[Federal Register Volume 85, Number 127 (Wednesday, July 1, 2020)]
[Notices]
[Pages 39679-39681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14214]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0064; Notice 2]


Toyota Motor 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.

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SUMMARY: Toyota Motor North America, Inc., (Toyota) has determined that 
certain model year (MY) 2013-2019 Lexus motor vehicles do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, 
Lamps, Reflective Devices, and Associated Equipment. Toyota filed a 
noncompliance report dated May 30, 2019. Toyota subsequently petitioned 
NHTSA on June 21, 2019, for a decision that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety. This document 
announces the grant of Toyota's petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, the National Highway

[[Page 39680]]

Traffic Safety Administration (NHTSA), telephone (202) 366-5304, 
facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION:

I. Overview

    Toyota has determined that certain MY 2013-2019 Lexus motor 
vehicles, do not fully comply with paragraph S8.1.11 and Table XVI-a of 
FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment (49 
CFR 571.108). Toyota filed a noncompliance report for the motor 
vehicles dated May 30, 2019, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports. Toyota subsequently 
petitioned NHTSA on June 21, 2019, 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, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR 
part 556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of Toyota's petition was published with a 30-day 
public comment period, on November 7, 2019, in the Federal Register (84 
FR 60143). No comments were 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-2019-0064.''

II. Vehicles Involved

    Approximately 502,034 of the following MY 2013-2019 Lexus motor 
vehicles, manufactured between July 19, 2011, and May 21, 2019, are 
potentially involved:

 MY 2013-2018 Lexus ES350
 MY 2013-2018 Lexus ES300h
 MY 2013-2019 Lexus GS200t/300/350
 MY 2013-2018 Lexus GS450h
 MY 2016-2019 Lexus GS-F

III. Noncompliance

    Toyota explains that the noncompliance is that the subject vehicles 
are equipped with rear reflectors that do not meet the minimum 
photometry requirements specified in paragraph S8.1.11 and Table XVI-a 
of FMVSS No. 108. Specifically, the reflex reflector in the subject 
vehicles may contain a photometry value 18 percent below the required 
minimum.

IV. Rule Requirements

    Paragraph S8.1.11 and Table XVI-a of FMVSS No. 108 includes the 
requirements relevant to this petition. Each reflex reflector must be 
designed to conform to the photometry requirements of Table XVI-a, when 
tested according to the procedure in paragraph S14.2.3 of FMVSS No. 
108, for the reflex reflector.

V. Summary of Toyota's Petition

    The following views and arguments presented in this section, V. 
Summary of Toyota's petition, are the views and arguments provided by 
Toyota. They do not reflect the views of the Agency.
    Toyota described the subject noncompliance and stated that the 
noncompliance is inconsequential as it relates to motor vehicle safety. 
Toyota submitted the following views and arguments in support of the 
petition:
    1. The extent of the noncompliance for the subject reflex 
reflectors is such that the human eye is unable to differentiate the 
reflected light of noncompliant reflectors from the reflected light of 
those that are compliant.
    The technical cause of the noncompliance is related to the 
annealing process at the end of a day when reflectors were left in the 
oven as the oven cooled down. An assessment was made of the maximum 
deviation from the standard that could result from this circumstance. 
Based on the 60 piece parts study using the worst-case annealing 
process, Toyota calculated at 4.2 standard deviations from the mean 
that no part would deviate below 8.1 percent from the FMVSS standard. 
Considering the tolerance interval calculation method, the worst 
possible deviation from the standard would be - 18 percent.
    The NHTSA sponsored study ``Driver Perception of Just Noticeable 
Differences of Automotive Signal Lamp Intensities'' (DOT HS 808 209, 
September 1994) and The University of Michigan Transportation Research 
Institute (UMTRI) ``Just Noticeable Differences for Low-Beam Headlamp 
Intensities.'' (UMTRI-97-4, February 1997) found that a change in 
luminous intensity of 25 percent or less is not noticeable by most 
drivers. The agency noted in 1990 when it granted an inconsequentiality 
petition filed by Hella, Inc., ``a reduction of approximately 25 
percent in luminous intensity is required before the human eye can 
detect the difference between two lamps.'' See 55 FR 37601, 37602. In 
the Subaru petition, the Agency stated that the same considerations can 
be applied to reflectors as to lamps.
    To verify that a deviation of - 18 percent is not detectable to the 
human eye, Toyota and the supplier conducted evaluations of the 
reflected light from the noncompliant part that was produced in the 60-
piece study and another reflector that was approximately 20 percent 
higher in reflectivity. The reflectors were mounted in a dark tunnel 
and set up to simulate the FMVSS No. 108 test setup at 0.2 degrees. Ten 
panelists were instructed to stand at a specific location 100 feet from 
the reflectors at a height approximating at a 0.2-degree angle to the 
reflectors. They were asked if the reflector brightness was the same or 
different. After the ten panelists completed the survey, the same 
panelists were asked to repeat the activity; they were unaware that the 
parts and setup had not been changed. This survey activity was then 
repeated using two parts of equal reflectivity. In these surveys, none 
of the panelists were able to identify the noncompliant part or 
correctly identify differences in reflectivity.
    In addition, Toyota installed the same two parts that were checked 
in the dark tunnel on a MY 2018 Lexus ES350. Using the headlamps from 
another vehicle that was aligned 100 feet behind the ES, Toyota members 
visually observed the reflectivity between the two parts at night and 
were unable to distinguish a difference between the two reflectors. 
They looked the same.
    2. There are no known complaints related to the noncompliance.
    Toyota conducted a search of consumer complaints, field reports, 
dealer reports, Vehicle Owner Questionnaires (VOQs), and legal claims 
for the subject vehicles and found no report alleging that the rear 
reflectors could not be seen or were not bright enough. This search is 
current as of May 29, 2019.
    3. In similar situations, NHTSA has granted petitions for 
inconsequential noncompliance relating to the subject requirement of 
FMVSS No. 108.
    NHTSA has previously granted at least two similar petitions for 
inconsequential noncompliance, one for a tail lamp and one for a side 
reflex reflector assembly. A brief summary of the decisions is provided 
below:

 Hella, 55 FR 37601, (September 12, 1990)

    In the petition, Hella argued that industry experience and 
supporting studies have established that the human eye in the vast 
majority of cases cannot detect a change in luminescence unless it is 
more than a 25 percent increase or decrease. NHTSA stated that a 
reduction of approximately 25 percent in luminous intensity is required 
before the human eye can detect the difference between two lamps. Of 
the noncompliant lamps tested, the greatest disparity reported between 
a compliant

[[Page 39681]]

lamp and a noncompliant lamp was 3.6 cd, which is a 20 percent higher 
luminous intensity than compliant lamps. According to the SAE 
Recommended Practice J576, this differential cannot be detected by the 
human eye. For this reason, the Hella petition was granted.

 Subaru, 56 FR 59971, (November 26, 1991)
    Subaru submitted a petition for inconsequential noncompliance in 
1991 concerning the failures of luminous intensity on the side reflex 
reflector. NHTSA considered the petitioner's statement that observers 
could not differentiate between the reflected light of complying and 
noncomplying reflectors at distances of 30m, 60m, and 100m. As the 
agency noted in 1990 when it granted an inconsequentiality petition 
filed by Hella, Inc., ``a reduction of approximately 25 percent in 
luminous intensity is required before the human eye can detect the 
difference between two lamps.'' See 55 FR 37601, 37602. The agency 
applied the same considerations to reflectors as to lamps. The luminous 
transmittance failures of the Subaru reflectors were all less than 20 
percent of the minimum values specified by the standard, and, 
therefore, they were undetectable by the naked eye. For this reason, 
the petition was granted.
    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.

VI. NHTSA's Analysis

    Reflex reflectors make a vehicle conspicuous to drivers of other 
vehicles at night and at other times when there is reduced ambient 
light including dawn and dusk. The advance warning provided by the rear 
reflex reflectors has the potential to enable drivers to avoid a 
collision when approaching from the rear.
    Due to a production error, the reflex reflectors in the subject 
vehicles may be at most 18% below the required minimum. This error has 
been fixed in production, and Toyota has not had any complaints or 
reports of incidents due to this noncompliance. Toyota has cited 
multiple prior petitions where the Agency granted a petition for 
decision of inconsequential noncompliance regarding noncompliant 
photometric intensity. NHTSA concurs, particularly in the cases of the 
Hella (55 FR 37601) and Subaru (56 FR 59971) petitions, where the 
imperceptible difference in illumination makes this noncompliance 
inconsequential to motor vehicle safety.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Toyota has met 
its burden of persuasion that the subject FMVSS No. 108 noncompliance 
of the affected reflex reflectors is inconsequential to motor vehicle 
safety. Accordingly, Toyota's petition is hereby granted and Toyota is 
consequently exempted from the obligation of providing notification of, 
and a free remedy for, that noncompliance 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 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)

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2020-14214 Filed 6-30-20; 8:45 am]
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