[Federal Register Volume 73, Number 109 (Thursday, June 5, 2008)]
[Notices]
[Pages 32074-32075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12546]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2007-0053]


Motley Rice, LLC, Denial of Petition for Compliance Investigation

    Motley Rice, LLC (Motley Rice), counsel of record for the 
plaintiffs in the lawsuit styled Day v. Ford Motor Company, Civ. No. 
04CVS-10181 (N.C., Guilford County), has petitioned National Highway 
Traffic Safety Administration (NHTSA) pursuant to 49 CFR 552.3 seeking 
an order finding that certain vehicles manufactured by Ford Motor 
Company (Ford) are not in compliance with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 206,\1\ Door Locks and Door Retention Components. 
In addition, petitioner seeks an order finding that Ford's use of the 
Modified Dynamic Test Method to demonstrate compliance was 
inappropriate or, stated alternatively, that Ford's use of the 1960 
Severy acceleration pulse is not a uniform approved pulse that can be 
inserted into any test for the purpose of determining regulatory 
compliance. Petitioner asserts that the following Ford vehicles are 
non-compliant with FMVSS No. 206: (1) Model Year (MY) 1997-2000 F-150--
PN-96, (2) MY 1997-2000 F-250--Light Duty, (3) MY 1997-2000 Ford 
Expedition, and (4) MY 1997-2000 Lincoln Navigator vehicles. 
Collectively, this notice refers to these vehicles as ``subject 
vehicles.''
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    \1\ Throughout this Notice, all references to FMVSS No. 206 are 
based on the version of the standard in effect for the applicable 
manufacturing dates of the subject vehicles.
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    Motley Rice contends that the identified vehicles are not in 
compliance with FMVSS No. 206. Specifically, the petitioner contends 
that the identified vehicles are not in compliance with the 30g 
(inertia load) requirement of FMVSS No. 206 as a result of a defect in 
the outside handle torsion spring. The spring tension in these handles, 
petitioner contends, is substantially below specification and may 
reduce the level for inertia activation of the system to approximately 
half that needed to meet the 30g calculation requirements of FMVSS No. 
206 per the calculation referenced in Society of Automotive Engineers 
Recommended Practice J839 (SAE-J839).
    Under the National Traffic and Motor Vehicle Safety Act, as amended 
and recodified, 49 U.S.C. 30112(a)(1), a person may not manufacture for 
sale or sell any motor vehicle manufactured on or after the date of an 
applicable motor vehicle safety standard takes effect unless the 
vehicle complies with the standard and is covered by a certification 
issued under 49 U.S.C. 30115. Except with regard to vehicles not 
manufactured to comply with the FMVSSs but later imported, the 
prohibition of section 30112(a) does not apply to the sale of a motor 
vehicle after the first purchase of the vehicle in good faith other 
than for resale. The FMVSSs generally apply to the manufacture and sale 
of new vehicles, as distinguished from used vehicles.
    In general, NHTSA's enforcement of the FMVSSs is based on 
compliance testing of samples of new products conducted using the test 
procedures set forth in the relevant safety standard. However, 
manufacturers certifying compliance with FMVSSs are not required to 
follow exactly the compliance test procedures set forth in the 
applicable standard. Manufacturers are required to exercise reasonable 
care to assure compliance in making their certifications. 49 U.S.C. 
30115(a). It may be simplest and is best for a manufacturer to 
establish that it exercised reasonable care if it has strictly followed 
NHTSA's test procedures. However, NHTSA has recognized that reasonable 
care might also be shown using modified procedures if the manufacturer 
could demonstrate that the modifications were not likely to have had a 
significant impact on test results. In addition, reasonable care might 
be shown using engineering analyses or computer simulations.
    FMVSS No. 206, Door Locks and Door Retention Components contains a 
number of requirements. One is the inertia load requirement. S4.1.1.3 
Inertia Load, provides:

    The door latch shall not disengage from the fully latched 
position when a longitudinal or transverse inertia load of 30g is 
applied to the door latch system (including the latch and its 
actuating mechanism with the locking mechanism disengaged).

    The accompanying compliance provision states:

    S5.1.1.2. Inertia Load. Compliance with S4.1.1.3 shall be 
demonstrated by approved tests or in accordance with paragraph 6 of 
Society of Automotive Engineers Recommended Practice J839, Passenger 
Car Side Door Latch Systems, June 1991.

