[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Notices]
[Pages 29410-29412]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13824]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-98-4383; Notice 2]
Kolcraft Enterprises, Inc.; Denial of Application for Decision of
Inconsequential Noncompliance
Kolcraft Enterprises of Chicago, Illinois, has determined that
706,068 child restraint systems 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.''
Kolcraft 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 safety.
Notice of receipt of the application was published on September 8,
1998, in the Federal Register (63 FR 47545), with a 30-day comment
period. We received no comments.
FMVSS No. 213, S5.6.1.8, requires:
In the case of each child restraint system that can be used in a
position so that it is facing the rear of the vehicle, the
instructions shall provide a warning against using rear-facing
restraints at seating positions equipped with air bags, and shall
explain the reasons for, and consequences of not following the
warning. The instructions shall also include a statement that owners
of vehicles with front passenger side air bags should refer to their
vehicle owner's manual for child restraint installation
instructions.
In adopting S5.6.1.8, we said that such instructions would
``complement'' the requirement that owner's manuals of vehicles having
a front passenger side air bag provide information regarding ``proper
positioning of occupants, including children, at seating positions
equipped with an air bag.'' 59 FR 7643, 7646 (Feb. 16, 1994) (final
rule). This requirement appears in S4.5.1(f) of FMVSS No. 208, which
was added in 1993. 58 FR 46551, 46564 (Sep. 2, 1993) (final rule).
The items affected by the noncompliance are the instructions for
proper use that were provided after August 15, 1994, with certain
models of Kolcraft's child restraints in its effort to comply with S5.6
of FMVSS No. 213. Kolcraft's instructions provided the appropriate
warning against using rear-facing restraints at seating positions
equipped with air bags, as well as the reason for the warning and the
consequences of not following it. However, Kolcraft's instructions did
not include a statement expressly referring owners of vehicles with
front passenger side air bags to their vehicle owner's manual for child
restraint installation instructions. The noncompliances began August
15, 1994, the effective date of S5.6.1.8. The following models of child
restraints were affected by the noncompliance: Rock'n Ride (until April
1996); Auto-Mate (until June 1997); Traveler 700 (until December 1995);
Performa (until June 1997); and Secure Fit (until June 1997). The total
number of child restraints involved is 706,068. In response to an April
17, 1997, letter from us concerning miscellaneous compliance issues,
[[Page 29411]]
Kolcraft has subsequently revised its instructions to conform to
S5.6.1.8.
Kolcraft supports its application for inconsequential noncompliance
with the following:
S4.5.1(f) of FMVSS No. 208 requires owner's manuals to provide
information regarding ``proper positioning of occupants, including
children, at seating positions equipped with air bags.'' (Emphasis
supplied.) It does not, however, require a vehicle manufacturer to
include ``child restraint installation instructions'' in general.
Indeed, for rear-facing infant restraints such as Kolcraft's Rock
``n Ride, there should be no child restraint installation
instructions for ``seating positions equipped with air bags,''
because rear-facing restraints should not be used in air bag
equipped seats. And not surprisingly, no owner's manual we reviewed
contains installation instructions for rear-facing infant seats at
``seating positions equipped with air bags'; rather, they
consistently warn against installation of a rear-facing restraint at
an air bag equipped seating position. While some owner's manuals
contain child restraint installation instructions for other (non-air
bag) seating positions, not all owner's manuals contain such
information. Thus, since the vehicle owner's manual will not always
yield the ``child restraint installation'' information apparently
contemplated by S5.6.1.8 of FMVSS No. 213, the inadvertent omission
from the Kolcraft instruction sheets of a reference to the vehicle
owner's manual is not consequential to motor vehicle safety.
Moreover, although Kolcraft does not question the usefulness of
a statement directing vehicle owners to their owner's manual for
``complement[ary]'' (59 FR at 7646) information relating to the
positioning of occupants--especially children--at seat positions
equipped with air bags, Kolcraft's inadvertent failure to include
such a statement in its instructions is inconsequential because
Kolcraft's instructions set forth in detail the very information
about child restraint installation and the proper positioning of
children that is contemplated in S5.6.1.8 and the final rule
promulgating the regulation, and, in many cases, exceed that
information. In short, the omission of the statement directing
owners of vehicles with front passenger side air bags to their
owner's manual would not deprive vehicle owners using Kolcraft child
restraints from any information germane to the safe installation of
child restraints in vehicles equipped with air bags.
For example, Kolcraft's instructions include warnings not to
place a rear-facing child restraint in a seat equipped with air
bags, as well as a statement explaining the reason for the warning
and the consequences of ignoring it. The instructions provide
information regarding appropriate seating positions. The
instructions also provide elaborate information about how to install
child restraints with a variety of seat belts, and they illustrate a
number of different seat belt configurations, explaining which are
and which are not appropriate for use in installing child
restraints. The instructions also explain why certain configurations
are inappropriate and what vehicle owners should do if a seat belt
will not hold a child restraint tightly. Thus, Kolcraft's
instructions provide all the information concerning installation and
positioning of children that S5.6.1.8 apparently contemplates would
be provided in owner's manuals, and, in many respects, exceed the
information described in S5.6.1.8. Accordingly, Kolcraft's
inadvertent noncompliance with S5.6.1.8's requirement of a statement
referring to the vehicle owner's manual is inconsequential as it
relates to motor vehicle safety.
