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Cosco, Inc.; Denial of Petition For Determination of Inconsequential Noncompliance

American Government Special Collections Reference Desk

American Government Topics:  Cosco

Cosco, Inc.; Denial of Petition For Determination of Inconsequential Noncompliance

Barry Felrice
Federal Register
March 28, 1994

[Federal Register: March 28, 1994]



National Highway Traffic Safety Administration
[Docket No. 93-48; Notice 2]

Cosco, Inc.; Denial of Petition For Determination of 
Inconsequential Noncompliance

    Cosco, Inc. (Cosco) of Columbus, Indiana determined that some of 
its child safety seats failed to comply with the flammability 
requirements of 49 CFR 571.213, ``Child Restraint Systems,'' Federal 
Motor Vehicle Safety Standard No. 213, and filed an appropriate report 
pursuant to 49 CFR part 573. Cosco also petitioned to be exempted from 
the notification and remedy requirements of the National Traffic and 
Motor Vehicle safety Act (15 U.S.C. 1381 et seq.) on the basis that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Notice of receipt of the petition was published on July 7, 1993, 
and an opportunity afforded for comment (58 FR 36510). No comments were 
received. This notice denies the petition.
    Paragraph S5.7 of Standard No. 213 states that ``[e]ach material 
used in a child restraint system shall conform to the requirements of 
S4 of FMVSS No. 302 (571.302).'' Paragraph S4.3(a) of Standard No. 302 
states that ``[w]hen tested in accordance with S5, material described 
in S4.1 and S4.2 shall not burn, nor transmit a flame front across its 
surface, at a rate of more than 4 inches per minute.''
    Between November 1, 1989, and March 31, 1993, Cosco produced 
133,897 add-on (as opposed to built-in) child restraint seats, with 
shoulder harness straps which it has determined do not comply with the 
flammability requirements of Standard No. 213. The principal 
restraining mechanism on the noncompliant seats is a soft-shield 
harness assembly. The soft-shield harness assembly consists of a 
buckle, a soft molded urethane shield, and two straps, protruding to 
the top of the shield, which go over the child's shoulders through 
slots in the back of the child restraint and attach to a metal bar, 
which in turn is attached to an adjustment strap. Indications of a 
possible noncompliance came to light during testing of the seats by 
NHTSA at Detroit Testing Laboratory in February 1993, and retesting at 
U.S. Testing Laboratory. The harness straps burned at a rate of 4.3 
inches per minute. This formed the basis of NHTSA investigation NCI 
    Cosco supported its petition for inconsequential noncompliance with 
the arguments set forth below. Cosco also submitted photographs of the 
noncompliant seats, photographs of the tests being conducted on the 
seats, and test data. These materials were available for review in the 
NHTSA docket during the comment period.
    The company began its petition by agreeing

generally that requiring child restraints to meet the [FMVSS] 302 
standard does further the purpose of the standard when considering 
such child restraint components as vinyl or fabric pads or their 
foam contents. Cosco also concedes that the applicability of the 
standard to the harness systems of certain child restraints furthers 
the purpose of the standard, such as five-point harness systems 
which attach to, or pass through, the seating surface of the child 
restraint where sources of ignition such as cigarettes or matches 
could become entrapped.

    Cosco's principal argument dealt with the improbability that the 
restraints would ignite. In support of this, it submitted that:

    [I]t is not physically possible for the harness straps of the 
soft shield to ignite or burn unless the entire child restraint or 
the automobile seat upon which it is installed is already burning.
    The configuration and placement of the straps of the Cosco soft-
shield assembly are such that these straps cannot come into contact 
with an independent source of ignition, such as a cigarette or 
match, which would result in any burning of the harness strap.
    These are the only two possible causes for the ignition of the 
shoulder straps of Cosco soft-shield child restraints. The first is 
fire already consuming the child restraint and/or the vehicle seat 
upon which the child restraint is installed is on fire. It cannot be 
seriously questioned that, in such an instance, the child would be 
seriously or fatally burned from these sources of fire as opposed to 
the shoulder straps of the child restraint contributing in any 
degree to the child's injury. Cosco retained John E. Pless, M.D., 
Director of Forensic Pathology, Department of Pathology, Indiana 
University, School of Medicine, to review this issue. Dr. Pless, one 
of the leading forensic pathologists in the country and, through his 
work with Riley Children's Hospital in Indianapolis, one of the most 
experienced pediatric pathologists, concludes that the webbing of 
the Cosco soft-shield child restraints would have no practical 
importance on the effects of such a fire on a child. [Dr. Pless' 
report and curriculum vitae are in the docket.] Dr. Pless' 
conclusions are supported by tests performed by Cosco [photographs 
of the tests are in the docket.] The tests establish that the 
webbing does not ``ignite'' as that term is commonly understood. The 
webbing burns in a fashion that can be more accurately described as 
smoldering and generally extinguishes itself after a brief period of 
time. It should be noted that the tests * * * do not reflect any 
possible ignition of the child restraint harness straps if the child 
restraint were occupied by a child. [Cosco believes t]here is simply 
no way for a source of ignition, such as a lighter, to come into 
contact with the strap * * * when the child restraint is occupied by 
a child.
    The other possible source of ignition of the harness strap would 
be from a localized heat source, such as a match or cigarette. It is 
critical in the analysis of whether such a risk exists to examine 
the configuration and placement of the straps of the Cosco soft-
shield child restraints. [T]hese straps only contact the child who 
is occupying the child restraint at the mid-chest level, or higher 
on the child's body. The straps are essentially vertical as they 
leave the shield. Cosco conducted tests attempting to ignite the 
harness strap with a burning cigarette. [Photographs of this test 
are in the docket.] Simply stated, a lighted cigarette cannot ignite 
the harness strap. Cosco conducted these tests under controlled 
conditions which, frankly, seemed inconceivable to occur in the 
actual use of child restraints.
    For example, in order to come into contact, for any length of 
time, with the child restraint harness strap, a lighted cigarette 
would have to be balanced at the point where the strap emerges from 
the molded shield. This is so unlikely as to be virtually 
inconceivable. Dr. Pless also commented on this possibility and 
indicated that such a localized heat source is ``not within the 
realm of practical consideration.'' Cosco believes that any 
practical examination of these issues concludes that the risk of the 
ignition of the harnesses of Cosco soft-shield child restraints 
could not, under any conceivable set of circumstances, result in 
injury or death to the occupant of the child restraint. The 
noncompliance of Cosco soft-shield child restraints is therefore 
inconsequential as it relates to motor vehicle safety as set forth 
in FMVSS 302.

    NHTSA has given careful consideration to this argument, and 
disagrees with Cosco's assertion that the straps cannot become ignited. 
With respect to the photographs Cosco submitted of tests conducted on 
the straps with a cigarette lighter, Cosco believes that they show that 
the strap webbing smolders and then extinguishes itself without 
igniting. NHTSA interprets the photographs as illustrating that the 
straps support a flame which could injure a child restrained in the 
child seat.
    In issuing Standard No. 302 in 1971 (36 FR 289), the agency cited 
matches, cigarettes or short circuits in interior wiring as examples of 
sources for fires occurring in the interior of vehicles. The agency 
believes that there are situations where the straps could become 
ignited. One example is children in the back seat of a car, playing 
with matches, a cigarette lighter, or other ignition source near a 
child restrained in a Cosco seat.
    In point of act, had the tests been conducted under real life 
circumstances, the results could have been worse. Webbing samples are 
tested horizontally, but webbing is worn vertically. If a fire begins 
at the bottom of webbing, it will travel upward at a faster rate than 
it would in a horizontal placement.
    NHTSA considered Cosco's argument that, if fire is ``already 
consuming the child restraint and/or the vehicle seat upon which the 
child restraint is installed,'' the child would be injured from these 
sources as opposed to the shoulder straps of the restraint. This 
argument cannot seriously be presented as ground for granting an 
inconsequentiality petition. If a vehicle fire is of such intensity 
that it is destroying a child restraint or vehicle seat that is 
certified as complying with Standard No. 302, then it will destroy the 
shoulder strap as well whether or not it complies. NHTSA is concerned 
with fires of less intensity, where it is critical that interior 
components (the child seat as well as the components specified in 
Standard No. 301) do not ignite, or if they do, that they burn at a 
slow enough rate that there will be time to remove the child from the 
occupant compartment.
    Cosco also argued that there was no real-world indication of a 
safety threat. It said that:

    Cosco has never received a report of the burning of a soft-
shield harness strap. Cosco is unaware of any study that indicates 
that the burning of a child restraint harness has caused any injury 
or death. All occupant protection studies which Cosco has reviewed 
indicate an almost infinitesimal risk of injury or death by vehicle 
fires in total, at least in collisions. Cosco is unaware of any data 
on fires of the interior of vehicles unrelated to collisions.

