Morgan 3 Wheeler Limited, Denial of Petition for Decision of Inconsequential Noncompliance |
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Topics: Morgan 3 Wheeler
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Gregory K. Rea
National Highway Traffic Safety Administration
12 April 2016
[Federal Register Volume 81, Number 70 (Tuesday, April 12, 2016)]
[Notices]
[Pages 21663-21666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08360]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2013-0101; Notice 2]
Morgan 3 Wheeler Limited, Denial of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
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SUMMARY: Morgan 3 Wheeler Limited (Morgan) has determined that certain
model year (MY) 2012 and 2013 Morgan model M3W three-wheeled
motorcycles do not comply with all of the requirements of Federal Motor
Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and
associated equipment. Specifically, the vehicles' headlamps are spaced
further apart than permitted, and do not have the required ``DOT''
marking. Morgan has petitioned for an exemption from the recall
notification and remedy requirements of 49 U.S.C. Chapter 301--``Motor
Vehicle Safety'' (Vehicle Safety Act) on the grounds that the
noncompliances are inconsequential to motor vehicle safety. This notice
announces and explains NHTSA's denial of Morgan's petition.
FOR FURTHER INFORMATION CONTACT: For further information on this
decision contact Mike Cole, Office of Vehicle Safety Compliance,
National Highway Traffic Safety Administration (NHTSA), telephone (202)
366-2334, facsimile (202) 366-5930.
SUPPLEMENTARY INFORMATION:
I. Overview: Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the
rule implementing those provisions at 49 CFR part 556, Morgan has
petitioned for an exemption from the notification and remedy
requirements of 49 U.S.C. Chapter 301 on the basis that the
noncompliances are inconsequential to motor vehicle safety.
Notice of receipt of the petition was published, with a 30-day
public comment period, on December 9, 2013 in the Federal Register (78
FR 73920). One comment was received from Peter C. Larsen of Liberty
Motors, LLC. To view the petition and all supporting documents log onto
the Federal Docket Management System Web site at: http://www.regulations.gov/. Follow the online search instructions to locate
docket number ``NHTSA-2013-0101.''
II. Vehicles involved: Approximately 150 MY 2012 and 2013 Morgan
model M3W three-wheeled motorcycles manufactured from August 1, 2012 to
August 14, 2013 (subject vehicles) are affected.
III. Noncompliances: Morgan's petition concerns two requirements in
FMVSS No. 108.\1\ Both noncompliances involve the vehicles' headlights.
Morgan states that the noncompliances are a result of a configuration
error in its production line. The first noncompliance involves the
spacing between the headlights. Paragraph S10.17.1.2.2 of FMVSS No. 108
specifies that if motorcycle headlamps are horizontally disposed about
the vertical centerline, the distance between the closest edges of
their effective projected luminous lens areas must not be greater than
200 mm.\2\ Morgan states in its petition that the subject motorcycles
do not comply with this requirement because they are equipped with dual
horizontally-mounted headlamps mounted 29 inches (737 mm) apart (lens
edge to lens edge).
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\1\ 49 CFR 571.108.
\2\ In a December 2007 final rule, NHTSA rewrote and reorganized
FMVSS No. 108 to provide a more straightforward and logical
presentation of the regulatory requirements. 72 FR 68234, Dec. 4,
2007. Those amendments became effective on December 1, 2012. 74 FR
58214, Nov. 12, 2009. The rewrite was not intended to make any
substantive changes to the standard. The subject vehicle population
includes vehicles manufactured both before and after this effective
date. Prior to the effective date of the reorganized standard, the
headlight spacing requirement was contained in S7.9.6.2(b).
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The second noncompliance concerns the lack of a required marking on
the headlamps. Paragraph S6.5.1 of FMVSS No. 108 requires that the lens
of each original equipment and replacement headlamp be marked with the
symbol ``DOT,'' either horizontally or vertically, to indicate
certification under 49 U.S.C. 30115.\3\ Morgan states in its petition
that the subject vehicles do not include this marking.
