81 FR 21663 - Morgan 3 Wheeler Limited, Denial of Petition for Decision of Inconsequential Noncompliance
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration Federal Register Volume 81, Issue 70 (April 12, 2016)
National Highway Traffic Safety Administration
Federal Register Volume 81, Issue 70 (April 12, 2016)
| Page Range | 21663-21666 | |
| FR Document | 2016-08360 |
[Federal Register Volume 81, Number 70 (Tuesday, April 12, 2016)] [Notices] [Pages 21663-21666] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-08360] ----------------------------------------------------------------------- DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA-2013-0101; Notice 2] Morgan 3 Wheeler Limited, Denial of Petition for Decision of Inconsequential Noncompliance AGENCY: National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Denial of petition. ----------------------------------------------------------------------- SUMMARY: Morgan 3 Wheeler Limited (Morgan) has determined that certain model year (MY) 2012 and 2013 Morgan model M3W three-wheeled motorcycles do not comply with all of the requirements of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, reflective devices, and associated equipment. Specifically, the vehicles' headlamps are spaced further apart than permitted, and do not have the required ``DOT'' marking. Morgan has petitioned for an exemption from the recall notification and remedy requirements of 49 U.S.C. Chapter 301--``Motor Vehicle Safety'' (Vehicle Safety Act) on the grounds that the noncompliances are inconsequential to motor vehicle safety. This notice announces and explains NHTSA's denial of Morgan's petition. FOR FURTHER INFORMATION CONTACT: For further information on this decision contact Mike Cole, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-2334, facsimile (202) 366-5930. SUPPLEMENTARY INFORMATION: I. Overview: Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provisions at 49 CFR part 556, Morgan has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that the noncompliances are inconsequential to motor vehicle safety. Notice of receipt of the petition was published, with a 30-day public comment period, on December 9, 2013 in the Federal Register (78 FR 73920). One comment was received from Peter C. Larsen of Liberty Motors, LLC. To view the petition and all supporting documents log onto the Federal Docket Management System Web site at: http://www.regulations.gov/. Follow the online search instructions to locate docket number ``NHTSA-2013-0101.'' II. Vehicles involved: Approximately 150 MY 2012 and 2013 Morgan model M3W three-wheeled motorcycles manufactured from August 1, 2012 to August 14, 2013 (subject vehicles) are affected. III. Noncompliances: Morgan's petition concerns two requirements in FMVSS No. 108.\1\ Both noncompliances involve the vehicles' headlights. Morgan states that the noncompliances are a result of a configuration error in its production line. The first noncompliance involves the spacing between the headlights. Paragraph S10.17.1.2.2 of FMVSS No. 108 specifies that if motorcycle headlamps are horizontally disposed about the vertical centerline, the distance between the closest edges of their effective projected luminous lens areas must not be greater than 200 mm.\2\ Morgan states in its petition that the subject motorcycles do not comply with this requirement because they are equipped with dual horizontally-mounted headlamps mounted 29 inches (737 mm) apart (lens edge to lens edge). --------------------------------------------------------------------------- \1\ 49 CFR 571.108. \2\ In a December 2007 final rule, NHTSA rewrote and reorganized FMVSS No. 108 to provide a more straightforward and logical presentation of the regulatory requirements. 72 FR 68234, Dec. 4, 2007. Those amendments became effective on December 1, 2012. 74 FR 58214, Nov. 12, 2009. The rewrite was not intended to make any substantive changes to the standard. The subject vehicle population includes vehicles manufactured both before and after this effective date. Prior to the effective date of the reorganized standard, the headlight spacing requirement was contained in S7.9.6.2(b). --------------------------------------------------------------------------- The second noncompliance concerns the lack of a required marking on the headlamps. Paragraph S6.5.1 of FMVSS No. 108 requires that the lens of each original equipment and replacement headlamp be marked with the symbol ``DOT,'' either horizontally or vertically, to indicate certification under 49 U.S.C. 30115.\3\ Morgan states in its petition that the subject vehicles do not include this marking. --------------------------------------------------------------------------- \3\ This provision was located at S7.2(a) in the pre-rewrite version of FMVSS No. 108. --------------------------------------------------------------------------- IV. Rule Text: Paragraphs S7.9.6.2(b) and S10.17.1.2.2 of FMVSS No. 108 require in pertinent part: Paragraph S7.9.6.2(b) (applies only to the subject vehicles manufactured before December 1, 2012). If the system consists of two headlamps, each of which provides both an upper and lower beam, the headlamps shall be mounted either at the same height and symmetrically disposed about the vertical centerline or mounted on the vertical centerline. If the headlamps are horizontally disposed about the vertical centerline, the distance between the closest edges of their effective projected luminous lens areas shall not be greater than 200 mm (8 in.). Paragraph S10.17.1.2.2 (applies only to the subject vehicles manufactured after December 1, 2012). If the headlamps are horizontally disposed about the vertical centerline, the distance between the closest edges of their effective projected luminous lens areas must not be greater than 200 mm. V. Summary of Morgan's Petition and Comments: Morgan petitions for relief from the recall provisions of the Vehicle Safety Act with respect to both of these noncompliances. Morgan makes several arguments to support its assertion that these noncompliances are inconsequential to motor vehicle safety. With respect to the headlamp spacing noncompliance, Morgan contends that [[Page 21664]] the headlamps meet the ``technical requirements'' of FMVSS No. 108. Morgan also states that it does not believe that this noncompliance will increase the safety risk to vehicle occupants or approaching drivers. Morgan argues that the current horizontal spacing of 29 inches (737 mm) is in the best interests of road safety, because if the M3W complied with the existing motorcycle head lamp spacing requirement, other road users would not have an accurate indication of the width of an oncoming M3W. Morgan also argues that NHTSA has previously found a lighting separation noncompliance to be inconsequential.