[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3382-3384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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, 
[email protected].

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 https://www.regulations.gov/. 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.
     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]]

     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.
     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.
     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.''
     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.
     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.''
     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.''
     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.
     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.
     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.
     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


