[Federal Register Volume 60, Number 155 (Friday, August 11, 1995)]
[Notices]
[Pages 41151-41152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19899]



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DEPARTMENT OF TRANSPORTATION
[Docket No. 93-79; Notice 6]


Fisher-Price, Inc.; Grant of Appeal of Denial of Petition for 
Determination of Inconsequential Noncompliance

    On September 16, 1993, Fisher-Price, Inc. (Fisher-Price), of East 
Aurora, New York, filed a petition for an exemption from the 
notification and remedy provisions of 49 U.S.C. Chapter 301 on the 
ground that the noncompliance of certain of its child restraints with 
the flammability requirements of Federal Motor Vehicle Safety Standard 
(FMVSS) No. 213, ``Child Restraint Systems,'' was inconsequential as it 
relates to motor vehicle safety. On March 22, 1994, the National 
Highway Traffic Safety Administration (NHTSA) denied Fisher-Price's 
petition (59 FR 23253; May 5, 1994).
    On May 6, 1994, Fisher-Price appealed that denial. Notice of the 
appeal was published on June 16, 1994 (59 FR 30957), and an opportunity 
was afforded for comment. However, on August 12, 1994, before the 
agency reached a decision on the appeal, Fisher-Price notified NHTSA 
that it was taking the position that it had never formally determined 
that a noncompliance existed. In response, on August 17, 1994, the 
agency terminated the inconsequentiality proceeding (59 FR 42326), as 
its regulations require that a determination of noncompliance exist 
before an inconsequentiality petition may be filed. See 49 CFR 
556.4(b)(6).
    Following this termination, on September 26, 1994, NHTSA's 
Associate Administrator for Enforcement published an initial decision, 
pursuant to 49 U.S.C. 30118(a), that the child restraints at issue 
failed to comply with FMVSS No. 213 (59 FR 49100). The agency then 
conducted a public proceeding on October 21, 1994 to allow Fisher-Price 
and other interested persons the opportunity to present information, 
views, and arguments on whether a noncompliance existed. Prior to the 
agency's final decision on this issue, on July 10, 1995, Fisher-Price 
submitted a Noncompliance Report in accordance with 49 CFR part 573, 
that memorializes its formal determination that, under NHTSA's 
interpretation of the applicable test procedures, the seats in question 
fail to comply with S5.7 of FMVSS No. 213.
    In view of the fact that a determination of noncompliance has been 
made, the agency may now consider Fisher-Price's petition for an 
inconsequentiality exemption. Moreover, rather than require Fisher-
Price to file a new petition, NHTSA has decided to reinstate the 
proceeding at the same stage it was at when it was terminated.
    For the reasons set forth below, the agency has decided to grant 
Fisher-Price's appeal. Thus, Fisher-Price will not be required to 
conduct a recall campaign. However, as part of the resolution of this 
matter, Fisher-Price has agreed to pay $35,000 to the United States in 
settlement of NHTSA's claim that it violated 49 U.S.C. 30118(c) and 
30119(c) by failing to notify the agency in a timely manner after it 
should, in good faith, have determined that these child restraints did 
not comply with the standard.
    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.''
    Fabric used in the shoulder straps in some models of Fisher-Price's 
child restraints exceeded this limit by .3 to .6 inch per minute when 
tested by NHTSA contractors in the spring of 1993 and when retested by 
Fisher-Price in the summer of 1993. Apparently, the noncompliance was 
due to the manner in which the fabric was treated during the process in 
which the straps were molded into a urethane shield. The company that 
performed this process for Fisher-Price is the same company that 
performed the identical process for Cosco, Inc., another manufacturer 
of child restraints whose request for an inconsequentiality exemption 
from the recall requirements of the statute is granted elsewhere in 
today's Federal Register.
    In its September 16, 1993 letter to NHTSA, Fisher-Price 
acknowledged that it had ``become aware of information suggesting that 
the molded shoulder belt webbing on its Model AO9101, DO9101, 9103, 
9149, 9173, 9179 and 9180 car seats may not comply with the 
requirements of FMVSS 302.'' At the same time, pursuant to 49 U.S.C. 
30118(d) and 30120(h), Fisher-Price sought an exemption from the 
notification and remedy requirements of the statute on the ground that 
any such noncompliance was inconsequential as it relates to motor 
vehicle safety.
    On March 22, 1994, NHTSA denied Fisher-Price's inconsequentiality 
petition (59 FR 23253, May 5, 1994). That notice contains a full 
discussion of the noncompliance, the company's petition, and the 
agency's rationale for its denial of the petition.
    On May 6, 1994, Fisher-Price submitted an appeal of the agency's 
denial pursuant to 49 CFR 556.7. The appeal contains an analysis of the 
agency's decision, the affidavit of Gail E. McCarthy, Ph.D., P.E., of 
Failure Analysis Associates (FaAA), and a summary of the supplemental 
information Fisher-Price had submitted on February 25, 1994, March 17, 
1994, and March 24, 1994 that had not been considered by the agency in 
its denial.
    The February 25, 1994 submission contained information on the 
location of mold release compound on the shoulder webbing and its 
possible dissipation over time.
    The March 17, 1994 submission contained research conducted by FaAA 
for Fisher-Price, including burn tests and a search of the literature 
and accident data regarding child seat fires. The submission also 
included a calculation of an alleged incremental risk associated with a 
recall of the noncompliant seats.
    The March 24, 1994 submission, entitled ``Supporting Documentation 
for Evaluation of the Fire Safety of Fisher-Price, Inc. Child Restraint 
Shoulder Harness Webbing,'' contained the detailed data and test 
results on which the material in the March 17, 1994 document was based.
    In its May 6, 1994 appeal, Fisher-Price raised the following 
points: (1) Fisher-Price claimed that it had not determined that its 
child restraints failed to comply with FMVSS No. 213. (In view of 
Fisher-Price's recent acknowledgement that a noncompliance exists, this 
issue is now moot.) (2) Fisher-Price claimed that NHTSA had considered 
its petition under a stricter standard for inconsequentiality 
exemptions than is provided by statute because it involved child 
restraints. (3) Fisher-Price asserted that NHTSA's past precedent in 
granting inconsequentiality petitions compels a grant of this petition. 
(4) Fisher-Price contended that the data it submitted in support of its 
argument that the flammability of children's clothing

