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

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]

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