would no longer be at risk
of inadvertently closing a power window merely by kneeling or standing
on a power window switch.
NHTSA granted that portion of the Moore petition related to safer
power window switches. Accordingly, the agency initiated rulemaking on
this topic, as discussed in further detail below.
The Little Petition
On January 13, 2003, David W. Little, an attorney in Oklahoma City,
Oklahoma, submitted a petition for rulemaking \6\ to NHTSA requesting
essentially the same rulemaking actions contained in the Moore
petition. Mr. Little represented the families of five victims of power
window accidents, and he petitioned the agency on behalf of the Zoie
Foundation. The Little petition sought to amend FMVSS No. 118 to
require that all new U.S. vehicles be equipped with automatic reversal
systems and with power window switches that are resistant to
inadvertent actuation.
---------------------------------------------------------------------------
\6\ Docket No. NHTSA-2004-17216-20.
---------------------------------------------------------------------------
To supplement his petition, Mr. Little provided a ``sampling'' of
cases, including various records such as death certificates, coroners'
reports, and police investigation reports for five instances of
children either severely injured or killed by power windows. In
addition, the petitioner provided news articles, copies of comments to
NHTSA's public docket, and manufacturers' information on automatic
reversal systems (e.g., information from Brose and Omron). The Little
petition also included a listing of consumer complaints through
February 1996 from NHTSA's Office of Defects Investigation (ODI)
database, which reported 107 power window complaints; twelve of these
complaints involved entrapment, out of about 350,000 total consumer
complaints. These complaints included some severe injuries (e.g., limb
amputation) and fatalities, several of which involved children.
We decided to address the Little petition in this document.
The Center for Auto Safety Petition
On August 19, 2003, a coalition of petitioners consisting of the
Center for Auto Safety (CAS), Public Citizen, Kids and Cars, Advocates
for Highway and Automotive Safety, the Consumer Federation of America,
Consumers for Auto Reliability and Safety, the Zoie Foundation, and the
Trauma Foundation, submitted a petition for rulemaking \7\ (hereinafter
referred to as the CAS petition) to NHTSA requesting essentially the
same rulemaking actions contained in the earlier Moore and Little
petitions.
---------------------------------------------------------------------------
\7\ Docket No. NHTSA-2004-17216-19.
---------------------------------------------------------------------------
The CAS petition discussed the history of the agency's power window
rulemaking in some detail, and it included a list of 33 fatalities (all
children) killed in power window accidents since FMVSS No. 118 first
took effect in 1971. In its petition, CAS stated, ``More power window
deaths have been recorded in the last two years than in any other two-
year period since 1971.'' CAS claimed that the rate of power window
accidents has increased as power windows have proliferated, stating
that the 18 fatalities recorded in the last seven years are more than
the 15 fatalities recorded over the previous 25 years. CAS provided
data indicating that power window installations on North American-
produced vehicles numbered 1.9 million in 1971 (19.2 percent of the
market), but grew to 7.9 million (62 percent of the market) in 1994.
In support of its requests, CAS mentioned a 1997 NHTSA technical
report that extrapolated from 10 actual cases of power window-related
injuries and estimated that annually, there are 499 power window-
related incidents nationwide that result in emergency room visits.\8\
That report included incidents of both inadvertent and intentional
actuation of power window switches. The report found that most of these
injuries were minor (i.e., 91% of those injured persons were treated
and released without hospitalization), and none of the actual 10 cases
involved a fatality.
---------------------------------------------------------------------------
\8\ ``Injuries Associated With Specific Motor Vehicle Hazards:
Radiators, Batteries, Power Windows, and Power Roofs,'' (DOT 808
598) (July 1997) (Docket No. NHTSA-2004-17216-29).
---------------------------------------------------------------------------
The CAS petition also argued that with an automatic reversal system
in place, defects in power windows could be prevented from becoming
deadly. Petitioners provided the example of three child fatalities
associated with a defect case involving Model Year 1982-1986 Jeep
Wagoneers, which, in certain cases, the failure of a key-operated
switch on the tailgate caused the tailgate windows to close
uncontrollably. The CAS petition argued that injuries and fatalities in
the Wagoneer cases could have been prevented, had the vehicles been
equipped with power window automatic reversal systems.
The CAS petition also suggested that other power-operated features,
such as power sliding doors on minivans, are similarly likely to
proliferate. Accordingly, CAS and the other petitioners urged NHTSA to
be proactive in this area by establishing safety performance standards
to protect children from entrapment and injury.
In addition, the CAS petition argued that automatic reversal
technology for power windows is both available and sufficiently
inexpensive to be mandated in new vehicles. The petition cited a letter
from Nartron Corp. estimating the cost for a proprietary anti-
entrapment automatic reversal system using capacitive sensing
technology to be $12.50 per vehicle window. The CAS petition analogized
the technology for power window automatic reversal systems to that
which the Consumer Product Safety Commission (CPSC) has required on
residential garage door-closing systems since 1991. CAS stated that the
CPSC standard was later upgraded in 1993 and now requires automatic
garage door to have two types of sensors to prevent bodily entrapment
(e.g., pressure sensors on their leading edge and ``electronic
eyes'').\9\
---------------------------------------------------------------------------
\9\ See 16 CFR Part 1211 (CPSC Safety Standard for Automatic
Residential Garage Door Operators).
---------------------------------------------------------------------------
We decided to address the CAS petition in this document.
IV. Notice of Proposed Rulemaking (NPRM) and Public Comments
The NPRM
On November 15, 1996, NHTSA published a notice of proposed
rulemaking (NPRM) in the Federal Register (61 FR 58504) proposing to
amend FMVSS No. 118 to require each power-operated window, interior
partition, and roof panel in a motor vehicle to be equipped with a
switch designed so that contact by a form
[[Page 55521]]
representing a child's knee would not cause inadvertent closure.
As noted previously, in the NPRM, the agency denied the Moore
petition's request to require that all power windows be equipped with
an automatic reversal feature. NHTSA concluded that such a requirement
would be unreasonably expensive (i.e., costing approximately $100 per
window or $400 per vehicle) and not practicable with the technology
(i.e., force-sensing) then in existence (e.g., such devices prevent
reliable window closure in the presence of snow, ice, and even the
friction of cold or tight weather stripping). The reasoning for the
agency's denial of the request for an automatic reversal requirement
was explained in detail in the NPRM (see 61 FR 58504, 58505-06).
However, the agency decided to grant the petitioner's request to
initiate rulemaking to amend FMVSS No. 118 in other ways (e.g.,
shielding switches and using switches that, if accidentally leaned on,
would open, not close windows) to provide additional protection from
inadvertent closure of power windows. At the time of the NPRM, NHTSA
recognized the potential safety problem raised in the Moore petition
and had collected a number of anecdotal reports of power window
injuries and fatalities. In light of the anticipated safety benefits
associated with remedying this problem, NHTSA decided to issue an NPRM
proposing new switch requirements. Specifically, the agency proposed
that if a switch used to close a power-operated window is contactable
by a rigid spherical ball 25 mm (1 inch) in diameter, pressing that
ball in a nondestructive way against the switch in any direction must
not cause the window to begin to close. A 25 mm (1 inch) ball was
considered by the agency to be generally representative of the bent
knee of a child under the age of six.
The agency proposed this amendment for several reasons, as
explained in the NPRM. First, the agency stated its belief that the
proposed requirements would offer a safety benefit in reducing the
number of fatalities and injuries resulting from inadvertent closure of
power windows. The information available to NHTSA demonstrated that
such injuries were occurring, and children's natural curiosity, coupled
with the ongoing problem of children being left unsupervised in
vehicles, suggested that the problem would be likely to continue absent
regulatory intervention.
