65970 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Notices 

consist of ‘‘crystals that are either waterbased ice, abrasive, or have the potential 

to clog brake system components.’’

NHTSA concurred with Dow’s 

conclusion that ‘‘the crystallization that 

occurred ought not to have an adverse 

effect upon braking.’’ In the case of First 

Brands, the FMVSS No. 116 

noncompliance arose from a ‘‘soft nonabrasive gel’’ that also dispersed under 

slight agitation or warming. 

NHTSA determined that facts leading 

to the grants of the inconsequential 

noncompliance petitions of Dow and 

First Brands are not analogous to the 

facts in DOT Chemical’s situation. In 

contrast, DOT Chemical’s 

noncompliance results from ‘‘fiber-like 

crystals’’ made of borate salts. These 

borate salt crystals did not disperse 

under slight agitation or warming, but 

had to be physically removed by 

filtration. 

In its denial of DOT Chemical’s 

petition NHTSA stated that the threadlike nature of this type of crystallization 

has the potential to clog brake system 

components, particularly in severe cold 

operation conditions. Impurities such as 

these in the brake system may cause the 

system to fail, i.e., to lose the ability to 

stop the vehicle over time due to the 

accumulation of compressible material 

in the brake lines. These impurities may 

also result in the failure of individual 

brake system components due to the 

corrosive nature of the contaminants 

themselves. 

In consideration of the foregoing, 

NHTSA decided that the petitioner 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 of NHTSA’s denial, DOT 

Chemical stated that ‘‘[t]he words and 

phrases used in the [original] petition 

were not identical to the descriptions in 

the previous cases. DOT Chemical 

wishes to clear up any 

misunderstandings from the original 

petition and reword to match the 

precedent cases.’’

DOT Chemical provided the following 

statements in its appeal: 

• Our choice of the word ‘‘crystals’’ can 

also be described as ‘‘slush-like 

crystallization’’ (as in the granted petition in 

1994) or a ‘‘soft non-abrasive gel,’’ a look at 

the sample is worth a thousand words or 

even rubbing the material between the 

fingers. 

• Our ‘‘crystals’’ dispersed and/or went 

completely into solution ‘‘under slight 

agitation or warming’’ (as in the granted 

petition in 1994). 

• Slight Agitation: In DOT Chemical’s 

petition the phrase ‘‘DOT Chemical tested the 

fluid, agitated the material before testing to 

insure that the crystals were part of each 

test’’ we believe implied that the material 

went into solution when agitated. We simply 

needed to make sure that the test material 

was not just decanted brake fluid without 

‘‘crystals.’’ When agitated, ‘‘crystals’’ or 

‘‘slush-like crystallization’’ was not seen. 

• Warming: In DOT Chemical’s petition 

the phrase ‘‘when the fluid is subjected to 

temperatures in a normal braking system, the 

crystals go back into solution in some cases 

not to reappear at all at ambient 

temperatures’’ we believe implied the 

warming scenario mentioned in the granted 

petition cases. 

• In the case of the granted petitions 

stating that ‘‘its ‘slush-like crystallization’

does not consist of ‘crystals that are either 

water-based ice, abrasive, or have the 

potential to clog brake system components’ ’’

we believe implies the same thing as our 

statements ‘‘There is no contamination in 

this fluid’’ and ‘‘the crystals are a natural part 

(no contamination).’’

• In the case of the granted petitions 

stating that ‘‘the crystallization that occurred 

ought not to have an adverse effect upon 

braking’’ we believe is carried to an 

additional degree by DOT Chemical’s testing 

of the material at ¥40° F through the 

viscometer (with dimensions and drawing 

provided) and stating that the diameter is 

much smaller than brake system lines. 

Specific phrases in DOT Chemical’s appeal 

are ‘‘The crystals presented no problems with 

obstruction,’’ ‘‘results again showed no 

obstruction,’’ and ‘‘have not demonstrated 

any flow restrictions even at extended 

periods of low temperatures at minus 40° F.’’

Much time was spent on the flow and low 

temperatures because all tests passed except 

partial test failures concerning sedimentation 

and low temperatures. 

After considering the statements presented 

by DOT chemical in its appeal, NHTSA has 

decided to deny the appeal. As NHTSA 

stated in denying DOT Chemical’s original 

petition, DOT Chemical’s noncompliance 

results from ‘‘fiber-like crystals’’ made of 

borate salts which did not disperse under 

slight agitation or warming. DOT Chemical’s 

statement in its appeal that, ‘‘when the fluid 

is subjected to temperatures in a normal 

braking system, the crystals go back into 

solution in some cases’’ (emphasis added), 

distinguishes it from petitions NHTSA has 

granted, where the crystallization 

consistently dispersed. DOT Chemical in its 

appeal provided no data indicating that the 

crystals always go back into solution at 

ambient temperature, including at a test 

laboratory ambient temperature of 75° F 

(24°C). Further, DOT Chemical provided no 

data to validate its assertion that the borate 

salts will not cause any safety problems such 

as the potential to clog brake system 

components. 

In consideration of the foregoing, NHTSA 

has decided that the petitioner has not met 

its burden of persuasion that the 

noncompliance described is inconsequential 

to motor vehicle safety. Accordingly, DOT 

Chemical’s appeal of NHTSA’s decision on 

inconsequential noncompliance is hereby 

denied. 

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. 

[FR Doc. 05–21723 Filed 10–31–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2005–21859; Notice 3] 

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). 

Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Notices 65971 

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 (pre2002 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 noncompliance 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 

65972 Federal Register / Vol. 70, No. 210 / Tuesday, November 1, 2005 / Notices 

1 68 FR 42454; July 17, 2003. 

