Ride the Ducks International, LLC, Denial of Petition for Decision of Inconsequential Noncompliance, 58380-58384 [2021-22975]
Download as PDF
<![CDATA[
jspears on DSK121TN23PROD with NOTICES1
58380
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Notices
track that has been equipped with
positive train control (PTC).
DATES: FRA will consider comments
received by December 20, 2021 before
taking final action on the Test Request.
FRA may consider comments received
after that date to the extent practicable
and without delaying implementation of
valuable or necessary modifications to a
PTC system.
ADDRESSES: All comments concerning
this proceeding should identify the
agency name and Docket Number FRA–
2010–0028, and may be submitted on
https://www.regulations.gov. Follow the
online instructions for submitting
comments. For convenience, all active
PTC dockets are hyperlinked on FRA’s
website at https://railroads.dot.gov/
train-control/ptc/ptc-annual-andquarterly-reports. All comments
received will be posted without change
to https://www.regulations.gov; this
includes any personal information.
FOR FURTHER INFORMATION CONTACT:
Gabe Neal, Staff Director, Signal, Train
Control, and Crossings Division,
telephone: 816–516–7168, email:
Gabe.Neal@dot.gov.
SUPPLEMENTARY INFORMATION: On June
21, 2021, FRA certified CSX’s
Interoperable Electronic Train
Management System (I–ETMS) PTC
system per Title 49 Code of Federal
Regulations (CFR) Section 236.1015.
Pursuant to 49 CFR 236.1035, CSX must
request FRA-approval of any regression
testing of a certified PTC system that is
conducted on the general rail system.
See 49 CFR 236.1035(a). CSX’s Test
Request describes the level of testing of
its TO Air Brake Control required to
confirm that the air brake control feature
design, implementation, and safety
mitigations comply with the document
requirements outlined in the I–ETMS
Onboard Segment Requirements
Specifications.
CSX’s Test Request are available for
review online at www.regulations.gov
(Docket No. FRA–2010–0028).
Interested parties are invited to
comment on the Test Request by
submitting written comments or data.
During its review of the Test Request,
FRA will consider any comments or
data submitted. 49 CFR 236.1011(e).
However, FRA may elect not to respond
to any particular comment and, under
49 CFR 236.1009(d)(3), FRA maintains
the authority to approve or disapprove
the Test Request at its sole discretion.
Privacy Act Notice
In accordance with 49 CFR 211.3,
FRA solicits comments from the public
to better inform its decisions. DOT posts
these comments, without edit, including
VerDate Sep<11>2014
17:35 Oct 20, 2021
Jkt 256001
any personal information the
commenter provides, to https://
www.regulations.gov, as described in
the system of records notice (DOT/ALL–
14 FDMS), which can be reviewed at
https://www.transportation.gov/privacy.
See https://www.regulations.gov/
privacy-notice for the privacy notice of
regulations.gov. To facilitate comment
tracking, we encourage commenters to
provide their name, or the name of their
organization; however, submission of
names is completely optional. If you
wish to provide comments containing
proprietary or confidential information,
please contact FRA for alternate
submission instructions.
Issued in Washington, DC.
Carolyn R. Hayward-Williams,
Director, Office of Railroad Systems and
Technology.
[FR Doc. 2021–22911 Filed 10–20–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2017–0039; Notice 2]
Ride the Ducks International, LLC,
Denial of Petition for Decision of
Inconsequential Noncompliance
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
AGENCY:
Ride the Ducks International,
LLC (RTDI), has determined that certain
model year (MY) 1996–2014 RTDI
Stretch Amphibious passenger vehicles
(APVs) do not fully comply with
Federal Motor Vehicle Safety Standard
(FMVSS) No. 113, Hood Latch System,
and FMVSS No. 302, Flammability of
Interior Materials. RTDI filed a
noncompliance information report
dated March 15, 2017. RTDI also
petitioned NHTSA on April 12, 2017,
for a decision that the subject
noncompliances are inconsequential as
they relate to motor vehicle safety. This
document announces the denial of
RTDI’s petition.
FOR FURTHER INFORMATION CONTACT:
Abraham Diaz at (202) 366–5310
regarding FMVSS No. 302, and Neil
Dold at (202) 366–7352 regarding
FMVSS No. 113; Office of Vehicle
Safety Compliance, NHTSA, facsimile
(202) 366–5930.
SUPPLEMENTARY INFORMATION:
I. Overview: RTDI has determined that
certain MY 1996–2014 RTDI APVs do
not fully comply with paragraph S4.2 of
SUMMARY:
PO 00000
Frm 00134
Fmt 4703
Sfmt 4703
FMVSS No. 113, Hood Latch System (49
CFR 571.113), and paragraph S2 of
FMVSS No. 302, Flammability of
Interior Materials (49 CFR 571.302).
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 these
noncompliances are inconsequential as
they relate to motor vehicle safety.
Notice of receipt of the petition was
published in the Federal Register (82
FR 43452) with a 30-day public
comment period, on September 15,
2017. No comments were received. To
view the petition and all supporting
documents log onto the Federal Docket
Management System (FDMS) website at:
https://www.regulations.gov/. Then
follow the online search instructions to
locate docket number ‘‘NHTSA–2017–
0039.’’
II. Vehicles Involved: Approximately
105 MY 1996–2014 RTDI Stretch APVs,
manufactured between January 1, 1996
and December 31, 2014 are potentially
involved.
III. Noncompliances: RTDI explained
that the noncompliances are that the
subject vehicles were not equipped with
a secondary hood latch system, as
required by paragraph S4.2 of FMVSS
No. 113, and that there are interior
components and materials that do not
conform to the burn rate requirements of
paragraph S2 of FMVSS No. 302.
IV. Rule Requirements: Requirements
from FMVSS No. 113 and 302 are
relevant to this petition. Specifically,
paragraph S4.2 of FMVSS No. 113
requires that a front opening hood
which, in any open position, partially or
completely obstructs a driver’s forward
view through the windshield must be
provided with a second latch position
on the hood latch system or with a
second hood latch system. Paragraphs
S2 and S4 of FMVSS No. 302 explain
that the purpose of FMVSS No. 302 is
to reduce the deaths and injuries to
motor vehicle occupants caused by
vehicle fires, especially those
originating in the interior of the vehicle
from sources such as matches or
cigarettes. FMVSS No. 302 lists the
components of vehicle occupant
compartments that shall meet the burn
rate requirements of the standard and
specifies the maximum allowable burn
rate of material under specified test
conditions.