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\3\ This provision was located at S7.2(a) in the pre-rewrite
version of FMVSS No. 108.
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IV. Rule Text: Paragraphs S7.9.6.2(b) and S10.17.1.2.2 of FMVSS No.
108 require in pertinent part:
Paragraph S7.9.6.2(b) (applies only to the subject vehicles
manufactured before December 1, 2012).
If the system consists of two headlamps, each of which provides
both an upper and lower beam, the headlamps shall be mounted either
at the same height and symmetrically disposed about the vertical
centerline or mounted on the vertical centerline. If the headlamps
are horizontally disposed about the vertical centerline, the
distance between the closest edges of their effective projected
luminous lens areas shall not be greater than 200 mm (8 in.).
Paragraph S10.17.1.2.2 (applies only to the subject vehicles
manufactured after December 1, 2012).
If the headlamps are horizontally disposed about the vertical
centerline, the distance between the closest edges of their
effective projected luminous lens areas must not be greater than 200
mm.
V. Summary of Morgan's Petition and Comments: Morgan petitions for
relief from the recall provisions of the Vehicle Safety Act with
respect to both of these noncompliances. Morgan makes several arguments
to support its assertion that these noncompliances are inconsequential
to motor vehicle safety.
With respect to the headlamp spacing noncompliance, Morgan contends
that
[[Page 21664]]
the headlamps meet the ``technical requirements'' of FMVSS No. 108.
Morgan also states that it does not believe that this noncompliance
will increase the safety risk to vehicle occupants or approaching
drivers. Morgan argues that the current horizontal spacing of 29 inches
(737 mm) is in the best interests of road safety, because if the M3W
complied with the existing motorcycle head lamp spacing requirement,
other road users would not have an accurate indication of the width of
an oncoming M3W. Morgan also argues that NHTSA has previously found a
lighting separation noncompliance to be inconsequential.\4\
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\4\ See 64 FR 28864, May 27, 1999.
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Morgan contends that the lens marking noncompliance is
inconsequential to motor vehicle safety because the lamps meet the
substantive requirements of FMVSS No. 108. Morgan also states that
owners of Morgan vehicles almost exclusively go to Morgan dealers for
replacement parts; the agency assumes that Morgan is implying that
because the vehicle owner is likely to obtain a replacement part
directly from a dealer, the owner can be confident that the headlamp
complies with all applicable requirements, even though it lacks the
proper ``DOT'' marking.
With respect to both noncompliances, Morgan asserts, based on its
reading of previous inconsequentiality petition grants by NHTSA, that
its noncompliances should be found to be inconsequential because the
M3W is an exotic vehicle with no roof or doors, produced in very low
numbers, driven a low number of miles, and likely to be operated on a
limited basis, as opposed to an ordinary passenger automobile designed
to be used as a family's primary passenger vehicle. Morgan also states
that there have been no reports of any safety issues or injuries
related to the subject noncompliances. NHTSA received one comment on
Morgan's petition from Peter Larsen. Mr. Larsen makes several arguments
in support of Morgan's petition. First, Mr. Larsen asserts that a
NHTSA-published guidebook on motorcycle requirements does not contain
the 200 mm spacing requirement. Second, Mr. Larsen argues that when
NHTSA promulgated this requirement it did not contemplate three-wheeled
vehicles with the frontal aspect of a small automobile, for which
headlights spaced more than 200 mm apart help to indicate the size and
shape of the vehicle. Accordingly, Mr. Larsen contends that the 200 mm
requirement, as applied to the subject vehicles, is not in the interest
of safety. Third, Mr. Larsen suggests that if the subject vehicles are
remedied so that the dual headlights are replaced with a compliant
center headlight, owners and dealers of the subject vehicles would
likely remove the single center light and replace it with the dual,
widely-spaced lights; and that a recall or design revision, Mr. Larsen
asserts, would ``criminalize'' these actions. Finally, Mr. Larsen
argues that many existing three-wheeled vehicles have similarly-spaced
dual headlights, and it would be unjust to penalize Morgan's similar
design. Mr. Larsen requests that NHTSA ``properly amend'' FMVSS No.
