Products Liability Law Daily Wrap Up, NOTICES—MOTOR VEHICLE EQUIPMENT—Ricon Corp., various vehicle makers seek determination of inconsequential noncompliance relating to wheelchair lifts, (May 20, 2021)

By WK Editorial Staff

The lifts do not comply with the outer barrier interlock requirements of FMVSS 403 when tested in accordance with the standard’s test procedures.

Ricon Corporation (Ricon) is asking the National Highway Traffic Safety Administration (NHTSA) for a decision of inconsequential noncompliance relating to approximately 23,379 S-Series and K-Series wheelchair lifts, as well as 2,454 Mirage wheelchair lifts, manufactured between October 2, 2012, through May 9, 2018, that do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform Lift Systems for Motor Vehicles. Furthermore, because of Ricon’s determination that the subject wheelchair lifts do not comply with the standard, various vehicle manufacturers which installed the S-Series and K-Series Classic wheelchair lifts in their motor vehicles determined that their motor vehicles do not comply with FMVSS No. 404, Platform Lift Installation in Motor Vehicles. Thus, Ricon and the various vehicle manufacturers (collectively, the petitioners) filed the appropriate noncompliance reports and subsequently petitioned NHTSA for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. Comments are due by June 1, 2021 (NHTSA Notice, 86 FR 23038, April 30, 2021).

Noncompliance. Ricon explained that its S-Series and K-Series platform lifts and its Mirage platform lifts do not comply with the outer barrier interlock requirements of FMVSS 403, S6.10.2.6 when tested in accordance with the test procedure at S7.5.1.1 and S7.5.1.2. To that end, the subject lifts, as installed in certain commercial buses or school buses, do not comply with paragraph S4.1.1 of FMVSS No. 404.

Rule requirements. Paragraph S6.10.2.6 of FMVSS No. 403 includes vertical deployment requirements for a platform lift equipped with an outer barrier when occupied by portions of the passenger’s body or mobility aid during the operation of the lift. When the platform stops, the vertical change in distance of the horizontal plane (passing through the point of contact between the wheelchair test device wheel(s) and the upper surface of the outer barrier) must not be greater than 13 mm (0.5 in). Verification of compliance with this requirement is made using the test procedure specified in paragraph S7.5.1. In addition, paragraph S4.1.1 of FMVSS No. 404 requires lift-equipped buses, school buses, and MPVs other than motor homes with a GVWR greater than 4,536 kg (10,000 lbs.) to be equipped with a public use lift certified as meeting FMVSS No. 403.

Petitions. After determining that certain of its wheelchair lifts do not fully comply with paragraph S6.10.2.6 of FMVSS No. 403 and filing the requisite noncompliance reports, Ricon petitioned NHTSA on June 13, 2018, for an exemption from the notification and remedy requirements of 49 U.S.C. chapter 301 on the basis that the noncompliance is inconsequential as it relates to motor vehicle safety. Because of Ricon’s determination, the following vehicle manufacturers that installed the S Series and K Series wheelchair lifts in their motor vehicles determined that their motor vehicles do not fully comply with paragraph S4.1.1 of FMVSS No. 404:

• ElDorado Mobility, Inc.: Approximately 42 MY 2014–2018 Eldorado Revability Advantage Ram Promaster 1500/2500 motor vehicles, manufactured between September 1, 2014, and June 30, 2018.

• Champion Bus, Inc.: Approximately 1,500 MY 2012–2018 Champion Challenger, Defender, Crusader, American, American Coach, American Crusader, CTS–FE, CTS–RE, HC American, Platinum Shuttle, and Stacked Rail Impulse buses, manufactured between May 7, 2012, and May 9, 2018.

• Collins Bus Corporation: Approximately 1,947 MY 2012–2018 Collins multi-function school activity buses (MFSAB) and Commercial buses, manufactured between May 1, 2012, and June 1, 2018.

• ElDorado National Kansas (ENC): Approximately 1,447 MY 2012–2018 Eldorado, Aerotech, Aerolite, Aero Elite, Transtech, Advantage, World Trans, and Impulse buses, manufactured between May 1, 2012, and June 1, 2018.

• Daimler Trucks North America, LLC (DTNA): Approximately 31 MY 2013–2019 Thomas Built Buses Saf-T-Liner C2, Saf-T-Liner EFX, and Saf-T-Liner HDX commercial buses, manufactured between July 21, 2012, and April 4, 2018, and approximately 3,834 MY 2013–2019 Thomas Built Buses Saf-TLiner C2, Saf-T-Liner EFX, and Saf-TLiner HDX school buses, manufactured between May 5, 2012, and July 4, 2018.

• Navistar, Inc.: Approximately 2,892 MY 2013–2014 IC Bus AE, MY 2013–2015 IC Bus BE, MY 2013–2019 IC Bus CE, MY 2013–2014 IC Bus RE, and 2016–2017 IC Bus RE school buses, manufactured between May 10, 2012, and May 2, 2018, and approximately 29 MY 2013–2018 IC Bus CE and RE commercial buses, manufactured between May 10, 2012, and November 7, 2017.

