[Federal Register Volume 83, Number 50 (Wednesday, March 14, 2018)]
[Notices]
[Pages 11289-11293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-05136]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0129; Notice 2]


Toyota Motor Engineering & Manufacturing North America, Inc., 
Grant of Petition for Decision of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Grant of petition.

-----------------------------------------------------------------------

SUMMARY: Toyota Motor Engineering & Manufacturing North America, Inc., 
on behalf of Toyota Motor Corporation and certain other specified 
Toyota manufacturing entities (collectively referred to as ``Toyota''), 
has determined that certain model year (MY) 2016-2017 Lexus RX350 and 
Lexus RX450H motor vehicles do not fully comply with Federal Motor 
Vehicle Safety Standard (FMVSS) No. 202a, Head Restraints. Toyota filed 
a noncompliance information report dated November 29, 2016. Toyota also 
petitioned NHTSA on December 21, 2016, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety.

FOR FURTHER INFORMATION CONTACT: Ed Chan, Office of Vehicle Safety 
Compliance, NHTSA, telephone (202) 493-0335, facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION: 
    I. Overview: Toyota, has determined that certain MY 2016-2017 Lexus 
RX350 and RX450H motor vehicles do not fully comply with paragraph S4.5 
of FMVSS No. 202a, Head Restraints (49

[[Page 11290]]

CFR 571.202a). Toyota filed a noncompliance information report dated 
November 29, 2016, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports. Toyota also petitioned NHTSA 
on December 21, 2016, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 
49 CFR part 556, for an exemption from the notification and remedy 
requirements of 49 U.S.C. Chapter 301 on the basis that this 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Notice of receipt of the petition was published with a 30-day 
public comment period, on April 7, 2017, in the Federal Register (82 FR 
17079). One comment was received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at: https://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2016-0129.''
    II. Vehicles Involved: Approximately 120,748 MY 2016-2017 Lexus 
RX350 and Lexus RX450H motor vehicles manufactured between September 
28, 2016, and November 23, 2016, are potentially involved.
    III. Noncompliance: Toyota explains that the rear seat outboard 
head restraints are removable by utilizing the same action (i.e., 
depressing the lock release button while the headrest is being pulled 
upward) that is used to adjust the head restraints from the first 
adjustment position to the second. Therefore, the requirements of 
paragraph S4.5 of FMVSS No. 202a are not met.
    IV. Rule Requirements: Paragraph S4.5 of FMVSS No. 202a, titled 
``Removability of Head Restraints'' includes the requirements relevant 
to this petition:
     The head restraint must not be removable without a 
deliberate action distinct from any act necessary for upward 
adjustment.
    V. Summary of Toyota's Petition: Toyota described the subject 
noncompliance and stated its belief that the noncompliance is 
inconsequential as it relates to motor vehicle safety.
    In support of its petition, Toyota submitted the following 
reasoning:
    1. The rear outboard head restraints continue to meet the 
underlying purpose of S4.5 of the standard:
    a. Background of S4.5: Toyota referenced a notice of proposed 
rulemaking (NPRM) that NHTSA issued in 2001 \1\ to upgrade FMVSS No. 
202 and stated that its principal focus was to improve performance of 
front and rear outboard head restraints to mitigate ``whiplash'' 
injuries, particularly in rear crashes. Toyota stated that the agency 
recognized that existing adjustable head restraints could be manually 
removed solely by hand, and not be replaced, thereby creating a greater 
risk of injury. As a result, the proposed rule stated that removable 
front seat head restraints would not be permitted, but that due to 
concerns with rear visibility, removable restraints in the rear would 
not be prohibited. Toyota stated that the draft rule did not contain 
any requirement comparable to the one set forth in paragraph S4.5 of 
FMVSS No. 202a.
---------------------------------------------------------------------------

    \1\ 66 FR 968 (January 4, 2001)
---------------------------------------------------------------------------

