Blue Bird Body Company, Denial of Petition for Decision of Inconsequential Noncompliance

SUPPLEMENTARY INFORMATION:

I. Overview

Blue Bird determined that certain MY 2019-2024 Blue Bird Vision and MY 2020-2024 Blue Bird All American school buses do not fully comply with paragraph S5.5.3(b) of FMVSS No. 217, Bus Emergency Exits and Window Retention and Release (49 CFR 571.217).

Blue Bird filed two noncompliance reports, both dated August 9, 2023, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Blue Bird petitioned NHTSA on September 13, 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 Blue Bird's petition was published with a 30-day public comment period, on December 6, 2023, in the Federal Register (88 FR 84872). 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-2023-0055.”

II. Vehicles Involved

Approximately 28,765 MY 2019-2024 Blue Bird Vision and 403 MY 2020-2024 Blue Bird All American school buses, manufactured between July 1, 2019, and August 3, 2023, were reported by the manufacturer.

III. Noncompliance

Blue Bird explains that the Emergency Exit Label in the subject vehicles contains lettering that does not meet the lettering height required by paragraph S5.5.3(b) of FMVSS No. 217. Specifically, the lettering height was 0.882 centimeters and therefore does not meet the minimum lettering height requirement of 1 centimeter.

IV. Rule Requirements

Paragraph S5.5.3(b) of FMVSS No. 217 includes the requirements relevant to this petition. Concise operating instructions describing the motions necessary to unlatch and open the emergency exit shall be located within 15 centimeters of the release mechanism on the inside surface of the bus. These instructions shall be in letters at least 1 centimeter high and of a color that contrasts with its background.

V. Summary of Blue Bird's Petition

The following views and arguments presented in this section, “V. Summary of Blue Bird's Petition,” are the views and arguments provided by Blue Bird. They do not reflect the views of the Agency. Blue Bird describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.

Blue Bird contends that the subject noncompliance is inconsequential to motor vehicle safety because the difference between 1 centimeter and 0.882 centimeters would be difficult to differentiate without the use of precise measuring equipment. A 0.118 centimeter difference is less than 3/64ths of an inch or 0.047 inches, which Blue Bird argues would be unrecognizable and would not cause the instructions to be unclear to passengers or impact their ability to open the door in an emergency.

In 2022, NHTSA denied a petition by Collins Bus Corporation (Collins) in which the lettering height on the affected buses was 2 millimeters less than 1 centimeter. Collins contended that some of the lettering in the labeled message exceeds the requirement by 1 millimeter. Therefore, the difference of the noncompliant lettering being 2 millimeters smaller than required should be deemed inconsequential. However, Blue Bird notes that NHTSA was not persuaded by Collins's assertion that a 2 millimeter measurement is any less significant than a 1 millimeter measurement. Blue Bird says that NHTSA's decision in this case implies that a 0.118 centimeter variation from the required lettering height at a single location can be considered inconsequential.

Moreover, Blue Bird believes that Vernier caliper jaws, when used for the official measurement of letter height can introduce inaccuracies, particularly in discerning small variations from the required height. Blue Bird says manual error in the repeatability of both the measurement device and the user could lead to discrepancies that exceed the difference between the Blue Bird text size from the requirement. Blue Bird contends that the photo provided of the measurement in this case illustrates the potential for human error in identifying a small variation. According to Blue Bird, “the caliper is not positioned flat against the decal, and only one location on the decal was measured.” Therefore, Blue Bird believes that a discrepancy of 0.118 centimeters could be attributed to a slight angle of the calipers or measurements conducted at various points on the signage.

According to Blue Bird, its lettering meets all other FMVSS No. 217 labeling requirements, specifically that (1) operating instructions must be “concise” and describe “the motions necessary to unlatch and open the emergency exit,” (2) operating instructions must “be located within 15 centimeters of the release mechanism on the inside surface of the bus,” and (3) operating instructions must be “of a color that contrasts with [their] background.”