Further, the agency expressed its belief in the NPRM that the
proposed requirement would be practicable and would result in very
little cost burden on vehicle manufacturers, particularly if sufficient
lead time were provided. The required switch modifications could be
achieved merely by changing the shape of the switches and/or the
surrounding housing and would not affect any other aspects of the
operation of the power windows. In addition, the agency noted in the
NPRM that several major vehicle manufacturers already had incorporated
push-pull switches or recessed switches across all or some of their
model lines.
Public Comments on the NPRM
Overview
Comments on the NPRM were received from 14 entities, including a
consumer advocacy group, trade associations, automobile manufacturers,
a manufacturer of power window equipment, and a law firm, as well as
one individual.\10\
---------------------------------------------------------------------------
\10\ Comments were received from: (1) Advocates for Highway and
Auto Safety (Advocates); (2) American Automobile Manufacturers
Association (AAMA); (3) Association of International Automobile
Manufacturers (AIMA); (4) BMW of North America, Inc. (BMW); (5) Ford
Motor Company (Ford); (6) American Honda Motor Co., Ltd. (Honda);
(7) Mitsubishi Motors R&D; of America, Inc. (Mitsubishi); (8)
Mercedes-Benz of North America, Inc. (Mercedes); (9) Nissan North
America, Inc. (Nissan); (10) Toyota Technical Center USA, Inc.
(Toyota); (11) Volkswagen of America, Inc. (Volkswagen); (12) Volvo
Cars of North America, Inc. (Volvo); (13) Brose North America, Inc.
(Brose); (14) Libbey & Suddock, P.C.; and (15) Mr. Thomas P.
Flanagan. All comments and other correspondence discussed in this
notice are available under Docket No. NHTSA-2004-17216.
---------------------------------------------------------------------------
Commenters expressed an array of views on the NPRM, ranging from
support to opposition. Commenters opposing the proposed amendment
claimed that the agency had not conducted a sufficiently methodical
effort to quantify the alleged safety problem or to identify the types
of switches involved in the few known cases of death or serious injury.
Generally, these commenters argued that existing safety measures (i.e.,
requiring keys to be in the ignition in order for the power windows to
operate) are adequate. They also stated that most vehicles also have a
driver-controlled lock-out for at least the rear windows, if not all
the windows. In addition, these commenters argued that the agency had
not provided evidence to demonstrate that the proposed switch
requirements would achieve the desired goal of preventing power window
entrapment incidents.
Specific Comments
Justification for the Regulation
AAMA, AIAM, Volkswagen and Mercedes commented that neither the
petitioner nor the agency had provided any data demonstrating a safety
need for the NPRM's proposed requirements, particularly when NHTSA
itself had acknowledged that manufacturers were voluntarily developing
and implementing design changes consistent with the agency's regulatory
goals. Mercedes also argued that the proposed regulatory language is
overly broad and too vague to address the alleged safety problem.
Further, Mercedes questioned whether the agency had any data to show
that push-pull switches are also not susceptible to inadvertent
actuation by children and suggested that the agency should conduct
additional research. For all these reasons, Mercedes argued that the
proposal could not be justified in its present form.
Volvo's comments acknowledged that an improved design of power
window switch to make them safer against inadvertent closure could
provide some added protection to children left unattended in vehicles.
However, Volvo also questioned whether regulation is necessary, in
light of the trend toward installation of recessed or lift-up switches
and the effects of market forces.
AAMA commented that the agency has not investigated any of the
reported incidents of power window injury discussed in the NPRM to
determine whether the proposed regulatory changes would have prevented
the reported injuries.
The comments of Mr. Flanagan, an individual, expressed a contrary
view, stating that the agency should concentrate very seriously on
enacting regulations that would require push-down/pull-up power window
switches. Mr. Flanagan asserted that such action would eliminate the
overwhelming majority of inadvertent power window switch activation
resulting in serious child injuries.
Test Objectivity
Advocates for Highway and Auto Safety expressed concern that the
test procedures for the proposed amendments to FMVSS No. 118 were not
objective. Specifically, Advocates stated that the rigidity of the test
ball was not specified, that the term ``nondestructive'' was not
defined, and that no force level was specified for pressing the 25 mm
(1 inch) ball against the switch. Mercedes commented that the phrase
``in a non-destructive manner'' in the regulatory language is
meaningless and unenforceable.
Volvo suggested using an alternative test device similar to one
used in Economic Commission for Europe
[[Page 55522]]
Regulation No. 21,\11\ European Union (EU) Council Directives 74/60/EEC
\12\ and 78/632.\13\ (These European standards are identical with
regard to the test device suggested by Volvo.) However, Volvo
recommended a reduction in the radius of that device from 60 mm (2.4
inch) (as shown in Annex 7 of ECE Regulation No. 21) to 25 mm (1 inch).
---------------------------------------------------------------------------
\11\ Uniform Provisions Concerning the Approval of Vehicles With
Regard to Their Interior Fittings (ECE R21).
\12\ On the Approximation of the Laws of the Member States
Relating to the Interior Fittings of Motor Vehicles (Interior Parts
of the Passenger Compartment Other Than the Interior Rear-View
Mirrors, Layout of Controls, the Roof or Sliding Roof, the Backrest
and Rear Part of the Seats) (74/60/EEC).
\13\ Adapting to Technical Progress Council Directive 74/60/EEC
On the Approximation of the Laws of the Member States Relating to
the Interior Fittings of Motor Vehicles (Interior Parts of the
Passenger Compartment Other Than the Interior Rear-View Mirrors,
Layout of Controls, the Roof or Sliding Roof, the Backrest and Rear
Part of the Seats) (78/632/EEC).
---------------------------------------------------------------------------
Size of the Test Ball
Some commenters raised the issue of whether the size of the
proposed test ball was appropriate. Specifically, Advocates questioned
whether a test ball 25 mm (1 inch) in diameter would account for
inadvertent switch operation as a result of pressure from a child's
elbow, suggesting that a smaller size would be more representative.
In contrast, the AAMA argued that the agency had not provided
adequate evidence to suggest that the 25 mm (1 inch) diameter rigid
test ball appropriately represents the knee or ``flat softer tissue''
of the foot, arm, or leg, of a child under the age of six. AAMA also
stated that such a small diameter test device could necessitate switch
designs that would pose operational difficulties for persons with a
limited range of motion in their hands or fingers (e.g., occupants with
arthritis or even long fingernails), or with a gloved hand.\14\
According to AAMA, such persons may have difficulty operating recessed,
shielded, or pull-type switches, a situation that may distract from the
primary driving task and put vehicle occupants at higher risk of being
injured in a crash.
---------------------------------------------------------------------------
\14\ Although it did not provide a source for the information,
AAMA stated that existing data indicate that the average size of a
95th-percentile male's finger at the first knuckle is 22.8 mm (0.9
inch). AAMA argued that when this dimensional value is coupled with
an average glove tolerance of 5-7 mm (0.20-0.28 inch), the 25 mm (1
inch) testing diameter is rapidly exceeded.
---------------------------------------------------------------------------
Volvo commented that a 25 mm (1 inch) diameter is too small for the
test ball to be representative of the bent knee of a child, suggesting
that 50 mm (2 inches) would be more representative. According to Volvo,
even some designs of lift-up switches might fail in certain test
directions if a 25 mm (1 inch) test ball were used, due to the fact
that a certain amount of space is required around the switch to allow a
proper grip for fingers.
Exclusions
Some commenters (BMW, Mitsubishi, Volvo) suggested that vehicles
equipped with an automatic reversal system that meets the requirements
of S5 should be excluded from the proposed requirements related to
switches. BMW stated that this approach would afford manufacturers
design flexibility without degrading the level of protection for
occupants in unsupervised conditions.
Comments from BMW and Toyota also argued that the agency should
exclude from the new requirements any power window switch that could be
locked out or disabled by the driver.
