[Federal Register Volume 78, Number 229 (Wednesday, November 27, 2013)]
[Notices]
[Pages 71028-71030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28455]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2013-0080; Notice 2]


Combi USA, Inc., Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice of Petition Denial.

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SUMMARY: Combi USA, Inc., (Combi),\1\ has determined that certain model 
child restraint systems manufactured between 2007 and 2012 do not fully 
comply with paragraph 5.4.1.2(a) of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 213, Child Restraint Systems. (49 CFR 571.213). 
Combi has filed an appropriate report dated June 9, 2013, pursuant to 
49 CFR Part 573, Defect and Noncompliance Responsibility and Reports.
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    \1\ Combi is a U.S. company that manufactures child restraint 
systems.
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule 
implementing those provisions at 49 CFR part 556, Combi has petitioned 
for an exemption from the notification and remedy requirements of 49 
U.S.C. Chapter 301 on the basis that this noncompliance is 
inconsequential to motor vehicle safety. The National Highway Traffic 
Safety Administration (NHTSA) published a notice of receipt of the 
petition, with a 30-day public comment period, on August 9, 2013, in 
the Federal Register (78 FR 48767). No comments were received in 
response to Combi's petition.
    To view the petition and all supporting documents log onto the 
Federal Docket Management System (FDMS) Web site at: http://www.regulations.gov/. Then follow the online search instructions to 
locate docket number ``NHTSA-2013-0080.''

FOR FURTHER INFORMATION CONTACT: For further information on this 
decision

[[Page 71029]]

contact Mr. Tony Lazzaro, Office of Vehicle Safety Compliance, the 
National Highway Traffic Safety Administration (NHTSA), telephone (202) 
366-5304, facsimile (202) 366-7002.
    Relevant Requirements of FMVSS No. 213: FMVSS No. 213 paragraph 
S5.4.1.2(a) requires, in pertinent part, that ``the webbing of belts 
provided with a child restraint system and used to attach the system to 
the vehicle or to restrain the child within the system shall-- (a) Have 
a minimum breaking strength for new webbing of . . . not less than 
11,000 N in the case of the webbing used to secure a child to a child 
restraint system when tested in accordance with S5.1 of FMVSS No. 
209.''
    The term ``new webbing'', is ``webbing that has not been exposed to 
abrasion, light, or micro-organisms.'' (49 CFR Sec.  571.213, 
S5.4.1.2(a)).
    Child Restraints Involved: Affected are 23,357 Combi Coccoro 2009-
2012 model child restraint systems (model 8820), 5,391 Combi 
Zeus 360 2009-2012 model child restraint systems (model 8836), 
and 4,391 Combi Zeus Turn 2007-2009 model child restraint systems 
(model 8815).
    Noncompliance: Combi acknowledges that the affected child restraint 
systems do not meet the minimum breaking strength requirements of FMVSS 
No. 213 paragraph 5.4.1.2(a). Combi submitted a preliminary 
Noncompliance Information Report on June 9, 2013. Combi submitted a 
supplemental Noncompliance Information Report on July 1, 2013.

Summary of Combi's Analysis and Arguments

    Combi described the noncompliance as follows:

    Combi USA, Inc. has identified a noncompliance with certain 
Model 8220 Coccoro Convertible child restraints when the 
webbing assembly within the restraint is subjected to the minimum 
breaking strength requirements as specified in FMVSS No. 213 section 
5.4.1.2 (a).

