Receipt of Petitions for Decision of Inconsequential Noncompliance, 23031-23034 [2021-09051]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 86, Number 82 (Friday, April 30, 2021)]
[Notices]
[Pages 23031-23034]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09051]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0065, Notice 1]


Receipt of Petitions for Decision of Inconsequential 
Noncompliance

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Receipt of petitions.

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SUMMARY: Ricon Corporation (Ricon), has determined that certain S-
Series and K-Series Classic wheelchair lifts do not fully comply with 
Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform Lift 
Systems for Motor Vehicles. Because of Ricon's determination, Navistar, 
Inc., on behalf of IC Bus, LLC (Navistar), who installed the S-Series 
and K-Series Classic wheelchair lifts in their buses, determined that 
model year (MY) 2013-2019 IC buses do not comply with FMVSS No. 404, 
Platform Lift Installation in Motor Vehicles. Ricon and Navistar, 
collectively referred to as the ``the petitioners,'' filed the 
appropriate noncompliance reports and subsequently petitioned NHTSA for 
a decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This document announces receipt of the 
petitioner's petitions.

DATES: The closing date for comments on the petition is June 1, 2021.

ADDRESSES: Interested persons are invited to submit written data, 
views, and arguments on this petition. Comments must refer to the 
docket number cited in the title of this notice and may be submitted by 
any of the following methods:
     Mail: Send comments by mail addressed to the U.S. 
Department of Transportation, Docket Operations, M-30, West Building 
Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 
20590.
     Hand Delivery: Deliver comments by hand to the 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 for Federal Holidays.
     Electronically: Submit comments electronically by logging 
onto the Federal Docket Management System (FDMS) website at https://www.regulations.gov/. Follow the online instructions for submitting 
comments.
     Comments may also be faxed to (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 comments you have submitted by mail were 
received, please enclose a stamped, self-addressed postcard along with 
the comments. Note that all comments received will be posted without 
change to https://www.regulations.gov, including any personal 
information provided.
    All comments and supporting materials received before the close of 
business on the closing date indicated above will be filed in the 
docket and will be considered. All comments and supporting materials 
received after the closing date will also be filed and will be 
considered fully possible.
    When the petitions are granted or denied a notice of the decision 
will also be published in the Federal Register pursuant to the 
authority indicated at the end of this notice.
    All comments, background documentation, and supporting materials 
submitted to the docket may be viewed by anyone at the address and 
times given above. The documents may also be viewed on the internet at 
https://www.regulations.gov by following the online instructions for 
accessing the dockets. The docket ID number for this petition is shown 
in the heading of this notice.
    DOT's complete Privacy Act Statement is available for review in a

[[Page 23032]]

Federal Register notice published on April 11, 2000, (65 FR 19477-78).

SUPPLEMENTARY INFORMATION:
    I. Overview: Ricon has determined that certain S-Series and K-
Series Classic wheelchair lifts do not fully comply with paragraphs 
S6.10.2.4 of FMVSS No. 403, Platform Lift Systems for Motor Vehicles 
(49 CFR 571.403). Ricon filed a noncompliance report dated June 3, 
2019, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Ricon subsequently petitioned NHTSA on June 
21, 2019, 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.
    Because of Ricon's determination, Navistar, who installed the S-
Series and K-Series Classic wheelchair lifts in their buses, determined 
that certain model year (MY) 2013-2019 IC buses do not comply with 
paragraph S4.1.4 of FMVSS No. 404, Platform Lift Installation in Motor 
Vehicles (49 CFR 571.404). Navistar also filed two noncompliance 
reports dated June 19, 2019, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports, and subsequently petitioned 
NHTSA on July 10, 2019, 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, 
pursuant to 49 U.S.C. 30118(d) and 30120(h) and 49 CFR part 556, 
Exemption for Inconsequential Defect or Noncompliance.
    This notice of receipt of the petitioner's petitions is published 
under 49 U.S.C. 30118 and 30120 and does not represent any agency 
decision or other exercise of judgment concerning the merits of the 
petitions.
    II. Equipment and Vehicles Involved: On June 3, 2019, Ricon 
submitted a noncompliance report and then on June 21, 2019, 
subsequently submitted a petition that reported approximately 20,862 S-
Series and K-Series Classic wheelchair lifts, manufactured between 
October 2, 2012, and May 24, 2019, are potentially involved.
    In concert with Ricon's filings, Navistar who Ricon sold lifts to 
and who installed the S-Series and K-Series Classic wheelchair lifts in 
its vehicles also filed noncompliance reports and an inconsequential 
noncompliance petition. Appropriately, Navistar determined that 
approximately 2,921 of the following IC commercial buses and school 
buses are potentially involved:
     MY 2013-2018 IC CE commercial buses, manufactured between 
May 10, 2012, and November 7, 2017.
     MY 2016 IC RE commercial buses, manufactured between 
November 12, 2015, and November 16, 2015.
     MY 2013-2015 IC BE school buses, manufactured between July 
11, 2012, and September 17, 2014.
     MY 2013-2015 IC AE school buses, manufactured between 
December 10, 2012, and October 16, 2014.
     MY 2013-2019 IC CE school buses, manufactured between May 
10, 2012, and May 2, 2018.
     MY 2013-2014 IC RE school buses, manufactured between 
August 30, 2012, and November 18, 2013.
     MY 2016-2017 IC RE school buses, manufactured between 
January 13, 2015, and January 22, 2016.
     MY 2019 IC RE school buses, manufactured between February 
8, 2018, and February 8, 2018.
    Ricon reported that 20,862 S-Series and K-Series Classic wheelchair 
lifts are potentially involved while Navistar the only OEM to file, 
reported in total, 2,921 buses with the noncompliant S-Series and K-
Series Classic wheelchair lifts are potentially involved. NHTSA reached 
out to Ricon on multiple occasions to try to reconcile the difference 
in number of lifts reported versus the number of vehicles reported. In 
an email dated June 10, 2020, Ricon provided a table that reported that 
20,862 S-Series and K-Series Classic wheelchair lifts were produced, 
with 6,149 going to dealers, 14,701 going to OEMs, and 12 with Ricon's 
parent company Wabtec Corporation (Wabtec). Below is a table that 
outlines the different numbers as reported by Ricon, by date, for the 
S-Series and K-Series Classic wheelchair lifts and the total number of 
vehicles as reported by the OEM.

