[Federal Register Volume 77, Number 99 (Tuesday, May 22, 2012)]
[Notices]
[Pages 30352-30354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12374]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2011-0040; Notice 2]


Forest River, Inc., Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

[[Page 30353]]


ACTION: Notice of petition denial.

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SUMMARY: Forest River, Inc. (Forest River), has determined that 
approximately 2,741 model year 2009-2011 R-Pod travel trailers that it 
manufactured from October 27, 2008 through November 30, 2010, fail to 
meet the requirements of paragraph S5.1.1 of Federal Motor Vehicle 
Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and 
Associated Equipment. Forest River has filed an appropriate report, 
dated December 14, 2010 pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports.
    Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule 
at 49 CFR part 556), Forest River has petitioned for an exemption from 
the notification and remedy requirements of 49 U.S.C. chapter 301 on 
the basis that this noncompliance is inconsequential to motor vehicle 
safety.
    Notice of receipt of Forest River's petition was published, with a 
30-day public comment period, on August 29, 2011, in the Federal 
Register (76 FR 53715). Thirty-four \1\ comments were received. To view 
the petition, comments, and all supporting documents log onto the 
Federal Docket Management System Web site at: http://www.regulations.gov/. Then follow the online search instructions to 
locate docket number ``NHTSA-2011-0040.''
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    \1\ A 35th comment was received but appeared to be a duplicate 
entry.

FOR FURTHER INFORMATION CONTACT: For further information on this 
decision, contact Mr. Michael Cole, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
telephone (202) 366-2334, facsimile (202) 366-7002.

Relevant Requirements of FMVSS No. 108

    Among other things, FMVSS No. 108 requires trailers that are 80 or 
more inches in overall width to be equipped with three red rear 
identification lamps, two red rear clearance lamps, and two amber front 
clearance lamps.

Summary of Forest Rivers's Petition

    Vehicles involved: Forest River estimates that a total of 
approximately 2,741 model year 2009-2011 R-Pod model travel trailers 
were not manufactured with rear red identification lamps, rear red 
clearance lamps, and front amber clearance lamps. Of these, 2,697 were 
manufactured in Forest River's Surveyor Division plant in Goshen, 
Indiana and 44 were manufactured in its Surveyor Division plant in 
Dallas, Oregon.
    Noncompliance: Forest River described the noncompliance as the 
absence of the clearance lamps and marker lamps required by paragraph 
S5.1.1 of FMVSS No. 108.
    Forest River stated that its original interpretation of the 
requirements of FMVSS No. 108 caused it to believe that because the 
bodies of the subject trailers, not including the fenders, are less 
than 80 inches in width, clearance lamps and marker lamps were not 
required.
    Forest River further explained that based on a consumer complaint 
NHTSA's Office of Vehicle Safety Compliance (OVSC) inspected a number 
of the subject trailers and found that, based on the width of the 
trailers, including the fenders, that clearance lamps and marker lamps 
were required on the trailers due to the requirements of paragraph 
S5.1.1, Table 1 of FMVSS No. 108.
    In its petition Forest River argues that the noncompliance is 
inconsequential to motor vehicle safety for the following reasons:
    (1) The cost of correcting the noncompliance is substantial.
    (2) Installation of clearance lamps and marker lamps on a fully 
assembled trailer has the potential of causing deterioration of the 
trailer if the remedy is not completed correctly.
    (3) ``The box of the unit [subject trailer] is under the 80 inch 
width and is properly marked according to Table IV of [49 CFR] 571.108. 
The fenders are low on each side of the unit.''
    Forest River additionally states that it has corrected the 
noncompliance so that future production of its R-Pod travel trailer 
will conform to all applicable requirements of FMVSS No. 108.
    Forest River believes that the noncompliance is inconsequential to 
motor vehicle safety, and that its petition, to exempt it from 
providing recall notification of noncompliance as required by 49 U.S.C. 
30118 and remedying the recall noncompliance as required by 49 U.S.C. 
30120, should be granted.

