Fisher-Price, Inc.; Denial of Petition for Determination of Inconsequential Noncompliance |
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Topics: Fisher-Price
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Barry Felrice
Federal Register
May 5, 1994
[Federal Register: May 5, 1994]
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DEPARTMENT OF TRANSPORTATION
[Docket No. 93-79; Notice 2]
Fisher-Price, Inc.; Denial of Petition for Determination of
Inconsequential Noncompliance
Fisher-Price, Inc. (Fisher-Price) of East Aurora, New York,
determined that some of its child safety seats failed to comply with
the flammability requirements of 49 CFR 571.213, ``Child Restraint
Systems,'' Federal Motor Vehicle Safety Standard (FMVSS) No. 213, and
filed an appropriate report pursuant to 49 CFR Part 573. Fisher-Price
also petitioned to be exempted from the notification and remedy
requirements of the National Traffic and Motor Vehicle Safety Act (15
U.S.C. 1381 et seq.) on the basis that the noncompliance was
inconsequential as it related to motor vehicle safety.
Notice of receipt of the petition was published on November 9,
1993, and an opportunity afforded for comment (58 FR 59511). This
notice denies the petition.
Paragraph S5.7 of FMVSS No. 213 states that ``[e]ach material used
in a child restraint system shall conform to the requirements of S4 of
FMVSS No. 302 (571.302).'' Paragraph S4.3(a) of FMVSS No. 302 states
that ``[w]hen tested in accordance with S5, material described in S4.1
and S4.2 shall not burn, nor transmit a flame front across its surface,
at a rate of more than 4 inches per minute.''
During the period of January 1988 through the present, Fisher-Price
produced approximately 3.3 million child restraint seats with shoulder
belt webbing that might not comply with the flammability requirements
of FMVSS No. 213.
The Fisher-Price webbing restraint system is manufactured in three
phases. First, raw webbing is manufactured by AlliedSignal in
Knoxville, Tennessee. Second, the raw webbing is sent to another
AlliedSignal plant located in Mexico, which cuts the webbing to length
and attaches the buckles. Finally, the webbing/buckle assemblies are
sent to Jones and Vining, Inc., in Lewiston, Maine, which attaches them
to the ``T-Shield,'' a soft, molded polyurethane cushion. A foam
molding process is used to attach the T-Shield to the webbing.
NHTSA took two samples of the harness webbing from a Fisher-Price
child safety seat and had them tested by the Detroit Testing
Laboratory. The two samples of webbing burned at rates of 4.4 and 4.7
inches per minute, thus failing the test specified in FMVSS No. 213.
(NHTSA notes that there was an additional failure on retest of 4.9
inches. These tests formed the basis of agency investigation NCI 3270).
When the agency informed Fisher-Price of the test failures, Fisher-
Price conducted further tests on the webbing, both in its raw state and
in its molded state. AlliedSignal conducted FMVSS No. 302 compliance
tests for Fisher-Price on webbing which had gone through the molding
process at Jones and Vining (hereinafter ``molded webbing''). On April
12, 1993 and May 10, 1993, eleven samples which were tested either
self-extinguished or had burn rates from 1.84 to 2.91 inches per
minute, thus complying with the standard. On August 19, 1993,
AlliedSignal tested seven raw webbing samples, all of which either did
not ignite or self extinguished, resulting in a burn rate of zero, and
twelve molded webbing samples, yielding burn rates of 2.0 to 5.8 inches
per minute. (NHTSA notes a slight inaccuracy in the petition. Data
supplied during the course of the investigation indicate that the
lowest burn rate rounded to the nearest tenth was 3.0 inches, rather
than 2.0).
Fisher-Price supported its petition for inconsequential
noncompliance with the following rationale, as well as webbing test
photographs, test data, a videotape of the tests, and the professional
resumes of two fire experts which are available for review in the NHTSA
docket. In addition, Fisher-Price met with NHTSA officials to
reemphasize some of the points that it presented in its petition. A
record of this meeting is contained in the NHTSA docket.
