[Federal Register Volume 89, Number 111 (Friday, June 7, 2024)]
[Notices]
[Pages 48704-48707]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12515]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2023-0005; Notice 2]


Forest River Bus, LLC, 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 Bus, LLC (Forest River) has determined that 
certain model year (MY) 2009-2022 Starcraft school buses do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 222, 
School Bus Passenger Seating And Crash Protection. Forest River filed a 
noncompliance report dated December 21, 2022, and subsequently 
petitioned NHTSA (the ``Agency'') on January 17, 2023, for a decision 
that the subject noncompliance is inconsequential as it relates to 
motor vehicle safety. This document announces the denial of Forest 
River's petition.

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

SUPPLEMENTARY INFORMATION: 

I. Overview

    Forest River determined that certain MY 2009-2022 Starcraft school 
buses do not fully comply with paragraph S5.2.3 of FMVSS No. 222, 
School Bus Passenger Seating And Crash Protection (49 CFR 571.222).
    Forest River filed a noncompliance report dated December 21, 2022, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. Forest River petitioned NHTSA on January 17, 2023, 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, pursuant to 49 U.S.C. 30118(d) and 
30120(h) and 49 CFR part 556, Exemption for Inconsequential Defect or 
Noncompliance.
    Notice of receipt of Forest River's petition was published with a 
30-day public comment period, on July 12, 2023, in the Federal Register 
(88 FR 44459). 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-2023-0005.''

II. Vehicles Involved

    Approximately 3,192 of the following Starcraft school buses 
manufactured between April 3, 2009, and May 20, 2020, are potentially 
involved:

1. MY 2013-2016 Starcraft Allstar MVP
2. MY 2016 Starcraft Allstar XL
3. MY 2019 Starcraft Allstar XL
4. MY 2016-2018 Starcraft Allstar XL MVP
5. MY 2009-2010 Starcraft MFSAB/Prodigy
6. MY 2012-2018 Starcraft MFSAB/Prodigy
7. MY 2013 Starcraft MPV/Prodigy
8. MY 2015-2018 Starcraft MPV/Prodigy

[[Page 48705]]

9. MY 2009-2010 Starcraft Prodigy
10. MY 2009-2022 Starcraft Quest
11. MY 2011 Starcraft Quest XL
12. MY 2014-2016 Starcraft Quest XL

III. Noncompliance

    Forest River explains that the noncompliance is that the subject 
school buses are equipped with a restraining barrier that does not meet 
the barrier forward performance requirements in paragraph S5.2.3 of 
FMVSS No. 222.

IV. Rule Requirements

    Paragraph S5.2.3 of FMVSS No. 222 includes the requirements 
relevant to this petition. When force is applied to the restraining 
barrier as specified in S5.1.3.1 through S5.1.3.4 for seating 
performance tests, the barrier must meet the following criteria:
    (a) The force/deflection curve of the restraining barrier must 
align with the specified zone in Figure 1;
    (b) Deflection of the restraining barrier shall not exceed 356 mm. 
This measurement considers only the force applied through the upper 
loading bar, and the forward travel of the pivot attachment point of 
the loading bar, starting from the point where the initial application 
of 44 N of force is attained;
    (c) Deflection of the restraining barrier deflection shall not 
hinder normal door operation;
    (d) The restraining barrier must not separate from the vehicle at 
any attachment point; and
    (e) Components of the restraining barrier must not separate at any 
attachment point.

