[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Notices]
[Pages 29408-29410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13823]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration
[Docket No. NHTSA-98-4033; Notice 2]


Cosco, Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance

    Cosco, Incorporated, of Columbus, Indiana, has determined that a 
number of child restraint systems that it manufactured fail to comply 
with 49 CFR 571.213, Federal Motor Vehicle Safety Standard (FMVSS) No. 
213, ``Child Restraint Systems,'' and has filed an appropriate report 
pursuant to 49 CFR part 573, ``Defects and Noncompliance Reports.'' 
Cosco has also applied to be exempted from the notification and remedy 
requirements of 49 U.S.C. Chapter 301 `` ``Motor Vehicle Safety'' on 
the basis that the noncompliance is inconsequential to motor vehicle 
safety.
    Notice of receipt of the application was published, with a 30-day 
comment period, on July 22, 1998, in the Federal Register (63 FR 
39359). We received no comments.
    FMVSS No. 213, S5.4.3.5(b), requires that, after the dynamic test 
of S6.1 of the standard, when tested in accordance with the appropriate 
sections of S6.2 of the standard, any buckle in a child restraint 
system belt assembly designed to restrain a child using the system 
shall release when a force of not more than 71 Newtons (N) (16 pounds) 
is applied, provided that the conformance of any child restraint to 
this requirement is determined using the largest of the test dummies 
specified in S7 for use in testing that restraint when the restraint is 
facing forward, rearward, and/or laterally. Additionally, S5.4.3.5(e) 
requires that any buckle in a child restraint system belt assembly 
designed to restrain a child using the system shall not release during 
the dynamic testing specified in S6.1 of the standard.
    Four Cosco Touriva T-shield convertible child restraints, Model 02-
096, were tested at Calspan Corporation as part of NHTSA's child 
restraint compliance testing program. When tested with the 3-year-old 
dummy in the upright position, the plunger pin of the buckle assembly 
of one of the seats was sheared, and the buckle released during the 
dynamic test. Following a retest of another seat conducted using the 
same configuration, the post-test buckle release force exceeded 71 N 
(77.8 N, or 17.5 lb). The post-test release forces for units tested 
with the infant dummy and with the 3-year-old dummy in the reclined 
position did not exceed 71 N.
    We notified Cosco of the test failures noted above, as documented 
in Calspan Report Number 213-CAL-96-013. Following that notification, 
Cosco conducted its own investigation, in which it obtained results 
that, in some cases, were similar to those in our tests. Thereafter, 
Cosco notified us of its determination that it manufactured and 
distributed a number of Touriva convertible child restraint systems 
that do not comply with the above requirements. The units covered by 
that determination are those Touriva T-shield models manufactured from 
May 1, 1996, through November 26, 1997, as follows: Touriva Convertible 
Safe T-Shield, Full Wrap Fabric Cover (Model 02-084, 5/96 to 11/97, 
quantity: 11,018); Touriva Convertible Safe T-Shield, Partial Wrap 
Fabric Cover (Model 02-094, 5/96 to 11/97, quantity: 7,202); Touriva 
Convertible Safe T-Shield, Full Wrap Fabric Cover with Pillow (Model 
02-096, 5/96 to 10/97, quantity: 1,411); Touriva Convertible Safe T-
Shield, Partial Wrap Vinyl Cover (Model 02-404, 5/96 to 5/97, quantity: 
682); Touriva Convertible Safe T-Shield, Partial Wrap Fabric Cover 
(Model 02-821, 5/96 to 11/97, quantity: 186,040).
    Cosco supports its application for a determination of 
inconsequential noncompliance with the following:

    Cosco was able to obtain units manufactured both on and near the 
dates in question as well as subsequent production units. After 
extensive in-house dynamic testing and analysis, units were sent to 
Calspan for testing. Cosco made repeated trips to Calspan in an 
attempt to understand and resolve this potential noncompliance. 
Cosco was able to obtain results in isolated tests similar to that 
of the FY96 NHTSA tests. Cosco was not able to attribute the 
potential noncompliance to the design or manufacture of any 
particular component. We ran dozens of in-house tests and spent 
hundreds of hours in an effort to determine the reason isolated 
units manufactured on or after 5/10/96 were inconsistently 
exhibiting high post-test buckle release pressure and shearing of 
the plunger pin. The results have been inconsistent. The T-shield 
units involved in NHTSA's FY97 test program tested successfully, but 
were of identical construction and design to those which failed the 
FY96 testing.
    Since the Touriva T-shield models were first introduced in 1994, 
Cosco has required the vendor who is molding the housing and plunger 
pin and assembling the buckle assembly housing, spring and plunger 
pin to perform a pretest buckle release pressure on each assembly. 
No buckle assembly exhibiting a pretest buckle release pressure of 
over 13 lb nor under 10 lb has ever been used in the production of 
any Touriva convertible child restraint, including the T-shield 
units in question. In searching for possible explanations for the 
isolated deficiencies, Cosco made a material change to the housing

[[Page 29409]]

of the buckle assembly and the material of the plunger pin. This 
material change has resulted in eliminating any potential 
noncompliance related to both the high post-test buckle release 
pressure and the shearing of the plunger pin, although the minimal 
differences in properties between the materials does not adequately 
or conclusively explain the test results. All T-shield units 
manufactured after November 27, 1997 have a housing manufactured 
using 30% glass filled nylon instead of ABS and a plunger pin using 
Delrin 100P versus Delrin 500. The T-shield units supplied for NHTSA 
FY98 testing had the new materials incorporated into the buckle 
assembly.

