[Federal Register Volume 73, Number 229 (Wednesday, November 26, 2008)]
[Notices]
[Pages 72111-72113]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28083]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2002-12479]


Dorel Juvenile Group [Cosco] (DJG); Notice of Appeal of Denials 
of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Request for comments on DJG appeal of denials of 
inconsequential noncompliance.

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SUMMARY: This notice asks for public comments on DJG's appeal of 
NHTSA's denial of its petitions for two inconsequential noncompliances 
with the Federal safety standard for child restraint systems. This 
notice simply summarizes DJG's appeal--it does not represent NHTSA's 
judgment or findings on the appeal. All public comments will be 
considered along with the information in DJG's appeal and other 
relevant information as the agency makes its final decision on these 
petitions for inconsequential noncompliance.

DATES: Comments must be received by NHTSA on or before December 26, 
2008.

ADDRESSES: You may submit comments to the docket number identified in 
the heading of this document by any of the following methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov.
    Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, M-30, U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery or Courier: U.S. Department of 
Transportation, West Building, Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m. Monday 
through Friday, except Federal holidays.
     Fax: 1-202-493-2251.
    Regardless of how you submit your comments, you should mention the 
docket number of this document.

SUPPLEMENTARY INFORMATION: Dorel Juvenile Group (DJG), of Columbus, 
Indiana, the parent company manufacturing Cosco brand child restraints, 
has appealed a decision by the National Highway Traffic Safety 
Administration that denied its two applications for a determination 
that its noncompliance with Federal Motor Vehicle Safety Standard 
(FMVSS) No. 213, ``Child Restraint Systems'' is inconsequential to 
motor vehicle safety. This notice of receipt of DJG's appeal is 
published in accordance with NHTSA's regulations (49 CFR 556.7 and 
556.8) and does not represent any agency decision or other exercise of 
judgment concerning the merits of the appeal.
    Notice of receipt of the petitions for inconsequential 
noncompliance was published on July 30, 2002 and December 3, 2002 in 
the Federal Register (67 FR 49387 and 67 FR 72025). On July 18, 2008, 
NHTSA published a notice in the Federal Register denying DJG's 
petitions (73 FR 41397), stating that the petitioner had not met its 
burden of persuasion that the noncompliance is inconsequential to motor 
vehicle safety.
    Affected are a total of 3,957,826 child restraints representing 39 
models produced from January 2000 through September 30, 2001 due to 
noncompliance with the post-abrasion tether webbing strength 
requirement and 54,400 child restraints representing 14 models produced 
from March 15, 2002 through August 1, 2002 due to noncompliance with 
the post-light exposure harness webbing strength requirement. The 
noncompliant tether webbing retained only 55 percent of its new webbing 
strength when subjected to the abrasion test and so failed to meet the 
75 percent strength retention requirement of FMVSS No. 213. The 
noncompliant harness webbing retained only 37 percent of its new 
webbing strength when exposed to carbon arc light and so failed the 60 
percent strength retention requirement in FMVSS No. 213.

Post-Abrasion Webbing Strength Petition, Denial, and Appeal Summary

    In its original post-abrasion test strength retention petition, DJG 
asserted that the noncompliance is inconsequential to motor vehicle 
safety because its unabraded webbing strength as well as its post-
abrasion webbing strength was sufficiently high and that its abraded 
strength was far higher than the anchorage strength requirement 
specified in FMVSS No. 225. In addition, DJG asserted that the abraded 
webbing strength test procedure was flawed because a minimum abraded 
breaking strength was not specified.
    In its denial, NHTSA made the point that both the unabraded webbing 
strength and the degradation rate requirements are important from a 
safety perspective. NHTSA determined that the lack of sufficient 
breaking strength retention after abrasion signals the distinct 
probability that the webbing strength would be insufficient throughout 
a lifetime of use. The high

