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Diono LLC, Receipt of Petitions for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Otto G. Matheke III Date: 19 December 2022 Subjects: American Government  , Safety
Topic: Diono |
[Federal Register Volume 87, Number 242 (Monday, December 19, 2022)]
[Notices]
[Pages 77671-77674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-27387]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket Nos. NHTSA-2022-0071 and NHTSA-2022-0072; Notice 1]
Diono LLC, Receipt of Petitions for Decision of Inconsequential
Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Receipt of petitions.
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SUMMARY: Diono LLC, (Diono), has determined that certain models of its
child restraint systems do not fully comply with Federal Motor Vehicle
Safety Standard (FMVSS) No. 213, Child Restraint Systems. Diono filed
two noncompliance reports dated June 22, 2022, and later amended one of
the reports on August 10, 2022. Diono subsequently petitioned NHTSA on
July 21, 2022, and July 22, 2022, and later amended one of the
petitions on August
[[Page 77672]]
18, 2022, for a decision that the subject noncompliances are
inconsequential as they relate to motor vehicle safety. This document
announces receipt of Diono's petitions.
DATES: Send comments on or before January 18, 2023.
ADDRESSES: Interested persons are invited to submit written data,
views, and arguments on these petitions. Comments must refer to the
docket and notice number cited in the title of this notice and may be
submitted by any of the following methods:
Mail: Send comments by mail addressed to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590.
Hand Delivery: Deliver comments by hand to the U.S.
Department of Transportation, Docket Operations, M-30, West Building
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC
20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m.
except for Federal Holidays.
Electronically: Submit comments electronically by logging
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting
comments.
Comments may also be faxed to (202) 493-2251.
Comments must be written in the English language, and be no greater
than 15 pages in length, although there is no limit to the length of
necessary attachments to the comments. If comments are submitted in
hard copy form, please ensure that two copies are provided. If you wish
to receive confirmation that comments you have submitted by mail were
received, please enclose a stamped, self-addressed postcard with the
comments. Note that all comments received will be posted without change
to https://www.regulations.gov, including any personal information
provided.
All comments and supporting materials received before the close of
business on the closing date indicated above will be filed in the
docket and will be considered. All comments and supporting materials
received after the closing date will also be filed and will be
considered to the fullest extent possible.
When the petitions are granted or denied, notice of the decision
will also be published in the Federal Register pursuant to the
authority indicated at the end of this notice.
All comments, background documentation, and supporting materials
submitted to the docket may be viewed by anyone at the address and
times given above. The documents may also be viewed on the internet at
https://www.regulations.gov by following the online instructions for
accessing the dockets. The docket ID numbers for these petitions are
shown in the heading of this notice.
DOT's complete Privacy Act Statement is available for review in a
Federal Register notice published on April 11, 2000 (65 FR 19477-78).
FOR FURTHER INFORMATION CONTACT: Paloma Lampert, General Engineer,
NHTSA, Office of Vehicle Safety Compliance, (202) 366-5299.
SUPPLEMENTARY INFORMATION:
I. Overview: Diono determined that certain Diono Everett NXT
Booster Seats do not fully comply with paragraph S5.5.2(e) of FMVSS No.
213, Child Restraint Systems (49 CFR 571.213) because they do not
contain the certification statement.
Diono filed an original noncompliance report dated June 22, 2022,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports. Diono petitioned NHTSA on July 22, 2022, for an exemption
from the notification and remedy requirements of 49 U.S.C. Chapter 301
on the basis that this noncompliance is inconsequential as it relates
to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h)
and 49 CFR part 556, Exemption for Inconsequential Defect or
Noncompliance.
Diono also determined that certain Cambria, Monterey, Radian,
Everett, and Solana, model child restraints do not fully comply with
paragraphs S5.5.2, S5.5.2(m)(ii), S5.6.1.7(ii), and S5.8.2, of FMVSS
No. 213, Child Restraint Systems (49 CFR 571.213).
Diono filed an original noncompliance report dated June 22, 2022,
and later amended it on August 10, 2022, pursuant to 49 CFR part 573,
Defect and Noncompliance Responsibility and Reports. Diono petitioned
NHTSA on July 21, 2022, and later amended it on August 18, 2022, for an
exemption from the notification and remedy requirements of 49 U.S.C.
chapter 301 on the basis that this noncompliance is inconsequential as
it relates to motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and
30120(h) and 49 CFR part 556, Exemption for Inconsequential Defect or
Noncompliance.
This notice of receipt of Diono's petitions is published under 49
U.S.C. 30118 and 30120 and does not represent any agency decision or
another exercise of judgment concerning the merits of the petitions.
II. Child Restraint Systems Involved: Approximately 2,642 Diono
Everett NXT Booster Seats, manufactured between October 1, 2020, and
March 31, 2021, are potentially involved because they do not comply
with S5.5.2(e) of FMVSS No. 213.
