Explorer Van Company, Grant of Application for Decision of Inconsequential Noncompliance

Explorer Van Company (Explorer), a division of the Bodor Corporation, is a corporation organized under the laws of the State of Indiana and is located in Warsaw, Indiana. Explorer has determined that it manufactured conversion vans that are in noncompliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 120, Tire selection and rims for motor vehicles other than passenger cars, and 49 CFR Part 567, Certification, and has filed a report pursuant to 49 CFR Part 573, “Defect and Noncompliance Reports.” Explorer has also applied to be exempted from the notification and remedy requirements of 49 U.S.C. Chapter 301—“Motor Vehicle Safety” on the basis that the noncompliances are inconsequential to motor vehicle safety.

Notice of receipt of the application was published, with a 30-day comment period, on September 14, 1999, in the Federal Register (64 FR 49836). NHTSA received no comments on this application during the 30-day comment period.

First, from February 1, 1998 to May 31, 1998, Explorer manufactured approximately 2,416 conversion vans that do not meet certain requirements of FMVSS No. 120. The certification label affixed to these Explorer units pursuant to Part 567 failed to comply with S5.3 of FMVSS No. 120 because of the omission of metric measurements, and the failure of Explorer to separately provide the metric measurements on another label, an alternative allowed by FMVSS No. 120.

Second, from January 1998 to August 1998, Explorer manufactured approximately 187 conversion vans whose certification labels specify that the tires on the rear axle have an inflation pressure of 41 psi, while the maximum inflation pressure indicated on the tires is 35 psi. Explorer explained that this occurred due to a programming error. The vans have P255/70R15 tires installed, but the label recommends P235/75R15XL tires. FMVSS No. 120 permits a manufacturer to install tires on a vehicle that do not match the recommended tire size listed on the certification label. NHTSA chose this approach in the mid-70's to assure the public would get information about an appropriate tire size, while accommodating the then-common practice of changing tires and rims after a new vehicle had been shipped to a dealer. However, the label on the 187 explorer vans recommends a rear axle tire inflation pressure of 41 psi, which is more than the P255/70R15 sidewall maximum inflation pressure of 35 psi.

Third, from 1997 to 1999, Explorer manufactured approximately 68 conversion vans that do not meet the requirements stated in Part 567. Section 567.4(g)(3) requires that the Gross Vehicle Weight Rating (GVWR) be not less than the sum of the unloaded vehicle weight, rated cargo load, and 150 pounds times the designated seating capacity. The GVWR on the vehicle was specified to be 7,000 pounds. NHTSA weighed one of the 68 vans with portable scales, and, using calculated full load conditions with the appropriate fuel and occupant loads, found the van's weight to be 7,214 pounds, without including rated cargo load. This weight exceeds the specified GVWR.

Explorer supported its application for inconsequential noncompliance with the following statements:

1. METRIC AND ENGLISH INFORMATION: “All certification labels now in use by Bodor Corporation's Explorer Vans correctly specify the weights and pressures in metric and English, as required. There were a small number of “old style” labels remaining in inventory which were to have been destroyed and were inadvertently used by the production staff during a short period when the error was discovered * * * the language is inconsequential to motor vehicle safety and should be exempted.”

2. TIRE PRESSURE INFORMATION: “Due to a programming error, not more than 187 vehicles may potentially have incorrect tire pressure. The tires are each individually clearly marked with the tire pressure information.”

3. GVWR LABELING: “Bodor Corporation undertook an materials weight reduction program, and, further, no longer utilizes the [Ford] E-150 chassis for high-top conversions, favoring instead the E-250 model with an initial higher weight GVWR. The E-250 was previously not made available in [a] large enough quantity by Ford Motor Company for conversion purposes.”

The agency has reviewed Explorer's petition and associated arguments. The purpose of labeling requirements in S5.3, Label information, of FMVSS No. 120 is to provide safe operation of vehicles by ensuring that those vehicles are equipped with tires of appropriate size and load rating, and rims of appropriate size and type designation. Paragraph S5.3. specifies by example the correct information labeling requirements. This information must appear either on the certification label or a tire information label, lettered in block capitals and numerals not less than 2.4 millimeters high, and in the prescribed format.

Section 5164 of the Omnibus Trade and Competitiveness Act (Pub. L. 100-418) makes it the policy of the United States that the metric system of measurement is the preferred system of weights and measures for U.S. trade and commerce. On March 14, 1995, NHTSA published in the Federal Register (60 FR 13693) the final rule that metric measurements be used in S5.3 of FMVSS No. 120. The effective date for this final rule was March 14, 1996.

