Combi USA, Inc., Denial of Petition for Decision of Inconsequential Noncompliance |
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Topics: Combi
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Nancy Lummen Lewis
National Highway Traffic Safety Administration
November 27, 2013
[Federal Register Volume 78, Number 229 (Wednesday, November 27, 2013)]
[Notices]
[Pages 71028-71030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-28455]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2013-0080; Notice 2]
Combi USA, Inc., Denial of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Notice of Petition Denial.
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SUMMARY: Combi USA, Inc., (Combi),\1\ has determined that certain model
child restraint systems manufactured between 2007 and 2012 do not fully
comply with paragraph 5.4.1.2(a) of Federal Motor Vehicle Safety
Standard (FMVSS) No. 213, Child Restraint Systems. (49 CFR 571.213).
Combi has filed an appropriate report dated June 9, 2013, pursuant to
49 CFR Part 573, Defect and Noncompliance Responsibility and Reports.
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\1\ Combi is a U.S. company that manufactures child restraint
systems.
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Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule
implementing those provisions at 49 CFR part 556, Combi has petitioned
for an exemption from the notification and remedy requirements of 49
U.S.C. Chapter 301 on the basis that this noncompliance is
inconsequential to motor vehicle safety. The National Highway Traffic
Safety Administration (NHTSA) published a notice of receipt of the
petition, with a 30-day public comment period, on August 9, 2013, in
the Federal Register (78 FR 48767). No comments were received in
response to Combi's petition.
To view the petition and all supporting documents log onto the
Federal Docket Management System (FDMS) Web site at: http://www.regulations.gov/. Then follow the online search instructions to
locate docket number ``NHTSA-2013-0080.''
FOR FURTHER INFORMATION CONTACT: For further information on this
decision
[[Page 71029]]
contact Mr. Tony Lazzaro, Office of Vehicle Safety Compliance, the
National Highway Traffic Safety Administration (NHTSA), telephone (202)
366-5304, facsimile (202) 366-7002.
Relevant Requirements of FMVSS No. 213: FMVSS No. 213 paragraph
S5.4.1.2(a) requires, in pertinent part, that ``the webbing of belts
provided with a child restraint system and used to attach the system to
the vehicle or to restrain the child within the system shall-- (a) Have
a minimum breaking strength for new webbing of . . . not less than
11,000 N in the case of the webbing used to secure a child to a child
restraint system when tested in accordance with S5.1 of FMVSS No.
209.''
The term ``new webbing'', is ``webbing that has not been exposed to
abrasion, light, or micro-organisms.'' (49 CFR Sec. 571.213,
S5.4.1.2(a)).
Child Restraints Involved: Affected are 23,357 Combi Coccoro 2009-
2012 model child restraint systems (model 8820), 5,391 Combi
Zeus 360 2009-2012 model child restraint systems (model 8836),
and 4,391 Combi Zeus Turn 2007-2009 model child restraint systems
(model 8815).
Noncompliance: Combi acknowledges that the affected child restraint
systems do not meet the minimum breaking strength requirements of FMVSS
No. 213 paragraph 5.4.1.2(a). Combi submitted a preliminary
Noncompliance Information Report on June 9, 2013. Combi submitted a
supplemental Noncompliance Information Report on July 1, 2013.
Summary of Combi's Analysis and Arguments
Combi described the noncompliance as follows:
Combi USA, Inc. has identified a noncompliance with certain
Model 8220 Coccoro Convertible child restraints when the
webbing assembly within the restraint is subjected to the minimum
breaking strength requirements as specified in FMVSS No. 213 section
5.4.1.2 (a).
Combi filed the same statement describing the noncompliance for the
Zeus Turn and Zeus 360 models of child restraint systems. In support of
its petition, Combi states that as part of NHTSA's 2012 safety
compliance testing of the subject Coccoro child restraint system
harness webbing, the breaking strength yielded results of 8,990 N,
9,170 N, and 9,300 N. As noted earlier, paragraph 5.4.1.2(a) of FMVSS
No. 213 requires a minimum breaking strength of 11,000 N for webbing
used to restrain a child within a child restraint system. Combi also
noted that all of the subject Coccoro child restraint systems were
produced with the identical harness system as tested by NHTSA in 2012.
Combi further noted that all of the subject Zeus 360 and Zeus Turn
child restraint systems were produced with the same embedded stop
button within the harness system as the Coccoro child restraints which
were tested by NHTSA in 2012.
