Notice2021-22972
Ride the Ducks International, LLC, Denial of Petition for Decision of Inconsequential Noncompliance
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Published
October 21, 2021
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
Ride the Ducks International, LLC (RTDI), has determined that certain model year (MY) 1996-2014 Ride the Ducks International Stretch Amphibious passenger vehicles (APVs) do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 103, Windshield Defrosting and Defogging Systems. RTDI filed a noncompliance information report dated March 15, 2017. RTDI also petitioned NHTSA on April 12, 2017, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety.
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<title>Federal Register, Volume 86 Issue 201 (Thursday, October 21, 2021)</title>
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[Federal Register Volume 86, Number 201 (Thursday, October 21, 2021)]
[Notices]
[Pages 58384-58387]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22972]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2017-0035; Notice 2]
Ride the Ducks International, LLC, Denial of Petition for
Decision of Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
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SUMMARY: Ride the Ducks International, LLC (RTDI), has determined that
certain model year (MY) 1996-2014 Ride the Ducks International Stretch
Amphibious passenger vehicles (APVs) do not fully comply with Federal
Motor Vehicle Safety Standard (FMVSS) No. 103, Windshield Defrosting
and Defogging Systems. RTDI filed a noncompliance information report
dated March 15, 2017. RTDI also petitioned NHTSA on April 12, 2017, for
a decision that the subject noncompliance is inconsequential as it
relates to motor vehicle safety.
ADDRESSES: Neil Dold, Office of Vehicle Safety Compliance, NHTSA,
telephone: (202) 366-7352, facsimile (202) 366-5930.
SUPPLEMENTARY INFORMATION:
I. Overview
RTDI has determined that certain MY 1996-2014 Ride the Ducks
International Stretch APVs do not fully comply with paragraph S4.1 of
Federal Motor Vehicle Safety Standard (FMVSS) No. 103, Windshield
Defrosting and Defogging Systems (49 CFR 571.103). RTDI filed a
noncompliance information report dated March 15, 2017, pursuant to 49
CFR 573, Defect and Noncompliance Responsibility and Reports. RTDI also
petitioned NHTSA on April 12, 2017, pursuant to 49 U.S.C. 30118(d) and
30120(h) and 49 CFR part 556, for an exemption from the notification
and remedy requirements of 49 U.S.C. chapter 301 on the basis that this
noncompliance is inconsequential as it relates to motor vehicle safety.
Notice of receipt of RTDI's petition was published in the Federal
Register
[[Page 58385]]
(82 FR 38992) with a 30-day public comment period, on August 16, 2017.
No comments were received. To view the petition and all supporting
documents log onto the Federal Docket Management System (FDMS) website
at: <a href="http://www.regulations.gov/">http://www.regulations.gov/</a>. Then follow the online search
instructions to locate docket number ``NHTSA-2017-0035.''
II. Vehicles Involved
Approximately 105 MY 1996-2014 RTDI Stretch APVs, manufactured
between January 1, 1996 and December 31, 2014 are potentially involved.
III. Noncompliance
RTDI explained that the noncompliance is that the subject vehicles
were manufactured without a windshield defrosting and defogging system,
as required by paragraph S4.1 of FMVSS No. 103.
IV. Rule Requirements
Paragraph S4.1 of FMVSS No. 103 includes the requirements relevant
to this petition. Each vehicle shall have a windshield defrosting and
defogging system.
V. Summary of RTDI's Petition
As background, in 1996, RTDI began to produce APVs by performing
extensive modifications to General Motors amphibious military trucks
originally designated as DUKWs. The ability of the DUKW to transport
troops, supplies or equipment across both land and water made them
indispensable in World War II and the Korean War. The modifications
performed by RTDI, which included replacement of the original
drivetrain and enlarging the hull or body, were such that the end
product was a newly manufactured vehicle employing donor parts. The
original APVs are based on military vehicles that were capable of
operation over both land and water. The resulting ``Stretch Duck'' APVs
were manufactured by RTDI until 2005 when RTDI introduced its ``Truck
Duck'' APVs. The Truck Duck APVs are based on military cargo vehicles.
Both the Stretch Duck and Truck Ducks were manufactured in in
accordance with state and U.S. Coast Guard rules and regulations. RTDI
has not manufactured any vehicles since 2014.
RTDI described the subject noncompliance and stated its belief that
the noncompliance is inconsequential as it relates to motor vehicle
safety.