Blue Bird asserts NHTSA has not put forth any claim or reasoning indicating that a 0.118 centimeter variation from the 1 centimeter lettering height requirement “compromises a passenger's ability to safely view or understand the lettering.” Furthermore, Blue Bird contends that NHTSA's prior determination on the Collins petition notes the substantial difference between a 1 millimeter and a 2 millimeter variation from the requirement. Additionally, Blue Bird believes it has effectively demonstrated that the manual use of Vernier calipers can introduce “discrepancies and variations when distinguishing variations as small as 0.118 cm.”

Blue Bird concludes by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety and its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.

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. See49 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). See49 U.S.C. 30111. The Secretary has delegated this authority to NHTSA. See49 CFR 1.95.

NHTSA adopts a FMVSS only after the Agency has determined that the requirements are objective and practicable and meet the need for motor vehicle safety. See49 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 free remedy. See49 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. See49 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. 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. NHTSA also does not consider the absence of complaints or injuries when determining whether a noncompliance is inconsequential to safety. The Safety Act is preventive, and manufacturers cannot and should not wait for deaths or injuries to occur in their vehicles before they carry out a recall. See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. Cir. 1977). Indeed, the very purpose of a recall is to protect individuals from risk. See id. “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.” “[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.” Rather, the issue to consider is the consequence to an occupant who is exposed to the consequence of that noncompliance.

Further, because each inconsequential noncompliance petition must be evaluated on its own facts and determinations are highly fact-dependent, NHTSA does not consider prior determinations as binding precedent. Petitioners are reminded that they have the burden of persuading NHTSA that the noncompliance is inconsequential to safety.

B. Response to Blue Bird's Arguments

NHTSA reviewed Blue Bird's arguments that the subject noncompliance is inconsequential to motor vehicle safety. Blue Bird contends that the lettering height of the operating instructions describing the motions necessary to unlatch and open the emergency window exit failing to meet the Emergency Exit Identification requirements, as specified in paragraph S5.5.3(b) of FMVSS No. 217, poses little, if any, risk to motor vehicle safety. NHTSA does not agree.

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 ( See49 CFR 571.217 S2). The Emergency Exit Identification requirements at S5.5.3(b) of FMVSS No. 217, at issue here, are specific to the operating instructions required for emergency exits in school buses. Blue Bird argues that the 0.882 centimeter letter height shortfall of its operating instructions is “not significant enough to make the instructions unclear to passengers or compromise their ability to open the door in an emergency.” Blue Bird states “A 0.118 cm difference is less than 3/64ths of an inch or 0.047 inches and will be unrecognizable.” However, Blue Bird provides no evidence demonstrating that the difference in letter height present in this noncompliance does not affect readability of the operating instructions. NHTSA also does not find merit in Blue Bird's statement that “NHTSA has not provided any claim or reasoning that that 0.118 cm variation from the 1 cm lettering height requirement compromises a passenger's ability to safely view or understand the lettering” because the burden of persuasion lies with Blue Bird to provide evidence to support its petition. NHTSA adoption of the 1 cm requirement when issuing the FMVSS was based on the statutory requirement that the FMVSS meets the need for motor vehicle safety. However, Blue Bird failed to provide evidence in support of its claim that a deviation from that requirement is inconsequential to safety. Consequently, NHTSA is not persuaded by Blue Bird's argument that the readability of the operating instructions is unaffected by its noncompliance with the letter height requirement.