\4\ --------------------------------------------------------------------------- \4\ See 64 FR 28864, May 27, 1999. --------------------------------------------------------------------------- Morgan contends that the lens marking noncompliance is inconsequential to motor vehicle safety because the lamps meet the substantive requirements of FMVSS No. 108. Morgan also states that owners of Morgan vehicles almost exclusively go to Morgan dealers for replacement parts; the agency assumes that Morgan is implying that because the vehicle owner is likely to obtain a replacement part directly from a dealer, the owner can be confident that the headlamp complies with all applicable requirements, even though it lacks the proper ``DOT'' marking. With respect to both noncompliances, Morgan asserts, based on its reading of previous inconsequentiality petition grants by NHTSA, that its noncompliances should be found to be inconsequential because the M3W is an exotic vehicle with no roof or doors, produced in very low numbers, driven a low number of miles, and likely to be operated on a limited basis, as opposed to an ordinary passenger automobile designed to be used as a family's primary passenger vehicle. Morgan also states that there have been no reports of any safety issues or injuries related to the subject noncompliances. NHTSA received one comment on Morgan's petition from Peter Larsen. Mr. Larsen makes several arguments in support of Morgan's petition. First, Mr. Larsen asserts that a NHTSA-published guidebook on motorcycle requirements does not contain the 200 mm spacing requirement. Second, Mr. Larsen argues that when NHTSA promulgated this requirement it did not contemplate three-wheeled vehicles with the frontal aspect of a small automobile, for which headlights spaced more than 200 mm apart help to indicate the size and shape of the vehicle. Accordingly, Mr. Larsen contends that the 200 mm requirement, as applied to the subject vehicles, is not in the interest of safety. Third, Mr. Larsen suggests that if the subject vehicles are remedied so that the dual headlights are replaced with a compliant center headlight, owners and dealers of the subject vehicles would likely remove the single center light and replace it with the dual, widely-spaced lights; and that a recall or design revision, Mr. Larsen asserts, would ``criminalize'' these actions. Finally, Mr. Larsen argues that many existing three-wheeled vehicles have similarly-spaced dual headlights, and it would be unjust to penalize Morgan's similar design. Mr. Larsen requests that NHTSA ``properly amend'' FMVSS No. 108. NHTSA's Decision General Principles: Federal motor vehicle safety standards are adopted only after the agency has determined, following notice and comment, that the performance requirements are objective, practicable, and meet the need for motor vehicle safety.\5\ There is a general presumption that the failure of a motor vehicle or item of motor vehicle equipment to comply with an FMVSS increases the risk to motor vehicle safety beyond the level determined 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 conduct a safety recall under which they must notify owners, purchasers, and dealers of the noncompliance and provide a remedy without charge.\6\ --------------------------------------------------------------------------- \5\ 49 U.S.C. 30111(a). \6\ 49 U.S.C. 30118-30120. --------------------------------------------------------------------------- Congress has, however, recognized that under some limited circumstances a noncompliance may be ``inconsequential'' to motor vehicle safety. Neither NHTSA's statute nor its regulations define ``inconsequential.'' NHTSA determines whether a particular noncompliance is inconsequential to motor vehicle safety based on the specific facts before the agency. The key issue in evaluating an inconsequentiality petition is whether the noncompliance is likely to increase the safety risk to individuals who experience the type of injurious event against which the standard was designed to protect.\7\ The agency is not aware of any prior inconsequentiality petitions concerning either of the two requirements that are the subject of Morgan's petition. --------------------------------------------------------------------------- \7\ General Motors Corp., Ruling on Petition for Determination of Inconsequential Noncompliance, 69 FR 19897, Apr. 14, 2004. --------------------------------------------------------------------------- NHTSA's analysis: The agency has determined that Morgan has not met its burden of persuasion that the noncompliances are inconsequential to safety. The agency is therefore denying Morgan's petition with respect to both noncompliances. The agency's reasons for the denial are discussed below. NHTSA is not persuaded by the arguments of Morgan or Mr. Larsen regarding the noncompliance with the headlamp spacing requirement in S10.17.1.2.2. Morgan's assertion that the subject vehicles meet the ``technical requirements'' of FMVSS No. 108 is inaccurate because the distance requirement for headlamp configuration is clearly stated in the regulation as one of the requirements for compliance.