Petition for Decision of Inconsequential Noncompliance: Daimler Trucks North America, LLC

Daimler Trucks North America, LLC, Denial of Petition for Decision of Inconsequential Noncompliance

Supplementary Information

I. Overview: On November 20, 2020, NHTSA requested information from DTNA regarding a test failure with S5.5.3(a) of FMVSS No. 217, Emergency Exit Identification and Labeling, in a 2019 Thomas Saf-T-Liner school bus. NHTSA received DTNA's response on December 18, 2020, and on January 26, 2022, NHTSA requested that DTNA provide additional information or file a noncompliance report, if it determines that there is a noncompliance.

As a result, DTNA determined that certain MY 2019-2022 Thomas Built Bus school buses do not fully comply with paragraph S5.5.3(a) of FMVSS No. 217, Bus Emergency Exits and Window Retention and Release (49 CFR 571.217).

DTNA filed an original noncompliance report dated February 9, 2022, and amended the report on April 13, 2022, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. DTNA petitioned NHTSA on March 1, 2022, and amended the petition on April 13, 2022, 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 DTNA's petition was published with a 30-day public comment period on August 30, 2022, in the Federal Register (87 FR 53044). 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-2022-0025."

II. Vehicles Involved: Approximately 28,814 MY 2019-2022 Thomas Built Saf-T-Liner HDX, EFX, C2, and Minotour school buses, manufactured between September 28, 2018, and February 23, 2021, are potentially involved.

III. Noncompliance: DTNA explains that the subject school buses are equipped with "Emergency Exit" and "Emergency Door" labels that do not meet the letter height requirements, as required by paragraph S5.5.3(a) of FMVSS No. 217. Specifically, some of the letters are 4.9 cm instead of the required minimum 5 cm letter height.

IV. Rule Requirements: Paragraph S5.5.3(a) of FMVSS No. 217 includes the requirements relevant to this petition. Each school bus emergency exit provided in accordance with S5.2.3.1 of FMVSS No. 217 is required to have the designation "Emergency Door" or "Emergency Exit," as appropriate, in letters that are at least 5 centimeters high and in a color that contrasts with the background of the letters.

V. Background: In March 2020, NHTSA notified DTNA of a potential noncompliance regarding the emergency exit identification labeling in its subject school buses. In April 2020, DTNA responded to NHTSA and stated its belief that the label "should be considered compliant" because "with standard rounding, the label-letters met the requirements." In its response, DTNA also contended that NHTSA had previously audited the labels in 2014 and found them to be compliant. Then in November 2020, DTNA stated that it received an information request from the Agency, to which DTNA responded by explaining that "1) the labels meet the requirements of FMVSS [No.] 217 following the agency's rules of rounding and precision and 2) were the exact same labels had previously been reviewed by the OVSC and found to be compliant during OVSC compliance testing." On January 31, 2022, DTNA received another letter from the Agency requesting that DTNA submit additional information or file a supporting noncompliance report. DTNA stated that it decided to file the noncompliance report "in order to avoid a protracted dispute with the agency."

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

DTNA says "[t]he relevant labels were designed with letters at least 5 cm and reasonably believed at all relevant times that they complied with FMVSS [No.] 217 under applicable law, including NHTSA's public statements regarding numerical rounding."

DTNA contends that NHTSA has granted the following petitions in which the letters did not meet the minimum letter height requirement:

• Kia Motors America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance, 69 FR 41332 (July 8, 2004);
• General Motors, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, 81 FR 92963 (July 9, 2004); and
• Hyundai Motor Co., Grant of Petition for Decision of Inconsequential Noncompliance, 69 FR 41568 (July 9, 2004).

DTNA also states that NHTSA has previously granted two inconsequentiality petitions that "could lead to crowding of passengers trying to flee an exit." In the first case, ⁽¹⁾ "buses were manufactured with only one emergency exit instead of two," and in the second case, ⁽²⁾ "emergency exits were mounted under the same post and roof bow panel space."

DTNA states its belief that although the letter height is 0.1 cm less than the FMVSS requirement, the letters "are sufficiently large as to aid passengers fleeing an emergency" and that the labels meet all other applicable FMVSSs. DTNA believes that because some of the letters exceed the 5 cm minimum requirement, "the reasonable aggregate perception of a viewer is that the letters are 5 cm or more." DTNA further states its belief that the 0.1 cm difference does not obscure the labels or the purpose of the label since the labels are in bold letters that contrast against the background of the labels.

DTNA claims that it is not aware of any complaint, accident, injury, or death resulting from the subject noncompliance.

