99-13824. Kolcraft Enterprises, Inc.; Denial of Application for Decision of Inconsequential Noncompliance  

  • [Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
    [Notices]
    [Pages 29410-29412]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 99-13824]
    
    
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    DEPARTMENT OF TRANSPORTATION
    
    National Highway Traffic Safety Administration
    [Docket No. NHTSA-98-4383; Notice 2]
    
    
    Kolcraft Enterprises, Inc.; Denial of Application for Decision of 
    Inconsequential Noncompliance
    
        Kolcraft Enterprises of Chicago, Illinois, has determined that 
    706,068 child restraint systems it manufactured fail to comply with 49 
    CFR 571.213, Federal Motor Vehicle Safety Standard (FMVSS) No. 213, 
    ``Child Restraint Systems,'' and has filed an appropriate report 
    pursuant to 49 CFR part 573, ``Defects and Noncompliance Reports.'' 
    Kolcraft has 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 on September 8, 
    1998, in the Federal Register (63 FR 47545), with a 30-day comment 
    period. We received no comments.
        FMVSS No. 213, S5.6.1.8, requires:
    
        In the case of each child restraint system that can be used in a 
    position so that it is facing the rear of the vehicle, the 
    instructions shall provide a warning against using rear-facing 
    restraints at seating positions equipped with air bags, and shall 
    explain the reasons for, and consequences of not following the 
    warning. The instructions shall also include a statement that owners 
    of vehicles with front passenger side air bags should refer to their 
    vehicle owner's manual for child restraint installation 
    instructions.
    
        In adopting S5.6.1.8, we said that such instructions would 
    ``complement'' the requirement that owner's manuals of vehicles having 
    a front passenger side air bag provide information regarding ``proper 
    positioning of occupants, including children, at seating positions 
    equipped with an air bag.'' 59 FR 7643, 7646 (Feb. 16, 1994) (final 
    rule). This requirement appears in S4.5.1(f) of FMVSS No. 208, which 
    was added in 1993. 58 FR 46551, 46564 (Sep. 2, 1993) (final rule).
        The items affected by the noncompliance are the instructions for 
    proper use that were provided after August 15, 1994, with certain 
    models of Kolcraft's child restraints in its effort to comply with S5.6 
    of FMVSS No. 213. Kolcraft's instructions provided the appropriate 
    warning against using rear-facing restraints at seating positions 
    equipped with air bags, as well as the reason for the warning and the 
    consequences of not following it. However, Kolcraft's instructions did 
    not include a statement expressly referring owners of vehicles with 
    front passenger side air bags to their vehicle owner's manual for child 
    restraint installation instructions. The noncompliances began August 
    15, 1994, the effective date of S5.6.1.8. The following models of child 
    restraints were affected by the noncompliance: Rock'n Ride (until April 
    1996); Auto-Mate (until June 1997); Traveler 700 (until December 1995); 
    Performa (until June 1997); and Secure Fit (until June 1997). The total 
    number of child restraints involved is 706,068. In response to an April 
    17, 1997, letter from us concerning miscellaneous compliance issues,
    
    [[Page 29411]]
    
    Kolcraft has subsequently revised its instructions to conform to 
    S5.6.1.8.
        Kolcraft supports its application for inconsequential noncompliance 
    with the following:
    