\8\ Morgan acknowledges in its Part 573 defect notification report that the headlamps on the subject vehicles do not comply with this requirement. --------------------------------------------------------------------------- \8\ S10.17.1.2.2. --------------------------------------------------------------------------- The agency is also not persuaded by Morgan and Mr. Larsen's arguments that the noncompliance not only does not increase the safety risk, but is, in fact, safety-enhancing, because the wider-spaced headlamps convey a more accurate impression of the vehicle's width to other motorists. An inconsequentiality petition is not the appropriate means to challenge the basis or appropriateness of a requirement specified in an FMVSS. The appropriate venue for such an argument is a petition for rulemaking to amend the current safety standard. Nevertheless, neither Morgan nor Mr. Larsen have offered persuasive evidence that either the standard or market conditions have changed to undermine the basis for the spacing limitation. The 200 mm maximum spacing requirement was added to the standard in 1998 in response to a petition for rulemaking. In the preamble to the final rule, NHTSA explained the rationale for the motorcycle headlight requirements: ``[A]t the time that the motorcycle headlight requirements in Standard No. 108 were originally issued, the predominant concern was that the headlighting system clearly identify a motorcycle as such when the vehicle was being operated at night.'' \9\ The wider space between the headlamps on the subject vehicles could impair the ability of other motorists to identify the subject vehicle as a motorcycle. Such identification is important because motorists may be more alert or alter their driving in response to the presence of a motorcycle, since motorcycles are smaller, less enclosed, and less stable than passenger cars and other motor vehicles.\10\ Even if the Morgan vehicle's [[Page 21665]] front end is wider than that of a typical two-wheeled motorcycle, the vehicle is still smaller, less enclosed, and less stable than passenger cars and other motor vehicles with which it shares the road. In addition, to further distinguish motorcycles from larger vehicles, NHTSA's regulations also allow modulation of motorcycle headlamp intensity to provide increased conspicuity.\11\ If the subject Morgan motorcycles were equipped with modulators on its headlamps, the wide spacing of the headlamps could be perceived by other drivers as an emergency or police vehicle. If Morgan believed that lighting indicating the width of the vehicle would enhance the safety of the vehicle, Morgan could have accomplished this by adding supplemental lighting to the vehicle (e.g., parking lamps), keeping in mind that supplemental lighting may not impair the effectiveness of required lighting equipment.\12\ We also note that the space between the headlamps is less than the wheel-to-wheel width of the vehicle, so the existing headlights do not accurately indicate the actual width of the vehicle. --------------------------------------------------------------------------- \9\ 63 FR 42582, 42582, Aug. 10, 1998. \10\ The noncompliance is also not de minimis. The headlamps on the subject vehicles are 29 inches apart, while the maximum spacing permitted by the standard is 200 mm (7.9 in). \11\ S10.17.5. \12\ S6.2.1. --------------------------------------------------------------------------- Similarly, Mr. Larsen asserts that when NHTSA promulgated this headlamp spacing regulation it did not contemplate three-wheeled vehicles such as the subject vehicles, which, he states, display the frontal aspect of a small automobile. The initial Federal Motor Vehicle Safety Standards, published in 1967, defined a ``motorcycle'' as ``a motor vehicle with motive power having a seat or saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground.'' \13\ This definition, which is in effect today,\14\ clearly includes the subject vehicles. While the M3W may be an unusual design, the vehicle configuration is unequivocally a motorcycle; as Mr. Larsen notes in his comment, ``the Morgan 3 Wheeler follows the classic lighting scheme.'' Again, as we noted above, a petition for rulemaking, not an inconsequentiality petition, is the proper mechanism if Morgan or Mr. Larsen believes that the existing requirement is not appropriate for the subject vehicles.\15\ --------------------------------------------------------------------------- \13\ 32 FR 2408, 2409, Feb. 3, 1967. \14\ 49 CFR 571.3. \15\ We note that subsequent to filing the present inconsequentiality petition, Morgan did file a petition for rulemaking on this issue. The agency is currently evaluating this petition. --------------------------------------------------------------------------- Morgan also cites, in support of its petition, a prior agency decision granting a General Motors inconsequentiality petition.\16\ That inconsequentiality petition concerned a noncompliance with a minimum required separation distance between a daytime running lamp (DRL) and a front turn signal. The purpose of that spacing requirement is to prevent masking of the turn signal lamp by the DRLs. The agency found that masking would not be an issue in that case because those vehicles incorporated front turn signals that were five times the required minimum area and four times brighter than the minimum required photometry. NHTSA went on to state that its research showed that high turn signal intensity was very important to prevent masking. Because the requirements at issue in the General Motors petition are intended to address a fundamentally different safety issue than the requirement from which Morgan is seeking a grant of inconsequential noncompliance, we do not find the General Motors petition to be relevant for our consideration of Morgan's petition; as discussed above, we believe that the greater than allowed distance between the headlamps might hinder other motorists from identifying the subject vehicles as motorcycles. --------------------------------------------------------------------------- \16\ 64 FR 28864, May 27, 1999. --------------------------------------------------------------------------- Mr. Larsen also states that he developed a motorcycle on which the subject vehicle is based, and states that the headlamp location was configured as described in NHTSA's published guidebook entitled ``Requirements of Motorcycle Manufacturers.'' Mr. Larsen did not further identify this guide, but he appears to refer to the NHTSA guide entitled ``Requirements for Motorcycle Manufacturers,'' published in February 2000.\17\ This guide states that it ``merely highlights the major requirements for manufacturers; each manufacturer should consult the specific statutes, regulations, and standards to determine its responsibilities.'' \18\ The lighting standard (FMVSS No. 108) contains many motorcycle lighting requirements in addition to the limited subset of requirements that are summarized in Table IV of the NHTSA guide. --------------------------------------------------------------------------- \17\ Available at http://www.nhtsa.gov/Laws+&+Regulations/Manufacturer+Info/Requirements+for+Motorcycle+Manufacturers. \18\ Id. at pages 3 and 4. --------------------------------------------------------------------------- Mr. Larsen also suggests that if NHTSA were to deny Morgan's petition, it would ``criminalize'' owners and dealers of the subject vehicles (who, he asserts, will likely replace a single center light and replace it with dual, widely-spaced lights). This is incorrect. Today's denial requires Morgan to notify owners of the subject vehicles of the noncompliance and to remedy the noncompliance if and when a vehicle owner presents a vehicle for repair. Neither NHTSA's denial nor the recall and remedy requirements impose any obligations on vehicle owners. Today's denial simply ensures that vehicle owners will be notified of the noncompliance and will have the opportunity to have their vehicle remedied, if the vehicle owner so chooses.