V. Summary of RTDI’s Petition: RTDI
states that it began to produce APVs in
E:\FR\FM\21OCN1.SGM
21OCN1
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Notices
jspears on DSK121TN23PROD with NOTICES1
1996 by performing extensive
modifications to General Motors (GM)
amphibious military trucks, which were
originally designated with product code
DUKW per GM’s nomenclature.1 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
noncompliances as the lack of a
secondary hood latch system and the
failure of certain materials in the
passenger compartment to meet burn
resistance requirements. RTDI stated its
belief that the noncompliances are
inconsequential as they relate to motor
vehicle safety.
In support of its petition, RTDI
submitted the following reasoning:
1. FMVSS No. 113 specifies, ‘‘a front
opening hood which, in any open
position, partially or completely
obstructs a driver’s forward view
through the windshield must be
provided with a second latch position
on the hood latch system or with a
second hood latch system.’’ 49 CFR
571.113, S4.2. The purpose of FMVSS
No. 113 is to establish requirements for
vehicle hood latch systems so that the
hood remains secure while the vehicle
is operated even if the primary latch
fails or is not properly engaged. The
absence of a secondary latch increases
the possibility that the hood may open
during vehicle operation and prevent
the driver from seeing the road ahead.
2. The U.S. Coast Guard has adopted
specific design and operational
requirements for APVs.2 Pursuant to
U.S. Coast Guard regulations, while an
APV is operating on water, the hood is
to remain in an ‘‘open’’ position. See 46
CFR 182.460 (‘‘a space containing
machinery powered by, or fuel tanks for,
gasoline must have a ventilation system
that complies with this section’’), 46
CFR 182.465 (‘‘a space containing diesel
machinery must be fitted with adequate
means . . . to provide sufficient air for
proper operation of main engines and
auxiliary engines.’’). This requirement is
intended to permit a sufficient amount
of air flow around the engine
compartment, which reduces the
potential for the engine to overheat and
1 NHTSA notes that 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.
2 Under the U.S. Coast Guard rubric, APVs are
classified as ‘‘T-Boats’’ which are small passenger
vessels weighing less than 100 gross tons.
VerDate Sep<11>2014
17:35 Oct 20, 2021
Jkt 256001
potentially cause a fire.3 During
waterborne operation, the hood of the
APV is opened or elevated by
approximately four inches. Although
the hood of the APV is slightly raised,
it has vertical arms which rest on
manually operated drop latches. The
hood does not pose a risk of opening
unexpectedly during operation, even
without a secondary hood latch system.
The hoods of the APVs are substantially
heavier than the hoods of traditional
motor vehicles. As a practical matter, it
is highly unlikely that the force of the
wind against the vehicle could move the
hood of the APV. In its more than 30
years of operation, RTDI has never
received a report or allegation involving
the opening of a vehicle’s hood while
operating either on the public roads or
in the public waterways.
3. FMVSS No. 302 sets out the burn
resistance requirements for materials
used in certain parameters within the
occupant compartments of vehicles. The
stated purpose of FMVSS No. 302 is ‘‘to
reduce the deaths and injuries to motor
vehicle occupants caused by vehicle
fires, especially those originating in the
interior of the vehicle from sources such
as matches or cigarettes.’’ 49 CFR
571.302, S2.
The fire risks that exist in traditional
motor vehicles are not the same
concerns that present themselves in the
APVs. Mitigating the risks of a fire
occurring on board an APV are centered
around the operation and safeguarding
of the engine compartment and
passenger egress conditions.
The APVs also have installed a series
of systems designed to protect
passengers and allow for ease of egress
from the occupant compartment in the
event of a fire. The RTDI vehicles have
an open-air design with multiple areas
of passenger egress. Additionally, and
per U.S. Coast Guard requirements, all
of the vehicles have a fire suppression
system installed throughout the vehicle.
The fire suppression systems include
vent closures, heat detection devices,
vapor detection systems and fire
extinguishing systems. In the event of a
fire in the APV, the operator will
activate the fire suppression system
which releases the carbon dioxide fire
extinguishing agent. The vehicles are
also equipped with two portable fire
extinguishers and all vehicle operators
receive emergency evacuation training
3 U.S. Coast Guard regulations also require that
while operating in the water, the engine
compartment can be fully closed. In the event of a
fire in the engine compartment, the operator will
deploy the hood latch, dropping the hood and
closing off the compartment. This feature is
designed to contain the fire by preventing the flow
of oxygen around the engine.
PO 00000
Frm 00135
Fmt 4703
Sfmt 4703
58381
on no less than a quarterly basis, per
U.S. Coast Guard requirements, and
often more regularly.
4. By contrast, FMVSS No. 302 is
primarily concerned with protecting
passengers against vehicle fires that
occur due to flames or sparks inside the
vehicle. In addition to the safety
features described above, the vehicles
have implemented other measures that
provide an equivalent measure of safety
to vehicle occupants. Smoking is
expressly prohibited in the APVs.
Passengers are advised of this
requirement prior to the start of the tour.
Onboard each vehicle there is a
‘‘narrator’’ or second crew member
present. The narrator sits rearward,
facing into the occupant compartment
and in continuous view of the
passengers’ activities at all times while
the APV is in operation. The narrator is
physically located so that he/she would
be able to see and stop a passenger
attempting to light a match, flame or
smoke on board.
In recognizing that APVs have a
unique design and may encounter
specialized hazard conditions, the U.S.
Coast Guard employs a ‘‘systems
approach’’ to certification for APVs. To
meet U.S. Coast Guard requirements, the
APVs must have ‘‘a level of safety
equivalent to that required for a vessel
of similar size and service.’’ See
Navigation and Vessel Inspection
Circular (NVIC) No. 1–01. These
requirements are met, ‘‘in part through
a combination of design requirements
and operational restrictions’’ and by
considering ‘‘the entire vehicle and its
equipment as a complete safety system.’’
Id. The RTDI APVs are certified to meet
U.S. Coast Guard fire safety
requirements for T-boats.
5. 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). The design and
construction of the APVs address the
potential risks to passenger safety
arising from fire-related concerns to
these vehicles. The safety features
present on the APVs provide a level of
protection that is, at a minimum,
equivalent to the vehicle safety
standards so that granting the
E:\FR\FM\21OCN1.SGM
21OCN1
jspears on DSK121TN23PROD with NOTICES1
58382
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Notices
company’s petition would be
appropriate.
