[Federal Register Volume 88, Number 38 (Monday, February 27, 2023)]
[Notices]
[Pages 12433-12436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03926]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2022-0074; Notice 2]


Baby Trend, Inc., Denial of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: Baby Trend, Inc., (BT), has determined that certain BT Hybrid 
3-in-1 Combination Booster Seat child restraint systems (CRSs) do not 
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 
213, Child Restraint Systems. BT filed an original noncompliance report 
dated July 6, 2022. BT subsequently petitioned NHTSA on August 1, 2022, 
for a decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This document announces the denial of 
BT's petition.

FOR FURTHER INFORMATION CONTACT: Kelley Adams-Campos, Safety Compliance 
Engineer, NHTSA, Office of Vehicle Safety Compliance, 
[email protected], (202) 366-7479.

SUPPLEMENTARY INFORMATION:

I. Overview

    BT determined that certain BT Hybrid 3-in-1 Combination Booster 
Seat CRSs do not fully comply with paragraph S5.4.1.2(a) of FMVSS No. 
213, Child Restraint Systems (49 CFR 571.213).
    BT filed an original noncompliance report dated July 6, 2022, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. BT petitioned NHTSA on August 1, 2022, for an exemption 
from the notification and remedy requirements of 49 U.S.C. Chapter 301 
on the basis that this noncompliance is inconsequential as it relates 
to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) 
and 49 CFR part 556, Exemption for Inconsequential Defect or 
Noncompliance.
    Notice of receipt of BT's petition was published with a 30-day 
public comment period, on September 9, 2022, in the Federal Register 
(87 FR 55465). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at https://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2022-0074.''

[[Page 12434]]

II. Child Restraint Systems Involved

    Approximately 101,361 BT Hybrid 3-in-1 Combination Booster Seat 
CRSs, manufactured from December 6, 2021, to June 6, 2022,\1\ are 
potentially involved:
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    \1\ As reported in BT's July 6, 2022, Part 573 submission.
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III. Noncompliance

    BT explains that the lower anchor webbing in the subject CRSs 
failed the minimum required breaking \2\ strength when tested in 
accordance with S5.1 of FMVSS No. 209, referenced in FMVSS No. 213 
S5.4.1.2(a). Specifically, the breaking strength of the lower anchor 
webbing of the Lower Anchors and Tethers for CHildren (LATCH \3\) 
system in the subject CRSs was 13,926 Newtons (N), 13,940 N, and 14,087 
N when tested by NHTSA.
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    \2\ In its petition, BT refers to breaking as tensile.
    \3\ ``LATCH'' refers to the child restraint anchorage system 
that FMVSS 225, ``Child restraint anchorage systems,'' requires to 
be installed in motor vehicles. Industry and advocates have 
developed the term ``LATCH'' to refer to Standard 225's child 
restraint anchorage system.
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IV. Rule Requirements

    Paragraph S5.4.1.2(a) of FMVSS No. 213 includes the requirements 
relevant to this petition. The webbing of belts provided with a child 
restraint system and used to attach the system to the vehicle must have 
a minimum breaking strength for new webbing of not less than 15,000 N, 
including the tether and lower anchorages of a child restraint 
anchorage system, when tested in accordance with S5.1 of FMVSS No. 209. 
``New webbing'' means webbing that has not been exposed to abrasion, 
light or micro-organisms as specified elsewhere in FMVSS No. 213.

