Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67233 

21See 5 U.S.C. 603(c). 

22We rejected requiring the MSS entrants to pay 

their obligation under an installment plan. See 

paragraph 16, supra. 

D. Description of Projected Reporting, 

Recordkeeping, and Other Compliance 

Requirements for Small Entities 

47. The Report and Order clarifies the 

existing obligation of new entrants to 

reimburse the party who relocates BAS 

incumbents for a portion of the 

relocation costs. It specifies that an 

AWS entrant incurs a cost sharing 

obligation upon grant of the long-form 

application for its license, and an MSS 

entrant incurs an obligation when it 

certifies that its satellite is operational 

for purposes of meeting its operational 

milestone. The reimbursement 

obligation continues until the December 

9, 2013 band sunset date. The Report 

and Order also specifies when payment 

of relocation cost is due. 

E. Steps Taken To Minimize the 

Significant Economic Impact on Small 

Entities, and Significant Alternatives 

Considered 

48. The RFA requires an agency to 

describe any significant alternatives that 

it has considered in reaching its 

proposed approach, which may include 

the following four alternatives (among 

others): (1) The establishment of 

differing compliance or reporting 

requirements or timetables that take into 

account the resources available to small 

entities; (2) the clarification, 

consolidation, or simplification of 

compliance or reporting requirements 

under the rule for small entities; (3) the 

use of performance, rather than design, 

standards; and (4) an exemption from 

coverage of the rule, or any part thereof, 

for small entities.21

49. Most of the decisions in the 

Report and Order address cost sharing 

obligations between the MSS entrants, 

future AWS entrants, and Sprint Nextel 

for relocating the BAS incumbents. Of 

these new entrants only the future AWS 

entrants may be small entities. Because 

no licensing scheme for the AWS 

spectrum has been determined, we are 

unable to determine how many (if any) 

of these future licensees may be small 

entities. It is also difficult to determine 

how the impact of the cost sharing rules 

on them may be reduced. 

50. All of the new entrants benefit 

from the clarity that the Report and 

Order brings to the cost sharing rules. 

The new entrants can now be certain 

how they incur a cost sharing 

obligation, what expenses are eligible 

for cost sharing, when they must make 

payment, and when the obligation will 

end if they do not incur a cost sharing 

obligation (i.e. they do not enter the 

band by the sunset date). In this way the 

cost sharing requirements adopted in 

the Report and Order benefit those 

future AWS entrants who may be small 

entities. 

51. Under the cost sharing rules, 

Sprint Nextel may receive cost sharing 

from the other new entrants to the band. 

One possible alternative to lessen the 

impact on new entrants who are small 

entities would be to reduce the amount 

that small entities are required to 

reimburse other entrants for the BAS 

relocation. This would in effect require 

Sprint Nextel to subsidize the small 

entities. This would be unfair because 

Sprint Nextel did not volunteer to 

subsidize the small entities, the small 

entities would likely be direct 

competitors of Sprint Nextel, and Sprint 

Nextel has spent a large sum of money 

on the BAS transition. Sprint Nextel is 

only receiving 5 megahertz of the 35 

megahertz of spectrum and up to this 

point has shouldered the entire cost of 

the BAS transition. Not requiring the 

future AWS entrants who are small 

entities to pay their share of the 

relocation cost would also harm the 

Commission’s future relocation policies. 

In the future licensees are not likely to 

volunteer to relocate incumbents if they 

are forced to subsidize other licensees. 

52. Another alternative would be to 

let the small entities pay their cost 

sharing obligation on the installment 

plan.22 Allowing use of installment 

payments would in effect make the 

party who relocated the incumbents a 

creditor of the small entity. This would 

be more costly for the party who 

relocated the incumbents because they 

will receive payment later. It would also 

subject the relocating party to increased 

risk of non-payment. There is also no 

record as to what specific installment 

plan could be adopted. 

53. Because of these drawbacks, we 

do not believe either of these 

alternatives is appropriate. Furthermore, 

because no AWS licenses have been 

issued, no small entities currently have 

a cost sharing obligation for the BAS 

transition. When AWS licenses are 

issued at some future date, the potential 

licensees will know for certain that they 

face a cost sharing liability because of 

the refinement of the cost sharing rules 

adopted in this Report and Order. 

F. Federal Rules That May Duplicate, 

Overlap or Conflict With the Rules 

54. None. 

Ordering Clauses 

55. Pursuant to sections 4(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332, this Fifth Report and Order, 

Eleventh Report and Order, Sixth Report 

and Order is adopted and will become 

effective 30 days after publication in the 

Federal Register. 

56. Pursuant to sections 4(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332 of the Communications Act of 1934, 

as amended, 47 U.S.C. 154(i), 301, 

303(c), 303(f), 303(g), 303(r), 303(y), and 

332, this Declaratory Ruling is adopted 

and was effective September 29, 2010. 

57. The Petition for Stay filed by New 

DBSD Satellite Services G.P. is denied. 

58. The Commission shall send a copy 

of this Fifth Report and Order, Eleventh 

Report and Order, Sixth Report and 

Order, and Declaratory Ruling in a 

report to be sent to Congress and the 

General Accounting Office pursuant to 

the Congressional Review Act, see 5 

U.S.C. 801(a)(1)(A). 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary. 

[FR Doc. 2010–27577 Filed 11–1–10; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

49 CFR Part 571 

[Docket No. NHTSA–2010–0148] 

RIN 2127–AK39 

Federal Motor Vehicle Safety 

Standards; Head Restraints 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), DOT. 

ACTION: Final rule; technical 

amendments; response to petitions for 

reconsideration and petitions for 

rulemaking. 

SUMMARY: This document responds to 

petitions for reconsideration of the 

agency’s May 2007 final rule amending 

our head restraint standard, and to 

related petitions for rulemaking. This 

document also makes technical 

corrections. The May 2007 final rule 

was issued in response to petitions for 

reconsideration of our December 2004 

final rule upgrading our head restraint 

standard. We are partially granting and 

partially denying the petitions for 

reconsideration. 


hsrobinson on DSK69SOYB1PROD with RULES
67234 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

1 Docket No. NHTSA–2004–19807. 

2 Docket No. NHTSA–2007–27986. 

DATES: Effective Date: This rule is 

effective January 3, 2011. Petitions: 

Petitions for reconsideration must be 

received by December 17, 2010. 

ADDRESSES: Any petitions for 

reconsideration should refer to the 

docket number of this document and be 

submitted to: Administrator, National 

Highway Traffic Safety Administration, 

1200 New Jersey Avenue, SE., West 

Building, Ground Floor, Docket Room 

W12–140, Washington, DC 20590. 

The petition will be placed in the 

docket. Anyone is able to search the 

electronic form of all documents 

received into any of our dockets by the 

name of the individual submitting the 

document (or signing the document, if 

submitted on behalf of an association, 

business, labor union, etc.). You may 

review DOT’s complete Privacy Act 

Statement in the Federal Register 

published on April 11, 2000 (Volume 

65, Number 70; Pages 19477–78). 

FOR FURTHER INFORMATION CONTACT: For 

non-legal issues, you may contact Louis 

Molino of the Office of Rulemaking, 

Office of Crashworthiness Standards, 

Light Duty Vehicle Division, NVS–112, 

(Phone: 202–366–1740). For legal issues, 

you may contact Edward Glancy of the 

Office of Chief Counsel, NCC–112, 

(Phone: 202–366–2992). You may send 

mail to both of these officials at the 

National Highway Traffic Safety 

Administration, 1200 New Jersey 

Avenue, SE., Washington, DC 20590. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Overview 

II. Background 

A. Introduction 

B. Agency Goals in Upgrading Head 

Restraint Standard 

C. May 2007 Final Rule; Response to 

Petitions for Reconsideration 

D. Global Technical Regulation on Head 

Restraints 

E. Petitions for Reconsideration of May 

2007 Final Rule and Related 

Submissions 

1. Petitions for Reconsideration 

a. Rear Seat Non-Use Positions 

b. Leadtime for Small Vehicle 

Manufacturers 

c. Static Lockout of Active Head Restraints 

During Backset Retention Testing 

d. Clarifying Definition of Adjustable Head 

Restraints 

e. Technical Amendments 

2. Petitions for Rulemaking 

a. Discomfort Metric for Non-Use Position 

and Relaxation Requirement for Gap 

b. ‘‘Effective Backset’’ 

III. Agency Response to Petitions for 

Reconsideration of May 2007 Final Rule 

and Technical Amendments 

A. NHTSA Declines To Adopt a 5-Degree 

Torso Change Angle for Rear Seat NonUse Positions 

B. NHTSA Declines To Permit Additional 

Leadtime for Small Vehicle 

Manufacturers 

C. Static Lockout of Active Head Restraints 

During Backset Retention Testing 

1. NHTSA Agrees To Specify the Fixation 

Point for Static Testing of Active 

Mechanical Head Restraints 

2. NHTSA Declines To Specify a Minimum 

Forward Movement Requirement for 

Static Testing of Active Mechanical Head 

Restraints 

3. NHTSA Declines To Expand the 

Fixation Option to ‘‘Reactive’’ and 

Electronically Triggered Head Restraints 

D. ‘‘Adjustable’’ Head Restraints and 

Availability of 25 mm Cylindrical Gap 

Test Option 

E. Technical Amendments and Corrections 

1. NHTSA Agrees To Revise S5.2.4.2 

2. NHTSA Agrees To Revise S5.3.4 

3. NHTSA Agrees To Revise S5.2.6(d) and 

S5.2.7(a)(7) 

4. NHTSA Agrees To Revise S5.2.7(a)(5) 

5. NHTSA Is Correcting Clerical Errors in 

S4.3 and S5.3 

IV. Agency Response to Petitions for 

Rulemaking 

A. NHTSA Declines To Conduct 

Rulemaking Concerning Discomfort 

Metric or Relaxation Requirement for 

Gap Separate From the Rulemaking 

Based on the GTR 

B. NHTSA Denies Petition for Rulemaking 

To Replace the Current Backset 

Measurement Method With an ‘‘Effective 

Backset’’ Requirement 

C. NHTSA Denies Petition for Rulemaking 

To Adopt Effective Backset 

Requirements for Front and Rear Head 

Restraints as Alternative to Backset 

Retention Requirement 

V. Rulemaking Analyses and Notices 

I. Overview 

This document responds to petitions 

for reconsideration of the agency’s May 

2007 final rule amending our head 

restraint standard, and to related 

petitions for rulemaking. This document 

also makes technical corrections. 

The May 2007 final rule was issued in 

response to petitions for reconsideration 

of our December 2004 final rule 

upgrading our head restraint standard. 

The December 2004 final rule 

represented a significant upgrade of 

NHTSA’s head restraint standard, and 

the estimated benefits, recognized 

primarily by reductions in ‘‘whiplash’’ 

injuries, were substantial. The 

overwhelming majority of those benefits 

came from reducing the ‘‘backset,’’ or 

distance between the back of the head 

and the head restraint. 

We also note that further rulemaking 

on this subject is upcoming. A Global 

Technical Regulation (GTR) on the 

subject has recently been adopted, and 

NHTSA plans to publish a notice of 

proposed rulemaking (NPRM) to 

propose changes in accordance with the 

GTR. 

In this document, we are partially 

granting and partially denying the 

petitions for reconsideration of our May 

2007 final rule. Some of the issues 

raised by the petitioners for rulemaking 

are addressed by the GTR. We will 

address those issues in the context of a 

future separate rulemaking based on the 

GTR. We are otherwise denying the 

petitions for rulemaking. 

II. Background 

A. Introduction 

On December 14, 2004, NHTSA 

published in the Federal Register (69 

FR 74848) a final rule 1 upgrading the 

agency’s head restraint standard in 

order to reduce whiplash injuries in rear 

collisions. The upgraded standard 

specified requirements for front seat 

head restraints and for head restraints 

voluntarily installed in rear outboard 

designated seating positions. 