Toyota commented that the proposed new requirements should not
apply to any switches that can be reached from the front seat by a 5th-
percentile female, arguing that the proposal is too strict and would
unnecessarily limit design flexibility. Toyota argued that it is
unnecessary to impose the proposed requirements on switches that can
easily be observed and reached by the driver (e.g., switches in the
front passenger compartment), because the driver would be able to
provide the necessary supervision of those switches' operation.
Several commenters (Nissan, Mitsubishi, Mercedes, Volvo,
Volkswagen) commented that the agency should exclude sunroof systems
from the proposed requirement in cases where the switch is mounted in
the vertical interior roof lining, because there is virtually no chance
that a child's knee or foot could activate such a switch. Nissan stated
that it does not use a ``one-touch'' closure feature and that its roof
panel switches do not function without the ignition key or if the key
is in the ``Off'' or ``Accessory'' position.
Other commenters, such as Honda, argued that the proposed
requirements should not apply to switches installed on approximately
vertical surfaces. Honda also stated that switches on a console located
on the centerline of the vehicle between the front seats should be
excluded from the proposed requirements, because a small child would
not have sufficient reach to activate such controls and still be in the
path of the window. More generally, Honda recommended that the agency
should consider excluding from the standard's switch requirements those
switches where the distance between the switch and the window it
operates is so great that a person could not simultaneously actuate the
switch and be in a position with the potential for entrapment. Honda
did not provide any data in support of its proffered proximity-based
exclusion.
Automatic Reversal Systems
Some commenters questioned the agency's decision to not propose to
require automatic reversal systems on new vehicles equipped with power
windows. For example, Advocates stated that NHTSA had not substantiated
that automatic reversal systems are ``unreasonably costly'' and had not
attempted to analyze the costs and benefits of such systems. Brose, a
manufacturer of automatic power window reversal systems, stated that
the agency's estimate of consumer costs for such systems, approximately
$100 per window, overestimates the actual cost, which Brose expected
would be approximately half of that figure.
In addition, Advocates challenged the agency's statement that
automatic reversal technology falls short of desirable performance, in
that ice, snow, and even friction caused by cold or tight weather
stripping can prevent window closure. Advocates pointed to the Cadillac
Catera, a vehicle equipped with an automatic reversal system, as proof
that such systems are capable of reliable operation and may prevent
injuries.
Brose stated that the pinch force-sensing automatic reversal
systems it produces are able, in most cases, to differentiate adverse
environmental influences (e.g., ice) from occupant entrapment
situations and that they can do so reliably for the life of the
vehicle. Brose also stated that automatic reversal systems may be
active when subject to variable closure conditions, rather than
operating only in the ``express-up'' mode, and that such systems also
are available on rear side windows to protect children.
Lead Time
Vehicle manufacturers generally commented that they would require
adequate lead time to incorporate the new switch requirements in their
production processes. Mitsubishi stated that it would require a four-
year lead time to implement the further design work necessary to comply
with the requirements in the proposed rule. Mercedes commented that the
lead time for any such rule should be at least five years, in order to
reduce its cost impact. Toyota and Volkswagen each stated that the
necessary modifications to its
[[Page 55523]]
vehicles could be made with a lead time of three years.
V. Post-Comment Period Developments
As noted in the NPRM, NHTSA has periodically received reports from
lawyers, doctors, and the public describing deaths and serious injuries
of unattended children in power window accidents. Additional incident
reports were provided as part of the Moore petition and in public
comments (Libbey & Suddock). These incidents occurred despite the fact
that power window operation in these vehicles was tied directly to the
ignition locking system. Such reports strongly suggested to the agency
that additional requirements were needed to protect children.
Injuries Associated With Power Windows
Data obtained since the NPRM confirms the existence of an ongoing
problem at a national level. In March 2000, NHTSA responded to
questions from some commenters on the NPRM about the justification for
the rulemaking by undertaking a review of death certificates from the
50 U.S. States for calendar year 1997. As part of that review, the
agency examined three types of non-crash accidents related to motor
vehicles, including child (age 10 or younger) fatalities related to
vehicle windows. This study was augmented with a search for relevant
news articles in the Lexis-NexisTM database, both to confirm
cases found in death certificates and to identify additional cases from
1997 and later years.
The study looked at the issue of child fatalities in power window
incidents generally, including any fatalities involving vehicle power
windows, to obtain an overview of the problem.
A final report, which was published in May 2002,\15\ states that in
1997, four deaths of children were associated with vehicle windows, and
in two of those cases, it was possible to identify the window system in
question as being a power-operated one. In all of those cases, the
victims were very young children (three three-year-olds and one four-
year-old).
---------------------------------------------------------------------------
\15\ ``NHTSA Pilot Study: Non-Traffic Motor Vehicle Safety
Issues,'' NHTSA (May 6, 2002) (Docket No. NHTSA-2004-17216-27).
---------------------------------------------------------------------------
In order to confirm the pattern of injuries discussed above, NHTSA
supplemented this research with a similar review of death certificates
for calendar year 1998 and updated the Lexis-NexisTM search.
The resulting report, which was published in May 2004,\16\ yielded the
following information.
---------------------------------------------------------------------------
\16\ ``Data Collection Study: Deaths and Injuries Resulting From
Certain Non-Traffic and Non-Crash Events,'' NHTSA (May 2004) (Docket
No. NHTSA-2004-17216-28).
---------------------------------------------------------------------------
The results of the review of the 1998 death certificate data were
similar to the earlier findings. Four child deaths were recorded as a
result of interaction with a vehicle window. Of the four cases, two
were identified as involving a power-operated window. In the third
case, it was not possible to identify from the death certificate
whether the window involved was power-operated, and in the fourth case,
no window movement took place, so whether the window was power-operated
was not relevant. Victims in those cases were ages two, three (two
cases), and six.
As discussed in the second NHTSA report, the results of the updated
Lexis-NexisTM search identified 11 child deaths and one
injury for calendar years 1998-2002 associated with vehicle windows
(one of these deaths involved a sunroof). We concluded that power-
operated windows or sunroofs caused nine of the deaths and the one
injury. In two cases, it was not possible to identify whether the
windows involved in the incident were power-operated. Except for one
six-year-old, all of the victims were either age two or three.
These data also indicate that the annual incidence rate for power
window-related fatalities involving children is, on average, in the low
single digits. However, with such a low rate of occurrence, the number
of cases may fluctuate (spike or ebb) in any single year, without
necessarily signaling a trend or a generalized change in
circumstances.\17\
---------------------------------------------------------------------------
\17\ A spike has reportedly occurred this year in power window
deaths. This situation is similar to one that the agency encountered
with trunk entrapment cases. In a three-week period in the summer of
1998, 11 children died in several trunk entrapment cases.
---------------------------------------------------------------------------
Estimate of Injuries Preventable by Safer Switches
The potential benefits attributable to safer switches are limited
to power-window incidents resulting from inadvertent actuation. In some
cases, however, it is not possible to determine whether a power-window
incident resulted from inadvertent or intentional operation of the
power window switch.
None of the deaths mentioned in the previous section that may have
involved inadvertent actuation involved power windows controlled by
pull-up, push-down switches. Thus, they were potentially preventable by
safer switches.
As discussed later in this document, in the section titled
``Benefits,'' we conservatively estimate that, on average, safer
switches could prevent at least one child fatality and at least one
serious injury per year.
Estimate of Injuries Potentially Preventable by Automatic Reversal
Systems
There is an overlap between the target population for this final
rule and the target population of the automatic reversal system
requirement sought by petitioners. As noted previously, the target
population for this final rule consists of persons killed or injured by
inadvertent actuation of power window switches. The target population
of the automatic reversal system requirement sought by petitioners is
larger, but only slightly, consisting of persons killed or injured by
either intentional or inadvertent actuation of those switches. Based on
the data, discussed above, on the number of deaths identified as
involving a power-operated window, we believe that in the absence of
this final rule, an automatic reversal system requirement might prevent
at least two fatalities per year. (We are unaware of any deaths caused
by a power window with an automatic reversal feature.) Given the
issuance of this final rule, the benefit of an automatic reversal
system requirement would be reduced to the prevention of at least one
fatality per year.
