[Federal Register Volume 60, Number 155 (Friday, August 11, 1995)]
[Notices]
[Pages 41148-41150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19897]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. 93-93; Notice 2]
Century Products Co. Grant of Petition for Determination of
Inconsequential Noncompliance
Century Products Company (Century) of Macedonia, Ohio, determined
that some of its child safety seats failed to comply with the
flammability requirements of 49 CFR 571.213, ``Child Restraint
Systems,'' Federal Motor Vehicle Safety Standard (FMVSS) No. 213, and
filed an appropriate report pursuant to 49 CFR part 573, ``Defect and
Noncompliance Reports.'' Century also petitioned to be exempted from
the notification and remedy requirements of 49 U.S.C. Chapter 301
(formerly the National Traffic and Motor Vehicle Safety Act) on the
basis that the noncompliance is inconsequential as it relates to motor
vehicle safety.
Notice of receipt of the petition was published on December 29,
1993, and an opportunity afforded for comment (58 FR 68985). No
comments were received. This notice grants the petition.
Paragraph S5.7 of FMVSS No. 213 states that ``[e]ach material used
in a child restraint system shall conform to the requirements of S4 of
FMVSS No. 302 (Flammability of Interior Materials) (571.302).''
Paragraph S4.3(a) of FMVSS No. 302 states that ``[w]hen tested in
accordance with S5, material described in S4.1 and S4.2 shall not burn,
nor transmit a flame front across its surface, at a rate of more than 4
inches per minute.'' Paragraph S4.2.1 of FMVSS No. 302 states that
``[a]ny material that does not adhere to other material(s) at every
point of contact shall meet the requirements of S4.3 when tested
separately.''
From December 1991 to May 1993, Century manufactured and sold
192,824 Model 4594 and 4595 child safety seats that did not comply with
the flammability requirements of FMVSS No. 213. On June 7, 1993, NHTSA
informed Century that, when its Model 4595 child safety seat was tested
by a NHTSA contractor, the fabric seat cover failed to meet the
Standard No. 213 flammability requirements (Century's Model 4594 has
the same construction as its Model 4595). The contractor tested six
samples of the seat covers, yielding burn rates of between 6.3 and 7.6
inches per minute.
The seats in question are constructed of fabric, fiberfill, and
backing. The covers on these seats are formed by sewing three sections
together: The left side, the right side, and the center. Each section
is fully sewn around its perimeter and the three sections are sewn
together. The entire perimeter of the cover is then permanently and
completely sewn together with an overlock to assure that the layers are
securely attached. There is additional stitching surrounding the buckle
openings and belt loop areas. Because of the construction of the seats,
Century decided that testing the fabric, fiberfill, and backing
together (composite testing) would be appropriate. However, Century
subsequently agreed that the exterior material of the seat cover ``does
not adhere to other material(s) at every point of contact,'' and that
therefore, pursuant to Paragraph S4.2.1 of FMVSS No. 302, the seat
covers are ``required to meet the requirements of S4.3 when tested
separately.''
Century supported its petition for an exemption from the recall
requirements of the statute with the following arguments and also
submitted test reports. All of these submissions are available for
review in the NHTSA docket.
Under FMVSS No. 213, Section S5.7, ``each material used in a
child restraint system shall conform to the requirements of S4 of
FMVSS No. 302.'' 49 CFR 571.213 S5.7 (1992). FMVSS No. 302 sets the
standard for the flammability of materials used in the interior of
motor vehicles. The purpose of FMVSS No. 302 is to ``reduce the
deaths and injuries
[[Page 41149]]
to motor vehicle occupants caused by vehicle fires, especially those
originating in the interior of the vehicle from sources such as
matches or cigarettes.''
When FMVSS No. 302 was originally proposed, materials used in
the interior of motor vehicles were to be tested separately
regardless of how the materials were used. FMVSS No. 302 was revised
prior to its release to require testing as a composite if the
surface material is ``bonded, sewed or mechanically attached to the
underlying material.'' 36 FR 290 (1971). The purpose of the revision
was to eliminate ``an element of complexity found unnecessary for
safety purposes.'' Under this version of FMVSS No. 302, Century's
infant restraint would have been tested as a composite and readily
passed the standard.
However, in 1975, the testing procedure was again revised, and
the standard now in place was adopted. 40 FR 14,318 (1975). Under
the revised standard, materials are tested as a composite only if
the material ``adhere[s] to other materials(s) at every point of
contact.'' 49 CFR 571.302 S4.2.1. The standard was revised to take
into account some omissions in the testing scheme ``and to reduce
the complexity of testing single and composite materials.'' 40 FR
14,319 (1975). The standard was not revised because former FMVSS No.
302 was found to be inadequate to meet the safety standards of the
Act, but to reduce the complexity of the testing.