On May 4, 2007, NHTSA published in 

the Federal Register (72 FR 25484) a 

final rule; response to petitions for 

reconsideration 2 which completed the 

agency’s response to petitions for 

reconsideration of the December 2004 

final rule. The agency partially granted 

and partially denied the petitions. The 

agency also denied a related petition for 

rulemaking, submitted by Kongsberg 

Automotive (Kongsberg), in that 

document. Kongsberg is a company that 

produces automotive parts, including 

head restraint systems. 

The upgraded standard is designated 

Standard No. 202a; Head Restraints; 

Mandatory applicability begins on 

September 1, 2009. The earlier standard 

is Standard No. 202; Head Restraints; 

Applicable at the manufacturers’ option 

until September 1, 2009. The 

requirements of the upgraded standard 

are currently being phased in. 

In today’s document, we are 

responding to petitions for 

reconsideration received in response to 

the May 2007 final rule, and to related 

petitions for rulemaking. Readers who 

may be interested in the broader issues 

involved in the rulemaking to upgrade 

the head restraint standard are 

encouraged to read the December 2004 

and May 2007 final rules. 

B. Agency Goals in Upgrading Head 

Restraint Standard 

The agency upgraded its head 

restraint standard in order to reduce 

whiplash injuries in rear collisions. 

Whiplash injuries are a set of common 

symptoms that occur in motor vehicle 

crashes and involve the soft tissues of 

the head, neck and spine. Symptoms of 


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Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67235 

3Non-contact Abbreviated Injury Scale (AIS) 1 

neck. 4 Docket No. NHTSA–2008–0016. 

pain in the head, neck, shoulders, and 

arms may be present along with damage 

to muscles, ligaments and vertebrae, but 

in many cases lesions are not evident. 

The onset of symptoms may be delayed 

and may only last a few hours; however, 

in some cases, effects of the injury may 

last for years or even be permanent. The 

relatively short-term symptoms are 

associated with muscle and ligament 

trauma, while the long-term ones are 

associated with nerve damage. 

Based on National Automotive 

Sampling System (NASS) data, we 

estimate that between 1988 and 1996, 

805,581 whiplash injuries 3 occurred 

annually in crashes involving passenger 

cars and LTVs (light trucks, 

multipurpose passenger vehicles, and 

vans). Of these whiplash injuries, 

272,464 occurred as a result of rear 

impacts. For rear impact crashes, the 

average cost of whiplash injuries in 

2002 dollars is $9,994 (which includes 

$6,843 in economic costs and $3,151 in 

quality of life impacts, but not property 

damage), resulting in a total annual cost 

of approximately $2.7 billion. 

Although whiplash injuries can occur 

in any kind of crash, an occupant’s 

chances of sustaining this type of injury 

are greatest in rear-end collisions. When 

a vehicle is struck from behind, 

typically several things occur in quick 

succession to an occupant of that 

vehicle. First, from the occupant’s frame 

of reference, the back of the seat moves 

forward into his or her torso, 

straightening the spine and forcing the 

head to rise vertically. Second, as the 

seat pushes the occupant’s body 

forward, the unrestrained head tends to 

lag behind. This causes the neck to 

change shape, first taking on an S-shape 

and then bending backward. Third, the 

forces on the neck accelerate the head, 

which catches up with—and, depending 

on the seat back stiffness and if the 

occupant is using a shoulder belt, 

passes—the restrained torso. This 

motion of the head and neck, which is 

like the lash of a whip, gives the 

resulting neck injuries their popular 

name. 

NHTSA research has indicated that 

whiplash injuries can be substantially 

reduced by limiting the distance 

between the back of the head and the 

head restraint, a distance known as the 

‘‘backset.’’ The most significant effect of 

the 2004 final rule was to limit backset 

to 55 mm. In limiting backset, NHTSA 

balanced comfort, safety, and 

measurement variability concerns. The 

agency explained the rationale for the 

backset requirement in the preamble to 

the December 2004 final rule, and 

addressed the issue further in the 

preamble to the May 2007 final rule. 

C. May 2007 Final Rule; Response to 

Petitions for Reconsideration 

As noted above, NHTSA’s May 2007 

final rule, response to petitions for 

reconsideration, completed the agency’s 

response to petitions for reconsideration 

of the December 2004 final rule. The 

agency partially granted and partially 

denied the petitions. The more 

significant changes made in the May 

2007 response to petitions included: 

• Leadtime: For the front seat 

requirements, the agency provided one 

additional year of leadtime and also 

established a one-year phase-in with an 

80 percent requirement. NHTSA had 

previously extended the compliance 

date for the rear seat requirements by 

two years. The agency also established 

a one-year phase-in with an 80 percent 

requirement for the rear seat 

requirements. 

• Backset: NHTSA made two changes 

related to the backset requirement. First, 

the agency specified in FMVSS No. 202a 

that backset is determined by taking the 

arithmetic average of three 

measurements, rather than using a 

single measurement. Two studies, one 

by NHTSA and one by Transport 

Canada, had indicated that taking an 

average of several measurements 

reduces variability. Second, we slightly 

relaxed the backset requirement by 

specifying that the 55 mm backset limit 

applies with the seat back at the vehicle 

manufacturer’s specified design angle 

rather than at 25 degrees. This decision 

reflected consideration of interrelated 

issues and data concerning the 55 mm 

backset limit, comfort, and seat back 

angle. 

• Rear Seat Non-Use Positions: To 

provide greater flexibility in this area, 

we added (as included in the NPRM) an 

option for a 10-degree change in the 

torso reference angle criteria. 

• Gaps Between Head Restraint and 

Seat Back: We added a manufacturer 

option under which the gap requirement 

may be met by either the existing 

FMVSS No. 202a procedure using a 

sphere or one based on the 

measurement methodology set forth in 

United Nations Economic Commission 

for Europe (UNECE or ECE) Regulation 

No. 17, Uniform Provisions concerning 

the Approval of Vehicles with regard to 

the Seats, their Anchorages, and any 

Head Restraints. 

• Backset and Height Retention 

(Lock) Tests: We specified that instead 

of returning to the reference loads of 37 

Nm and 50 N after application of the 

peak load during these tests, that the 

load be reduced to zero and then 

increased to the reference loads. 

The agency also denied a related 

petition for rulemaking, submitted by 

Kongsberg, in that document. 

Kongsberg’s petition for rulemaking had 

made requests in the areas of effective 

backset, backset retention and 

displacement, height retention, non-use 

position, definition of rear restraint, 

gaps, and removability of head 

restraints. 

D. Global Technical Regulation on Head 

Restraints 

In the preamble to the May 2007 final 

rule, we explained that the agency had 

separately been leading efforts to 

develop a GTR on head restraints We 

noted that the work on the GTR had 

been proceeding at the same time that 

NHTSA had been evaluating the 

petitions for reconsideration of the 

December 2004 final rule, and that some 

of the issues that were the subject of the 

petitions for reconsideration had also 

been raised in the context of the GTR. 

We explained that in the May 2007 

document, we were addressing those 

issues in the context of the petitions for 

reconsideration of the recently upgraded 

FMVSS No. 202. We explained further 

that if the development of the GTR 

continued to proceed successfully and it 

was ultimately adopted, and if the U.S. 

had voted for its adoption, NHTSA 

would issue an NPRM based on the GTR 

for a new FMVSS. 

After publication of the May 2007 

document, the development of the GTR 

on head restraints did continue to 

proceed successfully. It was adopted in 

March 2008 by a vote taken by the 

World Forum for Harmonization of 

Vehicle Regulations (WP.29). The U.S. 

voted for its adoption. Prior to the vote, 

on February 14, 2008, NHTSA 

published in the Federal Register (73 

FR 8743) a request for comments 4 on 

the GTR to inform its decision on the 

vote. 

The agency explained in the February 

2008 request for comments that once the 

GTR was established through consensus 

voting at WP.29, NHTSA would initiate 

domestic rulemaking to amend its 

existing FMVSS to incorporate 

approved provisions of the GTR. The 

agency explained that this would allow 

for further opportunity to consider 

comments from interested parties 

through the rulemaking process. 

NHTSA noted that if its rulemaking 

process leads it to either not adopt or to 

modify aspects of the GTR, the agency 

would seek to amend the GTR in 

accordance with established procedures 


hsrobinson on DSK69SOYB1PROD with RULES
67236 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

5The May 2007 final rule on FMVSS No. 202a 

was one of many notices in which we did not 

identify any potential obstacle or conflict. 

under the 1998 Global Agreement and 

WP.29, as it did with the door lock GTR. 

NHTSA is currently in the process of 

developing an NPRM based on the head 

restraints GTR. 

E. Petitions for Reconsideration of May 

2007 Final Rule and Related 

Submissions 

NHTSA received a total of seven 

submissions in response to, or related 

to, the May 2007 final rule. These 

documents included ones styled as 

petitions for reconsideration, petitions 

for expedited rulemaking and a 

statement of support for one of the 

petitions for expedited rulemaking. 

While one of the documents, 

submitted by Kongsberg, was called a 

petition for reconsideration, some of its 

requests are not for reconsideration of 

the May 2007 final rule. Instead, they 

either request reconsideration of the 

agency’s denial of that company’s 

petition for rulemaking or are new 

requests for rulemaking. NHTSA does 

not have procedures for requesting 

reconsideration of denials of petitions 

for rulemaking. However, to the extent 

a petitioner provides new information, 

the agency may consider such a 

document as a new petition for 

rulemaking. We will treat these parts of 

Kongsberg’s petition as a petition for 

rulemaking. 

Petitions for reconsideration of the 

May 2007 final rule were received from 

the Alliance of Automobile 

Manufacturers (Alliance), Vehicle 

Services Consulting, Inc. (VSCI), and 

Kongsberg. The Alliance is a trade 

organization of motor vehicle 

manufacturers. VSCI is a company that 

assists small volume vehicle 

manufacturers with U.S. certification 

related matters. 

Petitions for rulemaking were 

received from the Alliance, Mitsubishi 

Motors R&D of America (Mitsubishi) 

and Kongsberg. The Association of 

International Automobile Manufacturers 

(AIAM) submitted a letter in support of 

the Mitsubishi petition. 

The American Association for Justice 

(AAJ) submitted a document that is 

styled as a petition for reconsideration 

and objects to the agency’s discussion of 

implied preemption. The agency does 

not consider this to be a petition for 

reconsideration, as NHTSA’s 

preemption discussion is not a rule. 

We believe that a fundamental 

misunderstanding lies at the heart of 

petitioners’ characterization of the 

discussion in the final rule. AAJ has 

mistakenly characterized the agency’s 

discussion of implied preemption, a 

discussion that we included in 

approximately two dozen other Federal 

motor vehicle safety standard 

rulemaking notices issued from 

February 2007 to November 2008. We 

explained those discussions at length in 

a June 14, 2010 final rule on FMVSS No. 

305 (75 FR 33515, at 33524–33525), 

which we believe has addressed the 

concerns of AAJ and PC on this subject. 

To summarize the agency’s discussion 

in the FMVSS No. 305 final rule, in each 

of the Federal Register notices 

discussing Geier v. American Honda 

Motor Co., 529 U.S. 861 (2000) and the 

agency’s response to Executive Order 

(E.O.) 13132, NHTSA sought to explain 

that we had examined whether there 

might be any possible basis for a judicial 

finding of implied preemption of state 

tort law. In all but a few of those notices, 

we concluded each examination 

without identifying any potential 

obstacle or conflict that might give rise 

to such a finding.5 The FMVSS No. 305 

final rule explained that the agency has 

increasingly clarified and amplified its 

discussion responding to E.O. 13132 in 

an attempt to end the 

misunderstandings and assuage 

concerns about the preemption 

discussion. Readers are referred to that 

document for a full discussion of the 

language in question. Similarly, NHTSA 

clarified the discussion of E.O. 13132 in 

the FMVSS No. 305 final rule. The 

agency’s discussion in that document 

should eliminate commenters’ 

misunderstandings about this topic. 

The specific requests in the various 

petitions, broken down by subject 

matter, are discussed briefly below. 

