NHTSA Denies Daimler Coaches Petition for Inconsequential Noncompliance

Content

ACTION:

Denial of petition.

SUMMARY:

Daimler Coaches North America, LLC (DCNA), a subsidiary of Daimler AG, has determined that certain model year (MY) 2012-2019
Setra S407 and MY 2009-2020 Setra S417 buses do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 101, Controls and Displays. DCNA filed a noncompliance report dated July 15, 2020 and amended its report on July 16, 2020 and March 24, 2021. DCNA petitioned
NHTSA (the “Agency”) on August 4, 2020 for a decision that the subject noncompliances are inconsequential as they relate to
motor vehicle safety. On October 1, 2020 DCNA submitted an amended petition to the Agency. Additionally, DCNA submitted supplemental
information to NHTSA on February 5, 2021, March 5, 2021, and March 25, 2021. This notice announces the denial of DCNA's petition.

FOR FURTHER INFORMATION CONTACT:

Kamna Ralhan, General Engineer, NHTSA, Office of Vehicle Safety Compliance, (202) 366-6443.

SUPPLEMENTARY INFORMATION:

I. Overview

DCNA has determined that certain MY 2012-2019 Setra S407 and MY 2009-2020 Setra S417 buses do not fully comply with the requirements
of paragraphs S.5.3.1, S5.3.2, and Table 1 of FMVSS No. 101, Controls and Displays (49 CFR 571.101). DCNA filed a noncompliance report dated July 15, 2020 and amended its report on July 16, 2020, and March
24, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. DCNA subsequently petitioned NHTSA on August 4, 2020, for an exemption from the notification and remedy requirements of 49
U.S.C. Chapter 301 on the basis that these noncompliances are inconsequential as they relate 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. On October 1, 2020, (1) DCNA submitted an amended petition to the Agency. Additionally, DCNA submitted supplemental information to NHTSA on February
5, 2021, March 5, 2021, and March 25, 2021.

A notice of receipt of DCNA's petition was published with a 30-day public comment period, on March 26, 2024, in the
Federal Register
(89 FR 21168). 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/ and follow the online search instructions to locate docket number “NHTSA-2020-0084.”

I. Buses Involved

Approximately 538 MY 2012-2019 Setra S407 and MY 2009-2020 Setra S417 motorcoach buses manufactured between May 19, 2009,
and January 30, 2019, were reported by the manufacturer.

III. Noncompliance

DCNA stated that the subject buses are noncompliant because the identifiers for the windshield defogging/defrosting control,
the hazard warning signal control, and the HVAC control do not meet illumination requirements in paragraphs S5.3.1, S5.3.2,
and Table 1 of FMVSS No. 101. Specifically, the brightness of the windshield defogging/defrosting and HVAC control identifiers
cannot be adjusted, and the hazard warning signal control identifier does not illuminate.

IV. Rule Requirements

Paragraphs S5.3.1 and S5.3.2 of FMVSS No. 101 include the requirements relevant to this petition. The standard requires that
drivers must have the ability to control the timing of illuminating indicators, the brightness

  of illuminating indicators, the identification of indicators, and the identification of controls listed in Table 1 to make
  those indicators visible to drivers under daylight and nighttime driving conditions. Additionally, drivers must have the ability
  to adjust the visibility to at least two levels of brightness.

V. Summary of DCNA's Petition

The following views and arguments presented in this section, “V. Summary of DCNA's Petition,” are the views and arguments
provided by DCNA. They do not reflect the views of the Agency. DCNA describes the subject noncompliances and contends that
the noncompliances are inconsequential as they relate to motor vehicle safety.

In support of its petition, which is available in full in the docket, DCNA explains its understanding of FMVSS No. 101 and
states that the subject noncompliances do not increase risk to motor vehicle safety. DCNA states that FMVSS No. 101 “is premised
on ensuring the various controls, telltales, and indicators can easily be recognized in order to facilitate the driver's selection
under day and nighttime conditions, to prevent the mistaken selection of controls and to reduce potential safety hazards when
the driver's attention is diverted from the driving task.” DCNA further explains that FMVSS No. 101 sets requirements for
the location (S5.1), identification (S5.2), and illumination (S5.3) of various controls and displays, and Table 1 of the standard
provides the illumination and color requirements for those controls, telltales, and indicators. Specifically, DCNA explains
that S5.3.1(b) requires that the controls listed in Table 1 of FMVSS No. 101, including those for the hazard and windshield
defrost/defog control, are required to be illuminated when the headlamps are activated, and the brightness of the control
must be adjustable to at least two levels.

