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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

Frank S. Borris
National Highway Traffic Safety Administration
July 10, 2015


[Federal Register Volume 80, Number 132 (Friday, July 10, 2015)]
[Notices]
[Pages 39832-39835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16936]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2014-0109; 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: RECARO Child Safety, LLC (Recaro) determined that certain 
Recaro child restraints do not fully comply with the system integrity 
requirements of paragraph S5.1.1(a) of Federal Motor Vehicle Safety 
Standard (FMVSS) No. 213, Child Restraint Systems. Recaro filed an 
appropriate report, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports, that was received by NHTSA on 
July 30, 2014. Recaro also submitted a petition for an exemption from 
the notification and remedy requirements of 49 U.S.C. Chapter 301 on 
the basis of the petitioner's belief that this noncompliance is 
inconsequential to motor vehicle safety. NHTSA published a notice of 
receipt of the petition and requested comment on the petition. After 
consideration of Recaro's analysis and other information, NHTSA has 
decided to deny the petition.

ADDRESSES: For further information on this decision contact Zachary 
Fraser, Office of Vehicle Safety Compliance, the National Highway 
Traffic Safety Administration (NHTSA), telephone (202) 366-5754, 
facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION: I. Overview: 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 of the petitioner's 
belief that this noncompliance is inconsequential to motor vehicle 
safety.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on November 21, 2014 in the Federal Register (79 
FR 69551). Comments were received, from an individual, Sean Stewart, 
and from Advocates for Highway and Auto Safety (Advocates). Both 
commenters opposed the petition. Mr. Stewart believes that child 
restraint manufacturers should be required to meet the applicable 
requirements in FMVSS No. 213 regardless of the manufacturer's 
instructions and warnings. Advocates believes that ``the reasons 
provided by RECARO fail to justify determining that the non-compliance 
is inconsequential.'' To view the petition, the comments, and all 
supporting documents, log onto the Federal Docket Management System 
(FDMS) Web site at: http://www.regulations.gov/. Follow the online 
search instructions to locate docket number ``NHTSA-2014-0109.''
    II. Child Restraints Involved: Affected are approximately 78,339 
Recaro ProRIDE child restraints manufactured between April 9, 2010 and 
July 8, 2014, and approximately 42,303 Recaro Performance RIDE child 
restraints manufactured between January 15, 2013 and July 8, 2014.
    III. Noncompliance: Recaro explains that the subject child 
restraints do not comply with the system integrity requirements of 
FMVSS No. 213, paragraph S5.1.1(a), when subjected to the dynamic test 
requirements of FMVSS No. 213 S6.1. During NHTSA's compliance tests 
with the Hybrid II six-year-old child dummy and the Hybrid III weighted 
six-year-old child dummy connected to the child restraints with the 
internal harness and the child restraints attached to the test bench 
with a lap belt and top tether, the tether belt separated at the 
attachment point to the child restraints. The top tether belt 
separation exhibited a complete separation of a load bearing structural 
element. Therefore, the child restraints do not comply with the 
requirements set forth in FMVSS No. 213 S5.1.1(a).\1\
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    \1\ Petitioner informed NHTSA that production and distribution 
of the subject child restraints affected by the noncompliance were 
corrected effective July 9, 2014.
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    IV. Rule Text: Paragraph S5.1.1 of FMVSS No. 213 requires, in 
pertinent part:

    S5.1.1 Child restraint system integrity. When tested in 
accordance with S6.1, each child restraint system shall meet the 
requirements of paragraphs (a) through (c) of this section.
    (a) Exhibit no complete separation of any load bearing 
structural element and no partial separation exposing either 
surfaces with a radius of less than 1/4 inch or surfaces with 
protrusions greater than 3/8 inch above the immediate adjacent 
surrounding contactable surface of any structural element of the 
system.
* * * * *

