Ride the Ducks International, LLC, Denial of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Joseph Kolly Date: 21 October 2021 Subject: American Government , Safety Topics: Ride the Ducks

[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58384-58387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22972]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2017-0035; Notice 2]


Ride the Ducks International, LLC, 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: Ride the Ducks International, LLC (RTDI), has determined that 
certain model year (MY) 1996-2014 Ride the Ducks International Stretch 
Amphibious passenger vehicles (APVs) do not fully comply with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 103, Windshield Defrosting 
and Defogging Systems. RTDI filed a noncompliance information report 
dated March 15, 2017. RTDI also petitioned NHTSA on April 12, 2017, for 
a decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety.

ADDRESSES: Neil Dold, Office of Vehicle Safety Compliance, NHTSA, 
telephone: (202) 366-7352, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION:

I. Overview

    RTDI has determined that certain MY 1996-2014 Ride the Ducks 
International Stretch APVs do not fully comply with paragraph S4.1 of 
Federal Motor Vehicle Safety Standard (FMVSS) No. 103, Windshield 
Defrosting and Defogging Systems (49 CFR 571.103). RTDI filed a 
noncompliance information report dated March 15, 2017, pursuant to 49 
CFR 573, Defect and Noncompliance Responsibility and Reports. RTDI also 
petitioned NHTSA on April 12, 2017, pursuant to 49 U.S.C. 30118(d) and 
30120(h) and 49 CFR part 556, for an exemption from the notification 
and remedy requirements of 49 U.S.C. chapter 301 on the basis that this 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Notice of receipt of RTDI's petition was published in the Federal 
Register

[[Page 58385]]

(82 FR 38992) with a 30-day public comment period, on August 16, 2017. 
No comments were received. To view the petition and all supporting 
documents log onto the Federal Docket Management System (FDMS) website 
at: http://www.regulations.gov/. Then follow the online search 
instructions to locate docket number ``NHTSA-2017-0035.''

II. Vehicles Involved

    Approximately 105 MY 1996-2014 RTDI Stretch APVs, manufactured 
between January 1, 1996 and December 31, 2014 are potentially involved.

III. Noncompliance

    RTDI explained that the noncompliance is that the subject vehicles 
were manufactured without a windshield defrosting and defogging system, 
as required by paragraph S4.1 of FMVSS No. 103.

IV. Rule Requirements

    Paragraph S4.1 of FMVSS No. 103 includes the requirements relevant 
to this petition. Each vehicle shall have a windshield defrosting and 
defogging system.