DCNA states that “the lack of illumination on the hazard warning lamp symbol included on the control and inability to adjust
the brightness of the defrost/defog control” does not present an increased risk to motor vehicle safety. DCNA states that
the affected controls are fully operable. DCNA describes the operation and design of the hazard warning lamp control for the
subject buses and provides its assessment of the risk to motor vehicle safety. DCNA explains that the “hazard warning lamp
is controlled by a large red plastic toggle switch that is 19 mm across by 40 mm high” and to activate the control, the driver
would press the bottom half of the switch downward with one finger until there is a clicking noise. DCNA states that the operation
of the hazard warning lamp “is confirmed because the hazard lamp itself will flash on and off, and both the right and left
turn signal indicators in the instrument cluster will flash on and off and in unison with the hazard warning lamps on the
exterior of the vehicle.” Therefore, DCNA asserts that a driver of the subject buses would still be able to confirm that the
hazard warning lamp is operating as intended.

DCNA further states that a driver of the affected buses would be able to identify and locate the hazard warning lamp switch
even under nighttime conditions because the switch is located to the immediate right of the driver, is at eye level, and is
the only switch in that area that is red, rather than black or grey. Thus, DCNA states that the hazard warning lamp switch
is conspicuous and “readily apparent under all operating conditions.”

DCNA describes the operation and design of the windshield defrost/defog control for the subject buses, and states that the
windshield defrost/defog symbol is located adjacent to the turn-style control knob. DCNA also states that the defrost/defog
control activates the windshield defrost/defog function and that both the symbol and control knob are automatically illuminated
when the subject buses' headlamps are activated but cannot be dimmed, which is required by S5.3.2.1 of FMVSS No. 101. DCNA
asserts that each of the functions surrounding the windshield defrost/defog symbol, many of which are not regulated by FMVSS
No. 101's Table 1, are illuminated. DCNA explains that there is a master switch that allows the driver to adjust the brightness
of the area surrounding the controls, and dimming can be controlled “within the meter assembly menu for the dashboard lights
and is adjustable to more than two different levels of brightness.” Furthermore, DCNA states that the controls at issue are
located within a group of controls that is “responsible for the heating, cooling, and temperature operations of the driver's
compartment of the vehicle.” Therefore, DCNA contends that a driver of the subject buses would be familiar with the location
of the defrost/defog control because it is located within a cluster of controls that operate similar functions. Thus, DCNA
states that “there is little to no risk that the driver's vision would otherwise be impaired if the display was too bright
or too dim.”

DCNA notes that drivers of the subject buses would be professionally trained and would therefore be likely to have experience
operating the bus and be “knowledgeable about the location and function of all of the controls and devices within the vehicle.”
DCNA states that the area forward of the driver's seat in the subject buses' interior cabin is “sufficiently lit by roadway
lighting, other illuminated controls, telltales, and the light emitted from the display of the instrument cluster.” According
to DCNA, when operating the subject buses with the headlamps turned on, the dashboard lamps will also be illuminated which
will illuminate the hazard warning lamp as well as other controls and indicators.

DCNA states that NHTSA has granted prior petitions for inconsequential noncompliance “where certain controls, telltales, and
indicators listed in Table 1 were not visible to the driver under all day and night driving conditions.” Specifically, DCNA
refers to a petition in which an electrical condition “could cause the headlamp upper beam indicator telltale to extinguish
for various periods of time and under certain conditions.” In this case, DCNA states that NHTSA determined that the upper
beam telltale would only need to be illuminated during nighttime driving conditions, as only a comparatively small portion
of driving occurs at night, which is the time of headlamp activation. (2)

