Notice2022-01132
Toyota Motor North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance
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Published
January 21, 2022
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
Toyota Motor North America, Inc. (Toyota) has determined that certain Model Year (MY) 2013-2019 Toyota RAV4 and MY 2014-2019 Toyota Highlander/Highlander HV motor vehicles do not fully comply with S4 of Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of Interior Materials. Toyota filed a noncompliance report dated June 19, 2019, and subsequently petitioned NHTSA on July 12, 2019, and later amended that petition on August 13, 2019, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This notice announces the grant of Toyota's petition.
Full Text
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<title>Federal Register, Volume 87 Issue 14 (Friday, January 21, 2022)</title>
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[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3382-3384]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01132]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2019-0071; 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 Toyota RAV4 and MY 2014-2019 Toyota
Highlander/Highlander HV motor vehicles do not fully comply with S4 of
Federal Motor Vehicle Safety Standard (FMVSS) No. 302, Flammability of
Interior Materials. Toyota filed a noncompliance report dated June 19,
2019, and subsequently petitioned NHTSA on July 12, 2019, and later
amended that petition on August 13, 2019, for a decision that the
subject noncompliance is inconsequential as it relates to motor vehicle
safety. This notice announces the grant of Toyota's petition.
FOR FURTHER INFORMATION CONTACT: Kelley Adams-Campos, Safety Compliance
Engineer, Office of Vehicle Safety Compliance, NHTSA, 202-366-7479,
<a href="/cdn-cgi/l/email-protection#96fdf3fafaf3efb8f7f2f7fbe5f5f7fbe6f9e5d6f2f9e2b8f1f9e0"><span class="__cf_email__" data-cfemail="402b252c2c25396e2124212d3323212d302f3300242f346e272f36">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Overview
Toyota has determined that certain MY 2013-2019 Toyota RAV4 and
certain Toyota Highlander/Highlander HV motor vehicles do not fully
comply with paragraph S4 of FMVSS No. 302, Flammability of Interior
Materials. Toyota filed a noncompliance report dated June 19, 2019,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports, and subsequently petitioned NHTSA on July 12, 2019, and
later amended its petition on August 13, 2019, for an exemption from
the notification and remedy requirement of 49 U.S.C. Chapter 301 on the
basis that this noncompliance is inconsequential as it relates to motor
vehicle safety. See 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 December 3, 2019, in the Federal Register (84
FR 66276). No comments were received. To view the petition and all
supporting documents log onto the Federal Docket Management System
(FDMS) website at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Then follow the online
search instructions to locate docket number ``NHTSA-2019-0071.''
II. Vehicles Involved
Approximately 2,144,217 MY 2013-2019 Toyota RAV4 and MY 2014-2019
Toyota Highlander/Highlander HV motor vehicles manufactured between
December 21, 2012, and March 28, 2019, are potentially involved.
III. Noncompliance
Toyota explains that the noncompliance relates to certain hook and
loop fasteners that attach the floor carpet to the underlying padding.
The loop side of the fastener is made from material that may not
comply, as required, with paragraph S4.1 of FMVSS No. 302.
Specifically, when tested separately from the floor carpet, the loop
side of the fastener in the subject vehicles does not meet the burn
rate requirements of paragraph S4.3.
IV. Rule Requirements
Paragraphs S4.1 through S4.3(b) of FMVSS No. 302 include the
requirements relevant to this petition:
S4.1 The portions described in S4.2 of the following components
of vehicle occupant compartments shall meet the requirements of
S4.3: Seat cushions, seat backs, seat belts, headlining, convertible
tops, armrests, all trim panels including door, front, rear, and
side panels, compartment shelves, head restraints, floor coverings,
sun visors, curtains, shades, wheel housing covers, engine
compartment covers, mattress covers, and any other interior
materials, including padding and crash-deployed elements, that are
designed to absorb energy on contact by occupants in the event of a
crash.
S4.2.1 Any material that does not adhere to other material(s) at
every point of contact shall meet the requirements of S4.3.
Paragraph S4.3(a) of FMVSS No. 302 requires that material described
in S4.1 and S4.2 shall not burn, nor transmit a flame front across its
surface, at a rate of more than 102 mm per minute. The requirement
concerning the transmission of a flame front shall not apply to a
surface created by cutting a test specimen for purposes of testing
pursuant to S5.
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.