In support of its petition, RTDI submitted the following reasoning:
1. FMVSS No. 103 specifies that ``[e]ach vehicle shall have a
windshield defrosting and defogging system.'' 49 CFR 571.103, S4(a),
S4.1. The purpose of FMVSS No. 103 is to establish minimum performance
requirements for vehicle windshield defrosting and defogging systems in
order to ensure that the vehicle operator is able to sufficiently see
through the windshield.
The APVs have features that are designed to achieve the same
purpose as the standard. The APVs' ``open-air'' design precludes fog
from building up on the windshield. Fog buildup on the interior or
exterior of a motor vehicle windshield occurs when water condenses on
the windshield. For water to condense on a windshield, the air next to
the windshield must be humid and the air's dew point--the temperature
to which air must be cooled to become saturated with water vapor--must
be higher than the windshield's temperature. In other words, humid and
warm air must surround a cool windshield. Because of its open-air
design, the APVs will not encounter any of the physical conditions that
create fog buildup on the windshield. The APVs do not have solid glass
windows in the passenger compartment and the rear of the vehicle is
also open to the air. The side panels of the driver's compartment are
open on both sides of the windshield and the center windshield can be
pushed outward and opened when needed. Because of the APVs' design, the
ambient air is able to continually circulate within the interior of the
vehicle, creating no difference between the temperature or humidity of
the air outside and inside the vehicle. In the unlikely event that fog
did accumulate on the windshield, the APVs have windshield wipers to
clear the surface and the vehicle operator can also push down the
windshield for visibility.
2. Frost builds up on the windshield of a vehicle when the
temperature of liquid or condensation on the windshield decreases to
the freezing point of water, turning the condensation into frost. The
APVs' lack of a defrosting system similarly does not present a safety
concern. The APVs are only operated on a seasonal basis and not during
the winter months in any location where the vehicles provide tours. The
APVs, therefore, are not operated during or exposed to weather
conditions that would expose the vehicles to frost or create the need
to defrost the windshields. As above, the operator also has the ability
to push down the center windshield or use the windshield wipers to
increase visibility in the unlikely event of frost.
3. From its inception, the Safety Act has included a provision
recognizing that some noncompliances may pose little or no actual
safety risk. The Safety Act exempts manufacturers from their statutory
obligation to provide notice and remedy upon a determination by NHTSA
that a noncompliance is inconsequential to motor vehicle safety. See 49
U.S.C. 30118(d). In applying this recognition to particular fact
situations, the agency considers whether the noncompliance gives rise
to ``a significantly greater risk than . . . in a compliant vehicle.''
69 FR 19897, 19900 (April 14, 2000). As described above, the
specialized design of the APVs and the vehicles' pattern of use does
not expose the vehicles to conditions that could create an increased
safety risk when compared to a vehicle that has a windshield defrosting
and defogging system installed.
RTDI concluded by expressing the belief that the subject
noncompliance is inconsequential as it relates to motor vehicle safety,
and that its petition to be exempted from providing notification of the
noncompliance, as required by 49 U.S.C. 30118, and a remedy for the
noncompliance, as required by 49 U.S.C. 30120, should be granted.
VI. Supplemental Information
On October 10, 2017, RTDI, per a request from NHTSA's Office of
Chief Counsel, provided the following supplemental information:
Regarding FMVSS No. 103, RTDI asserted that:
1. The subject vehicles are equipped with heaters but not air
conditioning. There are two types of heating systems used, depending on
the type of vehicle.
a. For ``Stretch Duck'' APVs, heaters are located at the base of
the passenger compartment side walls, with one heater located on each
side. The heaters run lengthwise, from the front to the back of the
vehicle's interior compartment. The heaters are radiant type heaters
that utilize coils that are plumbed into the engine's water coolant
system. Small blowers are located at one end of each heater box that
force the radiant heat towards the passenger seated next to the exhaust
vents.
b. The ``Truck Duck'' APVs use heaters with a similar design
(plumbed into the engine's coolant system), however, there are two
smaller heaters with larger blowers. These heaters are located under
the left and right centermost passenger seats.
2. Due to the excessive ventilation of the passenger space (even
when curtains are down) when the heaters are operational, they are not
capable of maintaining an increased ambient temperature within the
passenger space. Frost and fog cannot build on the
[[Page 58386]]
surface of the vehicle windshield without a difference between the
ambient temperature in the passenger compartment and the outside air.