108.
NHTSA's Decision
General Principles: Federal motor vehicle safety standards are
adopted only after the agency has determined, following notice and
comment, that the performance requirements are objective, practicable,
and meet the need for motor vehicle safety.\5\ There is a general
presumption that the failure of a motor vehicle or item of motor
vehicle equipment to comply with an FMVSS increases the risk to motor
vehicle safety beyond the level determined 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 conduct a safety recall under which they must notify
owners, purchasers, and dealers of the noncompliance and provide a
remedy without charge.\6\
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\5\ 49 U.S.C. 30111(a).
\6\ 49 U.S.C. 30118-30120.
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Congress has, however, recognized that under some limited
circumstances a noncompliance may be ``inconsequential'' to motor
vehicle safety. Neither NHTSA's statute nor its regulations define
``inconsequential.'' NHTSA determines whether a particular
noncompliance is inconsequential to motor vehicle safety based on the
specific facts before the agency. The key issue in evaluating an
inconsequentiality petition is whether the noncompliance is likely to
increase the safety risk to individuals who experience the type of
injurious event against which the standard was designed to protect.\7\
The agency is not aware of any prior inconsequentiality petitions
concerning either of the two requirements that are the subject of
Morgan's petition.
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\7\ General Motors Corp., Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, Apr. 14, 2004.
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NHTSA's analysis: The agency has determined that Morgan has not met
its burden of persuasion that the noncompliances are inconsequential to
safety. The agency is therefore denying Morgan's petition with respect
to both noncompliances. The agency's reasons for the denial are
discussed below.
NHTSA is not persuaded by the arguments of Morgan or Mr. Larsen
regarding the noncompliance with the headlamp spacing requirement in
S10.17.1.2.2. Morgan's assertion that the subject vehicles meet the
``technical requirements'' of FMVSS No. 108 is inaccurate because the
distance requirement for headlamp configuration is clearly stated in
the regulation as one of the requirements for compliance.\8\ Morgan
acknowledges in its Part 573 defect notification report that the
headlamps on the subject vehicles do not comply with this requirement.
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\8\ S10.17.1.2.2.
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The agency is also not persuaded by Morgan and Mr. Larsen's
arguments that the noncompliance not only does not increase the safety
risk, but is, in fact, safety-enhancing, because the wider-spaced
headlamps convey a more accurate impression of the vehicle's width to
other motorists. An inconsequentiality petition is not the appropriate
means to challenge the basis or appropriateness of a requirement
specified in an FMVSS. The appropriate venue for such an argument is a
petition for rulemaking to amend the current safety standard.
Nevertheless, neither Morgan nor Mr. Larsen have offered persuasive
evidence that either the standard or market conditions have changed to
undermine the basis for the spacing limitation. The 200 mm maximum
spacing requirement was added to the standard in 1998 in response to a
petition for rulemaking. In the preamble to the final rule, NHTSA
explained the rationale for the motorcycle headlight requirements:
``[A]t the time that the motorcycle headlight requirements in Standard
No. 108 were originally issued, the predominant concern was that the
headlighting system clearly identify a motorcycle as such when the
vehicle was being operated at night.'' \9\ The wider space between the
headlamps on the subject vehicles could impair the ability of other
motorists to identify the subject vehicle as a motorcycle. Such
identification is important because motorists may be more alert or
alter their driving in response to the presence of a motorcycle, since
motorcycles are smaller, less enclosed, and less stable than passenger
cars and other motor vehicles.\10\ Even if the Morgan vehicle's
[[Page 21665]]
front end is wider than that of a typical two-wheeled motorcycle, the
vehicle is still smaller, less enclosed, and less stable than passenger
cars and other motor vehicles with which it shares the road. In
addition, to further distinguish motorcycles from larger vehicles,
NHTSA's regulations also allow modulation of motorcycle headlamp
intensity to provide increased conspicuity.\11\ If the subject Morgan
motorcycles were equipped with modulators on its headlamps, the wide
spacing of the headlamps could be perceived by other drivers as an
emergency or police vehicle. If Morgan believed that lighting
indicating the width of the vehicle would enhance the safety of the
vehicle, Morgan could have accomplished this by adding supplemental
lighting to the vehicle (e.g., parking lamps), keeping in mind that
supplemental lighting may not impair the effectiveness of required
lighting equipment.\12\ We also note that the space between the
headlamps is less than the wheel-to-wheel width of the vehicle, so the
existing headlights do not accurately indicate the actual width of the
vehicle.