RTDI concluded by expressing the
belief that the subject noncompliances
are inconsequential as they relate to
motor vehicle safety, and that its
petition to be exempted from providing
notification of the noncompliances, as
required by 49 U.S.C. 30118, and a
remedy for the noncompliances, 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. 113, RTDI
asserted that:
1. From the driver’s seat with the
hood open in the normal operating
position there is no obstruction to the
driver’s view. When in the ‘‘open’’
position, the hood is elevated at an
angle of approximately 4.5 inches to 5
inches. The tip of the bow of the APV
remains visible with the hood open or
closed. There is no visual obstruction to
the driver when the hood is in the
‘‘open’’ position.
2. The vehicle’s engine requires the
hood to remain partially open to
provide sufficient air flow to the engine.
The engine’s air supply is forced
through the forward opening of the
engine hood. The radiator has a reverse
fan which draws fresh air through the
radiator to keep the engine cool.
3. The hood incorporates a stand
which rests on a cam lever that is
mechanically operated by a cable and
handle located in the driver’s
compartment. To close the hood, the
driver simply pulls a handle which
rotates the cam and closes the hood. The
driver would only need to close the
hood in the event of a fire in the engine
compartment to cut off the supply of
oxygen.
4. The hood itself weighs
approximately 139 pounds. Given the
heavy weight of the hood and low
operating speeds of the APVs
(maximum 50 miles-per-hour (mph)),
these features preclude the hood from
unexpectedly opening due to air flow
lifting the hood open and forcing it
upward. The design of the engine hood
has been in service for nearly 30 years,
without incident. During testing, as
much as 69.5 pounds of force was
needed to lift the hood assembly. RTDI’s
consultant completed an analysis of the
aerodynamic loading of the unlatched
hood for the subject vehicles and
reviewed the parameters for the force of
air flow that potentially would cause an
unlatched hood to open. This analysis
was done by determining the applied
VerDate Sep<11>2014
17:35 Oct 20, 2021
Jkt 256001
aerodynamic forces due to lift and drag.
The resulting moments about the hood
hinge were then compared to the
moments created by the weight of the
hood. The overall goal was to determine
the air speed (combined vehicle and
headwind speed) necessary for the
moments created by aerodynamic forces
to exceed that of the moment created by
weight.
The hood consists of a flat steel plate
which is 49.5 inches long, 53.5 inches
wide, and weighs approximately 139
lbs. Calculations for aerodynamic forces
utilized flat plate assumptions with an
aspect ratio of 1.08. Under the worstcase scenario, RTDI’s consultant
estimated that the hood angle of attack
(AoA) will not exceed +5° during use;
however, calculations were completed
up to and including 10° in an excess of
caution. All calculations utilized highly
conservative assumptions and
approximations.
Below is a bulleted summary of the
RTDI consultant’s findings:
• Under normal fully-loaded driving
conditions, the hood sits at a zero or
slightly negative AoA. Given these
conditions, no lift can be generated on
the flat plate. Thus, there is no critical
speed sufficient to pivot the hood open.
• At the maximum projected AoA
(5°), an air speed of at least 100 mph
would be needed to generate sufficient
aerodynamic forces to begin to open the
hood.
• Even at 10° AoA, double that
expected in normal use, a minimum air
speed of 70 mph is necessary to
potentially open the hood. This speed is
still beyond the maximum combined
(vehicle and headwind) air speed that
would be seen by these vehicles in
normal operation.
Regarding FMVSS No. 302, RTDI
asserted that:
1. It had not certified each of the
individual components and materials
listed in FMVSS No. 302, S4.2 to the
burn rate requirements of S4.3.
However, all of the materials used in the
occupant compartment of the APVs do
follow the guidance provided by the
U.S. Coast Guard in NVIC 1–01:
Guidelines For The Certification Of
DUKW Amphibious Vehicles. The NVIC
recommends that:
Operators should consider highway
requirements and land use when
selecting the type of fire extinguishing
system. Pre-engineered automatic
systems may be required to shut down
the engine when activated. This could
pose a safety hazard if the DUKW is
equipped with power steering and or
brakes and the shutdown occurs in
traffic.
PO 00000
Frm 00136
Fmt 4703
Sfmt 4703
The fire protection system, as well as
other safety devices of the RTDI APVs,
are designed to take into consideration
the various hazards the vehicle may
encounter in different operating zones
(i.e., system approach).
2. The risk of fire associated with
APVs stems primarily from mechanical
and electrical faults serving as
mechanisms for ignition. The risk of fire
above deck is mitigated through
constant visual monitoring by the
onboard crew of the passenger
compartment, as well as enforcement of
a ‘‘No Smoking’’ policy. To satisfy U.S.
Coast Guard requirements for
commercial operations on water, RTDI
APVs are outfitted with a robust fire
protection system not normally found
on land based vehicles, including the
presence of fire extinguishers on board
each vehicle. In addition, the
construction of the APVs takes into
account the particular risks associated
with a vehicle that operates both on
road and in the water. For example,
traditional automotive wire is not
allowed. Instead, marine electrical wire
is required to be used, which is
specifically designed for harsh
environments: it is flexible yet heavily
coated, resistant to corrosion and less
likely to chafe and cause fires.
Below is a list of U.S. Coast Guard fire
protection standards which the RTDI
APVs meet. Although these standards
are promulgated by the U.S. Coast
Guard, they are all aimed at fire
prevention and mitigation and would
prevent a fire from occurring on the
road as well as in the water.
