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Utilimaster Corporation, Denial of Petition for Decision of Inconsequential Noncompliance

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Trucking American Government Topics:  Utilimaster

Utilimaster Corporation, Denial of Petition for Decision of Inconsequential Noncompliance

Nancy Lummen Lewis
National Highway Traffic Safety Administration
August 9, 2012


[Federal Register Volume 77, Number 154 (Thursday, August 9, 2012)]
[Notices]
[Pages 47699-47702]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19581]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0019; Notice 2]


Utilimaster Corporation, Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice of Petition Denial.

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SUMMARY: Utilimaster Corporation (Utilimaster),\1\ has determined that 
certain model year 2009-2011 Utilimaster walk-in van-type trucks 
manufactured between September 1, 2009 and December 22, 2011 do not 
comply with paragraph S4.2.1 of Federal Motor Vehicle Safety Standard 
(FMVSS) No. 206, Door Locks and Door Retention Components. Utilimaster 
filed an appropriate report dated December 30, 2011, pursuant to 49 CFR 
part 573, Defect and Noncompliance Responsibility and Reports.
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    \1\ Utilimaster Corporation, a wholly owned subsidiary of 
Spartan Motors, Inc., is a manufacturer of motor vehicles.
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule 
implementing those provisions at 49 CFR part 556, on January 23, 2012, 
Spartan Motors, Inc.,\2\ on behalf of Utilimaster, has petitioned for 
an exemption from the notification and remedy requirements of 49 U.S.C. 
Chapter 301 on the basis that this noncompliance is inconsequential to 
motor vehicle safety. The National Highway Traffic Safety 
Administration (NHTSA) published a notice of receipt of the petition, 
with a 30-day public comment period, on February 17, 2012, in the 
Federal Register (77 FR 9726). The only comments received were from 
Morgan Olson, LLC (Morgan Olson).\3\ To view the petition, the 
comments, and all supporting documents log onto the Federal Docket 
Management System (FDMS) Web site at: http://www.regulations.gov/. Then 
follow the online search instructions to locate docket number ``NHTSA-
2012-0019.''
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    \2\ Spartan Motors, Inc., is a manufacturer of motor vehicles.
    \3\ Morgan Olson, LLC, is a manufacturer of motor vehicles.
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    Contact Information: For further information on this decision 
contact Mr. Tony Lazzaro, Office of Vehicle Safety Compliance, the 
National Highway Traffic Safety Administration (NHTSA), telephone (202) 
366-5304, facsimile (202) 366-7002.
    Relevant Requirements of FMVSS No. 206: FMVSS No. 206 paragraph 
S4.2.1 requires in pertinent part that each sliding door system shall 
be equipped with either: (a) At least one primary door latch system, or 
(b) a door latch system with a fully latched position and a door 
closure warning system. The door closure warning system shall be 
located where it can be clearly seen by the driver.
    A ``primary door latch'' is defined in FMVSS No. 206 paragraph S3 
as ``a latch equipped with both a fully latched position and a 
secondary latch position and is designated as a `primary door latch' by 
the manufacturer.'' A ``secondary latched position'' refers to ``the 
coupling condition of the latch that retains the door in a partially 
closed position.'' FMVSS No. 206 paragraph S3.
    A ``door closure warning system'' is defined in FMVSS No. 206 
paragraph S3 as ``a system that will activate a visual signal when a 
door latch system is not in its fully latched position and the vehicle 
ignition system is activated.''

[[Page 47700]]

