RULES AND REGULATIONS
Title 67--TRANSPORTATION
DEPARTMENT OF TRANSPORTATION
[67 PA. CODE CH. 102]
Child Passenger Protection
[36 Pa.B. 7971]
[Saturday, December 30, 2006]The Department of Transportation, under 75 Pa.C.S. §§ 4581 and 6103 (relating to restraint systems; and promulgation of rules and regulations by department), amends Chapter 102 (relating to child passenger protection) to read as set forth in Annex A.
Purpose of Chapter 102
The purpose of Chapter 102 is to improve safety in transporting children by providing for exemption from the booster seat requirements in 75 Pa.C.S. (relating to Vehicle Code) (Vehicle Code) for children over a certain weight or height, or for children with a medical condition which makes use of a standard child passenger restraint system inappropriate.
Publication for Public Comment
Notice of proposed rulemaking was published at 34 Pa.B. 5684 (October 16, 2004) and the public was invited to submit comments. The proposed rulemaking was also submitted to the Independent Regulatory Review omission (IRRC) and to the House and Senate Transportation Committees. Comments were received from IRRC and from the public. The Department considered the written comments in formulating this final-form rulemaking.
Summary of Comments and Changes to Final-Form Rulemaking
Public comments were received from Ray F. Middleman, Esq. (on behalf of the Pennsylvania Taxi and Paratransit Association, The Yellow Cab Company of Pittsburgh, Airport Limousine Service, Inc., Checker Cab Company and YC Holdings, Inc.) and from the Pennsylvania Public Transportation Association (PPTA). Comments were also received from IRRC.
The Middleman comments urged that the rulemaking should exempt common carriers, such as the clients on whose behalf Middleman comments, from the requirements of the final-form rulemaking. The comment notes that carriers, particularly those in the business of call and demand transportation services, such as taxis, would have to be prepared with the various ''appropriate'' child passenger restraint systems to meet the range, in number and age, of child passengers they may possibly be asked to transport.
The Department recognizes the dilemma of call and demand carriers, but is without authority to include the recommended exception. Section 4581(a)(1) and (1.1) of the Vehicle Code, not the regulation, imposes the requirement to provide child passenger restraint on persons operating ''a passenger car, Class I truck, Class II truck, classic motor vehicle, antique motor vehicle or motor home....'' The provision does not exempt common carriers from the applicability of the requirements. The definition of ''passenger car'' in section 102 of the Vehicle Code (relating to definitions) states that ''a motor vehicle, except a motorcycle, designed primarily for the transportation of persons and designed for carrying no more than 15 passengers, including the driver, and primarily used for the transportation of persons.'' The definition does not exclude taxis. The Department cannot adopt a regulation contrary to the Vehicle Code and cannot, by regulation, provide an exemption from a statutory provision enacted by the General Assembly when the Legislature has not provided for an exemption.
It should be noted that the 2004 amendments to the Vehicle Code that prompted the promulgation of this final-form rulemaking added the provisions regarding children between 4 and 8 years of age. The requirement to provide restraint for children under 4 years of age had been in the Vehicle Code, and applicable to call and demand carriers, for some time.
The comments of the PPTA take the similar position that public transportation vehicles should be exempted from this final-form rulemaking. As noted, however, the applicability of the requirement to provide child passenger restraint is established by the Vehicle Code, not the regulations, and the Department is without authority to amend the statute by adoption of a regulation. Notably, the PPTA comments argue, at one point, ''that public transportation providers must be exempt from this lawmaking.'' The exemption sought must come from the General Assembly and cannot legally be accomplished through a Department rulemaking.
It should be noted that not all vehicles used in public transportation are subject to the child passenger restraint requirements of the Vehicle Code. Only vehicles falling within the definitions of ''passenger car,'' ''Class I truck,'' ''Class II truck,'' ''classic motor vehicle,'' ''antique motor vehicle'' or ''motor home'' in the Vehicle Code would be subject to the statutory child passenger restraint requirement.