V. Summary of BT's Petition

    The following views and arguments presented in this section, ``V. 
Summary of BT's Petition,'' are the views and arguments provided by BT. 
They do not reflect the views of the Agency. BT describes the subject 
noncompliance and contends that the noncompliance is inconsequential as 
it relates to motor vehicle safety.
    Upon receiving an information request from NHTSA on June 6, 2022, 
regarding the subject noncompliance, BT states that production and 
distribution of the subject CRSs were halted, and BT began an 
investigation. BT states that, as part of its investigation, it 
conducted dynamic sled testing, webbing testing and examined internal 
processes to determine the root cause of the noncompliance. As a result 
of its investigation, BT found that the wrong webbing, with a failure 
threshold characterized as marginally below the breaking strength 
required in FMVSS No. 213 S5.4.1.2(a), was installed in a portion of 
the subject CRSs, but BT believes, through its analysis of existing and 
new test data, that the subject noncompliance is inconsequential to 
motor vehicle safety.
    BT claims that FMVSS No. 213 dynamic sled testing ensures the 
structural integrity of the subject CRSs and that this is supported by 
NHTSA's November 2, 2020, Notice of Proposed Rulemaking \4\ (NPRM) 
regarding FMVSS No. 213, where the Agency determined that no change in 
the severity of the FMVSS No. 213 crash pulse was warranted. In its 
petition, BT questions ``the utility of considering the webbing 
strength tests in isolation rather than the integrity of the LATCH 
system as required under FMVSS 213.'' BT believes the webbing strength 
tests specified in FMVSS No. 213 have utility in safety ``only in the 
context of maintaining strength of the webbing with wear and tear of 
the child restraint following years of use'' and asserts that the 
unabraded webbing strength test is not necessary to ensure the 
structural integrity of a CRS.
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    \4\ Federal Motor Vehicle Safety Standards; Child Restraint 
Systems, Incorporation by Reference; 85 FR 69388 (November 2, 2020.)
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    BT states that in addition to the dynamic sled testing required by 
FMVSS No. 213, it conducts dynamic sled testing, through Consumer's 
Union (CU), on child restraints produced by each of its factories. BT 
contends that if NHTSA previously found the dynamic sled testing at 48 
kph to be sufficient to ensure the structural integrity of a CRS, BT's 
additional CU testing is also similarly sufficient.
    The CU dynamic testing, as BT explains, has important differences 
from that required by FMVSS No. 213. First, the test is conducted at 56 
kph whereas the FMVSS No. 213 test is conducted at 48 kph. Second, the 
bench used is derived from a vehicle seat, providing ``a boundary 
condition for LATCH attachment and seat cushion-to-CRS interaction.'' 
Finally, the CU test protocol includes a structure to represent the 
seat in front of the CRS seat position, which, BT claims, provides a 
``clear tell-tale'' of failure in any way of the LATCH lower anchor 
belt in adequately restraining the CRS and its occupant.
    BT also claims that the minimum LATCH lower anchor webbing strength 
requirements of FMVSS No. 213 are unrealistic, based on dynamic crash 
testing it conducted on the Hybrid 3-in-1 CRSs using the same incorrect 
webbing used on the noncompliant CRSs that are the subject of its 
petition, and without attaching the CRS' tether to the tether anchor. 
This testing, as BT explains, was conducted on the test bench proposed 
by NHTSA in the 2020 FMVSS No. 213 NPRM.\5\ Other test apparatus and 
conditions used in its testing were those either specified in FMVSS No. 
213, and/or the current NPRM, or ``widely accepted'' as due care tests. 
For the tests BT conducted in the frontal direction, sled test speeds 
ranging from 57.1 kph to 63.9 kph were used. See the Table \6\ in BT's 
petition for the parameters used in its testing. BT states that it is 
confident that its frontal sled testing conducted at ``64 kph . . . 
encompasses all crashes including the most severe crashes'' and that 
``at no time and in no test did the LATCH Lower Anchor webbing or belt 
system fail to perform its intended purpose of restraining the CRS.'' 
BT also found ``that at no time during any of these tests did the LATCH 
Lower Anchor webbing load exceed 5,000 Newtons and, more importantly, 
come even close to the 15,000 Newton minimum threshold'' required by 
FMVSS No. 213.
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    \5\ Id.
    \6\ Section 3 of BT's petition.
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    In its petition, BT shares a graphic \7\ to illustrate its beliefs 
for the minimum strength of various components in the LATCH system and 
points to examples where, ``in the rare instances of failures of the 
LATCH system, the failures occurred in . . . the LATCH lower anchor on 
the vehicle.'' Thus, BT contends that the webbing is not the weak link 
in the LATCH lower anchor system, and that ``any deficiencies with the 
strength of the LATCH Lower Anchor webbing would have been revealed in 
the dynamic sled tests of FMVSS 213.''
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    \7\ Section 5 of BT's petition.
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    BT states that there is no evidence of webbing failure in any CRS 
in the real world, that it has never received a complaint, nor has any 
knowledge, of a webbing failure on any of its products in the real 
world.
    BT concludes by stating its belief that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety and its 
petition.