In addition, approximately 697,286 Cambria 2, Monterey XT, Monterey
4DXT, Monterey 5, Radian 3R, Radian 3RX, Radian 3RXT, Radian 3QX,
Radian 3QXT, Radian 3QXT+, Radian 3RXT Safe+, Everett NXT,\1\ Solana,
and Solana 2, child seat restraints manufactured between July 12, 2021,
and July 21, 2022, are potentially involved.
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\1\ According to Diono's petition, the Everett NXT model does
not comply with S5.6.1.7(ii) and S5.8.2 whereas the other models
listed also do not comply with S5.5.2 and S5.5.2(m)(ii) because the
required information is not printed on black text with white
background.
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III. Noncompliances: Diono explains that the labels on the subject
Everett NXT Booster Seats are missing the statement ``This child
restraint system conforms to all applicable Federal motor vehicle
safety standards,'' and therefore the Everett NXT Booster Seats do not
fully comply with S5.5.2(e) of FMVSS No. 213.
The subject Cambria 2, Monterey XT, Monterey 4DXT, Monterey 5,
Radian 3R, Radian 3RX, Radian 3RXT, Radian 3QX, Radian 3QXT, Radian
3QXT+, Radian 3RXT Safe+, Solana, and Solana 2 child restraints are
affixed with labels that were printed with white text on a black
background rather than black text on a white background, and therefore,
do not fully comply with S5.5.2 of FMVSS No. 213.
The subject Cambria 2, Monterey XT, Monterey 4DXT, Radian 3R,
Radian 3RX, Radian 3RXT, Radian 3QX, Radian 3QXT, Everett NXT, Solana,
and Solana 2 child restraints were sold with printed instructions that
provided an incorrect web address to access the electronic registration
form, and therefore, do not fully comply with S5.6.1(7)(ii) and S5.8.2
of FMVSS No. 213.
IV. Rule Requirements: Paragraphs S5.5.2, S5.5.2(e), S5.5.2(m)(ii),
S5.6.1.7(ii) and S5.8.2 of FMVSS No. 213 include the requirements
relevant to the petitions. Among other required information, each add-
on child restraint must be permanently labeled on a white background
with black text with the following statements:
``This child restraint system conforms to all applicable
Federal motor vehicle safety standards.''
``Child restraints could be recalled for safety reasons.
You must register this restraint to be reached in a recall. Send
[[Page 77673]]
your name, address, email address if available [preceding four words
are optional], and the restraint's model number and manufacturing date
to (insert address) or call (insert a U.S. telephone number) or
register online at (insert website for electronic registration form).
For recall information, call the U.S. Government's Vehicle Safety
Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go to http://www.NHTSA.gov.''
The written instructions required to be provided with each child
seat restraint must include the statement provided by S5.6.1.7(i) or
S5.6.1.7(ii). If a manufacturer opts to provide a website on the
registration card, the manufacturer must include the statement given in
S5.6.1.7(ii) which states: ``Child restraints could be recalled for
safety reasons. You must register this restraint to be reached in a
recall. Send your name, address, email address if available (preceding
four words are optional), and the restraint's model number and
manufacturing date to (insert address) or call (insert telephone
number) or register online at (insert website for electronic
registration form). For recall information, call the U.S. Government's
Vehicle Safety Hotline at 1-888-327-4236 (TTY: 1-800-424-9153), or go
to http://www.NHTSA.gov.'' S5.8.2 specifies that the electronic
registration form must be accessed directly by the web address that the
manufacturer printed on the attached registration form and the form
must appear on screen without any further keystrokes on the keyboard or
clicks of the mouse.
V. Summary of Diono's Petitions: The following views and arguments
presented in this section, ``V. Summary of Diono's Petitions,'' are the
views and arguments provided by Diono. They have not been evaluated by
the Agency and do not reflect the views of the Agency. Diono describes
the subject noncompliances and contends that the noncompliances are
inconsequential as they relate to motor vehicle safety.
Diono Everett NXT Booster Seats:
Diono explains that while the Diono Everett NXT Booster Seats do
not contain one of the statements required by S5.5.2, the noncompliance
is inconsequential because the instruction manual provided with them
does contain the missing statement, and consumers can contact Diono's
customer service department if they have any questions about product
safety or compliance with FMVSSs. Therefore, Diono argues that
consumers have an ``adequate and alternative means of being informed of
the compliance status.'' Diono references NHTSA's decision on a
petition submitted by Mazda, in which the noncompliance was deemed
consequential; however, Diono contends that NHTSA's reasoning
(noncompliances pertaining to labelling are inconsequential when they
do not cause any misunderstanding, especially where other sources of
correct information are available) supports the granting of the subject
petition.
Furthermore, Diono believes that it is unlikely consumers would
conclude that the subject Diono Everett NXT Booster Seats do not comply
FMVSS No. 213, ``given that no child restraint can be legally sold in
the United States without such compliance.'' Diono contends that
consumers would instead ``assume that products on the market meet
mandatory safety standards, whatever those standards might be.''