Comments

    The agency received 34 comments from, primarily, owners of Forest 
River trailers. 33 of those commenters supported denial of this 
petition, (one commenter did not offer an opinion) and 29 commenters 
indicated their belief that this was a safety issue (the remaining 
commenters did not offer an opinion).
    Regarding the vehicle width, Rosemary Dingus commented that the 
fenders extend ``about a foot from the sides of the trailer,'' and 
Jeffrey Stephens commented that the overall width of his trailer is 97 
inches, fender to fender.

NHTSA's Consideration of Forest River's Inconsequentiality Petition

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 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 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 
remedy without charge. 49 U.S.C. 30118-30120.
    However, Congress has recognized that, under some limited 
circumstances, a noncompliance could be ``inconsequential'' to motor 
vehicle safety. ``Inconsequential'' is not defined either in the 
statute or in NHTSA's regulations. Rather, the agency determines 
whether a particular noncompliance is inconsequential to motor vehicle 
safety based on the specific facts before it. The key issue in 
determining inconsequentiality is whether the noncompliance in question 
is likely to increase the safety risk to individuals of accidents or to 
individual occupants who experience the type of injurious event against 
which the standard was designed to protect. See General Motors Corp.; 
Ruling on Petition for Determination of Inconsequential Noncompliance, 
69 FR 19897 (Apr. 14, 2004).
    There have been instances in the past in which NHTSA has determined 
that a manufacturer has met its burden of demonstrating that a 
noncompliance is inconsequential to safety. For example, there have 
been instances where NHTSA granted inconsequentiality petitions 
regarding noncompliance with labeling requirements. See, e.g., General 
Motors Corp., Grant of Application for Decision of Inconsequential 
Noncompliance, 61 FR 60746 (Nov. 29, 1996) (noncompliance with FMVSS 
No. 115). More rarely, NHTSA has granted inconsequentiality petitions 
in cases of

[[Page 30354]]

noncompliance with performance requirements where the noncompliance was 
determined to be so minor as to be inconsequential--for example, where 
the noncompliance is expected to be imperceptible, or nearly so, to 
vehicle occupants or approaching drivers. See, e.g., General Motors 
Corp., Grant of Application for Decision of Inconsequential 
Noncompliance, 63 FR 70179 (Dec. 18, 1998) (noncompliance with FMVSS 
No. 108); Subaru of America, Inc., Grant of Application for Decision of 
Inconsequential Noncompliance, 66 FR 18354 (Apr. 6, 2001) 
(noncompliance with FMVSS No. 108).
    On the other hand, NHTSA has denied petitions for inconsequential 
noncompliance where required equipment is completely missing from the 
vehicle. For example, NHTSA denied a petition for travel trailers not 
equipped with rear identification lamps. Weekend Warrior Trailers, 
Inc., Denial of Petition for Decision of Inconsequential Noncompliance, 
71 FR 5409 (Feb. 1, 2006). In addition, NHTSA has denied 
inconsequentiality petitions for trailers that were equipped with 
clearance and identification lamps that did not meet the minimum 
photometry requirements. Utilimaster Corporation; Denial of Application 
for Decision of Inconsequential Noncompliance, 66 FR 33603 (June 22, 
2001).