Regarding Blue Bird's argument that the letter height variation of 0.118 centimeters is inconsequential based on previous NHTSA decisions, NHTSA does not agree with Blue Bird that NHTSA's denial of the Collins petition referenced by Blue Bird warrants granting this petition. NHTSA does not agree with Blue Bird that “NHTSA's decision [to deny the petition] suggests that a mere 0.118 cm variation from the standard measured in a single location can be deemed inconsequential,” as NHTSA made no such statement in its denial of the Collins petition. NHTSA also does not agree with Blue Bird that “NHTSA expressly noted [in the previous petition] that there is a material difference in a 1 mm variation versus a 2 mm variation,” as NHTSA made no such statement in the denial of the Collins petition. Furthermore, NHTSA does not agree that NHTSA's analysis in its denial of the Collins petition supports granting Blue Bird's petition here, for three reasons. First, NHTSA specifically stated in the denial of the Collins petition that “[e]mergency egress occurs under states of emergency, which may include fire, smoke, panicked children, etc. As such, the dilution of these emergency egress marking requirements in school buses is consequential to motor vehicle safety.” Blue Bird did not provide any evidence to demonstrate that a smaller letter height is inconsequential to emergency egress under states of emergency. Second, NHTSA specifically stated in the denial of the Collins petition that “NHTSA is not persuaded by Collins's argument that the readability of the operating instructions is unaffected by the noncompliance with the letter height requirement, as no evidence was provided in support of this claim.” Blue Bird also did not provide any evidence to demonstrate that the readability of the operating instructions is unaffected by the noncompliance with the letter height requirement. Third, NHTSA specifically stated in the denial of the Collins petition that “NHTSA is not persuaded by Collins's argument that a 2 mm measurement is any less substantial than a 1 mm measurement, as no evidence was provided in support of this claim.” Blue Bird also did not provide any evidence to demonstrate that a 0.118 centimeter difference in letter height is not substantial with respect to readability of emergency exit operating instructions. Consequently, NHTSA is not persuaded by Blue Bird's argument that the letter height variation of 0.118 cm is inconsequential, as no evidence was provided in support of this claim.

NHTSA is also not persuaded by Blue Bird's argument that “the jaws of a Vernier caliper when used for the official measurement of letter height can be inaccurate and inconsistent when used to differentiate such small variation from the standard.” Blue Bird states that “[m]anual error in repeatability of the measurement device and user could result in differences that exceed the difference the Blue Bird text size is from the requirement . . . A difference of .118 cm could easily be accounted for by a slight angle of the calipers or measurements taken in multiple locations on the signage.” However, Blue Bird did not provide any evidence to demonstrate the ease by which such manual errors could occur. NHTSA also does not agree with Blue Bird that “Blue Bird has demonstrated that manual use of Vernier calipers can create discrepancies and variations when distinguishing variations as small as .118 cm,” as no such demonstrations were provided as part of Blue Bird's petition. Consequently, NHTSA is not persuaded by Blue Bird's argument that Vernier calipers can be inaccurate and inconsistent for the measurement of label letter heights, as no evidence was provided in support of this claim. Arguments about how the lettering height is measured are also not relevant given that Blue Bird has acknowledged its lettering height actually did not meet the minimum lettering height requirement of the standard.

Regarding the additional requirements at S5.5.3(b) of FMVSS No. 217 for the operating instructions, NHTSA agrees with Blue Bird that the operating instructions “lettering meets all other labeling requirements” at S5.5.3(b) of FMVSS No. 217, but NHTSA does not agree with Blue Bird that partial compliance with FMVSS No. 217 is sufficient to render the partial noncompliance inconsequential to safety. NHTSA is not persuaded by Blue Bird's argument that meeting the other requirements within S5.5.3(b) of FMVSS No. 217 for the operating instructions mitigates Blue Bird's noncompliance with the letter height requirement, as no evidence was provided in support of this claim.

VII. NHTSA's Decision

In consideration of the foregoing, NHTSA has decided that Blue Bird has not met its burden of persuasion that the subject FMVSS No. 217 noncompliance is inconsequential to motor vehicle safety. Accordingly, Blue Bird's petition is hereby denied and Blue Bird 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: delegations of authority at 49 CFR 1.95 and 501.8)

[FR Doc. 2024-23460 Filed 10-9-24; 8:45 am]

BILLING CODE 4910-59-P