Morgan Olson, LLC, Denial of Petition for Decision of Inconsequential Noncompliance |
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Topics: Morgan Olson
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Nancy Lummen Lewis
National Highway Traffic Safety Administration
September 13, 2012
[Federal Register Volume 77, Number 178 (Thursday, September 13, 2012)]
[Notices]
[Pages 56701-56703]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-22547]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2012-0028; Notice 2]
Morgan Olson, LLC, 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: Morgan Olson, LLC (Morgan Olson),\1\ has determined that
certain model year 2009, 2010, and 2011 Morgan Olson walk-in van-type
trucks having a gross vehicle weight rating (GVWR) over 4,536 kg and
manufactured between September 1, 2009, and January 18, 2012, do not
fully comply with paragraph S4.2.1 of Federal Motor Vehicle Safety
Standard (FMVSS) No. 206, Door Locks and Door Retention Components.
Morgan Olson has filed an appropriate report dated January 19, 2012,
pursuant to 49 CFR Part 573, Defect and Noncompliance Responsibility
and Reports.
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\1\ Morgan Olson 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, Morgan Olson 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 March
29, 2012, in the Federal Register (77 FR 19055). No comments were
received. To view the petition 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-2012-0028.''
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.''
Vehicles involved: Affected are approximately 6430 Morgan Olson
model year 2009, 2010, and 2011 walk-in van-type trucks.
Noncompliance: Morgan Olson states that the affected vehicles do
not contain a primary door latch system or door closure warning system
as prescribed by paragraph S4.2.1 of FMVSS No. 206.
Summary of Morgan Olson's Analysis and Arguments: By way of
background, 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 Morgan Olson's noncompliance report, as a result of
an erroneous interpretation as to the scope of FMVSS No. 206's
application, Morgan Olson mistakenly believed that the requirement for
either a primary door latch system or door closure warning system
applied only to its vehicles having a GVWR under 4,536 kg.
In describing the operation of the affected doors Morgan Olson
explains that when the sliding door is closed but not latched, there is
a \1/2\ inch gap between the door and its frame. Morgan Olson states
that therefore, the rubber seal in the door jam as well as the exterior
paint are clearly visible. Morgan Olson further states that when the
door is latched, none of this is visible. Morgan Olson also explains
that its customers are mostly delivery companies whose drivers are
trained commercial drivers, and that a trained commercial driver, such
as one driving
[[Page 56702]]
a walk-in van manufactured by Morgan Olson, would immediately notice
this gap and realize that the door is not latched. Morgan Olson also
asserts that even if the driver did not notice that the door was not
latched by means of observing the \1/2\ inch gap, the door would slowly
begin to slide open as the vehicle began to accelerate, which a driver
would certainly notice. Morgan Olson contends that if the sliding door
is not latched, this would be apparent to the driver as soon as he
accelerates.
In addition, Morgan Olson argues that this noncompliance in walk-in
van type vehicles is distinguishable from the primary focus of FMVSS
No. 206 sliding door standards. Morgan Olson states that in adopting
the standards, NHTSA noted a particular concern with sliding door
failures in passenger vans, which often contain children in the back
seat(s).\2\ Morgan Olson explains that with passenger vans, the sliding
doors are situated behind the driver and therefore out of the driver's
line of sight, and that this is not true for the subject trucks that
are used for commercial purposes and driven by commercial drivers
without passengers.
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\2\ Federal Motor Vehicle Safety Standards; Door Locks and Door
Retention Components, Final Rule, 72 FR 5385, 5387 (Feb. 6, 2007).
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In summary, Morgan Olson 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, no comments were received. The Agency notes that an absence of
opposing argument and data does not require the Agency to grant the
petition.\3\
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\3\ 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 Morgan Olson'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 a FMVSS are
normally required to 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 substantially
higher and more difficult to meet. Consequently, the Agency has
determined that only a few such noncompliances are truly
inconsequential. Id.
In their petition, Morgan Olson argues that when the sliding doors
are closed but not latched, there is a small (\1/2\ inch) gap between
the door and the frame. Moreover, Morgan Olson 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 and
alert the driver. Morgan Olson further states that with passenger vans,
the sliding doors are situated behind the driver and out of their line
of sight and that this is not the case with commercial drivers who will
be immediately able to see either a gap or the door sliding open if it
is not latched.
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.
Morgan Olson's arguments in support of its petition do not allay
these safety concerns. Morgan Olson'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
[[Page 56703]]
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.
Morgan Olson also asserts that the sliding door standards were
``particularly concerned with children riding in the rear seats of
passenger vans.'' 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. In short, the Agency believes that
there are valid concerns that occupants other than children 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.
In addition, 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.\4\
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\4\ Florida Department of Highway Safety and Motor Vehicles;
HSMV Crash Report Number 90163273, dated January 6, 2009.
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As noted earlier, the subject noncompliance was the result of
Morgan Olson's previous misunderstanding that the requirement for
either a primary door latch system or door closure warning system
applied only to its vehicles having a GVWR under 4,536 kg.
Applicability of the standard to vehicles Over 4,536 kg GVWR was
addressed by the Agency in response to the Final Rule, Petitions for
Reconsideration (see 75 FR 7370). In response to a question from
TriMark Corporation dealing with applicability of the standard to Class
\7/8\ heavy trucks in excess of a GVWR of 4,536 kg (10,000 lb), the
Agency stated ``Regarding Class \7/8\ heavy trucks, these vehicles fall
under the definition of truck as defined in 49 CFR 571.3. FMVSS No. 206
applied to trucks, regardless of their GVWR, prior to the February 2007
final rule, as does the amended FMVSS No. 206. S2 of amended FMVSS No.
206 states that the standard applies to ``passenger cars, multipurpose
passenger vehicles, and trucks, and buses with a gross vehicle weight
rating (GVWR) of 4,536 kg or less'' (emphasis added). In other words,
the February 2007 final rule applies to all passenger cars,
multipurpose passenger vehicles, and trucks, regardless of their GVWR,
and is also applicable to buses with a GVWR of 4,536 kg (10,000 lb) or
less.'' \5\
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\5\ 75 FR 7378.
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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, Morgan Olson'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 Morgan Olson believes that vehicles it will produce in the
future should not be subject to any currently applicable FMVSS No. 206
requirements, Morgan Olson 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: September 6, 2012.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2012-22547 Filed 9-12-12; 8:45 am]
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