Notice2021-22003
Forest River, Inc., Denial of Petition for Decision of Inconsequential Noncompliance
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 8, 2021
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 86 Issue 193 (Friday, October 8, 2021)</title>
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[Federal Register Volume 86, Number 193 (Friday, October 8, 2021)]
[Notices]
[Pages 56351-56353]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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: <a href="http://www.regulations.gov/">http://www.regulations.gov/</a>. 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:
<bullet> 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: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> 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]
BILLING CODE 4910-59-P
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