Fisher-Price commissioned two fire experts, James H. Shanley, Jr.,
P.E., a licensed fire protection engineer, and Patrick M. Kennedy, an
experienced fire investigator, to conduct a study to assess the impact
on motor vehicle safety of the noncompliance. The study consisted of
conducting tests to compare the webbing with typical children's
clothing, to compare the webbing with other interior elements of a
typical motor vehicle, to search available literature and databases for
instances where the webbing in a child safety seat contributed to a
fire, and to determine whether the noncompliance would have an impact
on an individual's ability to evacuate a burning motor vehicle.
Among the tests which compared the burn rates and ignition
temperatures of typical children's clothing to that of the noncompliant
webbing, the first test, American Society for Testing and Materials
(ASTM) D1929, ``Standard Test Method for Ignition Properties of
Plastics,'' was to determine ignition temperatures. The ignition
temperature of the molded webbing was 796 deg. Fahrenheit (F), ignition
temperature of a 100 percent cotton ``T'' shirt was 571 deg.F, and
ignition temperature of 50 percent cotton/50 percent polyester
sweatpants was 676 deg.F. The study concluded that the molded webbing
is ``manifestly more resistant to ignition than typical children's
clothing.''
The second test, 16 CFR 1610 or ASTM D1230, ``Standard Test Method
for the Flammability of Apparel Textiles,'' was to determine the
relative flammability of each of the three above-mentioned materials.
This test determines the time it takes the sample to burn a distance of
five inches while suspended at a 45 deg. angle. In this test, the
molded webbing took 13.51 times longer to burn than is allowed by the
standard. Further, the ``T'' shirt and the sweatpants burned at rates
that were three and 2.2 times faster, respectively, than the molded
webbing.
The third test, ASTM 3659, ``Standard Test Method for Flammability
of Apparel Fabrics by Semi-Restraint Method,'' measures the burn rates
in a vertical configuration. The average vertical burn rates of the
materials were as follows: molded webbing--6.36 inches per minute;
sweatpants--19.79 inches per minute; and ``T'' shirt--30.41 inches per
minute. From these results, the study concluded that the molded webbing
is significantly less flammable than typical children's clothing.
Finally, a series of tests were conducted to determine the relative
ease or difficulty of igniting each of the three materials using
ignition sources most typically expected to be found in a motor
vehicle: A lit cigarette; a paper match and a butane lighter. None of
the materials ignited using a smoldering cigarette placed on top of the
horizontally suspended material sample. The ``T'' shirt ignited in one-
fifth the time (3 seconds), and the sweatpants ignited in slightly less
than one-fourth the time (4 seconds) it took the molded webbing to
ignite (15 seconds) using a paper match flame. The ``T'' shirt ignited
in slightly less than one-sixth the time (2.5 seconds), and the
sweatpants ignited in nearly one-fifth the time (3 seconds) it took to
ignite the molded webbing (14.4 seconds) using a butane lighter flame.
Messrs. Kennedy and Shanley concluded that, based on these tests
and on their expertise in this area, when compared to the relative ease
of ignition of typical children's clothing, the molded webbing material
presents no risk to the safety of the occupant of the Fisher-Price car
seat.
Messrs. Shanley and Kennedy also examined how the webbing would
contribute to a vehicle fire in comparison with the other interior
elements of a typical motor vehicle. They found that the molded webbing
contained in the Fisher-Price child safety seats comprises 0.019
percent of the combustible material in the interior of the average
motor vehicle; it weighs approximately 0.06 pound and the total
combustible material in the average motor vehicle weighs 337 pounds.
From this, they concluded that the molded webbing comprises an
inconsequential percentage of material when compared to the total
amount of combustible material contained in a typical motor vehicle's
interior. Mr. Shanley concluded that ``the removal of this material
would have no effect on any interior motor vehicle fire and,
conversely, that its presence in the vehicle would not, to any degree,
increase the risk, of an interior vehicle fire.''
Messrs. Shanley and Kennedy also searched all available databases
and source materials for information relating to the involvement of
child car seats in interior motor vehicle fires. Their research focused
on the possibility of an interior motor vehicle fire originating in a
child car seat, especially where it appeared that the shoulder belt
webbing may have been the original fuel source. Their search did not
reveal any instances where an interior motor vehicle fire originated in
a child car seat or where a car seat contributed in any way to an
interior motor vehicle fire.
