[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58387-58389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22974]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2017-0038; 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 Ride the Ducks International Stretch 
Amphibious passenger vehicles (APVs) do not fully comply with Federal 
Motor Vehicle Safety Standard (FMVSS) No. 104, Windshield Wiping and 
Washing 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.

FOR FURTHER INFORMATION CONTACT: Neil Dold, Office of Vehicle Safety 
Compliance, NHTSA, telephone: (202) 366-7352, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION: 
    I. Overview: RTDI has determined that certain MY 1996-2014 RTDI 
Stretch APVs do not fully comply with paragraph S4.2.2 of FMVSS No. 
104, Windshield Wiping and Washing Systems (49 CFR 571.104). 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,

[[Page 58388]]

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 (82 FR 38993) with a 30-day public comment period on August 
16, 2017. No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) website at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2017-0038.''
    II. Vehicles Involved: Approximately 105 MY 1996-2014 RTDI Stretch 
APVs, manufactured between January 1, 1996 and December 31, 2014 are 
potentially involved.
    III. Noncompliance: RTDI explained that the noncompliance is that 
the subject vehicles were manufactured without a windshield washing 
system, as required by paragraph S4.2.2 of FMVSS No. 104.
    IV. Rule Requirements: Paragraph S4.2.2 of FMVSS No. 104 includes 
the requirements relevant to this petition. Each multipurpose passenger 
vehicle, truck, and bus shall have a windshield washing system that 
meets the requirements of SAE Recommended Practice J942 (1965) 
(incorporated by reference, see Sec.  571.5), except that the reference 
to ``the effective wipe pattern defined in SAE J903, paragraph 3.1.2'' 
in paragraph 3.1 of SAE Recommended Practice J942 (1965) shall be 
deleted and ``the pattern designed by the manufacturer for the 
windshield wiping system on the exterior surface of the windshield 
glazing'' shall be inserted in lieu thereof.
    V. Summary of RTDI's Petition: As background, RTDI began to produce 
APVs in 1996 by performing extensive modifications to General Motors 
amphibious military trucks originally designated as DUKWs. 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. 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 noncompliance as the absence of a 
compliant windshield washer system and stated its belief that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, RTDI submitted the following reasoning:

    1. FMVSS No. 104 specifies, in relevant part, that ``each . . . 
[vehicle] shall have a windshield washing system that meets the 
requirements of SAE Recommended Practice J942 (1965).'' 49 CFR 
571.104, S4(a), S4.2.2. This FMVSS is designed to ensure that when 
activated, the windshield washing system is capable of reaching a 
sufficient portion of the exterior surface of the windshield, as 
designed by the manufacturer. The standard establishes minimum 
performance requirements for the windshield wiping and washing 
systems so that the vehicle operator is able to sufficiently see 
through the windshield. The APVs have features installed that are 
designed to achieve the same purpose as the standard. If there is 
debris present on the windshield, the driver is able to engage the 
vehicle's windshield wipers to clear the windshield's exterior 
surface. Further, the windshield of the APVs have a unique design 
that allows the driver to fully lower and raise the windshield 
glass. In the event that the windshield wipers could not clear the 
surface of the windshield, the driver has the option of lowering the 
windshield. Under either option, the visibility of the operator 
would not be compromised.
    2. In the water portion of the vehicles' tours, the APVs are 
required to have the windshield lowered during operation, per U.S. 
Coast Guard regulations. The Coast Guard has recognized that in the 
event of an accident on the water, a raised windshield could impede 
passenger egress. Consequently, the Coast Guard has issued guidance 
which provides that the windshields of APVs be ``designed to fold 
down with minimal force to allow egress.'' U.S. Coast Guard 
Navigation and Inspection Circular (NVIC) 1-01, inspection of 
Amphibious Passenger Carrying Vehicles, p. 24. Further, the APV's 
exteriors, including the windshields, are washed after each tour, 
removing any debris that may have accumulated during the last tour.
    3. 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). As described above, the specialized design of the APVs 
and the vehicles' pattern of use does not expose the vehicles to 
conditions that could create an increased safety risk when compared 
to a vehicle that has a windshield washing system installed.