    Under S6.1 of FMVSS No. 213, NHTSA tests child restraints with a 
child test dummy selected for use in accordance with the provisions of 
S7 of the standard. Under S7, the selection is based on the heights and 
weights of the children for whom the child restraint is sold. Under 
S7.1.2(d), NHTSA uses the Hybrid II (HII) or Hybrid III (HIII) six-
year-old child test dummy to test CRSs recommended for children with 
masses greater than 18 kg (40 lb). Under S7.1.2(e), NHTSA uses the HIII 
weighted six-year-old child test dummy to test CRSs for children with 
masses above 22.7 kg (50 lb). The children for whom Recaro sold the 
subject CRSs included children with masses from 18 kilograms (kg) (40 
pounds (lb)) to 30 kg (65 lb). Thus, under FMVSS No. 213, Recaro's 
child restraints were required to meet the child restraint system 
integrity requirements of FMVSS No. 213 when tested with the six-year-
old

[[Page 39833]]

and weighted six-year-old test dummies.\2\
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    \2\ The six-year-old dummy weighs approximately 47 lb and the 
weighted six-year-old dummy weighs approximately 62 lb.
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    V. Summary of Recaro's Position: Recaro believes that the subject 
noncompliance is inconsequential to motor vehicle safety for the 
following reasons.
    (A) Recaro believes that the FMVSS No. 213 test procedure ``is a 
direct violation of the instructions and warnings included with each 
ProRIDE and Performance RIDE child restraint and would constitute a 
misuse of the child restraint by the consumer.'' Petitioner refers to 
page 36 of the ProRIDE/Performance RIDE instruction manuals and states 
that Recaro designed and tested the ProRIDE/Performance RIDE child 
restraints ``to meet FMVSS requirements when tested according to the 
instruction manual.'' Recaro highlights a statement on page 36 that 
states: ``Additionally, LATCH and top tether anchors are designed to a 
maximum limit which can vary by vehicle. Due to this variation, RECARO 
requires use of the vehicle seat belt for any child weighing more than 
52 lbs (23.6 kg).'' \3\ Petitioner states that installation in 
accordance with the instruction manuals decreases the likelihood of top 
tether anchor failure from the vehicle. Recaro states that it has 
limited lower anchor and top tether use for the ProRIDE/Performance 
RIDE since the inception of the RIDE platform, and recently lowered the 
LATCH limit to 45 pounds from the previously stated 52 pounds to meet 
current FMVSS No. 213 requirements. Recaro also mentions that ``NHTSA 
noted in its' [sic] 2012 FMVSS 213 Final Rule response, limitations 
were added to the lower anchors to `prevent lower LATCH anchor loads 
from exceeding their required strength level specified in FMVSS 225.' 
'' Recaro states that it ``used this same rationale when they developed 
the RIDE platform in 2010 and concluded that a load limit of 52 pounds 
would be the safest for consumers.''
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    \3\ ``LATCH'' refers to Lower Anchors and Tethers for Children, 
an acronym developed by manufacturers and retailers to refer to the 
child restraint anchorage system required by FMVSS No. 225, ``Child 
restraint anchorage systems,'' for installation in motor vehicles. 
[Footnote not in text.]
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    (B) Recaro states that ``post-crash structural integrity of the 
occupant compartment is more insignificant to safety when compared to 
the injury values and excursion data gathered from testing.'' 
Petitioner also states that ``technology has shown repeatedly that 
collapse, breakage, and crumpling of material minimizes energy and 
increases the rate of survival for the occupant in the event of a 
collision.'' Recaro believes that child restraint technology has fallen 
in-line with vehicle technology in recent years and that other child 
restraints have been designated ``compliant'' even though their 
convertible shell-to-base connection has been designed to crack and 
break during the peak loading in a crash. Recaro further states that 
the top tether webbing has been designed to rip and break apart under 
extreme loads to allow the deceleration time to increase for the 
occupant in the crash event. Petitioner states that, ``As long as the 
