05-9390. Century Products, Inc.; Appeal of Denial of Application for Decision of Inconsequential Noncompliance

Summary: Century Products, a Division of Graco Children's Products, Inc. (“Century Products” and “Graco”), of Macedonia, Ohio, has appealed a decision by the National Highway Traffic Safety Administration (NHTSA) that denied Century Products' application that its noncompliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 213, “Child restraint systems,” be deemed inconsequential as it relates to safety. This notice of receipt of Century Products' appeal is published in accordance with NHTSA regulations (49 CFR 556.5 and 556.7) and does not represent any agency decision or other exercise of judgment concerning the merits of the appeal.

Dates: Comments must be received no later than June 10, 2005.

Addresses: You may submit comments identified by the DOT DMS docket number assigned this notice and listed above, by any of the following methods:

• Web site: http://dms.dot.gov. Follow the instructions for submitting comments on the DOT electronic docket site.
• Fax: [phone].
• Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001.
• Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays.
• Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

Instructions: All submissions must include the agency name and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://dms.dot.gov,, including any personal information provided. You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

Docket: For access to the docket to read background documents or comments received, go to http://dms.dot.gov at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 am and 5 p.m., Monday through Friday, except Federal Holidays.

For Further Information Contact: For non-legal issues, you may contact Mike Huntley, Office of Crashworthiness Standards, at [phone], and fax him at [phone].

For legal issues, you may contact Christopher Calamita, Office of Chief Counsel, at [phone], and fax him at [phone].

You may send mail to these officials at the National Highway Traffic Safety Administration, 400 Seventh St., SW., Washington, DC 20590.

Supplementary Information: Paragraph S5.1.1 of FMVSS No. 213 states that when a child restraint system is tested in accordance with S6.1, it shall “[e]xhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than 1/4 inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.” A “contactable surface” is defined in S4 as “any child restraint system surface (other than that of a belt, belt buckle, or belt adjustment hardware) that may contact any part of the head or torso of the appropriate test dummy, specified in S7, when a child restraint system is tested in accordance with S6.1.”

Century Products determined that as many as 185,175 child restraints fail to comply with FMVSS No. 213, and filed appropriate reports pursuant to 49 CFR part 573, “Defect and Noncompliance Responsibility and Reports.” Century Products also applied to be exempted from the notification and remedy requirements of 49 U.S.C. Chapter 301—“Motor Vehicle Safety” on the basis that the noncompliance is inconsequential to safety.

Notice of receipt of the application was published in the Federal Register on May 17, 2002 (67 FR 35188). On October 24, 2003, NHTSA published a notice in the Federal Register denying Century Products' application (Docket No. NHTSA-02-12087, Notice 2; 68 FR 61037; October 24, 2003), stating in part:

The requirements to be met in the dynamic testing of child restraints include: (1) Maintaining the structural integrity of the system, (2) retaining the head and knees of the dummy within specified excursion limits, and (3) limiting the forces exerted on the dummy by the restraint system. These requirements reduce the likelihood that a child using a complying child restraint system will be killed or injured by the collapse or disintegration of the system, or by contact with the interior of the vehicle, or by imposition of intolerable forces by the restraint system. Omission of any one of these three requirements would render incomplete the criteria for the quantitative assessment of the safety of a child restraint system and could lead to the design and use of unsafe restraints. It follows that the failure to comply with one or more of these three requirements will increase the likelihood that a child may be killed or injured in the event of a crash.

Graco's dynamic crash test audit of 10 units selected at random confirmed that, in this limited series of tests, four of the selected units “exhibited wall separation and the presence of a void at the initiation point of the separation.” However, there is no way for either Graco, Century Products, or NHTSA to assure that the location, extent, and consequences of the structural failures seen in this limited series of tests is representative of the performance of all potentially defective units that have been manufactured.

In consideration of these and other factors presented by Century Products, NHTSA decided that the applicant had not met its burden of persuasion that the noncompliance it described was inconsequential to safety, and denied the application.

Century Products appealed the decision pursuant to 49 CFR 556.7. In its appeal dated November 12, 2003, Century Products submitted information regarding the predictability of the separation location that had not been presented in its original application as follows:

Century has determined through process (injection molding) experimentation that the location of the void could not be significantly affected. Process experimentations were performed by varying the injection pressure, hold pressure, melt temperature, mold temperature, and fill velocity. The void did not vary significantly through any of these process iterations. This analysis demonstrates that the void location is a result of the plastic flow characteristics of the shell. Since it has been shown that the plastic flow in the tool cannot be significantly affected through processing parameters, we can conclude that the void location is predictable.

In order to evaluate the consequences of the wall separation, various diameter holes were drilled in the shell to simulate voids. When a void occurs outside of the identified location, there is no wall separation or effect on crash performance or FMVSS 213 compliance. To evaluate the size of the void on the wall separation, Century Products varied the diameter of the hole. These test variations showed that the size of the void does not change the observed mode of wall separation.