\19\ --------------------------------------------------------------------------- \19\ NHTSA encourages vehicle owners to have recalled vehicles promptly remedied. We also note the statutory prohibition on making required safety elements inoperative. 49 U.S.C. 30122. This prohibition, however, applies only to manufacturers, distributors, dealers, and motor vehicle repair businesses. Sec. 30122. It does not apply to individual vehicle owners. See Letter from NHTSA Chief Counsel Frank Seales, Jr. to Hamsar Diversco Inc., Jan. 22, 1999, available at http://isearch.nhtsa.gov/search.htm. --------------------------------------------------------------------------- Finally, the agency is not persuaded by Mr. Larsen's argument that it would be unjust to ``suddenly penalize'' and require Morgan to recall the subject vehicles because, he asserts, there are many three- wheeled vehicles with wide-spaced dual headlights similar to the subject vehicles. The spacing regulation at issue has been in effect since 1998. Moreover, it does not apply to all three-wheeled motorcycles currently on the road. It applies to vehicles manufactured or imported into the United States after the effective date of the 1998 final rule. Accordingly, it does not apply, for example, to vintage vehicles that were manufactured before the effective date of the final rule. Regarding the ``DOT'' marking requirement, the agency is also not persuaded by Morgan's arguments. In the past, NHTSA has granted inconsequentiality petitions for lighting components that did not have certain required markings.\20\ As we noted earlier, however, we are not aware of any prior inconsequentiality petitions concerning the ``DOT'' marking requirement at issue in Morgan's petition. We are not persuaded that the absence of the ``DOT'' mark is inconsequential to motor vehicle safety in this case. The ``DOT'' mark on a headlamp indicates that the lamp manufacturer has certified the lamp as conforming to all applicable requirements. Morgan has provided no information or data to demonstrate that the headlamps otherwise comply with the requirements of FMVSS No. 108. Morgan asserts that the lamps meet the [[Page 21666]] ``substantive'' requirements of FMVSS No. 108, but has provided no information as to which requirements it considers ``substantive'' and which it does not. Morgan has submitted no compliance testing data or information showing that the lamps comply with all relevant requirements. Without such information and data, and without a ``DOT'' mark on the headlamp to imply that such information and data exist, the agency is unable to conclude that the lack of the ``DOT'' mark is the only noncompliant aspect of the headlamps. --------------------------------------------------------------------------- \20\ See, e.g., 78 FR 22943, Apr. 17, 2013 (grant of inconsequentiality petition from Osram Sylvania Products, Inc. for noncompliance with the light source marking requirements of FMVSS No. 108 S7.7.). --------------------------------------------------------------------------- In addition to the arguments addressed above, the agency is also not persuaded by two additional arguments Morgan makes for why it believes NHTSA should grant the petition with respect to both noncompliances. First, Morgan argues that its petition should be granted because the subject vehicle is an exotic vehicle produced in very low numbers and likely to be operated on a limited basis, as opposed to a passenger automobile designed to be used as a family's primary passenger vehicle. In support of this argument, Morgan cites two previous agency decisions granting inconsequentiality petitions.\21\ Both petitions concerned noncompliances with automatic restraint requirements in FMVSS No. 208. The agency's decisions in those situations were based on the fact that it had already granted temporary exemption petitions from both manufacturers for the vehicle models at issue in those inconsequentiality petitions. The agency has not previously granted Morgan a temporary exemption for the noncompliances at issue in the present petition. Moreover, the ``vehicle attributes'' that Morgan implies those grants were based on-- that the vehicles were exotic vehicles likely operated on a limited basis--were simply arguments made by the petitioners in those cases, and not, as Morgan's petition implies, the basis for the agency's decision. NHTSA expects manufacturers to fulfill their duties and responsibilities to provide vehicles that meet all safety standards regardless of production volume or estimated consumer use. --------------------------------------------------------------------------- \21\ 60 FR 27593, May 24, 1995 (grant of inconsequentiality petition from Excalibur Automobile Corp.); 61 FR 9517, Mar. 8, 1996 (grant of inconsequentiality petition from Cantab Motors, Ltd.). --------------------------------------------------------------------------- Second, Morgan states that there have been no reports of any safety issues or injuries related to the subject noncompliances. NHTSA does not consider the absence of complaints to show that the noncompliances are inconsequential to safety. The subject vehicle population is small, so the lack of reports or complaints may not be surprising. Further, vehicle lighting functions as a signal to other motorists and pedestrians; if other motorists found the noncompliant lighting confusing, it is unlikely that those motorists would have been able to identify the subject vehicle and make a complaint to either NHTSA or Morgan. 