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Dorel Juvenile Group; Denial of Appeal of Decision on Inconsequential Noncompliance

American Government Special Collections Reference Desk

American Government Topics:  Dorel

Dorel Juvenile Group; Denial of Appeal of Decision on Inconsequential Noncompliance

Ronald L. Medford
National Highway Traffic Safety Administration
January 5, 2010

[Federal Register: January 5, 2010 (Volume 75, Number 2)]
[Notices]               
[Page 507-516]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05ja10-162]                         

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2008-0132]

 
Dorel Juvenile Group; Denial of Appeal of Decision on 
Inconsequential Noncompliance

    Dorel Juvenile Group (DJG or Cosco), of Columbus, Indiana, has 
appealed a decision by the National Highway Traffic Safety 
Administration (NHTSA) that denied its petitions for determinations 
that the noncompliance of the tether and harness webbing in some child 
restraint systems (CRS) that it manufactured and sold with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 213, ``Child Restraint 
Systems,'' is inconsequential to safety. DJG had applied to be exempt 
from the notification and remedy (collectively, recall) requirements of 
49 U.S.C. Chapter 301--``Motor Vehicle Safety'' (Vehicle Safety Act). 
This notice announces and explains our denial of DJG's appeal.

I. Webbing Strength Requirements of FMVSS No. 213

    FMVSS No. 213, S5.4.1(a) \1\ requires that the webbing of belts 
provided with a child restraint system, after being subjected to 
abrasion as specified in S5.1(d) or S5.3(c) of FMVSS No. 209, ``Seat 
Belt Assemblies,'' have a breaking strength of not less than 75 percent 
of the strength of the unabraded webbing when tested by the procedure 
specified in S5.1(b) of FMVSS No. 209. The test is referred to as an 
abrasion test and the requirement is referred to as a percent-of-
strength requirement.
---------------------------------------------------------------------------

    \1\ Throughout this Notice, references to FMVSS No. 213 are, 
unless otherwise noted, based on the version of the standard in 
effect at the time DJG manufactured the child restraints with the 
noncompliant webbing.
---------------------------------------------------------------------------

    FMVSS No. 213, S5.4.1(b) requires that the webbing of belts 
provided with a child restraint system shall meet the requirements of 
S4.2(e) of FMVSS No. 209, which requires a breaking strength of not 
less than 60 percent of the strength before exposure to carbon arc 
light when tested by the procedure specified in S5.1(e) of FMVSS No. 
209. The test is referred to as a light exposure test and the 
requirement is referred to as a percent-of-strength requirement.
    Webbings used in child restraints may deteriorate from abrasion or 
exposure to sunlight or both. When they deteriorate, they lose 
strength. A webbing with insufficient strength will not restrain a 
child in a crash. The purpose of both the abrasion and light exposure 
requirements is to ``ensure the safe performance of the belts and 
associated hardware used to attach the child restraint to the 
vehicle.'' Child Restraint Systems; Seat Belt Assemblies and 
Anchorages: Proposed Rulemaking and Invitation for Applications for 
Financial Assistance, 43 FR 21470, 21475 (May 18, 1978) (Docket No. 74-
9). The purpose of FMVSS No. 213 is to ``reduce the number of children 
killed or injured in motor vehicle crashes.'' 49 CFR 571.213 S2.

II. The Noncompliance

    The noncompliant tether webbing \2\ on certain DJG child restraints 
failed to meet the percent-of-strength requirement of FMVSS No. 213 
when subjected to the abrasion test. The tether webbing had an initial 
strength of 19,803 Newtons (N), and a post-abrasion strength of 10,903 
N. The tether webbing thus retained only 55 percent of its new webbing 
strength; 75 percent is required by the standard. Affected are a total 
of 39 models and 3,957,826 units, manufactured between January 2000 and 
September 30, 2001.
---------------------------------------------------------------------------

    \2\ ``Tether webbing'' refers to the strip of fabric that is 
secured to the seat back of a CRS, and is connected to a tether hook 
that transfers the load from the CRS to the tether anchorage.
---------------------------------------------------------------------------

    The noncompliant harness webbing on certain DJG child restraints 
failed to meet the percent-of-strength requirement of FMVSS No. 213 
when exposed to a carbon arc light. Upon testing, the new harness 
webbing had a strength of 12,371 N, and the light-exposed webbing a 
strength of 4,539 N. The harness webbing thus retained only 37 percent 
of its new webbing strength; 60 percent is required by the standard. A 
total of 14 models and 54,400 units, manufactured between March 15, 
2002 and August 1, 2002, are affected by this non-compliance.

[[Page 508]]

III. DJG's Inconsequentiality Petitions, Subsequent Rulemaking and 
NHTSA's Denial

1. DJG's Petitions

    DJG petitioned for relief from the recall provisions of the Vehicle 
Safety Act with respect to both the tether webbing noncompliance and 
the harness webbing noncompliance. See 49 U.S.C. 30118(d), 30120(h); 49 
CFR part 556. NHTSA published receipt of DJG's applications for 
determination of inconsequential non-compliance regarding the tether 
webbing and the harness webbing on July 30, 2002 and December 3, 2002, 
in the Federal Register (67 FR 49387 and 67 FR 72025, respectively).
    DJG argued that the noncompliance of the tether webbing was 
inconsequential to safety because the absolute strength of the abraded 
webbing was sufficiently high. DJG also argued that the abrasion test 
in effect at the time the tethers were manufactured was flawed: Since 
it lacked a minimum breaking strength requirement, webbing with a 
relatively low unabraded strength was subject to a correspondingly low 
abraded strength requirement, while webbing with a relatively high 
unabraded strength--such as that in child restraints manufactured by 
DJG--was subject to a proportionately higher post-abrasion strength 
requirement. Thus, DJG argued that the noncompliance with the abrasion 
test was inconsequential because, even though the abraded webbing 
retained only 55 percent of the strength of the new webbing, the post-
abrasion strength was nonetheless adequate due to the relatively high 
strength of the new webbing. To support this contention, DJG argued 
that the strength of the abraded webbing (10,903 N) exceeded the anchor 
strength requirements of FMVSS No. 225, Child Restraint Anchorage 
Systems (5,296 N). DJG further argued that testing, both by it and in 
connection with the FMVSS No. 225 rulemaking, demonstrated that the 
strength of the abraded webbing exceeded both the loading on tethers 
observed in dynamic testing (between 3,400 N and 5,800 N) and the 
tether assembly break strength as determined in tensile strength tests 
(about 9,800 N). DJG asserted that, since the design of the tether 
assembly uses two belt slides that act as a manual adjuster, the tether 
strap is not exposed to abrasion in ordinary and reasonably foreseeable 
use.
    With respect to the harness webbing noncompliance, DJG again argued 
that the absence of a minimum strength requirement in the exposure test 
penalized manufacturers of child restraints with webbing with a high 
pre-exposure strength. DJG argued that the noncompliance of its webbing 
was inconsequential to safety because the strength of the webbing, even 
after exposure, exceeded the loads observed in dynamic tests. DJG 
maintained that the absence of a minimum strength requirement would 
allow manufacturers to produce compliant webbing with low pre-exposure 
strength. DJG also asserted that while the webbing was noncompliant 
when exposed to carbon arc light filtered by a Corex-D filter, the 
webbing was compliant when exposed to xenon arc light.\3\ DJG argued 
that carbon arc light does not have the same spectral characteristics 
as sunlight and delivers excessive relative photon energy to the test 
specimen in the ultraviolet and low visual spectrum which is more 
damaging than natural sunlight. However, it noted that xenon arc light 
systems more closely resemble natural sunlight characteristics. DJG 
also contended that carbon arc light systems are now obsolete since 
they have been replaced by xenon arc systems.
---------------------------------------------------------------------------

    \3\ DJG also argued that the webbing was compliant when exposed 
to carbon arc light filtered by a soda-lime glass filter, but does 
not reassert this argument on appeal.
---------------------------------------------------------------------------

    With respect to the first petition, one comment was received from 
Advocates for Highway and Auto Safety (Advocates) in support of a 
minimum breaking strength requirement. With respect to the second 
petition, no comments were received.