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:
1. During pre-production evaluations of the new model Highlander
(MY 2020) the supplier found that the loop fasteners might not meet
the burn rate requirement of FMVSS No. 302. These same fasteners are
used on the subject vehicles; they are attached to the underside of
the carpet near the front footwell. Toyota conducted testing of the
loop side of the fastener, in accordance with FMVSS No. 302; when
tested separately from the carpet, the burn rate of the loop side of
the fastener was 133 mm/min (worst of ten tests). The loop fastener
material did not have flame-retardant coating, and therefore the
burn rate requirement specified on the drawing was not met.
2. The loop fastener material complies with FMVSS No. 302 when
tested as a ``composite'' as installed to the FMVSS No. 302
compliant carpet assembly.
3. The purpose of FMVSS No. 302 is to ``reduce the deaths and
injuries to motor vehicle occupants caused by vehicle fires,
especially those originating in the interior of the vehicle from
sources such as matches or cigarettes.'' The noncomplying loop
fastener material would normally not be exposed to open flame or an
ignition source (like matches or cigarettes) in its installed
application, because it is installed beneath and completely covered
by the carpet material which complies with FMVSS No. 302.
4. The loop fastener material is a very small portion of the
overall mass of the soft material portions comprising the carpet
assembly (i.e., 0.037% or less), and is significantly less in
relation to the entire vehicle interior surface area that could
potentially be exposed to flame. Therefore, it would have an
insignificant adverse effect on the interior material burn rate and
the potential for occupant injury due to interior fire.
5. Toyota is not aware of any data suggesting that fires have
occurred in the field from installation of the noncomplying loop
fastener material.
<bullet> Toyota says NHTSA has previously granted at least ten
FMVSS No. 302 petitions for inconsequential noncompliance--one of
which was for a vehicle's seat heater assemblies, one of which was
for a vehicle's console armrest, one of which was for large truck
sleeper bedding, one of which was for seating material, and six of
which were for issues related to child restraints systems (CRS).
These are:
[[Page 3383]]
<bullet> Paccar (57 FR 45868, October 5, 1992)--Noncompliant
tape edging surrounding otherwise compliant bedding materials in a
large truck sleeper bed was deemed by the Agency to be
inconsequential given its low relative volume to the otherwise
complying surrounding material, as well as the fact the tape edging
passed bedding industry fire standards. Unlike the Toyota loop
fastener material in the subject vehicles, which is not exposed
directly to the occupant compartment air space, the tape edging of
the sleeper bed was exposed. Nonetheless, the Agency granted the
petition on the basis that the noncompliant material was surrounded
by compliant material and was of a low relative volume compared to
the compliant material.
<bullet> Fisher-Price (60 FR 41152, August 11, 1995)--
Noncompliant fabric used in CRS shoulder straps was deemed to be
inconsequential by the Agency, due to factors which included that
the margin of noncompliance was small; the shoulder straps that do
not comply are a small part of the CRS itself and a minimal part of
the fabric present in a vehicle's interior; the absence of reports
in which the noncompliance exists supported the Agency's decision
that the noncompliance is inconsequential. Toyota stated that the
Toyota loop fastener material is also a small part of the vehicle
carpet and a minimal part of the materials in the interior of the
subject vehicles.
<bullet> Century (60 FR 41148, August 11, 1995)--Noncompliant
seat covers were determined unlikely to pose a flammability risk
when securely sewn to the seat (i.e., the ``normal condition''),
based on some flammability testing of the material as a composite.
Unlike the Toyota loop fastener material in the subject vehicles,
which is not exposed directly to the occupant compartment air space
in the ``normal condition,'' the CRS covers were exposed. Similarly,
the Toyota subject loop material also passes the FMVSS No. 302
requirements when tested as a ``composite.'' The Agency also noted
that (as is the case with the subject Toyota loop material) ``the
absence of fires originating in these child restraints supported the
Agency's decision that the noncompliance does not have a
consequential effect on safety.''
<bullet> Cosco--(60 FR 41150, August 11, 1995)--Noncompliant
fabric used in CRS shoulder straps was deemed to be inconsequential
by the Agency due to the similarity to the Fisher-Price request for
inconsequentiality and the reasons set out in the notice granting
Fisher Price's appeal (see above). FMVSS No. 302 does not in itself
apply to child restraint systems, but paragraph S4 of FMVSS No. 302
is invoked by reference in FMVSS No. 213; therefore, the child
restraint petitions are relevant precedents.