1. Petitions for Reconsideration 

a. Rear Seat Non-Use Positions 

Under FMVSS No. 202a, head 

restraints installed in the rear seats are 

permitted to have a ‘‘non-use’’ position, 

in which they are not required to meet 

in-use performance requirements. Some 

of the reasons for such a position are to 

help improve rear visibility, prevent the 

head restraint from interfering with the 

seat being stowed, and to facilitate child 

seat attachment. However, in 

developing the upgraded head restraint 

standard, NHTSA was concerned that 

passengers may inadvertently occupy 

the seat with the head restraint in the 

non-use position, thereby depriving 

themselves of the whiplash protection 

afforded by the head restraint. 

In order to permit the non-use 

position, yet mitigate the potential 

dangers, the agency required head 

restraints that can be adjusted to such 

positions to meet one of three options, 

which are set forth in paragraphs 

S4.4(a)–(c) of FMVSS No. 202a. One 

option (a) was that a head restraint in a 

non-use position must automatically 

return to a normal ‘‘use position’’ when 

the seat is occupied by a test dummy 

representing a 5th percentile female. 

The second option (b) was that the head 

restraint must be capable of manually 

rotating at least 60 degrees forward or 

rearward, between the use position and 

the non-use position. This option, while 

not necessarily physically preventing a 

passenger from sitting in a seat with the 

head restraint in the non-use position, 

would at least provide a clear visible 

cue that the head restraint was not 

properly adjusted. The third option (c) 

was that the head restraint in the nonuse position must cause the torso of a 

test manikin to move forward by at least 

a 10-degree angle when compared to its 

angle when the head restraint is in a use 

position. This has the effect of making 

most passengers uncomfortable, which 

provides a strong cue that the head 

restraint is not in the proper position. 

Some petitioners for reconsideration 

requested that this third option be 

broadened. Specifically, the Alliance 

requested that the agency modify the 

standard by allowing a rear head 

restraint in the non-use position to only 

cause the torso to move 5–10 degrees 

forward, rather than at least 10. 

Essentially, the Alliance was asking that 

the head restraint not have to jut out as 

much as it currently must in order to 

provide the physical cue to the 

passenger that it is out of position. 

There were two rationales offered for 

this. First, the Alliance believed that it 

would be difficult to design stow-away 

seating if the head restraint had to 

protrude so far as to cause the torso 

angle to move forward 10 degrees. 

Second, the Alliance argued that the 

mechanics required by the 10-degree 

torso angle change would cause 

problems with certain child seats. 

b. Leadtime for Small Vehicle 

Manufacturers 

The agency was also petitioned to 

extend the leadtime for small 

manufacturers. Specifically, VSCI 

petitioned the agency to permit smallvolume manufacturers (SVMs) to 

comply with FMVSS No. 202a only at 

the end of the phase-in period, rather 

than having to phase in the new head 

restraint requirements like other 

manufacturers. The standard specifies 

that mandatory compliance begins on 

September 1, 2009, with at least 80% of 

vehicles manufactured during the 

production year beginning on that date 

being compliant with FMVSS No. 202a 

for front seat head restraints. By 


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6Alternatively, manufacturers have the ability to 

certify to a dynamic test requirement. 

7The backset retention test helps ensure that 

when the head is forced back, as in a crash, the 

head restraint stays in position. 

8A backpan is the part of the manikin that rests 

on the seat back. 

9To pass the backset retention test, the head form 

must not move more than 25 mm during the 

application of the initial reference load 

(S4.2.7(a)(1)), not be displaced more than 102 mm 

during application of the peak load (S4.2.7(a)(3)), 

and return to within 13 mm of the initial reference 

position when unloaded to the reference load level 

(S4.2.7(a)(3)). 

September 1, 2011, 100% of all head 

restraints in both the front and rear seats 

must be compliant with the new 

standard. 

The specific phase-in percentage 

requirements are shown by the table 

below. 

Date 

Front 

seats 

(%) 

Rear 

seats 

(%) 

Production Year Beginning 

September 1, 2009 ....... 80 0 

Production Year Beginning 

September 1, 2010 ....... 100 80 

September 1, 2011 ........... 100 100 

VSCI requested that SVMs, that is, 

manufacturers which produce less than 

5,000 vehicles per year for sale in the 

U.S., not be required to comply with 

FMVSS No. 202a until September 1, 

2011, the end of the phase-in period. 

VSCI’s reasoning is that if a SVM 

produces only one line of vehicles, if it 

changes the head restraint for one 

vehicle, it changes it for 100% of its 

line. Thus, unless a SVM has more than 

four vehicle lines, requiring 80% 

compliance is no different than 

requiring 100% compliance. 

Furthermore, VSCI suggests that an 

extension of the effective compliance 

date could help SVMs integrate the new 

head restraint requirements with the 

start of a new product cycle, rather than 

having to integrate them in the middle 

or end of a cycle. 

Finally, VSCI argues generally that 

SVMs should always be permitted to 

comply with new standards at the end 

of phase-in cycles, due to the fact that 

the nature of their businesses frequently 

make partial compliance with standards 

not an option. VSCI also requested that 

the agency formally adopt VSCI’s 

definition of a SVM, which is: ‘‘an 

original vehicle manufacturer that 

produces or assembles fewer than 5,000 

vehicles annually for sale in the United 

States.’’ 

c. Static Lockout of Active Head 

Restraints During Backset Retention 

Testing 

The next issue is somewhat complex 

to explain. Certain head restraints, 

known as ‘‘mechanical active head 

restraints,’’ move with respect to the seat 

due to occupant loading. This means 

that these systems move the head 

restraint forward and up by activation of 

a lever mechanism in the seat back. 

While this helps to ensure proper head 

restraint placement for human 

occupants, it can create a problem when 

developing a static 6 test. When the 

backset retention test 7 is performed, the 

seat back is loaded through a backpan.8

For mechanical active head restraints, 

this loading activates the lever and 

pivots the head restraint forward. This 

is followed by loading of the head 

restraint through a head form, which 

tends to rotate the head restraint 

rearward. Thus, the head restraint is 

placed in an unstable condition and is 

no longer acting as a rigid body. Under 

such conditions, it would be difficult to 

meet the backset displacement limits.9

To address this testing problem, in the 

May 2007 final rule the agency modified 

the test procedure to allow those kinds 

of head restraints to be fixed in the 

unoccupied seat position for purposes 

of the test. This solved the problem of 

testing active head restraints in a static 

manner. For reference, the regulatory 

text (emphasis added) of 5.2.7(a) states 

that for head restraints that move with 

respect to the seat when occupant 

loading is applied to the seat back, 

S5.2.7(a)(1) through (8) may be 

performed with the head restraint fixed 

in a position corresponding to the 

position when the seat is unoccupied. 

One petitioner, Kongsberg, made three 

separate requests with regard to this 

particular requirement. First, it asked 

that the agency clarify the fixation 

allowance by specifying that the fixation 

of the active head restraint occur closest 

to the occupant loading and not closest 

to the head restraint. It justified this by 

arguing that there will be looseness 

throughout the active head restraint 

mechanism. Second, it requested that 

NHTSA ‘‘set a minimum level of 

‘forward movement.’ ’’ Lastly, it 

requested that this fixation allowance be 

extended to electronically triggered 

active head restraints in addition to 

those activated by occupant loading 

(body triggered). It argued that to limit 

the allowance to body-triggered systems 

is not providing a standardized test for 

all technologies. 

Specification of Fixation Point 

Kongsberg’s first request (part 6.1 of 

its submission) relates to the specific 

nature of where a mechanical active 

head restraint should be fixed for 

purposes of the static backset retention 

test. As paragraph S5.2.7(a) currently 

states, the head restraint is ‘‘fixed in a 

position corresponding to the position 

when the seat is unoccupied.’’ However, 

some mechanical active head restraints 

may have several linkages that transfer 

occupant loading on the seat back into 

head restraint movement. In that case, 

the petitioner stated, the regulatory text 

as written would allow fixation at any 

of these points if it ultimately restricts 

the head restraint from activation under 

seat back loading. 

Instead, Kongsberg requested that the 

agency change the regulatory text to 

require that mechanical active head 

restraints be fixated at the linkage point 

closest to the occupant loading. Doing 

otherwise, the petitioner argued, would 

give an unfair advantage to mechanical 

active head restraints, because they 

could be fixated at the point where the 

head restraint connects to the seat back 

rather than where it first feels the force 

of the occupant loading. If this were the 

case, then a mechanical active head 

restraint could pass the retention test, 

even if there was looseness in the head 

restraint-seat back connection, where a 

different type of head restraint with the 

same strength characteristics would not 

have passed. 

Limiting the Fixation Option to Head 

Restraints That Have a Minimum Level 

of Forward Movement 

The next point from Kongsberg’s 

petition (part 6.2) in this area is its 

request that NHTSA set a minimum 

level of ‘‘forward movement.’’ While the 

precise request being made is not clear, 

it is effectively asking NHTSA to 

functionally define how far an active 

mechanical head restraint must be able 

to move forward in order to be classified 

as such, and therefore, take advantage of 

the ability to be fixated during static 

testing of head restraint displacement. 

Expansion of Fixation Option to 

Reactive and Electronically-Triggered 

Head Restraint Systems 

Third, Kongsberg petitioned the 

agency (part 6.2.2 of its submission) to 

expand the fixation option to include all 

reactive and electronically triggered 

head restraints during static testing. 

Currently, this option is only available 

for ‘‘head restraints that move with 

respect to the seat when occupant 

loading is applied to the seat back,’’ that 

is, for active mechanical head restraints. 

Kongsberg, in the background section of 

its submission, defined two broad 

categories of head restraints: ‘‘reactive 

systems,’’ in which energy from body 


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67238 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

10 Kongsberg petition, 4.2.1. 

11Most of the benefits of rear head restraints 

come from the height, not the backset. 

12 Docket No. NHTSA–2007–27986–0012, p. 1. 

mass is transferred to mitigate the 

impact of a head on a head restraint; 

and ‘‘proactive systems,’’ in which 

stored energy is released to mitigate the 

impact. The petitioner claimed that 

permitting the fixation option for only 

active mechanical head restraints, is not 

providing standardized testing of all 

technologies. For example, 

electronically triggered head restraints 

also move during impact, but do not 

qualify for the fixation option because 

they do not move with respect to the 

seat in response to occupant loading. 

Kongsberg would like NHTSA to permit 

all of these types of head restraint 

systems to be fixed in position for 

purposes of static testing. 

d. Clarifying Definition of Adjustable 

Head Restraints 

Kongsberg made a request that the 

agency clarify the definition of 

‘‘adjustable head restraints.’’ 

Specifically, Kongsberg requested that 

they be defined ‘‘in such a way that it 

is only possible to classify into the 

‘adjustable’ category, head restraints 

which have no adjustment locks, yet 

lock into just a single in use locking 

position.’’ It added that ‘‘[t]his could be 

either a traditional head restraint with 

separate cushion which has a one time 

lock into use position or an advanced 

stowage mechanism which again has 

only a single in use lock position.’’10

The stated purpose of this definition 

would be to clarify that the types of 

head restraints described above could be 

classified as ‘‘adjustable’’ head restraints, 

thereby permitting them to use the 25 

mm cylindrical gap test as per 

paragraph S4.2.4.2. The option to use 

the 25 mm cylindrical gap test was 

added in the May 2007 final rule. 

e. Technical Amendments 

In addition to the substantive issues, 

several issues of technical clarification 

and one issue of a clerical nature were 

brought to the agency’s attention. 

2. Petitions for Rulemaking 

a. Discomfort Metric for Non-Use 

Position and Relaxation Requirement for 

Gap 

Two petitioners, Mitsubishi and the 

Alliance, requested that the agency do 

rulemaking, preferably on an expedited 

basis, on something known as a 

‘‘discomfort metric.’’ The discomfort 

metric is a mechanism, adopted as part 

of the GTR for head restraint systems, 

for measuring the level of discomfort 

imposed by a head restraint system in 

a non-use position. This discomfort 

would, in theory, lead the occupant of 

the seat to adjust the head restraint to 

an in-use position. The petitioners 

requested that NHTSA incorporate the 

discomfort metric as an additional rear 

head restraint non-use position 

compliance option in paragraph S4.4. 

Additionally, Mitsubishi petitioned the 

agency to add a relaxation requirement 

for the gap within the head restraint. 

