[Federal Register Volume 66, Number 187 (Wednesday, September 26, 2001)]
[Notices]
[Pages 49256-49258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24088]



[[Page 49256]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-99-6271; Notice 2]


Safeline Corporation; Denial of Applications for Decision of 
Inconsequential Noncompliance

    Safeline Corporation, of Denver, Colorado, has determined that a 
number of child restraint systems fail to comply with sections of 
Federal Motor Vehicle Safety Standard (FMVSS) No. 213, ``Child 
Restraint Systems,'' and has filed appropriate reports pursuant to 49 
CFR Part 573, ``Defects and Noncompliance Reports.'' Safeline 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 
noncompliances are inconsequential to safety.
    Safeline has identified two noncompliances, and has filed separate 
applications for each of these conditions. Notice of receipt of the 
applications was published on October 7, 1999, in the Federal Register 
(64 FR 54727). We received one comment, from the Center for Auto Safety 
(CAS), which opposed granting the applications.
    Condition No. 1: Omission of Air Bag Warning Label. FMVSS No. 213 
has required rear-facing child restraints to be labeled with an air bag 
warning since August 1994 (59 FR 7643). Beginning on August 15, 1994, 
S5.5.2(k) of FMVSS No. 213 required all rear-facing child restraint 
systems to have a label warning the consumer not to place the rear-
facing child restraint system in the front seat of a vehicle that has a 
passenger side air bag, and a statement describing the consequences of 
not following the warning. These statements were required to be on a 
red, orange, or yellow contrasting background, and placed on the side 
of the restraint designed to be adjacent to the front passenger door of 
a vehicle, visible to a person installing the rear-facing child 
restraint system in the front passenger seat.
    This labeling requirement was revised in 1996 (61 FR 60206) to 
require an enhanced, larger, and much more prominent warning on a 
distinct label. In the case of each child restraint system that can be 
used in a rear-facing position and is manufactured on or after May 27, 
1997, S5.5.2(k)(4) of FMVSS No. 213 requires this label to be 
permanently affixed to the outer surface of the cushion or padding in 
or adjacent to the area where a child's head would rest, so that the 
label is plainly visible and readable. The text portion of this label 
consists of a heading reading ``WARNING'', with the following messages 
under that heading:
    DO NOT place rear-facing child seat on front seat with air bag.
    DEATH OR SERIOUS INJURY can occur.
    The back seat is the safest place for children 12 and under.

Opposite the text, the warning label has a pictogram showing an 
inflating air bag striking a rear-facing child seat, surrounded by a 
red circle with a slash across it. The label must also conform to size 
and color requirements specified in S5.5.2(k)(4)(i) through 
S5.5.2(k)(4)(iii).
    Safeline has notified us that between June 14, 1997 and September 
15, 1997, it sold between 750 and 900 Sit'n'Stroll Child Restraints, 
Model 3240, that do not have the revised air bag warning label required 
by S5.5.2(k)(4) of FMVSS No. 213. The noncompliance occurred because 
the seat cover assemblies for the affected units were manufactured 
prior to May 27, 1997, consistent with Safeline's normal production 
cycle and prior to the effective date of the new requirement. These 
work in progress seat cover assemblies were then used in final assembly 
subsequent to May 27, 1997.
    Safeline supports its application for inconsequential noncompliance 
with the following:

    Because of the significant lapse in time since the 
noncompliance, the products are no longer being used in the rear 
facing seating configuration. The purpose of the air bag warning 
statement is to prevent children from being placed rear facing in 
the front seat of a vehicle equipped with a passenger side air bag. 
Since it is recommended children remain rear facing for at least 12 
months, and it has been 24 months since the products have been sold, 
it is likely these units are no longer being used in the rear facing 
position.
    Seat cover subassemblies were manufactured prior to May 27, 
1997.
    Quantity of units not complying with amended rule is small. 
Between 750 and 900 units were sold that do not comply with the 
requirements.
    Because existing warning statements are found on the labels of 
the product and in the instruction manual. While Safeline 
Corporation strongly concurs the new air bag warning statement is an 
effective enhancement in the proper usage of child restraint 
systems, the previously existing warnings clearly state the hazards 
of placing a rear facing child restraint in a seating position with 
an air bag. Additionally, the exposure provided by the widespread 
national media campaign has been effective in educating parents of 
the dangers regarding the placement of rear facing child restraint 
systems in vehicles with air bags.
    The probability of a second hand owner receiving information 
through a recall notification is unlikely. Thus, the likelihood is 
small that a second hand owner, using the product in the rear facing 
position, would actually receive the recall notification.