injury criterion meets industry standards, controlled breakage has 
proven multiple times to be a positive outcome in the event of a 
vehicle crash, as seen in the RIDE platform.''
    (C) Recaro states that the ``2013 LATCH Manual'' published by Safe 
Ride News Publication ``confirms that top tether anchors in vehicles 
are becoming limited more frequently in the weight to which they can be 
subjected.'' Recaro argues that ``a majority of vehicles on the road 
instruct consumers to use top tether with load limit restrictions that 
align with RECARO's top tether load limit of 65 pounds minus the 20 
pound weight of the child restraint equaling a 45 pound load limit.'' 
Recaro also refers to documents NHTSA placed in Docket No. NHTSA-2011-
0176 regarding a 2012 final rule amending FMVSS No. 213 (77 FR 11626, 
February 27, 2012). Petitioner believes that the documents ``give 
validation to the reasoning by RECARO to limit the use of the top 
tether.''
    (D) Recaro states that it is aware that NHTSA has a clear precedent 
of denying child restraint manufacturers' petitions for inconsequential 
noncompliance concerning top tether separation. However, Recaro 
believes that ``the environment in which those decisions were made has 
changed.'' Recaro claims that the methodology it uses to limit top 
tether loads actually increases safe installations of child restraints 
by limiting the pounds of force applied and decreasing the chance 
tether anchor load failures. Recaro also believes that in the event of 
tether separation, the increase to risk of safety is non-existent 
because the head excursion limits were not exceeded in NHTSA's 
compliance tests. Petitioner indicates that the risk of the subject 
child restraints impacting objects in the vehicle is identical to, or 
better than, other compliant child restraints because both restraints 
meet the same head excursion requirements.
    Recaro states that in a previous denial of a petition for 
inconsequential noncompliance, NHTSA noted that if it granted the 
petition it would be contradictory to NHTSA's mission to promote 
greater use of LATCH and tether. Recaro believes that this reasoning is 
no longer relevant because in the aftermath of the February 2012 final 
rule, ``consumers are now more aware of the variation of tether load 
limits by vehicle manufacturers and consumers are also now becoming 
accustomed to reviewing limits to the LATCH system. This falls in line 
with the information and limits in the owner's manual provided with the 
ProRIDE and Performance RIDE.''
    (E) Recaro states that its accident reports for the four years that 
the subject restraints have been on the market indicate no incidents of 
separation in the tether anchorage area. Petitioner surmises the reason 
that tether separation occurs in testing is due to an outdated test 
bench seat and testing apparatus.
    In summation, Recaro believes that the described noncompliance of 
the subject child restraints is inconsequential to motor vehicle 
safety, and that its petition to exempt Recaro from providing recall 
notification of noncompliance, as required by 49 U.S.C. 30118, and 
remedying the recall noncompliance, as required by 49 U.S.C. 30120, 
should be granted.
    VI. NHTSA Decision:
    NHTSA's Analysis: NHTSA has reviewed Recaro's analysis and has 
decided that the subject ProRIDE and Performance RIDE restraints' 
noncompliance is not inconsequential to motor vehicle safety.
    We will now specifically address each of Recaro's arguments in the 
order presented in its petition.
    (A) Recaro first characterizes NHTSA's installation of the ProRIDE 
and Performance RIDE with a top tether as ``a direct violation of the 
instructions and warnings . . . and would constitute a misuse'' 
condition. The petitioner's reasoning is unpersuasive. Recaro 
apparently argues (the petitioner's arguments are unclear) that NHTSA 
should not have tested the child restraints attached to the test seat 
assembly with a lap belt and tether because the manufacturer instructs 
consumers to use the ``vehicle seat belt for any child weighing more 
than 52 lbs (23.6 kg).'' The petitioner is unclear but we surmise that 
Recaro is saying that because it instructs users not to use the top 
tether with children weighing more than 52 lb, NHTSA's tethering the 
CRS was in error.

