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. 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. 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).

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. Morgan states in its petition that the subject vehicles do not include this marking.

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 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.

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. 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.

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. The agency is not aware of any prior inconsequentiality petitions concerning either of the two requirements that are the subject of Morgan's petition.

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. Morgan acknowledges in its Part 573 defect notification report that the headlamps on the subject vehicles do not comply with this requirement.

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.” 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. Even if the Morgan vehicle's 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. 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. 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.

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.” This definition, which is in effect today, 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.

Morgan also cites, in support of its petition, a prior agency decision granting a General Motors inconsequentiality petition. 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.

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. 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.” 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.

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.

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. 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 “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.

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. 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.

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.