    Vehicles involved: Affected are approximately 9,861 Utilimaster 
model year 2009-2011 walk-in van-type trucks.
    Noncompliance: Utilimaster states that the noncompliance is that 
while the sliding doors on the vehicles are equipped with a door latch 
system (but not a ``Primary Door Latch System''), no door closure 
warning system, as required by paragraph S4.2.1 of FMVSS No. 206, is 
installed.
    Summary of Utilimaster's Analysis Arguments: By way of background, 
Utilimaster recognizes that the sliding door latch requirements 
contained in paragraph S4.2.1 of FMVSS No. 206 were adopted in February 
2007 as part of a broader upgrade to the Agency's existing door latch 
and retention requirements. See Federal Motor Vehicle Safety Standards; 
Door Locks and Door Retention Components, Final Rule, 72 FR 5385 (Feb. 
6, 2007) [hereinafter 2007 Final Rule]. The effective date of these 
requirements was September l, 2009.
    As set forth in Utilimaster's noncompliance report, Utilimaster 
determined that the new latch requirements applied to these vehicles, 
but were not designed into vehicles built after the effective date. 
(This omission was the result of Utilimaster's previous 
misinterpretation as to the applicability of the FMVSS No. 206 
amendments to these particular vehicles).
    Utilimaster explains that the sliding doors on the subject vehicles 
are equipped with a door latch that does not meet the above-referenced 
definition of a ``primary door latch'' because these vehicles lack a 
secondary latched position. Thus, these vehicles do not meet the 
paragraph S4.2.l(a) compliance option. Moreover, these vehicles are not 
equipped with a ``door closure warning system'' and, therefore, they do 
not meet the paragraph S4.2.l(b) compliance option. Utilimaster 
believes that the omission of a door closure warning system on these 
vehicles is inconsequential to safety due to the particular 
characteristics of the sliding doors on these vehicles which, in its 
view, will immediately provide adequate visual (and audible) feedback 
to the driver to alert him or her in the event a door is unlatched.
    Utilimaster further states that the door has approximately 0.315 
inches of engagement into the door seal. Therefore, should the sliding 
door not be in the latched position, it would be readily apparent to 
the driver before the vehicle is driven. Even if the driver did not 
notice the gap in the door prior to the vehicle being driven, these 
doors would provide immediate visual feedback to the driver as soon as 
the vehicle begins to move. The sliding doors on these vehicles are 
designed to slide longitudinally on a track when the sliding door 
handle is activated and a small force is applied in the same 
longitudinal direction. As a consequence, if the sliding door is not 
fully closed and latched and the driver is not aware, this condition 
would become immediately apparent to the driver when the vehicle is 
accelerated from rest, as the sliding door would glide rearward from 
the force created by the acceleration. Thus, while these vehicles may 
not meet the express requirements of paragraph S4.2.1 or the definition 
of a ``door closure warning system,'' Utilimaster asserts they do meet 
the intent of these requirements. Utilimaster also argues that the use 
of other visual signals, such as a dash-mounted telltale, might be 
necessary for vehicles with rear sliding doors, such as minivans or 
other passenger vehicles, but the sliding doors on the subject vehicles 
are located in the front within plain view of the driver.
    Utilimaster further states that in adopting the upgraded sliding 
door standards in 2007, the Agency stated that it was particularly 
concerned with children riding in the rear seats of passenger vans 
(minivans or ``MPVs'').\4\
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    \4\ Federal Motor Vehicle Safety Standards; Door Locks and Door 
Retention Components, Final Rule, 72 FR 5385, 5387 (Feb. 6, 2007).
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    Utilimaster also states that these vehicles are used exclusively in 
commercial applications and are driven exclusively by professional 
drivers (primarily without a passenger). Utilimaster states that these 
drivers, in addition to having a commercial driver's license, have 
undergone highly regimented training programs and must adhere to 
corporate safety policies. This training requires that drivers enter 
and exit the vehicle from the curb side of the van and fasten the 
seatbelt when the vehicle is in motion. The repetitive use of the van 
results in highly repeatable results from one stop to the next. 
Utilimaster argues that the likelihood that a driver would move the 
vehicle with the door left inadvertently open is very low and that the 
likelihood that the driver would be ejected from the driver's seat, 
through a curb-side door, left unintentionally unlatched, is even less 
probable.
    Utilimaster states that it is not aware of a driver or passenger of 
its vehicles ever having been ejected from or fallen through an open 
sliding cab door while the vehicle was in motion. Utilimaster also 
notes that walk-in vans with sliding doors very similar in design to 
those on the subject vehicles have been in use for several decades.
    Additionally, Utilimaster argues that the sliding doors on these 
vehicles meet all load test and inertial requirements of FMVSS No. 206, 
paragraph S4.2, and therefore this noncompliance will not increase the 
risk of occupant ejection under conditions addressed by such 
requirements.
    In summary, Utilimaster contends that the noncompliance is 
inconsequential to motor vehicle safety, and that its petition, to 
exempt it from providing notification of noncompliance as required by 
49 U.S.C. 30118 and remedying the noncompliance as required by 49 
U.S.C. 30120, should be granted.
    Comments: NHTSA published a notice of the petition in the Federal 
Register to allow an opportunity for members of the public to present 
information, views, and arguments on the subject petition. As noted 
earlier, the only comments received were submitted by Morgan Olson, 
also a manufacturer of walk-in van-type trucks. Morgan Olson reported 
similar noncompliances with S4.2.1 of FMVSS No. 206 on January 19, 2012 
and filed its own Petition for Decision of Inconsequential 
Noncompliance on February 10, 2012.\5\ Morgan Olson commented in 
support of granting Utilimaster's petition for inconsequentiality. 
Morgan Olson echoed Utilimaster's arguments and provided information 
similar to that provided by Utilimaster. The Agency notes that an 
absence of opposing argument and data does not require the Agency to 
grant the petition.\6\
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    \5\ Morgan Olson, LLC, Receipt of Petition for Decision of 
Inconsequential Noncompliance, 77 FR 19055 (Mar. 29, 2012).
    \6\ Dorel Juvenile Group; Denial of Appeal of Decision on 
Inconsequential Noncompliance, 75 FR 507, 510 (Jan. 5, 2010).
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NHTSA'S Consideration of Utilimaster's Inconsequentiality Petition