• 46 CFR 185.504 Emergency
Instructions List Posted
• 46 CFR 176.810 (a) and (7)/181.450
Fire and Smoke Detection System
• 46 CFR 176.810/176.810 (b) and (1)
Portable Fire Extinguishers
• 46 CFR 181.500 Date Cylinder Hydro
Tested
• 46 CFR 181.520 Proper Location
• 46 CFR 176.810 (a) and (b) Fixed Fire
Extinguishing System
• 46 CFR 181.400 Annual Service
• 46 CFR 182.465 (h) Engine Power/
Ventilation Shut Down
• 46 CFR 182.425 Exhaust Systems
• 46 CFR 176.804 Fuel System
• 46 CFR 182.460 Tank Space Properly
Vented
• 46 CFR 182.450 (e) Fuel Tank Vent
• 46 CFR 182.15–35 Vent Opening
• 46 CFR 182.440 (b/4) Independent
Fuel Tank Ground
• 46 CFR 182.455 (b/4) Shut Off Valve
(Tank/Engine)
• 46 CFR 182.20–40 (b/5) Fuel Tank
Hose
• 46 CFR 182.20.30 (d) Flexible Hoses
(SAE J–1942)
E:\FR\FM\21OCN1.SGM
21OCN1
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Notices
jspears on DSK121TN23PROD with NOTICES1
• 46 CFR 182.470 Ventilation of
Machinery Spaces
• 46 CFR 182.470/182.460 (e)
• 46 CFR 182.15–45 Closure Devices for
Spaces w/Fixed CO2
• 46 CFR 182.710/182.40–1 Vital
Systems Piping
• 46 CFR 182.720/182.40 Non-Metallic
Piping
• 46 CFR 183.310 Primary Power and
Lighting System
• 46 CFR 183.376 Grounding
• 46 CFR 176.806/183.310/183.350/
183.354 Batteries/Alternators
• 46 CFR 183.330/183.05–15/183.10–15
Switchboards and Distribution Panels
• 46 CFR 183.340/183.05–45/183.05–
50/183.10–20 Cable/Wiring
• 46 CFR 176.810 (b) (2) Fixed CO2
Certificate
3. The fire protection features
satisfying the list of requirements cited
above are also relevant to the prevention
or suppression of fire during on road
use of the APVs and all RTDI operators
are trained in the use of these systems
for both land and water operation. The
design and construction of the APVs is
consistent with the requirements set out
above. Further, RTDI APV operators
hold both commercial driver’s licenses
and U.S. Coast Guard certified vessel
captain licenses. As the purpose of
FMVSS No. 302 is to ‘‘reduce deaths
caused by vehicle fires, especially those
originating in the interior of the vehicle
from sources such as matches or
cigarettes,’’ the measures taken to
mitigate against the outbreak of fires in
the APVs per U.S. Coast Guard
regulations also mitigate against the risk
of fire contemplated by the FMVSS.
4. The APVs meet all U.S. Coast
Guard requirements related to fire
prevention and emergency response,
which provides an equivalent level of
protection from the risks contemplated
by FMVSS No. 302.
5. In recall 17V–193, RTDI
determined that the amphibious
vehicles it manufactured between 1996
and 2014 do not meet the requirements
of FMVSS No. 302. To view NTHSA’s
information request to RTDI and RTDI’s
full response including pictures and
further vehicle information please refer
to the docket.
VII. NHTSA’s Analysis: The agency
has reviewed RTDI’s petition and
provides the following analysis:
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
VerDate Sep<11>2014
17:35 Oct 20, 2021
Jkt 256001
noncompliances inconsequential.4
Potential performance failures of safetycritical equipment, like seat belts or air
bags, are rarely deemed inconsequential.
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.5 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.’’ 6
‘‘[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.’’ 7
Arguments that only a small number
of vehicles or items of motor vehicle
equipment are affected have also not
justified granting an inconsequentiality
petition.8 Similarly, NHTSA has
rejected petitions based on the assertion
that only a small percentage of vehicles
4 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).
5 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).
6 Morgan 3 Wheeler Limited; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR
21663, 21666 (Apr. 12, 2016).
7 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’’).
8 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).
PO 00000
Frm 00137
Fmt 4703
Sfmt 4703
58383
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.9
RTDI has not met its burden of
demonstrating that the noncompliance
with FMVSS No. 113 is inconsequential.
In regards to FMVSS No. 113, RTDI says
that as a practical matter, the hood on
these vehicles is heavier than hoods on
traditional vehicles and because of the
weight it is highly unlikely that the
force of the wind against the vehicle
could move the hood. As the agency
understands the hood design, the hood
simply rests in the down position due
to its weight and the effects of gravity.
RTDI explained that ‘‘the hood
incorporates a stand which rests on a
cam lever that is mechanically operated
by a cable and handle located in the
driver’s compartment. To close the
hood, the driver simply pulls a handle
which rotates the cam and closes the
hood.’’ RTDI also explained that the
hood on these vehicles must remain in
an elevated open position at all times
while operating (i.e., while on public
roads and on waterways) in order to
provide the engine with sufficient air
flow. The agency is concerned,
regardless of hood position (i.e., fully
closed or normally elevated), that any
irregularities in the roadway (i.e.,
humps, bumps, debris or pot holes)
could cause the hood to bounce up and
down from its resting place. In its
normal partially opened position, and
with no hood latching system, there is
an increased risk that the hood on these
vehicles could inadvertently fly open
when encountering the right
combination of vehicle loading, road
geometry, road debris, vehicle speed,
and wind speed.
RTDI had a consultant conduct an
aerodynamic loading analysis to look at
the possibility of the hood lifting, due
to vehicle and wind speeds, and hood
angle of incline. The actual analysis was
not provided to the agency, but a
summary of the results was provided by
RTDI. The analysis concluded that
under ‘‘normal fully-loaded driving
conditions’’ and a wind speed in the
range of 70–100 mph, based on different
hood elevation levels, the hood could
begin to open. The agency is unable to
9 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).
E:\FR\FM\21OCN1.SGM
21OCN1
jspears on DSK121TN23PROD with NOTICES1
58384
Federal Register / Vol. 86, No. 201 / Thursday, October 21, 2021 / Notices
fully assess whether the consultant’s
analysis supports RTDI’s claims because
the underlying data, calculations, and
supporting assumptions were not
provided to the agency in a manner
sufficient to accept the consultant’s
analysis. Even if the agency were to
accept the consultant’s analysis, the
agency would remain concerned about
the safety risk. For example, a vehicle
traveling at or near the 50 mph
maximum speed that encounters a
strong wind gust could foreseeably
experience total wind speed at or above
the wind speed range of 70–100 mph,
causing the hood to open and
obstructing the driver’s view.
RTDI stated that in 30 years it has
never received a report or allegation
involving the opening of the hood while
operating on the public roads or in
public waterways. From a safety
perspective, the agency believes that the
absence of prior reports or allegations of
the hood opening under operation is not
sufficient justification to ensure it will
not happen in the future.
RTDI also stated that the presence of
a secondary hood latch system is
unnecessary because operating these
vehicles with the hood slightly elevated
diminishes the potential for a fire to
occur in these vehicles. FMVSS No. 302
and FMVSS No. 113 are separate safety
standards addressing separate safety
needs. FMVSS No. 302 specifies burn
resistance requirements for materials
used in the occupant compartments of
motor vehicles and FMVSS No. 113
establishes the requirement for
providing a hood latch system or hood
latch systems to reduce the risk of the
hood opening and obstructing the
driver’s view. Reducing the probability
of a vehicle fire is not an appropriate
justification for not meeting the safety
requirements of FMVSS No. 113.
RTDI also has not met its burden of
demonstrating that the noncompliance
with FMVSS No. 302 is inconsequential
to safety, particularly without having
provided information on the burn rates
of the materials in the occupant
compartment. The purpose of FMVSS
No. 302 is to establish a burn rate for
materials to reduce severity and
frequency of burn injuries, allow the
driver time to stop the vehicle, and
increase occupant evacuation time.
