Notice2024-23460
Blue Bird Body Company, 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 10, 2024
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
Blue Bird Body Company (Blue Bird) has determined that certain model year (MY) 2019-2024 Blue Bird Vision and MY 2020-2024 Blue Bird All American school buses do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Emergency Exits and Window Retention and Release. Blue Bird filed two noncompliance reports, both dated August 9, 2023, and subsequently petitioned NHTSA (the "Agency") on September 13, 2023, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This document announces the denial of Blue Bird's petition.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 197 (Thursday, October 10, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 197 (Thursday, October 10, 2024)]
[Notices]
[Pages 82288-82291]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-23460]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2023-0055; Notice 2]
Blue Bird Body Company, Denial of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Denial of petition.
-----------------------------------------------------------------------
SUMMARY: Blue Bird Body Company (Blue Bird) has determined that certain
model year (MY) 2019-2024 Blue Bird Vision and MY 2020-2024 Blue Bird
All American school buses do not fully comply with Federal Motor
Vehicle Safety Standard (FMVSS) No. 217, Bus Emergency Exits and Window
Retention and Release. Blue Bird filed two noncompliance reports, both
dated August 9, 2023, and subsequently petitioned NHTSA (the
``Agency'') on September 13, 2023, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This document announces the denial of Blue Bird's petition.
FOR FURTHER INFORMATION CONTACT: Daniel Lind, General Engineer, NHTSA,
Office of Vehicle Safety Compliance, (202) 366-7235.
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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. 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
[[Page 82289]]
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. 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
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 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. 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
[[Page 82290]]
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.'' \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\ Rather, the issue to consider is the
consequence to an occupant who is exposed to the consequence of that
noncompliance.\4\
---------------------------------------------------------------------------
\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'').
\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).
---------------------------------------------------------------------------
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 (See 49 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,\5\ 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.'' \6\ 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.
---------------------------------------------------------------------------
\5\ Blue Bird only cited one previous NHTSA decision, which is
the Collins petititon.
\6\ NHTSA's statement was a direct response to Collins stating
that a 1 millimeter difference was ``substantial,'' but a 2
millimeter difference was ``inconsequential.''
---------------------------------------------------------------------------
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
[[Page 82291]]
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)
Eileen Sullivan,
Associate Administrator for Enforcement.
[FR Doc. 2024-23460 Filed 10-9-24; 8:45 am]
BILLING CODE 4910-59-P
</pre></body>
</html>Indexed from Federal Register on October 10, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.