E6-1373. Les Entreprises Michel Corbeil Inc., Denial of Petition for Decision of Inconsequential Noncompliance

Les Entreprises Michel Corbeil Inc. (Corbeil) has determined that certain school buses that it produced in 2004 do not comply with S5.1 of 49 CFR 571.221, Federal Motor Vehicle Safety Standard (FMVSS) No. 221, “School bus body joint strength.” Pursuant to 49 U.S.C. 30118(d) and 30120(h), Corbeil has petitioned for a determination that this noncompliance is inconsequential to motor vehicle safety and has filed an appropriate report pursuant to 49 CFR part 573, “Defect and Noncompliance Reports.” Notice of receipt of the petition was published, with a 30 day comment period, on November 23, 2005 in the Federal Register (70 FR 70914). NHTSA received no comments.

Affected are a total of approximately 295 school buses produced between May 3, 2004 and June 4, 2004. S5.1 of FMVSS No. 221 requires that:

* * * each body panel joint * * * when tested in accordance with the procedure of S6, shall hold the body panel to the member to which it is joined when subjected to a force of 60 percent of the tensile strength of the weakest joined body panel determined pursuant to S6.2.

The longitudinal roof joint on some of the subject school buses fails when tested according to the requirements of S5.1.

Corbeil believes that the noncompliance is inconsequential to motor vehicle safety and that no corrective action is warranted. Corbeil states that during the period of production of the subject school buses, “the production used expired glue.” Corbeil estimates that 61 of the 295 buses could be affected, based on the number of expired glue cartridges that were used.

Corbeil further states:

* * * repairs could affect the structural integrity of these buses' roofs. If we proceed with repairs, we must remove the actual MS polymer strips on the roof to reach the joints. This operation requires us to preheat (300-600 °F) the MS polymer strip (will soften the MS polymer) but at the same time will cause a significant urethane chemical modification and will affect the actual joint strength. The roof joint is composed of urethane glue and this glue will be affected if the temperature is higher than 194 °F * * *. If our educated estimate is that only 61 buses on (sic) the 295 buses involved in this recall are affected, however they cannot be individually identified. Also, during the test, the transverse joint succeeded at 116% of the requirement and the longitudinal joint failed only by 9% with 91% of the requirement. The objective of this recall is to increase the strength of the joint. We presently suspect that a retrofit could affect/damage the roof rather to (sic) reinforce the joint.

Corbeil states that no accidents or injuries have occurred as a result of this noncompliance.

NHTSA has reviewed the petition and has determined that the noncompliance is not inconsequential to motor vehicle safety.

With respect to the margin of noncompliance, Corbeil argues that the failing school bus joint reached 91 percent of the load required by the standard. In the petitioner's opinion, not meeting the requirement by 9 percent of the required load is inconsequential to motor vehicle safety. The agency disagrees. A significant injury-producing characteristic of school bus crashes is exposure to sharp metal edges that occurs when body panels become separated from the structural components to which they have been fastened. In a crash, severe lacerations may result if the occupants of the bus are tossed against these edges. Moreover, if panel separation is extensive, the occupant may be ejected from the vehicle, significantly increasing the possibility of serious injury. This standard is intended to reduce the likelihood of this type of injury by requiring that body joints on school buses have a minimum tensile strength equal to 60 percent of the tensile strength of the weakest joined body panel. Therefore, NHTSA believes that failure to meet the performance requirements of the standard is directly consequential to the safety of our school children.

With respect to the number of vehicles that are noncompliant, Corbeil states that it believes only 61 of the 295 school buses of the model tested by the agency are noncompliant. However, 49 U.S.C. 30112 prohibits the manufacturing, selling and importing of any noncompliant vehicles. The FMVSSs are designed to afford equal protection to all who use these vehicles, and therefore the number of noncompliant vehicles is not relevant to the effect on safety.

Corbeil also states that it suspects that its proposed remedy could compromise the integrity of the roof joints due to the heating required to remove the sealant. If Corbeil's proposed repair remedy would actually further weaken the school bus body joints, and therefore result in the vehicles still not meeting the requirements of FMVSS No. 221, it would not be an acceptable remedy under the statute. 49 U.S.C. 30120(a) requires that a manufacturer remedy a noncompliance by either repairing, replacing or repurchasing the noncompliant vehicle.

However, we think that Corbeil's concerns about the one repair method it suggests are misplaced. The agency is aware of several cases where school bus manufacturers have brought similar noncompliant vehicles with inadequate body joint strength into compliance with FMVSS No. 221 by the addition of mechanical fasteners. In these cases, the additional fasteners brought the vehicles into compliance without reliance upon any other fastening method, such as adhesive. Corbeil is responsible for determining an appropriate remedy for the noncompliance. However, as discussed, other options may be available that remedy the noncompliance without compromising the integrity of the structure. In any event, Corbeil's proposed remedy is not relevant to determining whether or not the noncompliance is consequential to safety.

In consideration of the foregoing, NHTSA has decided that the petitioner has not met its burden of persuasion that the noncompliance described is inconsequential to motor vehicle safety. Accordingly, Corbeil's petition is hereby denied.

Authority: (49 U.S.C. 30118, 30120; delegations of authority at CFR 1.50 and 501.8.)

Issued on: January 27, 2006.

Daniel C. Smith,

Associate Administrator for Enforcement.