Fisher-Price, Inc.; Notice of Appeal of Denial of Petition for Determination of Inconsequential Noncompliance

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. 93-79; Notice 3]

Fisher-Price, Inc.; Notice of Appeal of Denial of Petition for

Determination of Inconsequential Noncompliance

Fisher-Price, Inc. (Fisher-Price), of East Aurora, New York, has

appealed a decision by the National Highway Traffic Safety

Administration (NHTSA) that denied Fisher-Price's petition that its

noncompliance with Federal Motor Vehicle Safety Standard (FMVSS) No.

213, ``Child Restraint Systems,'' be deemed inconsequential as it

relates to motor vehicle safety (Docket No. 93-79; Notice 2, 59 FR

23253; May 5, 1994).

This notice of receipt of Fisher-Price's appeal is published in

accordance with NHTSA regulations (49 CFR 556.7 and 556.8) and does not

represent any agency decision or other exercise of judgment concerning

the merits of the appeal.

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 (`Flammability of Interior Materials') (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.''

As noted in Notice 1 (58 FR 59511; November 9, 1993) of Docket No.

93-79, Fisher-Price determined that some of its child safety seats

failed to comply with FMVSS No. 213, and filed an appropriate report

pursuant to 49 CFR part 573, ``Defect and Noncompliance Reports.''

Fisher-Price petitioned to be exempted from the notification and remedy

requirements of the National Traffic and Motor Vehicle Safety Act (Act)

(15 U.S.C. 1381 et seq.) on the basis that the noncompliance is

inconsequential as it relates to motor vehicle safety.

On May 5, 1994, NHTSA published a notice in the Federal Register

denying Fisher-Price's petition, stating that the petitioner had not

met its burden of persuasion that the noncompliance is inconsequential

as it relates to motor vehicle safety. The reader is referred to that

notice for a further discussion of the noncompliance and the agency's

rationale in denying the petition.

On May 6, 1994, Fisher-Price submitted an appeal of the agency's

decision to deny its petition. The appeal contains an analysis of the

agency's decision, a summary of the supplemental information Fisher-

Price submitted (which is described below), and the affidavit of Gail

E. McCarthy, Ph.D, P.E., of Failure Analysis Associates (FaAA).

Supplementary Information: Notice 1 to this docket established a 30-day

public comment period, which expired on December 9, 1993. Nevertheless,

Fisher-Price submitted additional information related to its petition

on three occasions: February 25, 1994, March 17, 1994, and March 24,

1994. Fisher-Price also submitted additional information with its May

6, 1994, appeal. These materials are available for public review in the

NHTSA docket.

The March 17, 1994, document contained research conducted by FaAA

for Fisher-Price, including burn tests and a search of the literature

and accident data regarding child seat fires. The submission also

included a calculation of an alleged incremental risk associated with a

recall of the noncompliant seats.

The March 24, 1994, document, entitled ``Supporting Documentation

for Evaluation of the Fire Safety of Fisher-Price, Inc. Child Restraint

Shoulder Harness Webbing,'' contains the detailed data and test results

on which the material in the March 17, 1994, document was based.

Fisher-Price's May 6, 1994, appeal raised the following points: (1)

In the notice of denial, NHTSA stated that Fisher-Price ``determined''

that some of its child restraints failed to comply with FMVSS No. 213;

Fisher-Price states that it has yet to make this determination. (2) In

the notice of denial, NHTSA stated that it believes flammability

requirements for child restraints should be strictly adhered to;

Fisher-Price believes that NHTSA should not hold child restraints to

what it perceives to be a stricter standard than is stated in the Act.

(3) Fisher-Price cites the grant by NHTSA of a petition for

inconsequentiality filed by PACCAR, Inc. in which tape edging on a

mattress had failed FMVSS No. 302 requirements (57 FR 45868; October 5,

1992). The petition was granted by NHTSA based in part on the fact that

the tape edging was a very small portion of the mattress. It also cites

an appeal to a petition filed by the American Honda Motor Co., Inc.

(Honda) (49 FR 15046; April 16, 1984) which was granted. The agency's

rationale for granting the appeal was based in part on the fact that

Honda had not received any complaints regarding the noncompliance. (4)

Fisher-Price claims that the data it submitted in support of its

contention that children's clothing poses a much greater risk to safety

than the noncompliant webbing were not adequately refuted.

In the affidavit submitted with the appeal, Dr. McCarthy argues

that: (1) The shoulder belt webbing should properly be viewed as

meeting the requirements of FMVSS No. 302; (2) any noncompliance that

might be deemed to exist has no impact on motor vehicle safety; and (3)

possible remedial measures would create substantially greater risk of

injury to children than that presented by the webbing.

Interested persons are invited to submit written data, views, and

arguments on the appeal of Fisher-Price, described above. Comments

should refer to the docket and notice number and be submitted to:

Docket Section, National Highway Traffic Safety Administration, room

5109, 400 Seventh Street SW., Washington, DC 20590. It is requested but

not required that six copies be submitted.

All comments received before the close of business on the closing

date indicated below will be considered. All comments received after

the closing date will also be filed and will be considered to the

extent feasible. When the appeal is granted or denied, notice will be

published in the Federal Register.

Comment closing date: July 18, 1994.

(15 U.S.C. 1417; delegations of authority at 49 CFR 1.50)

Issued on: June 10, 1994.

Barry Felrice,

Associate Administrator for Rulemaking.

[FR Doc. 94-14676 Filed 6-15-94; 8:45 am]

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