2. The 2006 Rule

    NHTSA gave considerable attention to the statements and comment 
suggesting a minimum breaking strength requirement. In 2005, NHTSA 
initiated a rulemaking with respect to minimum breaking strength for 
webbing in child restraints. In 2006, NHTSA published a final rule that 
amended FMVSS No. 213 to include a minimum breaking strength of 15,000 
N for new webbing used to secure a child restraint system to the 
vehicle (including the tether and lower anchorages of a child restraint 
anchorage system). Child Restraint Systems; Final Rule, 71 FR 32855 
(June 7, 2006), codified at 49 CFR 571.213 S5.4.1.2(a). NHTSA noted 
that without a specified initial breaking strength requirement, the 
percentage-of-strength requirement alone did not provide an effective 
floor for acceptable performance. 71 FR 32858; see 49 CFR 571.213 
S5.4.1.2(b). The rule maintained the minimum percentage-of-strength of 
new webbing requirement, as a means of limiting degradation. 71 FR 
32858. The agency concluded that ``[a]n excessive degradation rate 
(e.g., over 25% when subjected to the abrasion test) indicates a 
problem with the quality and/or durability of the selected material.'' 
71 FR 32858. The agency expressed its desire to prevent the use of 
webbing that degraded more than 25 percent when abraded, or 40 percent 
when exposed to light, because it may not last as long as necessary to 
protect children using the restraint (including for second-hand 
use).\4\
---------------------------------------------------------------------------

    \4\ Information available at the time of a decision on an 
inconsequentiality petition may be considered in making the 
decision; this includes information in rulemakings that post dated 
the violation. However, the motor vehicle equipment would not be in 
violation of a rule that was adopted after the equipment was 
manufactured.
---------------------------------------------------------------------------

3. NHTSA's Decision on Dorel's Inconsequentiality Petitions

    On July 18, 2008, NHTSA published a notice in the Federal Register 
denying both of DJG's petitions (73 FR 41397), stating that the 
petitioner had not met its burden of persuasion that the noncompliances 
were inconsequential to motor vehicle safety. In its denial of the 
petitions, NHTSA noted that at the time of receiving these petitions, 
NHTSA had undertaken a rulemaking to consider whether to amend FMVSS 
No. 213 to require a minimum breaking strength for CRS webbing. NHTSA 
had postponed final determinations on these petitions in order to 
obtain the benefit of public comments responding to the proposed 
breaking strength requirements. After completing this rulemaking 
action--specifying both a minimum breaking strength and a percentage-
of-strength retention after abrasion and light exposure (discussed 
above)--NHTSA addressed these two DJG petitions for determination of 
inconsequential noncompliance.
    In its denial of the petition relating to the tether webbing, NHTSA 
explained that both the unabraded webbing strength and the degradation 
rate requirements are important from a safety perspective. NHTSA stated 
that the lack of sufficient breaking strength retention after the 
abrasion test signals a distinct probability that the webbing strength 
would be insufficient throughout a lifetime of use. The high 
degradation rate of the DJG tether webbing meant that, over time, the 
webbing could abrade to the point where the webbing strength is lower 
than the tether anchor strength, providing for an unsafe connection to 
the vehicle. NHTSA also noted that, under the 2006 rule, the minimum 
strength for new webbing is 15,000 N. That rule did not change the 75 
percent strength retention requirement.

[[Page 509]]

    In its denial of the petition relating to the harness webbing, 
NHTSA stated that DJG's concern that under a standard that lacks a 
specific minimum strength requirement, manufacturers could produce 
webbing with very low after-exposure strength if the pre-exposure 
strength was also low, was theoretical; NHTSA also noted that minimum 
breaking strengths were added to the standard in 2006. NHTSA also 
stated that carbon arc light filtered by a soda-lime glass is not in 
accordance with FMVSS No. 213 requirements and is not appropriate for 
light exposure testing of nylon webbing. Requirements for carbon arc 
light exposure testing with a soda-lime glass filter are clearly 
specified only for polyester materials. NHTSA also stated that its 
rulemaking to use xenon arc light for weathering tests of glazing 
material does not mean that the carbon arc is not indicative of the 
sunlight spectral power distribution or that it produces invalid 
weathering results for webbing materials. In response to DJG's argument 
regarding dynamic testing, NHTSA pointed out that the test conditions 
in FMVSS No. 213 reflect the concern that child restraint systems will 
withstand even the most severe crashes which are well above 30 mph. 
Therefore, DJG's assertion was not persuasive evidence of the 
noncompliance being inconsequential to safety.

IV. DJG's Appeal

    On August 1, 2008, DJG appealed NHTSA's denials of both petitions. 
Notice of the appeal with an opportunity for comment was published in 
the Federal Register on Wednesday, November 26, 2008 (73 FR 72111).