    In its part 573 Report to the agency, Cosco stated that it:

    * * * does not believe that any defect or repeatedly discernable 
noncompliance exists with the subject child restraint...While a 
small percentage of the Calspan tests performed on the subject units 
did exhibit noncompliance results, a vast majority of identical 
child restraints manufactured during the same period produced 
complying test results. Cosco concludes from this testing and our 
exhaustive analysis of the subject child restraints and testing 
procedures that the noncompliance test results are not the result of 
the design, materials, or manufacturing processes involved in the 
production of the subject child restraints, but rather test 
variables and anomalies that are inherent in the 213 test 
procedures.

    In the summary of its application for inconsequential 
noncompliance, Cosco stated that it ``does not believe the inconsistent 
deficiency exhibited by a few of the tested units warrants a recall.'' 
Cosco concluded that ``reasonable evaluation of the facts surrounding 
this technical noncompliance will result in the decision that no 
practical safety issue exists.''
    We are denying Cosco's application for the following reasons.
    Ultimately, the issue in this case is whether this particular 
noncompliance is likely to increase the risk to safety through an 
evaluation of the potential injuries that would be incurred by a child 
in the event that a seat exhibited the noncompliance at issue. Instead 
of assessing the gravity of the noncompliance based upon the likely 
consequences, Cosco simply attributes the noncompliant conditions to 
``test variables and anomalies that are inherent in the 213 test 
procedures.'' In essence, Cosco's primary contention appears to be that 
many of the seats in question would not have failed to meet the 
performance requirements of the standard. However, this claim is 
relevant only to the issue of whether a noncompliance exists in a 
particular seat or some number of seats, not whether the noncompliance 
has significant safety consequences. Cosco has failed to provide any 
information which would support a determination that these 
noncompliances do not create a significant safety risk. Thus, we are 
unable to reasonably conclude that existence of the acknowledged 
noncompliant condition is inconsequential to safety.
    The purpose of the post-dynamic test buckle force requirement of 
S5.4.3.5(b) is to assure that adults can easily and quickly remove a 
child from the restraint following a crash. When we issued FMVSS No. 
213 (44 FR 72131, December 13, 1979), we specified that buckles must 
release when a force of not more than 20 pounds was applied after 
conducting the dynamic systems test required by section S6.1 of the 
standard. After adoption of the standard, we received information 
indicating that at this force level, many adults would not be able to 
easily release the buckle. A report done for us by K. Weber and N.P. 
Allen concluded that a force of 20 pounds is difficult for most women 
to generate with one hand. We had also been provided with consumer 
letters received by one child restraint manufacturer commenting on the 
difficulty of operating the child restraint harness buckles, and had 
received numerous telephone calls from consumers complaining about the 
size of the release buttons on child restraint belts and the high force 
levels required to operate them.
    We subsequently amended the requirement regarding the maximum 
allowable force to operate the buckle release mechanism following the 
dynamic sled test described in S6.1 of the standard from the original 
level of 20 pounds to 16 pounds (50 FR 33722, August 21, 1985). A 
research study conducted by Peter Arnberg for the National Swedish Road 
and Traffic Institute (``Handling Performance of Buckles on Child Seats 
with Regard to Opening Force Requirements'', 1975) showed that a 20 
pounds force requirement allowed buckles which require two hand 
operation by many adults, particularly adult females, and two hand 
operation is often awkward and may adversely affect safety in emergency 
situations. The Arnberg study showed that while two hands were 
necessary to operate buckles with a 80 N (18 pounds) release force, 95 
percent of adult females tested were able to operate buckles with a 70 
N (15.6 pound) release force with only one hand. While facilitating 
operation of buckles by one hand, this lower force was also considered 
sufficient to account for damage which might occur to the buckle during 
the impact test and to counter the forces which could be exerted on the 
buckle by a child hanging upside down in rollover crash conditions.
    We have been consistent in the manner in which we have addressed 
other instances of noncompliances with the post-test buckle release 
force requirements in the past. Since 1992, three other child 
restraints have failed to satisfy these requirements in compliance 
tests. One of these cases is currently under investigation, while in 
the other two cases, the manufacturer recalled the affected seats. In 
one instance, the post-test buckle release force was measured three 
times at 16.4, 16.4, and 19.9 pounds--only marginally above the 
requirement of 16 pounds as stated in S5.4.3.5(b) of the standard.
    When the Cosco Touriva T-shield (Model 02-096) was tested with the 
3-year-old dummy in the upright position, the plunger pin of the buckle 
assembly was sheared, and the buckle released during the dynamic test. 
In a retest conducted using the same configuration, the buckle assembly 
did not release, but the post-test buckle release force was 77.8 N 
(17.5 lb). Testing performed by Calspan for Cosco in an effort to 
isolate the cause of these test failures yielded results identical to 
those found in our compliance testing program with respect to both 
failure types. Excluding a number of tests that appear to have been 
conducted outside of the FMVSS 213 test envelope, and others where the 
pre- and post-buckle release forces were not measured for some reason, 
Cosco notes that four of 40 tests resulted in the buckle releasing 
during the dynamic test while another four exceeded the allowable post-
buckle release force. We do not agree with Cosco's assertion that a 
``small percentage of the Calspan tests performed on the subject units 
did exhibit noncompliance results,'' since we do not consider a failure 
rate of 20 percent to constitute a ``small percentage.'' Moreover, as 
stated above, the percentage of seats covered by a noncompliance 
determination that actually will exhibit the noncompliance is not 
relevant to the issue of consequentiality. It is often not possible to 
identify precisely which vehicles or items of equipment covered by a 
noncompliance determination actually are noncompliant. The issue is 
whether the noncompliance is consequential to safety.
    It is also important to note that in most instances where the 
buckle released during the dynamic test (both in NHTSA compliance tests 
and in tests performed for Cosco), the head excursion measurements were 
above the acceptable limit prescribed in section S5.1.3.1(a) of 
Standard No. 213, and in

