Cosco, Inc.; Denial of Petition For Determination of Inconsequential Noncompliance |
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Topics: Cosco
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Barry Felrice
Federal Register
March 28, 1994
[Federal Register: March 28, 1994]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. 93-48; Notice 2]
Cosco, Inc.; Denial of Petition For Determination of
Inconsequential Noncompliance
Cosco, Inc. (Cosco) of Columbus, Indiana determined that some of
its child safety seats failed to comply with the flammability
requirements of 49 CFR 571.213, ``Child Restraint Systems,'' Federal
Motor Vehicle Safety Standard No. 213, and filed an appropriate report
pursuant to 49 CFR part 573. Cosco also petitioned to be exempted from
the notification and remedy requirements of the National Traffic and
Motor Vehicle safety Act (15 U.S.C. 1381 et seq.) on the basis that the
noncompliance is inconsequential as it relates to motor vehicle safety.
Notice of receipt of the petition was published on July 7, 1993,
and an opportunity afforded for comment (58 FR 36510). No comments were
received. This notice denies the petition.
Paragraph S5.7 of Standard No. 213 states that ``[e]ach material
used in a child restraint system shall conform to the requirements of
S4 of FMVSS No. 302 (571.302).'' Paragraph S4.3(a) of Standard No. 302
states that ``[w]hen tested in accordance with S5, material described
in S4.1 and S4.2 shall not burn, nor transmit a flame front across its
surface, at a rate of more than 4 inches per minute.''
Between November 1, 1989, and March 31, 1993, Cosco produced
133,897 add-on (as opposed to built-in) child restraint seats, with
shoulder harness straps which it has determined do not comply with the
flammability requirements of Standard No. 213. The principal
restraining mechanism on the noncompliant seats is a soft-shield
harness assembly. The soft-shield harness assembly consists of a
buckle, a soft molded urethane shield, and two straps, protruding to
the top of the shield, which go over the child's shoulders through
slots in the back of the child restraint and attach to a metal bar,
which in turn is attached to an adjustment strap. Indications of a
possible noncompliance came to light during testing of the seats by
NHTSA at Detroit Testing Laboratory in February 1993, and retesting at
U.S. Testing Laboratory. The harness straps burned at a rate of 4.3
inches per minute. This formed the basis of NHTSA investigation NCI
3269.
Cosco supported its petition for inconsequential noncompliance with
the arguments set forth below. Cosco also submitted photographs of the
noncompliant seats, photographs of the tests being conducted on the
seats, and test data. These materials were available for review in the
NHTSA docket during the comment period.
The company began its petition by agreeing
generally that requiring child restraints to meet the [FMVSS] 302
standard does further the purpose of the standard when considering
such child restraint components as vinyl or fabric pads or their
foam contents. Cosco also concedes that the applicability of the
standard to the harness systems of certain child restraints furthers
the purpose of the standard, such as five-point harness systems
which attach to, or pass through, the seating surface of the child
restraint where sources of ignition such as cigarettes or matches
could become entrapped.
Cosco's principal argument dealt with the improbability that the
restraints would ignite. In support of this, it submitted that:
[I]t is not physically possible for the harness straps of the
soft shield to ignite or burn unless the entire child restraint or
the automobile seat upon which it is installed is already burning.
The configuration and placement of the straps of the Cosco soft-
shield assembly are such that these straps cannot come into contact
with an independent source of ignition, such as a cigarette or
match, which would result in any burning of the harness strap.
These are the only two possible causes for the ignition of the
shoulder straps of Cosco soft-shield child restraints. The first is
fire already consuming the child restraint and/or the vehicle seat
upon which the child restraint is installed is on fire. It cannot be
seriously questioned that, in such an instance, the child would be
seriously or fatally burned from these sources of fire as opposed to
the shoulder straps of the child restraint contributing in any
degree to the child's injury. Cosco retained John E. Pless, M.D.,
Director of Forensic Pathology, Department of Pathology, Indiana
University, School of Medicine, to review this issue. Dr. Pless, one
of the leading forensic pathologists in the country and, through his
work with Riley Children's Hospital in Indianapolis, one of the most
experienced pediatric pathologists, concludes that the webbing of
the Cosco soft-shield child restraints would have no practical
importance on the effects of such a fire on a child. [Dr. Pless'
report and curriculum vitae are in the docket.] Dr. Pless'
conclusions are supported by tests performed by Cosco [photographs
of the tests are in the docket.] The tests establish that the
webbing does not ``ignite'' as that term is commonly understood. The
webbing burns in a fashion that can be more accurately described as
smoldering and generally extinguishes itself after a brief period of
time. It should be noted that the tests * * * do not reflect any
possible ignition of the child restraint harness straps if the child
restraint were occupied by a child. [Cosco believes t]here is simply
no way for a source of ignition, such as a lighter, to come into
contact with the strap * * * when the child restraint is occupied by
a child.
