05-21724. 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).

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 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.