[Federal Register Volume 71, Number 124 (Wednesday, June 28, 2006)]
[Notices]
[Pages 36875-36877]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10179]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2005-21859; Notice 4]


Toyota Motor North America, Inc., Denial of Appeal of Decision on 
Inconsequential Noncompliance

    Toyota Motor North America, Inc. (Toyota) has appealed a decision 
by the National Highway Traffic Safety Administration (NHTSA) 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. Toyota had applied to be exempted from the notification and 
remedy requirements of 49 U.S.C. Chapter 301, ``Motor Vehicle Safety.'' 
This notice announces and explains our denial of Toyota's appeal.

Background

    NHTSA's notice of receipt of Toyota's original petition 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. Toyota appealed, and notice of 
the agency's receipt of the appeal was published in the Federal 
Register on November 1, 2005 (70 FR 65970). NHTSA received two public 
comments. One was from Advocates for Highway and Auto Safety and the 
second was from Toyota, the petitioner.
    Affected are a total of approximately 156,555 model year (MY) 2003 
to 2005 Toyota Tundra access cab vehicles produced between September 1, 
2002 and April 22, 2005, referred to in this notice as ``the subject 
vehicles.''
    A child restraint anchorage system consists of two lower anchorages 
and a tether anchorage that can be used to attach a child restraint 
system to a vehicle. These systems are sometimes referred to as LATCH 
(Lower Anchorages and Tethers for Children) systems and are intended to 
help ensure proper installation of child restraint systems.
    NHTSA's regulations require the installation of a LATCH system in 
the front passenger seats of vehicles that have an optional on-off 
switch for the front passenger air bag and that satisfy certain other 
requirements. Specifically, S4.5.4 of FMVSS No. 208 allows installation 
of an air bag on-off switch under one of two conditions--the vehicle 
has no forward-facing rear seating positions or there is not enough 
room in the rear seat (less than 720 mm) to permit the proper 
installation of a rear-facing child seat.
    Further, S5(c)(2) of FMVSS No. 225 requires that 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 have an air bag on-off switch but do not have the 
child restraint lower anchorage in the front seat as required by 
S5(c)(2). As Toyota recognizes, the vehicles are noncompliant.
    Toyota contends that this noncompliance is inconsequential to motor 
vehicle safety and that no corrective action is warranted. In its 
petition, Toyota stated that 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,


[[Page 36876]]


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.

    In denying Toyota's original petition, NHTSA pointed out that the 
absence of required LATCH anchorages compromises the overall level of 
child passenger safety. FMVSS No. 225 requires a simple, uniform system 
for installing child restraints that increases the likelihood of proper 
installation. Information available to NHTSA when it was developing 
FMVSS No. 225 indicated that child restraints were being improperly 
installed with great frequency, increasing the safety risk to children 
riding in the improperly installed child restraints. The purpose of 
FMVSS No. 225 was to increase the likelihood of proper installation of 
child restraint systems by requiring easy-to-use anchorage systems. 
This was explained in Federal Register notices on FMVSS No. 225. 
Therefore, NHTSA denied Toyota's petition, as vehicles lacking required 
LATCH anchorages do not offer the same level of safety as compliant 
vehicles because of the increased risk of improper child restraint 
installation.
    Toyota's original petition further pointed out that model year 2000 
to 2002 Tundra access cab vehicles produced prior to the effective date 
of the FMVSS No. 225 lower anchorage requirement have a front passenger 
airbag on-off switch as standard equipment but no lower anchorage 
system in the front seat. In light of this fact, 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 response, NHTSA explained that the promulgation of FMVSS No. 225 
was justified by the additional safety it would provide, i.e., that 
fewer child deaths and injuries are expected to result from widespread 
use of the LATCH system and it will result in far fewer children being 
exposed to the risk of injury while riding in an improperly installed 
child restraint. Whether a noncompliant vehicle that lacks a required 
safety device offers safety comparable to that provided by a vehicle 
manufactured prior to the effective date of the requirement to install 
that device is irrelevant to the consequentiality of noncompliance with 
the new requirement. Rather, the relevant inquiry focuses on the 
differences in safety between a vehicle that does comply with the new 
requirement and the vehicles that are the subject of a petition for a 
decision that the noncompliance is inconsequential to motor vehicle 
safety under 49 U.S.C. 30118 and 30120. Here, NHTSA concluded that the 
subject vehicles offer a lower level of child passenger safety than 
those meeting the requirements of FMVSS No. 225.
    Toyota further stated in its petition that it 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 rejected this argument, explaining that whether vehicle 
owners may or may not mistakenly attempt to use the nonexistent LATCH 
system fails to address the issue that the noncompliance denies owners 
and parents the safer and legally required LATCH alternative. 
Additionally, NHTSA pointed out that its child passenger safety working 
group presented many examples of misuse. Parents with vehicles 
manufactured before the September 1, 2002 compliance date for the LATCH 
requirement who mistakenly believed their vehicles had a LATCH system 
have 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 can 
be hooked to, all in attempts to secure the child restraint using the 
LATCH system that was not present.
    Finally, Toyota noted in its original petition that it has not 
received customer complaints regarding the absence of a front passenger 
seat child restraint lower anchorage system, nor has it received any 
reports of a crash, injury or fatality due to this noncompliance. NHTSA 
responded 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, NHTSA denied 
the petition.
    In its appeal from NHTSA's denial, Toyota states that ``it appears 
there has been some miscommunication regarding the subject vehicles and 
presence of lower anchorage systems (LATCH).'' Toyota proceeds to state 
that the noncompliant vehicles have two LATCH positions in the rear 
seats, and it is only in the front passenger seat that there is no 
LATCH system. Toyota further states, ``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 [an] airbag cut-off switch allowed under FMVSS 208 
S4.5.4, while the competitor models do not have this switch.'' \1\
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    \1\ So far as NHTSA is aware, the noncompliance of the subject 
vehicles is unique in that no other vehicle has an on-off switch but 
no LATCH. The competitor models that have rear seating areas of the 
dimensions necessary to make an on-off switch permissible are in 
compliance with the rules relevant here either because they have no 
switch and no LATCH anchorages in the front seat or they have both 
the switch and the required anchorages.
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    Toyota reiterates that it has not received any customer complaints, 
and concludes that ``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.'' The 
company states that, rather than remedying the noncompliance by 
installing LATCH anchorages in the front seat of the subject vehicles, 
``the likely remedy is to remove the air bag cut-off switches.'' Toyota 
adds that it has not received complaints regarding the on-off switches 
and that the company believes that owners of the subject vehicles 
consider the switches a useful feature.
    In response to Toyota's appeal, Advocates for Highway and Auto 
Safety (Advocates) commented. Advocates states that, apart from what it 
submitted with its original petition, Toyota has provided no new 
evidence demonstrating the inconsequential nature of its noncompliance. 
The group also offers its views on the legality and safety consequences 
of removing the air bag on-off switch.
    Toyota supplemented its appeal by filing a letter reiterating its 
statement from its appeal that the noncompliant vehicles have two LATCH 
positions in the rear seats, leaving only the front passenger seat with 
no LATCH system. The company also explains in the letter