VI. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in an FMVSS is substantial and 
difficult to meet. Accordingly, the Agency has not

[[Page 12435]]

found many such noncompliances inconsequential.\8\
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    \8\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which a recall would otherwise protect.\9\ In general, NHTSA 
does not consider the absence of complaints or injuries when 
determining if a noncompliance is inconsequential to safety. The 
absence of complaints does not mean vehicle occupants have not 
experienced a safety issue, nor does it mean that there will not be 
safety issues in the future.\10\
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    \9\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding 
noncompliance had no effect on occupant safety because it had no 
effect on the proper operation of the occupant classification system 
and the correct deployment of an air bag); Osram Sylvania Prods. 
Inc.; Grant of Petition for Decision of Inconsequential 
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using 
noncompliant light source would not be exposed to significantly 
greater risk than occupant using similar compliant light source).
    \10\ See Morgan 3 Wheeler Limited; Denial of Petition for 
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 
12, 2016); see also United States v. Gen. Motors Corp., 565 F.2d 
754, 759 (D.C. Cir. 1977) (finding defect poses an unreasonable risk 
when it ``results in hazards as potentially dangerous as sudden 
engine fire, and where there is no dispute that at least some such 
hazards, in this case fires, can definitely be expected to occur in 
the future'').
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    BT makes several claims and assertions in support of its petition, 
including its claim that the wrong webbing installed in the subject 
CRSs had a breaking strength ``marginally'' below that required by 
FMVSS No. 213. NHTSA does not agree, based on its own compliance test 
results, that the breaking strength values were marginal. Next, BT 
claims it to be ``NHTSA's current and well-justified position'' that 
the dynamic sled testing contained in FMVSS No. 213 ensures the 
structural integrity of the ``CRS system, including the LATCH lower 
anchor webbing in an unabraded condition.'' BT furthers this claim, 
opining that the Agency should also conclude that BT's CU testing it 
conducts ``is similarly sufficient to ensure structural integrity of a 
CRS'' based on ``important differences'' from FMVSS No. 213, i.e., a 
test speed of 56 kph and a test bench derived from a vehicle seat. 
NHTSA does not find these claims to be relevant or persuasive. It 
appears that BT is misapplying the conclusion the Agency made in the 
2020 FMVSS No. 213 NPRM (supra), i.e., that there was no safety need to 
increase the sled acceleration pulse for the dynamic systems test in 
S6.1 of FMVSS No. 213. This conclusion was specific to the child 
restraint system dynamic test. This test is not the only performance 
test in FMVSS No. 213 and does not address the same conditions, nor 
serve the same purpose, as the webbing breaking strength test. NHTSA 
has multiple tests because a single test does not address the range of 
safety concerns with child restraints. The breaking strength 
requirements ensure that the performance of the webbing over the 
lifetime of a child restraint system is sufficient to provide the 
necessary protection, even after wear and tear that webbing can 
experience during the course of normal use.
    BT asserts that the unabraded webbing strength test is not 
necessary to ensure the structural integrity of a CRS, and that the 
minimum LATCH lower anchor webbing strength requirements of FMVSS No. 
213 are unrealistic. BT bases this assertion on dynamic crash testing 
it conducted on the Hybrid 3-in-1 CRSs using the same incorrect webbing 
used on the noncompliant CRSs subject of its petition. According to its 
petition, tests were conducted at 63.9 kph without attaching the tether 
to its corresponding anchor, asserting that under this condition ``the 
entire restraining load was borne by the LATCH webbing.''
    BT also states, ``at no time and in no test did the LATCH Lower 