NHTSA's Analysis of Forest River's Arguments in Support of Its Petition

    NHTSA has reviewed the petition and has determined that the 
noncompliance is not inconsequential to motor vehicle safety.
    First, Forest River asserts that the box of the subject vehicles is 
under the 80 inch width and is properly marked according to Table IV of 
49 CFR 571.108, and that the fenders are low on each side of the unit. 
The agency finds this assertion unavailing. Forest River did not equip 
the subject trailers with identification or clearance lamps, all of 
which have been required on wide trailers since January 1, 1969. The 
ability of motorists to distinguish wide trailers from passenger 
vehicles is an essential component of crash avoidance because of size, 
maneuvering, and speed differences between the two types of vehicles. 
High mounted identification lamps uniquely identify wide trailers and 
do so with the longest possible sight preview of the lamps. Clearance 
lamps show the overall width of the vehicle. Therefore, the absence of 
identification and clearance lamps on the subject trailers increases 
the risk of a crash involving these trailers.
    In order to discern the requirements with which it must comply, a 
manufacturer must first determine the overall width of its vehicle. The 
term ``overall width'' of a vehicle was first published in the Federal 
Register on March 1, 1967, (see 32 FR 3390) and is described in Note 1 
of Tables I and II as ``the nominal design dimension of the widest part 
of the vehicle, exclusive of * * * flexible fender extensions * * *.'' 
Thus, an overall width determination does not have to include flexible 
fender extensions. Forest River claims that ``the body'' of the subject 
trailers, exclusive of fender extensions, is less than 80 inches in 
overall width. However, contrary to Forest River's view, the steel 
panels that cover the wheel/tire assemblies of the subject trailers are 
clearly the fender itself, and not a flexible extension of a fender. 
Further, the wheel/tire assemblies themselves are located entirely 
outside the ``the body'' of the trailer.
    Second, Forest River argues that the cost of correcting the 
noncompliance is substantial. The statute does not include cost as a 
factor in determining whether a noncompliance is inconsequential. With 
respect to at least some noncompliances, such as for example those 
involving a seat belt or air bag that was missing or did not work, cost 
would not be a factor. Moreover, the manufacturer of the noncomplying 
vehicle that is missing a required item of equipment, such as the lamps 
here, has saved money by not including the item on the vehicles as 
manufactured and sold. In any event, Forest River has not demonstrated 
that the costs should justify an exemption. Forest River hypothesizes 
that the costs could be slightly over a million dollars by multiplying 
the number of trailers by a unit cost for each of the recalled 
trailers. In its calculation, Forest River estimates the labor cost at 
$100/hour. However, according to the U.S. Department of Labor, 
automotive mechanics earn, on average, only $17.21 per hour.\2\ In 
addition, the million dollar figure represents an upper bound that 
assumes that all trailers will be remedied. The completion rate for 
recent noncompliance recalls of recreational trailers has been 
approximately 50 percent. Therefore, the cost to Forest River of 
correcting the noncompliant trailers will likely be substantially less 
than the million-dollar cost Forest River estimates based on the remedy 
being performed on all 2,741 subject trailers.
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    \2\ Bureau of Labor Statistics, Occupational Outlook Handbook, 
2012-13 Edition, available at http://www.bls.gov/ooh/Installation-Maintenance-and-Repair/Automotive-service-technicians-and-mechanics.htm (last visited April 25, 2012).
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    Third, Forest River argues that remedying the subject trailers has 
the potential of causing deterioration of the vehicles if the remedy is 
not completed correctly. Unfortunately, it is not uncommon for 
manufacturers to present ways that a recall could be implemented 
improperly in order to avoid implementing recalls. However, problems 
with developing or implementing a remedy are not grounds for granting 
an inconsequentiality petition. See Blue Bird Body Company; Denial of 
Application for Decision of Inconsequential Noncompliance, 65 FR 48822 
at 48823 (Aug. 9, 2000)).

Decision

    In consideration of the foregoing, NHTSA has decided that the 
petitioner has not met its burden of persuasion that the noncompliance 
described is inconsequential to motor vehicle safety. Accordingly, 
Forest River's petition is hereby denied, and the petitioner must 
notify owners, purchasers and dealers pursuant to 49 U.S.C. 30118 and 
provide a remedy in accordance with 49 U.S.C. 30120.

    Authority:  49 U.S.C. 30118, 30120: Delegations of authority at 
CFR 1.50 and 501.8.

    Issued on: May 16, 2012.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2012-12374 Filed 5-21-12; 8:45 am]
BILLING CODE 4910-59-P