3. The interior space of the vehicle is under constant ventilation
due to the configuration of the engine's reverse radiator fan, the
various canopy openings, and the passenger deck design. The APVs are
considered an ``open boat'' design under the U.S. Coast Guard
regulations. Per the regulations, the deck of an open boat must be
capable of draining any accumulation of water directly to the bilge
pumps which are located below the deck. See 46 CFR 178.440.
Additionally, U.S. Coast Guard regulations require spaces containing
machinery powered by fuel to have ventilation. See 46 CFR 182.460. To
comply with this regulation, the engines reverse radiator fan
continuously draws air through the vessel's deck and ventilation piping
towards the radiator. The engine's radiator fan exhausts the air
through the vehicle exterior side vents located adjacent to the driver
station.
4. RTDI claimed that the design of the APVs and the vehicles' use
pattern precludes the accumulation of frost and fog on the windshield.
RTDI asserted that this is consistent with the on-road experience of
the APVs. Generally, the vehicles do not operate during the cold
weather. In the event that fog or frost did accumulate on the front
windshield, the driver would be able to quickly and easily lower the
windshield. RTDI has established operational safety guidelines for the
use of the drivers open/close feature. RTDI's guidelines states that an
operator should not open the windshield ``unless the visibility through
the windshield becomes obstructed, the opening and closing of the front
windshield should only take place when the vehicle is traveling at a
slow rate of speed (i.e., slow-moving traffic conditions) and/or when
the vehicle comes to a complete stop.''
5. The vehicles are equipped with clear PVC soft side curtains that
can be lowered and raised by the driver. The side curtains' operational
controls are located on the driver's dash and are operated by using two
momentary switches (one switch operates the left side curtain and the
second switch operates the right side curtain). When the operator holds
the switch down the curtains will lower and when the switch is held up
the curtain will raise. The curtains have limit switches that
automatically stop the curtains once they reach a height of not less
than 32<gr-thn-eq>. This height restriction is consistent with U.S.
Coast Guard requirements for means of escape which provides the
``minimum clear opening must be not less than 32 inches.'' 46 CFR
116.500. As a safety precaution, RTDI installed red markers on the
canopy uprights to provide the APV operator with a visual means to
ensure the limit switches are properly set and have reached the 32''
placement. Additionally, the U.S. Coast Guard inspects and tests the
curtain safety feature annually.
6. The curtains are generally lowered due to inclement weather
conditions. It takes the driver less than 30 seconds to lower the
curtains. The side curtains do not enclose the entire passenger's
space; only the left and right sides of the passenger compartment are
enclosed by the side curtains. In the event of an emergency, the driver
can deploy the side curtains from the driver's station to allow for
quick egress. Passengers are also able to lift and push curtains out in
the event of an emergency.
VII. NHTSA's Analysis
NHTSA has considered RTDI's arguments and has determined that RTDI
has not met its burden of demonstrating that the subject noncompliance
is inconsequential. The Agency responds to RTDI's arguments below.
The burden of establishing the inconsequentiality of a failure to
comply with a performance requirement in a standard--as opposed to a
labeling requirement--is more substantial and difficult to meet.
Accordingly, the Agency has not found many such noncompliances
inconsequential.\1\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
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\1\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\2\ NHTSA also does not
consider the absence of complaints or injuries to show that the issue
is inconsequential to safety. ``Most importantly, the absence of a
complaint does not mean there have not been any safety issues, nor does
it mean that there will not be safety issues in the future.'' \3\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \4\
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\2\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
\3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
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Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions
based on the assertion that only a small percentage of vehicles or
items of equipment are likely to actually exhibit a noncompliance. The
percentage of potential occupants that could be adversely affected by a
noncompliance does not determine the question of inconsequentiality.
Rather, the issue to consider is the consequence to an occupant who is
exposed to the consequence of that noncompliance.\6\
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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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For safe viewing through the front windshield, FMVSS No. 103
specifies requirements for windshield defrosting and defogging systems.
These systems are critical for removing and preventing frost and ice
from the windshield during cold weather seasons, or fog anytime the
ambient temperature, humidity and dew point are at the required
combination between the windshield and the air inside or outside of the
vehicle.
RTDI stated that without a windshield defrosting and defogging
system the features of the APVs are designed to achieve the same
purpose as the
[[Page 58387]]
requirements in FMVSS No. 103. RTDI explained that the APVs are ``open-
air'' (i.e., without side and rear glass windows) and because of this
will never encounter any physical conditions that would produce fog
buildup on the windshield. RTDI explained, that in the unlikely event
that fog did accumulate on the windshield, the APVs have windshield
wipers to clear the surface and that the vehicle operator can also
manually lower the windshield for better visibility. RTDI mentioned
that frost and ice should not be an issue because the APVs are only
operated on a seasonal basis and not during winter months in any of the
locations they operate.