The PPTA comments also urge that the final-form rulemaking clarify that responsibility for the provision of the appropriate child passenger restraint system be placed on the passenger, presumably not the child but the adult responsible for the child. Again, the establishment of responsibility through regulation is beyond the authority of the Department. The statute places the onus of providing child passenger restraint on the person operating the vehicle. See section 4581 a(1) and (1.1) of the Vehicle Code. The Department cannot, through regulation, shift that onus to another person or persons.
In addition to the fiscal and logistical arguments raised in the PPTA comments in support of its request for exemption of public transportation providers, the PPTA urges that ''it must be clearly stated that physician exemptions, and any changes thereto, are the responsibility of the passenger.'' With respect to the transportation of children by common carriers, the comment has some merit. Section 102.3(b) (relating to medical exemption from use of child passenger restraint system) has been amended to read: ''The completed form must be in the possession of the vehicle operator or other adult traveling with the child whenever the child is being transported.''
In its comments, IRRC noted that public commentators are not clear whether school buses, taxi cabs, limousines and other forms of public and private transportation fall under the final-form rulemaking and recommend that the Department include a section defining its scope. The Department does not believe this amendment is necessary. As previously noted, the Vehicle Code makes clear the classes of vehicles to which the statutory requirements apply and the Vehicle Code includes definitions of those classes of vehicles. It would be redundant for the final-form rulemaking to repeat the language and definitions in the Vehicle Code.
IRRC also suggested that the Department should identify the number of call and demand service vehicles and quantify the costs associated with compliance with this final-form rulemaking by common carriers. In 2005 there were 2,561 limousines and 2,830 taxis registered in this Commonwealth. A booster seat can cost between $25 and $130. The aggregate cost to this segment of the regulated community to acquire one seat per vehicle is between $134,775 and $700,830.
IRRC has also noted the language in § 102.102 (relating to physical criteria for use of child passenger restraint system) requiring the child to be fastened in a restraint appropriate for the child's age, height and weight ''in accordance with the recommendations of the manufacturer.'' IRRC questioned how the vehicle operator can demonstrate that the recommendations of the manufacturer have been followed. Labels on the equipment indicate the range of age, height and weight for which the equipment has been designed. In addition, child passenger restraint system provide instructions on the proper installation. The user and certainly law enforcement can key on visual cues such as whether the child's head is held too high above the device or if the shoulder belt restrains the child across the chest, as opposed to at the neck, to determine and demonstrate that the restraint is being properly used.
IRRC also commented that the final-form rulemaking appears only to provide exemption from use of a child passenger restraint system and not booster seats. In a related comment, IRRC noted some lack of clarity in the final-form rulemaking's use of the terms ''child restraint system,'' ''child passenger restraint system'' and ''child booster seat.'' In response to these comments, the definitions of ''child booster seat'' and ''child passenger restraint system'' have been amended to make clear that ''child passenger restraint system'' includes child booster seats. The term ''child restraint system'' is no longer used. These amendments clarify any ambiguity regarding the applicability of the exemption provisions.
Persons and Entities Affected
This final-form rulemaking will affect vehicle operators transporting children under 8 years of age.
Fiscal Impact
This final-form rulemaking will not require the expenditure of additional funds by the Commonwealth. The cost to the regulated community will be in the cost of a booster seat which range between $25 and $130. This final-form rulemaking may also result in marginal savings to parents with children falling within the exemptions who will not have to purchase booster seats.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 5, 2004, the Department submitted a copy of the notice of proposed rulemaking, published at 34 Pa.B. 4685, to IRRC and the Chairpersons of the House and Senate Transportation Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 29, 2006, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 30, 2006, and approved the final-form rulemaking.
Sunset Date
The Department is not establishing a sunset date for these regulations, as these regulations are needed to administer provisions required by the Vehicle Code. The Department will continue to closely monitor these regulations for their effectiveness.
Contact Person
The contact person for this final-form rulemaking is Lou Rader, Transportation Planning Manager, Bureau of Highway Safety and Traffic Engineering, Department of Transportation, Commonwealth Keystone Building, 400 North Street, 6th Floor, Harrisburg, PA 17120-0064,(717) 787-6853.
Order
The Department orders that:
(a) The regulations of the Department, 67 Pa. Code Chapter 102, are amended by deleting §§ 102.1--102.4 and by adding §§ 102.101--102.103 to read as set forth in Annex A.
