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RECARO Child Safety, LLC, Denial of Petition for Decision of Inconsequential Noncompliance

American Government Special Collections Reference Desk

American Government Topics:  Recaro

RECARO Child Safety, LLC, Denial of Petition for Decision of Inconsequential Noncompliance

Nancy Lummen Lewis
National Highway Traffic Safety Administration
March 31, 2014


[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Notices]
[Pages 18115-18117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07108]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2013-0038; Notice 2]


RECARO Child Safety, LLC, 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: This document denies RECARO Child Safety, LLC's (RECARO) \1\ 
petition for an exemption from the notification and remedy requirements 
of 49 U.S.C. Chapter 301 on the basis that a noncompliance with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 213, Child Restraint Systems, 
is inconsequential to motor vehicle safety. NHTSA has decided that 
RECARO has not met its burden of persuasion that the FMVSS No. 213 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
RECARO 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.
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    \1\ RECARO Child Safety, LLC is a manufacturer of motor vehicle 
equipment and is registered under the laws of the state of Michigan.

ADDRESSES: 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-2013-0038.''
    Contact Information: For further information on this decision 
contact Mr. Zack Fraser, Office of Vehicle Safety Compliance, the 
National Highway Traffic Safety Administration (NHTSA), telephone (202) 
366-5754, facsimile (202) 366-7002.

SUPPLEMENTARY INFORMATION: RECARO determined that certain RECARO brand 
ProSport child restraint systems produced between June 16, 2010 and 
January 31, 2013 do not fully comply with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 213, Child Restraint Systems. RECARO filed a 
report with NHTSA dated February 6, 2013, pursuant to 49 CFR part 573, 
Defect and Noncompliance Responsibility and Reports.
    Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule 
at 49 CFR part 556), RECARO submitted a petition 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.
    NHTSA published a notice of receipt of the petition, with a 30-day 
public comment period, on June 3, 2013, in the Federal Register (78 FR 
33150). NHTSA did not receive any comments in response to the petition.
    Equipment Involved: Affected are approximately 39,181 RECARO brand 
ProSport child restraint systems produced between June 16, 2010, and 
January 31, 2013.
    Rule Text: Paragraph S5.3.1(a)(1) of FMVSS No. 213 lays out head 
excursion requirements for child restraint systems. This paragraph 
states, in relevant part:

    S5.1.3.1 Child restraint systems other than rear-facing ones and 
car beds.
    Each child restraint system, other than a rear-facing child 
restraint system or a car bed, shall retain the test dummy's torso 
within the system.
    (a) For each add-on child restraint system:
    (1) No portion of the test dummy's head shall pass through a 
vertical transverse plane that is 720 mm or 813 mm (as specified in 
the table in this S5.1.3.1) forward of point Z on the standard seat 
assembly, measured along the center SORL (as illustrated in figure 
1B of this standard) . . .

    Paragraph S5.3.2 of FMVSS No. 213 identifies the various 
installation configurations (i.e. with a lap belt only, with a lap belt 
and upper torso restraint, etc.) that must be tested for each type of 
child restraint system. This paragraph states, in relevant part:

    S5.3.2 Each add-on child restraint system shall be capable of 
meeting the requirements of this standard when installed solely by 
each of the means indicated in the following table for the 
particular type of child restraint system.

    This is followed by Table S5.3.2 which lists the different child 
restraint systems (``Harness . . . ,'' ``Other harnesses,'' ``Car 
beds,'' ``Rear-facing restraints,'' ``Belt-positioning seats,'' and 
``All other child restraints''). For each type of child restraint 
system, the table identifies various means of installation (``Type 1 
seat belt assembly,'' ``Type 1 seat belt assembly plus a tether 
anchorage, if needed,'' ``Child restraint anchorage system,'' ``Type II 
seat belt assembly,'' and ``Seat back mount''). The ProSport, which is 
a forward facing only child restraint system, falls under the category 
of ``All other child restraints'' in table S5.3.2 of FMVSS No. 213. 
According to Paragraph S5.3.2 of FMVSS No. 213, the ProSport must meet 
FMVSS No. 213's requirements when installed with a ``Type 1 seat belt 
assembly'' or a lap belt only, among other things. See 49 CFR Sec.  
571.209 S.3, Seat Belt Assemblies (A ``[t]ype 1 seat belt assembly is a 
lap belt for pelvic restraint'').
    The test procedure for restraint systems installed with a lap belt 
only is set forth in Paragraph S6.1.2(a)(1)(i)(D) of FMVSS No. 213, 
which states, in relevant part:

    S6.1.2 Dynamic Test Procedure.
    (a) Activate the built-in child restraint or attach the add-on 
child restraint to the seat assembly as described below:
    1. Test Configuration I.
    i. Child restraints other than belt-positioning seats. Attach 
the child restraint in any of the following manners specified in 
S6.1.2(a)(1)(i)(A) through (D), unless otherwise specified in this 
standard.
* * * * *

[[Page 18116]]

    (D) Install the child restraint system using only the lower 
anchorages of the child restraint system as in S6.1.2(a)(1)(i)(C). 
No tether strap (or any other supplemental device) is used.
    The other test configurations (described in Paragraph 
S6.1.2(a)(1)(i)(A)-(C)) do not correspond to the lap belt only test.
    Summary of RECARO's Position: RECARO explains that its ProSport 
child restraint system does not comply with the head excursion 
requirements of FMVSS 213 S5.1.3.1(a)(1) when subjected to the dynamic 
test requirements of S6.1.2(a)(1)(i)(D) of FMVSS No. 213, using a six 
year old test dummy secured to the test bench by lower anchors and no 
tether. RECARO believes that this noncompliance is inconsequential to 
motor vehicle safety, and requests an exemption from the notification 
requirements of 49 U.S.C. 30118 and the remedy requirements of 49 
U.S.C. 30120.
    In support of its petition for exemption, RECARO submits the 
following comments and data:

    1. The dynamic test requirements of FMVSS No. 213 
S6.1.2(a)(1)(i)(D) require using a six year old test dummy secured 
to the test bench using lower anchors and no tether. This test 
procedure is a direct violation of the instructions and warnings in 
the instruction manual included with each ProSport child restraint 
system and would constitute a major misuse of the child restraint by 
the consumer. (RECARO provided the entire manual as part of its 
petition.)
    2. RECARO has received over 9,000 registration cards returned by 
purchasers of the ProSport. Using the online survey system Survey 
Monkey, RECARO instituted a survey of 3,690 registered owners by 
emailing each purchaser the following survey questions:
    a. Are you currently using your ProSport child restraint?
    b. How is (was) your ProSport installed in the vehicle?
    i. Vehicle lap/shoulder belt
    ii. Lower anchors provided with child restraint (LATCH)
    c. Did you use the top tether included on the ProSport to 
install the child restraint into the vehicle?

RECARO noted that 929 registered owners responded to the survey by 
confirming that they installed the child restraint with lower LATCH 
anchors. Of those responding, 837 or 90.1% confirmed that the top 
tether was being used to install their ProSport when installing the 
child restraint with lower LATCH anchors. (RECARO included a copy of 
the survey details and results as part of its petition.) RECARO 
stated its belief that the survey is a statistically significant 
confirmation that a very small percentage of ProSport consumers are 
misusing the child restraint by not using the top tether when 
installing the child restraint with lower LATCH anchors and that the 
effectiveness of any noncompliance notification campaign will be 
minimal, given the historically low response rate to technical 
noncompliance notification campaigns of child restraints. For 
example, the survey results indicate that only those ProSport 
consumers not properly using the top tether when installing the 
child restraint with lower LATCH anchors are likely to respond to a 
noncompliance notification. Assuming a response rate of 10% by this 
group, only 400 of the estimated 4,000 consumers misusing the child 
restraint are likely to respond. This statistically insignificant 
response renders the technical noncompliance at issue 
inconsequential.
    3. All vehicles equipped with lower child restraint (LATCH) 
anchors are also equipped with top tether anchors. RECARO has 
received 82 consumer calls regarding the ProSport. (RECARO included 
copies of consumer call reports as part of its petition.) No 
consumer has questioned the use of the tether when securing the 
ProSport with the lower anchors. RECARO has no information of this 
misuse actually occurring in the field or of any injuries sustained 
by a child when restrained in a ProSport in this misuse condition.
    4. RECARO has received notice of three crashes involving four 
children seated in ProSport child restraint systems. In these 
incidents, the ProSport performed well and the occupant was not 
injured. It is not known if the ProSports involved were installed 
using the lower LATCH anchors, whether the top tethers were used, or 
both.
    5. RECARO has implemented an engineering/structural modification 
to the ProSport. Dynamic tests of the modified ProSport using a 
Hybrid II six year old test dummy secured to the test bench using 
lower anchors and no tether confirm that the head excursion 
requirements of FMVSS No. 213 S5.1.3.1(a)(1) are met. (RECARO 
included copies of the test reports as part of its petition.)
    6. RECARO stated its belief that the ProSport outperforms any 
comparable child restraint with regards to head excursions when 
installed with the lap/shoulder belt.
    7. Given the relative small number of ProSport child restraints 
distributed since introduction in June 2010 (39,181), the 
effectiveness of any notification campaign regarding this technical 
noncompliance will be limited. Additionally, any noncompliance 
notice campaign may result in consumers deciding to discontinue 
using their ProSport for a period of time, increasing the risk of 
injury to a higher degree than the risk resulting from the small 
number of consumers misusing the child restraint by not using the 
top tether when installing the child restraint with lower LATCH 
anchors.

