Utilimaster Corporation, Denial of Petition for Decision of Inconsequential Noncompliance |
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Topics: Utilimaster
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Nancy Lummen Lewis
National Highway Traffic Safety Administration
August 9, 2012
[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Notices]
[Pages 47699-47702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19581]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2012-0019; Notice 2]
Utilimaster Corporation, Denial of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Notice of Petition Denial.
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SUMMARY: Utilimaster Corporation (Utilimaster),\1\ has determined that
certain model year 2009-2011 Utilimaster walk-in van-type trucks
manufactured between September 1, 2009 and December 22, 2011 do not
comply with paragraph S4.2.1 of Federal Motor Vehicle Safety Standard
(FMVSS) No. 206, Door Locks and Door Retention Components. Utilimaster
filed an appropriate report dated December 30, 2011, pursuant to 49 CFR
part 573, Defect and Noncompliance Responsibility and Reports.
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\1\ Utilimaster Corporation, a wholly owned subsidiary of
Spartan Motors, Inc., is a manufacturer of motor vehicles.
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Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule
implementing those provisions at 49 CFR part 556, on January 23, 2012,
Spartan Motors, Inc.,\2\ on behalf of Utilimaster, has petitioned for
an exemption from the notification and remedy requirements of 49 U.S.C.
Chapter 301 on the basis that this noncompliance is inconsequential to
motor vehicle safety. The National Highway Traffic Safety
Administration (NHTSA) published a notice of receipt of the petition,
with a 30-day public comment period, on February 17, 2012, in the
Federal Register (77 FR 9726). The only comments received were from
Morgan Olson, LLC (Morgan Olson).\3\ To view the petition, the
comments, and all supporting documents log onto the Federal Docket
Management System (FDMS) Web site at: http://www.regulations.gov/. Then
follow the online search instructions to locate docket number ``NHTSA-
2012-0019.''
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\2\ Spartan Motors, Inc., is a manufacturer of motor vehicles.
\3\ Morgan Olson, LLC, is a manufacturer of motor vehicles.
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Contact Information: For further information on this decision
contact Mr. Tony Lazzaro, Office of Vehicle Safety Compliance, the
National Highway Traffic Safety Administration (NHTSA), telephone (202)
366-5304, facsimile (202) 366-7002.
Relevant Requirements of FMVSS No. 206: FMVSS No. 206 paragraph
S4.2.1 requires in pertinent part that each sliding door system shall
be equipped with either: (a) At least one primary door latch system, or
(b) a door latch system with a fully latched position and a door
closure warning system. The door closure warning system shall be
located where it can be clearly seen by the driver.
A ``primary door latch'' is defined in FMVSS No. 206 paragraph S3
as ``a latch equipped with both a fully latched position and a
secondary latch position and is designated as a `primary door latch' by
the manufacturer.'' A ``secondary latched position'' refers to ``the
coupling condition of the latch that retains the door in a partially
closed position.'' FMVSS No. 206 paragraph S3.
A ``door closure warning system'' is defined in FMVSS No. 206
paragraph S3 as ``a system that will activate a visual signal when a
door latch system is not in its fully latched position and the vehicle
ignition system is activated.''
[[Page 47700]]
Vehicles involved: Affected are approximately 9,861 Utilimaster
model year 2009-2011 walk-in van-type trucks.
Noncompliance: Utilimaster states that the noncompliance is that
while the sliding doors on the vehicles are equipped with a door latch
system (but not a ``Primary Door Latch System''), no door closure
warning system, as required by paragraph S4.2.1 of FMVSS No. 206, is
installed.
Summary of Utilimaster's Analysis Arguments: By way of background,
Utilimaster recognizes that the sliding door latch requirements
contained in paragraph S4.2.1 of FMVSS No. 206 were adopted in February
2007 as part of a broader upgrade to the Agency's existing door latch
and retention requirements. See Federal Motor Vehicle Safety Standards;
Door Locks and Door Retention Components, Final Rule, 72 FR 5385 (Feb.
6, 2007) [hereinafter 2007 Final Rule]. The effective date of these
requirements was September l, 2009.
As set forth in Utilimaster's noncompliance report, Utilimaster
determined that the new latch requirements applied to these vehicles,
but were not designed into vehicles built after the effective date.