    In NHTSA's view, the fact that Cosco has not received any reports 
is not a sufficient basis on which to grant its petition. The present 
lack of such reports does not necessarily diminish the future potential 
of such incidents.
    NHTSA has, in fact, received a report which may have some relevance 
in this matter. The complaint was made to the agency's Auto Safety 
Hotline on August 30, 1993, reporting the burning of the belt of a 
Cosco child seat while placed for three hours in a vehicle parked in 
sunlight. According to the report, the claimant ``[n]oticed burning 
fumes and found burn marks [brownish discoloration] on the harness 
straps of the child restraint where the straps had been in contact with 
the top edge of the restraint's plastic shell as they lay across it.'' 
This incident raises concern that the burned fiber of the strap may 
have weakened the strength of the harness so that it might not provide 
the needed safety protection for a child occupant during a crash.
    Cosco's final major argument was the owners might not respond to a 
future campaign of a more serious nature, if they were notified of one 
that concerned only a technical noncompliance. It argued:

    That child passenger safety advocates, child restraint 
manufacturers, and the Agency are aware of the negative impact of 
recalls resulting from technical noncompliance or defects that do 
not, as a practical matter, have true safety consequences. The most 
important negative effects of such recalls are:
    1. That the public, because of the number and frequency of such 
recalls, pays no attention to recalls that actually affect, in a 
practical way, child passenger safety; and
    2. That the public, upon seeing the number of recalls, concludes 
that child restraints currently available are unsafe and therefore 
decline to use them. The Agency is aware and, in fact, has publicly 
advised consumers to use child restraints that have defects or 
noncompliances that have that have resulted in recalls until such 
child restraints can be corrected. [An example of this advisement is 
contained in the docket.] This is in recognition of the fact that 
technical noncompliances or relatively insignificant safety defects 
do not compromise the overall effectiveness of child restraints.

    The statement that consumers ignore recalls because of their number 
and frequency is unsubstantiated. Further, NHTSA views it equally 
unlikely that, because of campaigns, consumers would conclude that 
child restraints are unsafe and decline to use them. Indeed, the 
opposite is more likely the case. Responses to safety notifications 
depend on factors including the type of noncompliance or defect, the 
type and extent of the notification campaign, media coverage, and the 
efforts of manufacturers.
    Future campaigns are more likely to be effective than past ones. 
Standard No. 213 has been amended to provide for the registration of 
child restraints. The purpose of the program is to increase the 
effectiveness of campaigns to recall child seats. It requires 
manufacturers to take steps that will increase their ability to inform 
owners of particular child restraints about problems in these 
restraints and that encourage owners to register their child seats. And 
the agency does not agree that the noncompliance is ``technical'' in 
    NHTSA also notes that the petition failed to acknowledge that the 
agency tested and retested the harness webbing in March 1993, and 
encountered a more serious test failure than the 4.3 inch burn rate 
presented in the petition and which reflected NHTSA's original tests. 
In the second series of tests, NHTSA found burn rate test and retest 
failures of 5.4 and 5.2 inches respectively. Thus the test and retest 
failures uncovered by NHTSA average 4.85 inches and 4.75 inches 
respectively, a margin of failure of 20%, and hardly inconsequential or 
of a ``technical'' nature in the agency's opinion.
    Finally, NHTSA believes flammability requirements for child 
restraints should be stringently adhered to for the following reasons. 
The test requirement of not more than 4 inches a minute was justified 
by the need ``to prevent injury to occupants from rapidly spreading 
interior fires, to allow sufficient time for the driver to stop the 
vehicle, and, if necessary, for occupants to leave it before injury 
occurs'' (36 FR 10817). This is even more critical in the case of child 
restraints as a small child is typically not capable of exiting a 
vehicle without assistance. Therefore, some additional time is required 
for another person to remove the child. Moreover, the child most often 
is in the rear seat and the adult is in front, also requiring 
additional time to reach the child. Finally, because webbing rests 
against the child's body, noncompliant webbing has a great potential 
for injuring the child if ignited.
    For the reasons discussed above, the agency has concluded that the 
petitioner has not met its burden of persuasion that the noncompliance 
herein described is inconsequential as it relates to safety, and its 
petition is denied.

(15 U.S.C. 1417; delegations of authority at 49 CFR 1.50 and 49 CFR 

    Issued on March 22, 1994.
Barry Felrice,
Associate Administrator for Rulemaking.
[FR Doc. 94-7158 Filed 3-25-94; 8:45 am]

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