Tether Webbing

    In its appeal, DJG reiterates the arguments it made in its initial 
petition that the strength of the abraded webbing is sufficiently 
higher than reasonably foreseeable crash forces, since the strength of 
the abraded webbing exceeded both the loading on tethers observed in 
dynamic testing and the break strength of the tether assembly 
(particularly the tether hook) as determined in tensile strength tests. 
DJG's appeal goes on to note that NHTSA's initial decision relied on a 
concern that the webbing might not retain sufficient strength 
throughout a lifetime of use. DJG makes several arguments in response 
to this concern.
    DJG argues that NHTSA has recognized that a child restraint system 
should not be used beyond its useful life and that a NHTSA Tip (as well 
as a Juvenile Products Manufacturers Association guideline) for the 
useful life of child restraints is 6 years. DJG notes that most of the 
noncompliant CRSs are already beyond this useful life given the passage 
of time between the filing of DJG's petition and the denial decision. 
DJG further points out that there have been no complaints of tether 
webbing degradation or failure in crashes. Accordingly, it asserts, 
since the purpose of the regulation is to protect children throughout 
the useful life of the restraint, this performance demonstrates that it 
has been adequate. Moreover, DJG argues that this performance resolves 
NHTSA's concern.
    DJG also asserts that the noncompliance is inconsequential to 
safety because the degradation allowed for CRS webbing is identical to 
that for vehicle seat belts, even though, DJG argues, vehicle seat 
belts are expected to last longer and are subject to more use than is 
CRS webbing. DJG claims that the vehicle seat belt assembly is expected 
to last the life of the vehicle which, DJG asserts, is up to twice as 
long as the useful life of a CRS. DJG also maintains that the tether 
webbing is subject to less-frequent use than is seat belt webbing, 
because there will always be a driver when a CRS is used in a vehicle, 
but the reverse is not true. DJG argues that this is particularly true 
in the case of the convertible restraints at issue in its appeal, where 
the tether is not used when the restraint is installed in the rear-
facing position or when used as a booster seat. DJG concludes, based on 
these arguments, that it is unreasonable for the agency to conclude 
that the noncompliant tether webbing creates a consequential safety 
risk because it ``degrades somewhat more than 75 percent'' in the 
abrasion test.
    Next, DJG argues that, in everyday use, the noncompliant webbing is 
not subject to the severe abrasion simulated in the test. DJG provides 
tether webbing strength data for a small sample of compliant and 
noncompliant used child restraints showing that the tether webbing 
strength after 6 to 8 years of use ranges from 82.4 to 99.6 percent of 
initial breaking strength. DJG argues that these test results show that 
the tether webbing from compliant and noncompliant child restraints 
performed comparably, and demonstrate that NHTSA need not be concerned 
about degradation. In addition, on December 26, 2008, DJG submitted 
supplemental data from eight used noncompliant child restraints (8-9 
years old) that showed that tether strength, after being used in the 
field, ranged from 15,168 N (3,410 pounds) to 19,038 N (4,280 pounds) 
(76.6 to 96.1 percent of new tether webbing strength). DJG argues that 
the strength of these used tethers is greater than the current minimum 
breaking strength requirement of 15,000 N for new tether webbing. DJG 
also argues that the location and two-belt slide design of the tether 
guarantee that it is not exposed to abrasion in ordinary and reasonably 
foreseeable use.
    DJG also contends that the noncompliance does not significantly 
increase the risk of harm to children in crashes, compared to compliant 
webbing, because the post-abrasion strength of the non-compliant 
webbing is just 3 percent below what DJG argues is the ``effective 
minimum'' required by the current standard. The revision of FMVSS No. 
213, effective September 2007, requires that new (unabraded) webbing 
have a minimum breaking strength of at least 15,000 N. DJG argues that 
75 percent of 15,000 implies what DJG terms an ``effective minimum'' of 
11,250 N. DJG further argues that since the tether's post-abrasion 
strength (10,903 N) is just 3 percent less than this ``effective 
minimum,'' the noncompliance is inconsequential to safety.
    Then, DJG maintains that its petition is analogous to an 
inconsequentiality petition for tether webbing that degraded on certain 
Evenflo child restraints that NHTSA did grant. DJG states that the 
Evenflo grant was based on both dynamic testing and a favorable 
evaluation of the webbing under the regulations in effect from 1971-
1979 for a Type 3 belt. DJG argues that its petition was supported with 
similar dynamic test data demonstrating that the noncompliant tether 
webbing exceeded measured maximum tensile loads in dynamic testing. DJG 
also argues that the webbing would have satisfied the prior version of 
NHTSA's regulations for a Type 3 belt.
    Finally, DJG asserts that compliance test results in connection 
with NHTSA's rulemaking on minimum breaking strength requirements 
(docket no. NHTSA-2005-21243-0002) demonstrate that DJG's tether 
webbing post-abrasion breaking strength was higher than the post-
abrasion breaking strength for at least one Britax model in the 
marketplace at the time. DJG asserts that since this Britax webbing 
complied with the FMVSS No. 213 requirements, its noncompliant tether 
webbing with a post-abrasion tether breaking strength of more than two 
times that of the Britax webbing poses no safety risk.

Harness Webbing

    DJG also argues that the harness webbing noncompliance is 
inconsequential to safety.
    First, DJG argues that a xenon arc lamp is a better surrogate of 
sunlight

[[Page 510]]

exposure than a carbon arc lamp, and that the carbon arc lamp is 
obsolete. DJG argues that while the webbing (made of nylon fabric) was 
noncompliant when exposed to carbon arc light filtered by a Corex-D 
filter (tested according to the standard's specifications), the harness 
webbing retained 93.5 percent of its initial breaking strength when it 
was exposed to a xenon arc lamp for 300 hours (3 times longer than that 
required by the standard). DJG also notes that FMVSS No. 205 specifies 
a xenon arc lamp to test glazing materials, and notes NHTSA's 
discussion of the use of xenon arc lamps in this context.
    Second, DJG asserts that the breaking strength of its light-exposed 
harness webbing exceeded the corresponding harness loads in 30 mph sled 
tests. The median dynamic load in the 30 mph sled tests was 1,138 N, 
which DJG estimates corresponds to a load of 4,552 N in a 60 mph crash. 
DJG argues that this is virtually identical to the breaking strength of 
the exposed DJG webbing (4,539 N), and no child restraint is expected 
to afford protection in a 60 mph crash. DJG states that while NHTSA's 
initial decision stated that a 30 mph test is not indicative of the 
upper limit of safety, NHTSA granted three separate petitions in which 
a 30 mph dynamic test was wholly, or in part, stated as a reason for 
granting the petition.
    Third, on December 26, 2008, DJG provided supplemental data from 
four used noncompliant child restraints showing that the harness 
webbing strength, after real world use, ranged from 8,665 N (1,948 
pounds) to 11,000 N (2,473 pounds). DJG notes that all these values 
exceed 60 percent of the breaking strength of the original new harness 
webbing. DJG also references the 2006 rule's minimum breaking strength 
for new webbing and states that a post-exposure strength of 60 percent 
of this is allowable. DJG argues that this data shows that no safety 
problem exists.
    Fourth, DJG maintains that its post-exposure webbing strength is 
greater than that of compliant Safeline webbing, which had low initial 
breaking strength. (NHTSA Docket 2005-21243-0002, Table 4). DJG argues 
that its webbing cannot pose a consequential risk to safety if webbing 
with a lower post-exposure strength is compliant.
    Fifth, DJG argues that NHTSA's concerns about degradation are 
belied by an absence of consumer complaints.

V. Comments Submitted on the Notice of Appeal

    In response to DJG's appeal, Joe Colella of Traffic Safety Projects 
commented that requiring the repair of child restraints that were 
manufactured more than 6 years ago conflicts with the consistent 
educational messaging that NHTSA and other organizations try to 
maintain regarding the use of older child restraints. NHTSA includes on 
its website a recommendation developed by child restraint manufacturers 
that a second-hand child safety restraint is recommended for use only 
if it is less than 6 years old. According to Mr. Colella, requiring the 
repair of these affected seats would potentially keep them in use for 
several more years, which the commenter believes could place child 
occupants at increased risk of injury. Mr. Colella also reiterates the 
comment made by Advocates, and states that NHTSA should fully evaluate 
whether there are real safety implications for the actual abraded or 
exposed webbing.