This relaxation requirement is also a 

part of the GTR, and Mitsubishi 

requested that the agency do an 

‘‘expedited rulemaking’’ to incorporate 

both of these provisions. 

b. ‘‘Effective Backset’’ 

Kongsberg requested that the agency 

replace its backset requirement (of 55 

mm) with an ‘‘effective backset’’ 

requirement (of 58.5 mm) when a 10 N 

load is applied to the head restraint. 

According to the petitioner, this 

additional 3.5 mm represents the 

amount of displacement/compression 

one would expect from applying that 

reference load. Backset, as described in 

paragraph S5.2.3, is the distance 

between the rear of the head form and 

the front edge of the head restraint. This 

is currently a simple measurement, and 

is taken without applying force to the 

head restraint that would cause 

displacement. 

The petitioner’s concept of effective 

backset is that the backset should be 

measured with a certain amount of force 

applied to the head restraint. According 

to the petitioner, various features of the 

head restraint, such as a layer of soft 

‘‘comfort foam’’ on the outside, air gaps 

within the restraint, or looseness in the 

connecting mechanisms (if they exist), 

could displace with a small amount of 

force applied to the head restraint. 

Therefore, according to Kongsberg, 

measuring the backset with a small 

amount of force (sometimes called a 

‘‘reference load’’) on the head restraint 

provides a better indication of where the 

head restraint will begin to apply 

significant resistance to a rearwardmoving head. 

Kongsberg also requested that the 

agency adopt requirements for rear seat 

effective backset as an alternative to its 

backset retention requirements for rear 

seat head restraints. It requested a 58.5 

mm effective backset for rear seat head 

restraints with only one locking 

position, and an 80 mm effective 

backset for rear seat head restraints with 

multiple locking positions. While 

currently head restraints in rear seats do 

not have backset requirements (that is, 

manufacturers can choose a backset 

value for reasons of occupant comfort or 

other design considerations),11 the head 

restraints are required to be able to 

withstand substantial loads from 

wherever they are placed. In the first 

part of the retention requirement, head 

restraints must displace no more than 

25 mm when a 37 Nm reference load is 

applied. The head restraint is then 

loaded to 373 Nm (with a 102 mm 

displacement limit) and finally 

unloaded to the reference value (where 

it must be within 13 mm of the 

reference position). 

This, according to Kongsberg, results 

in head restraints with an advanced 

stowage mechanism and only a single 

locking position, being penalized. It 

similarly stated that head restraints with 

multiple locking positions should have 

relief, as long as they stay within the 

overall limit of the effective backset. 

III. Agency Response to Petitions for 

Reconsideration of May 2007 Final 

Rule and Technical Amendments 

A. NHTSA Declines To Adopt a 5- 

Degree Torso Change Angle for Rear 

Seat Non-Use Positions 

With regard to non-use positions for 

rear seat head restraints, NHTSA has 

provided a variety of options in FMVSS 

No. 202a. Specifically, a manufacturer 

can choose one of four routes to comply 

with the standard. It can: 

(1) Use a removable head restraint. 

(2) Have a non-use position that 

produces a 10-degree torso angle 

change. 

(3) Have a non-use position that 

rotates 60 degrees. 

(4) Have a non-use position that 

automatically positions the head 

restraint when the seat is occupied. 

The Alliance’s petition seeks to 

expand these options by modifying the 

torso angle change option to create a 

torso angle change of anywhere from 5 

to 10 degrees. The basic rationale 

behind the Alliance’s petition is that the 

10-degree torso change option is not 

adequate to accommodate the popular 

feature of stowing rear seats in the floor 

of a vehicle, and that a 5-degree option 

would be more flexible. In its petition12, 

the Alliance stated: 

[U]nfortunately, the approach taken in the 

final rule may not provide the intended 

flexibility because it would require the 

addition of material to shingled head 

restraints. In some vehicle configurations this 

additional sizing would negate the ability to 

stow seats and could potentially lead to 

unintended consequences to children (in and 

out of child seats) and smaller occupants, 

such as interference with tall child seats and 


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Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67239 

13 DOT HS 809 957, ‘‘Rear Seat Stowable Head 

Restraint Non-Use Position Torso Angle Study,’’ 

November 2005. 

14 DOT HS 809 957, ‘‘Rear Seat Stowable Head 

Restraint Non-Use Position Torso Angle Study,’’ 

November 2005, p. 13–15. 

head/neck interference with small occupants. 

As a result, balancing the tradeoffs associated 

with the additional option the Agency sought 

to provide leads to an option that is not in 

fact a viable option for some manufacturers. 

NHTSA does not agree that permitting 

a 5-degree torso angle change option is 

a necessary or appropriate change, nor 

do we believe that it provides nearly as 

many safety benefits as the 10-degree 

option. 

To begin, we will reiterate the 

rationale used in the 2007 final rule to 

explain why NHTSA is limiting the 

torso angle change to 10 degrees. The 

torso angle change option is effective for 

the following reasons: When the head 

restraint protrudes so far as to cause the 

average occupant’s torso to move 

forward by 10 degrees, the occupant 

will feel discomfort and a physical cue 

that the head restraint is out of position, 

and therefore adjust it so it functions 

properly. In its human factors study,13

the agency found that a 5-degree torso 

angle change does not cause occupants 

to realize that the head restraint is in a 

non-use position, and therefore adjust it, 

nearly as often as a 10-degree torso 

angle change does. The study showed 

that while a 5-degree change induced 

occupants to adjust the head restraint a 

mere 15 percent of the time, whereas a 

10-degree change had the desired effect 

80 percent of the time. As we stated in 

the 2007 final rule, it was the results of 

this study that caused the agency to 

decline the petitioner’s request to 

permit a 5-degree torso angle change. 

In this new petition, the Alliance 

offered two arguments as to why 

NHTSA should reconsider its reliance 

on the human factors study and permit 

use of a 5-degree torso angle change 

option. First, it argued that the NHTSA 

human factors study was limited to 

adults over 60 inches, and thus did not 

account for the fact that the majority of 

occupants in rear seats are likely to be 

shorter (i.e., children). Second, the 

Alliance stated that head restraints that 

use a 10-degree torso angle change may 

interfere with the functioning of some 

child seats. Additionally, the Alliance 

argued, as stated above, that some 

vehicle designs may not be compatible 

with a head restraint that uses the 10- 

degree torso angle change option. We 

will address these arguments below. 

(We also note again that there are 

several other alternative means of 

compliance.) 

With regard to the human factors 

study, while NHTSA is aware that it 

focused on adults, the agency does not 

consider that to be a defect with the 

study. The Alliance pointed out that the 

occupants in the study were at least 60 

inches tall, whereas, according to 

National Automotive Sampling System 

(NASS) General Estimates System (GES) 

data, 43 percent of crash-involved 

occupants of rear seats are under that 

height. This should, according to the 

Alliance, ‘‘lead to a conclusion that the 

10 degree torso angle displacement 

requirement, while potentially 

preferable to force a response from taller 

adults, leads to designs that are too 

stringent for children and child seats in 

certain vehicle configurations.’’ 

NHTSA does not believe that the fact 

that the human factors study focused on 

adults over 60 inches impairs the 

relevance of that study, nor did the 

Alliance present any data that this fact 

should cause NHTSA to question to 

efficacy of the 10-degree torso angle 

change option. With regard to the height 

of the occupants in the study, the reason 

that NHTSA focused on taller occupants 

is that these are the only occupants that 

benefit from rear seat head restraints. As 

stated in the human factors study: 

The height of rear seat passengers directly 

impacts where the stowed head restraint 

would contact them. To determine how the 

subject seat might interact with occupants of 

different heights, the dimensions of the 

subject seat were measured. The seat 

dimensions were considered along with 

standard sitting shoulder height values for 

adult males and females to establish the 

range of occupant heights that would be most 

likely to experience discomfort due to a 

stowed head restraint. The standing height 

values used for recruitment were established 

through extrapolation from the sitting 

shoulder height values. 

The height of the lower edge of the stowed 

head restraint in the test vehicle is 

approximately 18.5 inches with respect to the 

seat pan * * *. It appeared that an occupant 

whose sitting shoulder height is 

approximately this value would not be 

uncomfortable with the head restraint fully 

stowed. It was unclear how much greater 

than 18.5 inches the threshold lies at which 

an occupant’s sitting shoulder height would 

be sufficiently large for the person to 

experience discomfort. 

The height at which children are no longer 

required to be seated in a child safety seat is 

57 inches. A 57-inch tall child (10–12 yrs 

old) would have a sitting shoulder height of 

about 19.3 inches (based on extrapolation 

from NIST data found on the Internet). Since 

in its stowed position, the bottom of the head 

restraint is at 18.5 in, a 57-inch tall child may 

not be tall enough to experience discomfort 

created by a stowed head restraint. 

Furthermore, children of this age may not be 

mature enough to conclude that something is 

wrong with the seat configuration if they 

experience only minor discomfort. For this 

reason, as well as the difficulty in recruiting 

minor subjects, participants less than 18 

years of age were not pursued.14

In summary, occupants less than 60 

inches tall are unlikely to receive any 

benefit from the torso angle change 

option, either because the head restraint 

is too high to cause them discomfort, or 

because they are too young to 

understand to adjust the head restraint 

if it is causing them discomfort. On the 

other hand, the human factors study did 

show that, for occupants tall enough to 

benefit from a head restraint (that is, 

adults over 60 inches), a 5-degree angle 

change is insufficient to cause them to 

adjust the head restraint to the use 

position, while a 10-degree change does 

have the desired effect. 

We would further note that NHTSA 

did conduct at least one test involving 

a 10-year old occupant using 5-, 10-, and 

15-degree torso angle change positions. 

The Alliance petition included the 10- 

degree condition image from the report 

as an example of a child’s head in what 

they claimed was a non-preferred 

position. However, neither the human 

factors study nor NHTSA has ever stated 

that subject had any negative opinion 

about the 10-degree condition. Nor do 

we have any other information that 

leads us to believe that short stature 

occupants such as children in booster 

seats and older children without 

boosters would have disaffection for the 

10-degree condition. The petition did 

not claim any data to this effect. 

Second, the Alliance asserted that a 

10-degree torso angle change can 

interfere with certain child restraint 

systems (CRSs). Specifically, it raised a 

concern about the potential inability to 

secure a rigid forward-facing ISOFIX 

CRS to a seat that meets the 10-degree 

torso angle change design. One potential 

problem it gave was that ‘‘the 

connection necessary for a rigid ISOFIX 

CRS anchorage may not be possible in 

some vehicle configurations if the head 

restraint is built to conform to a 10- 

degree torso angle displacement.’’ 

Additionally, for occupants using highback CRSs, the torso displacement 

criteria would result in forward or 

rotational displacement of the child 

seat. Finally, it stated that children in 

backless booster seats or not seated in 

child restraint systems could experience 

head and neck interference by head 

restraints designed to the 10-degree 

torso angle change criteria. 

There are several reasons why 

NHTSA does not consider this a valid 

argument for permitting a 5-degree torso 

angle change option. The first is, again, 


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67240 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

15 69 FR 74847, 74871. 

16 VSCI petition, Docket No. NHTSA–2007– 

27986–0010. 17 65 FR 30720. 

that the NHTSA study indicated that a 

5-degree change simply does not cause 

a rear seat occupant to adjust an out-ofposition head restraint. Thus, a line of 

reason arguing that a 5-degree change 

could better accommodate certain CRSs 

does not address the fundamental 

rationale for disallowing a 5-degree 

option. Second, NHTSA is aware that 

contact occurs between current nonregulated rear seat head restraint 

designs with certain forward-facing 

CRSs, and typically adjusting the seat 

back and/or head restraint can achieve 

proper CRS orientation. Sometimes, 

depending on the design of the CRS, 

seat, and head restraint, it may be 

necessary or easier to simply remove the 

head restraint to properly install the 

CRS, which is one reason why NHTSA 

continues to allow head restraint 

removal as an option (see 69 FR 74871). 

The mere fact that one permissible nonuse option may not work for all CRS/ 

seat configurations is not sufficient 

justification to allow a relatively unsafe 

non-use position option. Finally, we do 

not believe that there are currently any 

forward-facing ISOFIX CRSs on the 

market, thus their potential lack of 

compatibility with a 10-degree design is 

of limited significance. 