    General Principles: Federal motor vehicle safety standards are 
adopted only after the Agency has determined, following notice and 
comment, that the standards are objective and practicable and ``meet 
the need for motor vehicle safety.'' See 49 U.S.C. 30111(a). Thus, 
there is a general presumption that the failure of a motor vehicle or 
item of motor vehicle equipment to comply with a FMVSS increases the 
risk to motor vehicle safety beyond the level deemed appropriate by 
NHTSA through the rulemaking process. To protect the public from such 
risks, manufacturers whose products fail to comply with an FMVSS are 
normally required to

[[Page 47701]]

conduct a safety recall under which they must notify owners, 
purchasers, and dealers of the noncompliance and provide a remedy 
without charge. 49 U.S.C. 30118-30120. However, Congress has recognized 
that, under some limited circumstances, a noncompliance could be 
``inconsequential'' to motor vehicle safety. ``Inconsequential'' is not 
defined either in the statute or in NHTSA's regulations. Rather, the 
Agency determines whether a particular noncompliance is inconsequential 
to motor vehicle safety based on the specific facts before it. The 
relevant issue in determining inconsequentiality is whether the 
noncompliance in question is likely to significantly increase the 
safety risk to individuals of accidents or to individual occupants who 
experience the type of injurious event against which the standard was 
designed to protect. See General Motors Corp.; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897 (Apr. 14, 
2004).
    There have been instances in the past where NHTSA has determined 
that a manufacturer has met its burden of demonstrating that a 
noncompliance is inconsequential to safety, such as noncompliances 
concerning labeling where the discrepancy with the safety standard was 
determined not to lead to any misunderstanding, especially where 
sources of the correct information were available (e.g. in the vehicle 
owner's manual). See General Motors Corp.; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004).
    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard is more substantial 
and difficult to meet, and the Agency has not found many such 
noncompliances to be inconsequential. Id.
    Utilimaster first argues that the sliding doors are located in the 
front of the vehicle, viewable to the driver, and that a small gap will 
be apparent to the driver if a door is not fully latched. Moreover, 
Utilimaster asserts that even if the driver does not notice the gap in 
the door prior to driving the vehicle, as the vehicle begins to move 
the door will slide open, alerting the driver.
    FMVSS No. 206 requires that a sliding door system be equipped with 
either (a) at least one primary door latch system, or (b) a door latch 
system with a fully latched position and a door closure warning system. 
Since the noncompliant vehicles are equipped with a door latch system 
with a fully latched position (but not a primary door latch system), in 
order to comply with FMVSS No. 206 the vehicles would also need to have 
a door closure warning system. Such a system is automatic and does not 
require the driver to make observations of the door. The subject 
vehicles do not have such a system. Without a warning system, the 
driver would have to look away from driving to see a door gap. The 
Agency does not consider a door gap to be a sufficient alert to the 
driver that the door is not fully latched.
    The Notice of Proposed Rulemaking for the 2007 amendments to FMVSS 
No. 206 explained the scope of the safety risks associated with the 
ejection of vehicle occupants through vehicle doors. See Federal Motor 
Vehicle Safety Standards; Door Locks and Door Retention Components and 
Side Impact Protection, Notice of Proposed Rulemaking, 69 FR 75020, 
75024-75025. The Agency noted that ``[d]oor ejections, due to non-
rollover door openings, account for 23 percent of the total non-
rollover ejections with known routes * * * [and of] those ejected 
through a sliding door, each year approximately 20 people are killed 
and 30 people are seriously injured, based on the 1995-2003 data from 
NASS.'' Id. Based on this safety risk analysis, the Agency concluded 
that ``this exposure is [not] acceptable when measures can be taken to 
minimize the likelihood that a sliding door would open in a crash.'' 69 
FR 75025. Accordingly, the Agency proposed the FMVSS No. 206 side 
sliding door latch requirements to ``assure vehicle occupants that a 
sliding door is completely closed.'' 69 FR 75026.
    Utilimaster's arguments in support of its petition do not allay 
these safety concerns. Utilimaster's petition acknowledges that the 
