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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-31617

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** December 7, 1999
- **Citation:** 64 FR 68411

## Text

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.
---------------------------------------------------------------------------

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]
BILLING CODE 4910-59-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-31617. Public record. Not legal advice.