Porsche Cars North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance, 62365-62367 [2020-21835]

Download as PDF Federal Register / Vol. 85, No. 192 / Friday, October 2, 2020 / Notices Respondent Universe: Railroads/ railroad industry representatives/rail labor unions/general public. Frequency of Submission: On occasion. Total Estimated Annual Responses: 6. Total Estimated Annual Burden: 37 hours. Total Estimated Annual Burden Hour Dollar Cost Equivalent: $2,849. Under 44 U.S.C. 3507(a) and 5 CFR 1320.5(b) and 1320.8(b)(3)(vi), FRA informs all interested parties that a respondent is not required to respond to, conduct, or sponsor a collection of information that does not display a currently valid OMB control number. (Authority: 44 U.S.C. 3501–3520) Brett A. Jortland, Deputy Chief Counsel. [FR Doc. 2020–21836 Filed 10–1–20; 8:45 am] BILLING CODE 4910–06–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2019–0094; Notice 2] II. Vehicles Involved Porsche Cars North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance Approximately 2,610 MY 2018 Porsche 911 GT3 motor vehicles, manufactured between August 30, 2017, and December 21, 2018, are potentially involved. National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Grant of petition. AGENCY: III. Noncompliance Porsche Cars North America, Inc. has determined that certain model year (MY) 2018 Porsche 911 GT3 motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Porsche filed a noncompliance report dated July 24, 2019. Porsche subsequently petitioned NHTSA on August 20, 2019, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This document announces the grant of Porsche’s petition for inconsequential noncompliance. FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366–5304, facsimile (202) 366–3081. SUPPLEMENTARY INFORMATION: jbell on DSKJLSW7X2PROD with NOTICES SUMMARY: I. Overview Porsche has determined that certain MY 2018 Porsche 911 GT3 motor vehicles do not fully comply with VerDate Sep<11>2014 20:11 Oct 01, 2020 Jkt 253001 Paragraph S8.1.4 and Table I–a of FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. (49 CFR 571.108). Porsche filed a noncompliance report dated July 24, 2019, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Porsche subsequently petitioned NHTSA on August 20, 2019, 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 Porsche’s petition was published with a 30-day public comment period, on January 3, 2020, in the Federal Register (85 FR 412). 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–2019– 0094.’’ Porsche explains that the noncompliance is that the subject vehicles are equipped with rear reflex reflectors that do not meet the height requirements as specified in paragraph S8.1.4 and Table I–a of FMVSS No. 108. Specifically, the rear reflex reflectors are mounted approximately 0.20 inches below the required 15 inches above the road surface. The actual height above the road surface is approximately 14.8 inches. IV. Rule Requirements Paragraph S8.1.4 and Table I–a of FMVSS No. 108 includes the requirements relevant to this petition. The reflective devices should not be mounted less than 15 inches and no more than 60 inches in height. V. Summary of Porsche’s Petition The following views and arguments presented in this section are the views and arguments provided by Porsche. They do not reflect the views of the Agency. Porsche described the subject noncompliance and stated that the PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 62365 noncompliance is inconsequential as it relates to motor vehicle safety. Porsche submitted the following views and arguments in support of its petition: 1 1. The installation height requirements of reflex reflectors as defined by paragraph S8.1.4 of FMVSS No. 108 are intended to assure a sufficient luminous intensity of the reflex reflectors towards the source of illumination. Although the rear reflex reflectors’ installation height falls slightly below the specified minimum height by 0.20 inches (5 mm), Porsche has confirmed that the rear reflex reflectors meet or exceed all applicable FMVSS requirements regarding the luminous intensity performance as stated under § 571.108, S14 and all other relevant requirements of FMVSS No. 108 of paragraphs S8.1 and S8.2. Porsche provided a copy of the photometric test results for the rear reflex reflectors, which Porsche believes shows that the installation height does not affect the performance of the luminous intensity of the rear reflex reflectors or the visibility of the subject vehicles. 2. Porsche is unaware of any accidents, injuries, warranty claims or customer complaints related to the slight shortfall of the rear reflex reflectors’ installation height. The absence of indicant data supports the conclusion that the minimal deviation in mounting height does not affect the performance of the rear reflectors or the visibility of the subject vehicles. 