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. Finally, the agency observes that although Morgan's Part 573 report and inconsequentiality petition only concern the headlamp spacing and headlamp marking noncompliances, the subject vehicles may also fail to comply with other applicable FMVSSs. For example, a motorcycle headlamp that incorporates a replaceable light source that does not comply with FMVSS No. 108, paragraph S11 (e.g., an H4 light source which is only permitted on motorcycle specific headlamps) is also required to have the headlamp lens permanently marked ``motorcycle.'' This marking may not have appeared on the headlamps of one of the subject vehicles the agency observed. Morgan's proposed remedy: Morgan proposes to add a single FMVSS No. 108 compliant headlamp on the M3W's vertical centerline and have the original, noncompliant headlamps remain as separately switched auxiliary lamps. Paragraph S6.2.1 of FMVSS No. 108 requires that any additional lighting elements (i.e., lighting elements that are not required by the standard) installed on a vehicle must not impair the effectiveness of lighting equipment required by the standard. A motorcycle equipped with both a compliant single headlighting system and an auxiliary (supplemental) dual-headlamp system might be prohibited by the impairment provision. The proximity of the auxiliary lamps to the required front turn signal lamps might also raise impairment concerns. We strongly encourage Morgan to review the standard to ensure that its remedy does indeed comply with all applicable requirements. NHTSA's Decision: After carefully considering the arguments presented on this matter, NHTSA finds that the petitioner has not met its burden of persuasion in establishing that the described noncompliances in the subject vehicles are inconsequential to motor vehicle safety. Accordingly, Morgan's petition is hereby denied, and Morgan must notify owners, purchasers and dealers pursuant to 49 U.S.C. 30118 and provide a free remedy in accordance with 49 U.S.C. 30120. Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8. Gregory K. Rea, Associate Administrator for Enforcement. [FR Doc. 2016-08360 Filed 4-11-16; 8:45 am] BILLING CODE 4910-59-P
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inches narrower and three inches SUMMARY: Morgan 3 Wheeler Limited that if motorcycle headlamps are
smaller in diameter than the non- (Morgan) has determined that certain horizontally disposed about the vertical
temporary tires that would be used on model year (MY) 2012 and 2013 Morgan centerline, the distance between the
the vehicle for which the subject tires model M3W three-wheeled motorcycles closest edges of their effective projected
are also intended. do not comply with all of the luminous lens areas must not be greater
Finally, neither CTA nor NHTSA are requirements of Federal Motor Vehicle than 200 mm.2 Morgan states in its
aware of any crashes, injuries, customer Safety Standard (FMVSS) No. 108, petition that the subject motorcycles do
complaints or field reports associated Lamps, reflective devices, and not comply with this requirement
with the omitted labeling. associated equipment. Specifically, the because they are equipped with dual
NHTSA’s Decision: In consideration vehicles’ headlamps are spaced further horizontally-mounted headlamps
of the foregoing, NHTSA finds that CTA apart than permitted, and do not have mounted 29 inches (737 mm) apart (lens
has met its burden of persuasion that the required ‘‘DOT’’ marking. Morgan edge to lens edge).
the subject FMVSS No. 109 has petitioned for an exemption from The second noncompliance concerns
noncompliance in the affected tires is the recall notification and remedy the lack of a required marking on the
inconsequential to motor vehicle safety. requirements of 49 U.S.C. Chapter 301— headlamps. Paragraph S6.5.1 of FMVSS
Accordingly, CTA’s petition is hereby ‘‘Motor Vehicle Safety’’ (Vehicle Safety No. 108 requires that the lens of each
granted and CTA is consequently Act) on the grounds that the original equipment and replacement
exempted from the obligation of noncompliances are inconsequential to headlamp be marked with the symbol
providing notification of, and a free motor vehicle safety. This notice ‘‘DOT,’’ either horizontally or vertically,
remedy for, that noncompliance under announces and explains NHTSA’s to indicate certification under 49 U.S.C.
49 U.S.C. 30118 and 30120. denial of Morgan’s petition. 30115.3 Morgan states in its petition that
NHTSA notes that the statutory FOR FURTHER INFORMATION CONTACT: For the subject vehicles do not include this
provisions (49 U.S.C. 30118(d) and further information on this decision marking.
30120(h)) that permit manufacturers to contact Mike Cole, Office of Vehicle IV. Rule Text: Paragraphs S7.9.6.2(b)
file petitions for a determination of Safety Compliance, National Highway and S10.17.1.2.2 of FMVSS No. 108
inconsequentiality allow NHTSA to Traffic Safety Administration (NHTSA), require in pertinent part:
exempt manufacturers only from the telephone (202) 366–2334, facsimile Paragraph S7.9.6.2(b) (applies only to the
duties found in sections 30118 and (202) 366–5930. subject vehicles manufactured before
30120, respectively, to notify owners, December 1, 2012).
SUPPLEMENTARY INFORMATION: If the system consists of two headlamps,
purchasers, and dealers of a defect or I. Overview: Pursuant to 49 U.S.C. each of which provides both an upper and
noncompliance and to remedy the 30118(d) and 30120(h) and the rule lower beam, the headlamps shall be mounted
defect or noncompliance. Therefore, this implementing those provisions at 49 either at the same height and symmetrically
decision only applies to the subject tires CFR part 556, Morgan has petitioned for disposed about the vertical centerline or
that CTA no longer controlled at the an exemption from the notification and mounted on the vertical centerline. If the
time it determined that the remedy requirements of 49 U.S.C. headlamps are horizontally disposed about
noncompliance existed. However, the the vertical centerline, the distance between
Chapter 301 on the basis that the the closest edges of their effective projected
granting of this petition does not relieve noncompliances are inconsequential to luminous lens areas shall not be greater than
equipment distributors and dealers of motor vehicle safety. 200 mm (8 in.).
the prohibitions on the sale, offer for Notice of receipt of the petition was Paragraph S10.17.1.2.2 (applies only to the
sale, or introduction or delivery for published, with a 30-day public subject vehicles manufactured after
introduction into interstate commerce of comment period, on December 9, 2013 December 1, 2012).