The Alliance raised the issue of highbacked CRSs, as they are most likely to 

contact the head restraint in the 

lowered, non-use position. This is not 

new information, and was addressed in 

the 2004 Final Rule. We believe that the 

statement in that rule is still 

appropriate: 

With respect to comments pertaining to the 

potential incompatibility between rear head 

restraints and some high-back hybrid child 

restraints and boosters, NHTSA notes that 

high-back child restraints are used in Europe 

with no reports of incompatibilities. As 

Magna commented, rear seat head restraints 

are much more common in Europe due to 

competitive pressures. Nonetheless, if 

incompatibilities arise in this country, they 

can be resolved by several means. First, we 

believe that an adjustable head restraint is 

likely to have a position that does not 

interfere with high back hybrid child 

restraints. That is, raising the head restraint 

may alleviate the potential interference. 

Second, the high-back child restraint can be 

installed in a seating position for which a 

head restraint is not provided, removable, or 

has a non-use position. We note that even 

where rear outboard head restraints are 

provided, many vehicles do not provide a 

head restraint in the center seating position. 

We recognize that, even with the flexibility 

afforded to the manufacturers with respect to 

rear seat head restraints, there may be 

isolated situations where certain high back 

child restraints are not compatible with 

specific seating positions in certain vehicles. 

However, we expect this to be relatively 

infrequent. In short, the agency does not 

believe that the possible incompatibilities are 

insurmountable even in situations in which 

rear seats are equipped with optional head 

restraints.15

Because the petitioner did not provide 

new data regarding the safety benefits of 

a 5-degree torso angle change design, or 

interference between head restraints and 

CRSs, we are not adopting that option 

for the rear seat head restraint non-use 

position. 

B. NHTSA Declines To Permit 

Additional Leadtime for Small Vehicle 

Manufacturers 

In light of the fact that FMVSS No. 

202a’s head restraint requirements are 

phased in over a period of several years, 

VSCI petitioned the agency to permit 

small volume manufacturers (SVMs) to 

wait until the end of the phase-in period 

to comply with the standard. Its 

rationale is that while multiple-line 

manufacturers will only need to convert 

a portion of their fleets to the new head 

restraint requirements by the respective 

phase-in dates (September 1, 2009 for 

front seat head restraints, and 

September 1, 2010 for rear seat head 

restraints), a SVM with only one or two 

vehicle lines would need to convert all 

of its vehicle lines to the new head 

restraint requirements, while a large 

manufacturer with many lines would 

only need to convert 80 percent of its 

vehicles. VSCI stated, ‘‘[i]t would not 

allow such SVMs the full amount of 

time that large manufacturers have for 

redesign, testing, ‘implementing 

changes with the start of a new model 

cycle,’ and ‘additional flexibility in 

meeting these challenges.’ ’’ 16 Therefore, 

according to the petitioner, SVMs are 

particularly burdened by this 

rulemaking. We note that this argument 

is not specific to the head restraints at 

issue, but in fact could be applied to 

virtually any requirement with a phasein period. 

NHTSA declines to adopt this general 

argument. We note that the burden of 

designing new head restraints to meet 

the requirements of the upgraded 

FMVSS No. 202a is likely to be more for 

larger manufacturers, as they will have 

to design compliant head restraints for 

a larger number of vehicles, whereas 

SVMs, even if by the nature of their 

product lines are required to bring all of 

their vehicles into compliance at the 

start of the phase-in period, will only 

have to design compliant head restraints 

for a small number of vehicle lines. 

More importantly, we do not agree 

with the inherent logic of the argument 

that SVMs should be permitted, 

generally, to delay any compliance until 

the end of the phase-in periods for new 

requirements. VSCI stated that over the 

past seven years, the agency has on 

numerous occasions permitted SVMs to 

delay compliance until the end of the 

phase-in periods. However, in previous 

rulemakings where NHTSA has done 

this, it has given specific reasons— 

related to the standard at issue—for 

permitting additional leadtime for 

SVMs. For example, in the 2000 FMVSS 

No. 208 final rule, we stated that SVMs 

do not have the access to new 

technology at the same time as larger 

manufacturers.17 With regard to 

advanced air bags, the subject of that 

rulemaking, there were specific issues of 

a complex upgrade and short leadtime. 

Thus, there were specific reasons for 

excluding SVMs from compliance with 

the standard until they had been given 

more time to prepare. With regard to the 

head restraint requirements of FMVSS 

No. 202a, however, we do not believe 

this to be the case. There has already 

been substantial leadtime since 

publication of the 2004 Final Rule and 

the 2007 Final Rule in response to 

petitions for reconsideration. 

Furthermore, the technologies required 

to comply with FMVSS No. 202a are not 

particularly complex or novel. For those 

reasons, we decline to grant additional 

leadtime to SVMs. Since we are not 

granting additional leadtime to SVMs, 

VSCI’s request that we adopt its 

definition of a SVM is moot. 

C. Static Lockout of Active Head 

Restraints During Backset Retention 

Testing 

As currently specified in paragraph 

S5.2.7(a), mechanical active head 

restraints (that is, head restraints that 

move with respect to the load on the 

seat) are fixed in their undeployed 

position for static testing purposes. 

NHTSA modified the backset retention 

test procedure (S5.2.7(a)) in the 2007 

final rule by allowing mechanical active 

head restraints the option of being fixed 

in position during the test. This was 

done in response to several petitions 

requesting that the agency allow more 

displacement for these types of head 

restraints, as they were unable to meet 

the 25 mm requirement due to their 

active design. Instead of granting 

additional leeway for displacement, 

however, NHTSA instead included a 

provision permitting mechanical active 

head restraints to be fixed in position. 

As we stated: 

We note that the agency anticipated that 

there may be advanced designs which, by 

their active nature, are unable to pass the 


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18 72 FR 25484, 25504. 19 Kongsberg petition, part 6.2.1. 

static test requirements in their undeployed 

positions. This is why the dynamic 

compliance option was provided. 

However, while the dynamic compliance 

option is specifically in place for active 

systems, it has never been our intention to 

exclude active systems from certifying 

through the static option. However, the 

agency has emphasized that such static 

compliance must be in the undeployed 

condition. 

Based on our desire to not exclude the 

possibility of active systems being 

certified to the static option, we have 

decided to permit active systems to be 

fixed in their undeployed position 

during the retention tests. We are 

including a specific manufacturer 

option to this effect in FMVSS No. 

202a.18

As discussed above, Kongsberg 

petitioned for a variety of clarifications 

and amendments with regard to static 

testing of active head restraints for 

purposes of the backset retention test. 

The company asked the agency to 

specify exactly where the head restraint 

should be fixed, assuming there are 

multiple locations in the deployment 

mechanism it can be fixed at. Kongsberg 

also asked NHTSA to give guidance as 

to how far forward a head restraint must 

be able to move before it can be 

qualified as an active head restraint. 

Finally, the company also asked NHTSA 

to expand this option beyond 

mechanical active head restraints, to 

include what it refers to as ‘‘reactive’’ 

head restraints as well as to those that 

are electronically-triggered. Our 

responses to each of these three requests 

are set forth below. 

1. NHTSA Agrees To Specify the 

Fixation Point for Static Testing of 

Active Mechanical Head Restraints 

In part 6.1 of its petition, Kongsberg 

makes the following statement: 

Within advanced head restraint systems, 

there will always be freeplay within the 

moving parts resulting in system looseness. 

Kongsberg requests that NHTSA clarify the 

test procedure in such a way that specifies 

the procedure for fixating the head restraint. 

That is fixation of the advanced mechanism 

should occur closest to the occupant loading 

and not closest to the head restraint. 

NHTSA believes that Kongsberg’s 

request to specify the fixation point has 

merit. For a mechanical active head 

restraint, there is a mechanism that 

translates pressure on the seat back 

(caused by the body being pressed back 

into the seat, such as during a rear 

impact) into forward movement on the 

head restraint, to protect against 

whiplash. As Kongsberg pointed out, a 

mechanical active head restraint may 

have multiple linkages. For example, 

there may be one linkage where the seat 

back connects to the head restraint, and 

another that moves when the occupant’s 

back presses into the front surface of the 

seat back. These components could be 

connected directly or be connected 

through intermediate linkages. As the 

specification is currently written, the 

regulatory text would allow fixation at 

any of these linkage points, so long as 

doing so prevents the head restraint 

from moving forward when pressure is 

applied to the seat back. Kongsberg 

requests that NHTSA clarify this 

ambiguity by specifying that the fixation 

must occur at the point closest to the 

point where the force from an 

occupant’s torso would activate the 

head restraint. 

We agree with Kongsberg’s request for 

two reasons. First, the request helps to 

resolve an ambiguity in the 

requirement—given multiple locations 

where a head restraint could be fixed in 

a static position, it provides clarity for 

NHTSA to specify which one is used. 

Second, having the fixation requirement 

located at the spot closest to the 

occupant’s torso loading helps to 

prevent a situation where a mechanical 

active head restraint could be less 

effective than another type of head 

restraint. This would occur if a test 

fixed the head restraint at the point 

where the seat back connects to the 

head restraint, instead of another 

location closer to where occupant 

loading occurs. In this situation, the test 

would not account for looseness in the 

linkage between the head restraint and 

the seat back—a problem that would 

have been uncovered if a different type 

of head restraint had been used where 

no fixation was necessary to undertake 

a static test. This would result in the 

head restraint passing the test when 

force is applied to the seat back, but still 

moving too far when in use, and an 

occupant strikes the head restraint. 

For these reasons, we are revising 

S5.2.7(a) to provide that the fixation is 

applied to the member(s) that first 

transmit(s) the seat back loading from 

the occupant to the head restraint. 

2. NHTSA Declines To Specify a 

Minimum Forward Movement 

Requirement for Static Testing of Active 

Mechanical Head Restraints 

Kongsberg also requested that 

‘‘NHTSA set a minimum level of 

‘forward movement’ to clarify this new 

rule.’’ 19 This request is effectively 

asking NHTSA to functionally define 

how far an active mechanical head 

restraint must be able to move forward 

in order to be classified as such, and 

therefore, take advantage of the ability 

to be fixated during static testing of 

head restraint displacement. 

After considering this request, we 

have decided not to define a minimum 

forward movement criterion for active 

head restraints. We believe the 

limitation in the regulatory text that this 

option is available only for ‘‘head 

restraints that move with respect to the 

seat when occupant loading is applied 

to the seat back’’ excludes typical 

adjustable head restraints. The agency 

does not believe there is ambiguity on 

that issue, and therefore believes that 

there is not a problem that needs to be 

addressed. Second, we do not have any 

data on what, if any, lower limit to place 

on the movement of a mechanical active 

head restraint, nor did the petitioner 

supply any data or offer a suggestion. 

Given these factors, we are not 

proceeding on this request. 

3. NHTSA Declines To Expand the 

Fixation Option to ‘‘Reactive’’ and 

Electronically Triggered Head Restraints 

The third request that Kongsberg put 

forth (in part 6.2.2 of its petition) was 

to expand the fixation option from 

mechanical active head restraints to all 

‘‘reactive’’ and ‘‘proactive’’ head 

restraints. Kongsberg defines these 

terms in the background section (part 

1.0 of its petition). Reactive head 

restraints, according to the petitioner, 

are those where energy from body mass 

is transferred to the head restraint to 

mitigate the impact. Proactive head 

restraints, on the other hand, are those 

where stored energy is released to 

mitigate the impact of the head on the 

restraint. Generally, proactive head 

restraints would be electronically 

triggered at the time of a crash. 

Kongsberg’s request is that vehicle 

manufacturers be permitted to certify all 

head restraints that move with respect 

to the seat back through a static test 

with the head restraint in a fixed 

position, as they can do with 

mechanical active head restraints. It 

claimed that this would put all reactive 

and proactive head restraints in the 

same position, and that not allowing 

this is creating special rules for one 

segment of technology. 