[[Page 36877]]

its views on the legality of removing the on-off switch.
    NHTSA notes that the possible remedy a manufacturer may choose to 
address a particular noncompliance is not a determining factor in 
NHTSA's decision on whether that noncompliance is inconsequential to 
safety. Accordingly, this decision does not address the remedy that 
Toyota may choose to address this noncompliance. To do so here would be 
premature.

Decision

    After carefully considering the arguments presented in this matter, 
NHTSA has decided to deny the appeal. Toyota has presented no new data 
or information that would cause NHTSA to change its initial decision, 
and it has not made a persuasive case that the initial denial was 
incorrect.
    NHTSA is fully aware (as it was at the time of the initial denial) 
that the noncompliant vehicles have two LATCH positions in the rear 
seats. However, that fact does not render the absence of the anchorages 
in the front seat inconsequential. Regardless of the availability of 
the LATCH positions in the rear seats, the noncompliance creates a 
greater risk of improper child restraint installation than would be 
present if the required anchorages had been installed in the front 
seat. The fact that anchorages exist in the rear seats does not lessen 
the risk that one who chooses to install a child restraint, whether 
rear-facing or forward-facing, in the front seat will do so improperly 
and may have no bearing on a person's decision to use the front seat 
for that purpose.
    Moreover, the rear seating area dimensions of the subject vehicles 
dictate that the front seat is the only place available for 
installation of a rear-facing child restraint system. NHTSA's 
regulations permit an air bag on-off switch in these vehicles because 
the rear seat dimensions cannot accommodate a rear-facing child seat. 
Accordingly, the rear LATCH positions are irrelevant to the use of 
rear-facing child restraints since these restraints cannot be installed 
in the rear seating positions of the subject vehicles. Owners of the 
subject vehicles wishing to use rear-facing restraints are restricted 
to the front seat for that purpose. However, given the lack of 
anchorages in the front seat, the persons installing child restraints 
and the children occupying those rear-facing restraints are denied the 
safety advantages that the anchorages would provide in helping to 
ensure proper installation of the child restraints. FMVSS No. 225 
requires that the additional protection afforded by anchorages be 
provided wherever air bag on-off switches are installed, and the 
absence of those anchorages is consequential to the safety of the small 
children whose safety depends on proper installation of the child 
restraint systems in the vehicles in which they ride.
    In consideration of the foregoing, NHTSA has decided that the 
petitioner has not met its burden of persuasion, either in its initial 
petition or in its appeal of the denial of that petition, in 
establishing that the noncompliance described is inconsequential to 
motor vehicle safety. Accordingly, Toyota's appeal of NHTSA's decision 
on the inconsequential noncompliance petition is hereby denied. This 
decision constitutes final agency action, and the petitioner has no 
right to further administrative review of NHTSA's denial.

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

    Issued on: June 22, 2006.
Nicole R. Nason,
Administrator.
 [FR Doc. E6-10179 Filed 6-27-06; 8:45 am]
BILLING CODE 4910-59-P