VI. NHTSA's Consideration of DJG's Inconsequentiality Petition

A. General Principles

    Manufacturers may not sell motor vehicles or equipment unless they 
comply with the applicable motor vehicle safety standards. 49 U.S.C. 
30112(a)(1). Manufacturers whose products fail to comply with these 
standards 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. A 
manufacturer may, however, petition for exemption from these 
notification and remedy requirements on the grounds that the 
noncompliance is inconsequential to motor vehicle safety. 49 U.S.C. 
30118(d); 30120(h); 49 CFR 556.4(a). The petitioner bears the burden of 
demonstrating that the noncompliance is inconsequential to safety. See 
General Motors Corp; Ruling on Petition for Determination of 
Inconsequential Noncompliance, 69 FR 19897 (April 14, 2004) (NHTSA 
2002-12366). NHTSA must publish a notice of the petition in the Federal 
Register and allow an opportunity for members of the public to present 
information, views, and arguments on the petition. Sec.  556.5. An 
absence of opposing argument and data, however, does not require the 
agency to grant the petition. General Motors Corp, 69 FR 19899.
    In order to demonstrate inconsequentiality, the petitioner must 
demonstrate that the noncompliance ``do[es] not create a significant 
safety risk.'' Cosco, Inc.: Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999) 
(NHTSA-98-4033). The relevant issue is whether an occupant who is 
affected by the noncompliance is likely to be exposed to a 
significantly greater risk than an occupant using a compliant vehicle 
or equipment. GM Corp., 69 FR 19900; Cosco, Inc., 64 FR 29409. The 
number or percentage of vehicles or equipment affected by the 
noncompliance is not relevant to the issue of consequentiality. GM 
Corp., 69 FR 19900; Cosco, Inc., 64 FR 29409. Further, a 
consequentiality petition is not the appropriate means to challenge the 
methodology of a specific test specified in a FMVSS, or to argue that 
the specified test is unreasonable because of a low likelihood of 
encountering, in actual use, the problem the test is designed to 
prevent. Int'l Truck and Engine Corp.; Denial of Application for 
Inconsequential Noncompliance, 68 FR 20043, 20044 (April 23, 2003) 
(NHTSA 2002-12005). The appropriate venue for such arguments is a 
petition for rulemaking to amend the current safety standard. Id.
    The agency rarely grants inconsequentiality petitions for 
noncompliance with performance standards. GM Corp., 69 FR 19899 (and 
decisions cited therein). See also Cosco, Inc., 64 FR 29408. In GM 
Corp. the agency denied, in part, an inconsequentiality petition by GM 
regarding non-compliance with FMVSS No. 209. There, a number of models 
of seat belt retractors did not comply with the performance 
requirements pertaining to emergency locking. GM supported its petition 
with a risk analysis--which estimated that very few occupants would be 
exposed to noncomplying equipment--and with the results of dynamic 
tests. Id. at 19899. The agency found that the risk analysis was not 
compelling because ``the percentage of potential occupants that could 
be adversely affected by a noncompliance is irrelevant'' to the 
inconsequentiality analysis. Id. at 19900. The agency did, however, 
consider the dynamic test data provided by GM. GM used the tests to 
evaluate the safety-related performance of the compliant and 
noncompliant retractors. The agency found that for one class of 
vehicles in which certain noncompliant retractors were installed, there 
were extremely small differences between the compliant and noncompliant 
retractors with respect to seat belt payout and locking time. Since the 
noncompliant retractors did not expose a vehicle occupant to a 
significantly greater risk, the agency granted the petition with 
respect to retractors in that class of vehicles. However, for other 
retractors

[[Page 511]]

in a different class of vehicles, there was a significant difference in 
the performance of the compliant and noncompliant retractors. 
Accordingly, the agency denied the petition with respect to retractors 
installed in that class of vehicles.

B. Assessment of DJG's Arguments in Support of Its Petitions

    The agency has determined that DJG has not met its burden of 
persuasion that the noncompliances are inconsequential to safety. The 
agency is thus denying the appeals with respect to both the tether and 
harness webbing. The agency's reasons for the denial of each appeal are 
discussed below.
Tether Webbing
    The agency finds that the arguments DJG reasserts from its original 
petition, as well as its new arguments, are unpersuasive.
    DJG argues that the strength of the abraded webbing is sufficiently 
higher than reasonably foreseeable crash forces, since the strength of 
the abraded webbing as measured after the abrasion test exceeded both 
the loading on tethers observed in dynamic testing, and the break 
strength of the tether assembly (particularly the tether hook) as 
determined in tensile strength tests. DJG's argument amounts to an 
assertion that from a safety perspective, all that matters is whether 
webbing that has been subjected to the abrasion test is stronger than 
some minimum strength. This approach is inconsistent with the two-
faceted regulatory structure that NHTSA adopted in the 2005-2006 
rulemaking.
    In the 2005-2006 rulemaking that amended FMVSS No. 213, NHTSA 
explicitly considered--and ultimately rejected--DJG's approach. The 
2005 NPRM proposed amending FMVSS No. 213 so that webbing, before and 
after abrasion, would have to meet or exceed specified minimum breaking 
strengths. 70 FR 37732, 37739. As specified in the proposed rule, the 
regulatory gauge would be breaking strength. The agency 
``tentative[ely] conclude[d]'' that the percent of strength requirement 
that had been in the rule up to that point was no longer necessary, and 
that holding abraded webbing to this minimum strength requirement was 
sufficient to ensure adequate webbing strength, and thus, safety. 70 FR 
37732.
    However, after receiving comments on this proposed rule, the agency 
concluded that the final rule should have two facets: It should retain 
the historical percent of strength requirement for abraded webbing, and 
add a minimum strength requirement for new webbing. See 49 CFR 571.213 
S5.4.1.2(a), (b). One commenter that manufactures child restraints 
(Britax) pointed out that the proposed rule ``potentially permits a 
greater percentage of degradation'' and that this ``wider window of 
degradability'' could lead to an increased safety risk. 71 FR 32858. 
The agency concluded, in the final rule, that the proposed minimum 
strength requirement for abraded webbing ``did not sufficiently limit 
the degradation rate of webbing material and thus did not adequately 
fulfill the second of the agency's goals for the rulemaking.'' 71 FR 
32858. As the agency explained, the fact that webbing has a particular 
strength after being subjected to the abrasion test does not mean that 
further degradation is not possible. See 71 FR 32858-32859. The 
abrasion test is intended to be a measure of material durability and 
performance, but, is ``not intended to and [does] not assess how strong 
a particular tested specimen will be at the end of its life.'' 71 FR 
32859. Rather, the test is an accelerated aging test which measures how 
the webbing performs after prolonged--but not necessarily lifetime--
exposure to environmental conditions. Id. Accordingly, the fact that 
the strength of the webbing, after being subjected to the abrasion 
test, exceeds the required or actual strength of the tether assembly or 
the tether loads observed in dynamic tests, is not dispositive. Over an 
entire lifetime of actual use the webbing strength could degrade to 
levels even lower than observed after the abrasion test, and the 
degradation rates are indicative of further degradation: ``Exceeding 
the degradation rates of the standard indicates a quality problem with 
the webbing material selection and raises concern that the webbing may 
not satisfactorily perform at the end of its product life as it did at 
the beginning, even if the exposed webbing has a breaking strength that 
is higher in magnitude than a competitor's webbing that met the 
percent-of-strength requirement.'' 71 FR 32859. Accordingly, the 2006 
final rule retained the 75 percent of strength requirement for abraded 
webbing.
    The noncompliant DJG webbing degraded to 55 percent of its 
unabraded strength in the abrasion test. The high degradation rate of 
the DJG webbing gives significant justification for concerns that the 
webbing could further abrade to the point where the webbing strength is 
lower than the tether anchor strength or the tether loads observed in 
dynamic tests, providing for an unsafe connection to the vehicle.\5\
---------------------------------------------------------------------------

    \5\ DJG asserts that NHTSA has provided no evidence for its 
concern about webbing degradation. As NHTSA pointed out in the 
preamble to the 2006 final rule, the use of a degradation rate for 
material selection and performance is standard industry practice and 
is supported by the engineering literature. 71 FR 32858. And, more 
specifically, the 75% post-abrasion strength retention requirement, 
expressed as a percentage of the webbing's pre-abrasion strength, 
was based on ``an SAE standard (Motor Vehicle Seat Belt Assemblies 
SAE J4C, 1966) whose requirements were originally adopted into FMVSS 
No. 209, and subsequently into FMVSS No. 213.'' Child Restraint 
Systems; Notice of proposed Rulemaking, 70 FR 37733 (June 30, 2005) 
(NHTSA-2005-21243). There is also empirical evidence that webbing 
strength degrades after being exposed to the abrasion test. See 
Louise Robinson, Health and Safety Laboratory, Assessment of the 
effects of different types of abrasion on the tensile strength of 
safety harness and lanyard webbings (2007), at http://
www.hse.gov.uk/research/hsl_pdf/2007/hsl0712.pdf (last visited 
Sept. 9, 2009) (study finding that webbing subjected to 5,000 cycles 
of the FMVSS No. 209 hexagonal bar abrasion test had lower tensile 
strength than webbing subjected to 1,000 cycles of the test).
---------------------------------------------------------------------------

