2022-17135. Collins Bus Corporation, Denial of Petition for Decision of Inconsequential Noncompliance

AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

ACTION:

Denial of petition.

SUMMARY:

Collins Bus Corporation (Collins) has determined that certain model year (MY) 2012 2020 Ford and Chevrolet school buses do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 217, Bus Emergency Exits and Window Retention and Release. Collins filed a noncompliance report dated April 15, 2020. Collins subsequently petitioned NHTSA on April 30, 2020, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This notice announces the denial of Collins's petition.

FOR FURTHER INFORMATION CONTACT:

Daniel Lind, NHTSA, Office of Vehicle Safety Compliance, telephone [phone].

SUPPLEMENTARY INFORMATION:

 

I. Overview: Collins has determined that certain MY 2012-2020 Ford and Chevrolet school buses do not fully comply with the requirements of paragraph S5.5.3(b) of FMVSS No. 217, Bus Emergency Exits and Window Retention and Release (49 CFR 571.217). Collins filed a noncompliance report dated April 15, 2020, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Collins subsequently petitioned NHTSA on April 30, 2020, 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 Collins's petition was published in the Federal Register (85 FR 84463) with a 30-day public comment period, on December 28, 2020. No comments were received. To view the petition and all supporting documents, log onto the Federal Docket Management System (FDMS) website at: http://www.regulations.gov/​. Then follow the online search instructions to locate docket number “NHTSA-2020-0030.”

II. Buses Involved: Approximately 11,079 MY 2012-2020 Ford and Chevrolet school buses manufactured by Collins, as the final stage manufacturer, between February 2, 2012, and April 3, 2020, are potentially involved:

• Ford TH 400
• Ford Sh416, models SL, SH, DH, DE, TH, and TL
• Chevrolet DE516
• Chevrolet DH516
• Chevrolet DH500
• Ford TL 400
• Ford T24
• Chevrolet DH400

III. Noncompliance: Collins explains that the noncompliance is that the letter height for the operating instructions label describing the motions necessary to unlatch and open the emergency exits in the subject school buses does not fully comply with the requirements set forth in paragraph S5.5.3(b) of FMVSS No. 217. Specifically, the operating instructions describing the motions necessary to unlatch and open the emergency window exits are only eight (8) millimeters in height rather than the required one (1) centimeter.

IV. Rule Requirements: Paragraph S5.5.3(b) of FMVSS No. 217 includes the requirements relevant to this petition. Paragraph S5.5.3(b) requires that 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 Collins's Petition: The following views and arguments presented in this section, “V. Summary of Collins's Petition,” are the views and arguments provided by Collins and do not reflect the views of the Agency. Collins describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.

In support of its petition, Collins offers the following reasoning:

1. The Noncompliance is Inconsequential to Motor Vehicle Safety: Collins states that the 2-millimeter deficiency in the letter height is inconsequential to motor vehicle safety. The actual height of the emergency window exit operating instructions letters—eight (8) millimeters—is 80 percent of the height required by FMVSS No. 217 (ten (10) millimeters). NHTSA has previously granted inconsequential noncompliance petitions for labeling defects across various motor vehicle safety standards, including for more significant lettering height deficiencies:

• Notice Granting Petition by Kia Motors: Letters as little as 53.1 percent of the minimum height requirement. See69 FR 41333 (July 8, 2004) (Docket No. NHTSA-2004-17439).

• Notice Granting Petition by General Motors: Lettering height 76.3 percent of the minimum height requirement. See81 FR 92963 (Docket No. NHTSA-2016-0093).

• Notice Granting Petition by Hyundai: Letters as little as 78.1 percent of the minimum height requirement. See69 FR 41568 (Docket No. NHTSA-2004-17439).

• Notice Granting Petition by Mercedes-Benz: Letters “about 78[percent] of the minimum height required for such letters.” Pet. at 3 (emphasis omitted). See67 FR 72026 (Docket No. NHTSA-2002-12544).

2. Further, the instruction label includes the words “Emergency Exit” in letters with a height of 11 millimeters, which not only meets but substantially exceeds the 1-centimeter requirement. See67 FR 72026 (noting that some of the letters did meet the minimum height requirements in finding that insufficient height of other letters did not have an adverse effect on vehicle safety).

3. Collins claims that the height discrepancy does not affect the readability of the instructions. See67 FR 72026 (finding that letters which were roughly 78 percent of the required size (which required size was nearly one-third of the relevant one-centimeter letter height requirement at issue here) would not “degrade the legibility” of the words); 81 FR 92964 (finding “the lettering height for the park brake applied indicator `Park' at 2.44 mm versus the FMVSS No. 135 requirement of 3.2 mm poses little if any risk to motor vehicle safety”).