Discussion

    We are denying Safeline's application for the following reasons:
    In an issue critical to safety as air bags and infant seating, 
Safeline's failure to incorporate the air bag warning label required in 
S5.5.2(k) cannot be deemed as inconsequential to safety. The potential 
danger of passenger-side air bags and children restrained in rear-
facing child restraints placed in the front seat of vehicles has been 
of utmost concern to the agency. To address this concern, in 1994 we 
amended both FMVSS No. 213 and FMVSS No. 208 to require manufacturers 
of child restraints and motor vehicles to warn owners against placing 
rear-facing child restraints in front seats of vehicles equipped with 
passenger-side air bags. The requirements addressing warning labels, 
printed instructions, and information in the vehicle owner's manual 
pertaining to air bags and child restraints are necessary to maximize 
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 rear-
facing child restraints in air bag-equipped seating positions.\1\
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    \1\ As noted above, FMVSS No. 213 has required rear-facing child 
restraints to be labeled with an air bag warning since August 1994 
(59 FR 7643). The labeling requirement was revised in 1996 (61 FR 
60206) to require an enhanced and much more prominent warning on a 
distinct label. The noncomplying units have labels that conform to 
the earlier requirements.
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    We have also worked 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, and other means, the 
child passenger safety community has taken measures to educate the 
public regarding the detrimental effects of an air bag when it strikes 
the seat back of a rear-facing infant restraint.
    Despite these concerted efforts, between 1995 and March 1, 2001, 19 
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. We are aware of another eight 
children who have

[[Page 49257]]

sustained serious, but nonfatal, injuries. These numbers might have 
been even higher had an enhanced warning label not been provided. We 
cannot excuse Safeline's acknowledged noncompliance of using seat pads 
without the required air bag warning label, given the grave potential 
consequences should a parent, failing to be warned 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.
    While Safeline acknowledges that the noncompliance has the 
potential to reduce the likelihood of a parent correctly installing the 
product, and concurs that the new air bag warning statement is an 
effective enhancement in the proper usage of child restraint systems, 
it contends that ``given the small number of units without the airbag 
warning statement, the redundancy of the warning on the product, the 
overall nationwide media campaign on child restraint/airbag 
interaction, and time elapsed since the product was first used by the 
consumer, this noncompliance does not create a significant risk or any 
potentially negative consequences to the public.'' Safeline's 
contention that the ``small number'' of noncomplying units supports 
granting its inconsequentiality petition is without merit. In ruling on 
inconsequentiality petitions, we consider the potential consequences of 
the noncompliance, rather than the number of vehicles or items of 
equipment that are affected. In the case of this noncompliance, the 
consequence of a parent not knowing of the dangers of placing a rear-
facing child restraint at a seating position equipped with an air bag 
are potentially fatal. Thus, we do not accept the argument that this 
noncompliance is inconsequential for safety because of the relatively 
small number of units involved.
    In its comments, the Center for Auto Safety (CAS) disagreed with 
Safeline's claim that ``because of the significant lapse in time since 
the noncompliance, the products are no longer being used in the rear-
facing seating configuration.'' CAS noted that:

    Safeline fails to take into account the fact that several 
families may have had subsequent births in the past twenty-four 
months and choose to use the Sit'n'Stroll for these infants. Nor 
does Safeline consider other real life scenarios, in which infants 
under the age of twelve months are potentially using the 
Sit'n'Stroll in its rear-facing configuration. For instance, persons 
who are child care providers may be using the Sit'n'Stroll to 
transport multiple infants. Also, several families using the 
Sit'n'Stroll may have sold the child safety seat or donated it to a 
state agency or organization for another family to use. Therefore, 
the fact that twenty-four months have elapsed since the distribution 
of the nonconforming child seats onto the market is an insignificant 
fact.

    We believe that the points raised by CAS are valid. Accordingly, we 
are not convinced that Safeline's claim that the nonconforming 
Sit'n'Strolls ``likely * * * are no longer being used in the rear 
facing position.'' For the aforementioned reasons, this aspect of the 
petition is denied.\2\
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    \2\ Safeline also suggests that its petition should be granted 
because ``[t]he probability of a second hand owner receiving 
information through a recall notification is unlikely. Thus, the 
likelihood is small that a second hand owner, using the product in a 
rear facing position, would actually receive the recall 
notification.'' We reject this argument. The argument implies that 
even the most egregious noncompliance or defect should be 
inconsequential if the item of equipment is owned ``second hand.'' 
Such an argument has no merit and has no bearing on whether a 
noncompliance is inconsequential to safety. Further, Safeline can 
make careful effort to ensure that as many owners as possible 
receive notice of a recall. Safeline would be required to directly 
notify Sit'n'Stroll owners of the recall (even second hand owners) 
who have registered themselves with Safeline pursuant to the owner 
registration program which FMVSS No. 213 requires manufacturers to 
implement.
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    Condition No. 2: Certification of Child Restraint to 25 Pounds in 
Rear-Facing Position. S7.1(c) of FMVSS No. 213 states that:

    A child restraint that is recommended by its manufacturer in 
accordance with S5.5 for use either by children in a specified mass 
range that includes any children having a mass greater than 10 kg 
but not greater than 18 kg, or by children in a specified height 
range that includes any children whose height is greater than 850 mm 
but not greater than 1100 mm, is tested with a 9-month-old test 
dummy conforming to part 572 subpart J, and a 3-year-old test dummy 
conforming to part 572 subpart C and S7.2, provided, however, that 
the 9-month-old test dummy is not used to test a booster seat.