Combi stated in its petition that the production of the Zeus Turn
child restraint system ended on March 25, 2009, and that the production
of the Zeus 360 child restraint system ended on May 24, 2012. Combi
also explained that it has implemented an engineering modification
which removes the embedded stop button to all of the Coccoro child
restraints produced since January 29, 2013.
In support of its petition, Combi stated that it has not received
notice of any partial or complete breakage or tearing of the harness
system in the Coccoro and Zeus child restraints. In further support of
its petition, Combi provided data based on its own dynamic testing of
the Coccoro and Zeus 360 child restraint systems. According to Combi,
its testing attempted to determine the crash force loading on the
harness system of the Coccoro and Zeus 360 child restraints when
subjected to the FMVSS No. 213 dynamic crash pulse (30 mph crash pulse)
and the NCAP pulse (35 mph crash pulse). Combi's own test results
showed load cell values ranging from approximately 1,150 N to 1,900 N.
Combi stated that these testing results confirm that the harness
assemblies of the subject Coccoro, Zeus 360, and Zeus Turn child
restraints will not fail in a real world crash under any circumstances,
as the forces acting on the harness system in dynamic testing are less
than 22 percent of the breaking strength test results determined by
NHTSA. Combi therefore asserts that the harness assemblies of the
subject Coccoro and Zeus child restraints present no safety risk.
Finally, Combi asserts that given the relatively small number of
subject Coccoro, Zeus 360, and Zeus Turn child restraints, the
effectiveness of any notification campaign regarding this technical
noncompliance will be limited. Combi further states that any
noncompliance notice campaign may result in customers deciding to
discontinue using their Coccoro and Zeus child restraints for a period
of time, adding a risk of injury where none exists as a result of the
noncompliance of the harness webbing of the subject Coccoro and Zeus
child restraints with the minimum breaking strength requirements of
FMVSS No. 213 S5.4.1.2(a).
In summary, Combi contends that the noncompliance is
inconsequential to motor vehicle safety, and that its petition to
exempt it from providing notification of noncompliance as required by
49 U.S.C. 30118 and remedying the noncompliance as required by 49
U.S.C. 30120, should be granted.
Comments: NHTSA published a notice of the petition in the Federal
Register to allow an opportunity for members of the public to present
information, views, and arguments on the subject petition. As noted
earlier, no comments were received. The Agency notes that an absence of
opposing argument and data does not require the Agency to grant the
petition.\2\
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\2\ See Dorel Juvenile Group; Denial of Appeal of Decision on
Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010).
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NHTSA'S Consideration of Combi's Inconsequentiality Petition
General Principles: Federal Motor Vehicle Safety Standards are
adopted only after the Agency has determined, following notice and
comment, that the standards are objective and practicable and ``meet
the need for motor vehicle safety.'' See 49 U.S.C. 30111(a). Thus,
there is a general presumption that the failure of a motor vehicle or
item of motor vehicle equipment to comply with a FMVSS increases the
risk to motor vehicle safety beyond the level deemed appropriate by
NHTSA through the rulemaking process. To protect the public from such
risks, manufacturers whose products fail to comply with a FMVSS are
normally required to conduct a safety recall under which they must
notify owners, purchasers, and dealers of the noncompliance and provide
a remedy without charge. 49 U.S.C. 30118-30120.
However, Congress has recognized that, under some limited
circumstances, a noncompliance could be ``inconsequential'' to motor
vehicle safety. ``Inconsequential'' is not defined either in the
statute or in NHTSA's regulations. Rather, the Agency determines
whether a particular noncompliance is inconsequential to motor vehicle
safety based on the specific facts before it. The relevant issue in
determining inconsequentiality is whether the noncompliance in question
is likely to significantly increase the safety risk to individuals
involved in accidents or to individual occupants who experience the
type of injurious event against which the standard was designed to
protect. See
[[Page 71030]]
General Motors Corp.; Ruling on Petition for Determination of
Inconsequential Noncompliance, 69 FR 19897 (Apr. 14, 2004).
In order to demonstrate inconsequentiality, the petitioner must
demonstrate that the noncompliance ``does not create a significant
safety risk.'' See Dorel Juvenile Group; 75 FR at 510, quoting Cosco,
Inc., denial of Application for Decision of Inconsequential
Noncompliance, 64 FR 29408, 29409 (June 1, 1999). There have been
instances in the past where NHTSA has determined that a manufacturer
has met its burden of demonstrating that a noncompliance is
inconsequential to safety. These include a noncompliance concerning
labeling where the discrepancy with the safety standard was determined
not to lead to any misunderstanding, especially where sources of the
correct information were available (e.g. in the vehicle owner's
manual). See General Motors Corp., 69 FR at 19899.