The agency agrees with Explorer that the label on these vans whose only deficiency is the failure to provide metric information is likely to achieve the safety purpose of the required label. The vehicle user will have the correct safety information, but without the metric conversion, in the prescribed location. First, all the correct English unit information required by FMVSS No. 120 is provided on these certification labels. Second, the information contained on the label is of the correct size. Third, the information contained on the label is in the prescribed format, except for metric values.

In consideration of the foregoing, NHTSA has decided that the applicant has met its burden of persuasion that the metric noncompliance portion of this petition is inconsequential to motor vehicle safety. Accordingly, we grant its petition on this issue.

With respect to the second issue raised by Explorer, the certification labels on the vehicles specify an inflation pressure of 41 psi for the tires on the rear axle, while the maximum inflation pressure indicated on the tires is 35 psi. FMVSS No. 120 requires a vehicle manufacturer to specify, either on the certification label or on a separate label, the tire size designation (not necessarily for the tires on the vehicle) and the recommended cold inflation pressure for those tires (emphasis added), such that the sum of the load ratings of the tires at the specified pressure is appropriate for the GAWR. Thus, the tire size and inflation pressure operate as a pair in this requirement. The tire size and inflation pressure displayed on the certification labels of the affected vehicles are appropriate for the GAWR. Therefore, Explorer's vehicles meet this requirement. Notwithstanding there is no regulatory requirement, Explorer stated that it intended to display the tire size actually on the vehicle on its certification labels and has subsequently done so voluntarily.

We note that the inflation pressure specified for the tire size listed by Explorer (but not on the vehicles), 41 psi, is greater than the maximum inflation pressure that the tire manufacturer recommends for the tires that Explorer actually installed on the vehicles, 35 psi, which is molded into the tire sidewall. While the difference between the pressure specified on the label and the maximum pressure specified on the tire could lead to overinflation, which could have adverse safety consequences, it does not constitute a noncompliance with a Federal motor vehicle safety standard. Therefore, Explorer is not statutorily required to conduct a recall campaign, and its petition for an inconsequentiality exemption is moot.

NHTSA contacted Explorer to share our safety concerns with the manufacturer. In a June 28, 200 letter to the agency, Explorer agreed to voluntarily provide certification labels with correct tire inflation pressure for the 187 vehicles in question.

With respect to the third issue raised by Explorer, Section 567.4(g)(3), requires that the Gross Vehicle Weight Rating (GVWR) of a vehicle shall not be less that the sum of the unloaded vehicle weight, the rated cargo load, and 150 pounds times the designated seating capacity. The GVWR for the Explorer van inspected by NHTSA was 7,000 pounds. With the additional 150 pounds for each of the seven designated seating positions and 183 pounds of gasoline to fill the fuel tank, the estimated weight of the van was 7,214 pounds, which exceeds the GVWR by 214 pounds, even without any cargo. While this overweight condition violates Part 567, it does not create a noncompliance with any Federal motor vehicle safety standard. Therefore, Explorer is not required by statute to conduct a recall campaign, and its petition for an inconsequentiality exemption is moot.

However, overloading does raise safety concerns, since it can result in premature failures, many times without warning. Components that can be affected by overloading include tires, rims, frame, axle, hubs, steering linkage, brakes, and other suspension parts. Therefore, this matter will be referred to NHTSA's Office of Defects Investigation for further review and for whatever action is deemed appropriate. In addition, the matter will be referred to the Office of Chief Counsel for consideration of possible civil penalty action.

According to Explorer, the manufacturing and labeling processes have been extensively reviewed, the causes of these issues have been isolated, and changes in the processes have been instituted to prevent any future occurrences. In addition, the noncompliances are limited to the vehicles addressed in this notice, and Explorer must ensure that all of its future products comply with the requirements of FMVSS No. 120.

In summary, Explorer's petition is granted in part and dismissed in part. Explorer is exempted from the duty to conduct a notification and remedy campaign with respect to its failure to provide Metric and English information. With respect to the other two issues, the petition is dismissed on the basis that the actions of Explorer, while raising potential safety concerns, did not create noncompliances with Federal motor vehicle safety standards.

(49 U.S.C. 30118, 30120, delegations of authority at 49 CFR 1.50 and 501.8)