DTNA contends that "there is a substantial question whether or not there is fair notice as to how a manufacturer is to comply with FMVSS [No.] 217 (and potential scores of other FMVSSs) given the agency's past statements on numerical rounding." DTNA believes that NHTSA's statements with respect to the rounding method it uses  ⁽³⁾ and the rounding method provided in the FMVSS No. 111 test procedure are contradicted by a 1990 NHTSA interpretation, ⁽⁴⁾ which states that an FMVSS will specify when rounding is appropriate. DTNA claims that NHTSA's "procedures for comparing numbers to a standard is ambiguous," therefore, DTNA states that it lacked "fair notice as to which of the above procedures, rounding or not, apply."

DTNA 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.

VII. NHTSA's Analysis: In determining inconsequentiality of a noncompliance, NHTSA focuses on the safety risk to individuals who experience the type of event against which a recall would otherwise protect. ⁽⁵⁾ In general, NHTSA does not consider the absence of complaints or injuries when determining if a noncompliance is inconsequential to safety. The absence of complaints does not mean vehicle occupants have not experienced a safety issue, nor does it mean that there will not be safety issues in the future. ⁽⁶⁾

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 forth 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. ⁽⁷⁾ 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."  ⁽⁸⁾ "[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."  ⁽⁹⁾ Rather, the issue to consider is the consequence to an occupant who is exposed to the consequence of that noncompliance. ⁽¹⁰⁾

B. Response to DTNA's Arguments

NHTSA reviewed DTNA's arguments that the subject noncompliance is inconsequential to motor vehicle safety. DTNA contends that the noncompliance with the letter height requirements that are set forth in paragraph S5.5.3(a) of FMVSS No. 217, poses little, if any, risk to motor vehicle safety. NHTSA does not agree.

DTNA's first argument is that the "relevant labels were designed with letters at least 5 cm and reasonably believed at all relevant times that they complied with FMVSS [No.] 217 under applicable law." DTNA's belief that the labels were compliant, which might be relevant if the issue here was its basis for certification, has no bearing on whether this noncompliance is inconsequential. DTNA may have designed the labels with letters that were supposed to have at least 5 cm of letter height, however, the letter heights when measured by both NHTSA and DTNA, were less than 5 cm. This could be due to a variety of reasons. For example, the noncompliance could be caused by a variation in DTNA's production and quality processes, which allowed for smaller letter heights to be printed on labels. It could also be caused by insufficient tolerancing applied to the design of the labels (a process that is meant to ensure that even with the highest degree of variation, the minimum letter height of 5 cm would still be attained on the labels). With a robust surveillance program, this type of anomaly may have been discovered early in the production process, but no such surveillance data was provided by DTNA. DTNA did not provide any additional details regarding the design of the labels in its petition, therefore no additional context or evidence was provided by DTNA in support of this claim. Consequently, NHTSA is not persuaded by DTNA's argument that the design of the labels mitigates the noncompliance for the letter height requirement, as no evidence was provided in support of this claim. In any event, NHTSA disagrees with DTNA's argument that a noncompliant label can be considered compliant or inconsequential if the design of the label meets the applicable FMVSS-but the actual manufactured label does not.

Regarding the readability of the labels, NHTSA does not agree with DTNA that the readability of the labels is unaffected by the noncompliance with the letter height requirement. DTNA did not provide any additional context, evidence or data to support its claims that (1) the labels "are sufficiently large as to aid passengers fleeing an emergency," (2) "the reasonable aggregate perception of a viewer is that the letters are 5 cm or more," or (3) the letter height difference does not obscure the labels or the purpose of the labels. As such, NHTSA is not persuaded by DTNA's argument that the readability of the labels is unaffected by the noncompliance with the letter height requirement, as no evidence or data was provided in support of this claim.

Insofar as conspicuity of the operating instructions is concerned, NHTSA agrees with DTNA that the letters on the labels "are in bold letters that contrast against the background of the labels," but NHTSA does not agree with DTNA that compliance with the conspicuity requirements negates a failure to comply with school bus emergency exit label letter minimum height requirements. As such, NHTSA rejects DTNA's argument that meeting the conspicuity requirements for the labels mitigates the noncompliance with the letter minimum height requirement, particularly in the absence of data or evidence supporting this claim.

