[Federal Register Volume 89, Number 197 (Thursday, October 10, 2024)]
[Notices]
[Pages 82288-82291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23460]


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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.

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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 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

[[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\
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    \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).
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    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.
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    \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.''
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    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