                    RICON S-Series and K-Series Classic Wheelchair Lifts Potentially Involved
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                                                                  Ricon's  6/21/  Ricon's  6/10/   Total OEM 573
                                                                   19  reporting   20  reporting    reporting's
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Dealers.........................................................  ..............           6,149  ..............
OEMs............................................................  ..............          14,701  ..............
Wabtec *........................................................  ..............              12  ..............
                                                                 -----------------------------------------------
    Total.......................................................          20,862          20,862           2,921
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* Ricon is a subsidiary of WABTEC.

    The total number of vehicles reported by Ricon and the OEM has not 
changed and the number S-Series and K-Series Classic wheelchair lifts 
as reported by Ricon on June 10, 2020, are the most up-to-date numbers. 
Based on current numbers as shown in the table above, there are still 
18,571 lifts that have not been accounted for. Despite several meetings 
and communication with Ricon directed to discerning the distribution 
and disposition of those lifts, NHTSA has not been able to obtain 
additional information about the lifts not sold directly to vehicle 
manufacturers. NHTSA also feels it is prudent to emphasize that any 
decision on these petitions does not relieve vehicle or equipment 
distributors and dealers of the prohibitions on the sale, offer for 
sale, or introduction or delivery for introduction into interstate 
commerce of the noncompliant lifts and vehicles under their control 
after the petitioners notified them that the subject noncompliance 
existed.
    III. Noncompliance: Ricon explains that its Classic S-Series and K-
Series platform lifts do not comply with the inner roll stop interlock 
requirements of FMVSS No. 403, S6.10.2.4 and S6.10.2.7 when tested in 
accordance with the test procedure at S7.6.1. The subject lifts, as 
installed in certain commercial buses and school buses, do not comply 
with paragraph S4.1.4 of FMVSS No. 404.
    IV. Rule Requirements: Paragraph S6.10.2.4 and paragraph S6.10.2.7 
of FMVSS No. 403, include the requirements relevant to the deployment 
of the inner roll stop. When the platform reaches a level where the 
inner roll stop is designed to deploy, the platform must stop unless 
the inner roll stop has deployed. Verification with

[[Page 23033]]