FMVSS No. 302 differs from U.S.
Coast Guard standards in that FMVSS
No. 302 has a burn rate requirement for
interior materials while U.S. Coast
Guard standards focus on containment
of fires originating in the engine and fire
suppression. In response to an inquiry
by the agency, RTDI stated that each of
the individual components and
materials within the boundaries of the
VerDate Sep<11>2014
17:35 Oct 20, 2021
Jkt 256001
occupant compartment of the subject
APVs has not been certified to the burn
rate requirements of paragraph S4.3 of
FMVSS No. 302; however, it meets the
standards and follows the guidelines
provided by the U.S. Coast Guard. RTDI
stated that the APVs are equipped with
fire suppression systems and that the
operators of the subject APVs hold both
commercial driver’s licenses and U.S.
Coast Guard certified vessel captain
licenses and are trained to identify and
suppress a fire, should one occur.
While U.S. Coast Guard regulations
are intended to mitigate some of the
same fire risks as FMVSS No. 302, there
are other potential sources of fire that
the U.S. Coast Guard regulations do not
address. In addition to fires originating
in the engine compartment, NHTSA is
concerned about other sources of fire,
such as a fire originating from a vehicle
crash, that may occur when the vehicle
is operating on a roadway. Having
trained personnel on board the subject
APVs does not necessarily mitigate the
need for compliance with FMVSS No.
302. Without information on the actual
burn rates of the materials used in the
vehicles’ occupant compartment,
NHTSA cannot evaluate whether the
factors cited by RTDI mitigate the
noncompliance to the point that it is
inconsequential to motor vehicle safety.
For instance, if the materials used in the
occupant compartment are highly
flammable, trained personnel may not
have sufficient time to use a fire
extinguisher in the event of a fire, or
activate the fire suppression systems.
Lastly, RTDI also stated that it has a
strict ‘‘No Smoking’’ policy and that the
operators and crew monitor the
passengers accordingly. Having a ‘‘No
Smoking’’ policy does not necessarily
appropriately mitigate safety risk in the
subject APVs. A ‘‘No Smoking’’ policy
would not prevent fires from other
sources, even assuming that such a
policy is always followed. Further,
NHTSA cannot rely on RTDI’s policies
as a means to mitigate safety risks
because later operations/owners may
not implement on the same policies.
VIII. NHTSA’s Decision: In
consideration of the foregoing, NHTSA
finds that RTDI has not met its burden
of persuasion that the noncompliances
with FMVSS No. 113 and 302 in the
subject vehicles are 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, the noncompliances
under 49 U.S.C. 30118 and 30120.
PO 00000
Frm 00138
Fmt 4703
Sfmt 4703
(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. 2021–22975 Filed 10–20–21; 8:45 am]
BILLING CODE 4910–59–P
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
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
AGENCY:
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.
SUMMARY:
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
E:\FR\FM\21OCN1.SGM
21OCN1
]]>Agencies
[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58380-58384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22975]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2017-0039; 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.
-----------------------------------------------------------------------
SUMMARY: Ride the Ducks International, LLC (RTDI), has determined that
certain model year (MY) 1996-2014 RTDI Stretch Amphibious passenger
vehicles (APVs) do not fully comply with Federal Motor Vehicle Safety
Standard (FMVSS) No. 113, Hood Latch System, and FMVSS No. 302,
Flammability of Interior Materials. RTDI filed a noncompliance
information report dated March 15, 2017. RTDI also petitioned NHTSA on
April 12, 2017, for a decision that the subject noncompliances are
inconsequential as they relate to motor vehicle safety. This document
announces the denial of RTDI's petition.
FOR FURTHER INFORMATION CONTACT: Abraham Diaz at (202) 366-5310
regarding FMVSS No. 302, and Neil Dold at (202) 366-7352 regarding
FMVSS No. 113; Office of Vehicle Safety Compliance, NHTSA, facsimile
(202) 366-5930.
SUPPLEMENTARY INFORMATION:
I. Overview: RTDI has determined that certain MY 1996-2014 RTDI
APVs do not fully comply with paragraph S4.2 of FMVSS No. 113, Hood
Latch System (49 CFR 571.113), and paragraph S2 of FMVSS No. 302,
Flammability of Interior Materials (49 CFR 571.302). 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
these noncompliances are inconsequential as they relate to motor
vehicle safety.
Notice of receipt of the petition was published in the Federal
Register (82 FR 43452) with a 30-day public comment period, on
September 15, 2017. No comments were received. To view the petition and
all supporting documents log onto the Federal Docket Management System
(FDMS) website at: https://www.regulations.gov/. Then follow the online
search instructions to locate docket number ``NHTSA-2017-0039.''
II. Vehicles Involved: Approximately 105 MY 1996-2014 RTDI Stretch
APVs, manufactured between January 1, 1996 and December 31, 2014 are
potentially involved.
III. Noncompliances: RTDI explained that the noncompliances are
that the subject vehicles were not equipped with a secondary hood latch
system, as required by paragraph S4.2 of FMVSS No. 113, and that there
are interior components and materials that do not conform to the burn
rate requirements of paragraph S2 of FMVSS No. 302.
IV. Rule Requirements: Requirements from FMVSS No. 113 and 302 are
relevant to this petition. Specifically, paragraph S4.2 of FMVSS No.
113 requires that a front opening hood which, in any open position,
partially or completely obstructs a driver's forward view through the
windshield must be provided with a second latch position on the hood
latch system or with a second hood latch system. Paragraphs S2 and S4
of FMVSS No. 302 explain that the purpose of FMVSS No. 302 is to reduce
the deaths and injuries to motor vehicle occupants caused by vehicle
fires, especially those originating in the interior of the vehicle from
sources such as matches or cigarettes. FMVSS No. 302 lists the
components of vehicle occupant compartments that shall meet the burn
rate requirements of the standard and specifies the maximum allowable
burn rate of material under specified test conditions.
V. Summary of RTDI's Petition: RTDI states that it began to produce
APVs in
[[Page 58381]]
1996 by performing extensive modifications to General Motors (GM)
amphibious military trucks, which were originally designated with
product code DUKW per GM's nomenclature.\1\ 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.
---------------------------------------------------------------------------
\1\ NHTSA notes that 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.
---------------------------------------------------------------------------
RTDI described the subject noncompliances as the lack of a
secondary hood latch system and the failure of certain materials in the
passenger compartment to meet burn resistance requirements. RTDI stated
its belief that the noncompliances are inconsequential as they relate
to motor vehicle safety.