(b) The Secretary of the Department shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval as to legality and form as required by law.
(c) The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall take effect upon publication in the Pennsylvania Bulletin.
ALLEN D. BIEHLER, P.E.,
Secretary(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 36 Pa.B. 7777 (December 16, 2006).)
Fiscal Note: Fiscal Note 18-393 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 67. TRANSPORTATION
PART I. DEPARTMENT OF TRANSPORTATION
Subpart A. VEHICLE CODE PROVISIONS
ARTICLE VI. OPERATION OF VEHICLES
CHAPTER 102. CHILD PASSENGER PROTECTION §§ 102.1--102.4. (Reserved).
§ 102.101. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Child booster seat--A belt positioning seat designed and manufactured to meet Federal motor vehicle safety standards in 49 CFR 571.213 (relating to child restraint systems) to position a child to properly sit in a Federally- approved safety seat belt system.
Child passenger restraint system--
(i) A device or system to enhance the safety of children in motor vehicles which is designed and manufactured for use in motor vehicles equipped with a safety seat belt system and which meets the Federal motor vehicle safety standards in 49 CFR 571.213.
(ii) The term includes a child booster seat.
Department--The Department of Transportation of the Commonwealth.
Safety seat belt system--Any strap, webbing or similar device designed to secure a person in a motor vehicle to mitigate the results of any accident, including buckles, fasteners and all installation hardware as specified by 49 CFR 571.209 (relating to Standard No. 209; seat belt assemblies).
§ 102.102. Physical criteria for use of child passenger restraint system.
(a) General criteria. Children under 4 years of age shall be securely fastened in a safety seat belt system and a child passenger restraint system appropriate for their height and weight in accordance with the recommendations of the manufacturer. Children 4 years of age but younger than 8 years of age shall be securely fastened in a safety seat belt system and an appropriately fitting child booster seat in accordance with the recommendations of the manufacturer.
(b) Exemption based on child's weight or height, or on vehicle characteristics. Exemption from the general criteria in subsection (a) is as follows:
(1) Children 4 years of age but younger than 8 years of age who weigh less than 40 pounds may, in lieu of use of a booster seat, be securely fastened in a child passenger restraint system appropriate for their height and weight in accordance with the recommendations of the manufacturer.
(2) Children 4 years of age but younger than 8 years of age riding in a passenger position in the vehicle which was not originally equipped with a shoulder safety seat belt shall be fastened in the safety seat belt system without the use of a child booster seat or may be fastened in a child passenger restraint system appropriate for their height and weight in accordance with the recommendations of the manufacturer.
(3) Children 4 years of age but younger than 8 years of age who weigh more than 80 pounds or who are of a height of 4 feet 9 inches or taller may be fastened in the safety seat belt system without the use of a child booster seat.
(c) Integrated child restraint or booster seat. The requirements of this chapter may be satisfied by securing a child, in accordance with the recommendations of the manufacturer, in a child passenger restraint system or vehicle seat designed to accommodate children under 80 pounds, which is integrated into the design of the vehicle by the vehicle manufacturer.
§ 102.103. Medical exemption from use of child passenger restraint system.
(a) Exemption from the use of a child passenger restraint system for medical reasons may be obtained upon written certification by a physician that use of a child passenger restraint system is impractical. The certification must be made on a form developed by the Department which will require the following information:
(1) The physician's name and practice address.
(2) The date the form was completed.
(3) The name, age and weight of the child.
(4) The medical or physical reasons that the use of a particular child passenger restraint system or systems is impractical.
(5) A recommendation of the type of passenger restraint the child should be fastened into or a statement that no appropriate passenger restraint system is known.
(6) A recommendation regarding the length of time the exemption should extend, or a statement of the conditions under which the exemption should be lifted.
(7) Other information deemed relevant by the physician, such as whether the child can be fastened into the child passenger restraint system but for only limited periods of time.
(b) The completed form must be in the possession of the vehicle operator or other adult traveling with the child whenever the child is being transported.
[Pa.B. Doc. No. 06-2555. Filed for public inspection December 29, 2006, 9:00 a.m.]
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