Cosco, Inc.; Denial of Application for Decision of Inconsequential Noncompliance

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-99-5800; Notice 2]

Cosco, Inc.; Denial of Application for Decision of

Inconsequential Noncompliance

Cosco, Incorporated, of Columbus, Indiana, has determined that a

number of child restraint systems that 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.''

Cosco 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 motor vehicle

safety.

Notice of receipt of the application was published in the Federal

Register on June 16, 1999 (64 FR 32303), with a 30-day comment period.

We received no comments.

FMVSS No. 213, S5.5.2(k), requires that each add-on child restraint

system designed to be used rear facing must have a label that warns the

consumer not to place the rear-facing child restraint system in the

front seat of a vehicle that has a passenger side air bag. In the case

of each child restraint system that can be used in a rear-facing

position and is manufactured on or after May 27, 1997, this label must

be permanently affixed to the outer surface of the cushion or padding

in or adjacent to the area where a child's head would rest, so that the

label is plainly visible and readable. The text portion of this label

consists of a heading reading ``WARNING'', with the following messages

under that heading:

DO NOT place rear-facing child seat on front seat with air bag.

DEATH OR SERIOUS INJURY can occur.

The back seat is the safest place for children 12 and under.

Opposite the text, the warning label has a pictogram showing an

inflating air bag striking a rear-facing child seat, surrounded by a

red circle with a slash across it. The label must also conform to size

and color requirements specified in S5.5.2(k)(4)(i) through

S5.5.2(k)(4)(iii).

Cosco has notified us that between March 31, 1999 and April 7,

1999, it manufactured 815 Arriva Infant Child Restraints, Model 02-729-

TED, that do not have the air bag warning label required by S5.5.2(k)

of FMVSS No. 213. During this time period, one of the production lines

used by Cosco to produce the Arriva model used pads for the Canadian

version of this child restraint which do not incorporate the air bag

warning label required by FMVSS No. 213.

Cosco supports its application for inconsequential noncompliance

with the following:

Cosco contends this noncompliance is inconsequential as it

relates to motor vehicle safety. A notice and remedy campaign

(``recall'') would not serve any safety related purpose and would in

fact, cast doubt in the minds of the consumer as to the

effectiveness of child restraints. We believe the low number of

units involved (815) combined with the enormous publicity given to

the warning label issue, rear-facing seats in air bag locations, and

given the fact the instructions and unit labels do warn to the

consumer about this misuse do not warrant a recall.

To reiterate, Cosco does not believe this noncompliance warrants

a recall. The Agency, child restraint manufacturers and child

passenger safety advocates are all aware of the negative impacts of

recalls resulting from technical noncompliance. The two primary

negative effects are, the public, because of the number and

frequency of such recalls, pays no attention to recalls that in fact

do in a practical way affect child passenger safety. In addition,

the public upon seeing the number of recalls, concludes child

restraints currently available are unsafe and therefore declines to

use them. The Agency is aware and, in fact, has publicly advised

consumers to use child restraints which have defects or

noncompliances that have resulted in recalls until such child

restraints can be corrected. This is in recognition of the fact that

technical noncompliance does not compromise the overall

effectiveness of child restraints. In the event a recall is ordered

for the noncompliance which has been identified, both of the effects

described will impact consumers negatively.

In conclusion, Cosco submits reasonable evaluation of the facts

surrounding this technical noncompliance will result in the decision

that no practical safety issue exists.

We are denying Cosco's application for the following reasons.

We would like to begin by addressing a statement made by Cosco in

its application. Cosco states that:

The public, upon seeing the number of recalls, concludes that

child restraints currently available are unsafe and therefore

declines to use them. The agency is aware and, in fact, has publicly

advised consumers to use child restraints which have defects or

noncompliances that have resulted in recalls until such child

restraints can be corrected. This is in recognition of the fact that

technical noncompliance does not compromise the overall

effectiveness of child restraints.

It is correct that we generally advise consumers to continue using

child restraints which have identified defects or noncompliances until

such a time when the appropriate remedy can be effected. However, this

is in recognition that--in most cases--use of a child restraint with an

identified defect or noncompliance is safer than the alternatives of

(a) restraining the young child with a vehicle belt system that does

not fit properly, or (b) not restraining the child at all. In the

absence of a grant of an inconsequentiality petition, we have never

stated, nor implied, that a noncompliance--``technical'' or otherwise--

does not compromise the safety or effectiveness of child restraints.

Further, in an issue as critical to safety as air bags and infant

seating, Cosco's failure to comply with the requirements of FMVSS No.

213 by not incorporating the air bag warning label required in

S5.5.2(k) should not be excused. The requirements addressing warning

labels, printed instructions, and information in the vehicle owner's

manual pertaining to air bags and child restraints are necessary to

maximize 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 rear-facing child restraints in air bag-equipped seating

positions.1 We have also worked 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,

and other means, the entire child passenger safety community has taken

measures to educate the public regarding the detrimental effects of an

air bag when it

[[Page 68412]]

strikes the seat back of a rear-facing infant restraint.

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\1\ FMVSS No. 213 has required rear-facing child restraints to

be labeled with an air bag warning since August 1994 (59 FR 7643).

The labeling requirement was revised in 1996 (61 FR 60206) to

require an enhanced and much more prominent warning on a distinct

label. Among other features, the enhanced label includes eye-

catching headings and an easy to comprehend symbol. The label must

also be located where the child's head rests. The enhanced label has

been required since May 1997.

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Despite the concerted efforts detailed above, we have confirmed

that between 1995 and 1998, 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.

We are aware of another nine children who have sustained serious, but

nonfatal, injuries. These numbers might have been even higher had a

warning label not been provided. We cannot excuse Cosco's acknowledged

noncompliance of using seat pads without the required air bag warning

label in production runs, 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.

Cosco did not provide information suggesting that it was not a

serious safety risk to place a rear-facing child restraint at a seating

position equipped with an air bag, nor did Cosco suggest that the

warning labels were not an important part of the effort to educate the

public about those risks. Instead Cosco outlined its views about how a

notice and remedy campaign, which it must conduct if this petition is

denied, would negatively affect consumers. While we agree that

consumers may react adversely to a proliferation of recalls, that

potential consequence should be addressed by reducing the number of

noncompliances, not by allowing them to go unremedied. Similarly, Cosco

argued that ``the low number of units involved'' in the noncompliance

argues in favor of granting its inconsequentiality petition. However,

in ruling on inconsequentiality petitions, we consider the consequences

of the noncompliance, rather than the number of vehicles or items of

equipment that are affected. In the case of this noncompliance, the

consequence of a parent not knowing of the dangers of placing a rear-

facing child restraint at a seating position equipped with an air bag

are potentially fatal. Given these potential consequences, we cannot

find the noncompliance to be inconsequential for safety, regardless of

the relatively small number of units with the noncompliance.

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) and 30120(h); delegations of

authority at 49 CFR 1.50 and 501.8.

Issued on: December 1, 1999.

Stephen R. Kratzke,

Acting Associate Administrator for Safety Performance Standards.

[FR Doc. 99-31617 Filed 12-6-99; 8:45 am]

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