    DJG, in response to NHTSA's degradation concerns, asserts that most 
of the child restraints at issue are now more than seven years old and 
beyond their useful life. DJG adds that there have been no complaints 
of tether webbing abrasion or failure in crashes. DJG concludes in its 
appeal that this proves that the noncompliance of the tether and 
harness webbing is inconsequential to safety. Similarly, Mr. Colella 
argues that requiring recall of the noncompliant restraints would 
potentially keep them in use for several more years, perhaps placing 
children occupants at increased risk of injury.
    The assertion by DJG that the majority of the subject noncompliant 
restraints are already beyond their useful life is essentially a claim 
that only a small number or percentage of child restraints actually in 
use would be noncompliant. This type of argument is not relevant to the 
inconsequentiality analysis. See GM Corp., 69 FR 19899; Costco, Inc., 
64 FR 29408. Even assuming, however, that this assertion, if proved, 
would provide sufficient grounds for granting an inconsequentiality 
petition, the agency has concluded that DJG has not shown that the 
restraints could not and would not be used by a parent to restrain a 
child. Current industry practice is to place an expiration date on new 
child restraints. However, the noncompliant DJG child restraints lack 
such labeling so that a person owning a noncompliant DJG restraint 
might not be aware that the age of the restraint exceeded the 
recommended retirement age. Additionally, despite the recommendation of 
JPMA and consumer organizations for a 6 year useful lifespan, even 
consumers that hear

[[Page 512]]

about these recommendations might not heed them--particularly in tough 
economic times--and continue, instead, to use the noncompliant child 
restraints. In any event, NHTSA does not accept the assertion that an 
industry recommendation on product life span terminates a 
manufacturer's recall responsibilities.
    DJG goes on to argue that not only are the noncompliant restraints 
past their ``useful lives,'' there also have been no complaints of 
tether webbing abrasion or failure during the entire time the 
restraints have been in use. NHTSA, however, does not consider the 
absence of complaints to show that the noncompliances are 
inconsequential to safety. The overall concern with the abrasion test 
is the degradation of the strength of the webbing. The degradation of 
the abraded tethers was very high. Particularly on older products, 
which may have been handed down, 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.
    DJG's comparison of the safety standard for tether webbing to the 
similar standard for vehicle seat belt webbing does not meet its 
burden. This argument challenges the reasonableness of the standard, 
and, as such, is inapt for an inconsequentiality petition. Child 
restraint manufacturers, such as DJG, had opportunity to challenge the 
incorporation of the FMVSS No. 209 requirements into FMVSS No. 213 
during the rulemaking process and they did not. Even assuming that 
these arguments are relevant, the agency does not accept them. DJG's 
argument that it is unreasonable to subject CRS webbing to the same 
degradation requirement as seat belt webbing because the ``useful 
life'' of seatbelts is longer than that of the CRS webbing is 
unpersuasive because, as discussed above, the agency is not persuaded 
that the real-world use of the noncompliant child restraints will be 
limited to six years. DJG's related argument that the CRS webbing is 
subject to less-frequent use than seat-belt webbing is unpersuasive 
because it does not fairly address seat belt use and is unsupported. 
DJG focuses on the seat belt used by the driver, but ignores seat belts 
for other designated seating positions--such as passengers--which, if 
anything, are subject to less use than the driver's seat belt. DJG also 
ignores the fact that vehicle seat belt webbing is subject to the same 
abrasion test requirement in FMVSS No. 209 regardless of where the belt 
is located in the vehicle. The agency's vehicle seat belt webbing 
requirements do not vary based on probable use patterns; instead, 
because of the crucial safety function of the webbing, the agency 
subjects all vehicle webbing to the same high standard. Indeed, when 
the agency established FMVSS No. 213, it explicitly adopted some of the 
buckle and belt requirements of FMVSS No. 209 such as those relating to 
abrasion and resistance to light, and the adoption of these 
requirements was not opposed by any of the commenters. Child Restraint 
Systems Seat Belt Assemblies and Anchorages: Final Rule, 44 FR 72136 
(Dec. 13, 1979). Additionally, DJG's argument that CRS webbing is 
subject to less-frequent use than is seat belt webbing, particularly in 
the case of the convertible restraints, ignores hand-me-down use of 
child restraints by children other than the first user.
    DJG's arguments that, in actual use, the restraints are not subject 
to the severe abrasion reflected in the test, are also unavailing. 
These arguments challenge the validity of the test methodology in the 
standard; as noted above, a petition for rulemaking, not an 
inconsequentiality petition, is the appropriate means for such an 
argument. And, even if these arguments were relevant, the agency does 
not find them persuasive. NHTSA has examined the limited test data of 
used child restraints (between 6-9 years old) submitted by DJG, 
including the supplemental submission of December 26, 2008, and notes 
that although the restraints were from the affected population of 
noncomplying restraints, the precise history of their use is unknown. 
DJG did not make a showing that these restraints have seen many years 
of hard, real world use. Therefore, DJG's data showing that the tether 
webbing on these used restraints retained more than the minimum 
strength required by the standard for new webbing is not compelling 
evidence that the noncompliance is inconsequential to safety. The 
supplemental DJG data reflects substantial degradation. Of the 8 
restraints tested, one (7B) was 77 percent of the strength of 
new webbing (15,168 N [3,410 pounds]/19,803 N [4,452 pounds]) and 
another (2B) was 78 percent of the strength of new webbing 
(15,489 N [3,482 pounds]/19,803 N [4,452 pounds]). The standard is 75 
percent. DJG's other argument that the location and two-belt slide 
design of the tether guarantee that it is not exposed to abrasion in 
typical use is also unpersuasive. DJG did not provide any additional 
information or data to support this claim. Therefore, the agency finds 
this claim to be unsubstantiated. In addition, there have been 
complaints about tether webbing fraying.\6\ These documented complaints 
undermine DJG's claim of the lack of abrasion during actual use.
---------------------------------------------------------------------------

    \6\ See DJG letter to NHTSA dated August 24, 2001.
---------------------------------------------------------------------------

    DJG's argument that the tether's post-abrasion strength is 
inconsequential to safety because it is just 3 percent below what DJG 
calls the new ``effective minimum'' is also unpersuasive. The current 
standard contains a minimum breaking strength requirement for new 
webbing, and retains the pre-2006 standard's 75 percent-of-strength 
requirement. 49 CFR 571.213 S5.4.1.2 (2009). The percent-of-strength 
requirement is calculated as a percentage of the strength of the new 
(unabraded) tether, not as a percentage of the minimum breaking 
strength requirement. The current standard thus does not require or 
imply an ``effective minimum'' post-abrasion strength of 11,250 N.\7\ 
The abraded DJG tether webbing retained only 55 percent of its 
unabraded breaking strength--20 percentage points below the allowable 
minimum. DJG's argument that the post-abrasion strength of its tether 
should be evaluated relative to the required minimum breaking strength 
ignores the safety concerns reflected in the standard--that a 
diminution in webbing strength of more than 25 percent when abraded in 
testing ``indicates a problem with the quality and/or durability of the 
selected material,'' such that the webbing ``may not last as long as 
necessary to protect children using the restraint (including for 
second-hand restraint use).'' 71 FR 32858-32859.
---------------------------------------------------------------------------

