Forest River, Inc., Denial of Petition for Decision of Inconsequential Noncompliance, 56351-56353 [2021-22003]

Agencies

• National Highway Traffic Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 86, Number 193 (Friday, October 8, 2021)]
[Notices]
[Pages 56351-56353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-22003]



[[Page 56351]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0096; Notice 2]


Forest River, Inc., 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: Forest River, Inc. (Forest River), has determined that certain 
model year (MY) 2012-2016 Starcraft and 2014-2016 StarTrans buses do 
not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 
217, Bus Emergency Exits and Window Retention and Release. Forest River 
filed two separate noncompliance reports on April 14, 2016, and revised 
them both on June 7, 2016. Forest River also petitioned NHTSA on May 
31, 2016, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety.

FOR FURTHER INFORMATION CONTACT: Daniel Lind, Office of Vehicle Safety 
Compliance, NHTSA, telephone (202) 366-7235, facsimile (202) 366-5930.

SUPPLEMENTARY INFORMATION:

I. Overview

    Forest River has determined that certain MY 2012-2016 Starcraft and 
2014-2016 StarTrans buses do not fully comply with paragraph S5.5.1 of 
FMVSS No. 217, Bus Emergency Exits and Window Retention and Release (49 
CFR 571.217). Forest River filed two separate noncompliance reports on 
April 14, 2016, and revised them both on June 7, 2016, pursuant to 49 
CFR part 573, Defect and Noncompliance Responsibility and Reports. 
Forest River also petitioned NHTSA on May 31, 2016, 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 the petition was published in the Federal 
Register (82 FR 47076), with a 30-day public comment period, on October 
10, 2017. No comments were received. To view the petition and all 
supporting documents, log onto the Federal Docket Management System 
(FDMS) website at: https://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2016-0096.''

II. Buses Involved

    Affected are approximately 476 MY 2014-2016 StarTrans Bus Senator 
2, Senator HD, Candidate 2, President, and PS 2 model buses 
manufactured between May 16, 2014 and April 6, 2016; and approximately 
7,716 MY 2012-2016 Starcraft Bus Xpress, Starquest, Starlite, Allstar, 
Allstar XL, MVP, Ultrastar, and XLT model buses manufactured between 
January 1, 2012 and April 6, 2016.

III. Noncompliance

    Forest River explains that the noncompliance results from the 
misplacement of the emergency egress labels on the rear emergency exit 
window of the subject buses. Specifically, the emergency egress labels 
on the affected buses were centered on the window and are located 
within 25 centimeters of each of the release mechanisms, and not within 
16 centimeters, as required by paragraph S5.5.1 of FMVSS No. 217. The 
labels are approximately 9 centimeters (incorrectly specified as 11 
centimeters in the petition) from where they are required to be on the 
rear emergency exit window.

IV. Rule Requirements

    Paragraph S5.5.1 of FMVSS No. 217 includes the requirements 
relevant to this petition:

     In buses other than school buses, and except for 
windows serving as emergency exits in accordance with paragraph 
S5.2.2.3(b) and doors in buses with a GVWR of 10,000 pounds or less, 
each emergency exit door shall have the designation ``Emergency 
Door'' or ``Emergency Exit,'' and every other emergency exit shall 
have the designation ``Emergency Exit'' followed by concise 
operating instructions describing each motion necessary to unlatch 
and open the exit, located within 16 centimeters of the release 
mechanism.