        S4.5.1(f) of FMVSS No. 208 requires owner's manuals to provide 
    information regarding ``proper positioning of occupants, including 
    children, at seating positions equipped with air bags.'' (Emphasis 
    supplied.) It does not, however, require a vehicle manufacturer to 
    include ``child restraint installation instructions'' in general. 
    Indeed, for rear-facing infant restraints such as Kolcraft's Rock 
    ``n Ride, there should be no child restraint installation 
    instructions for ``seating positions equipped with air bags,'' 
    because rear-facing restraints should not be used in air bag 
    equipped seats. And not surprisingly, no owner's manual we reviewed 
    contains installation instructions for rear-facing infant seats at 
    ``seating positions equipped with air bags'; rather, they 
    consistently warn against installation of a rear-facing restraint at 
    an air bag equipped seating position. While some owner's manuals 
    contain child restraint installation instructions for other (non-air 
    bag) seating positions, not all owner's manuals contain such 
    information. Thus, since the vehicle owner's manual will not always 
    yield the ``child restraint installation'' information apparently 
    contemplated by S5.6.1.8 of FMVSS No. 213, the inadvertent omission 
    from the Kolcraft instruction sheets of a reference to the vehicle 
    owner's manual is not consequential to motor vehicle safety.
        Moreover, although Kolcraft does not question the usefulness of 
    a statement directing vehicle owners to their owner's manual for 
    ``complement[ary]'' (59 FR at 7646) information relating to the 
    positioning of occupants--especially children--at seat positions 
    equipped with air bags, Kolcraft's inadvertent failure to include 
    such a statement in its instructions is inconsequential because 
    Kolcraft's instructions set forth in detail the very information 
    about child restraint installation and the proper positioning of 
    children that is contemplated in S5.6.1.8 and the final rule 
    promulgating the regulation, and, in many cases, exceed that 
    information. In short, the omission of the statement directing 
    owners of vehicles with front passenger side air bags to their 
    owner's manual would not deprive vehicle owners using Kolcraft child 
    restraints from any information germane to the safe installation of 
    child restraints in vehicles equipped with air bags.
        For example, Kolcraft's instructions include warnings not to 
    place a rear-facing child restraint in a seat equipped with air 
    bags, as well as a statement explaining the reason for the warning 
    and the consequences of ignoring it. The instructions provide 
    information regarding appropriate seating positions. The 
    instructions also provide elaborate information about how to install 
    child restraints with a variety of seat belts, and they illustrate a 
    number of different seat belt configurations, explaining which are 
    and which are not appropriate for use in installing child 
    restraints. The instructions also explain why certain configurations 
    are inappropriate and what vehicle owners should do if a seat belt 
    will not hold a child restraint tightly. Thus, Kolcraft's 
    instructions provide all the information concerning installation and 
    positioning of children that S5.6.1.8 apparently contemplates would 
    be provided in owner's manuals, and, in many respects, exceed the 
    information described in S5.6.1.8. Accordingly, Kolcraft's 
    inadvertent noncompliance with S5.6.1.8's requirement of a statement 
    referring to the vehicle owner's manual is inconsequential as it 
    relates to motor vehicle safety.
        Kolcraft does not question the usefulness or importance of 
    S5.6.1.8's requirement that the instructions for child restraints 
    direct owners of vehicles with front passenger side air bags to 
    their vehicle owner's manual for child restraint installation 
    instructions. As soon as it learned of its noncompliance with the 
    requirement, Kolcraft revised its instructions to conform exactly to 
    S5.6.1.8. However, because Kolcraft's noncompliant instructions 
    provide detailed information relating to the installation of child 
    restraints with a variety of seat belt configurations, as well as 
    information concerning the proper positioning of children in 
    vehicles equipped with air bags, the omission of a statement 
    referring to the owner's manual in Kolcraft's instructions was 
    inconsequential with respect to vehicle safety.
    