V. Summary of RTDI's Petition

    As background, in 1996, RTDI began to produce APVs by performing 
extensive modifications to General Motors amphibious military trucks 
originally designated as DUKWs. The ability of the DUKW to transport 
troops, supplies or equipment across both land and water made them 
indispensable in World War II and the Korean War. The modifications 
performed by RTDI, which included replacement of the original 
drivetrain and enlarging the hull or body, were such that the end 
product was a newly manufactured vehicle employing donor parts. The 
original APVs are based on military vehicles that were capable of 
operation over both land and water. The resulting ``Stretch Duck'' APVs 
were manufactured by RTDI until 2005 when RTDI introduced its ``Truck 
Duck'' APVs. The Truck Duck APVs are based on military cargo vehicles. 
Both the Stretch Duck and Truck Ducks were manufactured in in 
accordance with state and U.S. Coast Guard rules and regulations. RTDI 
has not manufactured any vehicles since 2014.
    RTDI 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, RTDI submitted the following reasoning:
    1. FMVSS No. 103 specifies that ``[e]ach vehicle shall have a 
windshield defrosting and defogging system.'' 49 CFR 571.103, S4(a), 
S4.1. The purpose of FMVSS No. 103 is to establish minimum performance 
requirements for vehicle windshield defrosting and defogging systems in 
order to ensure that the vehicle operator is able to sufficiently see 
through the windshield.
    The APVs have features that are designed to achieve the same 
purpose as the standard. The APVs' ``open-air'' design precludes fog 
from building up on the windshield. Fog buildup on the interior or 
exterior of a motor vehicle windshield occurs when water condenses on 
the windshield. For water to condense on a windshield, the air next to 
the windshield must be humid and the air's dew point--the temperature 
to which air must be cooled to become saturated with water vapor--must 
be higher than the windshield's temperature. In other words, humid and 
warm air must surround a cool windshield. Because of its open-air 
design, the APVs will not encounter any of the physical conditions that 
create fog buildup on the windshield. The APVs do not have solid glass 
windows in the passenger compartment and the rear of the vehicle is 
also open to the air. The side panels of the driver's compartment are 
open on both sides of the windshield and the center windshield can be 
pushed outward and opened when needed. Because of the APVs' design, the 
ambient air is able to continually circulate within the interior of the 
vehicle, creating no difference between the temperature or humidity of 
the air outside and inside the vehicle. In the unlikely event that fog 
did accumulate on the windshield, the APVs have windshield wipers to 
clear the surface and the vehicle operator can also push down the 
windshield for visibility.
    2. Frost builds up on the windshield of a vehicle when the 
temperature of liquid or condensation on the windshield decreases to 
the freezing point of water, turning the condensation into frost. The 
APVs' lack of a defrosting system similarly does not present a safety 
concern. The APVs are only operated on a seasonal basis and not during 
the winter months in any location where the vehicles provide tours. The 
APVs, therefore, are not operated during or exposed to weather 
conditions that would expose the vehicles to frost or create the need 
to defrost the windshields. As above, the operator also has the ability 
to push down the center windshield or use the windshield wipers to 
increase visibility in the unlikely event of frost.
    3. From its inception, the Safety Act has included a provision 
recognizing that some noncompliances may pose little or no actual 
safety risk. The Safety Act exempts manufacturers from their statutory 
obligation to provide notice and remedy upon a determination by NHTSA 
that a noncompliance is inconsequential to motor vehicle safety. See 49 
U.S.C. 30118(d). In applying this recognition to particular fact 
situations, the agency considers whether the noncompliance gives rise 
to ``a significantly greater risk than . . . in a compliant vehicle.'' 
69 FR 19897, 19900 (April 14, 2000). As described above, the 
specialized design of the APVs and the vehicles' pattern of use does 
not expose the vehicles to conditions that could create an increased 
safety risk when compared to a vehicle that has a windshield defrosting 
and defogging system installed.
    RTDI concluded by expressing the belief 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. Supplemental Information

    On October 10, 2017, RTDI, per a request from NHTSA's Office of 
Chief Counsel, provided the following supplemental information:
    Regarding FMVSS No. 103, RTDI asserted that:
    1. The subject vehicles are equipped with heaters but not air 
conditioning. There are two types of heating systems used, depending on 
the type of vehicle.
    a. For ``Stretch Duck'' APVs, heaters are located at the base of 
the passenger compartment side walls, with one heater located on each 
side. The heaters run lengthwise, from the front to the back of the 
vehicle's interior compartment. The heaters are radiant type heaters 
that utilize coils that are plumbed into the engine's water coolant 
system. Small blowers are located at one end of each heater box that 
force the radiant heat towards the passenger seated next to the exhaust 
vents.
    b. The ``Truck Duck'' APVs use heaters with a similar design 
(plumbed into the engine's coolant system), however, there are two 
smaller heaters with larger blowers. These heaters are located under 
the left and right centermost passenger seats.
    2. Due to the excessive ventilation of the passenger space (even 
when curtains are down) when the heaters are operational, they are not 
capable of maintaining an increased ambient temperature within the 
passenger space. Frost and fog cannot build on the