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\9\ 63 FR 42582, 42582, Aug. 10, 1998.
\10\ The noncompliance is also not de minimis. The headlamps on
the subject vehicles are 29 inches apart, while the maximum spacing
permitted by the standard is 200 mm (7.9 in).
\11\ S10.17.5.
\12\ S6.2.1.
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Similarly, Mr. Larsen asserts that when NHTSA promulgated this
headlamp spacing regulation it did not contemplate three-wheeled
vehicles such as the subject vehicles, which, he states, display the
frontal aspect of a small automobile. The initial Federal Motor Vehicle
Safety Standards, published in 1967, defined a ``motorcycle'' as ``a
motor vehicle with motive power having a seat or saddle for the use of
the rider and designed to travel on not more than three wheels in
contact with the ground.'' \13\ This definition, which is in effect
today,\14\ clearly includes the subject vehicles. While the M3W may be
an unusual design, the vehicle configuration is unequivocally a
motorcycle; as Mr. Larsen notes in his comment, ``the Morgan 3 Wheeler
follows the classic lighting scheme.'' Again, as we noted above, a
petition for rulemaking, not an inconsequentiality petition, is the
proper mechanism if Morgan or Mr. Larsen believes that the existing
requirement is not appropriate for the subject vehicles.\15\
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\13\ 32 FR 2408, 2409, Feb. 3, 1967.
\14\ 49 CFR 571.3.
\15\ We note that subsequent to filing the present
inconsequentiality petition, Morgan did file a petition for
rulemaking on this issue. The agency is currently evaluating this
petition.
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Morgan also cites, in support of its petition, a prior agency
decision granting a General Motors inconsequentiality petition.\16\
That inconsequentiality petition concerned a noncompliance with a
minimum required separation distance between a daytime running lamp
(DRL) and a front turn signal. The purpose of that spacing requirement
is to prevent masking of the turn signal lamp by the DRLs. The agency
found that masking would not be an issue in that case because those
vehicles incorporated front turn signals that were five times the
required minimum area and four times brighter than the minimum required
photometry. NHTSA went on to state that its research showed that high
turn signal intensity was very important to prevent masking. Because
the requirements at issue in the General Motors petition are intended
to address a fundamentally different safety issue than the requirement
from which Morgan is seeking a grant of inconsequential noncompliance,
we do not find the General Motors petition to be relevant for our
consideration of Morgan's petition; as discussed above, we believe that
the greater than allowed distance between the headlamps might hinder
other motorists from identifying the subject vehicles as motorcycles.
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\16\ 64 FR 28864, May 27, 1999.
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Mr. Larsen also states that he developed a motorcycle on which the
subject vehicle is based, and states that the headlamp location was
configured as described in NHTSA's published guidebook entitled
``Requirements of Motorcycle Manufacturers.'' Mr. Larsen did not
further identify this guide, but he appears to refer to the NHTSA guide
entitled ``Requirements for Motorcycle Manufacturers,'' published in
February 2000.\17\ This guide states that it ``merely highlights the
major requirements for manufacturers; each manufacturer should consult
the specific statutes, regulations, and standards to determine its
responsibilities.'' \18\ The lighting standard (FMVSS No. 108) contains
many motorcycle lighting requirements in addition to the limited subset
of requirements that are summarized in Table IV of the NHTSA guide.