(This omission was the result of Utilimaster's previous
misinterpretation as to the applicability of the FMVSS No. 206
amendments to these particular vehicles).
Utilimaster explains that the sliding doors on the subject vehicles
are equipped with a door latch that does not meet the above-referenced
definition of a ``primary door latch'' because these vehicles lack a
secondary latched position. Thus, these vehicles do not meet the
paragraph S4.2.l(a) compliance option. Moreover, these vehicles are not
equipped with a ``door closure warning system'' and, therefore, they do
not meet the paragraph S4.2.l(b) compliance option. Utilimaster
believes that the omission of a door closure warning system on these
vehicles is inconsequential to safety due to the particular
characteristics of the sliding doors on these vehicles which, in its
view, will immediately provide adequate visual (and audible) feedback
to the driver to alert him or her in the event a door is unlatched.
Utilimaster further states that the door has approximately 0.315
inches of engagement into the door seal. Therefore, should the sliding
door not be in the latched position, it would be readily apparent to
the driver before the vehicle is driven. Even if the driver did not
notice the gap in the door prior to the vehicle being driven, these
doors would provide immediate visual feedback to the driver as soon as
the vehicle begins to move. The sliding doors on these vehicles are
designed to slide longitudinally on a track when the sliding door
handle is activated and a small force is applied in the same
longitudinal direction. As a consequence, if the sliding door is not
fully closed and latched and the driver is not aware, this condition
would become immediately apparent to the driver when the vehicle is
accelerated from rest, as the sliding door would glide rearward from
the force created by the acceleration. Thus, while these vehicles may
not meet the express requirements of paragraph S4.2.1 or the definition
of a ``door closure warning system,'' Utilimaster asserts they do meet
the intent of these requirements. Utilimaster also argues that the use
of other visual signals, such as a dash-mounted telltale, might be
necessary for vehicles with rear sliding doors, such as minivans or
other passenger vehicles, but the sliding doors on the subject vehicles
are located in the front within plain view of the driver.
Utilimaster further states that in adopting the upgraded sliding
door standards in 2007, the Agency stated that it was particularly
concerned with children riding in the rear seats of passenger vans
(minivans or ``MPVs'').\4\
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\4\ Federal Motor Vehicle Safety Standards; Door Locks and Door
Retention Components, Final Rule, 72 FR 5385, 5387 (Feb. 6, 2007).
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Utilimaster also states that these vehicles are used exclusively in
commercial applications and are driven exclusively by professional
drivers (primarily without a passenger). Utilimaster states that these
drivers, in addition to having a commercial driver's license, have
undergone highly regimented training programs and must adhere to
corporate safety policies. This training requires that drivers enter
and exit the vehicle from the curb side of the van and fasten the
seatbelt when the vehicle is in motion. The repetitive use of the van
results in highly repeatable results from one stop to the next.
Utilimaster argues that the likelihood that a driver would move the
vehicle with the door left inadvertently open is very low and that the
likelihood that the driver would be ejected from the driver's seat,
through a curb-side door, left unintentionally unlatched, is even less
probable.
Utilimaster states that it is not aware of a driver or passenger of
its vehicles ever having been ejected from or fallen through an open
sliding cab door while the vehicle was in motion. Utilimaster also
notes that walk-in vans with sliding doors very similar in design to
those on the subject vehicles have been in use for several decades.
Additionally, Utilimaster argues that the sliding doors on these
vehicles meet all load test and inertial requirements of FMVSS No. 206,
paragraph S4.2, and therefore this noncompliance will not increase the
risk of occupant ejection under conditions addressed by such
requirements.
In summary, Utilimaster contends that the noncompliance is
inconsequential to motor vehicle safety, and that its petition, to
exempt it from providing notification of noncompliance as required by
49 U.S.C. 30118 and remedying the noncompliance as required by 49
U.S.C. 30120, should be granted.
Comments: NHTSA published a notice of the petition in the Federal
Register to allow an opportunity for members of the public to present
information, views, and arguments on the subject petition. As noted
earlier, the only comments received were submitted by Morgan Olson,
also a manufacturer of walk-in van-type trucks. Morgan Olson reported
similar noncompliances with S4.2.1 of FMVSS No. 206 on January 19, 2012
and filed its own Petition for Decision of Inconsequential
Noncompliance on February 10, 2012.\5\ Morgan Olson commented in
support of granting Utilimaster's petition for inconsequentiality.