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a safety standard is more
substantial and difficult to meet, and the Agency has not found many
noncompliances related to a safety standard to be inconsequential. See
Id.
Combi's Argument and NHTSA's Response: In support of its petition,
Combi makes several different arguments. First, Combi argues that the
company has not received notice of any partial or complete breakage or
tearing of the harness system in any Coccoro and Zeus child restraints.
The Agency, however, does not consider the absence of complaints to
show that the noncompliances are inconsequential to safety. 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. See Dorel Juvenile Group, Denial of Petition for Decision of
Inconsequential Noncompliance, 78 FR 53189, 53190 (August 28, 2013).
Second, Combi argues that, based on measured forces acting on the
harness system when subjected to FMVSS No. 213 and NCAP crash pulse
dynamic testing, the subject child restraints present no motor vehicle
safety risk since the measured forces acting on the harness system are
less than 22 percent of the breaking strength results determined by
NHTSA. The Agency is not persuaded by this argument. NHTSA does not
simply have one performance test, a dynamic test. NHTSA has multiple
performance tests because a single test does not address the range of
safety concerns with child restraints. The webbing breaking strength
test and the child restraint system dynamic test do not test for the
same conditions and serve distinct purposes. The webbing breaking
strength test conditions are necessarily more severe than those for
dynamic testing to help ensure that the webbing will afford effective
protection for severe crashes, even after the webbing degrades due to
abrasion in use and exposure to sunlight. In addressing past similar
arguments raised by child restraint system manufacturers who submitted
webbing load force data generated in dynamic testing to demonstrate
apparent safety margins in comparison to webbing breaking strength test
results, the Agency stated that ``[a] 30 mile per hour test is not
indicative of the upper limit of safety. The test conditions in FMVSS
No. 213 reflect the concern that child restraints will withstand even
the most severe crashes. These are well above 30 mph.'' Dorel Juvenile
Group [Cosco] (DJG); Denial of Applications for Determination of
Inconsequential Noncompliance, 73 FR 41397, 41399 (July 19, 2008).
While Combi also conducted dynamic testing using the higher NCAP crash
pulse, this provides an increase of only 5 mph over the FMVSS No. 213
dynamic crash pulse. In adopting the webbing strength standard, NHTSA
has never said and NHTSA does not believe that it is enough that
webbing withstands a 35 mph crash. There are real-world severe crashes
which take place above this level. In those crashes, the force on the
webbing is higher than in a 30 or 35 mph based crash. And, it must be
recognized that webbing in child restraints that have been used may be
degraded. In such crashes, a child occupant restrained in a child seat
with webbing, when new, that merely met a strength test related to a 35
mph crash would be at an increased risk of injury compared with a child
restrained in a child seat with webbing that meets the webbing strength
test in FMVSS No. 213 S5.4.1.2(a).
Next, Combi asserts that given the relative small number of subject
child restraint systems affected, the effectiveness of any notification
campaign will be limited. This type of argument is immaterial to the
inconsequentiality analysis because ``the number or percentage of
vehicles or equipment affected by the noncompliance is not relevant to
the issue of consequentiality''. See General Motors Corp., 69 FR 19899;
Cosco, Inc., Denial of Application for Decision of Inconsequential
Noncompliance, 64 FR 29408, 029409 (June 1, 1999). In addition, the
Agency would not necessarily consider an affected population of over
33,000 to be considered a small number when evaluating safety risk.
Finally, Combi argues that any noncompliance notice campaign may
result in customers deciding to discontinue using their subject
restraint(s) for a period of time thereby adding risk of injury. This
argument was not supported with any evidence and the Agency is not
persuaded by this argument. The Agency's Recall Management Office will
review Combi's noncompliance notification campaign to assure that it is
effective and the notification makes it clear to the affected
customer(s) that it is better to continue to use the subject child
restraint(s) while awaiting the remedy provided by the manufacturer,
and that it is unsafe, and in almost all cases unlawful, to transport a
child passenger in a motor vehicle without the use of a proper
restraint.
Decision: After carefully considering the arguments presented in
this matter, NHTSA has decided that the petitioner has not met its
burden of persuasion that the noncompliance described is
inconsequential to motor vehicle safety. Accordingly, Combi's petition
is hereby denied, and the petitioner must notify owners, purchasers and
dealers pursuant to 49 U.S.C. 30118 and provide a remedy in accordance
with 49 U.S.C. 30120.
Authority: (49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8)
Dated: November 21, 2013.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2013-28455 Filed 11-26-13; 8:45 am]
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