4. Further, Collins says the discrepancy does not compromise the conspicuity of the instructions. The instructions are not only in a color that sharply contrasts with their background (red) as required by FMVSS No. 217, the letters are additionally in bold and block capital letters, which is not required by the standard but which preserves the 8-millimeter height across the width of the words and increases the visibility of the instructions. See81 FR 92964 (finding the use of all capitalized letters, where not required, provided “a more pronounced indicator”). And as noted above, some of the words in the instruction label ( i.e., “Emergency Exit”) not only meet but exceed the minimum height requirement, thereby increasing the visibility of the instructions.

5. Collins states that NHTSA has previously granted petitions for inconsequential noncompliance under FMVSS No. 217 for conditions that present a more direct safety risk than the potential safety risk (if any) created here. See New Flyer of America, Inc.; Grant of Application for Decision of Inconsequential Noncompliance, 63 FR 32694 (granting petition for inconsequential noncompliance where buses were manufactured with only one emergency exit instead of two); IC Corporation, Grant of Petition for Decision of Inconsequential Noncompliance, 70 FR 24464 (granting petition for inconsequential noncompliance where school buses were manufactured with two emergency doors under the same post and roof bow panel space).

6. Finally, Collins states that the emergency window exit instructions on the affected vehicles meet all other labeling requirements of FMVSS No. 217 and do not affect the actual operation of the emergency window exit, and Collins has not received any complaints regarding the size or visibility of the instructions and is not aware of any injuries associated with the size or visibility of the instructions. Collins has corrected the noncompliance in all buses remaining within its possession.

Collins concludes by again contending that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that 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.

Collins's complete petition and all supporting documents are available by logging onto the FDMS website at https://www.regulations.gov and by following the online search instructions to locate the docket number as listed in the title of this notice.

VII. 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 performance 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.^[1] NHTSA also does not consider the absence of complaints or injuries to show that the issue 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] Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.^[4] 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 is the consequence to an occupant who is exposed to the consequence of that noncompliance.^[5]

B. Response to Collins's Arguments

NHTSA reviewed Collins's arguments that the subject noncompliance is inconsequential to motor vehicle safety. Collins contends that the letter heights of the operating instructions describing the motions necessary to unlatch and open the emergency window exit not meeting 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. NHTSA's decision considered the following:

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. These requirements are fourfold: (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,” (3) operating instructions must “be in letters at least 1 centimeter high,” and (4) operating instructions must be “of a color that contrasts with [their] background.”

In the present case, the instruction labels at issue contain the following text: “EMERGENCY EXIT LIFT HANDLE PUSH WINDOW TO OPEN.” The labels therefore contain operating instructions (LIFT HANDLE PUSH WINDOW TO OPEN) which concisely describes the motions necessary to unlatch and open the emergency exit. The labels are located within 15 centimeters of the release mechanism on the inside surface of the bus and are of a color that contrasts with their background. However, although the words “EMERGENCY EXIT” on the instruction labels meet the minimum letter height requirement, the remaining text containing the actual operating instructions fail to meet the letter height requirement at S5.5.3(b)—the operating instructions do not consist of “letters at least 1 centimeter high.” This point is further discussed below.

Regarding Collins's argument that the words “EMERGENCY EXIT” have a letter height of 11 mm “which not only meets but substantially exceeds the 1-centimeter requirement,” Collins's argument is not compelling in how the difference of 1 mm in the words “EMERGENCY EXIT” improves the legibility of the words “LIFT HANDLE PUSH WINDOW TO OPEN” having a letter height of only 8 mm, a full 2 mm below the 1-centimeter requirement. Further, NHTSA notes that Collins's statement that 1 mm of letter height is “substantial” when above the 1 cm requirement, however “the 2-millimeter deficiency in the letter height is inconsequential to motor vehicle safety,” indicates a lack of consistency in Collins's argument. Collins also referenced a previous petition granted by NHTSA in support of this claim, which is addressed below, and which is unrelated to school bus emergency exit identification and operation. As such, NHTSA is not persuaded by Collins's argument that having the words “EMERGENCY EXIT” being 1 mm taller than the letter height requirements at S5.5.3(b) mitigates the noncompliance for the operating instructions “LIFT HANDLE PUSH WINDOW TO OPEN” being 2 mm shorter than the requirement. Furthermore, 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.