Morgan Olson echoed Utilimaster's arguments and provided information
similar to that provided by Utilimaster. The Agency notes that an
absence of opposing argument and data does not require the Agency to
grant the petition.\6\
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\5\ Morgan Olson, LLC, Receipt of Petition for Decision of
Inconsequential Noncompliance, 77 FR 19055 (Mar. 29, 2012).
\6\ Dorel Juvenile Group; Denial of Appeal of Decision on
Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010).
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NHTSA'S Consideration of Utilimaster's Inconsequentiality Petition
General Principles: Federal motor vehicle safety standards are
adopted only after the Agency has determined, following notice and
comment, that the standards are objective and practicable and ``meet
the need for motor vehicle safety.'' See 49 U.S.C. 30111(a). Thus,
there is a general presumption that the failure of a motor vehicle or
item of motor vehicle equipment to comply with a FMVSS increases the
risk to motor vehicle safety beyond the level deemed appropriate by
NHTSA through the rulemaking process. To protect the public from such
risks, manufacturers whose products fail to comply with an FMVSS are
normally required to
[[Page 47701]]
conduct a safety recall under which they must notify owners,
purchasers, and dealers of the noncompliance and provide a remedy
without charge. 49 U.S.C. 30118-30120. However, Congress has recognized
that, under some limited circumstances, a noncompliance could be
``inconsequential'' to motor vehicle safety. ``Inconsequential'' is not
defined either in the statute or in NHTSA's regulations. Rather, the
Agency determines whether a particular noncompliance is inconsequential
to motor vehicle safety based on the specific facts before it. The
relevant issue in determining inconsequentiality is whether the
noncompliance in question is likely to significantly increase the
safety risk to individuals of accidents or to individual occupants who
experience the type of injurious event against which the standard was
designed to protect. See General Motors Corp.; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897 (Apr. 14,
2004).
There have been instances in the past where NHTSA has determined
that a manufacturer has met its burden of demonstrating that a
noncompliance is inconsequential to safety, such as noncompliances
concerning labeling where the discrepancy with the safety standard was
determined not to lead to any misunderstanding, especially where
sources of the correct information were available (e.g. in the vehicle
owner's manual). See General Motors Corp.; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004).
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a standard is more substantial
and difficult to meet, and the Agency has not found many such
noncompliances to be inconsequential. Id.
Utilimaster first argues that the sliding doors are located in the
front of the vehicle, viewable to the driver, and that a small gap will
be apparent to the driver if a door is not fully latched. Moreover,
Utilimaster asserts that even if the driver does not notice the gap in
the door prior to driving the vehicle, as the vehicle begins to move
the door will slide open, alerting the driver.
FMVSS No. 206 requires that a sliding door system be equipped with
either (a) at least one primary door latch system, or (b) a door latch
system with a fully latched position and a door closure warning system.
Since the noncompliant vehicles are equipped with a door latch system
with a fully latched position (but not a primary door latch system), in
order to comply with FMVSS No. 206 the vehicles would also need to have
a door closure warning system. Such a system is automatic and does not
require the driver to make observations of the door. The subject
vehicles do not have such a system. Without a warning system, the
driver would have to look away from driving to see a door gap. The
Agency does not consider a door gap to be a sufficient alert to the
driver that the door is not fully latched.
The Notice of Proposed Rulemaking for the 2007 amendments to FMVSS
No. 206 explained the scope of the safety risks associated with the
ejection of vehicle occupants through vehicle doors. See Federal Motor
Vehicle Safety Standards; Door Locks and Door Retention Components and
Side Impact Protection, Notice of Proposed Rulemaking, 69 FR 75020,
75024-75025. The Agency noted that ``[d]oor ejections, due to non-
rollover door openings, account for 23 percent of the total non-
rollover ejections with known routes * * * [and of] those ejected
through a sliding door, each year approximately 20 people are killed
and 30 people are seriously injured, based on the 1995-2003 data from
NASS.'' Id. Based on this safety risk analysis, the Agency concluded
that ``this exposure is [not] acceptable when measures can be taken to
minimize the likelihood that a sliding door would open in a crash.'' 69
FR 75025. Accordingly, the Agency proposed the FMVSS No. 206 side
sliding door latch requirements to ``assure vehicle occupants that a
sliding door is completely closed.'' 69 FR 75026.