    SAE-J839 paragraph 6 specifies a 30g-based calculation. Apart from 
the SAE calculation, the only NHTSA-approved test \2\ for compliance 
with the transverse inertia load requirement of FMVSS No. 206 at the 
time the vehicles were produced was the 1967 General Motors Corporation 
(GM) dynamic pulse test. There, GM developed a side impact pulse in 
light of the 30g Federal requirement. GM used research on side impacts 
conducted by D. Severy in 1960 as well as some GM test data. Using the 
Severy and GM data, GM developed a characteristic pulse shape with a 
maximum value exceeding 30g and a duration from GM data. This pulse was 
duplicated on a sled by altering the variables of pin shape and air 
pressure. In a sled test using this pulse, on-board, high speed movie 
cameras monitoring the latch determine that unlatching does not occur.
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    \2\ U.S. DOT Federal Highway Administration, National Highway 
Safety Bureau Letter Dated 12/22/1967, http://isearch.nhtsa.gov/gm/67/nht67-1.26.html.
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    Ford certified the subject vehicles to the inertia load 
requirements of FMVSS No. 206 by using the SAE-J839 calculation. 
According to the petition, Ford thereafter determined that compliance 
(to the transverse inertia load requirement) could be demonstrated by 
using a modified version of the 1967 GM Dynamic Pulse Test Method; Ford 
used a computer-simulated program that relied upon the 1960 Severy 
acceleration pulse.
    If NHTSA were to grant the Motley Rice petition, the agency would 
proceed to conduct a compliance investigation that might or might not 
result in an order to Ford under 49 U.S.C. 30118(b). In deciding 
whether to open a compliance or defect investigation, NHTSA considers, 
among other factors, allocation of agency resources, agency priorities, 
and the likelihood of success in litigation that might arise from an 
order the agency may issue. 49 CFR 552.8. See Center for Auto Safety v. 
Dole, 846 F.2d 1532, 1535 (D.C. Cir. 1988).
    In this case, as discussed in further detail below, Ford has a 
simulation

[[Page 32075]]

purporting to show compliance using the approved GM test. To evaluate 
the compliance of the subject vehicles with FMVSS No. 206's transverse 
inertia load requirements based on the approved 1967 GM dynamic pulse 
test, NHTSA likely would test the vehicles using the approved GM test. 
However, the agency does not have an in-house test procedure for the 
1967 GM dynamic pulse test and we likely would develop one to evaluate 
the latch on the subject vehicles. This effort would be time consuming, 
likely would involve some trials and subsequent refinements (and 
therefore would be expensive), and would be of no broad-based benefit 
to the agency.
    Assuming that NHTSA were to undertake testing, there would be 
significant practical difficulties. The subject vehicles were sold to 
their first purchasers about eight or more years ago. Programmatically, 
NHTSA has tested new, rather than used, vehicles for compliance with 
FMVSSs because NHTSA's burden would be to demonstrate that the vehicle 
did not comply at the time of sale or offer for sale. It is extremely 
unlikely that new vehicles for the model years in question could be 
obtained. In view of these limiting circumstances, NHTSA could consider 
expending some of its limited funds to have a test vehicle or vehicle 
subassembly containing a new latch system assembly identical to the 
original Ford latch assembly manufactured. The specifics of the test 
assembly would have to be developed in conjunction with the development 
of the test procedure. Such an approach would be novel and might be 
challenged on various grounds, including whether testing was 
permissible and whether the test assembly replicated or was 
representative of latches in the subject vehicles.
    Even if NHTSA decided to invest considerable resources and time in 
such an investigation, the agency could issue an order finding 
noncompliance only after giving Ford an opportunity for an 
administrative hearing, and the agency would have the burden of 
substantiating such an order in a de novo proceeding in Federal court. 
In any such proceeding, Ford likely would present its simulation 
analysis that used commercially available dynamic analysis software, 
Working ModelTM. Ford's Working ModelTM 
simulation was detailed and based on the dimensional specifications of 
the components. The acceleration pulse used in the simulation analysis 
was based on the NHTSA approved GM dynamic pulse test for certification 
to the transverse inertia load requirements of FMVSS No. 206. The 
simulation analysis methodology also included conservative measures 
where spring forces and part masses were set to levels, based either on 
design or measured values, that would provide the least contribution to 
maintaining a latched position. The effects of friction were also 
eliminated since those forces would improve latch performance by 
tending to resist unlatching. Based on our preliminary review, NHTSA 
would be very unlikely to develop sufficient evidence to overcome the 
simulation analysis conducted by Ford. Even if NHTSA were somehow to 
prevail in making such a case, by the time such an order were upheld 
few if any of the subject vehicles would be within the 10-year age 
limit for a free remedy under 49 U.S.C. 30120(g).
    We have also considered safety issues presented by the latches in 
our testing and in our database. Our review of available New Car 
Assessment Program (NCAP) vehicle side impact test data included 
results for the MY 1999 Ford F150, and MY 2000 Ford F150 extended cab. 
Each vehicle tested yielded the highest government safety rating of 5-
Stars for side impact protection and none of the results from these 
tests indicated that door unlatching occurred.
    Lastly, our review of consumer complaints filed with NHTSA for the 
model year motor vehicles identified in the subject petition yielded 
only two cases potentially related to inertia door opening, one of 
which involved a severe 50 mph rollover crash. Given the three million-
plus sales volume for the subject vehicles, the number of years of 
exposure already experienced by these vehicles, and the low number of 
alleged incidents reported to the agency, it does not appear that these 
vehicles are experiencing performance issues in the field.
    In view of the available safety-related information that does not 
indicate the existence of a safety problem, the plausible position 
taken by Ford with regard to the vehicle's compliance, the substantial 
resources that would be required to address this matter in detail, and 
the agency's need to allocate its resources carefully to address issues 
involving appreciable safety risks, NHTSA has concluded that no further 
action is warranted. Therefore, the petition is denied.

    Authority: 49 U.S.C. 30162(d); delegations of authority at CFR 
1.50 and 501.8.

    Issued on: May 29, 2008.
Daniel C. Smith,
Associate Administrator for Enforcement.
 [FR Doc. E8-12546 Filed 6-4-08; 8:45 am]
BILLING CODE 4910-59-P