V. Summary of Forest River's Arguments

    Forest River 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, Forest River submitted the following 
reasoning:
    (a) Since the promulgation of the FMVSS No. 217 original final 
rule, the primary purpose in requiring the emergency exit markings to 
be located within a set distance from the release mechanism has been to 
ensure that they are: (1) Located near the point of release and (2) are 
visible to passengers. See 37 FR 9394, 9395 (May 10, 1972, final rule). 
Both of these safety objectives are still met in the affected Forest 
River vehicles.
    (b) All of the emergency egress windows are located on the rear 
wall of the affected buses. The markings are readable and the 
instructions on how to operate the release mechanism are concise and 
understandable as currently installed. The release mechanism is painted 
red, and contrasts with the black window frame and hardware. The 
emergency exit marking, centered in the window, is unobstructed by any 
other part of the window or the vehicle and should be readily apparent 
to passengers. Consequently, the location of the emergency egress 
designation labels in relation to the release mechanism do not 
compromise safety with regard to a passenger's ability to identify an 
emergency egress location or easily operate the release mechanism.
    (c) The affected vehicles are transit buses, generally operated by 
private companies and would typically have trained drivers operating 
the vehicles and present to assist passengers exiting the vehicle in 
the event of an emergency. With a trained professional driver present, 
an emergency exit marking that is located approximately 9 centimeters 
(stated as ``4 inches'' in the petition) further than allowed from the 
release mechanism is unlikely to have any tangible impact on passenger 
safety.
    (d) The agency has previously granted petitions for inconsequential 
noncompliance under FMVSS No. 217 for conditions with the potential for 
a more direct and serious impact on safety. See 63 FR 32694, New Flyer 
of America, Inc. (granting petition for inconsequential noncompliance 
where buses were manufactured with only one emergency exit instead of 
two); and 70 FR 14748, IC Corporation (granting petition for 
inconsequential noncompliance where school buses were manufactured with 
two emergency doors under the same post and roof bow panel space).
    (e) Forest River is not aware of any complaints, warranty claims, 
accidents, injuries, or other field incidents related to the emergency 
egress markings not meeting the requirements of the standard. Forest 
River has corrected the noncompliance on all the remaining windows in 
its possession. Forest River has also advised that Lippert Components, 
Inc. (LCI), the manufacturer of the windows and emergency exit marking 
labels, has corrected the noncompliance in its own production beginning 
on April 7, 2016.
    Forest River's complete petition and all supporting documents are 
available by logging onto the Federal Docket Management System (FDMS) 
website at: https://www.regulations.gov/ and following the online 
search instructions

[[Page 56352]]

to locate the docket number listed in the title of this notice.
    In summation, Forest River believes that the described 
noncompliance in the subject buses is inconsequential as it relates to 
motor vehicle safety, and that its petition to exempt Forest River from 
providing notification of the noncompliance, as required by 49 U.S.C. 
30118, and remedying the noncompliance, as required by 49 U.S.C. 30120, 
should be granted.
    Prior to making a decision, NHTSA contacted Forest River for 
clarification on three aspects of its petition. First, NHTSA sought 
confirmation that Forest River's petition sought an exemption from the 
notification and remedy requirements for both StarTrans and Starcraft 
buses. Second, NHTSA sought clarification regarding the measured 
distance between the actual label location and the required location of 
the label. Third, NHTSA sought clarification regarding whether the rear 
emergency exit window can be opened by operating a single release 
mechanism. In response, Forest River verified that it sought an 
exemption for both Starcraft and StarTrans buses. Forest River also 
confirmed that the measured distance between the actual label location 
and the requirement should have read ``. . . a difference of 
approximately 9 centimeters. . . .'' Lastly, Forest River confirmed 
that both release mechanisms must be operated in order to open the rear 
emergency exit window.