the noncompliant tires under their in the Federal Register (78 FR 73920). If the headlamps are horizontally disposed
control after CTA notified them that the about the vertical centerline, the distance
One comment was received from Peter
subject noncompliance existed. between the closest edges of their effective
C. Larsen of Liberty Motors, LLC. To projected luminous lens areas must not be
Authority: 49 U.S.C. 30118, 30120: view the petition and all supporting greater than 200 mm.
delegations of authority at 49 CFR 1.95 and documents log onto the Federal Docket
501.8. V. Summary of Morgan’s Petition and
Management System Web site at:
Comments: Morgan petitions for relief
Jeffrey M. Giuseppe, http://www.regulations.gov/. Follow the
from the recall provisions of the Vehicle
Director, Office of Vehicle Safety Compliance.
online search instructions to locate
Safety Act with respect to both of these
docket number ‘‘NHTSA–2013–0101.’’
[FR Doc. 2016–08362 Filed 4–11–16; 8:45 am]
II. Vehicles involved: Approximately noncompliances. Morgan makes several
BILLING CODE 4910–59–P
150 MY 2012 and 2013 Morgan model arguments to support its assertion that
M3W three-wheeled motorcycles these noncompliances are
manufactured from August 1, 2012 to inconsequential to motor vehicle safety.
DEPARTMENT OF TRANSPORTATION With respect to the headlamp spacing
August 14, 2013 (subject vehicles) are
noncompliance, Morgan contends that
National Highway Traffic Safety affected.
Administration III. Noncompliances: Morgan’s 2 In a December 2007 final rule, NHTSA rewrote
petition concerns two requirements in and reorganized FMVSS No. 108 to provide a more
[Docket No. NHTSA–2013–0101; Notice 2] FMVSS No. 108.1 Both noncompliances straightforward and logical presentation of the
involve the vehicles’ headlights. Morgan regulatory requirements. 72 FR 68234, Dec. 4, 2007.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
Morgan 3 Wheeler Limited, Denial of states that the noncompliances are a Those amendments became effective on December
Petition for Decision of 1, 2012. 74 FR 58214, Nov. 12, 2009. The rewrite
result of a configuration error in its was not intended to make any substantive changes
Inconsequential Noncompliance production line. The first to the standard. The subject vehicle population
noncompliance involves the spacing includes vehicles manufactured both before and
AGENCY: National Highway Traffic after this effective date. Prior to the effective date
Safety Administration (NHTSA), between the headlights. Paragraph of the reorganized standard, the headlight spacing
Department of Transportation (DOT). S10.17.1.2.2 of FMVSS No. 108 specifies requirement was contained in S7.9.6.2(b).
3 This provision was located at S7.2(a) in the pre-
ACTION: Denial of petition. 1 49 CFR 571.108. rewrite version of FMVSS No. 108.
VerDate Sep<11>2014 17:18 Apr 11, 2016 Jkt 238001 PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 E:\FR\FM\12APN1.SGM 12APN1](https://thefederalregister.org/doc/81_FR_21733/page/1.svg)
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the headlamps meet the ‘‘technical Larsen suggests that if the subject noncompliances are inconsequential to
requirements’’ of FMVSS No. 108. vehicles are remedied so that the dual safety. The agency is therefore denying
Morgan also states that it does not headlights are replaced with a Morgan’s petition with respect to both
believe that this noncompliance will compliant center headlight, owners and noncompliances. The agency’s reasons
increase the safety risk to vehicle dealers of the subject vehicles would for the denial are discussed below.
occupants or approaching drivers. likely remove the single center light and NHTSA is not persuaded by the
Morgan argues that the current replace it with the dual, widely-spaced arguments of Morgan or Mr. Larsen
horizontal spacing of 29 inches (737 lights; and that a recall or design regarding the noncompliance with the
mm) is in the best interests of road revision, Mr. Larsen asserts, would headlamp spacing requirement in
safety, because if the M3W complied ‘‘criminalize’’ these actions. Finally, Mr. S10.17.1.2.2. Morgan’s assertion that the
with the existing motorcycle head lamp Larsen argues that many existing three- subject vehicles meet the ‘‘technical
spacing requirement, other road users wheeled vehicles have similarly-spaced requirements’’ of FMVSS No. 108 is
would not have an accurate indication dual headlights, and it would be unjust inaccurate because the distance
of the width of an oncoming M3W. to penalize Morgan’s similar design. Mr. requirement for headlamp configuration
Morgan also argues that NHTSA has Larsen requests that NHTSA ‘‘properly is clearly stated in the regulation as one
previously found a lighting separation amend’’ FMVSS No. 108. of the requirements for compliance.8
noncompliance to be inconsequential.4 Morgan acknowledges in its Part 573
Morgan contends that the lens NHTSA’s Decision defect notification report that the
marking noncompliance is General Principles: Federal motor headlamps on the subject vehicles do
inconsequential to motor vehicle safety vehicle safety standards are adopted not comply with this requirement.