this requirement is made by performing the test procedure specified in 
S7.6.1. When the platform stops, the vertical change in distance of the 
horizontal plane (passing through the point of contact between the 
wheelchair test device wheel(s) and the upper surface of the inner roll 
stop or platform edge) must not be greater than 13 mm (0.5 in). 
Verification of compliance with this requirement is made using the test 
procedure specified in S7.6.1.
    Paragraph S4.1.4 of FMVSS No. 404, includes lift-equipped buses, 
school buses, and MPVs other than motor homes with a GVWR greater than 
4,536 kg (10,000 lb.) must be equipped with a public use lift certified 
as meeting FMVSS No. 403.
    V. Summary of Petitions: The following views and arguments 
presented in this section, ``V. Summary of Petitions,'' are the views 
and arguments provided by the petitioners. They have not been evaluated 
by the Agency and do not reflect the views of the Agency. The 
petitioners described the subject noncompliance and stated their belief 
that the subject noncompliance is inconsequential as it relates to 
motor vehicle safety.
    In support of their petitions, the petitioners submitted the 
following arguments:
    1. The Occupant Unloading Orientation in the Test Procedure Does 
Not Represent Real-World Use.
    The petitioners state that for public use lifts, Ricon's operator 
instructions (and the industry standard practice) instructs that an 
occupant is to exit the vehicle from vehicle floor loading level facing 
frontwards, not backwards per the test procedure. In this orientation, 
the occupant is facing away from the vehicle and can view his/her 
surroundings on the street or parking lot. In this configuration, the 
inner roll stop for the Classic lifts performs as designed. When 
disembarking the vehicle consistent with Ricon's operator instructions, 
and consistent with the way occupants regularly exit the vehicle, \1\ 
the micro switch is triggered consistently regardless of the placement 
of the wheelchair because there is always sufficient weight 
distribution from the mobility device to the micro switch. The loading 
and unloading direction in the test procedure is not consistent with 
real-world application or use and is not consistent with industry 
practice or the way that Ricon (or its competitors \2\) instruct that 
the lifts should be used. As such, in real-world operation, there is no 
safety risk presented.
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    \1\ The reason why loading with the occupant's back to the 
vehicle is the standard practice is that it is designed to prevent 
injury to the occupant's lower extremities and feet.
    \2\ In the pictorials on their websites, competitors also 
promote that the appropriate way to enter and exit the platform lift 
is facing away from the vehicles.
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    Per the petitioners, the position of the wheelchair test device 
specified in the FMVSS No. 403 test procedure is inconsistent with the 
actual use of the lifts and therefore, in actual use, no real-world 
safety risk is presented. The test procedure provides that the platform 
should be maneuvered to vehicle floor level loading position and the 
wheelchair test device should be placed on the platform with only one 
front wheel of the wheelchair test device facing the vehicle. See FMVSS 
No. 403, S7.6.2. This instruction is contrary to the instructions 
provided in the Ricon operator's manual instructions and contrary to 
industry practice. For public use lifts, the standard industry practice 
is to load and unload occupants with mobility devices rearward, facing 
away from the vehicle and with their back to the vehicle. \3\ 
Significantly, NHTSA's own literature is consistent with Ricon's 
approach and states that wheelchair occupants should be loaded and 
unloaded facing away from the vehicle. \4\
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    \3\ See Best Practices for Loading and Unloading Wheelchair 
Students.
    \4\ See School Bus Driver In-Service Safety-Series.
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    As written, the instructions in the test procedure are inconsistent 
with the industry standard and Ricon's operator's manual for public use 
lifts \5\. The petitioners state that the operator's manual for the 
private use Classic lifts describes how an occupant should board the 
lift and that similar instructions on passenger orientation are 
provided for the public use version of the Classic lifts.
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    \5\ Ricon says that in response to a comment from a manufacturer 
during the FMVSS No. 403 rulemaking about inconsistent loading 
direction in the manufacturer's operator manual and the test 
procedure, NHTSA concluded that since the ADA does not apply to 
private lifts, the loading requirements were not inconsistent with 
the ADA. The Agency did not, however, address that same concern as 
it applied to public use lifts and thus, it remains an open point 
that was not addressed through the rulemaking process. See 67 FR 
49416 (December 27, 2002)
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    The petitions also note that to complement the operating 
instructions, Ricon applies decals on the vertical arms of the lift to 
remind the lift operator and reinforce the correct means to load and 
unload an occupant onto the lift.
    2. The Classic Lifts Incorporate Redundant Safety Features.
    The petitioners contend that for public use lifts, assuming the 
user exited the vehicle backwards per the test procedure, if the inner 
roll stop began to deploy there are redundant safety features that 
would preclude any injury. All the Classic lifts have an outer barrier 
that will remain deployed (in the vertical position) until the lift 
reaches the ground level unloading position. Because the outer barrier 
remains vertical throughout the entire lift operation, there is no risk 
that the occupant could roll backwards and off the lift itself. In 
addition, on all public use lifts there is a belt retention device 
which acts as another redundant safety feature. The belt retention 
device would also restrain an occupant safely on the lift should the 
inner barrier begin to deploy while occupied and the handrails on the 
sides of the lift will prevent any tipping from the sides. The 
environment in which these lifts are used also diminishes any potential 
risk to safety. When the Classic lifts operate as a public use lifts, 
there will always be a lift attendant present to monitor the lift to 
ensure the occupant enters and exits the lift safely and is properly 
positioned on the platform before activating the lift. When the lift 
attendant is correctly monitoring the lift occupant, as they should, 
even if the occupant were to exit the vehicle by backing onto the lift, 
if the inner roll stop did begin to deploy while it was occupied the 
lift attendant can quickly stop lift operation.
    Per the petitioners, although Classic lifts used as private use 
lifts may not have the retention belt in all instances, if a passenger 
who is also the operator of the private use lift were to disembark the 
vehicle backwards and remain partially on the inner roll stop, the 
operator/passenger would simply need to release the momentary switch on 
the control pendant to automatically and immediately stop the operation 
of the lift. Because the control pendant utilizes a momentary switch, 
as soon as the individual releases the activation button the lift 
ceases operation. In this situation, and despite all the other factors 
which are necessary to create the condition in the first place, an 
operator/passenger can immediately prevent further movement of the 
inner roll stop. Private use lifts without a retention belt still have 
an operable outer barrier and handrails for protection. In addition, 
consistent with FMVSS No. 403, the private use lifts all have operating 
instructions near the lift controls and in the vehicle owner's manual, 
``that contain a warning that wheelchairs