[[Page 29410]]

at least one instance, the dummy was not retained within the restraint. 
Failure of the child restraint system in this manner increases the 
likelihood of head injury to the occupant, which is clearly not 
insignificant or inconsequential to safety.
    Following the NHTSA compliance test failures, Cosco implemented a 
material change to the housing of the buckle assembly and the material 
of the plunger pin. Cosco incorporated these material changes into all 
T-shield restraints manufactured after November 27, 1997 (the effective 
date for this engineering change is December 5, 1997, as no soft shield 
units were produced between November 27 and December 5). Testing 
performed by Cosco has demonstrated that this material change has 
resulted in the elimination of any noncompliance related to both the 
high post-test buckle release force and the shearing of the plunger 
pin. Test results provided in Cosco's application show that some units 
manufactured as late as November 1997--immediately prior to 
incorporation of the material change--failed to meet the performance 
requirements of the standard because the buckle released during dynamic 
testing, head excursion exceeded 813 mm (32.0 inches), and in one case, 
the dummy was not retained within the restraint. All subsequent tests 
of units with the revised materials, including compliance tests 
performed for NHTSA, have yielded passing results. Despite this, in its 
application for decision of inconsequential noncompliance, Cosco 
contends that the ``minimal differences in properties between the 
materials does not adequately or conclusively explain the test 
results.''
    However, if the material properties of the differing buckle 
assembly housing and plunger pin are virtually identical as stated by 
Cosco, T-shields manufactured with the new materials would be expected 
to exhibit inconsistent test results similar to those in question, 
specifically with respect to release of the buckle assembly during 
dynamic testing and excessive post-test buckle release forces. Testing 
of child restraint systems with the material change incorporated has 
not demonstrated this. Accordingly, we are unconvinced that the 
noncompliant conditions are simply attributable to ``test variances and 
anomalies that are inherent in the 213 test procedures'' as Cosco 
claims. Rather, these test results indicate that a recall by Cosco in 
which the earlier seats were modified by bringing them up to the 
performance level of the later seats would have a beneficial and 
``consequential'' impact on safety.
    In its application for decision of inconsequential noncompliance, 
Cosco states that:

    The public, upon seeing the number of recalls, concludes that 
child restraints currently available are unsafe and therefore 
declines to use them. The agency is aware and, in fact, has publicly 
advised consumers to use child restraints which have defects or 
noncompliances that have resulted in recalls until such child 
restraints can be corrected. This is in recognition of the fact that 
technical noncompliance does not compromise the overall 
effectiveness of child restraints.

    We wish to clarify and correct the above statement. It is correct 
that we generally advise consumers to continue using child restraints 
which have identified defects or noncompliances until such a time when 
the appropriate remedy can be effected. However, this is in recognition 
that--in most cases--use of a child restraint with an identified defect 
or noncompliance is safer than the alternatives of (a) restraining the 
young child with a vehicle belt system that does not fit properly, or 
(b) not restraining the the child at all. In the absence of a grant of 
an inconsequentiality petition, we have never stated, nor implied, that 
a noncompliance--``technical'' or otherwise--does not compromise the 
safety or effectiveness of child restraints.
    In consideration of the foregoing, we have decided that the 
applicant has not met its burden of persuasion that the noncompliance 
it describes is inconsequential to safety. Accordingly, its application 
is hereby denied.

(49 U.S.C. 30118, 30120, delegations of authority at 49 CFR 1.50 and 
501.8).

    Issued on May 26, 1999.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 99-13823 Filed 5-28-99; 8:45 am]
BILLING CODE 4910-59-M