In support of its petition, RTDI submitted the following reasoning:
1. FMVSS No. 113 specifies, ``a front opening hood which, in any
open position, partially or completely obstructs a driver's forward
view through the windshield must be provided with a second latch
position on the hood latch system or with a second hood latch system.''
49 CFR 571.113, S4.2. The purpose of FMVSS No. 113 is to establish
requirements for vehicle hood latch systems so that the hood remains
secure while the vehicle is operated even if the primary latch fails or
is not properly engaged. The absence of a secondary latch increases the
possibility that the hood may open during vehicle operation and prevent
the driver from seeing the road ahead.
2. The U.S. Coast Guard has adopted specific design and operational
requirements for APVs.\2\ Pursuant to U.S. Coast Guard regulations,
while an APV is operating on water, the hood is to remain in an
``open'' position. See 46 CFR 182.460 (``a space containing machinery
powered by, or fuel tanks for, gasoline must have a ventilation system
that complies with this section''), 46 CFR 182.465 (``a space
containing diesel machinery must be fitted with adequate means . . . to
provide sufficient air for proper operation of main engines and
auxiliary engines.''). This requirement is intended to permit a
sufficient amount of air flow around the engine compartment, which
reduces the potential for the engine to overheat and potentially cause
a fire.\3\ During waterborne operation, the hood of the APV is opened
or elevated by approximately four inches. Although the hood of the APV
is slightly raised, it has vertical arms which rest on manually
operated drop latches. The hood does not pose a risk of opening
unexpectedly during operation, even without a secondary hood latch
system. The hoods of the APVs are substantially heavier than the hoods
of traditional motor vehicles. As a practical matter, it is highly
unlikely that the force of the wind against the vehicle could move the
hood of the APV. In its more than 30 years of operation, RTDI has never
received a report or allegation involving the opening of a vehicle's
hood while operating either on the public roads or in the public
waterways.
---------------------------------------------------------------------------
\2\ Under the U.S. Coast Guard rubric, APVs are classified as
``T-Boats'' which are small passenger vessels weighing less than 100
gross tons.
\3\ U.S. Coast Guard regulations also require that while
operating in the water, the engine compartment can be fully closed.
In the event of a fire in the engine compartment, the operator will
deploy the hood latch, dropping the hood and closing off the
compartment. This feature is designed to contain the fire by
preventing the flow of oxygen around the engine.
---------------------------------------------------------------------------
3. FMVSS No. 302 sets out the burn resistance requirements for
materials used in certain parameters within the occupant compartments
of vehicles. The stated purpose of FMVSS No. 302 is ``to reduce the
deaths and injuries to motor vehicle occupants caused by vehicle fires,
especially those originating in the interior of the vehicle from
sources such as matches or cigarettes.'' 49 CFR 571.302, S2.
The fire risks that exist in traditional motor vehicles are not the
same concerns that present themselves in the APVs. Mitigating the risks
of a fire occurring on board an APV are centered around the operation
and safeguarding of the engine compartment and passenger egress
conditions.
The APVs also have installed a series of systems designed to
protect passengers and allow for ease of egress from the occupant
compartment in the event of a fire. The RTDI vehicles have an open-air
design with multiple areas of passenger egress. Additionally, and per
U.S. Coast Guard requirements, all of the vehicles have a fire
suppression system installed throughout the vehicle. The fire
suppression systems include vent closures, heat detection devices,
vapor detection systems and fire extinguishing systems. In the event of
a fire in the APV, the operator will activate the fire suppression
system which releases the carbon dioxide fire extinguishing agent. The
vehicles are also equipped with two portable fire extinguishers and all
vehicle operators receive emergency evacuation training on no less than
a quarterly basis, per U.S. Coast Guard requirements, and often more
regularly.
4. By contrast, FMVSS No. 302 is primarily concerned with
protecting passengers against vehicle fires that occur due to flames or
sparks inside the vehicle. In addition to the safety features described
above, the vehicles have implemented other measures that provide an
equivalent measure of safety to vehicle occupants. Smoking is expressly
prohibited in the APVs. Passengers are advised of this requirement
prior to the start of the tour. Onboard each vehicle there is a
``narrator'' or second crew member present. The narrator sits rearward,
facing into the occupant compartment and in continuous view of the
passengers' activities at all times while the APV is in operation. The
narrator is physically located so that he/she would be able to see and
stop a passenger attempting to light a match, flame or smoke on board.
In recognizing that APVs have a unique design and may encounter
specialized hazard conditions, the U.S. Coast Guard employs a ``systems
approach'' to certification for APVs. To meet U.S. Coast Guard
requirements, the APVs must have ``a level of safety equivalent to that
required for a vessel of similar size and service.'' See Navigation and
Vessel Inspection Circular (NVIC) No. 1-01. These requirements are met,
``in part through a combination of design requirements and operational
restrictions'' and by considering ``the entire vehicle and its
equipment as a complete safety system.'' Id. The RTDI APVs are
certified to meet U.S. Coast Guard fire safety requirements for T-
boats.
5. 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). The design and construction of the
APVs address the potential risks to passenger safety arising from fire-
related concerns to these vehicles. The safety features present on the
APVs provide a level of protection that is, at a minimum, equivalent to
the vehicle safety standards so that granting the
[[Page 58382]]
company's petition would be appropriate.
RTDI concluded by expressing the belief that the subject
noncompliances are inconsequential as they relate to motor vehicle
safety, and that its petition to be exempted from providing
notification of the noncompliances, as required by 49 U.S.C. 30118, and
a remedy for the noncompliances, 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. 113, RTDI asserted that:
1. From the driver's seat with the hood open in the normal
operating position there is no obstruction to the driver's view. When
in the ``open'' position, the hood is elevated at an angle of
approximately 4.5 inches to 5 inches. The tip of the bow of the APV
remains visible with the hood open or closed. There is no visual
obstruction to the driver when the hood is in the ``open'' position.
2. The vehicle's engine requires the hood to remain partially open
to provide sufficient air flow to the engine. The engine's air supply
is forced through the forward opening of the engine hood. The radiator
has a reverse fan which draws fresh air through the radiator to keep
the engine cool.
3. The hood incorporates a stand which rests on a cam lever that is
mechanically operated by a cable and handle located in the driver's
compartment. To close the hood, the driver simply pulls a handle which
rotates the cam and closes the hood. The driver would only need to
close the hood in the event of a fire in the engine compartment to cut
off the supply of oxygen.