3. Porsche notes that NHTSA has previously granted a similar petition.2 In that petition, Harley-Davidson Motor Company, Inc. described the noncompliance with FMVSS No. 108 where the rear reflex reflectors were mounted an average of 0.3 inches to 0.7 inches below the required 15-inch height. NHTSA determined that this noncompliance, where the deviation from the specified height was even greater than in the present case, was inconsequential to motor vehicle safety based primarily on the lack of reduction in conspicuity as compared to compliant vehicles. Porsche suggests that its noncompliant vehicles are also equally conspicuous. 4. The purpose of the FMVSS No. 108 reflex reflector requirement is to prevent crashes by permitting early detection of an unlighted motor vehicle at an intersection or when parked on or by the side of the road, and the height requirement is intended ‘‘to ensure adequate reflex reflector performance 1 See 2 See E:\FR\FM\02OCN1.SGM Docket Number ‘‘NHTSA–2019–0094–001’’. 79 FR 69558, November 21, 2014. 02OCN1 62366 Federal Register / Vol. 85, No. 192 / Friday, October 2, 2020 / Notices jbell on DSKJLSW7X2PROD with NOTICES relative to headlamps that would illuminate them.’’ 3 Porsche stated that the photometry performance of the reflex reflectors in the subject vehicles well exceeds the minimum performance standards outlined in FMVSS No. 108, Table XVI. Based on the photometry performance of the reflectors in the subject vehicles, and the fact that the vehicles meet or exceed the requirements of paragraphs S8.l and S8.2 of FMVSS No. 108, with regard to reflection performance, Porsche believes the vehicles satisfy the safety objectives of the standard. 5. The noncompliance issue has been corrected in production vehicles and all vehicles currently being produced meet applicable mounting height requirements. 6. The mounting height of the reflex reflectors complies with the minimum height requirements of the United Nations ECE regulations. Those regulations specify a minimum mounting height of 250 mm (9.84 inches) for rear retro-reflectors. See UN R48, § 6.14.4.2. The reflex reflectors in the subject Porsche vehicles, with a mounting height of 14.8 inches, are well within this requirement. Porsche concluded 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. In response to a request from NHTSA for clarification, Porsche specified the dimensions of the noncompliant reflex reflector as being 110.119 mm by 35.375mm (4.34 by 1.39 inches). Porsche also clarified that the 0.2-inch deviation from the minimum required mounting height is relative to the ‘‘center of the item’’ (centroid of the functional reflective area). Porsche also provided a PowerPoint presentation that included detailed test data which showed the results of several photometric analyses performed on the subject reflex reflectors which included partially masking the reflex reflector to artificially shift the centroid thereby raising the mounting height. VI. NHTSA’s Analysis The primary function of a reflex reflector is to reduce crashes by permitting early detection of a motor vehicle that is approaching an intersection or parked by the side of the road. While NHTSA recognizes the importance of this function to safety, 3 See 82 FR 24204, May 25, 2017. VerDate Sep<11>2014 19:38 Oct 01, 2020 each petition is evaluated on its own merits. In some cases, the marginal nature of a noncompliance might be one factor in analyzing if a noncompliance is inconsequential to safety. In this case, Porsche showed the results of several photometric analyses performed on the subject reflex reflectors which included partially masking the reflex reflector to shift its mounting center. The test data showed passing photometric results when the photometric performance of the reflex reflector was measured for all partially masked scenarios which set the center point at or above the minimum required 15 inches. Given the specific circumstances of this case, the Agency finds the petitioner’s study helpful in assessing the safety risk of this noncompliance. NHTSA has concluded that the test data provided by Porsche is sufficient to grant this petition. The purpose of the mounting height is to aid in the visibility of the reflex reflector from other road users’ line of sight. While the centroid of the reflex reflector is mounted below the minimum height, the size of the subject reflex reflector is large enough to ensure that there is a sufficient surface area of the reflex reflector above the minimum required height to meet the photometry requirements by more than double the minimum requirement. Thus, the size of the reflex reflector compensates for its mounting height and achieves the safety need to aid in visibility. Porsche additionally cited a prior NHTSA ruling for a similar noncompliance granting inconsequentiality to Harley-Davidson Motor Company, Inc. for a reflex reflector mounted at an average of 0.3″ to 0.7″ below the required 15″ height.4 See 79 FR 69558, November 21, 2014. The aforementioned petition concerned a similar noncompliance