because the lamps meet the substantive only after the agency has determined, The agency is also not persuaded by
requirements of FMVSS No. 108. following notice and comment, that the Morgan and Mr. Larsen’s arguments that
Morgan also states that owners of performance requirements are objective, the noncompliance not only does not
Morgan vehicles almost exclusively go practicable, and meet the need for motor increase the safety risk, but is, in fact,
to Morgan dealers for replacement parts; vehicle safety.5 There is a general safety-enhancing, because the wider-
the agency assumes that Morgan is presumption that the failure of a motor spaced headlamps convey a more
implying that because the vehicle owner vehicle or item of motor vehicle accurate impression of the vehicle’s
is likely to obtain a replacement part equipment to comply with an FMVSS width to other motorists. An
directly from a dealer, the owner can be increases the risk to motor vehicle safety inconsequentiality petition is not the
confident that the headlamp complies beyond the level determined appropriate means to challenge the basis
with all applicable requirements, even appropriate by NHTSA through the or appropriateness of a requirement
though it lacks the proper ‘‘DOT’’ rulemaking process. To protect the specified in an FMVSS. The appropriate
marking. public from such risks, manufacturers venue for such an argument is a petition
With respect to both noncompliances, whose products fail to comply with an for rulemaking to amend the current
Morgan asserts, based on its reading of FMVSS are normally required to safety standard. Nevertheless, neither
previous inconsequentiality petition conduct a safety recall under which Morgan nor Mr. Larsen have offered
grants by NHTSA, that its they must notify owners, purchasers, persuasive evidence that either the
noncompliances should be found to be and dealers of the noncompliance and standard or market conditions have
inconsequential because the M3W is an provide a remedy without charge.6 changed to undermine the basis for the
exotic vehicle with no roof or doors, Congress has, however, recognized spacing limitation. The 200 mm
produced in very low numbers, driven that under some limited circumstances maximum spacing requirement was
a low number of miles, and likely to be added to the standard in 1998 in
a noncompliance may be
operated on a limited basis, as opposed response to a petition for rulemaking. In
‘‘inconsequential’’ to motor vehicle
to an ordinary passenger automobile the preamble to the final rule, NHTSA
safety. Neither NHTSA’s statute nor its
designed to be used as a family’s explained the rationale for the
regulations define ‘‘inconsequential.’’
primary passenger vehicle. Morgan also motorcycle headlight requirements:
NHTSA determines whether a particular
states that there have been no reports of ‘‘[A]t the time that the motorcycle
noncompliance is inconsequential to
any safety issues or injuries related to headlight requirements in Standard No.
motor vehicle safety based on the
the subject noncompliances. NHTSA 108 were originally issued, the
specific facts before the agency. The key
received one comment on Morgan’s predominant concern was that the
issue in evaluating an
petition from Peter Larsen. Mr. Larsen headlighting system clearly identify a
inconsequentiality petition is whether
makes several arguments in support of motorcycle as such when the vehicle
Morgan’s petition. First, Mr. Larsen the noncompliance is likely to increase
the safety risk to individuals who was being operated at night.’’ 9 The
asserts that a NHTSA-published wider space between the headlamps on
guidebook on motorcycle requirements experience the type of injurious event
against which the standard was the subject vehicles could impair the
does not contain the 200 mm spacing ability of other motorists to identify the
requirement. Second, Mr. Larsen argues designed to protect.7 The agency is not
aware of any prior inconsequentiality subject vehicle as a motorcycle. Such
that when NHTSA promulgated this identification is important because
requirement it did not contemplate petitions concerning either of the two
requirements that are the subject of motorists may be more alert or alter
three-wheeled vehicles with the frontal their driving in response to the presence
aspect of a small automobile, for which Morgan’s petition.
asabaliauskas on DSK3SPTVN1PROD with NOTICES
NHTSA’s analysis: The agency has of a motorcycle, since motorcycles are
headlights spaced more than 200 mm smaller, less enclosed, and less stable
apart help to indicate the size and shape determined that Morgan has not met its
burden of persuasion that the than passenger cars and other motor
of the vehicle. Accordingly, Mr. Larsen vehicles.10 Even if the Morgan vehicle’s
contends that the 200 mm requirement, 5 49U.S.C. 30111(a).
as applied to the subject vehicles, is not 6 49U.S.C. 30118–30120. 8 S10.17.1.2.2.
in the interest of safety. Third, Mr. 7 General Motors Corp., Ruling on Petition for 9 63FR 42582, 42582, Aug. 10, 1998.
Determination of Inconsequential Noncompliance, 10 Thenoncompliance is also not de minimis. The
4 See 64 FR 28864, May 27, 1999. 69 FR 19897, Apr. 14, 2004. headlamps on the subject vehicles are 29 inches
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![21666 Federal Register / Vol. 81, No. 70 / Tuesday, April 12, 2016 / Notices
‘‘substantive’’ requirements of FMVSS surprising. Further, vehicle lighting Authority: 49 U.S.C. 30118, 30120:
No. 108, but has provided no functions as a signal to other motorists delegations of authority at 49 CFR 1.95 and
information as to which requirements it and pedestrians; if other motorists 501.8.
considers ‘‘substantive’’ and which it found the noncompliant lighting Gregory K. Rea,
does not. Morgan has submitted no confusing, it is unlikely that those Associate Administrator for Enforcement.
compliance testing data or information motorists would have been able to [FR Doc. 2016–08360 Filed 4–11–16; 8:45 am]
showing that the lamps comply with all identify the subject vehicle and make a
BILLING CODE 4910–59–P
relevant requirements. Without such complaint to either NHTSA or Morgan.
