[Federal Register Volume 87, Number 199 (Monday, October 17, 2022)]
[Notices]
[Pages 62919-62922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22453]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0010, Notice 2]


Spartan Motors USA, Inc, 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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[[Page 62920]]

SUMMARY: Spartan Motors USA, Inc (Spartan), has determined that certain 
model year (MY) 2015-2019 Spartan Specialty MM and K2 motorhome chassis 
do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) 
No. 121, Air Brake Systems. Spartan filed a noncompliance report dated 
December 18, 2017, and subsequently petitioned NHTSA on January 15, 
2018, for a decision that the subject noncompliance is inconsequential 
as it relates to motor vehicle safety. This document announces the 
denial of Spartan's petition.

FOR FURTHER INFORMATION CONTACT: Ahmad Barnes, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
(202) 366-7236, [email protected].

SUPPLEMENTARY INFORMATION: 
    I. Overview: Spartan has determined that certain MY 2015-2019 
Spartan Specialty MM and K2 motorhome chassis do not fully comply with 
paragraph S5.1.2.1 of FMVSS No. 121, Air Brake Systems (49 CFR 
571.121). Spartan filed a noncompliance report dated December 18, 2017, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. Spartan subsequently petitioned NHTSA on January 15, 2018, 
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 Spartan's petition was published with a 30-day 
public comment period, on May 13, 2019, in the Federal Register (84 FR 
20947). 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-2018-0010.''
    II. Vehicles Involved: Approximately 414 MY 2015-2019 Spartan 
Specialty MM and K2 motorhome chassis manufactured between February 12, 
2014, and December 11, 2017, are potentially involved.
    III. Noncompliance: Spartan describes the noncompliance as a 
combined volume of air in the service and supply reservoirs in the air 
brake system is insufficient to meet the required minimum of twelve 
times the combined volume of air from all service brake chambers 
specified in paragraph S5.1.2.1 of FMVSS No. 121.
    IV. Rule Requirements: Paragraph S5.1.2.1 of FMVSS No. 121, titled 
``Air Brake Systems,'' states that the combined volume of all service 
reservoirs and supply reservoirs shall be at least 12 times the 
combined volume of all service brake chambers.
    V. Summary Spartan's of Petition: Spartan describes the subject 
noncompliance and states its belief that the noncompliance is 
inconsequential as it relates to motor vehicle safety because the air 
compressor in the subject vehicles has the capacity to replace the 
volume of air in the brake system in a relatively short space of time; 
brake applications for motorhomes appear to be less frequent than stop-
and-go applications and the lower air capacity may not be noticeable to 
the driver nor impact braking performance; and completed subject 
vehicles are equipped with dual air gauges as well as a visual and 
audible warning system to alert the driver to a loss of air in the air 
brake system.
    Spartan first calculates the air reservoir capacity necessary for 
its chassis to be compliant with FMVSS No. 121:

    S5.1.2.1 of FMVSS 121, requires the combined volume of all 
service reservoirs and supply reservoirs to be at least 12 times the 
combined volume of all service brake chambers. The chassis affected 
by this condition are equipped with a T-24 brake chamber on the 
steer axle, T-30 brake chamber on the drive axle and T-16 brake 
chamber on the tag axle. In using the values in Table V of FMVSS 
121, the cumulative air capacity of these brake chambers would be 
404 [cubic inches]. Multiplying by 12, the needed air reservoir 
capacity would be 4848 [cubic inches].

    Spartan also provides a table reflecting its calculations:
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    \1\ Cu. In. = Cubic Inch.

----------------------------------------------------------------------------------------------------------------
                                                                   FMVSS No. 121     Number of
                       Brake chamber size                           cu. in.\1\    chambers total   Total cu. in.
                                                                     (Table V)        cu. in.
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T-24............................................................              67               2             134
T-30............................................................              89               2             178
T-16............................................................              46               2              92
                                                                 -----------------------------------------------
    Total Chamber Cu. In........................................  ..............  ..............             404
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Required Air Reservoir Capacity (using 12 x Multiplier) Cu. In..  ..............  ..............           4,848
Spartan Actual Reservoir Capacity (Cu. In.).....................  ..............  ..............           4,674
Additional Capacity Needed (Cu. In.)............................  ..............  ..............             174
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    Paragraph S5.1.1 of FMVSS No. 121 specifies that a vehicle must be 
equipped with an air compressor of sufficient capacity to increase air 
pressure in the supply and service reservoirs from 85 psi to 100 psi 
when the engine is operating at the vehicle manufacturer's maximum 
recommended revolutions per minute (r.p.m.) within a time, in seconds, 
determined by the quotient ((actual reservoir capacity x 25)/required 
reservoir capacity). According to Spartan, under this paragraph, the 
subject vehicles would be required to have a compressor with enough 
capacity to go from 85 psi to 100 psi within 24 seconds ((4,674*25)/
4,848). Using the same equation and the required air reservoir capacity 
of 4,848 cubic inches, the air pressure would need to increase from 85 
psi to 100 psi within 25 seconds. However, Spartan contends that the 
subject vehicles can increase air pressure from 85 psi to 100 psi in 
less than 6 seconds, well within the requirement of 25 seconds. 
Further, Spartan states that the subject vehicles are configured so the 
compressor activates at a pressure set at, or greater than, the minimum 
requirement of 100 psi.
    In Spartan's view, the impact of the noncompliance--having 3.5 
percent less air reservoir capacity than required--when combined with 
the configuration of the activation pressure and the

