[Federal Register Volume 70, Number 210 (Tuesday, November 1, 2005)]
[Notices]
[Pages 65970-65972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21724]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-21859; Notice 3]


Toyota Motor North America, Inc., Notice of Appeal of Denial of 
Petition for Decision of Inconsequential Noncompliance

    Toyota Motor North America (Toyota) has appealed a decision by the 
National Highway Traffic Safety Administration that denied its petition 
for a determination that its noncompliance with Federal Motor Vehicle 
Safety Standard (FMVSS) No. 225, ``Child restraint anchorage systems,'' 
is inconsequential to motor vehicle safety.
    Notice of receipt of the petition for inconsequential noncompliance 
was published on July 19, 2005, in the Federal Register (70 FR 41476). 
On September 26, 2005, NHTSA published a notice in the Federal Register 
denying Toyota's petition (70 FR 56207), stating that the petitioner 
had not met its burden of persuasion that the noncompliance is 
inconsequential to motor vehicle safety.
    This notice of receipt of Toyota's appeal is published in 
accordance with NHTSA's 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.
    Affected are a total of approximately 156,555 model year 2003 to 
2005 Toyota Tundra access cab vehicles produced between September 1, 
2002 and April 22, 2005. S5(c)(2) of FMVSS No. 225 requires each 
vehicle that:

    (i) Has a rear designated seating position and meets the 
conditions in S4.5.4.1(b) of Standard No. 208 * * * and, (ii) Has an 
air bag on-off switch meeting the requirements of S4.5.4 of Standard 
208 * * * shall have a child restraint anchorage system for a 
designated passenger seating position in the front seat, instead of 
a child restraint anchorage system that is required for the rear 
seat * * *.

The subject vehicles do not have a child restraint lower anchorage in 
the front seat as required by S5(c)(2).

[[Page 65971]]

    In its original petition, Toyota asserted that the noncompliance is 
inconsequential to motor vehicle safety and that no corrective action 
is warranted. Toyota stated that it considered whether rear-facing 
child restraints could be used in the noncompliant vehicles, and ``is 
unaware of any rear-facing child restraints that require lower 
anchorages in the vehicle.'' Toyota further stated,

    Most, if not all rear facing child restraints (even those with 
lower anchorage systems), have belt paths which allow the child 
restraint to be secured properly in the front passenger seat of the 
subject vehicles utilizing the front passenger seatbelt. We also 
note that child restraint manufacturers provide instructions with 
their child seats (even lower anchorage equipped child seats) on how 
to install their restraint with the seatbelt. In addition, all 
Toyota Tundra vehicles provide instructions on how to install child 
restraints with the seatbelt.

    NHTSA reviewed the petition and determined that the noncompliance 
is not inconsequential to motor vehicle safety. In its denial, NHTSA 
noted that the absence of LATCH anchorages compromises the overall 
level of safety of child restraints. FMVSS No. 225 requires a simple, 
uniform system for installing child restraints that increases the 
likelihood of proper installation. Prior to FMVSS No. 225, many child 
restraints were improperly installed, increasing the safety risk to 
children riding in the improperly installed child restraints. 
Therefore, NHTSA stated that it is reasonable to conclude that 
noncompliant vehicles do not offer the same level of safety as 
compliant vehicles because of the increased risk of improper child 
restraint installation.
    In its original petition, Toyota further pointed out that model 
year 2000 to 2002 Tundra access cab vehicles have a front passenger 
airbag on-off switch as standard equipment but not lower anchorage 
system because they were produced prior to the effective date of the 
FMVSS No. 225 lower anchorage requirement with which the subject 
vehicles noncomply. Toyota asserted that,

considering child restraint installation in the front passenger 
seat, the 2003-2005 MY vehicles (subject vehicles) are no different 
than the 2000-02 MY vehicles and further, it follows that the 
subject vehicles are no less safe than the 2000-02 MY vehicles.

    In its denial, NHTSA made the point that the noncompliant vehicles 
offer a lower level of child passenger safety than those which comply 
with the requirements of FMVSS No. 225, which is why the standard was 
promulgated.
    Toyota further stated,

    [We] also considered whether a lower anchorage child restraint 
can be mistakenly installed in the front passenger seat attempting 
to utilize the lower anchorage. Upon investigating the seat bight of 
the subject vehicles, we believe a current vehicle owner or 
subsequent owner could easily observe that no lower anchorage bars 
exist. We would also note that there are no portions of the seat 
frame within the seat bight of the front passenger seat that may be 
mistaken for lower anchorage bars.