<bullet> Kolcraft (63 FR 24585, May 4, 1998)--One or more of the
fitting, face, or backing materials of CRS seat covers were
noncompliant. NHTSA determined the noncompliance to be
inconsequential because when tested as a composite (i.e., in the
``normal condition''), the covers met FMVSS No. 302 requirements.
Similarly, the Toyota subject loop fastener material passes the
FMVSS No. 302 requirements when tested as a ``composite.''
<bullet> Cosco (63 FR 30809, June 5, 1998)--NHTSA found that the
noncomplying fiberfill incorporated into a pillow located in a child
restraint was inconsequential to safety due to the unlikelihood of
exposure to an ignition source for various reasons: That the
noncompliant material was encased in materials which complied with
FMVSS No. 302, and that the fiberfill was only a limited quantity of
noncompliant material used in the CRS. Similarly, the subject Toyota
loop fastener material also passes the FMVSS No. 302 requirements
when tested as a composite, is unlikely to be exposed to a direct
ignition source, is surrounded by materials which comply with FMVSS
No. 302, and is only a limited quantity of noncompliant material in
the carpet assembly. The Agency also noted that (as is the case with
the subject Toyota loop material) ``the absence of fires originating
in these child restraints supported the Agency's decision that the
noncompliance does not have a consequential effect on safety.''
<bullet> Ford (63 FR 40780, July 30, 1998)--A noncompliant
center console armrest ``plus pad'' was determined by the Agency to
be inconsequential to safety in that, because of its location under
an exterior cover, it was unlikely to pose a flammability risk due
to the unlikelihood of its exposure to an ignition source. The
Agency was unaware of any occupant injuries in vehicle post-crash
fires that were caused by burning of the console armrests in those
vehicles. Toyota argued that Ford undertook ``composite'' testing
like Toyota's described above to support its petition.
<bullet> Graco (77 FR 14055, March 8, 2012)--Certain
noncompliant warning labels attached to the outside of detachable
accessory pillows were deemed inconsequential by the Agency due to
the relatively small size of the label, together with its proximity
to other materials on the CRS that were treated with flame retardant
materials, rendering the likelihood of ignition of the label
extremely low. The subject Toyota loop fastener material is
surrounded by compliant materials, is not exposed to the occupant
compartment air space, and is a small part of the vehicle carpet
assembly and a minimal part of the otherwise compliant materials in
the interior of the subject vehicles.
<bullet> Toyota (80 FR 4035, January 26, 2015)--Certain
noncompliant front and rear seat back and seat cushion seat heaters
were determined by the Agency to be inconsequential to safety in
that the seat heaters were unlikely to pose a flammability risk. The
Agency was unaware of any occupant injuries regarding these seat
heaters in the subject vehicles. The seat heaters would not
accommodate a flame rate beyond what is permitted by FMVSS No. 302
when exposed directly to an open flame in the installed condition
(as a composite). It was also demonstrated that the seat heater was
a very small portion of the overall mass of the seat assembly.
According to Toyota, the facts here are similar. The subject loop
fastener material is unlikely to be exposed to an ignition source in
the installed condition, it does not accommodate a flame beyond what
is permitted by FMVSS No. 302 when exposed directly to an open flame
in the installed condition (as a composite), the loop material is
only a very small portion of the overall mass of the carpet
assembly, and there are no known field ignition events.
<bullet> Toyota (83 FR 16433, April 16, 2018)--Certain
noncompliant needle punch felt material used in the front and rear
seat covers and rear center armrest assemblies was determined by the
Agency to be inconsequential to safety. The Agency stated that: (1)
The needle punch felt material is covered by other materials that do
comply with FMVSS No. 302, thus, the needle punch felt material is
protected from the occupant compartment where it could directly come
into contact with an ignition source such as a match or cigarette;
(2) when the needle punch felt material is tested as a composite
with the FMVSS No. 302 compliant materials (i.e., seat cover, cover
pad, foam pad, seat heater, carpet, and storage bin) that cover the
punch felt material, the requirements for burn rate are met
accordingly; and (3) the noncompliant material is approximately 0.32
percent of the total mass of the soft material of the front seat
assembly and between 0.48 percent and 0.55 percent (less than 1
percent) of the total mass of the soft material of the rear seat
assembly. Therefore, the noncompliant material represents an
insignificant quantity of material compared to the total quantity of
interior vehicle material. The loop fasteners in the subject
vehicles share these same characteristics.