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. 

[FR Doc. 05–21724 Filed 10–31–05; 8:45 am] 

BILLING CODE 4910–59–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA 03–15651] 

Federal Motor Vehicle Safety 

Standards; Replacement Lamps, 

Reflective Devices, and Associated 

Equipment 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 

ACTION: Notice of interpretation and 

termination of rulemaking. 

SUMMARY: This document provides an 

interpretation concerning how our 

standard for lamps, reflective devices, 

and associated equipment applies to 

replacement equipment. It represents 

the continuation of a process that began 

with the publication of a notice of draft 

interpretation in July 2003, and 

included the publication of a notice of 

interpretation in October 2004. We are 

providing this interpretation in response 

to requests that we reconsider the 

October 2004 notice of interpretation on 

this subject in several areas. This 

document also announces termination 

of a rulemaking announced in that 

notice of interpretation. 

FOR FURTHER INFORMATION CONTACT: 

Edward Glancy, Office of Chief Counsel, 

National Highway Traffic Safety 

Administration, 400 Seventh Street, 

SW., Washington, DC 20590. Telephone: 

(202) 366–2992. Fax: (202) 366–3820. 

SUPPLEMENTARY INFORMATION: 

Background 

FMVSS No. 108 specifies 

requirements for original and 

replacement lamps, reflective devices, 

and associated equipment. The standard 

applies to passenger cars, multipurpose 

passenger vehicles, trucks, buses, 

trailers, and motorcycles. Under the 

standard, vehicle manufacturers are 

required to certify that a new vehicle 

meets, among other things, FMVSS No. 

108’s requirements with respect to 

lamps, reflective devices, and associated 

equipment. In addition, FMVSS No. 108 

also applies to lamps, reflective devices, 

and associated equipment manufactured 

to replace any lamp, reflective device, or 

item of associated equipment on any 

vehicle to which the standard applies. 

Thus, FMVSS No. 108 is both a vehicle 

standard and an equipment standard. 

The purpose of FMVSS No. 108 is to 

reduce crashes and deaths and injuries 

from crashes, by providing adequate 

illumination of the roadway, and by 

enhancing the conspicuity of motor 

vehicles on the public roads so that 

their presence is perceived and their 

signals understood, both in daylight and 

in darkness or other conditions of 

reduced visibility. The agency has 

addressed the safety need for the 

various requirements included in 

FMVSS No. 108 in many rulemakings 

over the years. 

October 2004 Notice of Interpretation 

On October 8, 2004, NHTSA 

published in the Federal Register (69 

FR 60462) a notice of interpretation 

concerning how Federal Motor Vehicle 

Safety Standard (FMVSS) No. 108, 

Lamps, Reflective Devices, and 

Associated Equipment, applies to 

replacement equipment. The 

interpretation addressed requests for 

interpretation in two letters submitted 

by Calcoast-ITL (Calcoast), a testing 

company. Our notice of interpretation 

reflected consideration of public 

comments on a July 2003 notice of draft 

interpretation.1

Requests for interpretation. The first 

Calcoast letter asked whether 

replacement lamps are required to have 

all the functions of original lamps. The 

letter also asked whether replacement 

lamps for the rear of a vehicle may have 

the rear reflex reflectors in a location 

that is inboard from that in the original 

lamps. The second Calcoast letter asked 

a series of questions regarding whether 

it is permissible for replacement lamps 

to use alternative light sources, i.e., 

those that are different from those 

specified by the original equipment (OE) 

manufacturer. 

Primary interpretation. In responding 

to the issues raised by Calcoast, our 

interpretation focused primarily on the 

meaning of the following language, set 

forth in paragraph S5.8.1 of the 

standard: 

Except as provided below, each lamp, 

reflective device, or item of associated 

equipment manufactured to replace any 

lamp, reflective device, or item of associated 

equipment on any vehicle to which this 

standard applies shall be designed to 

conform to this standard. 

We said that this language applies to 

individual replacement lamps or other 

items of replacement equipment, not 

sets of lamps or equipment. We 

concluded therefore that compliance of 

each individual replacement lamp or 

other item of replacement equipment is 

determined based solely on the 

properties and characteristics of the 

individual lamp or combination lamp, 

without consideration of other lamps 

that may be included as part of a set. 

That is, in the case of a replacement 

lamp designed or recommended for a 

particular vehicle and sold as part of a 

set of two lamps, the lamp would not 

comply with FMVSS No. 108 if, when 

installed on one side of the vehicle, it 

would take the vehicle out of 

compliance with the standard. 

Retention of required functions. We 

concluded that replacement lamps are 

required to have all the functions of the 

original lamps. 

Location of required functions. Given 

that FMVSS No. 108 requires that reflex 

reflectors be located ‘‘as far apart as 

practicable,’’ we concluded that 

replacement lamps that have the effect 

of moving the reflex reflectors closer 

together would clearly not be ‘‘as far 

apart as practicable,’’ and therefore 

would not conform to the standard. 

Use of alternative light sources. On 

the issue of use of alternative light 

sources for replacement lighting 

equipment, we concluded that 

replacement lighting (other than 

replacement headlamps) may utilize a 

different type of light source than that 

of the original equipment lighting, 

provided that the replacement lighting 

equipment meets the requirements of 

the standard for that type of lamp and 

does not take the vehicle out of 

compliance. 

With respect to replacement 

headlamps, however, we stated that we 

were adhering to a March 13, 2003 letter 

of interpretation to Mr. Galen Chen. 

That letter stated that headlamps