V. Summary of Forest River's Petition

    The following views and arguments presented in this section are the 
views and arguments provided by Forest River and do not reflect the 
views of the Agency. Forest River describes the subject noncompliance 
and contends that the noncompliance is inconsequential as it relates to 
motor vehicle safety.
    Forest River begins by stating that since the subject frontal 
barrier was first certified in 2008, Forest River (and predecessor 
Starcraft Bus) has used the same school bus frontal barrier design and 
supplier. Forest River states since the frontal barrier was certified 
to comply with the FMVSS No. 222 performance requirements, it ``has not 
changed in any material respect.'' Furthermore, Forest River contends 
that NHTSA has previously conducted confirmatory compliance testing on 
the subject frontal barriers and found them to be compliant with the 
S5.2.3 requirements.
    In September of 2020, a third-party contractor for NHTSA, Applus 
IDIADA KARCO Engineering, LLC (KARCO), conducted compliance testing for 
the performance of MY 2019 Starcraft Quest school bus in accordance 
with the requirements of S5.2.3 of FMVSS No. 222. The KARCO testing 
showed that the force/deflection curve of the passenger side 
restraining barrier did not comply with S5.2.3(a) resulting in a formal 
inquiry by NHTSA. In June 2021, Forest River responded to NHTSA's 
inquiry and contended that KARCO did not conduct the September 2020 
compliance testing in accordance with the test procedure required by 
FMVSS No. 222. Specifically, Forest River believed that KARCO's setup 
of the test apparatus ``caused it not to be sufficiently rigid and this 
caused the apparatus to inappropriately contort and change direction 
during testing.''
    Forest River claims that NHTSA ``has not accounted for the 
deviations in the test procedure utilized by its own testing 
contractor.'' Forest River states that S5.2.3 of FMVSS No. 222 requires 
the barrier performance forward testing to be conducted in accordance 
with the conditions stated in S5.1.3.1-S5.1.3.4 of FMVSS No. 222. 
Forest River contends that KARCO did not set up the test apparatus in 
accordance with FMVSS No. 222 when evaluating the subject frontal 
barrier on behalf of NHTSA since KARCO's setup caused the test 
apparatus ``to not be sufficiently rigid or stable and thus allowed it 
to inappropriately contort during testing.'' According to Forest River, 
the test setup allowed the upper loading bar ``to change course 
dramatically by veering to the left and pushing the force of the 
loading bar on the left side of the barrier.'' Therefore, Forest River 
says the loading bar ``did not remain laterally centered against the 
barrier as required by S5.1.3.1 and S5.1.3.3 and deflected more than 
the 25 mm allowable by S6.5.1.'' which ``prevented the upper loading 
bar's longitudinal axis from maintaining a transverse plane as required 
S5.1.3.1 and S5.1.3.3.''
    Forest River contends that in the video of KARCO's testing provided 
by NHTSA, the ``movement of the test apparatus can clearly be seen.'' 
Forest River notes that NHTSA provided videos of KARCO's testing, but 
did not provide a requested a copy of KARCO's test report. Without the 
test report, Forest River argues it is unable to evaluate how KARCO 
documented its findings.
    In November 2021, Forest River retained an external testing 
facility to reevaluate the subject frontal barriers. Forest River 
states that this testing indicated that the subject frontal barriers 
complied with the S5.2.3 requirements and Forest River provided the 
test report and videos to NHTSA. NHTSA requested additional information 
from Forest River in March 2022 and Forest River responded in part in 
April 2022 and provided the remainder in May 2022. Forest River 
maintained its position that the KARCO testing was not conducted in 
accordance with the FMVSS No. 222 test procedures ``due to insufficient 
rigidity of the testing apparatus that allowed for inappropriate 
movement of the upper loading bar.'' Forest River argued that this 
movement, seen in the video provided by KARCO, invalidated the test.
    Forest River states that it met with NHTSA on December 2, 2022, at 
the Agency's request. At the meeting, NHTSA informed Forest River that 
the frontal barrier tested by the external facility retained by Forest 
River was not the same size as the frontal barrier that was tested by 
KARCO. Forest River states that its external testing facility 
unintentionally evaluated the incorrect size frontal barrier. The 
external testing facility evaluated a 34-inch frontal barrier when it 
intended to evaluate a 30-inch frontal barrier. Forest River says, 
``NHTSA indicated that a recall of vehicles equipped with the 
30[hyphen]inch frontal barrier would be necessary'' because, at the 
time, Forest River did not have test data to show that the 30-inch 
frontal barrier was compliant. As a result, Forest River says it 
``acquiesced to NHTSA's demand'' and filed a noncompliance report on 
December 21, 2022.
    Forest River arranged to evaluate a 30-inch frontal barrier, and 
testing took place in early January 2023. Forest River states that the 
test results indicate that the 30-inch frontal barrier complied with 
the FMVSS No. 222 performance requirements and showed the barrier 
absorbed nearly 125 percent of the energy required to be dissipated in 
this test. Forest River provided a copy of the test report with its 
petition which can be found in the docket. Forest River states that 
video of the testing is available to NHTSA to view.
    Forest River notes that no production changes are necessary because 
it ceased manufacturing the subject school buses in June 2020.
    According to Forest River, the purpose of S5.2.3 of FMVSS No. 222, 
``is to mitigate against the effects of injury if an occupant is thrown 
against the restraining barrier in a crash.'' Forest River contends 
that its January 2023 test demonstrates that the subject frontal 
barrier complies with the relevant

