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.

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

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‐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 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. 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.

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. See49 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. 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. 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.

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). 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, (2) the rate of energy absorption must fall within a specified Force vs Deflection Zone, and (3) the barrier, 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.

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.” 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.” 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.

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)