    NHTSA determined that this argument by Toyota is beside the point 
in terms of consequentiality to safety. Additionally, through NHTSA's 
child passenger safety working group, many examples of misuse have been 
presented. Parents who mistakenly believe their vehicles had LATCH 
(pre-2002 vehicles) had used seatbelt latch plates, drilled holes 
through the nylon webbing of the seatbelt or seatbelt buckle stalk, and 
attached seats to the seat support structure or other places within the 
vehicle that could be hooked to, all in attempts to secure the child 
restraint using the LATCH system. NHTSA pointed out that in this 
particular case, the owner's manual for the Toyota Tundra provides 
instruction for installing a child restraint using the LATCH system, 
even though one is not available. A parent might take an improper 
action, as described previously, in an attempt to ``find'' the LATCH 
system or ``create'' a LATCH system, resulting in the improper 
installation of the child restraint. Therefore, NHTSA determined that 
the lack of the required LATCH system is consequential to safety.
    Finally, Toyota noted that it had not received customer complaints 
regarding the absence of a front passenger seat child restraint lower 
anchorage system, nor had it received any reports of a crash, injury or 
fatality due to this noncompliance. NHTSA noted that it does not 
consider the absence of these reports to be compelling evidence of the 
inconsequentiality of this noncompliance to safety.
    In consideration of the foregoing, NHTSA decided that Toyota did 
not meet its burden of persuasion that the noncompliance it described 
is inconsequential to motor vehicle safety. Accordingly, its petition 
was denied.
    In its appeal from NHTSA's denial, Toyota states that the subject 
vehicles ``have 3 rear designated seating positions with two rear seat 
child restraint lower anchorage systems [emphasis original], and a 
manual air bag on-off switch to disable the front passenger air bag, 
but no child restraint lower anchorage system in the front passenger 
seat.''
    Toyota further states:

    Based on [NHTSA's statements in its petition denial], Toyota 
believes the agency may have misunderstood the situation regarding 
the subject vehicles. The subject vehicles have two LATCH positions 
in the rear seats. The owner's manuals for these vehicles are 
correct, since it [sic] provides instructions for installing child 
restraints using LATCH in the rear seats, and provides instructions 
for installing child restraints for the front passenger seats using 
the seat belt.
    The issue in question is the airbag cut-off switch installed 
pursuant to FMVSS 208 S4.5.4. FMVSS 225 requires that if this airbag 
cut-off switch is installed a LATCH position must be provided in the 
front passenger seat, in lieu of one of the rear LATCH positions. As 
stated previously, the subject vehicles do not have a LATCH in the 
front passenger seat, but has [sic] two rear LATCH positions. Thus, 
the difference between the subject vehicles and competitive models 
with two LATCH positions in the rear seats and no LATCH in the front 
passenger seat is that the subject vehicles have airbag cut-off 
switch allowed under FMVSS 208 S4.5.4, while the competitor models 
do not have this switch.
    In the Federal Register notice, based on the type of reasoning 
used by the agency, the agency seemed to imply that the non-
compliance remedy to this situation is the installation of a LATCH 
position to the front passenger seat. However, we believe the agency 
should understand that the likely remedy is to remove the airbag 
cut-off switches. Further, Toyota has not received any customer 
complaints regarding the airbag cut-off switch, and Toyota believes 
that the vehicle owners of the subject vehicles consider them a 
useful feature.
    In conclusion, since the subject vehicles have two LATCH systems 
in the rear seats, the vehicles comply with the intent of the 
standard and the vehicles are no less safe than vehicles which 
comply with the requirements of FMVSS 225 without a cut-off switch.

    Interested persons are invited to submit written data, views, and 
arguments on the petition appeal described above. Comments must refer 
to the docket and notice number cited at the beginning of this notice 
and be submitted by any of the following methods. Mail: Docket 
Management Facility, U.S. Department of Transportation, Nassif 
Building, Room PL-401, 400 Seventh Street, SW., Washington, DC, 20590-
0001. Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC. It is requested, but 
not required, that two copies of the comments be provided. The Docket 
Section is open on weekdays from 10 a.m. to 5 p.m. except Federal 
Holidays. Comments may be submitted electronically by logging onto the 
Docket Management System Web site at http://dms.dot.gov. Click on 
``Help'' to obtain instructions for filing the document electronically. 
Comments

[[Page 65972]]

may be faxed to 1-202-493-2251, or may be submitted to the Federal 
eRulemaking Portal: go to http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    The petition appeal, supporting materials, and all comments 
received before the close of business on the closing date indicated 
below will be filed and will be considered. All comments and supporting 
materials received after the closing date will also be filed and will 
be considered to the extent possible. When the petition appeal is 
granted or denied, notice of the decision will be published in the 
Federal Register pursuant to the authority indicated below.
    Comment closing date: December 1, 2005.

    Authority: (49 U.S.C. 30118, 30120: delegations of authority at 
CFR 1.50 and 501.8)

    Issued on: October 26, 2005.
Ronald L. Medford,
Senior Associate Administrator for Vehicle Safety.
[FR Doc. 05-21724 Filed 10-31-05; 8:45 am]
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