NHTSA declines to adopt Kongsberg’s 

request and disagrees with its reasoning 

on this point. The rationale for 

permitting the fixation option for 

mechanical active head restraints, as 

explained in the 2007 rule, is not 

applicable to the other types of head 

restraints that Kongsberg described. The 

fixation option was created because 

mechanical active head restraints move 

relative to the seat back when the 


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20 Kongsberg petition, 4.2.1. 21 72 FR 25484, 25484–5. 22 72 FR 25503. 

backpan, simulating the back of an 

occupant, applies a load to it. Therefore, 

they would almost certainly fail the 

initial backset displacement test. Using 

the fixation option solves this limited 

problem, allowing mechanical active 

head restraints to be tested in the static 

test like all other head restraints. 

Electronically-triggered ‘‘proactive’’ head 

restraints, on the other hand, do not 

move when the backpan applies a load 

to the seat back. Therefore, there is no 

need for fixation. 

D. ‘‘Adjustable’’ Head Restraints and 

Availability of 25 mm Cylindrical Gap 

Test Option 

As indicated above, Kongsberg made 

a request that the agency clarify the 

definition of ‘‘adjustable head 

restraints.’’ Specifically, Kongsberg 

requested that they be defined ‘‘in such 

a way that it is only possible to classify 

into the ‘adjustable’ category, head 

restraints which have no adjustment 

locks, yet lock into just a single in use 

locking position.’’ It added that ‘‘[t]his 

could be either a traditional head 

restraint with separate cushion which 

has a one time lock into use position or 

an advanced stowage mechanism which 

again has only a single in use lock 

position.’’ 20

The stated purpose of this definition 

would be to clarify that the types of 

head restraints described above could be 

classified as ‘‘adjustable’’ head restraints, 

thereby permitting them to use the 25 

mm cylindrical gap test as per 

paragraph S4.2.4.2. The text of S4.2.4, 

Gaps, states that all head restraints must 

meet limits for gaps in the head restraint 

specified in S4.2.4.1, and that for gaps 

between the seat and head restraint, 

adjustable head restraints must meet 

either the limits specified in S4.2.4.1 or 

S4.2.4.2. [emphasis added] 

S4.2.4.2 of FMVSS No. 202a is titled 

Gaps between the adjustable head 

restraint and seat using a 25 mm 

cylinder. 

The purpose of Kongsberg’s petition 

on this issue appears to allow a head 

restraint design that does not have 

multiple positions of adjustment to take 

advantage of the compliance option 

given in S4.2.4.2. The design in 

question can move with respect to the 

seat back, but only locks in a single inuse position. To accomplish this, 

Kongsberg recommended specifically 

defining this type of head restraint as 

being ‘‘adjustable.’’ Kongsberg stated in 

its petition that NHTSA has provided 

definitions for three types of head 

restraints (integral, adjustable, and 

active). While the definitions were not 

integrated into the text of Standard No. 

202, these types of head restraints were 

discussed in the preamble of the 

Federal Register notice of May 4, 2007. 

In that document, we stated: 

Vehicle manufacturers currently use three 

types of head restraints to meet the 

requirements of FMVSS No. 202. The first 

type is the ‘‘integral head restraint,’’ which is 

non-adjustable and is built into the seat. It 

typically consists of a seat back that extends 

high enough to meet the height requirement 

of the standard. The second type is the 

‘‘adjustable’’ head restraint, which consists of 

a separate cushion that is attached to the seat 

back, typically by two sliding metal shafts. 

Adjustable head restraints typically adjust 

vertically to accommodate different occupant 

seating heights. Some also provide 

adjustments to allow the head restraint to be 

moved closer to the occupant’s head. The 

third type is the active head restraint system, 

which deploys in the event of a collision to 

minimize the potential for whiplash. During 

the normal vehicle operation, the active head 

restraint system is retracted.21

We did not include definitions in the 

regulatory text because distinctions 

between the types of head restraints are 

not typically necessary. In general, the 

performance requirements of FMVSS 

No. 202a are applicable for all types of 

head restraints and adjustable head 

restraints are specifically referenced to 

indicate the ‘‘adjusted’’ position they are 

to be configured in for testing. This is 

also the case in S4.2.4.1 and S4.2.4.2, 

which indicate that adjustable head 

restraints are to be placed in their 

lowest height position and any backset 

position. 

However, a unique feature of S4.2.4 is 

that it states that the requirement for 

gaps between the seat and head restraint 

is limited to adjustable head restraints. 

Although a definition of adjustable head 

restraint is not included in the standard, 

the agency addressed the meaning of the 

term in a March 29, 2009 letter of 

interpretation to Kongsberg. In that 

interpretation, we concluded that a 

folding head restraint that only has a 

single in-use position, regardless of 

movement to non-use positions, would 

not be considered an adjustable head 

restraint. Therefore, the types of head 

restraints that Kongsberg described in 

their petition would not have the option 

of using the procedure in paragraph 

S4.2.4.2 to determine the acceptability 

of the gap between the seat and the head 

restraint. 

For the reasons explained below, we 

are revising FMVSS No. 202a in a way 

that will accommodate Kongsberg’s 

concern, but not by defining the head 

restraints at issue as adjustable head 

restraints. 

In analyzing the Kongsberg petition, 

we have considered the rationale 

provided in the May 2007 final rule for 

providing this gap measurement 

alternative. In a section of the preamble 

to the 2007 final rule discussing the gap 

between the head restraint and seat back 

we stated the following: 22

After considering the DaimlerChrysler and 

Alliance petitions, we have decided to 

specify that the gap requirement must be met 

when the gap is measured either by the 

existing current FMVSS No. 202a procedure 

using a sphere or one based on the ECE 17 

measurement methodology. We are not aware 

of any data showing benefits to one 

methodology over the other. 

The agency did not provide a specific 

explanation of why the option was 

limited to adjustable head restraints. We 

note that Appendix G of the 

DaimlerChrysler petition stated the 

following: 

S5.7 of ECE R17 requires a maximum gap 

of 60 mm for head restraints which are not 

adjustable, and a maximum gap of 25 mm for 

adjustable systems in the lowest position. 

The gap is measured similar to the height of 

the head restraint, perpendicular to the torso 

line as illustrated below. 

Consequently, the limitation of S4.2.4 

to adjustable head restraints was 

consistent with the petitioner’s request. 

However, the specific types of design for 

which DaimlerChrysler mentioned in its 

request for the additional compliance 

option were ‘‘shingled’’ and ‘‘saddle’’ 

designs. Such designs used for rear seats 

could have a single in-use position of 

height adjustment. Thus, the 25 mm 

cylinder option currently would not be 

available to such a design. 

Given Kongsberg’s petition, we 

considered whether there is a good 

reason to exclude from this option head 

restraints that lock in a single in-use 

position. In analyzing this question, we 

looked at two similar theoretical rear 

seat head restraint designs. The first was 

a shingle head restraint that could move 

from a non-use position to a single inuse position. The second design could 

move from a non-use position to a 

lowest in-use position of adjustment, 

but also had several other in-use 

adjustment positions. However, in the 

lowest adjustment position, it occupied 

the same position in space as the first 

design that only had one in-use 

adjustment position. Thus, in the 

position of adjustment in which the gap 

measurement test would be performed, 

there would be no functional difference 

between the two designs. Given this, we 

believe that there is not a safety reason 

to exclude from this option head 


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23 69 FR 74862. 

24Alliance petition, Docket No. NHTSA–2007– 

27986–0013, p. 2. 

25This provision effectively minimizes the 

measured seat height. 

restraints that lock in a single in-use 

position. 

In light of the above, we have decided 

to revise the regulatory text so that the 

25 mm cylinder option is available for 

all head restraints that can move with 

respect to the seat. This will make this 

option available for the types of designs 

described by Kongsberg. The revisions 

are in S4.2.4.2. 

We note that we do not believe it 

would be appropriate to extend the 25 

mm cylinder option to integral head 

restraints. In the 2004 final rule, the 

agency specified that the gap 

measurement was to be made 540 mm 

above the H-point ‘‘[b]ecause there may 

not be a clear distinction between the 

end of the seat back and the beginning 

of the head restraint in integral head 

restraints.’’ 23 This fact would make it 

difficult to apply the 25 mm cylinder 

option to integral head restraints 

because it may not be possible to 

determine where the gap between the 

head restraint and seat back is. 

Therefore, there is reason to exclude 

integral head restraints from this option. 

Finally, we note that the above 

analysis made no distinction between 

head restraints that move through some 

action of the occupant or active head 

restraints that might only move in a rear 

impact. The reason for this is that we do 

not believe there will be any ambiguity 

in finding the gap between the head 

restraint and seat back in these designs 

and thus using the 25 mm cylinder 

option. 

E. Technical Amendments and 

Corrections 

In addition to petitions for 

reconsideration and rulemaking, the 

agency also received a petition from the 

Alliance requesting that several minor 

technical corrections be made to the 

regulatory text of FMVSS No. 202a. 

Additionally, one part of Kongsberg’s 

petition was not considered a petition 

for reconsideration, but the suggested 

change represented a technical 

correction. The issues raised by these 

petitions are addressed below. In 

addition, NHTSA identified an error in 

which regulatory text was inadvertently 

removed by the 2007 final rule. 

1. NHTSA Agrees To Revise S5.2.4.2. 

The first change to the standard 

requested by the Alliance was in regard 

to paragraph S5.2.4.2. This section 

describes the ‘‘gap test,’’ used to 

determine if the distance between the 

seat back and the head restraint is 

acceptably small. According to S4.2.4.2, 

the maximum gap permitted is 25 mm. 

Paragraph (c) of the procedure 

(S5.2.4.2(c)) reads ‘‘Determine if at least 

125 mm of the [25 mm diameter] 

cylinder can completely pass through 

the gap.’’ If testing shows that 125 mm 

or more of the cylinder can pass through 

the gap between the seat back and the 

head restraint, the head restraint would 

fail the test. 

The Alliance petitioned that the 

language in paragraph (c) be changed 

from the current wording to read 

‘‘Determine that no more than 125 mm 

of the cylinder can completely pass 

through the gap.’’ It requested this 

language for purposes of clarification. 

While we are not adopting the 

language suggested by the Alliance, we 

are adding a sentence to clarify that if 

125 mm or more of the cylinder can 

pass through the gap, the head restraint 

would fail the test. 

2. NHTSA Agrees To Revise S5.3.4. 

The Alliance’s second requested change 

involves the reordering of two of the 

sentences in the dynamic performance 

test description in paragraph S5.3.4. 

Section S5.3.4 specifies the seat 

adjustment requirements for the 

dynamic compliance option. 

The effect of moving the two 

sentences at issue from the beginning of 

the setup procedure to the suggested 

locations would be, according to the 

petition, to change the sequence of steps 

in which the laboratory sets up the seat 

for the dynamic test. Instead of setting 

the inclination of the seat back at the 

beginning of the process, the laboratory 

would make the final seat back 

adjustment after the vertical and fore-aft 

adjustments are set. 

According to the Alliance, the 

purpose of the requested change is to 

reduce test-to-test variability of the 

dynamic test. It stated that setting the 

seat back adjustment at the beginning of 

the setup process can lead to some 

variability, and that it is general 

laboratory practice ‘‘to locate the seat 

cushion position first and make the final 

seat back adjustment after the vertical 

and fore-aft adjustments are set.’’ 24

Reordering the regulatory text in that 

manner would facilitate testing, 

according to the petitioner. 

After considering the Alliance’s 

petition, we provide the following 

response. We did not intend in the 2007 

final rule to specify a ‘‘sequence’’ of seat 

adjustment in S5.3.4. Our intent was to 

specify conditions to be met 

concurrently when the seat is in its final 

state of adjustment, in consideration of 

the various modes to achieve those 

conditions. We believe the specified 

adjustments can exist in harmony with 

each other. For example, S5.3.4 

provides, through reference to S5, that 

the seat cushion and seat back must be 

adjusted such that the final H-point 

position is the highest H-point position 

with respect to the seat back.25

However, this adjustment must be done 

in the context of achieving a final 25 

degree seat back inclination. Achieving 

this H-point position with the correct 

seat back angle may involve an iterative 

process of adjusting various seat 

positioning controls. It would therefore 

not be correct to consider S5.3.4 as 

specifying a sequence of adjustments. 