DCNA reiterates that the subject buses are mostly used commercially, and therefore, the drivers are trained and “should be
familiar with the layout, placement, and operation of the hazard warning lamp and defog/defrost controls.” DCNA states that
NHTSA has also granted prior petitions concerning the potential safety consequences of a noncompliance with FMVSS No. 101
because it is expected that the driver will monitor the condition of the vehicle closely “to ensure the systems are properly
operating.” Additionally, DCNA states that there are several petitions where NHTSA found that the potential risk to motor
vehicle safety was inconsequential when the vehicle is operated by a trained driver because professional drivers understand
the telltales and other vehicle warnings. (3)

DCNA concludes by stating that the subject noncompliances are inconsequential as they relate to motor vehicle safety, and
that its petition to be exempted from providing notification of the noncompliances, as required by 49 U.S.C. 30118, and a
remedy for the noncompliances, as required by 49 U.S.C. 30120, should be granted.

VI. Summary of DCNA's Supplemental Submissions

In support of its petition, DCNA submitted supplemental information to NHTSA on February 5, 2021, March 5, 2021, and March
25, 2021.

In its February 5, 2021, submission, DCNA clarifies that the reference to dimming through the meter assembly menu means that
there is a master switch that operates the dimming function within the instrument cluster that is directly in front of the
driver.

On March 5, 2021, DCNA provided photos (4) depicting the noncompliance under various conditions. In the same supplemental submission, DCNA notes that, under further
testing, the illumination of the HVAC controls did not cause any driver glare and did not appear brighter than any of the
adjacent markings of the HVAC controls, and indicators were still sufficiently recognizable.

In its March 25, 2021, submission, DCNA notes that in addition to the issues originally covered in its petition, the controls
for the vehicle's HVAC system that are covered by FMVSS No. 101, Table 1, can be illuminated but are not dimmable as required
by S5.3.2. Specifically, the heating and air-conditioning system and heating and air-conditioning fan are affected. DCNA further
states that despite the condition that these two controls cannot be dimmed on the vehicles at issue, this does not create
an increased safety risk. DCNA notes that these two controls are located in the same area as all the other HVAC controls and
their location would be readily known to the experienced professional drivers that operate the buses at issue here. Additionally,
DCNA asserts that the master switch used for adjusting the brightness of the area surrounding the driver is fully operable
and adjustable to more than two different levels of brightness. Consequently, DCNA states that there is little to no risk
of illumination of controls for the heating and air-conditioning system causing the heating and air-conditioning fan to be
overly bright and impair the vision of the driver.

VII. NHTSA's Analysis

A. General Principles

The burden of establishing the inconsequentiality of a failure to comply with a performance requirement in an FMVSS is substantial and difficult to meet. Accordingly, the Agency has not found many such noncompliances inconsequential. (5)

In determining the 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. (6) In general, NHTSA does not consider the absence of complaints or injuries to show that the issue 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. (7) 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 the Petition

1. Increased Risk Due to Noncompliance

DCNA's interpretation of FMVSS No. 101 hinges upon the position that the noncompliance does not elevate the risk to motor
vehicle safety compared to a vehicle that is fully compliant with the safety standard. FMVSS No. 101's sections S5.3.2.1 and
S5.3.2.2(a) clearly mandate that the brightness of the subject controls, telltales, and indicators must be visible and adjustable
under both day and nighttime conditions. DCNA's assessment undervalues that these regulations were promulgated to reduce driver
distraction and ensure safety, particularly during challenging lighting conditions.

2. Operation and Design of Hazard Warning Lamp Control

In addressing the operation and design of the hazard warning lamp control, it is essential to consider not only the visibility
and operability emphasized by DCNA but also the fundamental safety requirements in FMVSS No. 101. The absence of illumination
of the identifier for the hazard warning lamp control is a significant concern, as it contravenes the requirements set forth
in FMVSS 101, paragraph S5.3.2.1. This provision mandates the illumination of certain control identifiers, including the hazard
warning symbol to ensure their visibility under various lighting conditions, thereby facilitating their safe operation by
the vehicle operator.