[[Page 39834]]

    This view constitutes an incorrect reading of FMVSS No. 213. FMVSS 
No. 213 requires that the ProRIDE/Performance RIDE meet FMVSS No. 213's 
dynamic test requirements when installed as specified by the standard. 
Recaro recommended (marketed) the ProRIDE/Performance RIDE child 
restraints for children with masses from 18 kg (40 lb) to 30 kg (65 
lb). Under FMVSS No. 213, child restraints sold for children in this 
mass range are required to meet the standard's performance 
requirements, including the system integrity requirements, when tested 
with the six-year-old and weighted six-year-old test dummies. These 
test dummies represent the children for whom the child restraint is 
sold, and are used by NHTSA to assess the performance of the child 
restraint in protecting children intended for the restraint. If a top 
tether is necessary to meet FMVSS No. 213's 720 millimeter (mm) (28 
inch) head excursion requirement,\4\ the tether is attached when 
dynamically testing the CRS with those test dummies.\5\ The standard 
seeks to test CRSs as consumers would use the CRSs in the real world. 
There is no provision in FMVSS No. 213 that enables manufacturers to 
exclude themselves from the requirements of the standard by way of 
``fine print'' or other restrictions in instruction manuals.
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    \4\ S5.1.3.1(a)(1).
    \5\ Table to S5.1.3.1(a), S6.1.2(a)(1)(i)(A).
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    If Recaro did not wish to have its child restraints tested with the 
six-year-old and weighted six-year-old test dummies in the tethered 
condition, the manufacturer could have recommended its CRSs for 
children weighing up to 18 kg (40 lb), not 30 kg (65 lb). Since Recaro 
marketed the CRS as suitable for children over 18 kg (40 lb), the 
manufacturer is responsible for ensuring that its CRSs meet all the 
requirements of FMVSS No. 213 when tested as specified by FMVSS No. 
213, and cannot absolve itself of those responsibilities by using its 
instruction manual to limit NHTSA's assessment of the CRS in a 
compliance test.
    Mr. Stewart states in his comment opposing the petition that, ``If 
a manufacturer is allowed to bypass FMVSS 213 standards simply by 
mandating or prohibiting certain actions in the instruction manual, 
what is the point of having standards?'' NHTSA concurs with the 
commenter that FMVSS No. 213's effectiveness would be substantially 
diminished if manufacturers were generally permitted to bypass the 
standard's requirements simply by mandating or prohibiting certain 
actions in the instruction manual.
    The ProRIDE/Performance RIDE demonstrated structural integrity 
failure when the top tether belt separated at the attachment point to 
the child restraints. The top tether belt separation exhibited a 
complete separation of a load bearing structural element and therefore 
does not comply with the requirements set forth in paragraph S5.1.1(a) 
of FMVSS No. 213. 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.
    (B) NHTSA does not agree with Recaro's line of reasoning that its 
petition should be granted because ``technology has shown repeatedly 
that collapse, breakage, and crumpling of material minimizes energy and 
increases the rate of survival for the occupant in the event of a 
collision.'' The agency has consistently viewed tether strap separation 
in FMVSS No. 213 sled tests as a load bearing structural failure. A 
portion of the load of the child restraint and dummy is transferred to 
the vehicle by the top tether. A tether attachment failure in a 
compliance sled test indicates that the minimum level of occupant 
protection established by FMVSS No. 213 has not been provided.
    In requiring the upper tether anchorage on vehicles and the tether 
strap on CRSs, NHTSA noted that, ``Test data show that an attached 
tether substantially improves the ability of a child restraint to 
protect against head impacts in a crash.'' \6\ NHTSA does not agree 
with Recaro's assertion that the failure of the top tether demonstrates 
a design to allow tether breakage in order to mitigate crash forces and 
reduce the likelihood of injury to children. Rather, NHTSA believes 
that the total separation of the top tether, as seen in the Recaro 
compliance tests, demonstrates a failure of the load bearing element 
(top tether) to control forward motion of the dummy and, therefore, a 
liability in the child restraint that increases the potential for 
injury to children in real world crashes.
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    \6\ 64 FR 10786, 10802; March 5, 1999.
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    In its comment, Advocates states that--

    The damage to the child restraints in this case is unrelated to 
controlled breakage, of the RECARO restraint. For one thing, RECARO 
does not assert that the complete separation of the upper tether was 
a planned design feature of the child restraint. In addition, many 
other manufacturers have made use of controlled breakage techniques 
while still meeting all federal regulations. In this case, the 
failure of the top tether was not planned and its failure mode is 
not compliant with federal regulation. The consequences of 
unplanned, uncontrolled complete separation of a load bearing 
structural element are unknown and can be significantly dangerous if 
the failure leads to components becoming projectiles in the vehicle 
or if the failure induces a shock load to other load bearing 
structural elements.