    Combi filed the same statement describing the noncompliance for the 
Zeus Turn and Zeus 360 models of child restraint systems. In support of 
its petition, Combi states that as part of NHTSA's 2012 safety 
compliance testing of the subject Coccoro child restraint system 
harness webbing, the breaking strength yielded results of 8,990 N, 
9,170 N, and 9,300 N. As noted earlier, paragraph 5.4.1.2(a) of FMVSS 
No. 213 requires a minimum breaking strength of 11,000 N for webbing 
used to restrain a child within a child restraint system. Combi also 
noted that all of the subject Coccoro child restraint systems were 
produced with the identical harness system as tested by NHTSA in 2012.
    Combi further noted that all of the subject Zeus 360 and Zeus Turn 
child restraint systems were produced with the same embedded stop 
button within the harness system as the Coccoro child restraints which 
were tested by NHTSA in 2012.
    Combi stated in its petition that the production of the Zeus Turn 
child restraint system ended on March 25, 2009, and that the production 
of the Zeus 360 child restraint system ended on May 24, 2012. Combi 
also explained that it has implemented an engineering modification 
which removes the embedded stop button to all of the Coccoro child 
restraints produced since January 29, 2013.
    In support of its petition, Combi stated that it has not received 
notice of any partial or complete breakage or tearing of the harness 
system in the Coccoro and Zeus child restraints. In further support of 
its petition, Combi provided data based on its own dynamic testing of 
the Coccoro and Zeus 360 child restraint systems. According to Combi, 
its testing attempted to determine the crash force loading on the 
harness system of the Coccoro and Zeus 360 child restraints when 
subjected to the FMVSS No. 213 dynamic crash pulse (30 mph crash pulse) 
and the NCAP pulse (35 mph crash pulse). Combi's own test results 
showed load cell values ranging from approximately 1,150 N to 1,900 N. 
Combi stated that these testing results confirm that the harness 
assemblies of the subject Coccoro, Zeus 360, and Zeus Turn child 
restraints will not fail in a real world crash under any circumstances, 
as the forces acting on the harness system in dynamic testing are less 
than 22 percent of the breaking strength test results determined by 
NHTSA. Combi therefore asserts that the harness assemblies of the 
subject Coccoro and Zeus child restraints present no safety risk.
    Finally, Combi asserts that given the relatively small number of 
subject Coccoro, Zeus 360, and Zeus Turn child restraints, the 
effectiveness of any notification campaign regarding this technical 
noncompliance will be limited. Combi further states that any 
noncompliance notice campaign may result in customers deciding to 
discontinue using their Coccoro and Zeus child restraints for a period 
of time, adding a risk of injury where none exists as a result of the 
noncompliance of the harness webbing of the subject Coccoro and Zeus 
child restraints with the minimum breaking strength requirements of 
FMVSS No. 213 S5.4.1.2(a).
    In summary, Combi contends that the noncompliance is 
inconsequential to motor vehicle safety, and that its petition to 
exempt it from providing notification of noncompliance as required by 
49 U.S.C. 30118 and remedying the noncompliance as required by 49 
U.S.C. 30120, should be granted.
    Comments: NHTSA published a notice of the petition in the Federal 
Register to allow an opportunity for members of the public to present 
information, views, and arguments on the subject petition. As noted 
earlier, no comments were received. The Agency notes that an absence of 
opposing argument and data does not require the Agency to grant the 
petition.\2\
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    \2\ See Dorel Juvenile Group; Denial of Appeal of Decision on 
Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010).
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NHTSA'S Consideration of Combi's Inconsequentiality Petition

    General Principles: Federal Motor Vehicle Safety Standards are 
adopted only after the Agency has determined, following notice and 
comment, that the standards are objective and practicable and ``meet 
the need for motor vehicle safety.'' See 49 U.S.C. 30111(a). Thus, 
there is a general presumption that the failure of a motor vehicle or 
item of motor vehicle equipment to comply with a FMVSS increases the 
risk to motor vehicle safety beyond the level deemed appropriate by 
NHTSA through the rulemaking process. To protect the public from such 
risks, manufacturers whose products fail to comply with a FMVSS are 
normally required to conduct a safety recall under which they must 
notify owners, purchasers, and dealers of the noncompliance and provide 
a remedy without charge. 49 U.S.C. 30118-30120.
    However, Congress has recognized that, under some limited 
circumstances, a noncompliance could be ``inconsequential'' to motor 
vehicle safety. ``Inconsequential'' is not defined either in the 
statute or in NHTSA's regulations. Rather, the Agency determines 
whether a particular noncompliance is inconsequential to motor vehicle 
safety based on the specific facts before it. The relevant issue in 
determining inconsequentiality is whether the noncompliance in question 
is likely to significantly increase the safety risk to individuals 
involved in accidents or to individual occupants who experience the 
type of injurious event against which the standard was designed to 
protect. See

[[Page 71030]]