Based upon the engineering development of the Subject Product and the nature of the crash dynamics, Century Products asserts that the location, extent and consequences of the wall separations in the Subject Products are such that there is no impact on the safety of the child in the infant seat or any passenger around the seat. When NHTSA initially proposed dynamic testing of child restraint systems in 1974, it did not propose allowing any separation of the shell wall. The agency modified its proposal in 1978 to allow partial separation. NHTSA explained:

One objective of the system integrity requirements is to prevent ejection from the restraint system. Another is to ensure that the system does not fracture or separate in such a way as to harm the child. To this end, this notice proposes that when a restraint system is dynamically tested with the appropriate dummy * * * seated in it, there would not be any complete separation of any load bearing structural element of the system or any partial separation exposing surfaces with sharp edges that may contact an occupant. * * * This change was made in response to the comment by most child restraint manufacturers that some separation might be purposefully designed into a restraint system to improve its energy absorption performance. (43 Federal Register 21470, 21473; May 18, 1978; Emphasis Added)

In the preamble to the final rule, NHTSA reiterated the purpose of this requirement: “During the dynamic testing, no load bearing or other structural part of any child restraint system shall separate so as to create jagged edges that could injure a child.” 44 Federal Register 72131, 72132 (Dec. 13, 1979). With respect to partial separations, therefore, the safety issue with which the agency was concerned when it adopted this dynamic performance standard was a wall separation that may result in “sharp edges that may contact an occupant” or “jagged edges that could injure a child.” As discussed, however, the partial separation experienced by the Subject Products will not result in such hazards. Each separation observed during Century Products' testing occurred in a location under the seat pad.

Additionally, Century Products' appeal raised an issue as to whether the wall separation observed by Century Products constitutes a noncompliance given the location and nature of the separations as described above. Century Products stated:

Lastly, upon Century Products' review of Section S5.1.1 of FMVSS 213 and the results of its audit testing, Century Products is uncertain whether the wall separation observed by Century Products constitutes a noncompliance. The language of S5.1.1 states that the restraint shall “exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with a radius of less than one-quarter inch or surfaces with protrusions greater than three-eighths inch above the immediate adjacent surrounding contactable surface of any structural element of the system.” (Emphasis added.) Upon further review, it appears that the wall separations observed on the Subject Products may not fall within the scope of this language. Century Products' testing showed no complete separations, no protrusions, and no contactable surfaces on the car seats that exhibited the wall separation.

At Century Products' request, NHTSA representatives met with Century Products on April 27, 2004, to discuss the additional information provided in the November 2003 Century Products appeal. The agenda for this meeting has been placed in Docket NHTSA-02-12087. Following this meeting, Century Products conducted additional technical analyses to support the information provided in its November 2003 appeal, including (1) a Mold Flow analysis and (2) a finite element analysis of the shell portion of the subject child restraint. On July 16, 2004, Century submitted the results of these analyses to the agency. This information has also been placed in Docket NHTSA-02-12087.

Based upon these further analyses, Century Products concluded in its July 16, 2004 submittal that the subject child seats are fully compliant with FMVSS No. 213, and that the shell wall separation does not constitute a noncompliance. Century Products contends that the location of the crack does not constitute a noncompliance with S5.1.1(a) of FMVSS No. 213. Century Products states in its July 16, 2004 submittal:

In Century's appeal to the denial of the Petition for Determination of Inconsequential Noncompliance, Century stated that, based upon the particular crack in the child seat, Century was uncertain whether this particular type of wall separation would constitute a noncompliance under Section S5.1.1 of FMVSS 213. Since providing the Agency with that statement, Century has carefully evaluated the nature of the crack and the applicable Standard and contends that the child seat is fully compliant. The particular provision in question is S5.1.1(a). The Standard requires that after the child restraint system has been tested, it shall meet the following requirement: “(a) Exhibit no complete separation of any load bearing structural element and no partial separation exposing either surfaces with the radius of less than 1/4 inch or surfaces with protrusions greater than 3/8 inch above the immediate adjacent surrounding contactable surface of any structural element of the system.”

No one has suggested that there was a “complete separation of any load bearing structural element.” There has been some partial separation in the testing, and the surface in question may have a radius of less than 1/4 inch, but was not a “partial separation exposing * * * surfaces with a radius of less than 1/4 inch. * * *” If a partial separation existed, it was never exposed as the word is used in S5.1.1(a). The substantial pad on the seat will keep the crack from coming in contact with any part of the dummy of child.

The Agency has defined “contactable surface.” It states: “Contactable surface means any child restraint system surface (other than that of a belt, belt buckle, or belt adjustment hardware) that may contact any part of the head or torso of the appropriate test dummy specified in S7, when a child restraint system is tested in accordance with S6.1.” (§ 571.213, S4) Using the definition of “contactable surface,” Century contends that the partial crack in the child restraint comes nowhere close to where the head or torso of the dummy would be placed.

* * * If the crack is not adjacent to the position of the dummy, due to the substantial seat pad, then “sharp edges” cannot come in contact with the occupant. As the clearly defined crack in our case does not come near the head or torso of the appropriate test dummy, Century contends that there can be no violation of S5.1.1(a).

Interested persons are invited to submit written data, views, and arguments on the appeal of Century Products described above. When the appeal is granted or denied, the notice will be published in the Federal Register pursuant to 49 CFR Part 556 and the authority indicated below.

(49 U.S.C. 30118 and 30120; delegations of authority at 49 CFR 1.50 and 501.8)

Issued on: May 4, 2005.

Stephen R. Kratzke,

Associate Administrator for Rulemaking.