    \7\ In the 2005 NPRM, the agency did propose calculating the 
post-abrasion strength in this manner, but, in the 2006 final rule, 
explicitly declined to do so. Compare 70 FR 37734 with 71 FR 32858-
32859.
---------------------------------------------------------------------------

    The agency's resolution of the Evenflo petition is not controlling, 
as it was based on dated considerations. Evenflo Co., Inc.; Grant of 
Application for Decision of Inconsequential Noncompliance, 67 FR 21798 
(May 1, 2002) (NHTSA Docket 2000-7818). Prior to NHTSA's 2006 
amendments to FMVSS No. 213, NHTSA granted an inconsequentiality 
petition by Evenflo regarding child restraint tether straps that did 
not comply with the abrasion test. The noncompliant webbing retained 
67.1 percent of its unabraded strength. The child restraint performance 
requirements in effect at the time of this grant did not specify a 
minimum breaking strength requirement, and the agency, as it noted in 
its decision, had come to believe that the absence of such a 
requirement was inappropriate. 67 FR 21799. The agency

[[Page 513]]

also noted that it planned to initiate rulemaking to amend the 
standard. During this time frame when the agency had not resolved what 
strength would be required, the agency considered the Evenflo webbing 
in light of a version of FMVSS Nos. 213 and 209 in effect from 1971 to 
1979 that included a minimum breaking strength requirement for child 
seat webbing. Evenflo's webbing would have complied with this earlier 
standard. The agency also considered the results of dynamic testing, 
which showed that the tensile strength of abraded Evenflo tethers was 
greater than the measured maximum tensile loads. After the Evenflo 
petition was granted, the agency initiated rulemaking to amend FMVSS 
No. 213. In the NPRM, the agency proposed to include a minimum breaking 
strength requirement for new (unabraded) tether webbing. 70 FR 37731. 
The agency also proposed replacing the percent of unabraded strength 
degradation requirement with a minimum breaking strength requirement 
for exposed webbing. 70 FR 37731. However, in its final rule the agency 
concluded that the proposed rule did not sufficiently limit the 
degradation rate of webbing material. Accordingly, the final rule 
retained the percent of unabraded strength degradation requirement.
    The agency now considers DJG's inconsequentiality appeal in light 
of its safety concerns based on both the strength of the unabraded 
webbing and the percent of unabraded strength degradation requirement. 
It is thus inappropriate to apply the 1971-1979 version of the 
standard--which did not specify a percent of strength requirement based 
on the unabraded webbing--because the agency has concluded that exposed 
webbing should be required to maintain a minimum percentage of its 
unabraded strength. 71 FR 32858.
    In any event, if DJG's noncompliant tethers were evaluated using 
the reasoning laid out in the resolution of the Evenflo petition, DJG's 
noncompliance would still not be inconsequential to safety. There are 
three main reasons for this.
    First, DJG's tether webbing is not compliant if evaluated under the 
1971-1979 FMVSS No. 213. From 1971-1979, FMVSS No. 213 required that 
child restraint webbing meet the webbing requirements for Type 3 seat 
belt assemblies \8\ specified in FMVSS No. 209. During this period, 
FMVSS No. 209 specified webbing breaking strength requirements for 
various elements and configurations of Type 3 seat belt assemblies. 
FMVSS No. 213 required that child restraint webbing meet the post-
abrasion strength requirement contained in FMVSS No. 209 S4.2(d). 
Section 4.2(d) specified that webbing retain a post-abrasion strength 
of not less than 75 percent of the minimum breaking strength required 
of new webbing for that particular type of belt assembly.\9\ The 
minimum breaking strength requirements were specified in FMVSS No. 209 
S4.2(b), which specified different new webbing minimum breaking 
strengths for each element and configuration of Type 3 seat belt 
assembly. The most stringent of these minimum breaking strength 
requirements for new webbing was 17,793 N \10\ and the agency 
referenced this requirement in considering the Evenflo petition. 
Multiplying the 75 percent post-abrasion strength requirement with this 
most stringent new webbing strength requirement yields a post-abrasion 
strength requirement of 13,345 N. Evenflo's tether--with an unabraded 
strength of 20,426 N, and an abraded strength of 13,706 N--met both the 
abraded and unabraded strength requirements for this most stringent 
Type 3 webbing breaking strength under the 1971-1979 version of FMVSS 
No. 213.
---------------------------------------------------------------------------

    \8\ A Type 3 seat belt assembly was defined as ``a combination 
pelvic and upper torso restraint for persons weighing not more than 
50 pounds or 23 kilograms and capable of sitting upright by 
themselves, that is children in the approximate age range of 8 
months to 6 years.'' FMVSS No. 209 S3 (1979).
    \9\ This specification of the post-abrasion strength 
requirement--in terms of the minimum breaking strength requirement--
differs from the specification set out in the versions of FMVSS No. 
213 in effect currently, and when DJG's noncompliant webbing was 
manufactured, which requires that post-abrasion strength be 
calculated as a percentage of the strength of the new (unabraded) 
webbing.
    \10\ This was the requirement for a Type 3 seat belt assembly 
with ``webbing in seat back retainer and for webbing connecting 
pelvic and upper torso restraints to attachment hardware when 
assembly has single webbing connection.'' FMVSS No. 209 S4.2(b) 
(1979). The standard was 4000 pounds. The conversion from pounds to 
Newtons is 1 pound force = 4.448 N.
---------------------------------------------------------------------------

    DJG argues that its noncompliant tethers should be evaluated using 
the less stringent breaking strength requirement for the Type 3 seat 
belt configuration consisting of ``webbing connecting pelvic and upper 
torso restraint to attachment hardware when assembly has two or more 
webbing connections.'' S4.2(b) (1979). DJG notes that since its 
noncompliant restraints are not equipped with lower LATCH anchors,\11\ 
they are secured to the vehicle by means of both the tether and vehicle 
safety belt, and that this less stringent requirement is therefore 
appropriate. The breaking strength requirement for new webbing having 
this Type 3 configuration was 3,000 pounds (13,345 N), and the post-
abrasion strength requirement was 75 percent of this, or 2,250 pounds 
(10,008 N). DJG concludes that since its noncompliant tethers satisfy 
the less stringent abraded and unabraded strength requirements for this 
Type 3 configuration, the noncompliance is inconsequential to safety.
---------------------------------------------------------------------------

    \11\ See FMVSS No. 213 S5.9(a) (2008); FMVSS No. 225 S9.1 (2008) 
et seq.
---------------------------------------------------------------------------