information and data, and without a Most importantly, the absence of a
‘‘DOT’’ mark on the headlamp to imply complaint does not mean there have not
that such information and data exist, the been any safety issues, nor does it mean DEPARTMENT OF THE TREASURY
agency is unable to conclude that the that there will not be safety issues in the
lack of the ‘‘DOT’’ mark is the only future. Office of the Comptroller of the
noncompliant aspect of the headlamps. Finally, the agency observes that Currency
In addition to the arguments although Morgan’s Part 573 report and
Agency Information Collection
addressed above, the agency is also not inconsequentiality petition only
Activities: Information Collection
persuaded by two additional arguments concern the headlamp spacing and
Renewal; Comment Request; Notice
Morgan makes for why it believes headlamp marking noncompliances, the
Regarding Unauthorized Access to
NHTSA should grant the petition with subject vehicles may also fail to comply
Customer Information
respect to both noncompliances. First, with other applicable FMVSSs. For
Morgan argues that its petition should example, a motorcycle headlamp that AGENCY: Office of the Comptroller of the
be granted because the subject vehicle is incorporates a replaceable light source Currency (OCC), Treasury.
an exotic vehicle produced in very low that does not comply with FMVSS No. ACTION: Notice and request for
numbers and likely to be operated on a 108, paragraph S11 (e.g., an H4 light comment.
limited basis, as opposed to a passenger source which is only permitted on
automobile designed to be used as a motorcycle specific headlamps) is also SUMMARY: The OCC, as part of its
family’s primary passenger vehicle. In required to have the headlamp lens continuing effort to reduce paperwork
support of this argument, Morgan cites permanently marked ‘‘motorcycle.’’ This and respondent burden, invites the
two previous agency decisions granting marking may not have appeared on the general public and other Federal
inconsequentiality petitions.21 Both headlamps of one of the subject vehicles agencies to comment on a continuing
petitions concerned noncompliances the agency observed. information collection, as required by
with automatic restraint requirements in Morgan’s proposed remedy: Morgan the Paperwork Reduction Act of 1995
FMVSS No. 208. The agency’s decisions proposes to add a single FMVSS No. 108 (PRA).
in those situations were based on the compliant headlamp on the M3W’s In accordance with the requirements
fact that it had already granted vertical centerline and have the original, of the PRA, the OCC may not conduct
temporary exemption petitions from noncompliant headlamps remain as or sponsor, and the respondent is not
both manufacturers for the vehicle separately switched auxiliary lamps. required to respond to, an information
models at issue in those Paragraph S6.2.1 of FMVSS No. 108 collection unless it displays a currently
inconsequentiality petitions. The agency requires that any additional lighting valid Office of Management and Budget
has not previously granted Morgan a elements (i.e., lighting elements that are (OMB) control number.
temporary exemption for the not required by the standard) installed The OCC is soliciting comment
noncompliances at issue in the present on a vehicle must not impair the concerning its information collection
petition. Moreover, the ‘‘vehicle effectiveness of lighting equipment titled, ‘‘Notice Regarding Unauthorized
attributes’’ that Morgan implies those required by the standard. A motorcycle Access to Customer Information.’’
grants were based on—that the vehicles equipped with both a compliant single
DATES: Comments must be submitted on
were exotic vehicles likely operated on headlighting system and an auxiliary
(supplemental) dual-headlamp system or before June 13, 2016.
a limited basis—were simply arguments
made by the petitioners in those cases, might be prohibited by the impairment ADDRESSES: Because paper mail in the
and not, as Morgan’s petition implies, provision. The proximity of the Washington, DC area and at the OCC is
the basis for the agency’s decision. auxiliary lamps to the required front subject to delay, commenters are
NHTSA expects manufacturers to fulfill turn signal lamps might also raise encouraged to submit comments by
their duties and responsibilities to impairment concerns. We strongly email, if possible. Comments may be
provide vehicles that meet all safety encourage Morgan to review the sent to: Legislative and Regulatory
standards regardless of production standard to ensure that its remedy does Activities Division, Office of the
volume or estimated consumer use. indeed comply with all applicable Comptroller of the Currency, Attention:
Second, Morgan states that there have requirements. 1557–0227, 400 7th Street SW., Suite
been no reports of any safety issues or NHTSA’s Decision: After carefully 3E–218, Mail Stop 9W–11, Washington,
injuries related to the subject considering the arguments presented on DC 20219. In addition, comments may
noncompliances. NHTSA does not this matter, NHTSA finds that the be sent by fax to (571) 465–4326 or by
consider the absence of complaints to petitioner has not met its burden of electronic mail to regs.comments@
show that the noncompliances are persuasion in establishing that the occ.treas.gov. You may personally
asabaliauskas on DSK3SPTVN1PROD with NOTICES
inconsequential to safety. The subject described noncompliances in the inspect and photocopy comments at the
vehicle population is small, so the lack subject vehicles are inconsequential to OCC, 400 7th Street SW., Washington,
of reports or complaints may not be motor vehicle safety. Accordingly, DC 20219. For security reasons, the OCC
Morgan’s petition is hereby denied, and requires that visitors make an
21 60 FR 27593, May 24, 1995 (grant of
Morgan must notify owners, purchasers appointment to inspect comments. You
inconsequentiality petition from Excalibur and dealers pursuant to 49 U.S.C. 30118 may do so by calling (202) 649–6700 or,
Automobile Corp.); 61 FR 9517, Mar. 8, 1996 (grant
of inconsequentiality petition from Cantab Motors, and provide a free remedy in for persons who are deaf or hard of
Ltd.). accordance with 49 U.S.C. 30120. hearing, TTY, (202) 649–5597. Upon
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Document Created: 2016-04-12 00:46:31
Document Modified: 2016-04-12 00:46:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Action | Denial of petition. | |
| Contact | For further information on this decision contact Mike Cole, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-2334, facsimile (202) 366-5930. | |
| FR Citation | 81 FR 21663 |
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