Kolcraft does not question the usefulness or importance of
S5.6.1.8's requirement that the instructions for child restraints
direct owners of vehicles with front passenger side air bags to
their vehicle owner's manual for child restraint installation
instructions. As soon as it learned of its noncompliance with the
requirement, Kolcraft revised its instructions to conform exactly to
S5.6.1.8. However, because Kolcraft's noncompliant instructions
provide detailed information relating to the installation of child
restraints with a variety of seat belt configurations, as well as
information concerning the proper positioning of children in
vehicles equipped with air bags, the omission of a statement
referring to the owner's manual in Kolcraft's instructions was
inconsequential with respect to vehicle safety.
We are denying Kolcraft's application for the following reasons.
By way of background, upon conducting dynamic testing in 1991 that
indicated air bags generally produce substantial increases in the
values for the head injury criterion (HIC) and chest acceleration of
dummies seated in rear-facing child restraints (compared to dummies in
rear-facing restraints tested with no air bag), we sought to inform
consumers about the adverse interaction of rear-facing child restraints
and air bags as quickly as possible. We issued a ``Consumer Advisory''
(December 10, 1991) which warned parents about using rear-facing child
seats in vehicle seats equipped with an air bag. Subsequently, we
initiated actions in two separate areas to ensure that consumers would
be provided important safety information about the effect of air bags
on rear-facing child restraints.
First, on December 14, 1992, we published a Notice of Proposed
Rulemaking (NPRM) which proposed to amend FMVSS No. 208, ``Occupant
Crash Protection,'' to (1) specify that vehicle manufacturers must
install air bags as the means to provide the automatic crash protection
required by the standard, and (2) require that labels bearing specified
information about air bags be placed in vehicles equipped with air
bags, and that additional, more detailed information about air bags be
provided in the vehicle owner's manual (57 FR 59043). The proposed
labeling requirements were intended to ensure that consumers will have
access to important safety information with respect to the air bags
installed in their vehicles, including specific warnings against
installing rearward-facing child restraint systems in front passenger
seating positions equipped with an air bag. We published a final rule
adopting these amendments on September 2, 1993 (58 FR 46551). The
owner's manual requirements became effective on March 1, 1994, and the
vehicle label requirements became effective on September 1, 1994.
Second, on April 16, 1993, we supplemented these actions by
publishing an NPRM which proposed to amend labeling and other
requirements of FMVSS No. 213 for rear-facing infant restraint systems
(58 FR 19792). We proposed to require that (1) warning labels for these
systems include a warning against using the restraint in any vehicle
seating position equipped with an air bag, and (2) printed instructions
for rear-facing restraints include safety information about air bags.
We published a final rule adopting these requirements on February 16,
1994 (59 FR 7643). In response to a suggestion from Volkswagen, we also
included the requirement at question in Kolcraft's application, namely,
that the written instructions provided with child restraint systems
that can be used in a position so that it is facing the rear of the
vehicle must include a statement that owners of vehicles with front
passenger side air bags should refer to their vehicle owner's manual
for child restraint installation instructions. The vehicle owner's
manual would include precautions specific to the vehicle that should be
heeded for the safety of occupants, including children. These would
include information on where to place a child restraint system in the
air-bag equipped vehicle, which is an item of vehicle-specific
information that only the vehicle manufacturer--and not the child
restraint manufacturer--can provide. These requirements became
effective on August 15, 1994.
We firmly believe that strict adherence to the requirements
addressing warning labels, printed instructions, and information in the
owner's manual as outlined above will maximize to the extent
practicable the implementation of precautionary measures to preserve
the safety of infants and young children traveling in motor vehicles
equipped with air bags. Each of these warnings was developed with care
to ensure that the specific content and location of the labels and
instructions clearly and concisely convey the hazards of placing of
rear-
[[Page 29412]]
facing child restraints in air bag-equipped seating positions. In
addition, the requirements help ensure that consumers are provided
information about where a rear-facing child restraint can appropriately
be placed in the vehicle.
In the years since these amendments were adopted, we have continued
to work very closely with both vehicle and child restraint
manufacturers and others in the child passenger safety community to
reduce the likelihood that a rear-facing infant restraint would be
placed in a vehicle seating position that has an air bag. Through media
advisories, consumer information fact sheets, revisions to the vehicle
and restraint labeling and information requirements noted above, and
other means, the entire child passenger safety community has taken
measures to educate the public regarding the detrimental effects of a
quickly deploying air bag when it strikes the seat back of a rear-
facing infant restraint.