VI. Summary of the Safety Problem
We believe that the design of power window switches is influential
in incidents in which power windows result in death or injury.
Specifically, we believe that rocker and toggle switches are more
susceptible to inadvertent operation, because even incidental contact
(e.g., a slight bump or nudge of the switch) can cause the window to
begin to close. In contrast, by making it necessary to install either
recessed/shielded switches or push-pull switches, injuries and
fatalities are likely to be significantly reduced because accidental
switch contact would not occur or would not cause window closure.
Some commenters argued that push-pull switches might not resolve
the problem of inadvertent activation. The agency notes that because
power window accidents typically are not witnessed, there will always
be a measure of uncertainty as to whether a child inadvertently
actuated an exposed rocker or toggle switch, resulting in a window-
closing injury or fatality. It is theoretically possible, as some
commenters argued, that some of the
[[Page 55524]]
children may have closed windows on themselves by actuating power
windows in the normal way (i.e., using fingers to actuate the switch).
In such cases, switch redesign could not have prevented those
accidents.
We note that pulling up a switch to close a window is an operation
requiring a conscious decision to perform. A person cannot accidentally
press against a push-pull switch and cause a window to begin to close.
Therefore, inadvertent actuation and entrapment with push-pull type
switches are unlikely events. Thus, we continue to believe that switch
design is a major factor in the identified injuries and fatalities
associated with inadvertent power window actuation.
We note that there are other scenarios in which power windows may
cause death or injury. In some cases involving two children playing in
a vehicle, one child may intentionally activate the power window switch
(as the switch was functionally intended to operate) with the
unintentional effect of entrapping the other child. In other cases, a
driver may be distracted and close a power window on a child whose head
is in the window opening. The present rulemaking, which focuses on
power window switch designs that are resistant to inadvertent
actuation, would not prevent those cases, some of which stem from
driver distraction or insufficient adult supervision. In such cases, no
particular switch design would prevent the relevant injuries or
fatalities, although automatic reversal systems might be an effective,
although very costly countermeasure.
VII. The Final Rule
Decision To Move to a Final Rule
Although there has been a longer than usual interval between the
NPRM and the resulting final rule, we have decided to move directly to
a final rule for several reasons. First, more recent data confirm an
ongoing problem of injuries and fatalities related to the inadvertent
actuation of power window switches. The nature and extent of that
problem have not changed drastically since the time of the NPRM. We
note that while there has been an increase in the use of shielded or
recessed switches or push-pull switches since the NPRM, we would not
necessarily expect a gradual increase in the use of these switches to
track with changes in the number of fatalities, given the rare,
sporadic nature of these events.
Second, the technology that we expect to be used to comply with the
final rule is essentially unchanged since the NPRM. The shielded or
recessed switches and push-pull switches of today are similar to the
ones at the time of the NPRM.
Third, as indicated above, there has been an increasing trend among
vehicle manufacturers to equip vehicles with shielded or recessed
switches or push-pull switches. We expect those vehicles to meet the
requirements of the standard, particularly given the increase in the
diameter of the test device specified in this final rule, as compared
to the device in the NPRM. This final rule is thus consistent with a
safety solution already being implemented in the marketplace. Our final
rule will accelerate this trend and ensure that all light vehicles
comply.
Fourth, other than relatively minor technical changes, the
requirements of this rulemaking are largely the same as presented in
the NPRM. Coupled with adequate lead time, we expect implementation of
any necessary changes to be relatively simple and of de minimis cost.
We expect that such changes would be accomplished during the normal
vehicle redesign process.
For these reasons, we do not see any significant possibility that
obtaining further public comment would change the information before
this agency. Accordingly, we have decided that it is in the public
interest to proceed at this time to issue a final rule.
Summary of Requirements
After carefully considering the comments on the proposed rule and
other available information, we have decided to amend FMVSS No. 118 by
adding a new section S6, which specifies requirements for power window
switches in passenger cars, multipurpose passenger vehicles, and trucks
with a GVWR of 4,536 kg (10,000 lbs.) or less. These requirements apply
to switches that are located in the occupant compartment of those
vehicles and control the closing operation of power-operated windows,
partitions, and roof panels.
The provisions of S6 specify that power window switches must meet
new performance requirements when tested using a test device consisting
of a hemisphere with a smooth, rigid surface and a radius of 20 mm
1 mm. The device reasonably represents the knee of a small
child (2-3 years old). When the test device is applied with a force not
to exceed 135 Newtons (30 lbs.) to any switch (or in the case of
shielded or recessed switches, to the shielding/housing of any switch
with the force directionally applied in a manner that, if unimpeded,
would make contact with the switch) in the vehicle occupant compartment
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 force is applied to the geometric center
of and perpendicular to the flat surface of the hemisphere. While
applying a force in the specified range, the hemisphere may be in
contact with any part of the actuation device (switch) (or of the
switch shielding/housing) at any angle.
The requirements of S6 do not apply to switches that are both roof-
mounted and not capable of ``one-touch'' closure. In addition, power-
operated systems that meet the automatic reversal requirements of S5
are also excluded from the requirements of S6.
We believe that the test requirement set forth in section S6
provides a simple and practicable means of evaluating power window
systems so as to provide enhanced protection of children. Accordingly,
this final rule furthers NHTSA's mission of preventing motor vehicle-
related deaths and injuries.
The following provides more in-depth discussion of the standard's
new requirements and rationale related to switches for power-operated
windows, partitions, and roof panels, including a response to public
comments.
Effectiveness of the New Switch Requirements
Our examination of the existing data on injuries and fatalities
associated with inadvertent actuation of power windows not only aided
us in defining the nature and extent of the safety problem, but it also
contributed to the identification of the remedy included in this final
rule. As discussed below, the agency's research indicated the types of
power window switches that are most susceptible to inadvertent
actuation, as well as those most resistant to inadvertent actuation.
Among the fatalities identified in the agency's research reports,
which consider only cases in which a child was left alone in the
vehicle with no sibling or other person present in the vehicle and in
which the vehicle model and type of switch were identified, there were
a total of nine fatalities in the last ten calendar years (i.e.,
calendar year 1994 or later) caused by closing power windows. As noted
above, none of those nine cases involved vehicles with push-pull type
switches.
Further, there are several complaints documented in NHTSA's Vehicle
Owner Questionnaire (VOQ) database related to power-operated
windows.\18\
[[Page 55525]]
In a few of those cases, it was apparent that adults observed a child
closing a vehicle window by kneeling or standing on the power window
switch (and at least one case of a dog observed doing the same). None
of the involved switches were of a push-pull design.
---------------------------------------------------------------------------
\18\ A search of this database may be conducted by accessing
http://www-odi.nhtsa.dot.gov/cars/problems/complain/complaintsearch.cfm
and entering the appropriate terms.
---------------------------------------------------------------------------
These data indicate both the mode of action of most power window-
related incidents (i.e., kneeling or standing on switches), as well as
the types of switches that are most susceptible to inadvertent
actuation (i.e., rocker and toggle switches).\19\ The same information
also indicates that push-pull type switches provide superior protection
against inadvertent actuation. As noted above, the design of push-pull
switches require a more conscious effort to effectuate window closure
(i.e., active pulling with a finger rather than inadvertent contact).
---------------------------------------------------------------------------
\19\ Available data do not indicate whether those rocker and
toggle switches involved in power window-related incidents were
shielded or recessed. However, we believe that to be unlikely.