4. The hood itself weighs approximately 139 pounds. Given the heavy
weight of the hood and low operating speeds of the APVs (maximum 50
miles-per-hour (mph)), these features preclude the hood from
unexpectedly opening due to air flow lifting the hood open and forcing
it upward. The design of the engine hood has been in service for nearly
30 years, without incident. During testing, as much as 69.5 pounds of
force was needed to lift the hood assembly. RTDI's consultant completed
an analysis of the aerodynamic loading of the unlatched hood for the
subject vehicles and reviewed the parameters for the force of air flow
that potentially would cause an unlatched hood to open. This analysis
was done by determining the applied aerodynamic forces due to lift and
drag. The resulting moments about the hood hinge were then compared to
the moments created by the weight of the hood. The overall goal was to
determine the air speed (combined vehicle and headwind speed) necessary
for the moments created by aerodynamic forces to exceed that of the
moment created by weight.
The hood consists of a flat steel plate which is 49.5 inches long,
53.5 inches wide, and weighs approximately 139 lbs. Calculations for
aerodynamic forces utilized flat plate assumptions with an aspect ratio
of 1.08. Under the worst-case scenario, RTDI's consultant estimated
that the hood angle of attack (AoA) will not exceed +5[deg] during use;
however, calculations were completed up to and including 10[deg] in an
excess of caution. All calculations utilized highly conservative
assumptions and approximations.
Below is a bulleted summary of the RTDI consultant's findings:
Under normal fully-loaded driving conditions, the hood
sits at a zero or slightly negative AoA. Given these conditions, no
lift can be generated on the flat plate. Thus, there is no critical
speed sufficient to pivot the hood open.
At the maximum projected AoA (5[deg]), an air speed of at
least 100 mph would be needed to generate sufficient aerodynamic forces
to begin to open the hood.
Even at 10[deg] AoA, double that expected in normal use, a
minimum air speed of 70 mph is necessary to potentially open the hood.
This speed is still beyond the maximum combined (vehicle and headwind)
air speed that would be seen by these vehicles in normal operation.
Regarding FMVSS No. 302, RTDI asserted that:
1. It had not certified each of the individual components and
materials listed in FMVSS No. 302, S4.2 to the burn rate requirements
of S4.3. However, all of the materials used in the occupant compartment
of the APVs do follow the guidance provided by the U.S. Coast Guard in
NVIC 1-01: Guidelines For The Certification Of DUKW Amphibious
Vehicles. The NVIC recommends that:
Operators should consider highway requirements and land use when
selecting the type of fire extinguishing system. Pre-engineered
automatic systems may be required to shut down the engine when
activated. This could pose a safety hazard if the DUKW is equipped with
power steering and or brakes and the shutdown occurs in traffic.
The fire protection system, as well as other safety devices of the
RTDI APVs, are designed to take into consideration the various hazards
the vehicle may encounter in different operating zones (i.e., system
approach).
2. The risk of fire associated with APVs stems primarily from
mechanical and electrical faults serving as mechanisms for ignition.
The risk of fire above deck is mitigated through constant visual
monitoring by the onboard crew of the passenger compartment, as well as
enforcement of a ``No Smoking'' policy. To satisfy U.S. Coast Guard
requirements for commercial operations on water, RTDI APVs are
outfitted with a robust fire protection system not normally found on
land based vehicles, including the presence of fire extinguishers on
board each vehicle. In addition, the construction of the APVs takes
into account the particular risks associated with a vehicle that
operates both on road and in the water. For example, traditional
automotive wire is not allowed. Instead, marine electrical wire is
required to be used, which is specifically designed for harsh
environments: it is flexible yet heavily coated, resistant to corrosion
and less likely to chafe and cause fires.
Below is a list of U.S. Coast Guard fire protection standards which
the RTDI APVs meet. Although these standards are promulgated by the
U.S. Coast Guard, they are all aimed at fire prevention and mitigation
and would prevent a fire from occurring on the road as well as in the
water.
46 CFR 185.504 Emergency Instructions List Posted
46 CFR 176.810 (a) and (7)/181.450 Fire and Smoke Detection
System
46 CFR 176.810/176.810 (b) and (1) Portable Fire Extinguishers
46 CFR 181.500 Date Cylinder Hydro Tested
46 CFR 181.520 Proper Location
46 CFR 176.810 (a) and (b) Fixed Fire Extinguishing System
46 CFR 181.400 Annual Service
46 CFR 182.465 (h) Engine Power/Ventilation Shut Down
46 CFR 182.425 Exhaust Systems
46 CFR 176.804 Fuel System
46 CFR 182.460 Tank Space Properly Vented
46 CFR 182.450 (e) Fuel Tank Vent
46 CFR 182.15-35 Vent Opening
46 CFR 182.440 (b/4) Independent Fuel Tank Ground
46 CFR 182.455 (b/4) Shut Off Valve (Tank/Engine)
46 CFR 182.20-40 (b/5) Fuel Tank Hose
46 CFR 182.20.30 (d) Flexible Hoses (SAE J-1942)
[[Page 58383]]
46 CFR 182.470 Ventilation of Machinery Spaces
46 CFR 182.470/182.460 (e)
46 CFR 182.15-45 Closure Devices for Spaces w/Fixed
CO2
46 CFR 182.710/182.40-1 Vital Systems Piping
46 CFR 182.720/182.40 Non-Metallic Piping
46 CFR 183.310 Primary Power and Lighting System
46 CFR 183.376 Grounding
46 CFR 176.806/183.310/183.350/183.354 Batteries/Alternators
46 CFR 183.330/183.05-15/183.10-15 Switchboards and
Distribution Panels
46 CFR 183.340/183.05-45/183.05-50/183.10-20 Cable/Wiring
46 CFR 176.810 (b) (2) Fixed CO2 Certificate
3. The fire protection features satisfying the list of requirements
cited above are also relevant to the prevention or suppression of fire
during on road use of the APVs and all RTDI operators are trained in
the use of these systems for both land and water operation. The design
and construction of the APVs is consistent with the requirements set
out above. Further, RTDI APV operators hold both commercial driver's
licenses and U.S. Coast Guard certified vessel captain licenses. As the
purpose of FMVSS No. 302 is to ``reduce deaths caused by vehicle fires,
especially those originating in the interior of the vehicle from
sources such as matches or cigarettes,'' the measures taken to mitigate
against the outbreak of fires in the APVs per U.S. Coast Guard
regulations also mitigate against the risk of fire contemplated by the
FMVSS.
4. The APVs meet all U.S. Coast Guard requirements related to fire
prevention and emergency response, which provides an equivalent level
of protection from the risks contemplated by FMVSS No. 302.
