Toyota Motor Engineering & Manufacturing North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance |
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Topics: Lexus RX350, Lexus RX450h
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Claudia Covell
National Highway Traffic Safety Administration
14 March 2018
[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]
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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.
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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.
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\1\ 66 FR 968 (January 4, 2001)
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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.
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\2\ 69 FR 74848 (December 14, 2004)
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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)
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\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.
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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.''
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\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.
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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.
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\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.''
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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\
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\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]
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