[[Page 58386]]

surface of the vehicle windshield without a difference between the 
ambient temperature in the passenger compartment and the outside air.
    3. The interior space of the vehicle is under constant ventilation 
due to the configuration of the engine's reverse radiator fan, the 
various canopy openings, and the passenger deck design. The APVs are 
considered an ``open boat'' design under the U.S. Coast Guard 
regulations. Per the regulations, the deck of an open boat must be 
capable of draining any accumulation of water directly to the bilge 
pumps which are located below the deck. See 46 CFR 178.440. 
Additionally, U.S. Coast Guard regulations require spaces containing 
machinery powered by fuel to have ventilation. See 46 CFR 182.460. To 
comply with this regulation, the engines reverse radiator fan 
continuously draws air through the vessel's deck and ventilation piping 
towards the radiator. The engine's radiator fan exhausts the air 
through the vehicle exterior side vents located adjacent to the driver 
station.
    4. RTDI claimed that the design of the APVs and the vehicles' use 
pattern precludes the accumulation of frost and fog on the windshield. 
RTDI asserted that this is consistent with the on-road experience of 
the APVs. Generally, the vehicles do not operate during the cold 
weather. In the event that fog or frost did accumulate on the front 
windshield, the driver would be able to quickly and easily lower the 
windshield. RTDI has established operational safety guidelines for the 
use of the drivers open/close feature. RTDI's guidelines states that an 
operator should not open the windshield ``unless the visibility through 
the windshield becomes obstructed, the opening and closing of the front 
windshield should only take place when the vehicle is traveling at a 
slow rate of speed (i.e., slow-moving traffic conditions) and/or when 
the vehicle comes to a complete stop.''
    5. The vehicles are equipped with clear PVC soft side curtains that 
can be lowered and raised by the driver. The side curtains' operational 
controls are located on the driver's dash and are operated by using two 
momentary switches (one switch operates the left side curtain and the 
second switch operates the right side curtain). When the operator holds 
the switch down the curtains will lower and when the switch is held up 
the curtain will raise. The curtains have limit switches that 
automatically stop the curtains once they reach a height of not less 
than 32. This height restriction is consistent with U.S. 
Coast Guard requirements for means of escape which provides the 
``minimum clear opening must be not less than 32 inches.'' 46 CFR 
116.500. As a safety precaution, RTDI installed red markers on the 
canopy uprights to provide the APV operator with a visual means to 
ensure the limit switches are properly set and have reached the 32'' 
placement. Additionally, the U.S. Coast Guard inspects and tests the 
curtain safety feature annually.
    6. The curtains are generally lowered due to inclement weather 
conditions. It takes the driver less than 30 seconds to lower the 
curtains. The side curtains do not enclose the entire passenger's 
space; only the left and right sides of the passenger compartment are 
enclosed by the side curtains. In the event of an emergency, the driver 
can deploy the side curtains from the driver's station to allow for 
quick egress. Passengers are also able to lift and push curtains out in 
the event of an emergency.

VII. NHTSA's Analysis

    NHTSA has considered RTDI's arguments and has determined that RTDI 
has not met its burden of demonstrating that the subject noncompliance 
is inconsequential. The Agency responds to RTDI's arguments below.
    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 upon NHTSA's prior decisions on noncompliance issues was 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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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions 
based on the assertion that only a small percentage of vehicles or 
items of equipment are likely to actually exhibit a noncompliance. The 
percentage of potential occupants that could be adversely affected by a 
noncompliance does not determine the question of inconsequentiality. 
Rather, the issue to consider is the consequence to an occupant who is 
exposed to the consequence of that noncompliance.\6\
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    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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    For safe viewing through the front windshield, FMVSS No. 103 
specifies requirements for windshield defrosting and defogging systems. 
These systems are critical for removing and preventing frost and ice 
from the windshield during cold weather seasons, or fog anytime the 
ambient temperature, humidity and dew point are at the required 
combination between the windshield and the air inside or outside of the 
vehicle.
    RTDI stated that without a windshield defrosting and defogging 
system the features of the APVs are designed to achieve the same 
purpose as the

[[Page 58387]]