[[Page 72112]]

degradation rate of the DJG tether webbing could abrade to the point 
where the webbing strength is lower than the tether anchor strength, 
providing for an unsafe connection to the vehicle. In consideration of 
the foregoing, NHTSA decided that DJG did not meet its burden of 
persuasion that this noncompliance was inconsequential to motor vehicle 
safety.
    In its appeal from NHTSA's denial, DJG stated that NHTSA did not 
respond to all the arguments and data in the denial decision and 
focused instead on the ``high degradation rate'' of the webbing and 
that it may not last the life of these child restraints. DJG states 
that according to NHTSA's own recommendation for the useful life of 
child restraints, the majority of the subject noncompliant child 
restraints are already beyond their useful life, given the passage of 
time between the filing of DJG's petition and the denial decision. DJG 
asserts that most of the child restraints at issue are now more than 
seven years old and beyond their useful life, yet there have been no 
complaints of tether webbing abrasion or tether webbing failure in 
crashes. DJG further states that the real world performance of these 
restraints contradicts NHTSA's assertion that there is a distinct 
probability that the tether webbing strength would be insufficient 
throughout a lifetime of use.
    DJG also provided tether webbing strength test data of used child 
restraints from the affected population to demonstrate that the tether 
webbing is not being abraded in the real world to a strength level 
corresponding to the post-abrasion test strength of 10,903 N. DJG 
maintains that the tether webbing strength after 6 to 8 years of use 
ranges from 82.4 to 99.6 percent of initial breaking strength. DJG 
states that these test results also show that the tether webbing from 
compliant and noncompliant used child restraints performed comparably, 
and demonstrated no problematic degradation.
    DJG argued in their appeal of NHTSA's denial that NHTSA had 
previously granted a petition for a determination of inconsequentiality 
with respect to tether webbing on certain Evenflo child restraints 
reasoning that the tensile strength of abraded Evenflo tethers were 
greater than the measured tensile loads in sled tests and that the 
Evenflo tether webbing would have complied with the agency's regulation 
in effect from 1971 to 1979 for both unabraded and abraded webbing for 
a Type 3 belt. DJG states that they had provided test data in the 
initial petition to demonstrate that the same two reasons for which 
NHTSA granted the application of inconsequential noncompliance applies 
to the subject noncompliant DJG child restraints and therefore, NHTSA 
should have also granted the DJG petition.
    Finally, DJG cites docketed test results in connection with NHTSA's 
rulemaking on minimum breaking strength which demonstrates that DJG's 
tether webbing post-abrasion breaking strength was significantly higher 
than the new and post-abrasion breaking strength for at least one 
Britax model in the market at the time. DJG believes that since this 
Britax child restraint complied with the FMVSS No. 213 requirements, 
their subject child restraints with a post-abrasion tether breaking 
strength of more than two times that of the Britax child restraint 
poses no consequential safety risk.