[[Page 41152]]

poses a much greater risk to safety than the noncompliant shoulder belt 
webbing were not adequately refuted.
    In her affidavit submitted with the appeal, Dr. McCarthy asserted 
the following: (1) The shoulder belt webbing should properly be viewed 
as meeting the requirements of FMVSS No. 302; (2) any noncompliance 
that might be deemed to exist has no impact on motor vehicle safety; 
and (3) possible remedial measures would create substantially greater 
risk of injury to children than that presented by the webbing.
    No comments were received on the appeal.
    The agency has carefully reviewed all the data and arguments 
comprising the record of this case and has decided that the facts 
warrant granting the appeal. First, the margin of noncompliance is 
small, falling outside the standard's maximum by less than an inch per 
minute. (The agency wishes to emphasize that the failure to meet a 
performance requirement by a minimal amount does not in itself support 
an inconsequentiality determination; each petition must be considered 
in the context of all relevant facts.)
    Second, the portions of the child restraint that do not comply with 
the standard, the shoulder straps, are a small part of the child 
restraint itself, and a minimal part of the fabric present in a 
vehicle's interior. Although it is possible that fuel-fed fires from 
vehicle crashes could consume a vehicle's interior, the flammability of 
the shoulder straps would be irrelevant to the severity of such a fire 
and to the potential injuries incurred by a child.
    The primary purpose of NHTSA's flammability requirements is to 
prevent fires from ``originating in the interior of the vehicle from 
sources such as matches or cigarettes.'' See paragraph S2 of 49 CFR 
571.302. While it is theoretically possible that ashes from smoking 
materials could land upon the shoulder straps, the angle at which the 
straps normally rest makes this very unlikely.
    NHTSA's reevaluation 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 reassessment 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 compared to child restraints with shoulder 
straps that meet the four inches per minute requirement. Although 
empirical results are not determinative, the absence of any reports of 
fires originating in the over three million restraints in which this 
noncompliance exists 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 Fisher-Price 
has met its burden of persuasion that the noncompliance at issue here 
is inconsequential to motor vehicle safety, and its appeal of the 
agency's original denial is granted. Accordingly, Fisher-Price is 
hereby exempted from the notification and remedy provisions of 49 
U.S.C. 30119 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. 95-19899 Filed 8-10-95; 8:45 am]
BILLING CODE 4910-59-P