With regard to the occupants of a motor vehicle having sufficient
time to evacuate the vehicle in the event it caught fire, Mr. Shanley
stated that:
It is a basic principle of fire protection that the ability of a
person to evacuate and survive a fire is strictly dependent upon two
conditions:
(1) The severity or magnitude of the fire, and
(2) The time of exposure to the fire. In a motor vehicle fire
situation, the threat to life is the inhalation of smoke and hot
gases (asphyxiation) and exposure to the heat of the fire (burns).
The design of most motor vehicles ensures that unimpaired occupants
can evacuate quickly. Therefore, the goal of fire protection efforts
must focus on reducing the severity of the fire. The severity of a
fire is determined by its physical size, the quantity of available
fuel, the total quantity of heat released, and the rate at which
that heat is released. A complete assessment of the fire threat must
include an assessment of all of these factors.
Limiting the flame spread rate of a motor vehicle's combustible
interior materials, as measured and specified by FMVSS 302, does not
suffice for a complete fire hazard assessment. The 0.06 lbs (sic)
(30.2 grams) of webbing material used in Fisher-Price car seats is
an insufficient quantity of material to produce a potentially lethal
fire threat to the occupants of a motor vehicle. Therefore, the time
available for an occupant to safely evacuate and survive a motor
vehicle fire is not influenced to any degree by a material, such as
the molded webbing, which comprises a mere 0.019% of the total
combustible material in a motor vehicle's interior (emphasis
original).
Fisher-Price argued that:
A remedial action campaign would not further the purposes of the
Traffic and Vehicle Safety Act (the ``Act''), 15 U.S.C. 1391 et seq.
(1982), in promoting the marketing of safe motor vehicles and their
accessories, such as child car seats. The dominant theme of the
regulations propounded in furtherance of the Act is that accessories
such as car seats be safe; indeed, the stated basis in the Act for
the granting of an exemption from the remedial action requirements
of the Act is that the noncompliance would have only an
inconsequential impact on the safety of motor vehicles. 15 U.S.C.
1417; 49 CFR 556.1, 556.2.
Child safety advocates, automobile safety advocates and the
NHTSA all acknowledge the negative impact of a remedial action
campaign based on a technical noncompliance with a particular
regulation that does not, as a practical matter, have any effect on
the safety of the occupants of a motor vehicle. The NHTSA itself has
reported that many child car seat owners ignore car seat recalls
that they do not view as posing a serious problem or threat. See
Transcript, ``The 1993 Child Passenger Safety Symposium Public
Comment Session On Child Safety Seat Recalls,'' March 14, 1993.
Fisher-Price also argued that a negative consequence of a remedial
action campaign resulting from what it feels is a technical
noncompliance, would be a general lack of confidence in child car
seats. It feels that there is a danger that parents of young children
might discontinue the use of child car seats out of concern that child
car seats are not safe, in spite of the fact that all states currently
have laws on their books mandating the use of such seats for specified
child groups.
Fisher-Price concluded that:
The tests performed by Messrs. Kennedy and Shanley clearly
demonstrate that a noncompliance with the requirements of FMVSS 302
as it applies to the molded webbing used in the Fisher-Price car
seats is inconsequential as it relates to motor vehicle safety. The
empirical data gathered from these tests establish that, to the
extent a child occupant of a car seat faces a risk of injury from
fire, that risk arises as a result of the clothing the child wears,
not from the flammability of the molded webbing material. In
addition, the webbing constitutes only an inconsequential percentage
(0.019%) of the total combustible material located in the interior
of the average motor vehicle and therefore has no impact on the fire
safety of a motor vehicle or on the ability of an individual to
safely evacuate a burning motor vehicle. Of equal import, research
has revealed no reported instance in which the shoulder belt webbing
of a child car seat has been the material first ignited in a motor
vehicle fire or in which a single child was burned as a result of a
fire originating in the shoulder belt webbing of a child car seat.
No comments were received on the petition.
NHTSA has given careful consideration to the petitioner's
arguments. There is no disagreement that a noncompliance has occurred.
