[Federal Register Volume 87, Number 74 (Monday, April 18, 2022)]
[Notices]
[Pages 23018-23020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08226]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0110; Notice 2]


Great Dane, LLC, Denial of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: Great Dane, LLC (Great Dane) has determined that certain model 
year (MY) 2019 Great Dane Freedom Platform trailers do not comply with 
Federal Motor Vehicle Safety Standards (FMVSS) No. 223, Rear Impact 
Guards, and FMVSS No. 224, Rear Impact Protection. Great Dane filed a 
noncompliance report dated January 2, 2019, and subsequently petitioned 
NHTSA on January 2, 2019, for a decision that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety. This document 
announces the denial of Great Dane's petition.

FOR FURTHER INFORMATION CONTACT: Natasha Iwegbu, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-2334.

SUPPLEMENTARY INFORMATION:

I. Overview

    Great Dane has determined that certain MY 2019 Great Dane Freedom 
Platform trailers do not fully comply with paragraph S5.3 of FMVSS No. 
223, Rear Impact Guards (49 CFR 571.223), and paragraph S5.1 of FMVSS 
No 224, Rear Impact Protection (49 CFR 571.224). Great Dane filed a 
noncompliance report dated January 2, 2019, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports, and

[[Page 23019]]

subsequently petitioned NHTSA on January 2, 2019, for an exemption from 
the notification and remedy requirements of 49 U.S.C. Chapter 301 on 
the basis that this noncompliance is inconsequential as it relates to 
motor vehicle safety, pursuant to 49 U.S.C. 30118(d) and 30120(h) and 
49 CFR part 556, Exemption for Inconsequential Defect or Noncompliance.
    Notice of receipt of Great Dane's petition was published with a 30-
day public comment period, on November 7, 2019 in the Federal Register 
(84 FR 60145). One comment was 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-2018-0110.''

II. Trailers Involved

    Approximately 72 MY 2019 Great Dane Freedom Platform trailers, 
manufactured between July 10, 2018, and November 8, 2018, are 
potentially involved.

III. Noncompliance

    Great Dane explained that the noncompliance is that the subject 
trailers were manufactured with a rear impact guard (RIG) that does not 
contain the certification plate as required by paragraphs S5.3 of FMVSS 
No. 223 and S5.1 of FMVSS No. 224.

IV. Rule Requirements

    Paragraphs S5.3 of FMVSS No. 223 and S5.1 of FMVSS No. 224 include 
the requirements relevant to this petition. 49 CFR 571.223, S5.3 
provides that each guard shall be permanently labeled with the 
information specified in paragraphs S5.3(a) through (c) of FMVSS No. 
223. The information shall be in English and in letters that are at 
least 2.5 mm high. The label shall be placed on the forward or rearward 
facing surface of the horizontal member of the guard, provided that the 
label does not interfere with the retroreflective sheeting required by 
S5.7.1.4.1(c) of FMVSS No. 108 (49 CFR 571.108), and is readily 
accessible for visual inspection and includes the following: (a) The 
guard manufacturer's name and address, (b) the statement: 
``Manufactured in ___'' (inserting the month and year of guard 
manufacture), and (c) the letters ``DOT,'' constituting a certification 
by the guard manufacturer that the guard conforms to all requirements 
of this standard. 49 CFR 571.224, S5.1 requires that each vehicle shall 
be equipped with a rear impact guard certified as meeting FMVSS No. 
223.

V. Summary of Great Dane's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Great Dane's Petition,'' are the views and arguments 
provided by Great Dane. They do not reflect the views of the Agency.
    1. Great Dane believes that the lack of the impact guard 
certification plate is an inconsequential type of noncompliance as it 
relates to vehicle safety. The fact that the certification plate was 
not installed on the rear impact guard on this particular group of 
trailers does not make these trailers any less safe.
    2. Great Dane stated that these rear impact guards as manufactured 
and installed by Great Dane, are compliant as required by the Federal 
Standard.
    3. Great Dane stated that the subject trailers have affixed to them 
certification plates, certifying that the entire trailer, including the 
rear impact guard, meet and/or exceed all the Federal Motor Vehicle 
Safety Standards in effect, on the date of manufacture as indicated.
    4. Great Dane stated that to meet the standards of FMVSS Nos. 223 
and 224, it has never installed a third party produced rear impact 
guard on any of its trailers.
    5. Great Dane stated that the incident that led to these trailers 
being produced without the plate attached was an isolated incident. It 
has since been investigated, resolved, and should not occur again in 
the future.
    6. Great Dane believes that the extra certification plate required 
on the rear impact guard is redundant.
    Great Dane concluded by contending 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. Public Comments

    The Agency received one comment from the public. This comment was 
received from the Commercial Vehicle Safety Alliance (CVSA).\1\ CVSA 
supports the granting of Great Dane's petition that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety 
and ``agrees with Great Dane's assessment that a rear impact guard with 
a certification label, that otherwise meets the requirements outlined 
in FMVSS No. 223, is not any less safe than a rear impact guard with a 
label.'' In its comment, CVSA contends that because these certification 
labels ``frequently wear, fade or are removed during repair'' and 
``motor carriers are unable to obtain new certification labels from the 
original trailer manufacturers because they can no longer guarantee 
that the rear impact guards meet the FMVSS manufacturing standard,'' 
the rear impact guard certification label requirements should be 
removed. CVSA goes on to give its views about the effects of the rear 
impact guard certification label requirements.
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    \1\ See Docket Number ``NHTSA-2018-0110-0003.''
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VII. NHTSA's Analysis