Regarding the readability of the operating instructions, NHTSA does not agree with Collins that the readability of the operating instructions is unaffected by the noncompliance with the letter height requirement. Collins referenced two previous petitions granted by NHTSA in support of this claim, which are addressed below, that are unrelated to school bus emergency exit identification and operation. As such, 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.

Regarding the conspicuity of the operating instructions, NHTSA agrees with Collins that the operating instructions are “in a color that sharply contrasts with their background (red)” and are “in bold and block capital letters, which is not required by the standard but which preserves the 8-millimeter height across the width of the words and increases the visibility of the instructions,” but does not agree with Collins that compliance with the conspicuity requirements for the operating instructions impacts compliance with the letter height requirements for the operating instructions for emergency exits in school buses. Collins referenced a previous petition granted by NHTSA in support of this claim, which is addressed below, that are unrelated to school bus emergency exit identification and operation. As such, NHTSA is not persuaded by Collins's argument that meeting the conspicuity requirements for the operating instructions mitigates the noncompliance with the letter height requirement, as no evidence was provided in support of this claim.

C. Remaining Arguments

Collins referenced six inconsequential noncompliance petitions NHTSA had previously granted to support its petition.

The first petition, from Kia Motors America, Inc., and Kia Motors Corp. (Kia) ( See69 FR 41333), involved passenger vehicles which did not meet the letter height requirements for brake system warning lights, specifically for the abbreviation “ABS” and in some cases the word “brake,” as required by FMVSS No. 101, 105, and 135. In this case, these passenger vehicles did not meet the minimum letter height requirement of 3.2 mm. The Agency decided that “due to the positioning, color, use of the ISO symbol, and combined size of both the lettering and symbols, it is very unlikely that a vehicle user would either fail to see or fail to understand the meaning of the brake or ABS warning light in the affected vehicles” and granted the petition. NHTSA does not agree that granting this prior petition supports granting Collins's petition here, for four reasons: (1) compliance with FMVSS No. 217 was not at issue, (2) emergency exit identification within the vehicle was not at issue, (3) the warning lights in Kia's petition both “illuminated in red (brake warning light) or yellow (ABS light)” and also “include[d] an International Standards Organization (ISO) symbol combined with the word `brake' or the abbreviation `ABS,'” which are two features distinctly different from the emergency exit labels at issue here (which do not illuminate or contain any symbol), and (4) the warning lights in Kia's petition were related to the driver's attention, whereas the emergency exit operating instructions in Collins's petition is for school bus passenger use in the event of an emergency.

The second petition, from General Motors, LLC (GM) ( See81 FR 92963), involved passenger vehicles which did not meet the letter height requirements for the park brake telltale (identified by the word “PARK”), as required by FMVSS No. 101 and 135. In this case, these passenger vehicles did not meet the minimum letter height requirement of 3.2 mm for the word “PARK.” The Agency decided that “[i]llumination of both the `PARK' indicator combined with the information center statement `Park Brake Set' provides ample communication to the driver that the parking brake has been applied,” and granted the petition. NHTSA does not agree that granting this prior petition supports granting Collins's petition here, for five reasons: (1) compliance with FMVSS No. 217 was not at issue, (2) emergency exit identification within the vehicle was not at issue, (3) the park brake telltale lights in GM's petition “illuminated,” which is a feature distinctly different from the emergency exit labels at issue here (which do not illuminate), (4) activation of the park brake telltale light in GM's petition would simultaneously activate a second illuminated message, which is a feature distinctly different from the emergency exit labels at issue here (which do not activate a second message), and (5) the park brake telltale lights in GM's petition were related to the driver's attention, whereas the emergency exit operating instructions in Collins's petition is for school bus passenger use in the event of an emergency.

The third petition, from Hyundai Motor Company (Hyundai) ( See69 FR 41668), involved passenger vehicles which did not meet the letter height requirements for the abbreviation “ABS” and in other cases the word “brake,” as required by FMVSS No. 105 and 135. In this case, these passenger vehicles did not meet the minimum letter height requirement of 3.2 mm. The Agency decided that “[d]ue to the positioning, color, use of the ISO symbol, and combined size of both the lettering and symbols, it is very unlikely that a vehicle user would either fail to see or fail to understand the meaning of the brake or ABS warning light in the affected vehicles,” and granted the petition. NHTSA does not agree that granting this prior petition supports granting Collins's petition here, for four reasons: (1) compliance with FMVSS No. 217 was not at issue, (2) emergency exit identification within the vehicle was not at issue, (3) the warning lights in Hyundai's petition both “illuminated” and also included an “International Standards Organization (ISO) symbol for the ABS,” which are two features distinctly different from the emergency exit labels at issue here (which do not illuminate or contain any symbol), and (4) the warning lights in Hyundai's petition were related to the driver's attention, whereas the emergency exit operating instructions in Collins's petition is for school bus passenger use in the event of an emergency.