Moreover, while the implementation of a red toggle switch and its strategic placement may assist in locating the control,
this design choice does not address the issue of illumination adequacy, which is required under FMVSS No. 101. Specifically,
S5.3.2.2(a) in FMVSS 101 requires that the brightness of these controls must be adjustable to accommodate different lighting
environments, which is a feature that is absent in DCNA's subject vehicles. This limitation could hinder the rapid identification
of the control under less-than-optimal lighting conditions, which would increase the risk of a vehicle crash. In safety engineering,
there is a concept called “Gaze Fixation.” When a driver is in an emergency, they should not have to take their eyes off the
road for more than a fraction of a second. By failing to illuminate the hazard symbol, the manufacturer is forcing the driver
to blindly search for the control or stare into the dark to find it. This “search time” is exactly when crashes can occur.
If a driver is looking for a switch, they are not focusing on the road.

Compliance with FMVSS 101 is not about convenience but more so about predictable behavior. When a vehicle does not follow
these illumination requirements, it breaks the “muscle memory” of the driver. In a high-stress situation—like a tire blowout
or a sudden obstacle—the human brain reverts to basic instincts. The driver experiences a cognitive delay—they must think
about where the switch is

  instead of immediately seeing and pressing it. That brief two-second delay at highway speeds can mean traveling more than
  150 feet without activating the warning lights, which can be the difference between the vehicle behind stopping safely and
  causing a multi-vehicle crash. The manufacturer's claim that streetlights or moonlight will make the red switch visible is
  both legally and practically flawed, since safety standards are meant to account for worst-case conditions, such as driving
  on a pitch-black rural road where no ambient light is available.

Additionally, the requirement for the illumination of controls and their identifications, as stipulated in FMVSS 101, paragraph
S5.3 Illumination, further underscores the necessity of this feature. Specifically, S5.3.1(a) outlines the timing of illumination,
stating that the identification of controls must be illuminated whenever the headlamps are activated. This requirement ensures
that controls are easily identifiable and operable in conditions where headlamp use is necessary, which directly impacts the
vehicle's operational safety. The reliance on ambient lighting and audible clicks, while useful, does not fulfill the need
for dedicated illumination of controls, as these incidental sources do not compensate for the visibility and recognition afforded
by properly designed illumination.

By neglecting to provide specific illumination for the hazard warning lamp control, the design fails to meet a fundamental
safety requirement set by FMVSS No. 101. This failure violates a specific provision for the illumination of controls—that
all controls are clearly visible and readily operable under various conditions—and, consequently, this noncompliance increases
the risk of a vehicle crash.

3. Operation and Design of Windshield Defrost/Defog Control

DCNA's reference to the non-adjustable brightness of the windshield defrost/defog indicator still highlights a direct contravention
of FMVSS No. 101, S5.3.2.2(a). Even if surrounding functions are illuminated and the control is within a group of related
controls, the inability to adjust its brightness could distract the driver, particularly during nighttime driving if the display
is excessively bright or too dim, countering FMVSS No. 101's goal of minimizing driver distractions. Windshield defrosting
and defogging are not just about driver comfort; they are critical “vision-restoration” tools that can determine whether a
driver sees the road or drives blind. When a windshield “flash fogs” due to sudden temperature changes, visibility can drop
from 100% to near zero in seconds, requiring immediate action to prevent a crash. The indicator light is the driver's only
confirmation that this life-saving system is active, but by making its brightness non-adjustable, the manufacturer creates
a dangerous trade-off: a light that is too bright causes disability glare (blinding the driver at night), while one that is
too dim forces the driver to stare away from the road to confirm the system's status.

4. Professional Training of Drivers

DCNA's emphasis on the professional training of drivers does not negate the safety purpose of the requirements of FMVSS No.
101. The standard regulates vehicle safety features, ensuring a consistent safety baseline for all drivers, irrespective of
their training or experience. Even professionally trained drivers can be affected by poor design or inadequate illumination,
which could lead to momentary distractions or mistakes. Previous rulings on similar matters, such as those involving Mack
Trucks, Inc. and Volvo Trucks North America, were contingent on the specifics of those cases and, as noted elsewhere, are
not binding precedent.

5. Corrective Measures and Lack of Reported Incidents

The Agency acknowledges DCNA's corrective measures and the absence of reported incidents. However, a lack of incidents to
date does not establish the insignificance of the noncompliance concerning FMVSS No. 101's safety objectives. As noted above,
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. (8) The proactive nature of FMVSS No. 101 is to anticipate and address potential risks before they manifest into real-world issues.