    RECARO has additionally informed NHTSA that it has stopped 
production of the ProSport as of January 31, 2013.
    Standard of Review: Federal motor vehicle safety standards are 
adopted only after the agency has determined, following notice and 
comment, that the performance requirements are objective and 
practicable and ``meet the need for motor vehicle safety.'' 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. General Motors 
Corp; Ruling on Petition for Determination of Inconsequential 
Noncompliance, 69 FR 19897 (April 14, 2004). 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 recognized that under some limited circumstances, 
a noncompliance may be ``inconsequential'' to motor vehicle safety. It 
established a procedure under which NHTSA may consider whether it is 
appropriate to exempt the manufacturer from the duty to conduct a 
notification and remedy (recall) campaign. 49 U.S.C. 30118(d) and 
30120(h). The agency's regulations governing the filing and 
consideration of petitions for inconsequentiality exemptions are set 
out in 49 CFR Part 556. The manufacturer bears the burden of 
demonstrating that the noncompliance is inconsequential to motor 
vehicle safety. General Motors, 69 FR 19899.
    NHTSA rarely grants inconsequentiality petitions for noncompliance 
of performance standards. The majority of the inconsequentiality 
petitions NHTSA has granted have been for noncompliances with labeling 
requirements. For a performance-related petition to be granted, NHTSA 
has determined the issue to be ``whether [the] particular noncompliance 
is likely to increase the risk to safety.'' Cosco, Inc.: Denial of 
Application for Decision of Inconsequential Noncompliance, 64 FR 29408 
(June 1, 1999). In evaluating whether there is an increased safety 
risk, NHTSA examines the motor vehicles or equipment exhibiting the 
noncompliance at issue. Cosco, 64 FR 29409.
    NHTSA's Decision: NHTSA has reviewed RECARO's arguments and is not 
convinced that the ProSport child restraint's noncompliance is 
inconsequential to motor vehicle safety. The petition is denied. Below, 
we address each of RECARO's arguments in the order presented.
    In its petition, RECARO first characterizes the installation of the 
ProSport without a top tether as misuse, citing the ProSport 
instruction manual. The instruction manual, however, does

[[Page 18117]]