    Safeline recommends use of its Sit'n'Stroll rear-facing for 
children weighing up to 25 lbs. In October 1998, we requested that 
Safeline identify the dummy that was utilized to evaluate the 
Sit'n'Stroll child restraint, and provide a copy of each test report 
and any engineering analysis that formed the basis of its certification 
of the Sit'n'Stroll to the performance requirements of FMVSS No. 213 
for recommended usage greater than 22 pounds in the rear-facing seating 
configuration. In response, Safeline submitted test data from Calspan 
Corporation (now Veridian Engineering) and the University of Michigan 
which reflected failures of seat back angle requirements and/or 
structural integrity requirements in every instance where a 3-year-old 
dummy was positioned in the rear-facing position. However, passing test 
results were achieved for these requirements with a 20-pound TNO dummy 
weighted to 25 pounds and positioned in the rear-facing position. 
Safeline concluded that the Sit'n'Stroll child restraint model ``could 
safely be used in the rear-facing position at a weight not to exceed 25 
pounds.''
    In June 1999, we notified Safeline that the Sit'n'Stroll child 
restraint does not appear to meet the applicable requirements of FMVSS 
No. 213 with the 3-year-old dummy in the rear-facing position. All 
Sit'n'Stroll child restraints, model 3240, manufactured by Safeline 
between November 1996 and June 1999 have been recommended for use for 
up to 25 pounds in the rear-facing position. A total of 21,759 units 
are affected by this noncompliance.
    Safeline supports its application for inconsequential noncompliance 
with the following:

    The Sit'n'Stroll meets all rear facing testing criteria using a 
20-pound TNO dummy weighted to 25 pounds. Our testing has shown that 
an infant dummy weighted to 25 pounds had minimal additional affects 
on the seat back rotation angle results relative to the dummy 
specified in FMVSS No. 213. The maximum seat back rotation angle we 
have experienced in dynamic testing is significantly less than the 
allowable 70-degree maximum. These results provided the confidence 
to previously recommend the usage of the Sit'n'Stroll for children 
weighing no more than 25 pounds in the rear facing seating position. 
Safeline Corporation is aware of no incidents, claims, reports, 
injuries, fatalities or warranty issues of children 22 to 25 pounds 
being injured or harmed in any way by the extended use of the 
Sit'n'Stroll.
    The large surface area of the base of the Sit'n'Stroll reduces 
the protrusion of the child restraint into the automobile's seat. 
The Sit'n'Stroll's unique design--the wide, uninterrupted base 
surface area--relative to other convertible child restraints, 
produces seat back rotation angle results well below the maximum 
allowable criteria by more effectively distributing the dynamic 
forces.

Discussion

    We are denying Safeline's application for the following reasons:
    FMVSS No. 213 specifies performance requirements that a child 
restraint must meet when tested with dummies representing the range of 
children for which that child restraint is recommended. Under FMVSS No. 
213's requirements, child restraints recommended for use by children 
weighing over 22 lb are tested with a test dummy representing a 3-year-
old child. So tested, they must meet all performance requirements of 
the standard, including limits on how far they allow the rear-facing 
dummy's head to extend beyond and above the

[[Page 49258]]

top of the child restraint in a 30-mph dynamic test. (This document 
refers to these limits as the head excursion limits.) The head 
excursion limits are set forth in S5.1.3.2 of FMVSS No. 213, as 
follows:

    S5.1.3.2. Rear-facing child restraint systems. In the case of 
each rear-facing child restraint system, all portions of the test 
dummy's torso shall be retained within the system and neither of the 
target points on either side of the dummy's head and on the 
transverse axis passing through the center of mass of the dummy's 
head and perpendicular to the head's midsagittal plane, shall pass 
through the transverse orthogonal planes whose intersection contains 
the forward-most and top-most points on the child restraint system 
surfaces.