[[Page 23034]]

should back onto the platform when entering from the ground.''
    3. NHTSA has previously granted petitions where wheelchair lifts 
did not meet the performance requirements of FMVSS No. 403.
    The petitioners argue that the Agency has granted 
inconsequentiality petitions where the manufacturer has not met the 
performance requirements of FMVSS No. 403, finding that the 
noncompliance did not pose an increased risk to safety as the lift is 
used in the real world. The performance of Ricon's platform lifts is 
consistent with this precedent.
    For example, the Agency granted a petition for decision of 
inconsequential noncompliance submitted by The Braun Corporation 
(Braun) where the lift handrails did not meet the values for deflection 
force stated in FMVSS No. 403. The Agency recognized that while the 
handrails collapsed and did not meet the displacement requirement, they 
did not do so catastrophically. The Agency explained the failure 
``would not cause the passenger to become unstable, adversely interact 
with the vehicle, or pose a safety concerns that the handrail 
requirements were intended to address'' and that its concern in 
instituting the deflection force requirement was the possibility of a 
catastrophic failure of the handrails, which would expose the occupant 
to a risk of injury. According to the petitioners, in granting the 
petition, the Agency not only ``anticipated that future tests will 
specify placement and direction of forces that will be more focused to 
address worst-case handrail displacement and real-world safety 
problems,'' but it also recognized the noncompliance did not ``pose a 
safety concern that the handrail requirements were intended to 
address.'' See 72 FR 19754 (April 19, 2007). Thus, the Agency has 
recognized that there are inherent provisions in FMVSS No. 403 that may 
not test for the types of safety risks that can arise in actual use and 
are therefore inconsequential.
    The petitions further note that as with the Agency's finding with 
the Braun petition, in actual use, the Classic lifts do not pose a 
safety risk. This is because the inner barrier interlock would sense 
the presence of the rear wheels of the wheelchair occupant who is 
loaded and unloaded facing away from the vehicle. The heavier weight of 
the rear wheels is picked up by the sensors and the inner barrier 
interlock is activated. The interlock performance is restricted only 
under the set up per the test procedure, with the front wheels on the 
inner roll stop and facing the vehicle.
    4. In addition, Navistar has reviewed warranty records, field 
reports, and other applicable Navistar system and determined the 
following:
    a. Navistar has not received any complaints or other notices from 
vehicle owners or others regarding this issue.
    b. Navistar is not aware of any accidents or injuries that have 
occurred because of this issue.
    c. Navistar is not aware of any warranty claims for this issue.
    The petitioners concluded by expressing the belief that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety 
and that their petitions 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.
    The petitioner's complete petitions and all supporting documents 
are available by logging onto the Federal Docket Management System 
(FDMS) website at: https://www.regulations.gov and by following the 
online search instructions to locate the docket number as listed in the 
title of this notice.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, any decision on 
these petitions only applies to the subject lifts and buses that the 
petitioners no longer controlled at the time it determined that the 
noncompliance existed. However, any decision of these petitions does 
not relieve vehicle or equipment distributors and dealers of the 
prohibitions on the sale, offer for sale, or introduction or delivery 
for introduction into interstate commerce of the noncompliant lifts and 
buses under their control after the petitioners notified them that the 
subject noncompliance existed.

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

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2021-09051 Filed 4-29-21; 8:45 am]
BILLING CODE 4910-59-P