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\17\ Available at http://www.nhtsa.gov/Laws+&+Regulations/Manufacturer+Info/Requirements+for+Motorcycle+Manufacturers.
\18\ Id. at pages 3 and 4.
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Mr. Larsen also suggests that if NHTSA were to deny Morgan's
petition, it would ``criminalize'' owners and dealers of the subject
vehicles (who, he asserts, will likely replace a single center light
and replace it with dual, widely-spaced lights). This is incorrect.
Today's denial requires Morgan to notify owners of the subject vehicles
of the noncompliance and to remedy the noncompliance if and when a
vehicle owner presents a vehicle for repair. Neither NHTSA's denial nor
the recall and remedy requirements impose any obligations on vehicle
owners. Today's denial simply ensures that vehicle owners will be
notified of the noncompliance and will have the opportunity to have
their vehicle remedied, if the vehicle owner so chooses.\19\
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\19\ NHTSA encourages vehicle owners to have recalled vehicles
promptly remedied. We also note the statutory prohibition on making
required safety elements inoperative. 49 U.S.C. 30122. This
prohibition, however, applies only to manufacturers, distributors,
dealers, and motor vehicle repair businesses. Sec. 30122. It does
not apply to individual vehicle owners. See Letter from NHTSA Chief
Counsel Frank Seales, Jr. to Hamsar Diversco Inc., Jan. 22, 1999,
available at http://isearch.nhtsa.gov/search.htm.
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Finally, the agency is not persuaded by Mr. Larsen's argument that
it would be unjust to ``suddenly penalize'' and require Morgan to
recall the subject vehicles because, he asserts, there are many three-
wheeled vehicles with wide-spaced dual headlights similar to the
subject vehicles. The spacing regulation at issue has been in effect
since 1998. Moreover, it does not apply to all three-wheeled
motorcycles currently on the road. It applies to vehicles manufactured
or imported into the United States after the effective date of the 1998
final rule. Accordingly, it does not apply, for example, to vintage
vehicles that were manufactured before the effective date of the final
rule.
Regarding the ``DOT'' marking requirement, the agency is also not
persuaded by Morgan's arguments. In the past, NHTSA has granted
inconsequentiality petitions for lighting components that did not have
certain required markings.\20\ As we noted earlier, however, we are not
aware of any prior inconsequentiality petitions concerning the ``DOT''
marking requirement at issue in Morgan's petition. We are not persuaded
that the absence of the ``DOT'' mark is inconsequential to motor
vehicle safety in this case. The ``DOT'' mark on a headlamp indicates
that the lamp manufacturer has certified the lamp as conforming to all
applicable requirements. Morgan has provided no information or data to
demonstrate that the headlamps otherwise comply with the requirements
of FMVSS No. 108. Morgan asserts that the lamps meet the
[[Page 21666]]
``substantive'' requirements of FMVSS No. 108, but has provided no
information as to which requirements it considers ``substantive'' and
which it does not. Morgan has submitted no compliance testing data or
information showing that the lamps comply with all relevant
requirements. Without such information and data, and without a ``DOT''
mark on the headlamp to imply that such information and data exist, the
agency is unable to conclude that the lack of the ``DOT'' mark is the
only noncompliant aspect of the headlamps.
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\20\ See, e.g., 78 FR 22943, Apr. 17, 2013 (grant of
inconsequentiality petition from Osram Sylvania Products, Inc. for
noncompliance with the light source marking requirements of FMVSS
No. 108 S7.7.).