---------------------------------------------------------------------------
The Japan Automobile Manufacturers Association (JAMA) has
acknowledged the importance of careful switch design. Although we
believe that its recommendation does not go far enough, the following
statement by JAMA underscores the need for the present rulemaking:
Switches should be constructed so that they are less prone to
incorrect operation, taking into account the extent of their
projection and configuration in relation to the surrounding area. If
the switch for closing a window is installed on a plane whose angle
is within 30 degrees from the horizontal plane, it should not be a
``see-saw'' type or push-type switch.\20\
---------------------------------------------------------------------------
\20\ Docket No. NHTSA-2004-17216-23.
We do not believe that the switch requirements contained in this
final rule will negatively impact normal, intentional operation of the
windows, such as operation in the dark or operation with gloved hands.
We also believe that switches designed to conform to the standard will
be easy to operate and will not distract drivers. We note that there
are many vehicle models currently being sold in the U.S. that would
already meet the requirement of this final rule, so the suggestion that
compliant power window switch designs would pose operability problems,
as alleged, does not appear to be valid in light of current production.
Thus, although inadvertent operation comprises only a very small
percentage of overall usage, we expect that a safety benefit could be
realized through relatively simple switch redesigns that would not
compromise normal operation. Consistent with the above, we believe that
a requirement resulting in either push-pull switches or recessed
switches resistant to inadvertent actuation would eliminate the vast
majority of incidents of the type reflected in the data.
Test Device and Methodology
(1) Shape of the Test Device
In the NRPM, we proposed that the shape of the test device would be
a sphere.
As previously discussed, one commenter (Volvo) suggested the use of
an alternative device similar to one specified in ECE Regulation No. 21
and EU Directives 74/60 and 78/632. Those documents relate to interior
fittings in motor vehicles generally, including power window
switches.\21\
---------------------------------------------------------------------------
\21\ We note that the EU adopted Directive 2000/4/EC in February
2000. (Amending Council Directive 74/60/EEC on the Approximation of
the Laws of the Member States Relating to the Interior Fittings of
Motor Vehicles (Interior Parts of the Passenger Compartment Other
Than the Interior Rear-View Mirrors, Layout of Controls, the Roof or
Sliding Roof, the Backrest and Rear Part of the Seat) (Directive
2000/4/EC). In essence, the new directive incorporated requirements
similar to those in FMVSS No. 118 and also included the following
requirement related to power window switches: ``Switches * * * shall
be located or operated in such a way to minimise [sic] the risk of
accidental closing.'' However, the Directive does not provide any
additional performance requirements for those switches.
---------------------------------------------------------------------------
Volvo suggested using the shape and proportions of the ECE test
device, but scaling it down to child size by reducing its edge radius
from 60 mm (2.4 inches) as shown in Annex 7 of ECE Reg. No. 21 (which
approximates the size of an adult knee) to 25 mm (1 inch), which Volvo
stated is the size of a child's knee.
The resulting test device suggested by Volvo is depicted in a
figure attached to Volvo's comment.\22\ The device is in the shape of a
rounded triangle of 50 mm (2 inches) thickness, with rounded edges of
25 mm (1 inch) radius. The rounded vertex of the triangle--the part
that would be in contact with a power window switch during testing--is
effectively a sphere with a 50 mm (2 inches) diameter.
---------------------------------------------------------------------------
\22\ Docket No. NHTSA-2004-17216-11.
---------------------------------------------------------------------------
Because the shape of the critical feature of the test device
suggested by Volvo closely resembles that of a simple sphere, we
believe that the test device specified in this final rule is similar to
the one suggested in Volvo's comment and has the added benefit of
simplicity, since only radius and surface characteristic must be
specified. Accordingly, we have retained the spherical shape of the
test device as part of this final rule.
However, in order to simplify the application of the test device in
actual testing, we have decided to utilize a hemisphere, rather than a
full sphere. This will permit attaching of a rod to the flat surface of
the hemisphere for easier maneuvering of the test device during a test.
Only the spherical surface of the test device will be used for
contacting the switch or switch housing during testing.
(2) Size of the Test Device
In the NPRM, we proposed that the test device would have a diameter
of 25 mm (1 inch).
Commenters expressed divergent views as to the appropriate size of
the test device. Some commenters, such as Advocates, questioned whether
a sphere with a 25 mm (1 inch) diameter would be too large to be
effective in minimizing potential power window activation by means
other than fingers (with special attention drawn to children's elbows).
Other commenters, such as AAMA, stated that a test device with a 25 mm
(1 inch) diameter would be too small, possibly restricting switch use
by persons with decreased dexterity or gloved hands. Volvo recommended
a device whose relevant surface had the equivalent of a 25 mm (1 inch)
radius (50 mm (2 inches) diameter).
In order to determine the appropriate size for the test device, the
agency also examined anthropomorphic data submitted to the docket by
General Motors.\23\ The GM submission indicates that the average width
of the legs of children (ages 2 to 3\1/2\), measured at the knee, is 66
mm (2.5 inches) and that the minimum measurement among 212 children
within that age range was approximately 53 mm (2.1 inches). Those
figures are corroborated by Volvo's estimated child knee width of 50 mm
(2 inches) and by data contained in a 1976 NHTSA research report,\24\
which found knee breadth of 66 mm (2.6 inches) for a three-year-old.
---------------------------------------------------------------------------
\23\ Docket No. NHTSA-2004-17216-22.
\24\ ``Development and Evaluation of Masterbody Forms For Three-
year and Six-year Old Child Dummies,'' (DOT HS 801 811) (Docket No.
NHTSA-2004-17216-31).
---------------------------------------------------------------------------
Based upon these data alone, a test sphere of approximately 50 mm
(2 inches) in diameter seems appropriate. However, other factors lead
us to believe that the test sphere should have a somewhat smaller
diameter. First, the agency's research indicates at least one confirmed
case of a power window fatality involving a child less than two years
of age (22 months). Second, the measurements provided by GM are of the
overall width of the leg measured at the knee. However, the kneecap
itself is smaller than that dimension, even for a bent knee.
[[Page 55526]]
Further, we believe that inclusion of a compliance margin is
appropriate to ensure that the new requirements address a wide variety
of circumstances. Inadvertent actuation of power windows occurs in
vehicles with switches of various shapes and sizes, mounted in a
variety of locations and orientations, and involves children of
different ages and sizes. Body surfaces may interact with and activate
switches in a variety of ways. Too large a test device might lead to
switches that are susceptible to inadvertent operation in foreseeable
but unproven circumstances, such as by elbow contact.\25\
---------------------------------------------------------------------------
\25\ Examination of the relevant data does not reveal any cases
in which inadvertent elbow contact was identified as the cause of a
power window injury or fatality. Instead, most cases involved a
child kneeling or standing on a power window switch. Furthermore,
from a logistical standpoint, we believe that it would be extremely
rare for inadvertent elbow contact to result in entrapment.
Accordingly, our calculations to determine the size of the test
sphere focused on dimensions of children's knees, rather than
elbows.
---------------------------------------------------------------------------
For the above reasons and after considering all available
information, we have decided to adopt a hemisphere with a radius of 20
mm 1 mm (0.8 inch). We have selected this dimension
because we believe it is a reasonable representation of the predominant
size and shape of a small child's knee, with a compliance margin
appropriate for the circumstances. As to the alleged problem of
operating power window switches with gloved hands or by persons with
limited finger dexterity, we are not aware of any significant problem
in current vehicles that incorporate either recessed switches or
switches with a push-pull design. However, we believe that the
increased size of the test device in this final rule should eliminate
any such concerns.
(3) Surface of the Test Device
The NPRM did not provide detail as to the surface of the test
device, other than to state that the device would be a ``rigid
spherical ball.'' \26\ Commenters stated that the agency should provide
additional specificity in this regard in order to increase objectivity.
---------------------------------------------------------------------------
\26\ 61 FR 58504, 58507.