The other possible source of ignition of the harness strap would
be from a localized heat source, such as a match or cigarette. It is
critical in the analysis of whether such a risk exists to examine
the configuration and placement of the straps of the Cosco soft-
shield child restraints. [T]hese straps only contact the child who
is occupying the child restraint at the mid-chest level, or higher
on the child's body. The straps are essentially vertical as they
leave the shield. Cosco conducted tests attempting to ignite the
harness strap with a burning cigarette. [Photographs of this test
are in the docket.] Simply stated, a lighted cigarette cannot ignite
the harness strap. Cosco conducted these tests under controlled
conditions which, frankly, seemed inconceivable to occur in the
actual use of child restraints.
For example, in order to come into contact, for any length of
time, with the child restraint harness strap, a lighted cigarette
would have to be balanced at the point where the strap emerges from
the molded shield. This is so unlikely as to be virtually
inconceivable. Dr. Pless also commented on this possibility and
indicated that such a localized heat source is ``not within the
realm of practical consideration.'' Cosco believes that any
practical examination of these issues concludes that the risk of the
ignition of the harnesses of Cosco soft-shield child restraints
could not, under any conceivable set of circumstances, result in
injury or death to the occupant of the child restraint. The
noncompliance of Cosco soft-shield child restraints is therefore
inconsequential as it relates to motor vehicle safety as set forth
in FMVSS 302.
NHTSA has given careful consideration to this argument, and
disagrees with Cosco's assertion that the straps cannot become ignited.
With respect to the photographs Cosco submitted of tests conducted on
the straps with a cigarette lighter, Cosco believes that they show that
the strap webbing smolders and then extinguishes itself without
igniting. NHTSA interprets the photographs as illustrating that the
straps support a flame which could injure a child restrained in the
child seat.
In issuing Standard No. 302 in 1971 (36 FR 289), the agency cited
matches, cigarettes or short circuits in interior wiring as examples of
sources for fires occurring in the interior of vehicles. The agency
believes that there are situations where the straps could become
ignited. One example is children in the back seat of a car, playing
with matches, a cigarette lighter, or other ignition source near a
child restrained in a Cosco seat.
In point of act, had the tests been conducted under real life
circumstances, the results could have been worse. Webbing samples are
tested horizontally, but webbing is worn vertically. If a fire begins
at the bottom of webbing, it will travel upward at a faster rate than
it would in a horizontal placement.
NHTSA considered Cosco's argument that, if fire is ``already
consuming the child restraint and/or the vehicle seat upon which the
child restraint is installed,'' the child would be injured from these
sources as opposed to the shoulder straps of the restraint. This
argument cannot seriously be presented as ground for granting an
inconsequentiality petition. If a vehicle fire is of such intensity
that it is destroying a child restraint or vehicle seat that is
certified as complying with Standard No. 302, then it will destroy the
shoulder strap as well whether or not it complies. NHTSA is concerned
with fires of less intensity, where it is critical that interior
components (the child seat as well as the components specified in
Standard No. 301) do not ignite, or if they do, that they burn at a
slow enough rate that there will be time to remove the child from the
occupant compartment.
Cosco also argued that there was no real-world indication of a
safety threat. It said that:
Cosco has never received a report of the burning of a soft-
shield harness strap. Cosco is unaware of any study that indicates
that the burning of a child restraint harness has caused any injury
or death. All occupant protection studies which Cosco has reviewed
indicate an almost infinitesimal risk of injury or death by vehicle
fires in total, at least in collisions. Cosco is unaware of any data
on fires of the interior of vehicles unrelated to collisions.