    Toyota further explained that when NHTSA issued the FMVSS No. 202 
Final Rule in 2004,\2\ it made a variety of changes from the 
requirements proposed in the NPRM. One of those was to not require rear 
seat outboard head restraints, but to impose certain requirements on 
head restraints that were voluntarily installed. Toyota noted that most 
of the comments submitted on the NPRM favored removability of both 
front and rear seat head restraints solely by hand, although some 
supported a prohibition on removability at all positions, because a 
removed restraint might not be replaced or correctly reinstalled. 
Toyota stated that NHTSA ultimately decided to allow head restraint 
removability for both front and rear restraints, but for both front and 
rear optional head restraints, specified that removal must be by means 
of a deliberate action that is distinct from any act necessary for 
adjustment to ensure that head restraints are not accidentally removed 
when being adjusted, thereby reducing the likelihood of inadvertent 
head restraint removal and increasing the chances that vehicle 
occupants will receive the benefits of properly positioned head 
restraints. To implement this requirement, the agency added the text in 
paragraph S4.5. In 2007, the agency amended the standard by adding the 
word ``upward'' before ``adjustment'' to clarify the upward adjustment 
and removability aspects of the requirement.
---------------------------------------------------------------------------

    \2\ 69 FR 74848 (December 14, 2004)
---------------------------------------------------------------------------

    b. The noncompliance is inconsequential because the rear outboard 
head restraints meet the underlying purpose of S4.5: Toyota stated that 
the rear seat head restraints in the subject vehicles allow manual 
adjustment by sliding the head restraint in and out of the seat back on 
stays attached to the head restraint. Position locking is achieved by 
two notches in one of the stays, allowing for a detent mechanism. 
Toyota stated that the posts go through plates on top of the seat back, 
one of which contains a button which is pressed to allow the restraint 
to be removed. To adjust the height of the head restraint from the 
fully stowed position on top of the seatback to the first notch on the 
stay, the restraint is simply pulled upward. To reach the second notch, 
the button must first be pressed to allow the restraint to be lifted; 
it then will lock in position. To remove the restraint, the button must 
again be pressed before lifting it out of the seatback. Because the 
button must be pressed to adjust the restraint from the first notch 
position to the second, and the same action is required to start the 
removal process, the restraint does not conform to paragraph S4.5 of 
FMVSS No. 202a.
    Toyota stated that there are three factors, when considered 
together, that make this noncompliance inconsequential to motor 
vehicles safety:
    i. With the subject head restraints, the necessity to press the 
release button to move from the first notch to the second, in addition 
to the need to press it to release the restraint from the second notch 
to remove it, lessens the ease of removal, thereby reducing the 
likelihood of inadvertent removal and increasing the chances that the 
occupant will receive the benefits of a properly positioned head 
restraint.
    ii. The subject vehicle model can be generally described as a mid-
sized sports-utility vehicle (SUV). The roofline tends to slope 
downward toward the rear of the vehicle, and the distance between the 
top of the head restraint and the headliner is less than in other mid-
sized SUV's with a less sloped roofline. The rear seat can be manually 
adjusted forward and rearward on the seat track for a distance of 120mm 
from the front position to the rear position. The nominal design seat 
back position is approximately 27 degrees rearward to the vertical 
line, and the seat back can be reclined an additional 10 degrees. The 
seat back folds forward from the nominal design position. (See figure 6 
of Toyota's petition).
    Given the rear seat design, there are a variety of combinations of 
seat track and seat back positions that can be attained. Typically, the 
seat would most likely be placed in the mid-track position or rearward 
for occupant comfort and convenience. From the mid-track position 
(60mm) rearward there are 30 combinations of seat track/seat back angle 
combinations for the manually reclining seat back.\3\ Of these

[[Page 11291]]

combinations there are 25 where there would be some degree of 
interference between the top of the head restraint and the vehicle 
headliner if someone intended to remove it. To completely remove the 
restraint from the top of the seat in these 25 combinations, there must 
be a deliberate action to compress the soft material of the restraint, 
because it cannot be pulled directly out of the seatback. In some 
cases, the seat back angle would have to be adjusted or the seat moved 
forward on the seat track before the restraint can be removed without 
headliner interference. (See figure 7 of Toyota's petition)
---------------------------------------------------------------------------

    \3\ Some models are equipped with a power reclining seat back 
with the same adjustment range as the manual reclining seat back, 
but which can be placed in positions between the 2 degree increments 
of the manual seat back.
---------------------------------------------------------------------------