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In addition to the arguments addressed above, the agency is also
not persuaded by two additional arguments Morgan makes for why it
believes NHTSA should grant the petition with respect to both
noncompliances. First, Morgan argues that its petition should be
granted because the subject vehicle is an exotic vehicle produced in
very low numbers and likely to be operated on a limited basis, as
opposed to a passenger automobile designed to be used as a family's
primary passenger vehicle. In support of this argument, Morgan cites
two previous agency decisions granting inconsequentiality
petitions.\21\ Both petitions concerned noncompliances with automatic
restraint requirements in FMVSS No. 208. The agency's decisions in
those situations were based on the fact that it had already granted
temporary exemption petitions from both manufacturers for the vehicle
models at issue in those inconsequentiality petitions. The agency has
not previously granted Morgan a temporary exemption for the
noncompliances at issue in the present petition. Moreover, the
``vehicle attributes'' that Morgan implies those grants were based on--
that the vehicles were exotic vehicles likely operated on a limited
basis--were simply arguments made by the petitioners in those cases,
and not, as Morgan's petition implies, the basis for the agency's
decision. NHTSA expects manufacturers to fulfill their duties and
responsibilities to provide vehicles that meet all safety standards
regardless of production volume or estimated consumer use.
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\21\ 60 FR 27593, May 24, 1995 (grant of inconsequentiality
petition from Excalibur Automobile Corp.); 61 FR 9517, Mar. 8, 1996
(grant of inconsequentiality petition from Cantab Motors, Ltd.).
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Second, Morgan states that there have been no reports of any safety
issues or injuries related to the subject noncompliances. NHTSA does
not consider the absence of complaints to show that the noncompliances
are inconsequential to safety. The subject vehicle population is small,
so the lack of reports or complaints may not be surprising. Further,
vehicle lighting functions as a signal to other motorists and
pedestrians; if other motorists found the noncompliant lighting
confusing, it is unlikely that those motorists would have been able to
identify the subject vehicle and make a complaint to either NHTSA or
Morgan. 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.
Finally, the agency observes that although Morgan's Part 573 report
and inconsequentiality petition only concern the headlamp spacing and
headlamp marking noncompliances, the subject vehicles may also fail to
comply with other applicable FMVSSs. For example, a motorcycle headlamp
that incorporates a replaceable light source that does not comply with
FMVSS No. 108, paragraph S11 (e.g., an H4 light source which is only
permitted on motorcycle specific headlamps) is also required to have
the headlamp lens permanently marked ``motorcycle.'' This marking may
not have appeared on the headlamps of one of the subject vehicles the
agency observed.
Morgan's proposed remedy: Morgan proposes to add a single FMVSS No.
108 compliant headlamp on the M3W's vertical centerline and have the
original, noncompliant headlamps remain as separately switched
auxiliary lamps. Paragraph S6.2.1 of FMVSS No. 108 requires that any
additional lighting elements (i.e., lighting elements that are not
required by the standard) installed on a vehicle must not impair the
effectiveness of lighting equipment required by the standard. A
motorcycle equipped with both a compliant single headlighting system
and an auxiliary (supplemental) dual-headlamp system might be
prohibited by the impairment provision. The proximity of the auxiliary
lamps to the required front turn signal lamps might also raise
impairment concerns. We strongly encourage Morgan to review the
standard to ensure that its remedy does indeed comply with all
applicable requirements.
NHTSA's Decision: After carefully considering the arguments
presented on this matter, NHTSA finds that the petitioner has not met
its burden of persuasion in establishing that the described
noncompliances in the subject vehicles are inconsequential to motor
vehicle safety. Accordingly, Morgan's petition is hereby denied, and
Morgan must notify owners, purchasers and dealers pursuant to 49 U.S.C.
30118 and provide a free remedy in accordance with 49 U.S.C. 30120.
Authority: 49 U.S.C. 30118, 30120: delegations of authority at
49 CFR 1.95 and 501.8.
Gregory K. Rea,
Associate Administrator for Enforcement.
[FR Doc. 2016-08360 Filed 4-11-16; 8:45 am]
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