Ricon reported that 2,454 Mirage wheelchair lifts and 23,379 S-Series and K-Series wheelchair lifts are potentially involved while the original equipment manufacturers (OEMs) reported, in total, 11,722 vehicles with the noncompliant S-Series and K-Series wheelchair lifts are potentially involved. To date, no OEMs have filed for the Mirage wheelchair lifts. On multiple occasions, NHTSA asked Ricon to reconcile the difference in the number of lifts Ricon reported as containing the noncompliance versus the number of vehicles equipped with these lifts. On June 10, 2020, Ricon provided a table that reported that 30,127 S-Series and K-Series wheelchair lifts were produced, with 7,055 going to dealers, 22,850 going to OEMs, and 222 to its parent company Wabtec Corporation. The total number of vehicles reported by the OEMs has not changed and the number S-Series and K-Series wheelchair lifts as reported by Ricon on June 10, 2020, are the most up-to-date numbers. Based on current numbers, there are still 18,405 lifts that have not been accounted for. NHTSA emphasizes that any decision on the petitions at issue does not relieve vehicle or equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant lifts and vehicles under their control after the petitioners notified them that the subject noncompliance existed.

Supporting arguments-performance of Ricon lifts. The petitioners argue that the performance of the Ricon lifts does not create an increased risk to safety. As to the S-Series and K-Series lifts, they include the following arguments in support of a grant of inconsequential noncompliance:

1. The S-Series and K-Series lifts are used as both public use and private use lifts. These lifts have a retention belt as part of the platform lift design, and the retention belt serves dual purposes and is a redundant safety feature-it is a means to physically secure an occupant within the lift and it acts as an electrical interlock that is linked to the operation of the lift. If the retention belt is buckled, the electrical circuit is closed, and the platform and outer barrier can operate when the buttons on the operator’s pendant are pressed. If the belt is not buckled, the electrical circuit is broken and there is no power sent to any part of the lift, the platform cannot move, and the outer barrier will not deploy in either direction.

2. The nonconformance to the outer barrier interlock provision arises only when the unit is tested to the directions provided in the test procedure itself, when the retention belt is buckled and the wheelchair test device attempts to access the outer barrier. However, in actual use, the retention belt would not be buckled (and the lift would not be powered at any time an occupant is attempting to traverse the outer barrier).

3. Under the test conditions in S7.5.1.1, once the platform lift is placed at the ground level loading position with the outer barrier fully deployed, and the occupant is secured by the buckled retention belt, the length of the belt prevents the occupant from physically accessing the outer barrier. If the belt is unbuckled, no power is sent to either the lift or the outer barrier and they will not be able to move. Therefore, any time an occupant is present on the platform portion of the lift, the design of the lift protects the occupant from inadvertent movement of the outer barrier.

4. The instructions in the test procedure to place the wheelchair test device on the ground facing the entrance to the lift is contrary to Ricon’s operator’s manual and contrary to industry practice, which is to load wheelchair occupants onto the lift with their back to the vehicle to prevent injury to the occupant’s lower extremities and feet.

5. Ricon places decals on the vertical arms of the lift to indicate to the lift operator the correct means to load an occupant onto the lift.

In addition, in support of a grant of inconsequential noncompliance for Mirage lifts, the petitioners include the following arguments:

1. The Mirage lifts are public use lifts and also incorporate a belt retention device into its design, but the belt interlock functions somewhat differently from the S-Series and K-Series lifts. The belt on the Mirage lifts acts as an interlock sensor that detects whether the outer barrier is in a vertical (closed) position. When the outer barrier is closed and the retention belt is buckled, the platform can operate. If the belt is unbuckled, the outer barrier can move from horizontal (open) to vertical (closed), but the platform itself cannot operate.

2. As with the S-Series and K-Series lifts, when an occupant is on the platform, he/she is to be secured by the restraint belt. To exit the lift and cross the outer barrier, the belt must be unbuckled. The unbuckling of the retention belt eliminates power sent to the platform.

3. NHTSA’s concern in adopting the outer barrier interlock in 2007 was that occupants could be pitched from the lift if the lift moved when the outer barrier was occupied. This concern does not exist in Ricon’s design-when the belt is unbuckled, as it would be anytime a person is entering or exiting the lift, the platform is not powered and cannot move. Therefore, if the belt is buckled and the lift is powered, the retention belt blocks access to the outer barrier if the occupant is present on the platform.

Precedent. The petitioners maintain that NHTSA has previously granted petitions when wheelchair lifts did not meet the performance requirements of FMVSS No. 403. They assert that the agency has found that the noncompliance did not pose an increased risk to safety as the lift is used in the real world. The petitioners contend that performance of Ricon’s platform lifts are consistent with this precedent.

Companies: Ricon Corp.; Navistar, Inc.; ElDorado Mobility, Inc.; Champion Bus, Inc.; Collins Bus Corp.; ElDorado National Kansas; Daimler Trucks North America, LLC

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