        We are denying Kolcraft's application for the following reasons.
        By way of background, upon conducting dynamic testing in 1991 that 
    indicated air bags generally produce substantial increases in the 
    values for the head injury criterion (HIC) and chest acceleration of 
    dummies seated in rear-facing child restraints (compared to dummies in 
    rear-facing restraints tested with no air bag), we sought to inform 
    consumers about the adverse interaction of rear-facing child restraints 
    and air bags as quickly as possible. We issued a ``Consumer Advisory'' 
    (December 10, 1991) which warned parents about using rear-facing child 
    seats in vehicle seats equipped with an air bag. Subsequently, we 
    initiated actions in two separate areas to ensure that consumers would 
    be provided important safety information about the effect of air bags 
    on rear-facing child restraints.
        First, on December 14, 1992, we published a Notice of Proposed 
    Rulemaking (NPRM) which proposed to amend FMVSS No. 208, ``Occupant 
    Crash Protection,'' to (1) specify that vehicle manufacturers must 
    install air bags as the means to provide the automatic crash protection 
    required by the standard, and (2) require that labels bearing specified 
    information about air bags be placed in vehicles equipped with air 
    bags, and that additional, more detailed information about air bags be 
    provided in the vehicle owner's manual (57 FR 59043). The proposed 
    labeling requirements were intended to ensure that consumers will have 
    access to important safety information with respect to the air bags 
    installed in their vehicles, including specific warnings against 
    installing rearward-facing child restraint systems in front passenger 
    seating positions equipped with an air bag. We published a final rule 
    adopting these amendments on September 2, 1993 (58 FR 46551). The 
    owner's manual requirements became effective on March 1, 1994, and the 
    vehicle label requirements became effective on September 1, 1994.
        Second, on April 16, 1993, we supplemented these actions by 
    publishing an NPRM which proposed to amend labeling and other 
    requirements of FMVSS No. 213 for rear-facing infant restraint systems 
    (58 FR 19792). We proposed to require that (1) warning labels for these 
    systems include a warning against using the restraint in any vehicle 
    seating position equipped with an air bag, and (2) printed instructions 
    for rear-facing restraints include safety information about air bags. 
    We published a final rule adopting these requirements on February 16, 
    1994 (59 FR 7643). In response to a suggestion from Volkswagen, we also 
    included the requirement at question in Kolcraft's application, namely, 
    that the written instructions provided with child restraint systems 
    that can be used in a position so that it is facing the rear of the 
    vehicle must include a statement that owners of vehicles with front 
    passenger side air bags should refer to their vehicle owner's manual 
    for child restraint installation instructions. The vehicle owner's 
    manual would include precautions specific to the vehicle that should be 
    heeded for the safety of occupants, including children. These would 
    include information on where to place a child restraint system in the 
    air-bag equipped vehicle, which is an item of vehicle-specific 
    information that only the vehicle manufacturer--and not the child 
    restraint manufacturer--can provide. These requirements became 
    effective on August 15, 1994.
        We firmly believe that strict adherence to the requirements 
    addressing warning labels, printed instructions, and information in the 
    owner's manual as outlined above will maximize to the extent 
    practicable the implementation of precautionary measures to preserve 
    the safety of infants and young children traveling in motor vehicles 
    equipped with air bags. Each of these warnings was developed with care 
    to ensure that the specific content and location of the labels and 
    instructions clearly and concisely convey the hazards of placing of 
    rear-
    
    [[Page 29412]]
    
    facing child restraints in air bag-equipped seating positions. In 
    addition, the requirements help ensure that consumers are provided 
    information about where a rear-facing child restraint can appropriately 
    be placed in the vehicle.
        In the years since these amendments were adopted, we have continued 
    to work very closely with both vehicle and child restraint 
    manufacturers and others in the child passenger safety community to 
    reduce the likelihood that a rear-facing infant restraint would be 
    placed in a vehicle seating position that has an air bag. Through media 
    advisories, consumer information fact sheets, revisions to the vehicle 
    and restraint labeling and information requirements noted above, and 
    other means, the entire child passenger safety community has taken 
    measures to educate the public regarding the detrimental effects of a 
    quickly deploying air bag when it strikes the seat back of a rear-
    facing infant restraint.
        However, between 1995 and 1998, and despite the concerted efforts 
    detailed above, we have confirmed that 15 children have been fatally 
    injured in crashes where their rear-facing child restraints were 
    installed in a seating position that was equipped with an air bag that 
    had deployed, and another nine have sustained serious, but nonfatal, 
    injuries.
        The statement missing from Kolcraft's product conveys important 
    safety information. Kolcraft contends that, while (1) S5.6.1.8 of FMVSS 
    No. 213 requires written instructions for child restraints to include a 
    statement ``that owners of vehicles with front passenger side air bags 
    should refer to their vehicle owner's manual for child restraint 
    installation instructions,'' (emphasis added), and (2) the 
    corresponding requirements of S4.5.1(f) of FMVSS No. 208 requires 
    vehicle owner's manuals to provide information regarding ``proper 
    positioning of occupants, including children, at seating positions 
    equipped with air bags,'' (emphasis added), there, in fact, should be 
    no child restraint ``installation instructions'' for ``seating 
    positions equipped with air bags,'' because rear-facing restraints 
    should not be used in air bag equipped seats. We believe that Kolcraft 
    is too narrowly interpreting the phrase ``installation instructions'' 
    in the S5.6.1.8 requirement of FMVSS No. 213 as it relates to the 
    S4.5.1(f) requirements of FMVSS No. 208.
        In the final rule addressing installation of air bags and 
    associated information to appear on labels and in owner's manuals (58 
    FR 46551), we specified that the vehicle owner's manual must provide 
    any necessary precautions regarding the proper positioning of 
    occupants, including children, at seating positions equipped with air 
    bags to ensure maximum safety protection for those occupants. In 
    commenting on our proposal to adopt this requirement, SafetyBeltSafe 
    U.S.A. stated that it felt:
    