    The standard permits manufacturers to recommend rear-facing child 
restraints for children weighing more than 10 kg (22 lb). However, in 
making its certification of compliance with the standard, a 
manufacturer must ensure that the restraint meets the requirements of 
FMVSS No. 213 when tested with the appropriate test dummy (i.e., in the 
case at hand, the 3-year-old dummy). The test procedure incorporating 
the dummy has been determined to be a reliable and repeatable method 
for objectively determining a system's performance in an actual crash. 
The test procedure meets the need for motor vehicle safety by ensuring 
that rear-facing child restraints are able to maintain structural 
integrity when restraining heavy infants and safely limit head 
excursion of the children in a crash.\3\
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    \3\ There are a number of rear-facing restraints on the market 
today that are recommended for children weighing 25 lb, and 
sometimes up to 30 lb. The 3-year-old dummy is used to test these 
restraints.
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    Safeline knew that its product had to meet FMVSS No. 213 when 
tested with the 3-year-old dummy. On August 18, 1992, in response to a 
letter from Safeline, the agency sent the manufacturer an 
interpretation of FMVSS No. 213 affirming that the 3-year-old test 
dummy must be used to test Safeline's rear-facing restraints. Other 
agency interpretation letters and Federal Register rulemaking documents 
issued before and after the August 1992 letter have also affirmed use 
of the 3-year-old test dummy to test child restraints designed for 
children weighing more than 22 lb (e.g., April 22, 1992 letter to 
Century Products Company; April 29, 1999 denial of petition for 
rulemaking from SafetyBelt Safe USA (64 FR 23037)). NHTSA's 1992 letter 
to Safeline called Safeline's attention to the possibility that the 
restraint's seat back might be too low to enable the restraint to meet 
the head excursion limit when dynamically tested rear-facing with the 
3-year-old dummy, and suggested that Safeline consider raising the 
height of the seat back to avoid any potential compliance problem with 
the excursion limit. Safeline's decision to forego testing with the 3-
year-old dummy following our letter and the test failures led to its 
noncompliance.
    As noted above, in October 1998 we requested that Safeline identify 
the dummy that was utilized to evaluate the Sit'n'Stroll child 
restraint and provide a copy of each test report and any engineering 
analysis that formed the basis of Safeline's certification of the 
Sit'n'Stroll for recommended usage greater than 22 pounds in the rear-
facing configuration. Safeline provided copies of five test reports 
that documented a series of 12 tests performed at the Calspan 
Corporation and at the University of Michigan. During these tests, the 
Sit'n'Stroll was tested seven times in the rear-facing configuration 
with the 3-year-old dummy conforming to part 572 subpart C as 
prescribed in FMVSS No. 213. In each instance, there was a structural 
failure of the lap belt anchor tabs on the child restraint. Because the 
vehicle lap belt disengaged from the anchor tabs, there was excessive 
seat back rotation during the dynamic test. These results would have 
clearly constituted failure of the Sit'n'Stroll to meet the performance 
criteria of FMVSS No. 213 if they had been conducted as compliance 
tests.\4\
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    \4\ The Sit'n'Stroll was tested only three times with a 9-month-
old dummy weighted to 25-28 pounds (the 9-month-old dummy typically 
weighs 20 pounds), twice in the rear-facing configuration and once 
in the forward-facing configuration. In each of these three tests, 
the restraint performed acceptably when evaluated in accordance with 
the procedures of FMVSS No. 213.
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    Given that meeting FMVSS No. 213 is based upon testing conducted 
with a 3-year-old dummy for child restraints recommended for use by 
children weighing more than 22 pounds but less than 40 pounds, and that 
Safeline provided test results showing that the Sit'n'Stroll failed to 
meet the performance requirements of FMVSS No. 213 in each of seven 
tests conducted with the Sit'n'Stroll positioned rear-facing, Safeline 
had a compelling basis upon which to decide that there was a 
noncompliance and to file a Part 573 report. There are unknown safety 
consequences at this time in using a weighted 20-pound test dummy to 
determine the suitability of a restraint for infants weighing up to 25 
pounds. The consequences, should the Sit'n'Stroll fail structurally 
resulting in excessive seat back rotation as was shown in Safeline's 
own testing, are potentially serious. The noncompliance engenders 
concern as to whether the Sit'n'Stroll can maintain structural 
integrity or adequately limit the head excursion of children weighing 
up to 25 lb or otherwise protect them. For the aforementioned reasons, 
we cannot find the noncompliance to be inconsequential to safety.
    In consideration of the foregoing, we have decided that the 
applicant has not met its burden of persuasion that the noncompliances 
it describes are inconsequential to safety. Accordingly, its 
applications are hereby denied. Further, Safeline must now fulfill its 
obligation to notify and remedy under 49 U.S.C. 30118(d) and 30120(h).

    Authority: 49 U.S.C. 30118(d) and 30120(h); delegations of 
authority at 49 CFR 1.50 and 501.8

    Issued on: September 20, 2001.
Stephen R. Kratzke,
Associate Administrator for Safety Performance Standards.
[FR Doc. 01-24088 Filed 9-25-01; 8:45 am]
BILLING CODE 4910-59-P