vehicle driver may not notice the small gap in the door before the 
vehicle begins to move. Moreover, having the door unexpectedly slide 
open while the vehicle is driven can create a potential distraction to 
the driver, especially considering any attempts by the driver to close 
the door while the vehicle is in motion. In addition, accidents can 
occur even at low speeds when a vehicle is accelerated into motion, and 
may include impact with another vehicle including a vehicle moving at 
higher speed. Therefore, in light of these safety risks, the Agency 
finds that the door gap on the subject vehicles is not an acceptable 
replacement for a door closure warning system.
    Utilimaster also asserts that the subject vehicles are exclusively 
commercial in application and that the drivers of these vehicles are 
highly trained and must adhere to corporate-mandated safety practices. 
Utilimaster asserts that the sliding door standards were ``particularly 
concerned with children riding in the rear seats of passenger vans.'' 
The Agency believes that corporate operating policies and training do 
not preclude driver error (inadvertent or otherwise), such as operating 
the vehicle with the door left inadvertently open or not fastening an 
occupant's safety belt. Although the Agency did note in the NPRM that 
it was ``[a]dditionally * * * concerned that the individuals with the 
greatest exposure to sliding door failures are children,'' 69 FR 75025, 
the Agency never indicated that child passenger safety was the only 
safety concern addressed by the standard. Moreover, while Utilimaster 
states that the subject vehicles are driven primarily without a 
passenger, Utilimaster's petition implicitly acknowledges that a 
passenger may be present. In short, the Agency believes that there are 
valid concerns that occupants of the subject vehicles are exposed to an 
increased risk of accidents and injuries, particularly those associated 
with occupant ejection, compared to occupants of compliant vehicles.
    Utilimaster also states that it is not aware of a driver or 
passenger of its vehicles ever having been ejected from or fallen 
through an open sliding cab door while the vehicle was in motion. 
However, the Agency is aware of at least one occupant ejection through 
an open sliding side door of a commercial vehicle similar to those that 
are the subject of this petition. A walk-in van-type delivery truck was 
involved in an accident in 2009 at an intersection in Florida in which 
the driver of the delivery truck was ejected through an open sliding 
side door and sustained injuries. The delivery truck, after being 
stopped at a stop sign, entered the intersection and struck the side of 
a crossing vehicle causing the vehicles to become engaged and spin 
together. The delivery truck driver, who was not wearing a safety belt, 
was ejected into the roadway.\7\
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    \7\ Florida Department of Highway Safety and Motor Vehicles; 
HSMV Crash Report Number 90163273, dated January 6, 2009.
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    Finally, Utilimaster asserts that the sliding doors on these 
vehicles meet all load tests and inertial requirements of FMVSS No. 206 
S4.2 and therefore, the noncompliance will not increase the risk of 
occupant ejection under conditions addressed by such requirements. This 
argument, however, is inapplicable to the issue at hand because these 
standards do not address the performance of an unlatched door.

[[Page 47702]]

See, e.g. 49 CFR 571.206 S4.2.1.1(a), S4.2.1.2(a) and S4.2.1.3(a) 
(discussing testing when the door latch is in the fully latched 
position).
    Decision: In consideration of the foregoing, NHTSA has decided that 
the petitioner has not met its burden of persuasion that the 
noncompliance described is inconsequential to motor vehicle safety. 
Accordingly, Utilimaster's petition is hereby denied, and the 
petitioner must notify owners, purchasers and dealers pursuant to 49 
U.S.C. 30118 and provide a remedy in accordance with 49 U.S.C. 30120.
    If Utilimaster believes that vehicles it will produce in the future 
should not be subject to any currently applicable FMVSS No. 206 
requirements, Utilimaster may consider petitioning the Agency for 
rulemaking. The appropriate type of petition to request a change in a 
rule is one filed under 49 CFR part 552 Petitions for Rulemaking, 
Defect, and Non-Compliance Orders.

    Authority:  49 U.S.C. 30118, 30120: delegations of authority at 
CFR 1.50 and 501.8.

    Issued on: August 2, 2012.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2012-19581 Filed 8-8-12; 8:45 am]
BILLING CODE 4910-59-P



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