    Rear impact guards for trailers reduce the risk to passenger 
vehicle occupants in crashes in which a passenger vehicle impacts the 
rear end of a trailer or semitrailer. RIGs need to be certified as 
meeting all applicable standards.
    The principle of self-certification is the foundation of the method 
the National Traffic and Motor Vehicle Safety Act of 1966 establishes 
for regulated motor vehicles and motor vehicle equipment in the United 
States. Under 49 U.S.C. 30112(a), there is a general prohibition 
against manufacturing for sale, selling, offering for sale, introducing 
or delivering for introduction in interstate commerce, or importing 
into the United States any motor vehicle or item of motor vehicle 
equipment manufactured on or after the date an applicable motor vehicle 
safety standard is in effect unless the vehicle or equipment both 
complies with the standard and is covered by a certification issued 
under section 30115.
    Offering for sale products that fail to contain the manufacturer's 
certification violates this system, and therefore the consequences to 
safety are potentially significant. Furthermore, omitting all of the 
labeling from an item of regulated motor vehicle equipment may have 
other safety consequences. NHTSA has a long-standing position that 
removing required labeling reduces the safety effectiveness of items of 
motor vehicle equipment. The labeling is an indication to consumers, 
including secondhand purchasers, that the item of equipment provides a 
minimum level of safety protection.\2\
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    \2\ https://isearch.nhtsa.gov/files/08-002439as.htm.
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    NHTSA received a comment from CVSA in support of Great Dane's 
position, and in support of removing the RIG certification label 
requirements altogether. NHTSA finds the argument that these labels 
``frequently wear, fade, or are removed during repair'' to be a

[[Page 23020]]

complaint of inconvenience, not a complaint of substance. Furthermore, 
to the extent that CVSA states that certification labels are removed 
during repair and not replaced, such practice may violate 49 U.S.C. 
30122(b), which prohibits manufacturers, distributors, dealers, or 
motor vehicle repair businesses from knowingly making inoperative any 
part of a device or element of design installed on motor vehicle 
equipment in compliance with an applicable motor vehicle safety 
standard. NHTSA has stated that removal of markings and information 
required by an applicable FMVSS would take such item out of compliance, 
and therefore would be a violation of 49 U.S.C. 30122(b).
    The removal of these labels may further endanger the motoring 
public in a rear end collision with a trailer that has had a 
substandard repair, or cannot be properly inspected for safety and 
compliance. For example, once a trailer is in-service, the owner of the 
trailer may choose to replace or repair the RIG at any time and may 
source a replacement RIG from any number of places, over which the 
original certifying entity has no control. If a RIG were to be involved 
in a crash or if it were to fail an inspection, it may be difficult to 
know who the certifying entity for a RIG was if there were no permanent 
labeling on it. This would inhibit the ability of the investigators to 
determine if there was a potential safety trend involved with the 
subject equipment item. This example demonstrates the need for critical 
safety equipment, such as the rear impact guard, to be labeled 
permanently with the required information.
    NHTSA does not agree with Great Dane's argument that the RIG 
certification plate is redundant to the trailer certification plate, 
nor does it agree that the lack of date of manufacture is 
inconsequential. Further, Great Dane argues that all the trailers in 
question were fitted with Great Dane RIGs and no third-party RIGs were 
used, therefore the trailer certification plate is sufficient to 
symbolize certification for the RIG. However, in the event of a rear-
end crash, the RIG would likely be replaced, while the trailer may 
remain unaffected. In this instance, a replacement RIG would no longer 
share the certification or date of manufacture stated on the trailer 
certification plate.
    Furthermore, while NHTSA regulates new motor vehicles and 
equipment, the importance of the requirements does not end when the 
vehicles or equipment are sold. A purchaser of such vehicles would 
likely need to know if the manufacturer certified the RIG when the 
vehicle was new. This is one reason why the requirement is for the 
label to be permanent. Therefore, lack of a certification plate could 
have a safety implication throughout the life of the product.
    A RIG certification plate is required by FMVSS No. 223 as the Rear 
Impact Guard is a part of trailer, much in the same way an independent 
DOT certification, as indicated by the symbol DOT, is required on 
regulated vehicle lamps, wheels, tires, and various other regulated 
parts of a vehicle. In the same way, the presence of a passenger 
vehicle certification label does not obviate the marking requirements 
of the aforementioned vehicle equipment. Similarly, a trailer 
certification plate does not obviate the requirement for a RIG 
certification plate.
    After reviewing the petition of inconsequentiality from Great Dane, 
NHTSA has determined that this particular noncompliance is not 
inconsequential to motor vehicle safety, therefore this petition is 
denied.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that Great 
Dane has not met its burden of persuasion that the subject FMVSS No. 
223 and FMVSS No. 224 noncompliance is inconsequential to motor vehicle 
safety. Accordingly, Great Dane's petition is hereby denied and Great 
Dane is consequently obligated to provide notification of and 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)

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-08226 Filed 4-15-22; 8:45 am]
BILLING CODE 4910-59-P