not exempt the ProSport from the requirements of FMVSS No. 213. 
Independent of any instruction manual, FMVSS No. 213 requires that the 
ProSport meet FMVSS No. 213's dynamic test requirements when installed 
without the top tether. The ProSport's head excursion measurements were 
above the acceptable limit prescribed in paragraph S5.1.3.1(a) of FMVSS 
No. 213. The head excursion limit is 813 millimeters. When tested, 
ProSport had a head excursion measurement of 907 millimeters according 
to NHTSA's test, and an even greater deviation according to RECARO's 
test. Failure of a child restraint system in this manner increases the 
likelihood of head injury to the occupant, which is not insignificant 
or inconsequential to safety. See Cosco, 64 FR 29409-29410. NHTSA 
requires child restraint systems to be tested without the tether strap 
attached to the vehicle to ``ensure that a minimum level of safety is 
provided by child restraints which have safety features likely to be 
misused or unused by some owners.'' See Notice of Proposed Rulemaking, 
50 FR 27634 (July 5, 1985); Final Rule, 51 FR 5335 (February 13, 1986) 
(amending FMVSS No. 213 by requiring child restraints equipped with a 
tether strap to pass the 30 mile per hour (mph) test without attaching 
the tether strap due to evidence of misuse by owners). Because the test 
the ProSport failed was intended to protect those children whose 
parents misused the child restraint system by not attaching the top 
tether strap, Recaro's argument is unavailing. NHTSA has concerns that 
there is an unreasonable risk of head injury to children in the event 
of a crash when the ProSport is not installed properly. The head 
excursion limit is a fundamental requirement that represents basic 
parameters of survival in a crash environment. California Strolee, 
Inc.; Denial of Petition for Determination of Inconsequential 
Noncompliance, 51 FR 13389 (April 2, 1986). Any relaxation would reduce 
child safety below an acceptable level. Id.
    Second, RECARO conducted a survey which found that 9.9% of ProSport 
consumers do not use the top tether when installing the child restraint 
system.\2\ Based on this statistic, RECARO concludes that a ``very 
small percentage'' of ProSport consumers do not use the top tether. 
This survey does not convince NHTSA that the ProSport's noncompliance 
is inconsequential to motor vehicle safety. While 9.9% of 39,181 child 
restraint systems is by no means a small number, arguments that only a 
small number of items of motor vehicle equipment are affected by a 
noncompliance will not justify granting an inconsequentiality petition. 
General Motors, 69 FR 19990. The key issue in determining 
inconsequentiality is not the aggregate safety consequence among all 
drivers, but rather, ``whether the noncompliance is likely to increase 
the safety risk to the individual occupants who experience the type of 
injurious events against which the standard is designed to protect.'' 
Id.; See also Cosco, 64 FR 29409.
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    \2\ RECARO noted that 929 registered owners responded to the 
survey by confirming that they installed the child restraint with 
lower LATCH anchors. Of those responding, 837 or 90.1% confirmed 
that the top tether was being used to install their ProSport. The 
remaining 89 individuals, or 9.9% of respondents indicated that they 
did not use the top tether.
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    Third, RECARO states that based on 82 consumer calls regarding the 
ProSport (presumably out of a population of 39,181 child restraint 
systems), it has no information that a consumer has (1) failed to use 
the top tether; or (2) sustained injury due to failure to use the top 
tether. This claim does not advance RECARO's argument. RECARO's own 
survey indicated that 9.9% of survey respondents failed to use the top 
tether. More importantly, the statute does not require children to 
sustain injuries for a manufacturer to conduct a recall. The statue 
calls for notification and remedy when the manufacturer ``decides in 
good faith that the . . . equipment does not comply with an applicable 
motor vehicle safety standard . . .'' 49 U.S.C. 30118(c)(2); 49 U.S.C. 
30120.
    Fourth, RECARO indicated in its petition that it received notice of 
three crashes involving four children seated in the subject child 
restraint systems. The children survived the crashes without injury. 
However, this information does not advance RECARO's position that the 
ProSport's noncompliance is inconsequential to motor vehicle safety 
because RECARO has not proven that the top tether was not attached in 
those cases.
    Fifth, RECARO also stated that it implemented engineering/
structural modifications to the ProSport. RECARO performed dynamic 
tests of the modified ProSport and confirmed that the modified child 
seats met the requirements of FMVSS No. 213. However, these 
modifications were not made to the 39,181 restraints that are the 
subject of this petition. This argument is not relevant to RECARO's 
petition. If anything, it may indicate that RECARO recognizes that the 
noncompliance in its earlier ProSport models must be rectified.
    Sixth, RECARO contends that a recall campaign would have limited 
effectiveness based on its survey results. However, RECARO has 
presented no evidence to support this claim. NHTSA does not agree that 
optional responses to a survey are indicative of responsiveness to a 
recall campaign, which has direct safety consequences.
    Finally, RECARO contends that a recall campaign may result in 
consumers deciding to discontinue use of their ProSport child 
restraints. RECARO claims that non-use of the ProSport increases the 
risk of injury to a higher degree than misuse of the ProSport. Yet 
RECARO has provided no evidence that owners will discontinue use of a 
child restraint system altogether in the face of a RECARO recall. 
Further, child restraint recall campaign notices for similar 
noncompliances have generally instructed owners to continue using a 
restraint until a remedy is available (rather than not using any child 
restraint). NHTSA does not consider this to be a compelling argument.
    In consideration of the foregoing, NHTSA has decided that the 
ProSport's noncompliance is likely to increase the risk to safety, and 
is therefore not inconsequential. Recaro has not met its burden of 
persuasion that the FMVSS No. 213 noncompliance identified in RECARO's 
noncompliance information report is inconsequential to motor vehicle 
safety. Accordingly, RECARO's petition is hereby denied, and RECARO 
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).

    Issued on: March 25, 2014.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2014-07108 Filed 3-28-14; 8:45 am]
BILLING CODE 4910-59-P



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