Morgan Olson, LLC, Denial of Petition for Decision of Inconsequential Noncompliance, 56701-56703 [2012-22547]

Download as PDF Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES b. By hand delivery to: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays. c. Electronically: by logging onto the Federal Docket Management System (FDMS) Web site at http:// www.regulations.gov/. Follow the online instructions for submitting comments. Comments may also be faxed to 1–202– 493–2251. Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, selfaddressed postcard with the comments. Note that all comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at http://www.regulations.gov by following the online instructions for accessing the dockets. DOT’s complete Privacy Act Statement is available for review in the Federal Register published on April 11, 2000, (65 FR 19477–78). The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the Federal Register pursuant to the authority indicated below. Comment Closing Date: October 15, 2012. Authority: 49 U.S.C. 30118, 30120: Delegations of authority at CFR 1.50 and 501.8. Issued on: September 6, 2012. Claude H. Harris, Director, Office of Vehicle Safety Compliance. [FR Doc. 2012–22569 Filed 9–12–12; 8:45 am] BILLING CODE 4910–59–P VerDate Mar<15>2010 19:13 Sep 12, 2012 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 National Highway Traffic Safety Administration, DOT. ACTION: Notice of Petition Denial. AGENCY: 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. 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 SUMMARY: 1 Morgan Olson is a manufacturer of motor vehicles. Jkt 226001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 56701 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 walkin 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 E:\FR\FM\13SEN1.SGM 13SEN1 56702 Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Notices mstockstill on DSK4VPTVN1PROD with NOTICES 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. 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 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 2 Federal Motor Vehicle Safety Standards; Door Locks and Door Retention Components, Final Rule, 72 FR 5385, 5387 (Feb. 6, 2007). 3 Dorel Juvenile Group; Denial of Appeal of Decision on Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010). VerDate Mar<15>2010 19:13 Sep 12, 2012 Jkt 226001 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 PO 00000 Frm 00097 Fmt 4703 Sfmt 4703 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 E:\FR\FM\13SEN1.SGM 13SEN1 mstockstill on DSK4VPTVN1PROD with NOTICES Federal Register / Vol. 77, No. 178 / Thursday, September 13, 2012 / Notices 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 vantype 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 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 4 Florida Department of Highway Safety and Motor Vehicles; HSMV Crash Report Number 90163273, dated January 6, 2009. VerDate Mar<15>2010 19:13 Sep 12, 2012 Jkt 226001 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 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] BILLING CODE 4910–59–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2012–0133] Public Hearing to Determine Whether ZAP Has Met Notification and Remedy Requirements National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Notice of public hearing. AGENCY: NHTSA will hold a public hearing on whether ZAP,1 a publicly owned company based in Santa Rosa, California, has reasonably met its SUMMARY: 5 75 FR 7378. also does business as ZAP Jonway. See http://www.zapworld.com/. 1 ZAP PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 56703 obligations to notify owners, purchasers, and dealers of noncompliances with Federal Motor Vehicle Safety Standard (FMVSS) No. 122, Motorcycle brake systems, and to remedy those noncompliances in two recalls involving Model Year (MY) 2008 ZAP Xebra three-wheeled vehicles, which ZAP imported from China. DATES: The public hearing will be held beginning at 10 a.m. ET on October 9, 2012 in the Oklahoma City room of the U.S. Department of Transportation Conference Center, located at 1200 New Jersey Avenue SE., Washington, DC 20590. NHTSA recommends that all persons attending the proceedings arrive at least 45 minutes early in order to facilitate entry into the Conference Center. NHTSA cannot ensure that late arrivals will be permitted access to the hearing. Attendees are strongly discouraged from bringing laptop computers to the hearing, as they will be subject to additional security measures. If you wish to attend or speak at the hearing, you must register in advance no later than October 2, 2012 (and September 28, 2012 for non-U.S. citizens), by following the instructions in the Procedural Matters section of this notice. NHTSA will consider late registrants to the extent time and space allows, but cannot ensure that late registrants will be able to attend or speak at the hearing. To ensure that NHTSA has an opportunity to consider comments, NHTSA must receive written comments by October 2, 2012. ADDRESSES: You may submit comments to the docket number identified in the heading of this document by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments. • Mail: Docket Management Facility, M–30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590. • Hand Delivery or Courier: West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays. • Fax: (202) 493–2251. Regardless of how you submit your comments, you should mention the docket number of this document. You may call the Docket at 202–366– 9324. Note that all comments received will be posted without change to http:// www.regulations.gov, including any personal information provided. E:\FR\FM\13SEN1.SGM 13SEN1

Agencies

[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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \2\ Federal Motor Vehicle Safety Standards; Door Locks and Door 
Retention Components, Final Rule, 72 FR 5385, 5387 (Feb. 6, 2007).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \3\ Dorel Juvenile Group; Denial of Appeal of Decision on 
Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010).
---------------------------------------------------------------------------

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]
BILLING CODE 4910-59-P