VI. NHTSA's Analysis

A. General Principles

    Congress passed the National Traffic and Motor Vehicle Safety Act 
of 1966 (the ``Safety Act'') with the express purpose of reducing motor 
vehicle accidents, deaths, injuries, and property damage. See 49 U.S.C. 
30101. To this end, the Safety Act empowers the Secretary of 
Transportation to establish and enforce mandatory Federal Motor Vehicle 
Safety Standards (FMVSS). See 49 U.S.C. 30111. The Secretary has 
delegated this authority to NHTSA. See 49 CFR 1.95.
    NHTSA adopts a FMVSS only after the agency has determined that the 
performance requirements are objective and practicable and meet the 
need for motor vehicle safety. See 49 U.S.C. 30111(a). Thus, there is a 
general presumption that the failure of a motor vehicle or an item of 
motor vehicle equipment to comply with a FMVSS increases the risk to 
motor vehicle safety beyond the level deemed appropriate by NHTSA 
through the rulemaking process. To protect the public from such risks, 
manufacturers whose products fail to comply with a FMVSS are normally 
required to conduct a safety recall under which they must notify 
owners, purchasers, and dealers of the noncompliance and provide a free 
remedy. See 49 U.S.C. 30118-30120. However, Congress has recognized 
that, under some limited circumstances, a noncompliance could be 
``inconsequential'' to motor vehicle safety. It therefore established a 
procedure under which NHTSA may consider whether it is appropriate to 
exempt a manufacturer from its notification and remedy (i.e., recall) 
obligations. See 49 U.S.C. 30118(d), 30120(h). The agency's regulations 
governing the filing and consideration of petitions for 
inconsequentiality exemptions are set out at 49 CFR part 556.
    Under the Safety Act and Part 556, inconsequentiality exemptions 
may be granted only in response to a petition from a manufacturer, and 
then only after notice in the Federal Register and an opportunity for 
interested members of the public to present information, views, and 
arguments on the petition. In addition to considering public comments, 
the agency will draw upon its own understanding of safety-related 
systems and its experience in deciding the merits of a petition. An 
absence of opposing argument and data from the public does not require 
NHTSA to grant a manufacturer's petition. Neither the Safety Act nor 
Part 556 define the term ``inconsequential.'' Rather, the agency 
determines whether a particular noncompliance is inconsequential to 
motor vehicle safety based upon the specific facts before it in a 
particular petition. In some instances, NHTSA has determined that a 
manufacturer met its burden of demonstrating that a noncompliance is 
inconsequential to safety. For example, a label intended to provide 
safety advice to an owner or occupant may have a misspelled word, or it 
may be printed in the wrong format or the wrong type size. Where a 
manufacturer has shown that the discrepancy with the safety requirement 
is unlikely to lead to any misunderstanding, NHTSA has granted an 
inconsequentiality exemption, especially where other sources of correct 
information are available. See, e.g., General Motors, LLC, Grant of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 92963 
(Dec. 20, 2016).
    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.\1\ 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.'' \2\ 
``[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.'' \3\
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    \1\ 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).
    \2\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \3\ 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.\4\ 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.\5\
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    \4\ 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).
    \5\ 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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[[Page 56353]]