The current version of FMVSS No. 302 may go further than
necessary to prevent the ``unreasonable risk of injury or death.''
This is evidenced by the results of a study completed by Failure
Analysis Associates in March of 1991. A study of the U.S. CPSC NEISS
database and the NHTSA Complaint File back to 1978 revealed not one
instance in which an infant or child was injured because a car seat
ignited. Failure Analysis Associates, Inc., Flammability Tests and
Examination of Accident/Injury and Complaint Data 11 (1991). A study
conducted by James H. Shanley, Jr. in conjunction with Fisher-
Price's petition for determination of inconsequential noncompliance
also found no instances in which a vehicle fire started in a child
safety seat. Fisher-Price, Dkt. No. 93-79, 58 FR 59,511 (1993)
(Notice of Receipt of Petition for Determination of Inconsequential
Noncompliance). Century realizes that the facts in their case are
different from Fisher-Price and only cites the document for the
purpose stated in this Petition. Moreover, in 1971 a much larger
portion of our society smoked. Now, with fewer and fewer Americans
smoking, the risks that an infant or child restraint would be set on
fire by lighted cigarettes or matches is becoming more remote.
The Agency could submit that the reason there have been no fires
is because of FMVSS 302 and their aggressive enforcement of the
standard. But, it is important to remember that the Agency standard
does not require nonflammable materials; it only requires material
which burns slowly. Hence, the standard, while admirable, would not
explain the fact that there has been no recorded evidence of a fire.
The frequency of incidents involving nonconforming or defective
equipment is a factor in determining whether defects or
noncompliance has an impact on safety. See, e.g., United States v.
General Motors Corp., 656 F. Supp. 1555 (D.D.C. 1987), aff'd, 841
F.2d 400 (D.C. Cir. 1988) (premature wheel lockup in 1980 X-cars was
not a ``safety related defect'' when the risk of failure was no
worse than, and in most instances better than, the rate for all
cars); United States v. General Motors Corp., 561 F.2d 923 (D.C.
Cir. 1977), cert. denied, 434 U.S. 1033 (1978) (government presented
evidence of a disproportionately high number of replacement parts
(35,366) and inferred, in the absence of challenge by General
Motors, that replacement part sales were due to a disproportionately
high rate of failures and concluded that defect safety-related). The
fact that no child has been injured by fire caused by a child car
seat for the last 15 years militates strongly against a finding that
Century's noncompliance has an effect on safety.
NHTSA has recognized that some technical violations of NHTSA
standards do not affect safety and (has) exempted manufacturers from
the notice and remedy requirements of the Act. See, e.g., General
Motors Corp., Dkt No. 92-23, 57 FR 45,866 (1992) (one test point on
side reflex reflector failed to meet standard, but when values for
reflector considered overall, noncompliance inconsequential).
Another example, in General Motors Corp., Dkt. No. 91-10-IP-No. 2,
56 FR 33,323 (1991), NHTSA found that the technical violation at
issue had an inconsequential effect on safety because the potential
hazards were so remote.
In General Motors Corp., General Motors' high beam telltale in
its 1990 Oldsmobile Toronado was not in compliance with NHTSA
standards because when the cigar lighter was in use, the telltale
dimmed or extinguished. The Agency granted GM's petition for
inconsequential noncompliance because problems would occur only
under a particular set of circumstances:
The noncompliance could only manifest itself during upper beam
use when the cigar lighter was also in use. But only a comparatively
small portion of driving occurs at night, the time of headlamp
activation. Because of State and local laws prohibiting upper beam
use, only a very small percentage of nighttime driving is performed
using the upper beam. The 25-second use of the cigar lighter would
comprise only a limited amount of the time the upper beam is in use.
The safety hazard most likely to be created by the noncompliance is
glare in the eyes of oncoming driver on a two or three-lane road,
but, if discomforted, the instinctive reaction of that driver would
be to flash the upper beams, alerting the noncompliant vehicle to
lower that vehicle's upper beams. The probability of all these facts
occurring simultaneously is low. (Emphasis added.) Id. at 33,324.
The ``probability of all these facts occurring simultaneously''
in this Century case is exceedingly low. When tested as a composite,
Century's Model 4594 and 4595 infant restraints fall within NHTSA's
burning rate. The components of the infant restraint are securely
sewn together. In order for Century's infant restraint to pose a
hazard to a passenger, (1) the seat would have to have somehow torn
apart around the numerous sewn seams; (2) the fabric would have to
be frayed in such a way that the fabric is sticking up away from the
fiberfill; and (3) the source of ignition would have to land on the
exposed fabric. Again, the ``probability of all these facts
occurring simultaneously'' is low. Coupling the need for these
unlikely probabilities with the fact that there has never been a
fire caused by a child car seat ignition should make this a case
where fairness requires a granting of the Petition.