Cambria, Monterey, Radian, Everett, and Solana Models
Diono believes that the noncompliant text and background colors
used on the labels affixed to the subject Cambria, Monterey, Radian,
and Solana model child restraint systems are inconsequential to motor
vehicle safety because Diono claims that the colors used still fulfill
the purpose of the requirement. Diono states that the noncompliant
labels use the same black and white contrast that is required but in
reverse and the purpose of the requirement to conspicuously provide the
information on the label is fulfilled.
Diono states that ``[t]o ensure compliance with the regulation and
before manufacture of the affected child restraints, Diono proactively
had all labels reviewed and approved by Calspan Corporation.'' Diono
included copies of the reports prepared by Calspan with its petition as
Exhibits B through O. Diono states that Calspan concluded that the
affected labels complied with FMVSS No. 213 and contends that
``Calspan's finding that the affected labels complied with FMVSS [No.]
213 supports the conclusion that Diono's particular use of the chosen
colors provides the necessary level of conspicuity.''
Diono also states that it has corrected future production to use a
label with the black text on white background, as required by S5.5.2.
Diono notes that NHTSA has denied a petition submitted by Baby Jogger,
LLC, concerning a similar noncompliance; however, Diono states that the
labels at issue in that petition were difficult to read and ``did not
fully comply with numerous other provisions of S5.5.2 concerning font,
capitalization, and incorrect sequencing of text and warnings.'' Unlike
the noncompliant labels in Baby Jogger, LLC's petition, Diono believes
that its noncompliant labels should be found inconsequential to motor
vehicle safety because all the required information is still present
and the label is ``conspicuous and legible.''
In both petitions, Diono states that NHTSA has previously explained
that it might consider a labeling noncompliance to be inconsequential
in situations where the label has a misspelled word, or is printed in
the wrong format or wrong type size if the noncompliance does not cause
any misunderstanding, especially where other sources of correct
information are available.\2\ Furthermore, Diono states that it has not
received any reports or inquiries regarding the subject noncompliances.
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\2\ Diono cites Mazda North American Operations; Denial of
Petition for Inconsequentiality; 86 FR 7170-01 (Jan. 26, 2021).
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Diono also determined that the written instructions sold with the
affected child restraint systems provided a web address that did not
directly access the electronic registration form. Diono explained that
the noncompliance occurred because ``an IT contractor who was updating
Diono's website failed to comply with the requirement not to disturb
the registration page.'' Diono says that it has corrected the issue by
redirecting the provided web address to allow the consumer to access
the registration form as required. Diono believes that this
noncompliance does not ``negatively impact motor vehicle safety because
the availability of an electronic registration form on the website (1)
is voluntary by regulation and (2) could still be located and completed
by consumers in an effective manner.'' Diono further explains that
consumers affected by this noncompliance were still able to navigate to
Diono's home web page via the incorrect web address where the consumer
could access the link to the registration form.
According to Diono, the purpose of the requirement to provide a web
address to access the registration was still fulfilled ``even if the
manner by which consumers temporarily did this did not fully comply''
with the requirements provided in FMVSS No. 213. Diono notes that it
was ``actively receiving electronic registrations through its website
throughout the time period at issue.'' Therefore, Diono states that
consumers were ``consistently able to redirect themselves to the
appropriate registration link and effectuate registration.'' Diono says
that it did not receive any reports that consumers were unable to
register their child restraint system.
[[Page 77674]]
Diono further contends that ``it is not unusual for any business to
experience extended, unexpected and even undiagnosed downtime or
impaired function of pages on its website, which it learns of only when
reported, and promptly remedies.'' Diono states that consumers are able
to effectively navigate websites to find the intended web page, which
it says, ``may complicate the supplier's ability to recognize such
issues in the first place.'' Moreover, Diono states, ``If technical
difficulties with a supplier's registration website were consequential
to motor vehicle safety, a motor vehicle equipment supplier would need
to file a Part 573 report every time their website experienced a
material service interruption or had a miscommunication with its web
development team.''
Diono concludes by stating its belief that the subject
noncompliances are inconsequential as they relate to motor vehicle
safety and its petitions to be exempted from providing notification of
the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and
30120(h)) that permit manufacturers to file petitions for a
determination of inconsequentiality allow NHTSA to exempt manufacturers
only from the duties found in sections 30118 and 30120, respectively,
to notify owners, purchasers, and dealers of a defect or noncompliance
and to remedy the defect or noncompliance. Therefore, any decision on
these petitions only applies to the subject child restraints that Diono
no longer controlled at the time it determined that the noncompliances
existed. However, any decision on these petitions does not relieve
child restraint distributors and dealers of the prohibitions on the
sale, offer for sale, or introduction or delivery for introduction into
interstate commerce of the noncompliant child restraint systems under
their control after Diono notified them that the subject noncompliances
existed.
(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)
Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022-27387 Filed 12-16-22; 8:45 am]
BILLING CODE 4910-59-P