Moreover, given the current language of 

the section and as indicated by the 

petitioner, there would not be a control 

on the final seat back angle. 

To clarify this, we are adding a 

sentence to S5.3.4 stating that the 

specified seat adjustments are a list of 

conditions. We are also moving the two 

sentences as requested by the petitioner, 

but note that this will not affect the 

requirements of the standard. In light of 

the petitioner’s misunderstanding about 

the issue of seat adjustment we are also 

adding a sentence to S5 to clarify that 

the seat adjustments made in S5 and 

S5.1 are also a set of conditions rather 

than a sequence. Again, we believe that 

adding clarification here will have no 

effect on the standard. 

In S5.3.4, we are also removing a 

reference to S5.1 which is outdated. 

3. NHTSA Agrees To Revise S5.2.6(d) 

and S5.2.7(a)(7). The third requested 

technical amendment relates to the 

testing of height retention (S5.2.6) and 

backset retention (S5.2.7(a)). In the 2007 

final rule, NHTSA introduced a ‘‘zero 

load’’ condition into these tests. 

Essentially, this is a pause between 

when the largest amount of force is 

applied and the final test load is 

applied, to reduce hysteresis in the foam 

of the head restraint. In those sections, 

NHTSA specified that the zero load 

condition should be maintained for not 

more than two minutes. 

The Alliance requested that instead of 

specifying ‘‘not more than two minutes,’’ 

NHTSA specify that the zero load 

condition be maintained for ‘‘two 

minutes, +/¥5 seconds.’’ It stated that 

this change would provide more clarity 

for the test procedure. We agree with 

their argument. We believe it will clarify 

our original intent and reduce any 

potential variability. This change will be 

reflected in the regulatory text of the 

two paragraphs. 

4. NHTSA Agrees To Revise 

S5.2.7(a)(5). The portion of the 

Kongsberg petition on the load vector 


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26 Kongsberg petition, part 5.0. 27 70 FR 74886 and 74888. 

position in the backset retention test 26

is not related to any change made to the 

2004 final rule by the 2007 final rule. 

Therefore, it is not a petition for 

reconsideration. However, NHTSA has 

determined that the requested 

clarification would constitute a 

technical amendment. Therefore, we are 

addressing it in this document. 

Kongsberg requested that the agency 

clarify the test procedure in such a way 

that specifies that the load vector is 

applied through the centerline of the 

head form at a height 65 mm +/¥ 3 mm 

below the top of the head restraint. 

NHTSA believes that the Kongsberg 

interpretation of the test procedure 

specified in S5.2.7 of FMVSS No. 202a 

is correct. In fact, this test is derived 

from paragraph S5.2 of the version of 

FMVSS No. 202 now in force, which 

allows for the use of a cylinder to apply 

the required force. When a cylinder is 

used to apply the force, because of the 

shape or angle of the head restraint, it 

may not make it possible to assure the 

point of contact is 65 mm below the top 

of the head restraint or to do so may 

result in a position of the axis of load 

application far from the 65 mm position. 

However, the axis of load application 

can be controlled. Although paragraph 

S5.2.7 of FMVSS No. 202 specifies a 

spherical head form loading device, the 

concept of aligning the axis of load 

application, represented by the 

centerline of the head form, remains the 

same (see Figure 1). Thus, we believe 

any clarification is simply a technical 

correction of the existing regulatory text. 

We are therefore revising S5.2.7(a)(5) to 

provide this clarification. 

We note that the configuration in the 

illustration is for explanatory purposes 

only. Other configurations are 

acceptable if they conform to the text of 

the standard. 

5. NHTSA Is Correcting Clerical 

Errors in S4.3 and S5.3. The 2004 final 

rule altered the head restraint position 

specification for the dynamic 

compliance option from any position of 

adjustment to a mid-height position and 

any position of backset adjustment.27

This was indicated in both paragraphs 

S4.3 and S5.3. However, the 2007 final 

rule inadvertently removed the phrase 

‘‘and at any position of backset 

adjustment’’ from the regulatory text in 

each of those sections. In this document, 

we are correcting that clerical error by 

modifying S4.3 and S5.3 to be 

consistent with the provisions for 

backset adjustment previously specified 

in the 2004 final rule. 

IV. Agency Response to Petitions for 

Rulemaking 

A. NHTSA Declines To Conduct 

Rulemaking Concerning Discomfort 

Metric or Relaxation Requirement for 

Gap Separate From the Rulemaking 

Based on the GTR 

The Alliance and Mitsubishi Motors 

petitioned NHTSA to perform 

‘‘expedited rulemaking’’ to permit an 

additional option for certifying 

compliance for a rear seat non-use 

position, something known as the 

‘‘discomfort metric.’’ The discomfort 

metric is, briefly, a measurement of the 

location of the head restraint with 

respect to the position of the occupant 

of the vehicle. 

According to Mitsubishi, the 

discomfort metric, using certain values 

provided by the Japanese Automotive 

Manufacturers Association, is effective 

in prompting the seated occupants to 

adjust the head restraint from a non-use 

position to an in-use position. 


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28See 73 FR 8743, February 14, 2008. 

Mitsubishi also petitioned the agency to 

add a relaxation requirement for the gap 

within the head restraint. Mitsubishi 

stated that these provisions are both 

parts of the new GTR for head restraints. 

NHTSA notes that the GTR on head 

restraints was adopted in March 2008. 

The GTR incorporates NHTSA’s backset 

requirement, as well as offering a means 

to harmonize the remaining differences 

between the FMVSS and UNECE 

standards.28 However, in order to 

modify the FMVSSs, NHTSA must 

propose to adopt the provisions in the 

GTR. 

NHTSA is in the process of preparing 

an NPRM regarding the GTR provisions. 

However, we decline to conduct a 

separate rulemaking concerning a 

specific subset of the GTR provisions. 

There are a variety of interrelationships 

between the various requirements and 

related test procedures in any GTR, 

including the one on head restraints. 

The agency therefore believes it is 

important to consider the various 

provisions of a GTR together in a single 

rulemaking. 

B. NHTSA Denies Petition for 

Rulemaking To Replace the Current 

Backset Requirement With an ‘‘Effective 

Backset’’ Requirement 

Paragraph S5.2.3 of FMVSS No. 202a 

specifies a 55 mm backset limit. Backset 

is measured using a Head Restraint 

Measurement Device (HRMD), 

consisting of a specified head form 

attached to the Society of Automotive 

Engineers (SAE) J826 manikin (rev. Jul 

95). The head form includes a probe that 

slides rearward until contact is made 

with the head restraint. The resulting 

measurement reflects the horizontal 

distance between the back of the head 

of a seated 50th percentile adult male 

dummy and the front of the head 

restraint. 

Kongsberg requested (in part 2.5 of its 

petition) that this 55 mm limit be 

replaced with a 58.5 mm ‘‘effective 

backset’’ specification, which would be 

measured in a different way. Under the 

method recommended by the petitioner, 

a 10 N force would be applied as a 

preload. The 58.5 mm figure 

recommended by the petitioner is 

derived from adding the backset and a 

3.5 mm displacement to represent the 

typical net effect of additional system 

flex when a 10 N preload is applied. 

Kongsberg argued that a test method 

that only measures static backset is 

inferior to dynamic methods. It believes 

that its recommended method of 

measuring backset would improve the 

correlation between the static and 

dynamic measurements. According to 

Kongsberg, the preload application 

serves to improve this correlation by 

considering the effect of: (i) Very soft 

foam; (ii) the air gap between upholstery 

and foam; and (iii) the flex within the 

adjustment mechanism. As for the 10 N 

and 3.5 mm figures specifically, 

Kongsberg stated that the GTR was, at 

the time of Kongsberg’s petition, 

reviewing the application of a 10 N 

preload to ‘‘prevent very soft head 

restraints’’ and reported a typical net 

effect of 3.5 mm additional system flex. 

We note that while the working group 

did review a presentation suggesting 

this approach, it was ultimately rejected 

in favor of the current procedure. 

Kongsberg also argued that the agency 

recognized the benefit of using a preload in the gap measurement test 

procedure, and that this benefit should 

be extended to all tests that have the 

goal of measuring the position of foam 

and trim. 

While we have considered the 

arguments raised by Kongsberg, we have 

decided to deny its petition in this area. 

First, we believe that the petitioner 

has not demonstrated that its 

recommended approach would result in 

significant safety benefits or any other 

need for the approach. The agency’s 

estimate of backset benefits is based on 

the current measurement method and, 

as such, takes into account physical 

factors associated with current head 

restraints that are related to system flex. 

To the extent the petitioner’s 

recommendation would increase the 

backset limit by the amount that is the 

typical net effect of additional flex 

associated with a 10 N pre-load, it 

would not be expected to result in 

significant safety benefits. While the 

approach recommended by Kongsberg 

might be used to address possible 

concerns about very soft head restraints 

or ones that had excessive flex, the 

petitioner has not demonstrated that 

this possible problem is sufficiently 

large to warrant rulemaking. Moreover, 

the approach recommended by the 

petitioner could result in a less stringent 

requirement for some head restraints. 

The petitioner has not demonstrated a 

need for increased flexibility. 

Also, there would be additional costs 

and complexity associated with the 

effective backset method. Unlike the 

current backset measurement method, 

the recommended effective backset 

method would require load 

measurement capability. The current 

HRMD backset probe does not have that 

capability, and adding such a capability 

is not necessarily a simple matter. 

Furthermore, this adjustment would 

require additional assessment of the 

procedure. 

As to the gap measurement using a 

165 mm sphere, both the 2004 and 2007 

final rules specified that no more than 

a 5 N load is applied to the sphere when 

performing the measurements. This 

measurement relies on the ability to 

clearly delineate the points/lines of 

contact between the 165 mm sphere and 

the head restraint, and is thus a more 

complex measurement. In the 

laboratory, this is typically achieved 

through transfer paint applied to the 

head restraint. As a practical matter, the 

same device is used to perform this test 

as the backset retention test, and the 

ability to measure applied load is built 

into the apparatus. 

We also note that the agency has 

explained and justified the current 

requirement in previous documents in 

this rulemaking, and previously 

addressed issues related to effective 

backset. 

Given the lack of apparent safety 

benefits, lack of demonstrated need for 

a changed approach, and the additional 

testing and evaluation and other 

resources that would be needed for the 

agency to further consider rulemaking 

in this area, we deny this part of 

Kongsberg’s petition. 

C. NHTSA Denies Petition for 

Rulemaking To Adopt Effective Backset 

Requirements for Rear Head Restraints 

as Alternative to Backset Retention 

Requirement 

Kongsberg petitioned the agency to 

adopt requirements for rear seat head 

restraint effective backset as an 

alternative to the backset retention 

requirement. It requested a 58.5 mm 

effective backset for rear seat head 

restraints with only one locking 

position, and an 80 mm effective 

backset for rear seat head restraints with 

multiple locking positions. Kongsberg 

did not expressly state what procedure 

should be used for the 80 mm effective 

backset, but the implication is that it 

would be through application of a load 

through the backset probe equivalent to 

37 Nm. 

FMVSS No. 202a does not specify 

backset requirements for rear seat head 

restraints, and those restraints 

themselves are not required. However, 

rear head restraints are subject to the 

backset retention requirements in 

S4.2.7. This is to ensure that the head 

restraint, if provided, is capable of 

providing the requisite strength to 

prevent whiplash. 

Kongsberg indicated that it does not 

believe the agency has considered the 

effect of complex stowage and 

adjustment mechanisms in the rear seats 


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67246 Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 

where there is not a backset 

requirement. It claimed that because of 

the amount of movement that can come 

from ‘‘comfort foam’’ compression, the 

current requirement is not a test of the 

head restraint lock. The petitioner stated 

that ‘‘[a]dvanced stowage mechanisms 

are penalized in a way that requires new 

head restraint solutions (with no 

comfort foam) even though the effective 

backset (sum of the measured backset 

and foam preload) is comparable to the 

NHTSA backset requirement for front 

row and is also below the value required 

of a front seat IIHS static good rating.’’ 