    Together with the need to press the release button to move the head 
restraint when in either the first or second notches, such further 
deliberate actions in many seat adjustment positions of either 
compressing the restraint material, adjusting the seat slide position, 
or adjusting the seat back angle lessen the ease with which the 
restraint can be removed, reduce the chance of accidental removal, and 
increase the chances that the occupant will receive the benefits of a 
properly positioned head restraint.
    iii. Finally, in addition to the two previously noted factors, it 
is unlikely that the head restraint will be inadvertently removed as 
there is 97.7mm of travel distance from the second notch until the head 
restraint is fully removed from the seat; this length is much greater 
than the travel distance between the fully stowed position and second 
notch (37.5mm). The difference is easily recognized by anyone 
attempting to adjust the head restraint. (See figure 8 of Toyota's 
petition) Therefore, the overall design and operation of the rear head 
restraints in the subject vehicles fulfill the purpose and policy 
behind the S4.5 requirement.
    2. The Design and performance of the rear seat head restraints 
provide safety benefits to a broad range of occupants and pose no risk 
of exacerbating whiplash injuries, making the noncompliance 
inconsequential:
    a. Toyota stated that NHTSA elected not to mandate rear seat head 
restraints in vehicles; however, certain requirements for voluntarily 
installed rear head restraints were adopted. Toyota stated that the 
requirements for rear outboard head restraints are common in some 
respects with those of front seat restraints, but that the rear seat 
environment and usage resulted in several differences. Toyota stated 
that NHTSA analyzed the usage of rear seats and studied the various 
types of occupants who typically occupy rear seating positions. Toyota 
stated that NHTSA found that 10 percent of all occupants sit in rear 
outboard seats, and that only 5.1 percent of those are people who are 
13 years or older. Toyota stated that this justified a difference in 
the minimum height requirement for front and rear head restraints. The 
standard requires front integral head restraints to have a height of at 
least 800mm above the H-point \4\ to the top of the restraint; the top 
of an adjustable restraint must reach at least 800mm and cannot be 
adjustable below 750mm. Rear outboard head restraints must have a 
height not less than 750mm in any position of adjustment. Toyota quoted 
the agency as stating: ``The agency has estimated that a 750mm head 
restraint height would offer whiplash protection to nearly the entire 
population of rear seat occupants.''
---------------------------------------------------------------------------

    \4\ The H-point is defined by a test machine placed in the 
vehicle seat. From the side, the H-point represents the pivot point 
between the torso and upper leg portions of the test machine, or 
roughly like the hip joint of a 50th percentile male occupant viewed 
laterally.
---------------------------------------------------------------------------

    Toyota stated that the rear outboard restraints in the subject 
vehicles meet or surpass all the requirements in the completely stowed 
position and in the first notch position. Toyota stated that there is 
nothing about the performance of these restraints that poses a risk of 
exacerbating whiplash injuries and that the noncompliance does not 
create such a risk.
    b. Rear head restraint height well surpasses the requirements of 
the standard: Toyota stated that when NHTSA established height 
requirements for mandatory front head restraints, an adjustment range 
was adopted that was estimated to ensure that the top of the head 
restraint exceeded the head center of gravity for an estimated 93 
percent of all adults. Toyota stated that research conducted since the 
implementation of the previous height requirements has shown that head 
restraints should be at least as high as the center of gravity of the 
occupant's head to adequately control motion of the head and neck 
relative to the torso.
    Toyota stated that the rear head restraints in the subject vehicles 
not only surpass the 750mm requirement for voluntarily installed rear 
seat restraints, but also can be adjusted to surpass the 800mm 
requirement applicable to mandatory front seat head restraints. In the 
fully stowed position, the rear outboard head restraints measure 780mm 
above the H-point. In the first notch position they are 797mm above the 
H-point, and in the second notch position they are 816mm above the H-
point. (See figure 9 of Toyota's petition)
    Toyota stated that it evaluated the height of the rear outboard 
head restraints in the subject vehicles against the center of gravity 
of various size occupants. In the first notch position, which can be 
attained by simply pulling upward on the head restraint in a manner 
compliant with S4.5, the center of gravity of the head of an occupant 
the size of a 95th percentile adult male (AM95) is below the top of the 
head restraint.\5\ (See figure 10 of Toyota's petition) Therefore, for 
virtually 100 percent of the female adult population of the United 
States \6\ and over 95 percent of the U.S. male adult population, the 
rear outboard head restraints can help ``adequately control motion of 
the head and neck relative to the torso'' in a position that can be 
adjusted in compliance with the standard. It can also protect occupants 
larger than AM95 occupants when adjusted to the second notch position.
---------------------------------------------------------------------------