    While we do not agree that the old Type 3 provisions are the 
appropriate frame of reference, if one were considered, the most 
stringent Type 3 requirement would be considered in reviewing DJG's 
restraint, as it was to Evenflo's. Since both Evenflo and DJG's 
noncompliant restraints pre-date LATCH, neither is equipped with lower 
anchors. See 49 CFR 571.225 S9.1 et seq. The restraints at issue in 
both petitions are therefore secured to the vehicle in the same 
manner--by means of the seat belt and tether. Since the restraints are 
attached to the vehicle in the same manner, a similar application of 
the Evenflo analysis to DJG's petition would require that the same--
more stringent--strength requirement also be applied. As noted earlier, 
the post-abrasion strength requirement associated with the most 
stringent Type 3 webbing requirement was 13,345 N. Since the post-
abrasion strength of DJG's tethers was only 10,903 N, they would not 
satisfy the prior standard.
    Second, the agency notes that while Evenflo's noncompliant 
restraints retained 67 percent of their strength after being subjected 
to the abrasion test, DJG's restraints retained only 55 percent. This 
is a significant difference.
    Third, for Evenflo, the sled tests alone were not sufficient to 
establish inconsequentiality--it was only in conjunction with the fact 
that the Evenflo tether webbing surpassed the previous requirements for 
Type 3 webbing in both the unabraded and abraded condition.
    The performance of DJG's webbing is also distinguishable from that 
of a Britax restraint cited by DJG. DJG cited information docketed in 
connection with NHTSA's rulemaking to add a minimum breaking strength 
requirement to FMVSS No. 213, which showed that the webbing of at least 
one Britax child restraint model had a lower post-abrasion strength 
than DJG's noncompliant tethers. NHTSA-2005-21243-0002 (Table 1). NHTSA 
notes that the 2006 final rule amended FMVSS No. 213 to include a 
minimum breaking strength of 15,000 N for new webbing used to secure a 
child restraint

[[Page 514]]

system to the vehicle (including the tether and lower anchorages of a 
child restraint anchorage system). In addition, the 2006 final rule 
affirmed that retaining control over webbing material degradation rates 
is critical to ensure sufficient webbing strength over time. The Britax 
child restraint referenced by DJG showed literally no signs of 
degradation after being abraded, and therefore does not present the 
same degradation risks associated with the subject DJG restraints. 
While the Britax CRS complied with the standard in effect at the time 
of manufacture, the DJG CRS neither complied with the standard in 
effect at the time of manufacture nor does it comply with the new 
requirements established in the 2006 Final Rule. The agency notes that 
in the course of the rulemaking that resulted in the 2006 Final Rule, 
the agency looked at tether webbing abrasion compliance test data for 
20 child restraints. See NHTSA-2005-21243-0002. The average strength 
for new tether webbing was 17,153 N and the median was 18,156 N. The 
average strength for tether webbing after being subjected to the 
abrasion test was 15,689 N and the median was 16,287 N. The average 
percentage of strength retained was thus 92 percent, and the median was 
96 percent. The noncompliant DJG webbing retained only 55 percent of 
its new webbing strength after the abrasion test--the lowest retention 
percentage of any of the 20 child restraints examined in these 
compliance tests. A concern with the DJG tether webbing is the high 
degradation in its breaking strength after the abrasion test. This lack 
of breaking strength retention signals a distinct probability that the 
webbing strength would be insufficient throughout a lifetime of use and 
therefore, may pose a safety risk with long term usage.
Harness Webbing
    The agency finds similarly unpersuasive the arguments that DJG 
reasserts from its original petition, as well as its new arguments, 
regarding the inconsequentiality of the harness webbing noncompliance.
    First, as to DJG's disagreement with NHTSA's reliance on a carbon 
arc lamp as provided by the standard, instead of a xenon arc lamp which 
DJG now prefers, NHTSA's regulations require and NHTSA's position is 
that the carbon arc light is to be used in exposure tests for webbing 
materials. As noted earlier, an inconsequentiality petition is not the 
appropriate means for challenging testing methodology. Nevertheless, as 
NHTSA noted in its initial denial, the use of xenon arc light, which is 
used in weathering tests of glazing material under FMVSS No. 205, and 
is favored by DJG, does not invalidate the use of carbon arc light for 
webbing materials. The xenon arc light has not been evaluated 
adequately by the agency to justify its use with respect to webbing 
materials. The agency does not have adequate testing information 
regarding the effect of xenon arc light on different webbing materials 
to develop an appropriate test while ensuring sufficient safety 
performance requirements are maintained. It is common for child 
restraint webbing to be produced from polyester or nylon materials. 
Preliminary studies of carbon arc and xenon arc light exposure testing 
of polyester and nylon webbing materials conducted by NHTSA showed that 
while carbon arc testing was more severe (i.e., resulted in higher 
strength degradation rates) for nylon webbing materials as compared to 
xenon arc testing, the opposite result was observed for polyester 
webbing materials. NHTSA can not simplistically conclude, as DJG would 
have it, that xenon arc light testing adequately assures safety. Carbon 
arc testing is specified in the standard and the agency continues to 
adhere to the standard for evaluation of webbing materials.\12\
---------------------------------------------------------------------------

    \12\ DJG also argues that it is unable to purchase carbon arc 
lamps meeting NHTSA requirements. Carbon arc lights are available 
for purchase. One supplier is Atlas Material Testing, 4114 North 
Ravenswood Ave., Chicago, IL 60613.
---------------------------------------------------------------------------

    Second, DJG's reliance on sled test results, which DJG refers to as 
dynamic tests, is also unavailing. In the course of the rulemaking that 
resulted in the 2006 rule, NHTSA looked at harness webbing compliance 
test data for 109 child seats, spanning several different manufacturers 
and years. 70 FR 37735-37736; Docket NHTSA-2005-21243-2. The average 
strength for new harness webbing was 13,519 N and the median was 12,594 
N. The average strength for harness webbing after exposure to light was 
11,287 N and the median was 10,636 N. The average percentage of 
strength retained was thus 83 percent, and the median was 84 percent. 
The noncompliant DJG harness webbing retained only 37 percent of its 
new webbing strength after exposure to light, falling from a pre-
exposure strength of 12,371 N to a post-exposure strength of only 4,539 
N. 60 percent was required. Even more, the DJG harness webbing's 37 
percent retention was the lowest of any of the 109 different child 
seats examined in these compliance tests. Docket NHTSA-2005-21243-2. 
DJG offers dynamic test data at 30 mph. DJG has not shown that this 
data supports its contention that the noncompliant harness webbing does 
not pose a significant safety risk. Crucially, DJG's dynamic test 
analysis does not address the agency's concern with possible further 
loss in webbing strength with continued long term use. Moreover, DJG 
does not describe the deceleration pulse or measurement technique in 
the tests. DJG's argument that the noncompliant webbing is virtually 
strong enough to withstand crash forces even greater than those 
generated in a 30 mph crash is also flawed. DJG notes that the median 
load measured in its 30 mph dynamic tests (1,138 N) would yield a load 
of approximately 4,552 N in a 60 mph test, which is approximately the 
same as the post-light exposure webbing strength. DJG bases its 60 mph 
load calculations on the median measured webbing load. However, if the 
maximum measured load (1,432 N) is instead used to calculated the 60 
mph-equivalent load, the resulting load (5,728 N) is, in fact, in 
excess of the post-exposure strength of the noncompliant webbing.
    DJG cites NHTSA's granting of certain petitions for inconsequential 
noncompliance as supporting use of a 30 mph sled test. Those grants are 
not controlling.
    The first petition, from Evenflo (67 FR 21799) was previously 
discussed. This petition was granted when safety concerns were not as 
developed as they are today (see discussion above). Also, the agency's 
grant focused on the fact that the noncompliant Evenflo webbing met the 
most stringent of the 1971-1979 Type 3 webbing strength requirements.
    The second petition cited by DJG, also from Evenflo, concerned a 
noncompliance with the tether hook dimensional requirements of FMVSS 
No. 213. See 69 FR 39545. FMVSS No. 213 section 5.9(b) (2003) requires 
that the height of the tether hook shall not exceed 20 millimeters. The 
maximum Evenflo tether hook height measured by NHTSA was 20.38 
millimeters. The dimensional requirements were intended to minimize the 
chances of incompatibility between the seat and the vehicle. 62 FR 
7873. Evenflo supported its petition with testing evidence showing that 
actual users would not have difficulty attaching the tether hook to the 
anchorage, as well as the results 30 mph dynamic test data to show that 
there was no failure and the slight noncompliance in the tether hook 
dimension was inconsequential to motor vehicle safety. DJG's reliance 
on the agency's grant of the Evenflo petition is unpersuasive because 
the two noncompliances are dissimilar. There was no concern that the 
noncompliant Evenflo tether hook would degrade over time; thus, 
Evenflo's user test data, as