In a separate inquiry to RTDI, the Agency learned that APVs are
equipped with plastic side windows that can be deployed to partially
enclose the vehicle's interior during periods of inclement weather and
that these vehicles are not equipped with air conditioning systems but
are designed with interior heating units.
The Agency does not agree with RTDI's judgment that the subject
APVs, designed without a defogging or defrosting system, achieve the
same purpose as FMVSS No. 103. During times of inclement weather when
the side curtains are deployed and the front windshield is in the up
position, the vehicle is not in a fully ``open-air'' configuration as
suggested by RTDI. If fog were to develop on the windshield, and the
vehicle is being driven on public roadways at posted speeds, the driver
would not be able to safely lower the front windshield to address the
problem, as explained by RTDI. Furthermore, RTDI mentioned that the
APVs are only operated on a seasonal basis and not during winter
months, however, the vehicles were designed with heating systems which
would suggest they can be operated at times when the outside
temperature is too cool for passenger comfort or when or frost
conditions may occur. In all events, RTDI has not provided sufficient
information for NHTSA to determine that the conditions underlying the
regulatory requirement at issue will not occur during operation of the
subject APVs.
NHTSA notes that FMVSS No. 103 was amended in 1985 to explicitly
provide in Sec. 4(b) that passenger cars, multipurpose passenger
vehicles, trucks, and buses manufactured for sale in the non-
continental United States may, at the option of the manufacturer, have
a windshield defogging system which operates either by applying heat to
the windshield or by dehumidifying the air inside the passenger
compartment of the vehicle, in lieu of meeting the requirements
specified by paragraph (a) of this section (50 FR 48772, Nov. 27,
1985). While this section of FMVSS No. 103 does not apply to the RTDI
vehicles at issue, the reasons for this amendment are relevant to
RTDI's proffered rationale that vehicles operated only in warmer months
need not have a windshield defogging system. The 1985 amendment was
promulgated in response to a petition filed by an entity located in the
Virgin Islands alleging that windshields in that locale fog up very
badly in damp weather, creating a serious safety hazard in vehicles
which do not have defogging systems. The petitioner requested that
manufacturers be required to install defogging systems in passenger
cars sold in the Virgin Islands. NHTSA reviewed the climatic conditions
of the Virgin Islands as well as other non-continental areas of the
United States and determined that the petitioner's claim that climatic
conditions conducive to frequent windshield fogging were accurate. In
these climes, fogging occurs when a cool windshield contacts warm,
moist air and the water vapor in the air condenses in the form of a
liquid on the windshield. NHTSA further found these areas to be
characterized by high temperatures and high humidity and windshield
fogging would be especially likely to occur in the morning hours.
Given the operating regime of the RTDI vehicles, where high
humidity is likely to be encountered along with higher temperatures,
NHTSA is concerned, that under some combinations of interior and
exterior environmental conditions (i.e., air temperatures, humidity and
dew point) fog could begin to build on the windshield. There are many
factors, both inside and outside of the vehicle that can contribute to
temperature, humidity and dew point variations, the root cause of fog.
The human body gives off heat and is continually exhaling warm moist
air which is a key contributor to the development of fog on internal
motor vehicle windows. If an APV is fully loaded with passengers, the
heater is activated because the temperature is cool outside, and the
side windows and front windshield are closed, these conditions could be
cause for a fog build-up on a windshield. This situation could be
exasperated if a rainstorm quickly passed by the location where an APV
was operating, which dropped the ambient temperature rapidly and added
moisture to the surrounding environment.
VIII. NHTSA's Decision
In consideration of the foregoing, NHTSA finds that RTDI has not
met its burden of persuasion that the subject FMVSS No. 103
noncompliance in the subject vehicles is inconsequential to motor
vehicle safety. Accordingly, RTDI's petition is hereby denied and RTDI
is consequently obligated to provide notification of, and a free remedy
for, that noncompliance under 49 U.S.C. 30118 and 30120.
(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)
Joseph Kolly,
Acting Associate Administrator for Enforcement.
[FR Doc. 2021-22972 Filed 10-20-21; 8:45 am]
BILLING CODE 4910-59-P
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