However, between 1995 and 1998, and despite the concerted efforts
detailed above, we have confirmed that 15 children have been fatally
injured in crashes where their rear-facing child restraints were
installed in a seating position that was equipped with an air bag that
had deployed, and another nine have sustained serious, but nonfatal,
injuries.
The statement missing from Kolcraft's product conveys important
safety information. Kolcraft contends that, while (1) S5.6.1.8 of FMVSS
No. 213 requires written instructions for child restraints to include a
statement ``that owners of vehicles with front passenger side air bags
should refer to their vehicle owner's manual for child restraint
installation instructions,'' (emphasis added), and (2) the
corresponding requirements of S4.5.1(f) of FMVSS No. 208 requires
vehicle owner's manuals to provide information regarding ``proper
positioning of occupants, including children, at seating positions
equipped with air bags,'' (emphasis added), there, in fact, should be
no child restraint ``installation instructions'' for ``seating
positions equipped with air bags,'' because rear-facing restraints
should not be used in air bag equipped seats. We believe that Kolcraft
is too narrowly interpreting the phrase ``installation instructions''
in the S5.6.1.8 requirement of FMVSS No. 213 as it relates to the
S4.5.1(f) requirements of FMVSS No. 208.
In the final rule addressing installation of air bags and
associated information to appear on labels and in owner's manuals (58
FR 46551), we specified that the vehicle owner's manual must provide
any necessary precautions regarding the proper positioning of
occupants, including children, at seating positions equipped with air
bags to ensure maximum safety protection for those occupants. In
commenting on our proposal to adopt this requirement, SafetyBeltSafe
U.S.A. stated that it felt:
Complete information on the positioning of infants in cars with
passenger side air bags would be essential in the vehicle owner's
manual. It should include these points: (1) Children riding in a
rear-facing restraint must never ride in the front seat if a
passenger air bag is installed, because the air bag could hit the
leading edge of the child restraint with great force if it deploys;
(2) therefore, children under 20 pounds (and about one year of age)
must always ride in a child restraint that faces the rear (or in a
car bed that meets FMVSS 213) and must be placed in the rear seat,
so they will not be hit by the air bag. If a child uses a car bed,
this advice also applies, because current car beds have not been
accepted for use in an air bag position. A child under this size
must never be turned to face forward in the front or rear seat, due
to the risk of neck and spinal cord injury; and (3) If there is no
rear seat, this vehicle is not suitable for children under 20 pounds
and one year, given the current state of the art of child
restraints.'' (Docket 74-14-N79-005)
We adopted the requirement without incorporating the SafetyBeltSafe
recommendations, explaining that ``the agency believes that a
requirement specifying that the owner's manual must provide any
necessary precautions regarding the proper positioning of children at
seating positions equipped with air bags to ensure maximum safety
protection for those occupants is sufficient to ensure that information
along the lines identified by SafetyBeltSafe U.S.A. will be provided.''
(58 FR 46557.) From this, it is clear that we did not intend to limit
the information included in the vehicle owner's manual to specific
``installation instructions'' for child restraints per se, but rather,
for the owner's manual to detail all necessary precautions to ensure
safety, such as identification of which seating positions are
appropriate, and which are not, for positioning child restraints
depending upon the orientation of the child restraint, forward or rear
facing. We consider this information to be ``installation
instructions,'' and in fact, most vehicle manufacturers now include
specific warnings against the use of rear-facing child restraints in
air bag-equipped seating positions in their owner's manuals similar to
those suggested by SafetyBeltSafe USA. Kolcraft's argument that the
subject noncompliance is inconsequential on the theory that rear-facing
child restraints should not be used in seating positions equipped with
air bags, and as such, no ``installation instructions'' for such
seating positions need be provided in the vehicle's owner's manual, is
incorrect.
Further, in an issue as sensitive as air bags and infants,
Kolcraft's failure to fully comply with the requirements of Standard
No. 213--specifically, by not including the statement required in
S5.6.1.8 referring owners of vehicles with front passenger side air
bags to their vehicle owner's manual for child restraint installation
instructions for supplemental information in 706,068 of its child
restraints between 1994 and 1997--should not be excused. We do not
accept Kolcraft's explanation as an indication that it exercised
reasonable care in developing its product and associated documentation
when Kolcraft states that ``Kolcraft believes that the S5.6.1.8
requirement was overlooked because the NPRM did not propose the
requirement * * * thus, because it (Kolcraft) was already in compliance
with the requirement contemplated in that subsection of the NPRM,
Kolcraft believes that its personnel did not check that subsection in
the final rule and, therefore, did not discover that the requirement of
a statement referring to the owner's manual had been added in the final
rule.'' We cannot condone Kolcraft's approach given the grave potential
consequences should a parent mistakenly place a child in a rear-facing
child restraint in a seating position equipped with an air bag that
subsequently deploys in a crash.
In consideration of the foregoing, NHTSA has 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.
Authority: 49 U.S.C. 30118(d), 30120(h) 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. 99-13824 Filed 5-28-99; 8:45 am]
BILLING CODE 4910-59-P