    NHTSA concurs with Advocates' observation that the ripping out of 
the top tether on the Recaro CRSs was likely an unplanned, uncontrolled 
event, far from a sought-after engineering feat of child restraint 
technology.
    Moreover, FMVSS No. 213 does recognize the role that purposeful 
breakage in child restraint design can have in improving energy 
absorption performance. However, such breakage is and must be limited 
by the standard. S5.1.1 permits partial separations that do not result 
in sharp edges that may contact an occupant. Breakage of the CRS such 
as that demonstrated by the Recaro child restraints demonstrates a lack 
of system integrity and is prohibited by S5.1.1, FMVSS No. 213.
    We disagree with Recaro's statement that ``post-crash structural 
integrity of the occupant compartment is more insignificant to safety 
when compared to the injury values and excursion data gathered from 
testing.'' Each of the requirements in FMVSS No. 213 addresses a safety 
need. The commenters address this issue well. Advocates states: ``NHTSA 
specifically included the prohibition against complete separation of 
any load bearing structural element specifically because the dangers 
associated with this occurrence were not addressed by the injury 
criteria alone.'' Mr. Stewart observes: ``If a seat breaks in half 
during testing but the dummy records lower injury measurement does the 
manufacturer get away with claiming that they designed it to break in 
half on purpose--as a way to manage energy?'' Child restraints must be 
able to hold together in a crash and safely manage the crash forces on 
the child occupant. To accomplish this, all requirements of the 
standard must be met.
    We further note that the weighted six-year-old child test dummy is 
not instrumented and is not used to measure injury values and excursion 
limits when testing CRSs under FMVSS No. 213.\7\ Accordingly, the 
structural integrity requirement is especially pertinent in assessing 
the crash performance of the subject Recaro child restraints when used 
with children weighing above 22.7 kg (50 lb), since

[[Page 39835]]

that is the only dynamic performance requirement that applies to the 
CRSs. Failure to comply with the requirement is not inconsequential to 
safety.
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    \7\ See S5(d) of FMVSS No. 213.
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    NHTSA has taken enforcement action for similar failures. In 2001, 
the agency notified Britax Child Safety, Inc., (Britax) of a potential 
noncompliance due to the detachment of a tether strap during dynamic 
testing of one of its child restraint models. Britax initiated a recall 
campaign to provide owners of the affected model with repair kits. In 
2007, the agency notified Britax of a potential noncompliance due to 
the tether hook opening during dynamic testing of one of its child 
restraint models. Britax initiated a recall campaign to provide owners 
of the affected model with new tether hooks.
    (C) The materials cited by the petitioner have no bearing on the 
merits of Recaro's petition. As explained above in NHTSA's response to 
Recaro's first argument, FMVSS No. 213 requires that the ProRIDE and 
Performance RIDE child restraints meet the structural integrity 
requirements when installed with the top tether. NHTSA does not know of 
any current material published on use of child restraint top tethers 
that supports not using the child restraint's top tether.
    (D) Recaro's statement that ``the environment in which [previous 
denials of inconsequentiality petitions on tether failures] were made 
has changed'' is incorrect. NHTSA does not know of any current material 
published on use of child restraint top tethers that supports not using 
the child restraint's top tether. Moreover, granting the petition would 
be contradictory to NHTSA's mission to promote greater use of the top 
tether.
    (E) The shortcoming in Recaro's design to meet the applicable FMVSS 
No. 213 dynamic test requirements poses an unacceptable safety risk. 
The risk exists and is unacceptable even if there has been no incident 
of separation in the tether anchorage area thus far.\8\ NHTSA does not 
agree that the tether separation occurs in testing due to the testing 
equipment \9\ but rather as a shortcoming in Recaro's design to meet 
the applicable FMVSS No. 213 dynamic test requirements.
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    \8\ If in fact consumers are not using the tether with children 
over 52 lb in accordance with Recaro's instructions, then it follows 
that there would not be reports of tether failure. However, the 
children would not be benefiting from use of the tether in a crash. 
Recaro should have designed its restraints such that they could meet 
the structural integrity requirement when tethered, to afford the 
children the benefits of a structurally sound CRS and the benefits 
of the tether.
    \9\ No data or information was submitted by the petitioner to 
support this claim.
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    NHTSA'S Decision: In consideration of the foregoing, NHTSA has 
decided that the ProRIDE and Performance RIDE's noncompliance poses a 
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 is obligated to provide notification of, 
and a 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)

Frank S. Borris,
Acting Associate Administrator for Enforcement.
[FR Doc. 2015-16936 Filed 7-9-15; 8:45 am]
 BILLING CODE 4910-59-P
 

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