[[Page 48706]]

performance requirements and indicates that the 30-inch frontal barrier 
``substantially exceeds'' the S5.2.3 performance requirement. Forest 
River argues the January 2023 testing was conducted in accordance with 
S5.2.3, ``thus any noncompliance in this product (to the extent one 
actually exists) is inconsequential to motor vehicle safety.'' Further, 
Forest River maintains that the testing apparatus used to conduct the 
testing ``was sufficiently robust so that it remained stable during 
operation.'' Forest River's position is that because the testing 
apparatus was sufficiently rigid, ``the path of each of the loading 
bars remained laterally centered and maintained a straight path to the 
barrier and with minimal deflection, as the test procedure requires.'' 
Thus, Forest River claims that the January 2023 testing demonstrates 
that the 30-inch barrier is compliant and, to the extent it may be 
material, that the test can be performed without deflection of the test 
apparatus.
    Forest River notes that NHTSA has previously stated that one of its 
considerations when evaluating inconsequentiality petitions is the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\1\ According to Forest River, 
the subject noncompliance does not cause an enhanced risk to an 
occupant of an affected school bus because ``the data clearly and 
unambiguously demonstrates that the frontal barriers meet the 
performance requirements of S5.2.3.'' Forest River contends that its 
petition is unlike other inconsequential noncompliance petitions that 
involve a noncompliance with a performance requirement because Forest 
River's January 2023 test report indicates there is no performance-
related concern for the subject noncompliance.
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    \1\ See Gen. Motors, LLC; Grant of Petition for Decision of 
Inconsequential Noncompliance; 78 FR 35355 (June 12, 2013).
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    Forest River adds that no complaints, reports, or claims of any 
type have been received concerning the performance of the subject 
frontal barriers. Forest River acknowledges that NHTSA does not 
consider the absence of injuries or complaints when determining the 
inconsequentiality of a noncompliance, however, Forest River believes 
that ``this dearth of data in this case, when coupled with all of the 
other relevant data and information is instructive given the long field 
history of the subject barriers.''
    Forest River concludes by stating its belief that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety 
and petitions for exemption from providing notification and remedy of 
the noncompliance, as required by 49 U.S.C. 30118 and 30120.

VI. NHTSA's Analysis

    Forest River provided minimal data, views, or arguments supporting 
its belief that this noncompliance is inconsequential to safety, as 
required by 49 CFR 556.4. It is the petitioner's burden to establish 
the inconsequentiality of a failure to comply with a FMVSS. Instead, 
the focus of Forest River's petition is to argue that no noncompliance 
exists, which is in conflict with Forest River's acknowledgement of the 
noncompliance in its December 21, 2022, noncompliance report pursuant 
to 49 CFR part 573. Cf. Synder Comp. Sys. v. U.S. Dep't of Transp., 13 
F. Supp. 3d 848, 865 (S.D. Ohio 2014) (``The Safety Act does not permit 
[a manufacturer] to recall vehicles and then ignore the remedy 
requirements which flow from that decision.''). This was not a case 
where NHTSA ordered a recall. See id. Instead, Forest River ``decide[d] 
in good faith'' that the buses did not comply. See 49 U.S.C. 
30118(c)(2). Given that legal determination Forest River made pursuant 
to the Safety Act, the Agency will not consider the arguments that no 
noncompliance exists when evaluating whether the noncompliance is 
inconsequential to safety.
    The Agency has found very few noncompliances with performance 
requirements to be inconsequential. Potential performance failures of 
safety-critical equipment, like seat belts or air bags, are rarely, if 
ever, found to be inconsequential.
    An important issue to consider in determining inconsequentiality 
based upon NHTSA's prior decisions on noncompliance petitions is the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\2\ NHTSA also does not 
consider the absence of complaints or injuries to be demonstrative on 
the issue of whether the noncompliance is inconsequential to safety. 
Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also have not resulted in granting an 
inconsequentiality petition.\3\ 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 for noncompliances with occupant 
protection standards is the outcome to an occupant who is exposed to 
the consequence of that noncompliance.\4\
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    \2\ 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).
    \3\ 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).
    \4\ 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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    The purpose of FMVSS No. 222 is to reduce the number of deaths and 
the severity of injuries that result from the impact of school bus 
occupants against structures within the vehicle during crashes and 
sudden driving maneuvers (49 CFR 571.222 S2).\5\ The requirements at 
S5.2.3 Barrier Performance Forward of FMVSS No. 222, at issue here, are 
specific to the energy a barrier can absorb during an emergency event, 
and the rate at which such energy can be absorbed. These requirements 
are threefold: (1) a barrier must be able to absorb a minimum amount of 
energy within the first 356 mm of deflection,\6\ (2) the rate of energy 
absorption must fall within a specified Force vs Deflection Zone,\7\ 
and (3) the barrier,