[[Page 515]]

well as the dynamic tests, sufficed to demonstrate inconsequential 
noncompliance. On the other hand, as discussed previously, one of the 
agency's concerns with DJG's noncompliant harness webbing is that it 
will further degrade over time so that its strength would be 
insufficient to withstand the forces in crashes. In addition, the 
Evenflo noncompliance involved a small--.38 millimeters, or 2 percent--
dimensional difference between the compliant and non-compliant 
equipment; in contrast, the post-exposure strength of DJG's harness 
webbing was 23 percentage points less than the required minimum.
    The third petition relied on by DJG came from Baby Trend regarding 
the head foam compression-deflection resistance (i.e., stiffness) in 
their rear facing infant seat. 69 FR 59302 (October 4, 2004). Baby 
Trend's head foam had a measured stiffness of 0.3 pounds per square 
inch. FMVSS No. 213 requires a head foam stiffness of between 0.5 and 
10 pounds per square inch. Prior to NHTSA granting Baby Trend's 
petition, FMVSS No. 213 was amended to use a CRABI test dummy to 
directly measure Head Injury Criteria (HIC) in lieu of the head foam 
stiffness test. Baby Trend provided dynamic test data showing 
compliance with the new FMVSS No. 213 dynamic test requirements using 
the CRABI dummy. The noncompliance was determined inconsequential to 
safety. Thus, with the noncompliant head foam, the child restraint 
would comply with the requirement that became effective after the date 
on which Baby Trend's noncompliant head foam was manufactured. DJG's 
harness webbing, on the other hand, manufactured in 2002, is not 
compliant with FMVSS No. 213, as amended by the 2006 final rule. This 
final rule retained the percent-of-strength requirement, while adding a 
minimum breaking strength for new (unexposed) webbing. DJG's harness 
webbing does not satisfy the percent-of-strength requirement. 
Accordingly, DJG's petition is distinguishable from Baby Trend's 
petition.
    Third, the argument advanced by DJG in its supplemental submission 
of December 26, 2008 that the strength of the harness webbing on 
certain used restraints shows that no safety problem exists is also 
unavailing. This argument essentially claims that the restraints are 
not subject to the severe degradation reflected in the compliance test; 
as such, it challenges the validity of the test methodology in the 
standard. However, as noted earlier regarding the tether webbing, a 
petition for rulemaking, not an inconsequentiality petition, is the 
appropriate means for such an argument. In any case, NHTSA has examined 
this limited test data on four restraints, and notes that although the 
webbing was from the affected population of noncomplying restraints, 
the precise history of their use is unknown. DJG did not provide 
evidence showing that these restraints have seen many years of exposure 
to sunlight. Therefore, DJG's data showing that the harness webbing on 
these used restraints retained more than the minimum strength required 
by the standard is not compelling evidence that the noncompliance is 
inconsequential to safety. DJG further suggests that the fact that the 
strength of the webbing on these used restraints exceeds 60 percent of 
the new webbing minimum breaking strength requirement of 11,000 N in 
the 2006 regulation also shows that the noncompliance is 
inconsequential to safety. This argument is similar to the argument DJG 
makes, in connection with its tether webbing appeal, that the standard 
adopted in 2006 instituted an ``effective minimum'' based on the 
minimum breaking strength requirement for new webbing. As discussed in 
detail above, the agency finds this argument unpersuasive.
    Fourth, DJG's assertion that the noncompliance is inconsequential 
to safety because the post-exposure strength of its webbing was higher 
than that of certain Safeline child restraints that did comply with the 
exposure test, is similarly not persuasive. These Safeline restraints, 
manufactured from 2000-2002, had harness webbing post-exposure 
strengths ranging from 4,005 N to 5,563 N, and strength retentions 
between 62 percent to 81 percent. See Docket NHTSA-2005-21243-002. 
These restraints were required to comply with the version of FMVSS No. 
213 in effect at the time these restraints were manufactured. As 
discussed previously, the version of FMVSS No. 213 in effect from 2000-
2002 did not have a minimum breaking strength requirement for new 
webbing. Accordingly, these Safeline restraints complied with the 
standard because they retained at least 60 percent of their strength 
after being exposed to light, even though the strength of the new 
webbing was relatively low--and, would have been too low to have 
complied with the minimum breaking strength requirement that was added 
to the standard in 2006.
    DJG points out that the post-exposure strength of its webbing was 
greater than the post-exposure strength of the Safeline webbing, and 
goes on to argue that the Safeline webbing was compliant because it had 
a low initial breaking strength. DJG cites this result as confirmation 
of its argument that the noncompliance of its harness webbing is 
inconsequential to safety. NHTSA does not find this argument 
persuasive. As discussed above, the 2006 rulemaking codified and 
highlighted the agency's two concerns regarding webbing strength--that 
it be sufficiently strong when new, and suffer limited diminution in 
strength after being exposed to environmental conditions such as light 
and abrasion. DJG's comparison of its noncompliant webbing to 
Safeline's compliant webbing addresses the agency's concern that new 
webbing be sufficiently strong, but does not address the agency's 
concerns about the degradation of DJG's webbing. While DJG points out 
that the Safeline webbing had a low initial breaking strength and that 
the post-exposure strength of its webbing was greater than that of 
Safeline's, this argument does not address NHTSA's concern that the 
extremely high degradation rate of DJG's webbing--almost double that of 
the Safeline webbing--indicates that the webbing strength could be 
insufficient throughout a lifetime of use and expose child occupants to 
a risk that increased with long-term usage. While it is true that the 
strength of the unexposed Safeline webbing would not comply with FMVSS 
No. 213 as amended in 2006, the fact that another manufacturer's 
webbing complied with a standard that the Agency later determined to 
insufficiently protect against certain safety risks does not excuse 
DJG's noncompliance. This is especially true when the amended version 
of the standard re-affirms the requirement--namely, the post-exposure 
percent-of-strength requirement--with which DJG's webbing was 
noncompliant.
    Finally, as discussed above, the agency finds that the absence of 
consumer complaints is insufficient evidence of an inconsequential 
effect on safety of the webbing.

VII. Conclusion

    After carefully considering the arguments presented on this matter, 
NHTSA has decided that the petitioner has not met its burden of 
persuasion in establishing that the noncompliances described are 
inconsequential to motor vehicle safety. Accordingly, Dorel Juvenile 
Group's appeal of NHTSA's decision on its inconsequential noncompliance 
petitions is hereby denied. This decision constitutes final agency 
action, and the petitioner has no further administrative review of 
NHTSA's denial.


[[Page 516]]


(Authority: 49 U.S.C. 30118, 30120; delegations of authority at 49 
CFR 1.50 and 501.8).

    Issued on: December 30, 2009.
Ronald L. Medford,
Acting Deputy Administrator.
[FR Doc. E9-31334 Filed 1-4-10; 8:45 am]

BILLING CODE 4910-59-P

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