Anchor webbing or belt system fail to perform its intended purpose of 
restraining the CRS'' and that the loads on the subject webbing during 
any of the foregoing tests did not exceed 5,000 N. This argument 
challenges the stringency of the requirement in the standard, to which 
a petition for rulemaking, not an inconsequentiality petition, is the 
appropriate means.\11\ Moreover, even if these foregoing arguments were 
relevant, NHTSA does not find them availing. As explained in NHTSA's 
2006 Final Rule \12\ adopting the new webbing breaking strength 
requirements, Standard 213's minimum requirements are not intended to 
only ensure that CRSs in new condition are safe, but also safe in the 
cases of foreseeable wear, such as in the breaking strength requirement 
to which this population of CRSs failed to comply. Requirements at the 
component level increase the likelihood that components, like webbing, 
maintain their integrity for the lifetime of the child restraint. Such 
comparable assurances are not provided by the dynamic system test in 
Standard 213, added in December 1979.\13\ In 2002, the Agency found it 
inappropriate that minimum breaking strength requirements for new 
webbing in child restraint systems were absent from FMVSS No. 213 \14\ 
and the 2005-2006 rulemaking ensued. This established NHTSA's long-
standing position that webbing strength requirements are necessary for 
safety and, consistent with how we addressed past similar arguments 
\15\ by CRS manufacturers who submitted webbing load force data 
generated in dynamic testing to demonstrate apparent safety margins in 
comparison to webbing breaking strength test results, BT has not 
compelled NHTSA to consider otherwise.
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    \11\ See Dorel Juvenile Group; Denial of Appeal of Decision on 
Inconsequential Noncompliance, 75 FR 510, January 5, 2010.
    \12\ 71 FR 32855 (June 7, 2006).
    \13\ 44 FR 72131 (December 13, 1979).
    \14\ Evenflo Company, Inc., Grant of Application for Decision of 
Inconsequential Noncompliance, 67 FR 21798 (May 1, 2002).
    \15\ Combi USA, Inc., 78 FR 71028 (Nov. 27, 2013), Combi USA, 
Inc., 86 FR 47723 (Aug. 26, 2021).
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    NHTSA is also not persuaded by BT's argument, as its petition 
further goes on in Section 5, that ``any deficiencies with the strength 
of the LATCH Lower Anchor webbing would have been revealed in the 
dynamic sled tests of FMVSS 213.'' As explained above, FMVSS No. 213 
has multiple performance tests serving different purposes. It is not 
proper to apply or substitute the outcome from one test for another; to 
be compliant with FMVSS No. 213 all applicable requirements must be 
satisfied.\16\ Thus, BT has not met its burden of persuasion.
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    \16\ BT asserts that the noncompliance of the BT Hybrid 3-in-1 
would have been ``revealed'' in the Office of Vehicle Safety 
Compliance's (OVSC) compliance program's dynamic testing. NHTSA 
notes that the Agency's dynamic testing of BT's Hybrid 3-in1 did not 
result in LATCH lower anchor webbing failures. See https://static.nhtsa.gov/odi/ctr/9999/TRTR-647891-2022-001.pdf.
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    Finally, neither BT's claim that there is no evidence of any CRS 
webbing failures, including on any of its products, in the real world, 
nor BT's lack of complaints are persuasive to the Agency. 
Notwithstanding that BT did not provide any evidence to support these 
claims, as stated at this notice's onset NHTSA does not consider the 
absence of complaints or injuries when determining if a noncompliance 
is inconsequential to safety.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that BT has 
not met its burden of persuasion that the subject FMVSS No. 213 
noncompliance is inconsequential to motor vehicle safety.

[[Page 12436]]

Accordingly, BT's petition is hereby denied, and BT is consequently 
obligated to provide notification of and free remedy for that 
noncompliance under 49 U.S.C. 30118 and 30120.

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

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2023-03926 Filed 2-24-23; 8:45 am]
BILLING CODE 4910-59-P