Post Light Exposure Petition, Denial, and Appeal Summary

    In its original post-light exposure test strength retention 
petition, DJG asserted that the noncompliance is inconsequential to 
motor vehicle safety because its light-exposed harness webbing breaking 
strength of 4,539 N far exceeded the corresponding tensile loads in 30 
mph dynamic sled tests.
    DJG argued that while the webbing (made of nylon fabric) was 
noncompliant when exposed to carbon arc light filtered by a Corex-D 
filter (tested according to the standard's specifications), the webbing 
was compliant when exposed to carbon arc light filtered by a soda-lime 
glass filter (specified by the standard for use only for polyester 
fabric). In addition, DJG asserted that carbon arc light does not have 
the same spectral characteristics as sunlight and delivers excessive 
relative photon energy to the test specimen in the ultraviolet and low 
visual spectrum compared to natural sunlight. DJG contends that light 
exposure testing using carbon arc light systems is obsolete since, in 
recent years, these systems have been replaced by Fluorescent UV or 
Xenon arc systems that resemble natural sunlight characteristics more 
closely than carbon arc systems. DJG stated that the harness webbing 
retained 93.5 percent of its initial breaking strength when it was 
exposed to a xenon arc lamp for 300 hours (3 times longer than that 
required by the standard).
    In its denial, NHTSA noted that the test conditions in FMVSS No. 
213 reflect the concern that child restraints will withstand even the 
most severe crashes which are well above 30 mph. Therefore, NHTSA did 
not find DJG's assertion that its light exposed harness webbing 
strength far exceeds forces in a 30 mph dynamic crash test to be 
persuasive evidence of the noncompliance being inconsequential to motor 
vehicle safety. NHTSA also pointed out that carbon arc light filtered 
by a soda-lime glass filter is not appropriate for webbing made of 
nylon and so the DJG compliant data was based on testing using an 
inappropriate filter, and not conducted according to FMVSS No. 213 
requirements. NHTSA believes that the test results obtained by the 
carbon arc test method are an appropriate reflection of the strength 
capabilities of the DJG webbing and stated that the use of xenon arc 
lamp for weathering tests of glazing materials under FMVSS No. 205 does 
not mean that the carbon arc is not indicative of the sunlight spectral 
power distribution or that it produces invalid weathering results for 
webbing materials.
    In its appeal of NHTSA's denial, DJG reiterated and emphasized the 
same points made in the original petition. DJG stated that NHTSA's 
assertion on the use of carbon arc source in light exposure testing was 
not substantiated and is contrary to the Agency's own conclusion in its 
recent rulemaking to amend FMVSS No. 205. In the final rule amending 
that standard, NHTSA concluded that a xenon arc light source had 
characteristics closer to natural sunlight than carbon arc light 
source. DJG noted that natural sunlight characteristics are the same 
for glazing material and harness webbing and so this implies that the 
xenon arc light source is more appropriate for use in the webbing light 
exposure tests.
    DJG pointed out that NHTSA had previously relied on 30 mph crash 
test data to grant inconsequentiality petitions with respect to child 
restraints such as the Evenflo tether webbing described earlier that 
failed to meet the post-abrasion test requirements. DJG also presented 
docketed information of NHTSA's compliance test data which showed that 
the Safeline child restraints had post-light exposure strengths that 
were lower than that of the DJG webbing, yet the Safeline restraints 
complied with the standard and were deemed to provide an adequate level 
of safety because they had a very low initial breaking strength. DJG 
asserts that this Safeline data demonstrates that DJG's arguments are 
not theoretical and should not have been dismissed by NHTSA.
    Lastly, DJG states that the real world experience of the 
noncompliant child restraints disproves NHTSA's assertion that the high 
degradation rate of the harness webbing signals a distinct probability 
that the webbing strength

[[Page 72113]]

would be insufficient throughout its use. DJG noted that though these 
restraints are now more than seven years old, and generally past their 
useful life, there have been no complaints regarding harness 
degradation in these restraints or any known failures of the harness 
webbing in crashes.
    In conclusion, DJG states that real world experience of child 
restraints at issue in this proceeding has proven that the non-
compliant webbing has performed satisfactorily for more than seven 
years in the field. In addition, DJG contends that recent testing of 
the breaking strength of the tether webbing in used child restraints 
confirms that the webbing is not degrading in use from abrasion, 
exposure to light or any other reason, and is retaining a very high 
percentage of its original strength. Therefore, DJG believes that NHTSA 
should grant DJG's appeal of the decision to deny its petitions for a 
determination that the noncompliance of its tether and harness webbing 
is inconsequential to safety.

Public Comments

    Interested persons are invited to submit written data, views, and 
arguments on the petition appeal described above. The petition appeal, 
supporting materials, and all comments received before the close of 
business on the closing date indicated in the beginning of this notice 
will be filed and will be considered. All comments and supporting 
materials received after the closing date will also be filed and will 
be considered to the extent possible. When the petition appeal is 
granted or denied, notice of the decision will be published in the 
Federal Register pursuant to the authority indicated below.

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

    Issued on: November 20, 2008.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. E8-28083 Filed 11-25-08; 8:45 am]
BILLING CODE 4910-59-P