[[Page 48707]]

and its components, must not separate at any attachment point from the 
vehicle, nor interfere with normal door operation. In the present case, 
during NHTSA's compliance test of the barrier in question, the rate of 
energy absorption exceeded the upper limit of the Force vs Deflection 
Zone before absorbing the minimum required energy, thereby leading to a 
compliance test failure. Rather than providing data, views, or 
arguments supporting its belief that this noncompliance is 
inconsequential to safety, as required by 49 CFR 556.4, Forest River 
used the instant petition largely to refute the existence of the 
reported noncompliance. Thus, Forest River's petition failed to include 
a sufficient basis to support a petition pursuant to 49 CFR 556.4. The 
petition described the noncompliance, but only minimally included 
reasoning for why the noncompliance is inconsequential to safety. A 
petition is required to: ``Set forth all data, views, and arguments of 
the petitioner supporting [the] petition.'' 49 CFR 556.4. Absent 
sufficient reasoning, a petitioner cannot meet its burden of persuasion 
that a noncompliance is inconsequential to safety.
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    \5\ FMVSS are adopted to ``meet the need for motor vehicle 
safety.'' 49 U.S.C. 30111(a). ``[M]otor vehicle safety'' is ``the 
performance of a motor vehicle or motor vehicle equipment in a way 
that protects the public against unreasonable risk of accidents 
occurring because of the design, construction, or performance of a 
motor vehicle, and against unreasonable risk of death or injury in 
an accident, and includes nonoperational safety of a motor 
vehicle.'' 49 U.S.C. 30102(a)(9).
    \6\ The minimum energy required to be absorbed by the barrier is 
based on the number of designated seating positions, W, of the seat 
immediately behind the barrier. See 49 CFR 571.222, S5.1.3.4, 
S4.1(a).
    \7\ See 49 CFR 571.222, Figure 1.
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    Here, Forest River's arguments that the noncompliance is 
inconsequential centered on the lack of known field incidents, which 
Forest River acknowledged the Agency does not consider persuasive. The 
Agency has explained that ``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.'' \8\ Likewise, ``the 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.'' 
\9\ In addition, to the extent that Forest River is arguing that the 
noncompliance was an anomaly, that is also not persuasive. As described 
above, the agency considers the outcome to an occupant who is exposed 
to the noncompliance, regardless of whether or not only a small 
percentage of vehicles may be actually likely to exhibit a 
noncompliance. The consequences of the noncompliance at issue here with 
the school bus frontal barrier requirement could be severe since the 
requirement is to reduce death and the severity of injury in the event 
of an emergency event. Given this safety need for the FMVSS, Forest 
River's petition, focused on arguing that no noncompliance exists in 
contradiction to the noncompliance report it filed, fails to provide 
sufficient justification that the noncompliance is inconsequential to 
motor vehicle safety.
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    \8\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \9\ 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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VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that Forest 
River has not met its burden of persuasion that the subject FMVSS No. 
222 noncompliance is inconsequential to motor vehicle safety. 
Accordingly, Forest River's petition is hereby denied and Forest River 
is consequently obligated to provide notification of and free remedy 
for that noncompliance under 49 U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120; 49 CFR part 556; delegations of 
authority at 49 CFR 1.95 and 501.8)

Eileen Sullivan,
Associate Administrator for Enforcement.
[FR Doc. 2024-12515 Filed 6-6-24; 8:45 am]
BILLING CODE 4910-59-P