5. In recall 17V-193, RTDI determined that the amphibious vehicles
it manufactured between 1996 and 2014 do not meet the requirements of
FMVSS No. 302. To view NTHSA's information request to RTDI and RTDI's
full response including pictures and further vehicle information please
refer to the docket.
VII. NHTSA's Analysis: The agency has reviewed RTDI's petition and
provides the following analysis:
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.\4\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
---------------------------------------------------------------------------
\4\ 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).
---------------------------------------------------------------------------
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.\5\ 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.'' \6\
``[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.'' \7\
---------------------------------------------------------------------------
\5\ 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).
\6\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\7\ 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'').
---------------------------------------------------------------------------
Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\8\ 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.\9\
---------------------------------------------------------------------------
\8\ 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).
\9\ 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).
---------------------------------------------------------------------------
RTDI has not met its burden of demonstrating that the noncompliance
with FMVSS No. 113 is inconsequential. In regards to FMVSS No. 113,
RTDI says that as a practical matter, the hood on these vehicles is
heavier than hoods on traditional vehicles and because of the weight it
is highly unlikely that the force of the wind against the vehicle could
move the hood. As the agency understands the hood design, the hood
simply rests in the down position due to its weight and the effects of
gravity. RTDI explained that ``the hood incorporates a stand which
rests on a cam lever that is mechanically operated by a cable and
handle located in the driver's compartment. To close the hood, the
driver simply pulls a handle which rotates the cam and closes the
hood.'' RTDI also explained that the hood on these vehicles must remain
in an elevated open position at all times while operating (i.e., while
on public roads and on waterways) in order to provide the engine with
sufficient air flow. The agency is concerned, regardless of hood
position (i.e., fully closed or normally elevated), that any
irregularities in the roadway (i.e., humps, bumps, debris or pot holes)
could cause the hood to bounce up and down from its resting place. In
its normal partially opened position, and with no hood latching system,
there is an increased risk that the hood on these vehicles could
inadvertently fly open when encountering the right combination of
vehicle loading, road geometry, road debris, vehicle speed, and wind
speed.
RTDI had a consultant conduct an aerodynamic loading analysis to
look at the possibility of the hood lifting, due to vehicle and wind
speeds, and hood angle of incline. The actual analysis was not provided
to the agency, but a summary of the results was provided by RTDI. The
analysis concluded that under ``normal fully-loaded driving
conditions'' and a wind speed in the range of 70-100 mph, based on
different hood elevation levels, the hood could begin to open. The
agency is unable to
[[Page 58384]]
fully assess whether the consultant's analysis supports RTDI's claims
because the underlying data, calculations, and supporting assumptions
were not provided to the agency in a manner sufficient to accept the
consultant's analysis. Even if the agency were to accept the
consultant's analysis, the agency would remain concerned about the
safety risk. For example, a vehicle traveling at or near the 50 mph
maximum speed that encounters a strong wind gust could foreseeably
experience total wind speed at or above the wind speed range of 70-100
mph, causing the hood to open and obstructing the driver's view.
RTDI stated that in 30 years it has never received a report or
allegation involving the opening of the hood while operating on the
public roads or in public waterways. From a safety perspective, the
agency believes that the absence of prior reports or allegations of the
hood opening under operation is not sufficient justification to ensure
it will not happen in the future.
RTDI also stated that the presence of a secondary hood latch system
is unnecessary because operating these vehicles with the hood slightly
elevated diminishes the potential for a fire to occur in these
vehicles. FMVSS No. 302 and FMVSS No. 113 are separate safety standards
addressing separate safety needs. FMVSS No. 302 specifies burn
resistance requirements for materials used in the occupant compartments
of motor vehicles and FMVSS No. 113 establishes the requirement for
providing a hood latch system or hood latch systems to reduce the risk
of the hood opening and obstructing the driver's view. Reducing the
probability of a vehicle fire is not an appropriate justification for
not meeting the safety requirements of FMVSS No. 113.
RTDI also has not met its burden of demonstrating that the
noncompliance with FMVSS No. 302 is inconsequential to safety,
particularly without having provided information on the burn rates of
the materials in the occupant compartment. The purpose of FMVSS No. 302
is to establish a burn rate for materials to reduce severity and
frequency of burn injuries, allow the driver time to stop the vehicle,
and increase occupant evacuation time.
FMVSS No. 302 differs from U.S. Coast Guard standards in that FMVSS
No. 302 has a burn rate requirement for interior materials while U.S.
Coast Guard standards focus on containment of fires originating in the
engine and fire suppression. In response to an inquiry by the agency,
RTDI stated that each of the individual components and materials within
the boundaries of the occupant compartment of the subject APVs has not
been certified to the burn rate requirements of paragraph S4.3 of FMVSS
No. 302; however, it meets the standards and follows the guidelines
provided by the U.S. Coast Guard. RTDI stated that the APVs are
equipped with fire suppression systems and that the operators of the
subject APVs hold both commercial driver's licenses and U.S. Coast
Guard certified vessel captain licenses and are trained to identify and
suppress a fire, should one occur.
While U.S. Coast Guard regulations are intended to mitigate some of
the same fire risks as FMVSS No. 302, there are other potential sources
of fire that the U.S. Coast Guard regulations do not address. In
addition to fires originating in the engine compartment, NHTSA is
concerned about other sources of fire, such as a fire originating from
a vehicle crash, that may occur when the vehicle is operating on a
roadway. Having trained personnel on board the subject APVs does not
necessarily mitigate the need for compliance with FMVSS No. 302.
Without information on the actual burn rates of the materials used in
the vehicles' occupant compartment, NHTSA cannot evaluate whether the
factors cited by RTDI mitigate the noncompliance to the point that it
is inconsequential to motor vehicle safety. For instance, if the
materials used in the occupant compartment are highly flammable,
trained personnel may not have sufficient time to use a fire
extinguisher in the event of a fire, or activate the fire suppression
systems.
Lastly, RTDI also stated that it has a strict ``No Smoking'' policy
and that the operators and crew monitor the passengers accordingly.
Having a ``No Smoking'' policy does not necessarily appropriately
mitigate safety risk in the subject APVs. A ``No Smoking'' policy would
not prevent fires from other sources, even assuming that such a policy
is always followed. Further, NHTSA cannot rely on RTDI's policies as a
means to mitigate safety risks because later operations/owners may not
implement on the same policies.
VIII. NHTSA's Decision: In consideration of the foregoing, NHTSA
finds that RTDI has not met its burden of persuasion that the
noncompliances with FMVSS No. 113 and 302 in the subject vehicles are
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, the noncompliances 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. 2021-22975 Filed 10-20-21; 8:45 am]
BILLING CODE 4910-59-P
