Dorel Juvenile Group; Denial of Appeal of Decision on Inconsequential Noncompliance |
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Topics: Dorel
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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]
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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.
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\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.
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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\
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\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