    \5\ NHTSA assumed during the rulemaking that the center of 
gravity of the head of the AM95 was 105mm from the top of the head. 
See FRIA at page 44. See also 66 FR at page 975. Figure 10, below, 
uses this value. The center of gravity of the head of the BIORID III 
ATD is 110.5mm below the top of the head.
    \6\ ``The center of gravity height of a 99th percentile female 
reclined at 25 degrees is about 19mm below a 750mm (29.5 inches) 
high head restraint at a 50mm (2 inch) backset.''
---------------------------------------------------------------------------

    c. Toyota stated that the rear outboard head restraints in the 
subject vehicles meet and surpass all other performance requirements of 
the standard not only in the fully stowed position, but also in both 
the first and second notch positions. These include energy absorption 
(S4.2.5 and S5.2.5), backset retention (S4.2.7 and S5.2.7), and height 
retention (S4.2.6 and S5.2.6). Toyota summarized the performance in 
tables that can be found in its petition. It contended that there is 
nothing about the performance of the rear outboard head restraints in 
the subject vehicles that in relation to the additional criteria set 
forth in these tables that poses a risk of exacerbating whiplash 
injuries.
    3. The occupancy rates and usage of the Lexus RX model further 
supports the conclusion that the noncompliance with S4.5 is 
inconsequential to safety: The rear seat vehicle environment has unique 
aspects in terms of occupancy rates and usage. This is why the agency 
decided to specify different requirements for front and rear seat head 
restraints. As noted above, the agency found that, in the general 
vehicle population studied for the purpose of adopting FMVSS 202a 
requirements, the occupancy rate for the rear outboard seating 
positions was about 10 percent.

[[Page 11292]]

Toyota undertook an analysis of the National Automotive Sampling System 
(NASS) General Estimates System (GES) data to better understand the 
outboard rear seat occupancy rate in the subject vehicles. The subject 
vehicles are the fourth generation of the Lexus RX model series, which 
was introduced for MY2016. Because the exposure of this model year in 
the fleet is somewhat limited, and NASS GES does not yet contain MY2016 
data, the three previous generations of the RX model going back to MY 
1999 were used for the analysis. While there are design differences in 
each generation, all are mid-size SUV's, and it is expected that the 
user demographics and rear seat usage would be representative of the 
subject vehicles.
    Based on the analysis, the occupancy rate for rear outboard seat 
occupants in all types of crashes for the RX models analyzed was 10 
percent--meaning that 10 percent of the RX vehicles involved in crashes 
have a rear outboard passenger. This is the same as what NHTSA found to 
be the occupancy rate in the general vehicle population when it 
undertook the FMVSS 202a rulemaking. In a smaller subset of only rear 
crashes, the occupancy rate in the RX models is slightly higher, but 
still small--only 13 percent.
    The data analyzed were insufficient to provide an understanding of 
the size of the occupants who ride in the rear outboard positions in 
the subject vehicles. However, considering that the occupancy rate is 
consistent with NHTSA's previous analyses, there is no reason to 
believe that occupant sizes would be significantly different from the 
general vehicle population. In the Final Regulatory Impact Analysis, 
the agency found that, of the small percentage of occupants that ride 
in the rear of vehicles generally, 83 percent of all rear outboard 
occupants were 5'9'' or less and 17 percent were 5'10'' and above. The 
latter is the height of the average U.S. male. As outlined in Section 
II, above, the rear outboard head restraints in the subject vehicles 
are designed so that the center of gravity of the head of the small 
percentage of large occupants who may occasionally ride in the rear 
seats of the subject vehicles is below the top of the head restraint. 
Therefore, the number of occupants who may actually seek to adjust the 
rear outboard head restraints in the subject vehicles is insignificant, 
further justifying a finding that the paragraph S4.5 noncompliance is 
inconsequential to vehicle safety.
    Toyota stated that it is unaware of any consumer complaints, field 
reports, accidents, or injuries that have occurred as a result of this 
noncompliance as of December 15, 2016.
    Toyota concluded by expressing the belief that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and that its petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    Public Comments: One comment was received by an anonymous source 
and they recommended that Toyota's petition be denied. They indicated 
that this law was important because it works to reduce whiplash 
injuries and that if someone were trying to adjust their head 
restraint, and accidentally removed it, they would be at a greater risk 
of injury if they were involved in a crash trying to take it to a 
mechanic.