DTNA further submits that numerical rounding employed by NHTSA in other contexts establishes that DTNA's noncompliance is inconsequential to safety. DTNA's argument is not compelling. One of the numerical rounding methods referenced by DTNA  ⁽¹¹⁾ is not part of the Federal Motor Vehicle Safety Standards, but is instead part of the voluntary consumer information New Car Assessment Program (NCAP). That rounding methodology is not applicable to the requirements of FMVSS No. 217 and cannot be used to determine whether a label is compliant.

DTNA also quotes a 1990 NHTSA interpretation letter but subsequently disagrees with the conclusion in NHTSA's interpretation letter. NHTSA reaffirms the statement in the 1990 interpretation letter that: "Rounding is generally not used in the safety standards. The standards expressly specify when rounding is appropriate."  ⁽¹²⁾ DTNA has not identified anything in FMVSS No. 217 or specific to that standard that allow for rounding. NHTSA does not agree with DTNA that rounding is permitted in the present case or that FMVSS No. 217 presents an ambiguity regarding rounding. In fact, the 1990 interpretation goes on to state that ". . . any value less than the minimum required value is a noncompliance."

Finally, DTNA's reference to the rounding methodology in the FMVSS No. 111 test procedure is also not applicable, since the rounding methodology refers to the conversion from English to metric units when direct measurement in metric units is not available-which is not the case with DTNA's subject noncompliance.

DTNA asserted that five inconsequential noncompliance petitions that NHTSA had previously granted support DTNA's subject petition. However, NHTSA disagrees because all of the five cited petitions are unrelated to school bus emergency exit identification. Furthermore, NHTSA emphasizes that the Agency examines every inconsequential noncompliance petition on its own merits. The Agency's decisions are necessarily highly fact dependent and limited to a particular and often narrow context. NHTSA therefore believes that prior determinations-that are not specific to the identification of school bus emergency exit labels-do not warrant granting this petition.

The first petition, ⁽¹³⁾ from Kia Motors America, Inc., and Kia Motors Corp. (collectively, "Kia"), 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 DTNA's petition here for the following 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 labels in DTNA's petition are for school bus children to use in the event of an emergency.

The second petition, ⁽¹⁴⁾ from General Motors, LLC (GM), 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 DTNA's petition here for the following 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 labels in DTNA's petition are for school bus children to use in the event of an emergency.

The third petition, ⁽¹⁵⁾ from Hyundai Motor Company (Hyundai), 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, the 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. However, NHTSA does not agree that granting this prior petition supports granting DTNA's petition here for the following 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 labels in DTNA's petition are for school bus children to use in the event of an emergency.

The fourth petition, ⁽¹⁶⁾ from New Flyer of America, Inc., 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. However, NHTSA does not agree that the granting of this prior petition supports granting DTNA's subject petition because emergency exit identification within the vehicle was not at issue.

The fifth petition, ⁽¹⁷⁾ from IC Corporation (IC), 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. However, NHTSA does not agree that the granting of this prior petition supports granting DTNA's petition here because emergency exit identification within the vehicle was not at issue.

None of the above-discussed five petitions that DTNA provided in support of its subject petition are 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.

VIII. NHTSA's Decision: In consideration of the foregoing, NHTSA has decided that DTNA has not met its burden of persuasion that the subject FMVSS No. 217 noncompliance is inconsequential to motor vehicle safety. Accordingly, DTNA's petition is hereby denied and DTNA 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; 49 CFR part 556; delegations of authority at 49 CFR 1.95 and 501.8).

⁽¹⁾ See New Flyer of America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance, 63 FR 32694 (June 15, 1998).

⁽²⁾ See IC Corporation, Grant of Petition for Decision of Inconsequential Noncompliance, 70 FR 24464 (May 9, 2005).

⁽³⁾ See Consumer Information; New Car Assessment Program, 79 FR 28594 (May 16, 2014).

⁽⁴⁾ See Paul Jackson Rice, Chief Counsel, NHTSA, to David G. Dick Acts Testing Labs, Inc. (September 10, 1990).

⁽⁵⁾ 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).

⁽⁶⁾ See Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016); see also 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").

⁽⁷⁾ 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).

⁽⁸⁾ Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).

⁽⁹⁾ 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").

⁽¹⁰⁾ 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).

⁽¹¹⁾ See 79 FR 28594.

⁽¹²⁾ See Paul Jackson Rice, Chief Counsel, NHTSA, to David G. Dick Acts Testing Labs, Inc. (September 10, 1990).

⁽¹³⁾ See 69 FR 41332.

⁽¹⁴⁾ See 81 FR 92963.

⁽¹⁵⁾ See 69 FR 41568.

⁽¹⁶⁾ See 63 FR 32694.

⁽¹⁷⁾ See 70 FR 24464.