Utilimaster's arguments in support of its petition do not allay
these safety concerns. Utilimaster's petition acknowledges that the
vehicle driver may not notice the small gap in the door before the
vehicle begins to move. Moreover, having the door unexpectedly slide
open while the vehicle is driven can create a potential distraction to
the driver, especially considering any attempts by the driver to close
the door while the vehicle is in motion. In addition, accidents can
occur even at low speeds when a vehicle is accelerated into motion, and
may include impact with another vehicle including a vehicle moving at
higher speed. Therefore, in light of these safety risks, the Agency
finds that the door gap on the subject vehicles is not an acceptable
replacement for a door closure warning system.
Utilimaster also asserts that the subject vehicles are exclusively
commercial in application and that the drivers of these vehicles are
highly trained and must adhere to corporate-mandated safety practices.
Utilimaster asserts that the sliding door standards were ``particularly
concerned with children riding in the rear seats of passenger vans.''
The Agency believes that corporate operating policies and training do
not preclude driver error (inadvertent or otherwise), such as operating
the vehicle with the door left inadvertently open or not fastening an
occupant's safety belt. Although the Agency did note in the NPRM that
it was ``[a]dditionally * * * concerned that the individuals with the
greatest exposure to sliding door failures are children,'' 69 FR 75025,
the Agency never indicated that child passenger safety was the only
safety concern addressed by the standard. Moreover, while Utilimaster
states that the subject vehicles are driven primarily without a
passenger, Utilimaster's petition implicitly acknowledges that a
passenger may be present. In short, the Agency believes that there are
valid concerns that occupants of the subject vehicles are exposed to an
increased risk of accidents and injuries, particularly those associated
with occupant ejection, compared to occupants of compliant vehicles.
Utilimaster also states that it is not aware of a driver or
passenger of its vehicles ever having been ejected from or fallen
through an open sliding cab door while the vehicle was in motion.
However, the Agency is aware of at least one occupant ejection through
an open sliding side door of a commercial vehicle similar to those that
are the subject of this petition. A walk-in van-type delivery truck was
involved in an accident in 2009 at an intersection in Florida in which
the driver of the delivery truck was ejected through an open sliding
side door and sustained injuries. The delivery truck, after being
stopped at a stop sign, entered the intersection and struck the side of
a crossing vehicle causing the vehicles to become engaged and spin
together. The delivery truck driver, who was not wearing a safety belt,
was ejected into the roadway.\7\
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\7\ Florida Department of Highway Safety and Motor Vehicles;
HSMV Crash Report Number 90163273, dated January 6, 2009.
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Finally, Utilimaster asserts that the sliding doors on these
vehicles meet all load tests and inertial requirements of FMVSS No. 206
S4.2 and therefore, the noncompliance will not increase the risk of
occupant ejection under conditions addressed by such requirements. This
argument, however, is inapplicable to the issue at hand because these
standards do not address the performance of an unlatched door.
[[Page 47702]]
See, e.g. 49 CFR 571.206 S4.2.1.1(a), S4.2.1.2(a) and S4.2.1.3(a)
(discussing testing when the door latch is in the fully latched
position).
Decision: 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, Utilimaster's petition is hereby denied, and the
petitioner must notify owners, purchasers and dealers pursuant to 49
U.S.C. 30118 and provide a remedy in accordance with 49 U.S.C. 30120.
If Utilimaster believes that vehicles it will produce in the future
should not be subject to any currently applicable FMVSS No. 206
requirements, Utilimaster may consider petitioning the Agency for
rulemaking. The appropriate type of petition to request a change in a
rule is one filed under 49 CFR part 552 Petitions for Rulemaking,
Defect, and Non-Compliance Orders.
Authority: 49 U.S.C. 30118, 30120: delegations of authority at
CFR 1.50 and 501.8.
Issued on: August 2, 2012.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2012-19581 Filed 8-8-12; 8:45 am]
BILLING CODE 4910-59-P