NHTSA'S Decision

    NHTSA has reviewed the petition and the anonymous comment and has 
made its decision to grant the petition based on the reasons described 
below.
    NHTSA's Analysis: In promulgating the requirements related to head 
restraint removability, it was the agency's desire to take reasonable 
steps to increase the likelihood that a head restraint is available 
when needed. We stated the following in the 2004 final rule:

    ``If head restraints were too easily removable, chances are 
greater that they will be removed. That, in turn, increases the 
chances that the restraints might not be reinstalled correctly, if 
at all. By prohibiting removability without the use of deliberate 
action distinct from any act necessary for adjustment, the 
likelihood of inadvertent head restraint removal will be reduced, 
thus increasing the chances that vehicle occupants will receive the 
benefits of properly positioned head restraints.'' \7\
---------------------------------------------------------------------------

    \7\ 69 FR 74863.

    We believe the rationale and justification for this provision 
remains sound. NHTSA's decision in this matter, in no way changes the 
agency's position about the general need for the removability 
requirements specified in S4.5 of FMVSS No. 202a.
    We find merit in the argument presented by Toyota that when the 
head restraint is in the stowed (full down), first notch, and second 
notch position, the head restraint ``meet[s] and surpass all other 
performance requirements of the standard . . . .'' Thus, when the head 
restraint is not removed, all benefits of the standard have been 
preserved.
    Toyota provided information indicating that when the rear seat is 
adjusted to a mid-track position, most seat adjustment positions (25 of 
30) are such that there would be interference during head restraint 
removal necessitating compression of the head restraint foam or 
readjustment of the seat back to complete the removal. However, Toyota 
did not provide similar data for more forward seat track positions. 
Based on the data presented, it seems likely that the interference 
during removal would be lessened or eliminated in these more forward 
positions. Nonetheless, NHTSA finds some merit in the argument that 
this mitigates to some degree the possibility of inadvertent head 
restraint removal, when the seat is at mid-track or more rearward.
    We do not agree with Toyota's contention that ``the overall design 
and operation of the rear head restraints in the subject vehicles 
fulfills the purpose and policy behind the S4.5 requirement.'' However, 
we find merit in the argument that the required 97mm of travel beyond 
the second adjustment position to remove the head restraint may 
mitigate potential unintended removal. This distance is greater than 
the travel from the fully stowed to the second adjustment position 
(37mm), and this additional distance (without a detent) may indicate to 
the operator that the head restraint is being removed rather than being 
adjusted to a higher position.
    Finally, although not required by FMVSS No. 202a, NHTSA notes that 
the head restraints, if removed, can be reinstalled by the operator 
without the assistance of a mechanic and without any tools.
    NHTSA's Decision: In consideration of the foregoing, NHTSA finds 
that Toyota has met its burden of persuasion that the FMVSS No. 202a 
noncompliance is inconsequential as it relates to motor vehicle safety. 
Accordingly, Toyota's petition is hereby granted and Toyota is 
consequently exempted from the obligation to provide notification of, 
and remedy for, the subject noncompliance in the affected vehicles 
under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the subject vehicles that Toyota no longer

[[Page 11293]]

controlled at the time it determined that the noncompliance existed. 
However, the granting of this petition does not relieve vehicle 
distributors and dealers of the prohibitions on the sale, offer for 
sale, or introduction or delivery for introduction into interstate 
commerce of the noncompliant vehicles under their control after Toyota 
notified them that the subject noncompliance existed.

    Authority: (49 U.S.C. 30118, 30120: Delegations of authority at 
49 CFR 1.95 and 501.8)

Claudia Covell,
Acting Director, Office of Vehicle Safety Compliance.
[FR Doc. 2018-05136 Filed 3-13-18; 8:45 am]
 BILLING CODE 4910-59-P