Molded webbing as used in completed child restraint systems has burned
at a rate that significantly exceeds the maximum limit imposed by the
standard. The average burn rate in the two initial tests and one retest
conducted by NHTSA is 4.67 inches. In the twelve tests on molded
webbing conducted by AlliedSignal, there were only four tests in which
the burn rate was less than 4 inches. The average burn rate for the
eight failing tests was 4.71 inches (and for all twelve tests, 4.21
inches).
NHTSA believes that flammability requirements for child restraints
should be stringently adhered to for the following reasons. The test
requirement of not more than 4 inches a minute is justified by the need
``to prevent injury to occupants from rapidly spreading interior fires,
to allow sufficient time for the driver to stop the vehicle, and, if
necessary, for occupants to leave it before injury occurs'' (36 FR
10817). This is even more critical in the case of child restraints as a
typical small child is not capable of exiting a vehicle without help.
Therefore, some additional time is required for another person to
remove the child. Moreover, the child most often is in the rear seat
and the adult is in front, adding to the time factor. Finally, because
the webbing rests against the child's body, noncompliant webbing has
great potential for injuring the child if ignited.
In issuing FMVSS No. 302 in 1971 (36 FR 289), the agency cited
matches, cigarettes or short circuits in interior wiring as examples of
sources for fires occurring in the interior of vehicles. The agency
believes that there are situations where the straps could become
ignited. One example is children in the back seat of a car, playing
with matches, a cigarette lighter, or other ignition source near a
child restrained in a Fisher-Price seat.
In point of fact, had the tests been conducted under real life
circumstances, the results could have been worse. Webbing samples are
tested horizontally, but webbing is worn vertically. If a fire begins
at the bottom of webbing, it will travel upward at a faster rate than
it would in a horizontal placement.
The petitioner attaches importance to its arguments that there is a
higher risk of injury to a child through ignition of its clothing
rather than from the webbing material, that the webbing constitutes
only a very small percentage of the total combustible material located
in the interior compartment, and that there is no reported instance in
which injuries are attributable to ignition of shoulder belt webbing.
NHTSA does not consider these arguments well taken. In any motor
vehicle fire, whether or not involving children, there is likely to be
higher risk to an occupant from ignition of clothing than from ignition
of interior components. That is because Standard No. 302 (and Standard
No. 213) does not set fire retardant standards for clothing. The aim of
NHTSA's standards is to reduce the likelihood of ignition of interior
components, or to limit their burn rate if they ignite, and this is to
be accomplished within the parameters of NHTSA's jurisdiction over
motor vehicles and motor vehicle equipment. With respect to child
restraints, it is important to inhibit or delay combustion so that, as
NHTSA has noted above, the driver can pull to the side of the road,
stop, exit the vehicle, and remove the child from it. Although the
chance of ignition of shoulder webbing may not be as great as other
components of child seating systems that present a broader fabric face
for flame to travel across, all components must comply with the
standard, and it is not impracticable for manufacturers to assure that
they do so.
The statement that consumers ignore recalls because of their number
and frequency is unsubstantiated. Further, NHTSA views it equally
unlikely that, because of campaigns, consumers would conclude that
child restraints are unsafe and decline to use them. Indeed, the
opposite is more likely the case. Responses to safety notifications
depends on factors including the type of noncompliance or defect, the
type and extent of the notification campaign, media coverage, and the
efforts of manufacturers.
Future campaigns are more likely to be effective than past ones.
FMVSS No. 213 has been amended to provide for the registration of child
restraints. The purpose of the program is to increase the effectiveness
of campaigns to recall child seats. It requires manufacturers to take
steps that will increase their ability to inform owners of particular
child restrains about problems in these restraints and by encouraging
owners to register their child seats.
For the foregoing reasons, the petitioner has failed to meet its
burden of persuasion that the noncompliance herein described is
inconsequential as it relates to motor vehicle safety, and its petition
is denied.
(15 U.S.C. 1417; delegations of authority at 49 CFR 1.50 and 49 CFR
501.8)
Issued on March 22, 1994.
Barry Felrice,
Associate Administrator for Rulemaking.
[FR Doc. 94-10860 Filed 5-2-94; 2:46 pm]
BILLING CODE 4910-59-P