        Complete information on the positioning of infants in cars with 
    passenger side air bags would be essential in the vehicle owner's 
    manual. It should include these points: (1) Children riding in a 
    rear-facing restraint must never ride in the front seat if a 
    passenger air bag is installed, because the air bag could hit the 
    leading edge of the child restraint with great force if it deploys; 
    (2) therefore, children under 20 pounds (and about one year of age) 
    must always ride in a child restraint that faces the rear (or in a 
    car bed that meets FMVSS 213) and must be placed in the rear seat, 
    so they will not be hit by the air bag. If a child uses a car bed, 
    this advice also applies, because current car beds have not been 
    accepted for use in an air bag position. A child under this size 
    must never be turned to face forward in the front or rear seat, due 
    to the risk of neck and spinal cord injury; and (3) If there is no 
    rear seat, this vehicle is not suitable for children under 20 pounds 
    and one year, given the current state of the art of child 
    restraints.'' (Docket 74-14-N79-005)
        We adopted the requirement without incorporating the SafetyBeltSafe 
    recommendations, explaining that ``the agency believes that a 
    requirement specifying that the owner's manual must provide any 
    necessary precautions regarding the proper positioning of children at 
    seating positions equipped with air bags to ensure maximum safety 
    protection for those occupants is sufficient to ensure that information 
    along the lines identified by SafetyBeltSafe U.S.A. will be provided.'' 
    (58 FR 46557.) From this, it is clear that we did not intend to limit 
    the information included in the vehicle owner's manual to specific 
    ``installation instructions'' for child restraints per se, but rather, 
    for the owner's manual to detail all necessary precautions to ensure 
    safety, such as identification of which seating positions are 
    appropriate, and which are not, for positioning child restraints 
    depending upon the orientation of the child restraint, forward or rear 
    facing. We consider this information to be ``installation 
    instructions,'' and in fact, most vehicle manufacturers now include 
    specific warnings against the use of rear-facing child restraints in 
    air bag-equipped seating positions in their owner's manuals similar to 
    those suggested by SafetyBeltSafe USA. Kolcraft's argument that the 
    subject noncompliance is inconsequential on the theory that rear-facing 
    child restraints should not be used in seating positions equipped with 
    air bags, and as such, no ``installation instructions'' for such 
    seating positions need be provided in the vehicle's owner's manual, is 
    incorrect.
        Further, in an issue as sensitive as air bags and infants, 
    Kolcraft's failure to fully comply with the requirements of Standard 
    No. 213--specifically, by not including the statement required in 
    S5.6.1.8 referring owners of vehicles with front passenger side air 
    bags to their vehicle owner's manual for child restraint installation 
    instructions for supplemental information in 706,068 of its child 
    restraints between 1994 and 1997--should not be excused. We do not 
    accept Kolcraft's explanation as an indication that it exercised 
    reasonable care in developing its product and associated documentation 
    when Kolcraft states that ``Kolcraft believes that the S5.6.1.8 
    requirement was overlooked because the NPRM did not propose the 
    requirement * * * thus, because it (Kolcraft) was already in compliance 
    with the requirement contemplated in that subsection of the NPRM, 
    Kolcraft believes that its personnel did not check that subsection in 
    the final rule and, therefore, did not discover that the requirement of 
    a statement referring to the owner's manual had been added in the final 
    rule.'' We cannot condone Kolcraft's approach given the grave potential 
    consequences should a parent mistakenly place a child in a rear-facing 
    child restraint in a seating position equipped with an air bag that 
    subsequently deploys in a crash.
        In consideration of the foregoing, NHTSA has decided that the 
    applicant has not met its burden of persuasion that the noncompliance 
    it describes is inconsequential to safety. Accordingly, its application 
    is hereby denied.
    
        Authority: 49 U.S.C. 30118(d), 30120(h) delegations of authority 
    at 49 CFR 1.50 and 501.8.
    
        Issued on: May 26, 1999.
    L. Robert Shelton,
    Associate Administrator for Safety Performance Standards.
    [FR Doc. 99-13824 Filed 5-28-99; 8:45 am]
    BILLING CODE 4910-59-P
    
    
    

Document Information

Published:
06/01/1999
Department:
National Highway Traffic Safety Administration
Entry Type:
Notice
Document Number:
99-13824
Pages:
29410-29412 (3 pages)
Docket Numbers:
Docket No. NHTSA-98-4383, Notice 2
PDF File:
99-13824.pdf