---------------------------------------------------------------------------
We agree that further clarification is appropriate, and we have
modified the regulatory text as follows. Our experience with different
test device sizes and types indicates that rotation of the test sphere
as it is pressed against a switch under test influences whether the
switch can resist actuation. We also found that a ball with a
relatively high level of surface friction exacerbated the effect of
ball rotation. For these reasons, we have decided to specify that the
test device be rigid and have a smooth surface, in order to limit the
effect of rotation.
(4) Application of the Test Device
As discussed above, some commenters argued that the agency's
proposal was not objective because it did not specify of level and
direction of force to be applied to the test sphere. Instead, the NPRM
stated that the test ball would contact the switch in ``any non-
destructive manner.'' \27\
---------------------------------------------------------------------------
\27\ Id.
---------------------------------------------------------------------------
In response to concerns raised about the objectivity of the how the
test device will be applied to the switch, we have decided to specify a
level of force for application of the test device as part of the test
procedure. For the following reasons, we have decided that the test
device is to be applied with a force not to exceed 135 Newtons (30
lbs.), which is applied to the geometric center of and perpendicular to
the flat surface of the hemisphere. While applying this force level,
the hemisphere may be in contact with the switch at any angle. For
shielded or recessed switches, the same test device and range of force
are used at any angle to attempt to make contact with the switch. In
such cases, the test device is directionally applied in such a manner
that, if unimpeded, contact would be made with the actuation device.
As the standard does not contain a strength requirement for power
window switches, our goal in selecting a force level was not to
determine whether switches could withstand relatively high force
levels. In addition, we note that power window switches normally
actuate under force levels on the order of several ounces.
As noted above, we based our decision as to the appropriate size of
the test device on the dimensions of the knee of small children (2-3
years old). Therefore, in the interest of consistency in selecting the
force to be applied to the test device, we have decided that it is
appropriate to use a force consistent with the weight (30 lbs.) of a 2-
year-old to 3-year-old child.
We believe that 135 Newtons (30 lbs.) of force is consistent with
the weight of the majority of children involved in power window-related
incidents and would test the resistance of switches to inadvertent
actuation in the closing direction without imposing any requirement for
switch durability.\28\ Although most power window switches in isolation
may actuate at lower force levels, the force specified in this final
rule will preclude shielding/housing around shielded or recessed
switches that deforms to such an extent that inadvertent actuation of
the switch becomes possible.
---------------------------------------------------------------------------
\28\ According to statistics provided by the Society for
Automotive Engineers (SAE), the 95th-percentile weight for children
ages 19-24 months was 13.8 kg (approximately 30 lbs.). See
``Anthropometry of U.S. Infants and Children,'' Society of
Automotive Engineers (SAE) SP-394 (1975) (Instructions on how to
view a copy of this document are provided at Docket No. NHTSA-2004-
17216-26).
This value is also representative of the weight of an average
three-year-old. Therefore, the selected force closely approximates
the weight of the majority of children who were most frequently
involved in incidents of inadvertent power window actuation.
---------------------------------------------------------------------------
We expect all existing vehicle power window switches would be
sufficiently robust as to withstand this maximum force when applied
during testing.\29\ If a switch were to break during testing, it would
not be a noncompliance under the standard, provided that breakage did
not cause the window to begin to close.
---------------------------------------------------------------------------
\29\ The agency recently conducted informal tests of power
window switches from six 2004 vehicles, some outside the vehicle and
some inside the vehicle. There did not appear to be any breakage
even when 445 Newtons (100 pounds) of force was applied to these
switches.
---------------------------------------------------------------------------
Orientation and Placement of Switches
With the exception of roof-mounted switches not capable of ``one-
touch'' activation, this final rule does not exclude window switches
from the standard's requirements based on location or orientation of
the switch. Even switches mounted on vertical surfaces could be
unintentionally contacted, resulting in inadvertent window closure. We
do not believe the standard's requirements will impose unreasonable
design restrictions on manufacturers. As previously noted, push-pull
switches or shielded/recessed switches are already incorporated in many
vehicles, and they are used in various locations and orientations.
However, after reviewing the available information, we have decided
to exclude certain ceiling-mounted switches (e.g., switches located in
an overhead console) from the new switch performance requirements of
the standard because they are not susceptible to inadvertent actuation.
There is no feasible way for an occupant to stand or kneel on overhead
switches while leaning out of an open window or sunroof, as may occur
with switches mounted in other locations.
Nonetheless, an overhead switch is only excluded from the
requirements set forth in this final rule, if such switch requires
continuous pressure to close the window or sunroof. Switches with a
``one-touch'' capability, even if they are mounted overhead, pose an
elevated risk because they can set a window or sunroof in motion, even
if they are actuated only momentarily and then
[[Page 55527]]
released. Therefore, overhead switches are excluded from the
requirements of this final rule only if they require continuous
actuation for the window or sunroof to continue closing.
Several commenters requested the exclusion of switches located at a
relatively large (``stand-off'') distance from the window or sunroof
that they control (e.g., center console-mounted switches controlling
rear vent windows in minivans). The underlying rationale for this
request is that because an occupant (particularly a child) would not be
large enough to span the distance between such a switch and the window/
sunroof opening, there would not be any way for that person to lean
against the switch while in a position in which that person is in
danger of becoming entrapped.
After considering this suggestion, we have decided not to exclude
switches based upon their distance from a window or sunroof for the
following reasons. First, the interiors of motor vehicles are, in
general, not very large compared to the length/height of children,
particularly when children are reaching with outstretched limbs. Based
upon available data, we estimate that the height of a 95th-percentile
six-year-old is approximately four feet.\30\ The same publication lists
the lower arm length for the 95th-percentile six-year-old as just over
one foot. If this length is added to the height measurement, it gives a
reasonable approximation of the maximum distance that a child can reach
with an outstretched arm (i.e., 5 feet). Although we have not received
any data regarding what would constitute a safe stand-off distance, we
believe that it would have to be at least four to five feet. Although
there may be some switches operating windows beyond this distance
(e.g., back vent window in minivans), we have concluded that in most
other cases, as long as switches are located in placements that are
reasonable for normal operation, they are unlikely to be sufficiently
out of reach of the windows and sunroofs they control to make
inadvertent actuation impossible.
---------------------------------------------------------------------------
\30\ See ``Anthropometry of U.S. Infants and Children,'' Society
of Automotive Engineers (SAE) SP-394 (1975) (Instructions on how to
view a copy of this document are provided at Docket No. NHTSA-2004-
17216-26).
---------------------------------------------------------------------------
Second, there have been a limited number of cases in which two
children were left in a vehicle, and one of the children was strangled
by a power window. In those cases, it is not always clear which child
actuated the power window switch and whether such actuation was
intentional or unintentional. Nonetheless, we do not believe that it is
appropriate to exclude such switches from the final rule's
requirements, since unintentional actuation of a power window switch by
one child could result in a fatality to another child, the basic
mechanism of injury is the same, and associated costs are negligible.
In addition, we are not adopting commenters' suggestion to exclude
vehicles with a power window lock-out feature from the requirements of
the final rule. Unlike an automatic reversal system that can be
expected to operate at all times, there is not any guarantee that a
power window lock-out feature will be used in all or even many cases.
In addition, on at least some vehicle models, the lock-out feature does
not disable the driver's window switches, and in other models, it only
disables the rear window switches. Consequently, we believe that window
lock-out features are not sufficiently protective to substitute for
improved switch designs.
Automatic Reversal
Automatic Reversal Systems at the Time of the NPRM
In the NPRM, NHTSA addressed the Moore petition's request for the
agency to mandate automatic reversibility. As discussed above, we
concluded then that such a feature would be too costly to be mandated
on all new light vehicles, that the then existing technology was
insufficient to provide the desired safety performance and that it
would not be practicable to redesign such systems to provide that
performance and at the same time retain the ability to close under
certain common environmental conditions. Therefore, the agency denied
the Moore petition's request related to an automatic reversal
requirement, based upon the following reasoning.
