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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 58387-58389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22974]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2017-0038; 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. 104, Windshield Wiping and
Washing 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.
FOR FURTHER INFORMATION CONTACT: 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 RTDI
Stretch APVs do not fully comply with paragraph S4.2.2 of FMVSS No.
104, Windshield Wiping and Washing Systems (49 CFR 571.104). 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,
[[Page 58388]]
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 (82 FR 38993) 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-2017-0038.''
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 washing
system, as required by paragraph S4.2.2 of FMVSS No. 104.
IV. Rule Requirements: Paragraph S4.2.2 of FMVSS No. 104 includes
the requirements relevant to this petition. Each multipurpose passenger
vehicle, truck, and bus shall have a windshield washing system that
meets the requirements of SAE Recommended Practice J942 (1965)
(incorporated by reference, see Sec. 571.5), except that the reference
to ``the effective wipe pattern defined in SAE J903, paragraph 3.1.2''
in paragraph 3.1 of SAE Recommended Practice J942 (1965) shall be
deleted and ``the pattern designed by the manufacturer for the
windshield wiping system on the exterior surface of the windshield
glazing'' shall be inserted in lieu thereof.
V. Summary of RTDI's Petition: As background, RTDI began to produce
APVs in 1996 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
resulting ``Stretch'' APVs were refurbished by RTDI 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 as the absence of a
compliant windshield washer system 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. 104 specifies, in relevant part, that ``each . . .
[vehicle] shall have a windshield washing system that meets the
requirements of SAE Recommended Practice J942 (1965).'' 49 CFR
571.104, S4(a), S4.2.2. This FMVSS is designed to ensure that when
activated, the windshield washing system is capable of reaching a
sufficient portion of the exterior surface of the windshield, as
designed by the manufacturer. The standard establishes minimum
performance requirements for the windshield wiping and washing
systems so that the vehicle operator is able to sufficiently see
through the windshield. The APVs have features installed that are
designed to achieve the same purpose as the standard. If there is
debris present on the windshield, the driver is able to engage the
vehicle's windshield wipers to clear the windshield's exterior
surface. Further, the windshield of the APVs have a unique design
that allows the driver to fully lower and raise the windshield
glass. In the event that the windshield wipers could not clear the
surface of the windshield, the driver has the option of lowering the
windshield. Under either option, the visibility of the operator
would not be compromised.
2. In the water portion of the vehicles' tours, the APVs are
required to have the windshield lowered during operation, per U.S.
Coast Guard regulations. The Coast Guard has recognized that in the
event of an accident on the water, a raised windshield could impede
passenger egress. Consequently, the Coast Guard has issued guidance
which provides that the windshields of APVs be ``designed to fold
down with minimal force to allow egress.'' U.S. Coast Guard
Navigation and Inspection Circular (NVIC) 1-01, inspection of
Amphibious Passenger Carrying Vehicles, p. 24. Further, the APV's
exteriors, including the windshields, are washed after each tour,
removing any debris that may have accumulated during the last tour.
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 washing 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. 104, RTDI asserted that:
a. As per U.S. Coast Guard NVIC 1-01 ``Guidelines for the
Certifications of Amphibious Vessels,'' for the purposes of
emergency egress the windshields of APVs should be designed to fold
down with minimum force. The RTDI vehicles' front windshields are
hinged at the bottom and there is a mechanical lever linked to the
windshield frame. To quickly and safely lower or open the
windshield, the driver simply lifts upward or pulls downward on the
mechanical lever. The action of lowering and raising the windshield
takes little effort as there are gas springs incorporated into the
hinge which minimizes the weight and force involved in operating the
windshield. Testing revealed the highest peak measurement at 22.6
lbs. of force. RTDI drivers often open the windshield when the
vehicle is stopped or in slow moving heavy traffic and at a low rate
of speed to allow fresh air into the driver and passenger space. The
U.S. Coast Guard inspects and tests the windshield opening feature
annually.
b. 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.''
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-
[[Page 58389]]
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. 104
requires both a windshield wiping system and a washing system. The
Agency believes that both systems are critical, and at times must work
together, to ensure a clear view through the windshield. The purpose of
the washing system is to aid the wiping system in the event that dust,
dirt, mud, or other obstructions occur and the wipers are not
sufficient to quickly and properly clear the windshield.
RTDI stated that the features of the APVs achieve the same purpose
as the standard without a windshield washing system. According to RTDI,
if debris is present on the windshield the driver can engage the
windshield wiping system to clear the windshield exterior surface. RTDI
also explained that in the event the windshield wipers could not clear
the surface of the windshield the driver has the option of lowering the
windshield.
The Agency does not agree with RTDI's assessment that the subject
APVs are designed to achieve the same purpose as the standard without a
windshield washing system. The Agency understands that these vehicles
can be operated on public roadways at speeds up to 50 miles per hour.
It is not uncommon while traveling at posted speeds to encounter
conditions where the windshield wipers and the washing system must be
used together to maintain forward visibility through the windshield.
One good example of such a condition occurs shortly after a rain shower
has ended, the roads are still wet, and other vehicles operating on the
roadway are throwing up water spray and road dirt that can accumulate
on following vehicle windshields. In this situation, both the
windshield wipers and windshield washing systems would be required for
safe operations.
Furthermore, in a follow-up response to a request from the Agency,
RTDI informed the Agency that its safety guidelines only permit the
driver to open and close the windshield should visibility become
obstructed, and only when the vehicle is traveling at a slow rate of
speed or is stopped. Thus, if the vehicle is moving at higher speeds
under conditions as mentioned above, the Agency believes it would
present a safety concern to lower the windshield.
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. 104 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. 2021-22974 Filed 10-20-21; 8:45 am]
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