02-10182. General Motors North America, Inc., Grant of Application for Inconsequential Noncompliance

In response to an appeal from General Motors North America, Inc. (GM), the National Highway Traffic Safety Administration (NHTSA) is granting a GM petition for a determination that a noncompliance with Federal Motor Vehicle Safety Standard (FMVSS) No. 118, “Power Operated Windows, Partitions, and Roof Panel Systems” is inconsequential to motor vehicle safety. This notice reconsiders NHTSA's previous denial of the GM petition.

GM originally petitioned the agency on March 10, 2000. A notice requesting comment on the GM petition was published on August 7, 2000 (65 FR 48280). The agency initially denied the petition (66 FR 50496), and GM submitted an appeal to the agency on December 21, 2001. All documents relating to the GM application and appeal are contained in the associated docket, NHTSA-2000-7657.

GM determined that the noncompliance existed in some 1998-1999 model year GM and Isuzu light trucks equipped with Retained Accessory Power (RAP), a convenience feature designed to allow operation of electrical accessories such as the radio and power windows during a timed interval immediately following ignition key removal and that is turned off by the opening of one of the front doors. In those vehicles, manipulation of the hazard flasher switch had the potential to inadvertently activate the RAP of a parked car without the key. This condition failed to meet the requirements of paragraph S4 of FMVSS No. 118 because it was possible for the power windows and sunroofs of the affected vehicles to be enabled without any use of the ignition key.

FMVSS No. 118 sets limits on how and when power windows and sunroofs can be enabled, mainly by requiring the ignition key for their operation. The requirements in the standard are intended to ensure that a person in possession of the ignition key (presumably an adult) is present to supervise occupants, especially children, who might be injured if they were free to operate power windows and sunroofs without supervision.

In its original application for inconsequential noncompliance, GM reasoned that a series of specific, unlikely events all would have to occur before an opportunity for injury from a power window or sunroof could exist in the affected vehicles. To wit, a child or children would have to be left unattended and unrestrained within the vehicle; the child or children would have to manipulate the hazard flasher switch on the top of the steering column in the requisite manner (which in some switches would require considerable bottoming force on the switch and/or considerable side force, in order for RAP activation to occur), or the service brake pedal would have to be pressed in conjunction with pressing on the hazard flasher switch (although in some vehicles, no amount of force on the switch would activate RAP); and the child or children would then have to operate a power window or sunroof in such a way as to be injured by it prior to opening a door (which deactivates the RAP), or before twenty minutes had elapsed from the time of initial RAP activation (the maximum time that RAP remains active), and also before a parent or other adult returned. GM presented data and arguments to support the unlikely nature of these events, and concluded that the overall likelihood of an injury occurring as a result of the noncompliance was exceedingly small.

NHTSA initially denied the GM application as discussed in the preceding Federal Register notice in this docket. On December 21, 2001, GM appealed NHTSA's denial. In its appeal, GM requested that NHTSA reconsider for a number of reasons. One reason GM stated was that the denial was inconsistent with the agency's prior decisions. Another reason used by GM was that, by the time it filed the appeal, an additional 19 months had elapsed, representing 1.5 million vehicle years, since it had first discovered the noncompliance, and no related incidents had been reported. The additional elapsed time brought the total vehicle-years that the noncomplying vehicles had been in the field without incident to 2.8 million.

A subsequent comment filed in the docket by Delphi Corporation, which manufactured the hazard flasher switches in the affected GM vehicles, cited a NHTSA final rule from May 5, 1983, in which the agency amended FMVSS No. 118 to permit the use of the RAP feature in motor vehicles. In that notice, the agency acknowledged the possibility that under rare circumstances power windows might be operational as a result of the RAP feature without the driver being present in the vehicle. At the same time, the agency also recognized that similar possibilities existed whether RAP was permitted or not. The agency stated the following:

While there is a possibility under the new option for power windows to be operational without the driver being present in the vehicle, that possibility could arise only in rare circumstances. Further, similar possibilities exist under one of the existing options [in section S4 of FMVSS No. 118.] For example, under the new [RAP] option, a driver could get out of a vehicle, leaving the engine running, and close the door. The windows would still be operational. Then, if the driver's window were open so that he or she could reach through the open window instead of opening the door to shut the engine off, the windows would continue to be operational. Similarly, under one of the current options, power windows would be operable in the same circumstances, at least until the driver reached into the vehicle and shut off the engine.

In other words, the agency recognized that the safety measures in the standard could not prevent power windows from being enabled in all instances in which a driver or adult passenger might not be present.

After further consideration, we believe that the conditions under which RAP may be activated in the subject noncomplying GM vehicles are highly unlikely to occur and are similar to the unlikely circumstances contemplated in the final rule permitting the use of the RAP feature. We believe that it is, in fact, at least as unlikely for inadvertent RAP activation to occur in the subject noncomplying GM vehicles as it would be for RAP to be activated in a fully complying vehicle without a driver present in circumstances such as those discussed in the 1983 final rule. Furthermore, the fact the agency knowingly permitted those slight safety issues in the 1983 final rule establishes that the agency believed such issues are inconsequential. The safety issue in the noncomplying GM vehicles, being similar to the ones acknowledged in 1983, is therefore also inconsequential.

In granting this GM petition, the agency is in no way de-emphasizing the importance of the safety provisions in FMVSS No. 118. On the contrary, the agency maintains active involvement in issues relating to power window safety and has recently undertaken a study to determine the extent of non-crash motor vehicle events, especially those involving children, which result in injuries and fatalities due to motor vehicle power windows.

For the reasons expressed above, the agency has reconsidered its previous decision to deny the GM petition, published in the Federal Register on October 3, 2001 (66 FR 50496). Accordingly, GM's application is granted and the applicant is exempted from providing the notification of the noncompliance as required by 49 U.S.C. 30118, and from remedying the noncompliance as required by 49 U.S.C. 30120.

(49 U.S.C. 301118, 301120; delegations of authority at 49 CFR 1.50 and 501.8)

Issued on: April 19, 2002.

Stephen R. Kratzke,

Associate Administrator for Safety Performance Standards.