At the time of the 1996 NPRM, the only type of automatic reversal
systems available for broad application utilized force-sensing
technology. The agency estimated the cost for such systems to be
approximately $100 per window, which translated to $400 for a vehicle
with four power windows. The petitioner did not provide any information
to substantiate his claim that automatic reversal systems were not
unreasonably expensive.
In the NPRM, the agency also identified certain functional problems
with such systems that cast doubt on their efficacy in addressing the
problem of power window caused injuries and fatalities. The agency
determined that the then available automatic reversal technology could
not reliably close vehicle windows in the presence of snow or ice, or
even the friction of cold or tight window seals. As a result, the
automatic reversal capability was active only during one touch
``express-up'' window operation. It was overridden during the normal
closure mode (i.e., when the power window switch was continuously held
in the window closing position). Automatic reversal technology of that
type and capability would not have prevented window closure from
occurring when occupants stood, knelt, or leaned on power window
switches.
One commenter on the NPRM (Advocates) argued that some vehicles
then available in the U.S. market (e.g., Cadillac Catera) were equipped
with an automatic reversal system that they presumed met the pinch
force protection requirements of S5 of the standard. However, we do not
know if the system in those vehicles actually met those requirements.
We believe that none of those vehicles was certified under FMVSS No.
118 as complying with S5. Instead, they were certified under S4, which
provides that the power windows operate only when the ignition key is
in the ``On,'' ``Start,'' or ``Accessory'' position (or in other
specified, permissible positions).
Automatic Reversal Systems Today
Since the NPRM, the agency has received two additional petitions
for rulemaking (i.e., the 2003 petitions from Little and CAS)
requesting that we require automatic reversal systems on all new
vehicles equipped with power windows.
Although there has been improvement in the technology for force
sensing automatic reversal systems since the NPRM (e.g., a Brose system
using an electric current-sensing technique that causes a closing
window to reverse automatically in the normal operation mode as well as
express mode), we believe that these systems still might not meet the
requirements of S5 relating to protection of very small appendages,
such as a child's fingers. We base this belief upon the fact that
force-detecting reversal systems on vehicles now being sold in the
U.S.\31\ were generally designed to meet a German performance
requirement,\32\ under which power windows are limited to 100 N of
pinch force; however, the requirement permitted the window to move a
[[Page 55528]]
considerable distance (several millimeters) before reaching a force
level high enough to trigger reversal. This European requirement has
not changed since the NPRM. Consequently, systems designed to satisfy
the requirement might not protect small fingers as effectively as
systems certified to meet S5 of FMVSS No. 118.
---------------------------------------------------------------------------
\31\ The agency believes that all automatic reversal systems on
vehicles currently being sold in the U.S. use force-sensing
technology.
\32\ Road Traffic Act (Germany), No. 60, paragraph 30 STVZO
(Guidelines for power-operated windows of passenger vehicles) (1983)
(Docket No. NHTSA-2004-17216-25). The German requirement was
absorbed into the EU standard in 2000.
---------------------------------------------------------------------------
Recently, new technology has become available which could address
some of the shortcomings noted in the NPRM regarding the then existing
force-sensing systems. For example, in its petition, CAS discusses a
non-contact automatic reversal system produced by Nartron Corporation,
which uses a capacitive sensing \33\ technology to provide automatic
reversal. Such newer automatic reversal systems appear to have
addressed earlier concerns regarding the systems' reliability in terms
of closing when the weather stripping is very cold or when ice is
present. It appears that with these improvements, it may be feasible
for such systems to comply with the requirements of S5.
---------------------------------------------------------------------------
\33\ Capacitive sensing means the detection of an object by the
measurement of a disturbance in an electric field.
---------------------------------------------------------------------------
However, the cost per vehicle of these systems is significant.
According to CAS, the Nartron system has a cost of $12.50 per window,
or $50 per vehicle. Available information suggests that all production-
ready automatic reversal systems (i.e., ones based on force-sensing)
average approximately $8 to $10 per window ($32 to $40 per vehicle).
In addition, we note that automatic reversal systems based on still
other types of technology are under development. One example is a non-
contact automatic reversal system of the type developed by Prospects
Corporation that uses infrared reflectance technology to sense
obstacles, although no cost estimates are available for this system.
(Rights to that technology have been licensed to Delphi Corporation.)
Non-contact automatic reversal systems have also been developed using
light beam interruption technology, but again, no reliable cost figures
are available.
In sum, we believe that mandating the installation of these systems
on all new light U.S. vehicles would still involve a very high level of
cost. As discussed previously, we believe that supplementing this final
rule by mandating an automatic reversal system might save one
additional life per year, on average. Such a mandate would address
those cases where a driver or other vehicle occupant intentionally
closes a window while unaware that another occupant is in a position to
become entrapped. Given the substantial cost of automatic reversal
systems and the fact that this final rule will reduce the limited
benefits that could be obtained from those systems, we are denying the
requests in the Little and CAS petitions to mandate automatic reversal
systems.
VIII. Denial of Petitions for Rulemaking
Response to the Little and CAS Petitions
As discussed above, the Little and CAS petitions request the same
regulatory actions that the Moore petition requested be taken related
to power-operated window, partition, and roof panel systems. Regarding
the request by Little and CAS for the agency to require power window
switches that are resistant to inadvertent actuation, the issuance of
this final rule renders that request moot. As to the request by Little
and CAS that the agency require automatic reversal systems on all new
light vehicle equipped with power windows, we deny that request for the
reasons discussed above.
IX. Methods of Compliance
As noted above, the methods for compliance with the requirements of
this final rule are low in cost and involve simple technology that is
largely unchanged since the NPRM. These methods are discussed below.
One way to meet the requirements would be to install push-pull
window switches instead of rocker or toggle switches. The cost
difference between these switches is negligible.
Another way would be to shield rocker or toggle switches or to
recess them in a protective housing built into the armrest, console, or
other surface containing the switches so that a child's knee could
casually contact the housing, but not the switch.
These designs are being used in increasing numbers of vehicles.
In addition, vehicle manufacturers need not comply with the
requirements of this final rule if they equip their power windows with
automatic reversal systems that meet the requirements of paragraph S5
of the standard. The number of different technological approaches used
in designing automatic reversal systems has increased since the NPRM.
Further, their effectiveness has improved, even as their cost has been
reduced.
X. Lead Time and Compliance Date
In the NPRM, we proposed that compliance with the amended standard
would be required three years after publication of the final rule in
the Federal Register. We stated in the proposed rule that we intended
to provide sufficient lead time to allow vehicle manufacturers to
incorporate compliant power window safety switches as part of normal
vehicle redesign plans. We believed that providing this lead time would
reduce the cost associated with this final rule to essentially zero.
Comments from vehicle manufacturers stated that lead times ranging
from three to five years would be necessary, in order to build the
required changes into normal product production cycles. After
considering the comments and other available information, e.g., the
typical vehicle manufacturer production cycles, we have decided to
require that all new vehicles produced on or after October 1, 2008, for
sale in the U.S. must comply with the amended power window switch
requirements in this notice.
This four-year lead time, reflected in the above compliance date,
is within the range recommended by vehicle manufacturers in 1996 as to
the time required to incorporate the necessary switch design changes
into their normal vehicle redesign processes. We recognize, given that
the percentage of vehicles equipped with power windows that comply with
the requirements of this rule has risen since the NPRM, the overall
task of compliance is easier now than it was eight years ago. However,
that fact has no bearing on the duration of the redesign process for a
particular vehicle model that does not already have compliant switches.
As discussed previously, we believe that such lead time is appropriate
in order to minimize the costs associated with this rulemaking.
Manufacturers are free to meet the new requirements of FMVSS No.
118 prior to the date for mandatory compliance.