requirements in FMVSS No. 103. RTDI explained that the APVs are ``open-
air'' (i.e., without side and rear glass windows) and because of this 
will never encounter any physical conditions that would produce fog 
buildup on the windshield. RTDI explained, that in the unlikely event 
that fog did accumulate on the windshield, the APVs have windshield 
wipers to clear the surface and that the vehicle operator can also 
manually lower the windshield for better visibility. RTDI mentioned 
that frost and ice should not be an issue because the APVs are only 
operated on a seasonal basis and not during winter months in any of the 
locations they operate.
    In a separate inquiry to RTDI, the Agency learned that APVs are 
equipped with plastic side windows that can be deployed to partially 
enclose the vehicle's interior during periods of inclement weather and 
that these vehicles are not equipped with air conditioning systems but 
are designed with interior heating units.
    The Agency does not agree with RTDI's judgment that the subject 
APVs, designed without a defogging or defrosting system, achieve the 
same purpose as FMVSS No. 103. During times of inclement weather when 
the side curtains are deployed and the front windshield is in the up 
position, the vehicle is not in a fully ``open-air'' configuration as 
suggested by RTDI. If fog were to develop on the windshield, and the 
vehicle is being driven on public roadways at posted speeds, the driver 
would not be able to safely lower the front windshield to address the 
problem, as explained by RTDI. Furthermore, RTDI mentioned that the 
APVs are only operated on a seasonal basis and not during winter 
months, however, the vehicles were designed with heating systems which 
would suggest they can be operated at times when the outside 
temperature is too cool for passenger comfort or when or frost 
conditions may occur. In all events, RTDI has not provided sufficient 
information for NHTSA to determine that the conditions underlying the 
regulatory requirement at issue will not occur during operation of the 
subject APVs.
    NHTSA notes that FMVSS No. 103 was amended in 1985 to explicitly 
provide in Sec.  4(b) that passenger cars, multipurpose passenger 
vehicles, trucks, and buses manufactured for sale in the non-
continental United States may, at the option of the manufacturer, have 
a windshield defogging system which operates either by applying heat to 
the windshield or by dehumidifying the air inside the passenger 
compartment of the vehicle, in lieu of meeting the requirements 
specified by paragraph (a) of this section (50 FR 48772, Nov. 27, 
1985). While this section of FMVSS No. 103 does not apply to the RTDI 
vehicles at issue, the reasons for this amendment are relevant to 
RTDI's proffered rationale that vehicles operated only in warmer months 
need not have a windshield defogging system. The 1985 amendment was 
promulgated in response to a petition filed by an entity located in the 
Virgin Islands alleging that windshields in that locale fog up very 
badly in damp weather, creating a serious safety hazard in vehicles 
which do not have defogging systems. The petitioner requested that 
manufacturers be required to install defogging systems in passenger 
cars sold in the Virgin Islands. NHTSA reviewed the climatic conditions 
of the Virgin Islands as well as other non-continental areas of the 
United States and determined that the petitioner's claim that climatic 
conditions conducive to frequent windshield fogging were accurate. In 
these climes, fogging occurs when a cool windshield contacts warm, 
moist air and the water vapor in the air condenses in the form of a 
liquid on the windshield. NHTSA further found these areas to be 
characterized by high temperatures and high humidity and windshield 
fogging would be especially likely to occur in the morning hours.
    Given the operating regime of the RTDI vehicles, where high 
humidity is likely to be encountered along with higher temperatures, 
NHTSA is concerned, that under some combinations of interior and 
exterior environmental conditions (i.e., air temperatures, humidity and 
dew point) fog could begin to build on the windshield. There are many 
factors, both inside and outside of the vehicle that can contribute to 
temperature, humidity and dew point variations, the root cause of fog. 
The human body gives off heat and is continually exhaling warm moist 
air which is a key contributor to the development of fog on internal 
motor vehicle windows. If an APV is fully loaded with passengers, the 
heater is activated because the temperature is cool outside, and the 
side windows and front windshield are closed, these conditions could be 
cause for a fog build-up on a windshield. This situation could be 
exasperated if a rainstorm quickly passed by the location where an APV 
was operating, which dropped the ambient temperature rapidly and added 
moisture to the surrounding environment.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that RTDI has not 
met its burden of persuasion that the subject FMVSS No. 103 
noncompliance in the subject vehicles is inconsequential to motor 
vehicle safety. Accordingly, RTDI's petition is hereby denied and RTDI 
is consequently obligated to provide notification of, and a free remedy 
for, that noncompliance under 49 U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8)

Joseph Kolly,
Acting Associate Administrator for Enforcement.
[FR Doc. 2021-22972 Filed 10-20-21; 8:45 am]
BILLING CODE 4910-59-P