    RTDI concluded by expressing the belief that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and that its petition to be exempted from providing notification of the 
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the 
noncompliance, as required by 49 U.S.C. 30120, should be granted.
    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. 104, RTDI asserted that:

    a. As per U.S. Coast Guard NVIC 1-01 ``Guidelines for the 
Certifications of Amphibious Vessels,'' for the purposes of 
emergency egress the windshields of APVs should be designed to fold 
down with minimum force. The RTDI vehicles' front windshields are 
hinged at the bottom and there is a mechanical lever linked to the 
windshield frame. To quickly and safely lower or open the 
windshield, the driver simply lifts upward or pulls downward on the 
mechanical lever. The action of lowering and raising the windshield 
takes little effort as there are gas springs incorporated into the 
hinge which minimizes the weight and force involved in operating the 
windshield. Testing revealed the highest peak measurement at 22.6 
lbs. of force. RTDI drivers often open the windshield when the 
vehicle is stopped or in slow moving heavy traffic and at a low rate 
of speed to allow fresh air into the driver and passenger space. The 
U.S. Coast Guard inspects and tests the windshield opening feature 
annually.
    b. RTDI has established operational safety guidelines for the 
use of the drivers open/close feature. RTDI's guidelines states that 
an operator should not open the windshield ``unless the visibility 
through the windshield becomes obstructed, the opening and closing 
of the front windshield should only take place when the vehicle is 
traveling at a slow rate of speed (i.e., slow moving traffic 
conditions) and/or when the vehicle comes to a complete stop.''

    VII. NHTSA's Analysis: NHTSA has considered RTDI's arguments and 
has determined that RTDI has not met its burden of demonstrating that 
the subject noncompliance is inconsequential. The Agency responds to 
RTDI's arguments below.
    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.\1\ Potential performance failures of safety-

[[Page 58389]]

critical equipment, like seat belts or air bags, are rarely deemed 
inconsequential.
---------------------------------------------------------------------------

    \1\ 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.\2\ 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.'' \3\ 
``[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.'' \4\
---------------------------------------------------------------------------

    \2\ 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).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ 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.\5\ 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.\6\
---------------------------------------------------------------------------

    \5\ 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).
    \6\ 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).
---------------------------------------------------------------------------

    For safe viewing through the front windshield, FMVSS No. 104 
requires both a windshield wiping system and a washing system. The 
Agency believes that both systems are critical, and at times must work 
together, to ensure a clear view through the windshield. The purpose of 
the washing system is to aid the wiping system in the event that dust, 
dirt, mud, or other obstructions occur and the wipers are not 
sufficient to quickly and properly clear the windshield.
    RTDI stated that the features of the APVs achieve the same purpose 
as the standard without a windshield washing system. According to RTDI, 
if debris is present on the windshield the driver can engage the 
windshield wiping system to clear the windshield exterior surface. RTDI 
also explained that in the event the windshield wipers could not clear 
the surface of the windshield the driver has the option of lowering the 
windshield.
    The Agency does not agree with RTDI's assessment that the subject 
APVs are designed to achieve the same purpose as the standard without a 
windshield washing system. The Agency understands that these vehicles 
can be operated on public roadways at speeds up to 50 miles per hour. 
It is not uncommon while traveling at posted speeds to encounter 
conditions where the windshield wipers and the washing system must be 
used together to maintain forward visibility through the windshield. 
One good example of such a condition occurs shortly after a rain shower 
has ended, the roads are still wet, and other vehicles operating on the 
roadway are throwing up water spray and road dirt that can accumulate 
on following vehicle windshields. In this situation, both the 
windshield wipers and windshield washing systems would be required for 
safe operations.
    Furthermore, in a follow-up response to a request from the Agency, 
RTDI informed the Agency that its safety guidelines only permit the 
driver to open and close the windshield should visibility become 
obstructed, and only when the vehicle is traveling at a slow rate of 
speed or is stopped. Thus, if the vehicle is moving at higher speeds 
under conditions as mentioned above, the Agency believes it would 
present a safety concern to lower the windshield.
    VIII. NHTSA's Decision: In consideration of the foregoing, NHTSA 
finds that RTDI has not met its burden of persuasion that the subject 
FMVSS No. 104 noncompliance in the subject vehicles is 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, that noncompliance 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. 2021-22974 Filed 10-20-21; 8:45 am]
BILLING CODE 4910-59-P