General Motors Corp.; Ruling on Petition for Determination of 
Inconsequential Noncompliance, 69 FR 19897 (Apr. 14, 2004).
    In order to demonstrate inconsequentiality, the petitioner must 
demonstrate that the noncompliance ``does not create a significant 
safety risk.'' See Dorel Juvenile Group; 75 FR at 510, quoting Cosco, 
Inc., denial of Application for Decision of Inconsequential 
Noncompliance, 64 FR 29408, 29409 (June 1, 1999). There have been 
instances in the past where NHTSA has determined that a manufacturer 
has met its burden of demonstrating that a noncompliance is 
inconsequential to safety. These include a noncompliance concerning 
labeling where the discrepancy with the safety standard was determined 
not to lead to any misunderstanding, especially where sources of the 
correct information were available (e.g. in the vehicle owner's 
manual). See General Motors Corp., 69 FR at 19899.
    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a safety standard is more 
substantial and difficult to meet, and the Agency has not found many 
noncompliances related to a safety standard to be inconsequential. See 
Id.
    Combi's Argument and NHTSA's Response: In support of its petition, 
Combi makes several different arguments. First, Combi argues that the 
company has not received notice of any partial or complete breakage or 
tearing of the harness system in any Coccoro and Zeus child restraints. 
The Agency, however, does not consider the absence of complaints to 
show that the noncompliances are inconsequential to safety. The absence 
of a complaint does not mean there have not been any problems or 
failures, and it does not mean that there will not be failures in the 
future. See Dorel Juvenile Group, Denial of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 53189, 53190 (August 28, 2013).
    Second, Combi argues that, based on measured forces acting on the 
harness system when subjected to FMVSS No. 213 and NCAP crash pulse 
dynamic testing, the subject child restraints present no motor vehicle 
safety risk since the measured forces acting on the harness system are 
less than 22 percent of the breaking strength results determined by 
NHTSA. The Agency is not persuaded by this argument. NHTSA does not 
simply have one performance test, a dynamic test. NHTSA has multiple 
performance tests because a single test does not address the range of 
safety concerns with child restraints. The webbing breaking strength 
test and the child restraint system dynamic test do not test for the 
same conditions and serve distinct purposes. The webbing breaking 
strength test conditions are necessarily more severe than those for 
dynamic testing to help ensure that the webbing will afford effective 
protection for severe crashes, even after the webbing degrades due to 
abrasion in use and exposure to sunlight. In addressing past similar 
arguments raised by child restraint system manufacturers who submitted 
webbing load force data generated in dynamic testing to demonstrate 
apparent safety margins in comparison to webbing breaking strength test 
results, the Agency stated that ``[a] 30 mile per hour test is not 
indicative of the upper limit of safety. The test conditions in FMVSS 
No. 213 reflect the concern that child restraints will withstand even 
the most severe crashes. These are well above 30 mph.'' Dorel Juvenile 
Group [Cosco] (DJG); Denial of Applications for Determination of 
Inconsequential Noncompliance, 73 FR 41397, 41399 (July 19, 2008). 
While Combi also conducted dynamic testing using the higher NCAP crash 
pulse, this provides an increase of only 5 mph over the FMVSS No. 213 
dynamic crash pulse. In adopting the webbing strength standard, NHTSA 
has never said and NHTSA does not believe that it is enough that 
webbing withstands a 35 mph crash. There are real-world severe crashes 
which take place above this level. In those crashes, the force on the 
webbing is higher than in a 30 or 35 mph based crash. And, it must be 
recognized that webbing in child restraints that have been used may be 
degraded. In such crashes, a child occupant restrained in a child seat 
with webbing, when new, that merely met a strength test related to a 35 
mph crash would be at an increased risk of injury compared with a child 
restrained in a child seat with webbing that meets the webbing strength 
test in FMVSS No. 213 S5.4.1.2(a).
    Next, Combi asserts that given the relative small number of subject 
child restraint systems affected, the effectiveness of any notification 
campaign will be limited. This type of argument is immaterial to the 
inconsequentiality analysis because ``the number or percentage of 
vehicles or equipment affected by the noncompliance is not relevant to 
the issue of consequentiality''. See General Motors Corp., 69 FR 19899; 
Cosco, Inc., Denial of Application for Decision of Inconsequential 
Noncompliance, 64 FR 29408, 029409 (June 1, 1999). In addition, the 
Agency would not necessarily consider an affected population of over 
33,000 to be considered a small number when evaluating safety risk.
    Finally, Combi argues that any noncompliance notice campaign may 
result in customers deciding to discontinue using their subject 
restraint(s) for a period of time thereby adding risk of injury. This 
argument was not supported with any evidence and the Agency is not 
persuaded by this argument. The Agency's Recall Management Office will 
review Combi's noncompliance notification campaign to assure that it is 
effective and the notification makes it clear to the affected 
customer(s) that it is better to continue to use the subject child 
restraint(s) while awaiting the remedy provided by the manufacturer, 
and that it is unsafe, and in almost all cases unlawful, to transport a 
child passenger in a motor vehicle without the use of a proper 
restraint.
    Decision: After carefully considering the arguments presented in 
this matter, NHTSA has decided that the petitioner has not met its 
burden of persuasion that the noncompliance described is 
inconsequential to motor vehicle safety. Accordingly, Combi's petition 
is hereby denied, and the petitioner must notify owners, purchasers and 
dealers pursuant to 49 U.S.C. 30118 and provide a remedy in accordance 
with 49 U.S.C. 30120.

    Authority: (49 U.S.C. 30118, 30120: delegations of authority at 
49 CFR 1.95 and 501.8)

    Dated: November 21, 2013.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2013-28455 Filed 11-26-13; 8:45 am]
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