6. Comparison to Previous Granted Petition

Contrary to the previously granted petition cited by DCNA, in which a telltale could sporadically extinguish, DCNA's subject
petition involves a continual lack of hazard lamp illumination and adjustable brightness for the windshield defrost/defog
control. DCNA's noncompliance is meaningfully different than the granted petition that DCNA cited, given the continual lack
of the required functionality in DCNA's case.

C. Response to DCNA's Supplemental Information

1. Non-Dimmable HVAC Controls

The lack of dimmable HVAC controls in DCNA's subject vehicle could potentially cause glare or be distracting, especially during
nighttime driving. Thus, NHTSA is not persuaded this noncompliance is inconsequential to motor vehicle safety.

2. Reliance on Professional Drivers' Familiarity

DCNA's reliance on the experience of professional drivers to mitigate potential safety risks is not persuasive. FMVSS No.
101 is designed to ensure safety and ease of use for all drivers, regardless of their professional status or familiarity with
a specific vehicle.

3. Testing and Driver Glare

The testing conducted by DCNA in a dark tunnel, while valuable, does not fully replicate the dynamic and often unpredictable
lighting conditions drivers face on actual roads. Real-world driving involves varying degrees of ambient light, reflections,
and other visual distractions that DCNA's test scenario does not adequately simulate. FMVSS No. 101 is designed to account
for a range of driving scenarios.

Additionally, the ability of drivers to adapt to different lighting conditions varies widely, and DCNA's test does not account
for this variability. For example, what may not cause a glare for one driver in a specific testing scenario might cause a
distraction or impairment for another in a different context.

Furthermore, outside of controlled test environments, drivers often encounter transient lighting conditions while passing
through tunnels, emerging from underpasses, or facing the glare of oncoming headlights. In these scenarios, the ability to
adjust the brightness of controls like HVAC systems becomes critically important to maintain visibility and prevent distraction.
Testing in a consistently dark environment does not address these transient conditions, which are integral to FMVSS No. 101's
focus on facilitating proper control selection under varying lighting.

4. Potential for Overly Bright Controls

The possibility that the illumination of controls could be overly bright and impair the vision of the driver underscores the
importance of compliance with FMVSS No. 101's

  dimmability requirement. The purpose of this requirement is to prevent such scenarios, ensuring that drivers can indeed adjust
  the brightness of controls in different driving conditions.

VIII. NHTSA's Decision

In consideration of the foregoing, NHTSA has decided that DCNA has not met its burden of persuasion that the subject FMVSS
No. 101 noncompliance is inconsequential to motor vehicle safety. Accordingly, DCNA's petition is hereby denied, and DCNA
is consequently obligated to provide notification of a free remedy for that noncompliance under 49 U.S.C. 30118 and 30120.

Authority: 49 U.S.C. 30118(d), 30120(h): delegations of authority at 49 CFR 1.95(a) and 501.8(g).

Eileen Sullivan, Associate Administrator for Enforcement. [FR Doc. 2026-05029 Filed 3-13-26; 8:45 am] BILLING CODE 4910-59-P

Footnotes

(1) DCNA's amended petition is dated August 4, 2020, but was submitted to NHTSA on October 1, 2020.

(2) See General Motors Corp.; Grant of Petition for Determination of Inconsequential Noncompliance, 56 FR 33323 (July 19, 1991).

(3) See Mack Trucks, Inc., and Volvo Trucks North America, Grant of Petitions for Decision of Inconsequential Noncompliance, 84 FR
67766 (December 11, 2019); Autocar Industries, LLC, and Hino Motors Sales U.S.A., Inc., Grant of Petitions for Decision of
Inconsequential Noncompliance, 84 FR 11162 (March 25, 2019); Daimler Trucks North America, LLC, Grant of Petition for Decision
of Inconsequential Noncompliance, 82 FR 33551 (July 20, 2017).

(4) These photos are available in the docket.

(5) Cf. Gen. Motors Corporation; Ruling on Petition for Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 (Apr. 14, 2004) (citing prior cases where noncompliance was expected to be imperceptible, or nearly so,
to vehicle occupants or approaching drivers).

(6) 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).

(7) 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”).

(8) 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”).

Download File

Download