SUPPLEMENTARY INFORMATION:

I. Overview: Rivian determined that certain MY 2022 Rivian EDV motor vehicles do not fully comply with paragraph S4.5.1(b)(5)(i) of FMVSS No. 208, Occupant Crash Protection (49 CFR 571.208).

Rivian filed a noncompliance report dated October 24, 2022, and amended the report on November 14, 2022, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Rivian petitioned NHTSA on November 15, 2022, 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 Rivian's petition was published with a 30-day public comment period, on May 19, 2023, in the Federal Register (88 FR 32275). No comments were received. To view the petition and all supporting documents log onto the Federal Docket Management System (FDMS) website at www.regulations.gov/​. Then follow the online search instructions to locate docket number “NHTSA-2022-0112.”

II. Vehicles Involved: Approximately 1,278 MY 2022 Rivian EDV motor vehicles, manufactured between December 10, 2021, and September 27, 2022, were reported by the manufacturer.

III. Noncompliance: Rivian explains that a label displaying the subject vehicle's clearance height is affixed to the same side of the sun visor containing the air bag warning label, therefore, the subject vehicles do not comply with paragraph S4.5.1(b)(5)(i) of FMVSS No. 208.

IV. Rule Requirements: Paragraph S4.5.1(b)(5)(i) of FMVSS No. 208 includes the requirements relevant to this petition. S4.5.1(b)(5)(i) requires that except for the information on an air bag maintenance label placed on the sun visor pursuant to S4.5.1(a) of FMVSS No. 208, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of FMVSS No. 105, no other information shall appear on the same side of the sun visor to which the sun visor air bag warning label is affixed.

V. Summary of Rivian's Petition: The following views and arguments presented in this section, “V. Summary of Rivian's Petition,” are the views and arguments provided by Rivian. They do not reflect the views of the Agency. Rivian describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.

Rivian states that the air bag warning label that is affixed to the sun visor in the subject vehicles meets the FMVSS No. 208 content requirements and is displayed as intended by the standard. In addition to this compliant label, there is another label affixed to the sun visor that indicates the clearance height of the subject vehicle. Rivian believes that the vehicle clearance height label included on the sun visor is inconsequential to motor vehicle safety because the subject vehicles are exclusively used in a single fleet of delivery vehicles that are driven by professional drivers. Rivian explains that the subject vehicles are walk-in vans in which the driver's seat is the only designated seating position and drivers are required to wear their seat belts when operating the subject vehicle. Because of the vehicle's intended usage, Rivian believes that the subject noncompliance does not affect the efficacy of the information provided by the air bag warning label.

Furthermore, Rivian contends that the purpose of the requirement that no other information be present with the air bag warning label is to mitigate “the potential for children to be placed at a seating position that is equipped with an air bag and also inform of the precautions the vehicle occupant may take to protect themselves from being injured by a deploying air bag” Rivian believes that this is not a risk because there is no expectation that a child would be present in or around the subject vehicle. Rivian states that if a child were to occupy the driver's seat, the brake transmission shift interlock that is required by FMVSS No. 114 would prevent the child from operating the vehicle, thus there would be no way for the air bags to be deployed.

Additionally, Rivian says that the drivers of the subject vehicles are required to use the seat belt at all times and the information provided by the air bag warning label is visible, easy to read, and not positioned near the vehicle clearance height label. Therefore, Rivian believes that there is no indication that the addition of the noncompliant vehicle clearance height label would cause a driver of the subject vehicle to confuse the message of the air bag warning label.

Rivian believes that the reason NHTSA determined that no other types of information are allowed to be displayed on the same side of the sun visor as the air bag warning label was to maximize the effectiveness of the label's content by ensuring that there is ( printed page 41169) consistent and uniform messaging to consumers. Rivian quotes NHTSA's decision on a similar petition from Maserati: “The purpose of [the air bag warning label in] FMVSS No. 208 is to reduce the adverse effects of air bags by attracting the attention of vehicle occupants to look for the air bag warning label on the sun visor.” ^[1]

Rivian contends that in past inconsequentiality petitions, NHTSA determined “that the manner in which a particular subset of vehicles is used bears upon the inconsequential nature of the air bag warning label noncompliance.” Further, Rivian says that NHTSA has previously granted inconsequentiality for a noncompliance involving the placement of the air bag warning label in a vocational vehicle and found that due to the nature and intended use of the affected vehicles, it would be unlikely for children to be placed in the front passenger seating area.^[2]

Rivian adds that NHTSA granted prior petitions in which the air bag warning label deviated from the exact language that is required by the standard.^[3] Although those petitions related to the language that was used in the advanced air bag warning label, Rivian contends that NHTSA's rationale for those determinations still applies in the present case.

Rivian states that the subject noncompliance has been corrected for vehicles in production. Rivian says it is not aware of any crash, death, injury, field report, or claims related to the subject noncompliance.

Rivian concludes by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety and 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. NHTSA's Analysis:

In determining inconsequentiality of a noncompliance, NHTSA focuses on the safety risk to individuals who experience the type of event against which a recall would otherwise protect.^[4] In general, NHTSA does not consider the absence of complaints or injuries when determining if a noncompliance 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.^[5] Further, because each inconsequential noncompliance petition must be evaluated on its own facts and determinations are highly fact-dependent, NHTSA does not consider prior determinations as binding precedent. Petitioners are reminded that they have the burden of persuading NHTSA that the noncompliance is inconsequential to safety. FMVSS No. 208 S4.5.1(b)(5)(i) requires that except for the information on an air bag maintenance label placed on the sun visor pursuant to S4.5.1(a) of FMVSS No. 208, or on a utility vehicle warning label placed on the sun visor that conforms in content, form, and sequence to the label shown in Figure 1 of FMVSS No. 105, no other information shall appear on the same side of the sun visor to which the sun visor air bag warning label is affixed.

The purpose of that labeling requirement is to reduce the adverse effects of air bags by attracting the attention of vehicle occupants to look for the air bag warning label on the sun visor. In its petition, Rivian explains that the subject vehicles are equipped with a label displaying the vehicle's clearance height that is affixed to the same side of the sun visor containing the air bag warning label. Rivian has provided evidence that even with the addition of the vehicle's clearance height information, the FMVSS No. 208 required Figure 1 label is present, unobstructed, and within clear view of the driver.

Additionally, Rivian explains that in the subject vehicles, the driver's seat is the only designated seating position. With the understanding that these vehicles are delivery vans, the vehicle's clearance height could potentially be a frequently used piece of information for the driver.

NHTSA has evaluated the merits of the inconsequential noncompliance petition submitted by Rivian and has determined that this particular noncompliance is inconsequential to motor vehicle safety. NHTSA agrees that given the nature and intended use of the subject vocational vehicles, it would be unlikely for children to be placed in the front passenger seating area.

VII. NHTSA's Decision: In consideration of the foregoing, NHTSA finds that Rivian has met its burden of persuasion that the subject FMVSS No. 208 noncompliance in the affected vehicles is inconsequential to motor vehicle safety. Accordingly, Rivian's petition is hereby granted and Rivian is consequently exempted from the obligation of providing notification of, and a free remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.

NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject vehicles that Rivian no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve vehicles distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Rivian notified them that the subject noncompliance existed.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)

91 FR 41168