XI. Benefits
Based upon all available information, we believe 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 this final rule. We believe that this
estimate of safety benefits is conservative, and that the actual
benefit is likely higher for two reasons.
First, our estimate counts only cases in which the victim was a
child left alone in a vehicle. We excluded several cases because the
victim's sibling was also in the car, leading to the possibility that
the sibling, and not the victim, operated the window and did so
[[Page 55529]]
intentionally. To the extent that these cases involved inadvertent
operation of the power window by a second child, the new switch
requirements could provide further benefit by preventing actuation.
Second, our estimate counts only cases in which the vehicle make/
model was identified so that the type of power window switch was known.
Several cases occurred at a time when relatively few U.S. vehicles had
push-pull switches. Nevertheless, we decided not to assume that the
switches in those cases were either the rocker or toggle type, and
instead, we excluded those cases altogether. If further data were
available on those cases, the calculated benefits conceivably could
increase.
Further, even after NHTSA's methodical survey of death
certificates, we found cases in the Lexis-Nexis\TM\ search that did not
show up among the death certificates. Likewise, the list of fatalities
provided as an attachment to the CAS petition, which represents all of
the cases compiled by a national organization dedicated to child safety
with cars (Kids and Cars), includes at least one case that is not
duplicated in NHTSA's data. The reverse is also true, in that more than
one of the cases in NHTSA's study do not appear in the CAS list.
Collectively, these factors suggest that any attempt to determine
the size of this problem on a national level will undercount the actual
number of incidents and, thus, will result in an under-estimation of
the safety benefit.
We also note that the agency's complaint database includes reports
of ``near-miss'' incidents. In those cases, an occupant was actually
observed inadvertently operating a power window and was saved from
entrapment by nearby adults. Had adults not been present, it is likely
that the child occupant would have been injured or killed in those
cases. Although it is difficult to quantify the number of near-miss
incidents, we believe that a significant number of such cases occur but
go unreported, because no fatalities or serious injuries were involved.
This pool of close calls demonstrates that, although the number of
cases in any given year is typically in the single digits, there is
potential for the annual figures of deaths and injuries to vary by a
factor of two or three. We believe that such reports further
demonstrate the potential of switch design changes to avert risk of
injury or death.
Further, the agency's experience with other non-crash safety
problems exemplifies how a low-frequency type of safety problem can
suddenly proliferate. In the case of trunk entrapment, one particular
year (calendar year 1998) saw the number of deaths multiply by several
times the annual average for that type of incident (see 64 FR 70672
(Dec. 17, 1999)). Although it is unlikely that power window incidents
will proliferate to an unexpectedly high level, our research identified
five power window-related fatalities in 1998 alone, while the average
for the other four years studied (1999-2002) was 1.5 deaths per year.
XII. Costs
As stated previously, the agency believed at the time of the NPRM
that the proposed requirements would impose very little cost burden on
vehicle manufacturers, particularly if ample lead time were provided.
Modifications made to comply with the proposal were expected to consist
merely of changes in the mode of switch operation and/or in the shape
of surrounding trim pieces. The proposal was not expected to affect any
other aspects of the operation of power windows.
These initial estimates regarding costs hold for this final rule as
well. The cost to manufacturers, while perhaps greater than zero, will
be negligible, as any necessary switch modifications will presumably be
incorporated during the course of normal product design cycles. NHTSA
notes that the commenters did not question those estimates.
Further, several major vehicle manufacturers already have
incorporated push-pull switches across all or part of their model lines
and thus have already borne the cost of compliance. For example, for
the current model year (MY 2004), General Motors has stated that
approximately 55 percent of its sales volume in the U.S. incorporates
push-pull switches.\34\ Although data for the current model year were
not provided, Ford stated that it expects 61 percent of its fleet to
have re-designed switches by the 2007 model year.\35\ DaimlerChrysler
stated that four of its 26 model year 2003-2004 vehicle models have
push-pull switches.\36\ Other Chrysler models employ toggle type
switches, some of which may comply with the new requirements depending
on how they are situated within the vehicle (i.e., whether they are
recessed).
---------------------------------------------------------------------------
\34\ Docket No. NHTSA-2004-17216-24.
\35\ Id.
\36\ Id.
---------------------------------------------------------------------------
As to import manufacturers, Japanese import manufacturers currently
use push-pull type switches in most, if not all, of their U.S.
vehicles. While some European import manufacturers use switches that
would comply with this final rule, NHTSA does not know the extent of
this use. It does know that many of them offer auto-reverse power
windows. However, those windows may not qualify for the exception
provided in this final rule for power windows that meet the auto-
reverse requirements of FMVSS No. 118.
XIII. Rulemaking Analyses and Notices
A. 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. The amendments to FMVSS No. 118 contained in this final
rule would require switch designs that are resistant to inadvertent
actuation. However, 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, the annual benefits are expected to be
a savings of one child's life and the avoidance of at least one serious
injury. Therefore, the impacts of these amendments are so minor that a
full regulatory evaluation is not required.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory
[[Page 55530]]
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 will not
have a significant economic impact on a substantial number of small
entities. The rationale for this certification is that the rule does
not require use of any specific equipment design (e.g., either push-
pull type switches or other types of recessed switches could be used),
and the substantial lead time brings costs close to zero.
C. 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.
NHTSA has analyzed this final rule in accordance with the
principles and criteria contained in E.O. 13132 and has determined that
the rule will 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 will not have any
substantial effects on the States, or on the current distribution of
power and responsibilities among the various local officials.
D. 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 will 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.
E. 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 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.
F. 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 are
not any information collection requirements associated with this final
rule.
G. 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 (SAE). The NTTAA directs us to
provide Congress (through OMB) with explanations when the agency
decides 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.
H. 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). 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
[[Page 55531]]
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 will not result in the expenditure by State, local,
or tribal governments or the private sector, in the aggregate, or more
than $100 million annually. Thus, this final rule is not subject to the
requirements of sections 202 and 205 of the UMRA.
I. 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.
J. 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.
K. 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 (Volume 65, Number 70; Pages 19477-78), or
you may visit http://dms.dot.gov.
List of Subjects in 49 CFR Part 571
Imports, Motor vehicle safety, Reporting and recordkeeping
requirements, Tires.
0
In consideration of the foregoing, NHTSA is amending 49 CFR Part 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 paragraph S2 and by adding
paragraph S6 to read as follows:
Sec. 571.118 Standard No. 118; Power-operated window, partition, and
roof panel systems.
* * * * *
S2. Application. This standard applies to passenger cars,
multipurpose passenger vehicles, and trucks with a gross vehicle weight
rating of 4,536 kilograms or less. This standard's requirements for
actuation devices, as provided in S6, need not be met for vehicles
manufactured before October 1, 2008.
* * * * *
S6. Actuation Devices.
(a) Any actuation device that is mounted in the occupant
compartment of a vehicle and can be used to close a power-operated
window, partition, or roof panel, shall not cause such window,
partition, or roof panel to begin to close from any open position when
tested in accordance with paragraphs (b) and (c) of S6.
(b)(1) Using a hemisphere with a smooth, rigid spherical surface
and a radius of 20 mm 1 mm, place the spherical surface of
the hemisphere against any portion of the actuation device.
(2) Apply a force not to exceed 135 Newtons (30 lbs.) to the
geometric center of and perpendicular ( 3 degrees) to the
flat face of the hemisphere.
(3) While this force level is being applied, the plane of the flat
face of the hemisphere may be at any angle.
(c) For actuation devices that cannot be contacted by the
hemisphere specified in S6(b)(1) prior to the application of force,
apply a force up to the level specified in S6(b)(2) at any angle in an
attempt to make contact with the actuation device. The hemisphere is
directionally applied in such a manner that, if unimpeded, it would
make contact with the actuation device.
(d) 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 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.
Issued: September 9, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04-20714 Filed 9-13-04; 9:30 am]
BILLING CODE 4910-59-P