B. Response to Forest River's Arguments

    NHTSA reviewed Forest River's arguments that the subject 
noncompliance is inconsequential to motor vehicle safety. Forest River 
contends that the emergency egress label for the rear window exit being 
located 25 centimeters distant from the two red dual release 
mechanisms, rather than within the 16 centimeters required by FMVSS No. 
217, poses little, if any, risk to motor vehicle safety. NHTSA does not 
agree, as described below:
    The purpose of FMVSS No. 217 is to minimize the likelihood of 
occupants being thrown from the bus and to provide a means of readily 
accessible emergency egress (emphasis added) (See 49 CFR 571.217 S2). 
The requirements at S5.5.1, Emergency Exit Identification, of FMVSS No. 
217, at issue here, are specific to identifying emergency exits, 
identifying the release mechanism(s) for emergency exits, and the 
associated operating instructions for the release mechanism(s). These 
requirements are threefold: (1) An exit must be identified as an 
``Emergency Exit,'' (2) the identification as an ``Emergency Exit'' 
must be followed by ``concise operating instructions,'' and (3) both 
the ``Emergency Exit'' identification and ``concise operating 
instructions'' must be located ``within 16 centimeters'' of the release 
mechanism(s) for the associated emergency exit. In the present case, 
the rear emergency window is identified as an ``Emergency Exit'' via a 
sole label centered along the rear emergency window. However, this sole 
label fails to meet the other two requirements of S5.5.1--the label 
does not contain ``concise operating instructions describing each 
motion necessary to unlatch and open the exit,'' and the label is not 
``within 16 centimeters of the release mechanism.'' These two points 
are further discussed below.
    Regarding the instructions, the rear emergency exit window has two 
release mechanisms which operate independently of each other. As such, 
both mechanisms need to be operated to open the emergency exit window. 
The petitioner installed one label centered along the window that, in 
part, reads: ``Pull red handle up. Push window out.'' These 
instructions are incomplete, as they only reference a single red 
handle. Following the instructions on the label, a passenger would 
operate one release mechanism and attempt to push the window out. 
However, the emergency exit window would not open, as the second 
release mechanism would remain latched. As such, we are not persuaded 
by Forest River's statement that the instructions on how to operate the 
release mechanism are concise and understandable as currently 
installed, because there are indeed two such mechanisms that must be 
used for the emergency exit to open.
    Regarding the location, the sole label is centered along the rear 
emergency exit window, with its outermost edge located at a distance of 
25 cm from the nearest edge of the release mechanism. In its petition, 
Forest River argues that because the color of the release mechanism 
contrasts with the window frame and hardware, and the label is centered 
in the window and unobstructed, the label ``should be readily apparent 
to passengers.'' As a result of this presumption by Forest River, it 
concludes that the location of the label does not compromise safety 
with regard to a passenger's ability to identify an emergency egress 
location. However, the fundamental issue in this instance is not the 
identification of the emergency egress location, rather it is the 
identification of the two release mechanism locations. As such, NHTSA 
is not persuaded by Forest River's presumptive argument that the 
location of this label does not compromise safety, because it does not 
address the identification of the two release mechanism locations or 
state that both handles must be pulled.
    Regarding the bus driver, NHTSA does not accept Forest River's 
argument that transit bus drivers can always be counted on to assist 
passenger emergency egress. The condition or availability of the bus 
driver is highly dependent on the severity of the event.

C. Remaining Arguments

    Forest River referenced two inconsequential noncompliance petitions 
NHTSA had previously granted to support its petition. According to 
Forest River, these petitions had a direct and serious impact on 
safety. The first petition, from New Flyer of America, Inc. (see 63 FR 
32694), involved transit buses that had only one emergency exit on the 
right side of the bus instead of two, as required. These buses had 3.28 
times the required exit area, with two emergency exit windows on the 
left side, one emergency exit window on the right side and two roof 
exits. Thus, the buses had the minimum number of emergency exits 
required by FMVSS No. 217. However, these exits were not distributed 
properly. Instead of a second emergency exit on the right side, these 
buses had an additional roof exit. The agency decided that the 
additional roof exit provided for an additional level of safety during 
a rollover event, and granted the petition. NHTSA does not agree that 
granting this prior petition supports Forest River's arguments in this 
case. Here, the issue is identifying the emergency exit release 
mechanisms and their operation.
    The second petition cited by Forest River involved two side 
emergency exit doors located opposite each other and within the same 
post and roof bow panel space. That petition argued that the 
requirement prohibiting two exit doors from being located opposite each 
other appeared to be related to the structural integrity of a bus body 
with this configuration. The petitioner indicated that it had no 
reports of any structural failures in the area around the emergency 
doors, but stated that it would extend to owners of the noncompliant 
vehicles a 15-year warranty for any structural or panel failures 
related to the location of the doors. NHTSA agreed with the petitioner 
that in that case, the noncompliance did not compromise safety in terms 
of emergency exit capability in proportion to maximum occupant 
capacity, access to side emergency doors, visibility of the exits, or 
the ability of bus occupants to exit after an accident. Again, NHTSA 
does not agree that granting this prior petition supports granting 
Forest River's petition here, because the identification of the 
emergency exits in that case was not at issue.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Forest River 
has not met its burden of persuasion that the subject FMVSS No. 217 
noncompliance in the affected vehicles is inconsequential to motor 
vehicle safety. Accordingly, Forest River's petition is hereby denied 
and Forest River is 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. 2021-22003 Filed 10-7-21; 8:45 am]
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