Under the standard as enacted in 1971, Century's infant
restraint would have been tested as a composite, and therefore,
would be in compliance with NHTSA standards. FMVSS No. 302 was
revised in 1975, not to address safety concerns, but simply for
purposes of administrative ease. The fact that the requirements of
FMVSS No. 302 are in excess of those needed to ensure the safety of
the restraint's occupants was dramatically demonstrated by the
results of a study performed by Patrick Kennedy, an expert retained
by Fisher-Price. Mr. Kennedy's study revealed that typical
children's clothing burns at a rate far in excess of the standard
imposed by FMVSS No. 302. Therefore, an infant sitting in Century's
infant restraint is at far greater risk from the clothing he or she
wears than from the infant restraint itself.
Century's infant restraints do not pose an unreasonable risk to
the infants they hold. The question of whether Century's infant
restraint meets the objectives of the Act could be phrased in this
fashion: Would a reasonable parent, after being made aware of all
the facts and circumstances surrounding this noncompliance, still be
willing to place his or her infant in the Model 4594 or 4595 infant
restraint? Century is satisfied that a reasonable parent would use
their Model 4594 and 4595 restraints without any hesitation.
Century understands how serious the flammability issue is to the
Agency and commends the Agency for its vigilance. Century is also
serious about the issue, and would not consider selling a product
that would place a child at risk. Century strongly believes that if
there is a risk in this case, it is not an unreasonable risk as
required by the Act. As Century's tests have shown, the seat pad on
the infant restraint as a composite burns well within the burn rate
acceptable to the Agency. Furthermore, the seat pad is constructed
in a way that makes tears unlikely. Because Century's infant
restraints meet the objectives of the Act, Century's noncompliance
is inconsequential as it relates to motor vehicle safety. For these
reasons, Century respectfully requests that NHTSA grant its petition
for exemption.
The agency has reviewed Century's petition and has determined that
the noncompliance is inconsequential to motor vehicle safety. NHTSA
agrees with Century that the noncompliant seat covers are unlikely to
pose a flammability risk when they are securely sewn to the seat, which
is the normal condition for these seats.
[[Page 41150]]
Century supported this point by performing flammability testing under
two conditions: first on the seat and cover as a composite, i.e., as it
exists on a child seat with the two items sewn together; and second, by
bunching or gathering the noncompliant seat cover and attempting to
ignite it. In both cases the seat cover burned at a rate below the four
inches per minute maximum set out in FMVSS No. 302.
The agency granted a petition for inconsequential noncompliance
submitted by PACCAR (57 FR 45868) in which the circumstances were
similar to those in this petition. PACCAR manufactures mattresses for
the sleeper areas of certain truck tractors. A small portion of the
material used in the construction of the mattresses, and subject to the
requirements of FMVSS No. 302, failed the burn rate test. The agency
determined that ignition of the noncompliant material was unlikely and,
due to the small volume of the material, would not pose the threat of a
serious fire if ignited. As a result of this analysis, the PACCAR
petition was granted.
The circumstances here are similar to those in which the agency
granted a petition for inconsequentiality by General Motors in
connection with a noncompliance of the upper beam indicator. 56 FR
33323 (1991). The indicator was noncompliant only when the cigarette
lighter was operating. The agency determined that the possibility of
the upper beams being operated simultaneously with the cigarette
lighter posed a very limited safety hazard. Similarly, it is unlikely
that sections of the noncompliant cover fabric large enough to cause
serious burn injuries would be separated from the cushion lining. Even
if a large section of the fabric was torn away, NHTSA considers the
possibility that this material would be exposed to a potential ignition
source to be extremely remote.
Although it is possible that fuel-fed fires from vehicle crashes
could consume a vehicle's interior, the flammability of the seat cover
materials would be irrelevant to the severity of such a fire and to the
potential injuries incurred by a child.
NHTSA's evaluation of the consequentiality of this noncompliance
should not be interpreted as a diminution of the agency's concern for
child safety. Rather, it represents NHTSA's assessment of the gravity
of the noncompliance based upon the likely consequences. Ultimately,
the issue is whether this particular noncompliance is likely to
increase the risk to safety. Although empirical results are not
determinative, the absence of any reports of fires originating in these
child restraints supports the agency's decision that the noncompliance
does not have a consequential effect on safety.
For the above reasons, the agency has determined that Century has
met its burden of persuasion that the noncompliance at issue here is
inconsequential to motor vehicle safety and its petition is granted.
Accordingly, Century is hereby exempted from the notification and
remedy provisions of 49 U.S.C. 30118 and 30120.
Authority: 49 U.S.C. 30118(d), 30120(h); delegations of
authority at 49 CFR 1.50 and 501.8.
Issued on: August 8, 1995.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 95-19897 Filed 8-10-95; 8:45 am]
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