In NHTSA's view, the fact that Cosco has not received any reports
is not a sufficient basis on which to grant its petition. The present
lack of such reports does not necessarily diminish the future potential
of such incidents.
NHTSA has, in fact, received a report which may have some relevance
in this matter. The complaint was made to the agency's Auto Safety
Hotline on August 30, 1993, reporting the burning of the belt of a
Cosco child seat while placed for three hours in a vehicle parked in
sunlight. According to the report, the claimant ``[n]oticed burning
fumes and found burn marks [brownish discoloration] on the harness
straps of the child restraint where the straps had been in contact with
the top edge of the restraint's plastic shell as they lay across it.''
This incident raises concern that the burned fiber of the strap may
have weakened the strength of the harness so that it might not provide
the needed safety protection for a child occupant during a crash.
Cosco's final major argument was the owners might not respond to a
future campaign of a more serious nature, if they were notified of one
that concerned only a technical noncompliance. It argued:
That child passenger safety advocates, child restraint
manufacturers, and the Agency are aware of the negative impact of
recalls resulting from technical noncompliance or defects that do
not, as a practical matter, have true safety consequences. The most
important negative effects of such recalls are:
1. That the public, because of the number and frequency of such
recalls, pays no attention to recalls that actually affect, in a
practical way, child passenger safety; and
2. That the public, upon seeing the number of recalls, concludes
that child restraints currently available are unsafe and therefore
decline to use them. The Agency is aware and, in fact, has publicly
advised consumers to use child restraints that have defects or
noncompliances that have that have resulted in recalls until such
child restraints can be corrected. [An example of this advisement is
contained in the docket.] This is in recognition of the fact that
technical noncompliances or relatively insignificant safety defects
do not compromise the overall effectiveness of child restraints.
The statement that consumers ignore recalls because of their number
and frequency is unsubstantiated. Further, NHTSA views it equally
unlikely that, because of campaigns, consumers would conclude that
child restraints are unsafe and decline to use them. Indeed, the
opposite is more likely the case. Responses to safety notifications
depend on factors including the type of noncompliance or defect, the
type and extent of the notification campaign, media coverage, and the
efforts of manufacturers.
Future campaigns are more likely to be effective than past ones.
Standard No. 213 has been amended to provide for the registration of
child restraints. The purpose of the program is to increase the
effectiveness of campaigns to recall child seats. It requires
manufacturers to take steps that will increase their ability to inform
owners of particular child restraints about problems in these
restraints and that encourage owners to register their child seats. And
the agency does not agree that the noncompliance is ``technical'' in
nature.
NHTSA also notes that the petition failed to acknowledge that the
agency tested and retested the harness webbing in March 1993, and
encountered a more serious test failure than the 4.3 inch burn rate
presented in the petition and which reflected NHTSA's original tests.
In the second series of tests, NHTSA found burn rate test and retest
failures of 5.4 and 5.2 inches respectively. Thus the test and retest
failures uncovered by NHTSA average 4.85 inches and 4.75 inches
respectively, a margin of failure of 20%, and hardly inconsequential or
of a ``technical'' nature in the agency's opinion.
Finally, NHTSA believes flammability requirements for child
restraints should be stringently adhered to for the following reasons.
The test requirement of not more than 4 inches a minute was justified
by the need ``to prevent injury to occupants from rapidly spreading
interior fires, to allow sufficient time for the driver to stop the
vehicle, and, if necessary, for occupants to leave it before injury
occurs'' (36 FR 10817). This is even more critical in the case of child
restraints as a small child is typically not capable of exiting a
vehicle without assistance. Therefore, some additional time is required
for another person to remove the child. Moreover, the child most often
is in the rear seat and the adult is in front, also requiring
additional time to reach the child. Finally, because webbing rests
against the child's body, noncompliant webbing has a great potential
for injuring the child if ignited.
For the reasons discussed above, the agency has concluded that the
petitioner has not met its burden of persuasion that the noncompliance
herein described is inconsequential as it relates to safety, and its
petition is denied.
(15 U.S.C. 1417; delegations of authority at 49 CFR 1.50 and 49 CFR
501.8)
Issued on March 22, 1994.
Barry Felrice,
Associate Administrator for Rulemaking.
[FR Doc. 94-7158 Filed 3-25-94; 8:45 am]
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