The fourth petition, from Mercedes-Benz, U.S.A., Inc. (MBUSA) ( See67 FR 72026), involved passenger vehicles which did not meet the letter height requirements for the brake warning indicator lamp, as required by FMVSS No. 135. In this case, these passenger vehicles did not meet the minimum letter height requirement of 3.2 mm for the letters “r,” “a,” and “e” in the word “Brake.” The Agency decided that “the Agency does not believe that the noncompliance will degrade the legibility of the brake malfunction telltale, or will have an adverse effect on vehicle safety,” and granted the petition. NHTSA does not agree that granting this prior petition supports granting Collins's petition here, for six reasons: (1) compliance with FMVSS No. 217 was not at issue, (2) emergency exit identification within the vehicle was not at issue, (3) the brake warning indicator lamp in MBUSA's petition “illuminated,” which is a feature distinctly different from the emergency exit labels at issue here (which do not illuminate), (4) activation of the brake warning indicator lamp in MBUSA's petition would simultaneously activate a second illuminated message, which is a feature distinctly different from the emergency exit labels at issue here (which do not activate a second message), (5) activation of the second illuminated message in MBUSA's petition would “[trigger] an audible signal,” which is a feature distinctly different from the emergency exit labels at issue here (which do not trigger an audible signal), and (6) the brake warning indicator lamp in MBUSA's petition was related to the driver's attention, whereas the emergency exit operating instructions in Collins's petition is for school bus passenger use in the event of an emergency.

The fifth petition, from New Flyer of America, Inc. ( See63 FR 32694), involved transit buses that had only one emergency exit on the right side of the bus instead of two, as required by FMVSS No. 217. In this case, these buses had 3.28 times the required exit area, with two emergency exit windows on the left side, one emergency exit window on the right side and two roof exits. Thus, the buses had the minimum number of emergency exits required by FMVSS No. 217. However, these exits were not distributed properly. Instead of a second emergency exit on the right side, these buses had an additional roof exit. The Agency decided that the additional roof exit provided for an additional level of safety during a rollover event and granted the petition. NHTSA does not agree that the granting of this prior petition supports granting Collins's petition here, because emergency exit identification and operation within the vehicle was not at issue.

The sixth petition, from IC Corporation (IC) ( See70 FR 24464), involved school buses where two side emergency exit doors were located opposite each other within the same post and roof bow panel space. IC argued that the requirement prohibiting two exit doors from being located in this manner appeared to be related to the structural integrity of a bus body with this configuration. IC indicated that it had no reports of any structural failures in the area around the emergency doors but stated that it would extend to owners of the noncompliant vehicles a 15-year warranty for any structural or panel failures related to the location of the doors. NHTSA agreed with IC that, in this case, the noncompliance did not compromise safety in terms of emergency exit capability in proportion to maximum occupant capacity, access to side emergency doors, visibility of the exits, or the ability of bus occupants to exit after an accident. NHTSA does not agree that the granting of this prior petition supports granting Collins's petition here, because emergency exit identification and operation within the vehicle was not at issue.

None of the previous six petitions Collins provided in support of its current petition were related to labeling for emergency egress of school buses. Emergency 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.

NHTSA's Decision: In consideration of the foregoing, NHTSA has decided that Collins has not met its burden of persuasion that the subject FMVSS No. 217 noncompliance is inconsequential to motor vehicle safety. Accordingly, Collins's petition is hereby denied and Collins 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)

Anne L. Collins,

Associate Administrator for Enforcement.

Footnotes

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 Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for Decision of Inconsequential Noncompliance,66 FR 38342 (July 23, 2001) (rejecting argument that noncompliance was inconsequential because of the small number of vehicles affected); Aston Martin Lagonda Ltd.; Denial of Petition for Decision of Inconsequential Noncompliance,81 FR 41370 (June 24, 2016) (noting that situations involving individuals trapped in motor vehicles—while infrequent—are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of Petition for Decision of Inconsequential Noncompliance,81 FR 21663, 21664 (Apr. 12, 2016) (rejecting argument that petition should be granted because the vehicle was produced in very low numbers and likely to be operated on a limited basis).

5.   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).