[[Page 62921]]

capacity of the compressor, ``would appear to have an adverse 
consequence of a slight increase in air compressor cycling,'' but 
``this would be dependent on application of the service brakes.'' To 
this point, Spartan further submits that motorhomes (vehicles on which 
the noncompliant chassis here would be installed) have a similar duty 
cycle to tractor-trailers, where they are driven at highway speeds with 
infrequent brake applications. Spartan also notes that motorhomes also 
are largely driven from owner residences to campground locations 
throughout the traveling season. Accordingly, Spartan contends that 
brake applications here would appear to be less frequent than those in 
stop-and-go applications. Spartan therefore concludes that the 
noncompliant air capacity with a one-second time difference to increase 
air pressure may not be noticeable to the driver, and would not impact 
the braking performance of the vehicle. Spartan also contends that 
completed motorhomes subject to its petition are equipped with two air 
gauges that monitor the air system pressure in both system 1 and system 
2. In addition to the air gauges, there is both a warning light and an 
audible alarm to alert the driver in the event of a low-air condition.
    Based on these assertions, Spartan requests that its petition to be 
exempted from notice and remedy obligations under the Safety Act.
    VI. NHTSA's 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 with no 
performance implications--is more substantial and difficult to meet. 
Accordingly, the Agency has not found many such noncompliances 
inconsequential.\2\
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    \2\ 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).
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    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which the recall would otherwise protect.\3\ In general, NHTSA 
does not consider the absence of complaints or injuries as evidence 
that the issue is inconsequential to safety. The absence of complaints 
does not mean vehicle occupants have not experienced a safety issue, 
nor does it mean that there will not be safety issues in the future.\4\
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    \3\ See, e.g., 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).
    \4\ See Morgan 3 Wheeler Limited; Denial of Petition for 
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 
12, 2016); see also 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'').
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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also do not justify granting of an 
inconsequentiality petition.\5\ Similarly, mere assertions that only a 
small percentage of vehicles or items of equipment are likely to 
actually exhibit a noncompliance are unpersuasive. The percentage of 
potential occupants that could be adversely affected by a noncompliance 
is not relevant to whether the noncompliance poses an inconsequential 
risk to safety. Rather, NHTSA focuses on the consequence to an occupant 
who is exposed to the consequence of that noncompliance.\6\
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    \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).
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    NHTSA has reviewed Spartan's petition, and is denying the petition.
    The purpose of FMVSS No. 121 is to ensure safe braking performance 
under normal and emergency conditions. Spartan states that it believes 
that the subject noncompliance is inconsequential to motor vehicle 
safety even though the air braking system falls short of the required 
capacity, in part contending that this deviation does not have an 
adverse effect on braking. Spartan contends that even with the 
insufficient system capacity, the onboard air compressor has the 
capacity to raise the system pressure from 85 psi to 100 psi in a short 
interval that is well under the timeframe specified in FMVSS No. 121. 
Based on this compressor capacity and the pressure at which the 
compressor activates, Spartan contends that the deficient system 
capacity would not be noticed under the conditions in which motor homes 
are used, or impact braking performance. Spartan also states that 
completed subject vehicles are equipped with gauges and a visual and 
audible warning system to alert the driver in the event of a loss of 
air in the system.
    The Agency does not find Spartan's reasoning persuasive.
    First, Spartan admits that there may be an adverse consequence of a 
slight increase in air compressor cycling as a result of the 
noncompliant air reservoir capacity. Spartan qualifies this by stating 
that whether there may be such an adverse consequence depends on the 
application of the service brakes. To this point, Spartan observes that 
brake applications in the subject vehicles ``would appear to be less 
frequent than those stop and go applications,'' rendering the time 
difference to increase air pressure potentially unnoticeable by the 
driver and not impactful on braking performance. Spartan provided no 
additional information or data here to support this notion, however. 
Even assuming that brake application in the subject vehicles as 
described by Spartan is generally true, Spartan also did not provide 
evidence that such applications would be true of every affected 
vehicle. In addition, as a general matter, Spartan provided no test 
data to support the assertions in its petition. Furthermore, Spartan 
fails to acknowledge that unsafe conditions could exist while the 
vehicles are driven under stop-and-go conditions which may increase the 
risk of crashes or injury.
    Second, while Spartan observes that the completed subject vehicles 
are installed with air gauges to monitor air system pressure, as well 
as a warning light and audible alarm to alert drivers of a low air 
condition, Spartan does not explain how driver awareness of a low air 
condition would serve to mitigate the potential consequences of the 
noncompliance.
    And third, that the system may meet or exceed FMVSS No. 121's 
requirements for the time in which the compressor can recharge the 
system does not excuse the failure to meet system capacity 
requirements. While compressor output may be such that lesser system 
capacity may appear unnoticeable in normal braking and in the 
``typical'' use scenario put forward by Spartan, FMVSS No. 121 seeks to

[[Page 62922]]

ensure motor vehicle safety in atypical and emergency use conditions as 
well. In some catastrophic failures--such as compressor and system 
valve failure--the presence of an adequate air reserve as required by 
S5.1.2.1 would provide critical braking capacity for these large 
vehicles. A vehicular crash is a potential consequence of an inadequate 
air reserve in the event that critical braking is required, and a 
recall would otherwise protect against such an event.
    VII. NHTSA's Decision: In consideration of the foregoing, NHTSA has 
decided that Spartan has not met its burden of persuasion that the 
subject FMVSS No. 121 noncompliance is inconsequential to motor vehicle 
safety. Accordingly, Spartan's petition is hereby denied. Spartan is 
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. 2022-22453 Filed 10-14-22; 8:45 am]
BILLING CODE 4910-59-P