It stated that if the advanced stowage 

systems have adjustments that allow 

multiple lock positions, ‘‘these solutions 

should have relief from the backset 

retention requirements if the ‘effective’ 

backset measurement, in all adjustment 

positions, is comparable to the strict 

backset requirements for front row.’’ 

We begin by noting that Kongsberg 

stated in its petition that it ‘‘proposes’’ 

that a more meaningful test for backset 

retention in rear seating applications 

would be ‘‘one that provides an 

alternative to certify with an effective 

backset * * *.’’ Given this language, the 

petitioner appears to be requesting a 

manufacturer option in this area rather 

than that the agency necessarily 

establish a mandatory backset 

requirement for rear head restraints. 

We note that the agency proposed to 

limit rear seat head restraint backset in 

the 2001 NPRM (66 FR 968), which also 

would have required that rear seat head 

restraints be provided. However, for the 

reasons explained in the 2004 final rule 

preamble, we decided not to require rear 

seat head restraints and eliminated the 

backset limit for optionally provided 

rear seat head restraints (69 FR 74857). 

Kongsberg did not address the reasons 

provided by the agency in that decision 

or provide an analysis demonstrating a 

need for a mandatory backset 

requirement for voluntarily-provided 

rear head restraints, and we are not 

revisiting that issue at this time. 

After considering the arguments 

raised by Kongsberg, we have decided to 

deny its petition in this area. On the 

issue of relief from the backset retention 

requirement for rear head restraints, we 

do not believe such relief is in the 

interest of safety. Although there is no 

backset requirement for voluntarilyprovided rear seat head restraints and 

the height requirement is less stringent, 

the agency believes that it is important 

for these head restraints to maintain 

their adjusted position just as it is for 

required front seat head restraints. 

NHTSA believes that when a vehicle 

occupant adjusts the backset of a head 

restraint to the proper position, it 

should maintain its adjusted position in 

the event of a collision. This is also 

consistent with our position that front 

seat head restraints must meet the 

backset retention test even in 

adjustment positions with less backset 

than 55 mm. While we have considered 

the arguments and data provided by 

Kongsberg, including data subject to a 

request for confidentiality, the 

petitioner has not demonstrated that 

there is a practicability problem with 

the backset retention test. 

Neither has the petition demonstrated 

why the agency should apply one 

effective backset requirement to head 

restraints with a single locking position 

(58.5 mm at 10 N) and another effective 

backset requirement to head restraints 

with multiple locking positions (80 mm 

at 37 Nm). 

We also note that the agency has 

explained and justified the current 

requirement in previous documents in 

this rulemaking, and previously 

addressed issues related to effective 

backset. 

For the reasons discussed above, we 

deny Kongsberg’s petition in this area. 

V. Rulemaking Analyses and Notices 

This rule makes several minor 

changes to the regulatory text of FMVSS 

No. 202a, and does not increase the 

regulatory burden on manufacturers. 

The agency has discussed the relevant 

requirements of the Vehicle Safety Act, 

Executive Order 12866, the Department 

of Transportation’s regulatory policies 

and procedures, the Regulatory 

Flexibility Act, Executive Order 13132 

(Federalism), Executive Order 12988 

(Civil Justice Reform), Executive Order 

13045 (Protection of Children from 

Environmental Health and Safety Risks), 

the Paperwork Reduction Act, the 

National Technology Transfer and 

Advancement Act, the Unfunded 

Mandates Reform Act, and the National 

Environmental Policy Act in the May 

2007 final rule cited above. Those 

discussions are not affected by these 

changes. 

Privacy Act 

Please note that any one is able to 

search the electronic form of all 

documents received into any of our 

dockets by the name of the individual 

submitting the document (or signing the 

document, 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:// 

www.dot.gov/privacy.html. 

Revised Regulatory Text 

List of Subjects in 49 CFR Part 571 

Imports, Motor vehicle safety, Reports 

and recordkeeping requirements, Tires. 

■ In consideration of the foregoing, 

NHTSA is amending 49 CFR part 571 as 

follows: 

PART 571—FEDERAL MOTOR 

VEHICLE SAFETY STANDARDS 

■ 1. The authority citation for part 571 

continues to read as follows: 

Authority: 49 U.S.C. 322, 30111, 30115, 

30117, and 30166; delegation of authority at 

49 CFR 1.50. 

■ 2. In § 571.202a, revise S4.2.4.2, S4.3, 

S5, S5.2.4.2(c), S5.2.6(d), S5.2.7(a) 

introductory text, S5.2.7(a)(5), 

S5.2.7(a)(7), S5.3, and S5.3.4 to read as 

follows: 

§ 571.202a Standard No. 202a; Head 

restraints; Mandatory applicability begins 

on September 1, 2009. 

* * * * * 

S4.2.4.2 Gaps between the head 

restraint and seat using a 25 mm 

cylinder. The following option is only 

available to head restraints that can 

move with respect to the seat. When 

measured in accordance with S5.2.4.2 of 

this section using the 25 mm cylinder 

specified in that paragraph, there must 

not be any gap greater than 25 mm 

between the anterior surface of the head 

restraint and anterior surface of the seat, 

with the head restraint adjusted to its 

lowest height position and any backset 

position, except as allowed by S4.4. 

* * * * * 

S4.3 Dynamic performance and 

width. At each forward-facing outboard 

designated seating position equipped 

with a head restraint, the head restraint 

adjusted midway between the lowest 

and the highest position of adjustment, 

and at any position of backset 

adjustment, must conform to the 

following: 

* * * * * 

S5 Procedures. Demonstrate 

compliance with S4.2 through S4.4 of 

this section as follows. The positions of 

seat adjustment specified in S5 and S5.1 

are conditions to be met concurrently 

and are not a sequential list of 

adjustments. Any adjustable lumbar 

support is adjusted to its most posterior 

nominal design position. If the seat 

cushion adjusts independently of the 

seat back, position the seat cushion such 

that the highest H-point position is 

achieved with respect to the seat back, 

as measured by SAE J826 (July 1995) 

manikin, with leg length specified in 

S10.4.2.1 of § 571.208 of this Part. If the 


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Federal Register / Vol. 75, No. 211 / Tuesday, November 2, 2010 / Rules and Regulations 67247 

specified position of the H-point can be 

achieved with a range of seat cushion 

inclination angles, adjust the seat 

inclination such that the most forward 

part of the seat cushion is at its lowest 

position with respect to the most 

rearward part. All tests specified by this 

standard are conducted with the 

ambient temperature between 18 

degrees C. and 28 degrees C. 

* * * * * 

S5.2.4.2 * * * 

(c) Determine if at least 125 mm of the 

cylinder can completely pass through 

the gap. If 125 mm or more of the 

cylinder can completely pass through 

the gap, the gap is not in compliance. 

S5.2.6 * * * 

(d) Reduce the load at the rate of 250 

± 50 N/minute until the load is 

completely removed. Maintain this 

condition for two minutes ± 5 seconds. 

* * * * * 

S5.2.7 * * * 

(a) Backset retention and 

displacement. For head restraints that 

move with respect to the seat when 

occupant loading is applied to the seat 

back, S5.2.7(a)(1) through (8) may be 

performed with the head restraint fixed 

in a position corresponding to the 

position when the seat is unoccupied. 

This fixation is applied to the 

member(s) that first transmit(s) the seat 

back loading from the occupant to the 

head restraint. 

* * * * * 

(5) Maintain the position of the back 

pan as established in S5.2.7(a)(4) of this 

section. Using a 165 ± 2 mm diameter 

spherical head form with a surface 

roughness of less than 1.6 μm, root 

mean square, establish the head form 

initial reference position by aligning the 

centerline of the head form 

perpendicular to the displaced torso 

reference line, on the seat centerline, 

and at a height 65 ± 3 mm below the top 

of the head restraint. Apply a posterior 

initial load that will produce a 37 ± 0.7 

Nm moment about the H-point. After 

maintaining this moment for 5.5 ± 0.5 

seconds, measure the posterior 

displacement of the head form during 

the application of the load. 

* * * * * 

(7) Reduce the load at the rate of 187 

± 37 Nm/minute until it is completely 

removed. Maintain this condition for 

two minutes ± 5 seconds. 

* * * * * 

S5.3 Procedures for dynamic 

performance. Demonstrate compliance 

with S4.3 of this section in accordance 

with S5.3.1 though S5.3.9 of this section 

with a 50th percentile male Hybrid III 

test dummy specified in 49 CFR part 

572 subpart E, fitted with sensors to 

measure head to torso rotation. The 

dummy with all sensors is to continue 

to meet all specifications in 49 CFR part 

572 subpart E. The restraint is 

positioned midway between the lowest 

and the highest position of adjustment, 

and at any position of backset. 

* * * * * 

S5.3.4 Seat Adjustment. The 

following seat adjustments specify 

conditions to be met concurrently and 

are not a sequential list of adjustments. 

At each outboard designated seating 

position, using any control that 

primarily moves the entire seat 

vertically, place the seat in the lowest 

position. Using any control that 

primarily moves the entire seat in the 

fore and aft directions, place the seat 

midway between the forwardmost and 

rearmost position. If an adjustment 

position does not exist midway between 

the forwardmost and rearmost positions, 

the closest adjustment position to the 

rear of the midpoint is used. Adjust the 

seat cushion and seat back as required 

by S5 of this section. If the seat back is 

adjustable, it is set at an inclination 

position closest to 25 degrees from the 

vertical, as measured by SAE J826 (July 

1995) manikin. If there is more than one 

inclination position closest to 25 

degrees from the vertical, set the seat 

back inclination to the position closest 

to and rearward of 25 degrees. If the 

head restraint is adjustable, adjust the 

top of the head restraint to a position 

midway between the lowest position of 

adjustment and the highest position of 

adjustment. If an adjustment position 

midway between the lowest and the 

highest position does not exist, adjust 

the head restraint to a position below 

and nearest to midway between the 

lowest position of adjustment and the 

highest position of adjustment. 

* * * * * 

Issued: October 28, 2010. 

David L. Strickland, 

Administrator. 

[FR Doc. 2010–27669 Filed 11–1–10; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 600 and 622 

[Docket No. 0907201152–0420–02] 

RIN 0648–AY05 

Fisheries of the Caribbean, Gulf of 

Mexico, and South Atlantic; Regulatory 

Amendment to the Fishery 

Management Plan for the Reef Fish 

Fishery of Puerto Rico and the U.S. 

Virgin Islands 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS issues this final rule 

that implements a regulatory 

amendment to the Fishery Management 

Plan for the Reef Fish Fishery of Puerto 

Rico and the U.S. Virgin Islands (FMP) 

prepared by the Caribbean Fishery 

Management Council (Council). This 

rule modifies the Bajo de Sico seasonal 

closure from a 3-month closure to a 6- 

month closure, and prohibits fishing for 

and possession of Caribbean reef fish in 

or from the exclusive economic zone 

(EEZ) portion of Bajo de Sico during the 

closure. The final rule also prohibits 

anchoring in the EEZ portion of Bajo de 

Sico year-round. In addition to the 

measures contained in the regulatory 

amendment, this final rule also adds 

spear to the list of allowable gears in the 

commercial sector of the Caribbean reef 

fish fishery and revises the title of the 

FMP in the list of authorized fisheries 

and gear. The intended effect of this rule 

is to provide further protection for red 

hind spawning aggregations and large 

snappers and groupers, and better 

protect the essential fish habitat (EFH) 

where these species reside. 

DATES: This rule is effective December 2, 

2010. 

ADDRESSES: Copies of the regulatory 

amendment, the Environmental 

Assessment, the regulatory flexibility 

analysis, and the regulatory impact 

review (RIR) may be obtained from 

Britni Tokotch, Southeast Regional 

Office, NMFS, 263 13th Avenue South, 

St. Petersburg, FL 33701 or may be 

downloaded from the Southeast 

Regional Office Web site at http:// 

sero.nmfs.noaa.gov. 

FOR FURTHER INFORMATION CONTACT: 

Britni Tokotch, 727–824–5305. 

SUPPLEMENTARY INFORMATION: The 

Caribbean reef fish fishery is managed 


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