Toyota concluded 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
NHTSA has reviewed Toyota's evaluation that the subject
noncompliance is inconsequential to motor vehicle safety. The burden of
establishing the inconsequentiality of a failure to comply with a
performance requirement in a standard--as opposed to a labeling
requirement--is more substantial and difficult to meet. Accordingly,
the Agency has not found many such noncompliances inconsequential.\1\
Potential performance failures of safety-critical equipment, like seat
belts or air bags, are rarely deemed inconsequential.
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\1\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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An important issue to consider in determining inconsequentiality
based
[[Page 3384]]
upon NHTSA's prior decisions on noncompliance issues is the safety risk
to individuals who experience the type of event against which the
recall would otherwise protect.\2\ NHTSA also does not consider the
absence of complaints or injuries to show that the issue is
inconsequential to safety. ``Most importantly, the absence of a
complaint does not mean there have not been any safety issues, nor does
it mean that there will not be safety issues in the future.'' \3\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \4\
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\2\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
\3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
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NHTSA considered the following factors in evaluating this petition:
First, according to the data provided by Toyota, the
noncompliant material has a mass that is insignificant when compared
to the overall mass of the carpet assembly. The petitioner stated
that the mass of the loop fastener constitutes approximately 0.037
percent or less of the soft material portions of the carpet
assembly. However, while Toyota argues that the noncompliant
material would not significantly fuel a fire, should it become
exposed, the relative measure, i.e., percentage, of a material
characteristic, i.e., mass, surface area, thickness, etc. without
consideration of other factors, e.g. the surrounding of the
noncompliant material with complying materials, does not alone mean
such a material would not significantly fuel a fire upon exposure to
an ignition source.
Second, the loop fastener material in the subject vehicles is
covered by the carpet material which complies with FMVSS No. 302,
thus, the loop fastener material is protected from contact with an
ignition source originating from the occupant space.
Third, the data submitted by Toyota shows that, when tested as a
single unit, the loop fasteners along with the carpet comply with
FMVSS No. 302.
Toyota also stated that NHTSA has granted previous petitions whose
facts align with those at issue in the instant case. These include a
Paccar petition (57 FR 45868, October 5, 1992), a Fischer Price (60 FR
41152, August 11, 1995) petition, a Century petition, (60 FR 41148,
August 11, 1995), Kolcraft (63 FR 24585, May 4, 1998), Cosco petition
(60 FR 41150, August 11, 1995) and a Toyota petition (80 FR 4035,
January 26, 2015) where the non-compliant material represented a small
percentage of the interior fabric. As NHTSA states previously in this
section, the relative measure, i.e., percentage, of a material
characteristic, i.e., mass, surface area, thickness, etc. without
consideration of other factors does not alone mean such a material
would not significantly fuel a fire upon exposure to an ignition
source. Toyota also offered a past grant where a combination of
compliant and non-compliant fabric met FMVSS No. 302 when tested as a
single unit. (Kolcraft (63 FR 24585, May 4, 1998)). Finally, Toyota
cited several grants where NHTSA determined that noncompliant fabric
located where it would not encounter an ignition source was
inconsequential to safety. These include two Cosco petitions, (63 FR
30809, (June 5, 1998) and 60 FR 41150 (August 11, 1995), two Toyota
petitions (83 FR 16433, (April 16, 2018) and (80 FR 4035, January 26,
2015)) and a Ford petition (63 FR 40780, (July 30, 1998)). As noted
above, NHTSA evaluates each petition on its individual facts and does
not consider itself to be bound by these earlier grants. Nonetheless,
NHTSA has evaluated the subject petition and has made a determination
in a similar fashion.
VII. NHTSA's Decision
NHTSA finds that Toyota has met its burden of persuasion of
demonstrating that the noncompliant small loop fasteners sewn into the
carpet at issue in this case do not present a risk to safety. The
noncompliant fabric present here must be separated from the carpet to
be deemed noncompliant as the carpet and loop patch together meet the
standard. The loop fasteners also constitute a small percentage of the
fabric area and are located where they are not likely to encounter an
ignition source. Accordingly, Toyota's petition is hereby granted.
Toyota is consequently exempted from the obligation of providing
notification of, and a free remedy for, the 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. 2022-01132 Filed 1-20-22; 8:45 am]
BILLING CODE 4910-59-P
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