for a reflex reflector that was mounted 0.3″ to 0.7″ below the minimum mounting height vs 0.2″. NHTSA believes Porsche has provided compelling information supporting the grant of its petition. Specifically, we found Porsche’s analysis by masking a portion of the reflex reflector to demonstrate the performance of the remaining unmasked portion of the reflex reflector that met the mounting height requirement especially compelling. We note that the noncompliance at issue concerns a failure to meet a performance requirement. The burden of establishing the inconsequentiality of a failure to comply with a performance requirement in a standard—as opposed to a labeling requirement—is more substantial and difficult to meet. 4 See Jkt 253001 PO 00000 79 FR 69558, November 21, 2014. Frm 00093 Fmt 4703 Sfmt 4703 Accordingly, the Agency has not found many such noncompliances inconsequential.5 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.6 NHTSA also does not consider the absence of complaints or injuries to show that the issue is inconsequential to safety. ‘‘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.’’ 7 ‘‘[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.’’ 8 Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.9 Similarly, NHTSA has rejected petitions based on the assertion that only a small percentage of vehicles or items of equipment are likely to 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 Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016). 8 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’’). 9 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). E:\FR\FM\02OCN1.SGM 02OCN1 Federal Register / Vol. 85, No. 192 / Friday, October 2, 2020 / Notices 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.10 These considerations are also relevant when considering whether a defect is inconsequential to motor vehicle safety. VII. NHTSA’s Decision In consideration of the foregoing, NHTSA finds that Porsche has met its burden of persuasion that the FMVSS No. 108 noncompliance is inconsequential as it relates to motor vehicle safety. Accordingly, Porsche’s petition is hereby granted and Porsche is exempted from the obligation to provide notification of and remedy for the subject noncompliance in the affected vehicles under 49 U.S.C. 30118 and 30120. NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, the granting of this petition only applies to the subject vehicles that Porsche no longer controlled at the time it determined that the noncompliance existed. However, this decision does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Porsche notified them that the subject noncompliance existed. Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8. Otto G. Matheke III, Director, Office of Vehicle Safety Compliance. [FR Doc. 2020–21835 Filed 10–1–20; 8:45 am] jbell on DSKJLSW7X2PROD with NOTICES BILLING CODE 4910–59–P 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). VerDate Sep<11>2014 19:38 Oct 01, 2020 Jkt 253001 DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency Agency Information Collection Activities: Information Collection Renewal; Comment Request; Record and Disclosure Requirements— Consumer Financial Protection Bureau Regulations B, E, M, Z, and DD and Board of Governors of the Federal Reserve System Regulation CC Office of the Comptroller of the Currency (OCC), Treasury. ACTION: Notice and request for comment. AGENCY: The OCC, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on the renewal of an information collection, as required by the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The OCC is soliciting comment concerning the renewal of an information collection titled, ‘‘Record and Disclosure Requirements—Consumer Financial Protection Bureau Regulations B, E, M, Z, and DD and Board of Governors of the Federal Reserve System Regulation CC.’’ DATES: Comments must be submitted on or before December 1, 2020. ADDRESSES: Commenters are encouraged to submit comments by email, if possible. You may submit comments by any of the following methods: • Email: prainfo@occ.treas.gov. • Mail: Chief Counsel’s Office, Attention: Comment Processing, Office of the Comptroller of the Currency, Attention: 1557–0176, 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Hand Delivery/Courier: 400 7th Street SW, Suite 3E–218, Washington, DC 20219. • Fax: (571) 465–4326. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘1557– 0176’’ in your comment. In general, the OCC will publish comments on www.reginfo.gov without change, including any business or personal information provided, such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any SUMMARY: PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 62367 information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this information collection beginning on the date of publication of the second notice for this collection 1 by the following method: • Viewing Comments Electronically: Go to www.reginfo.gov. Click on the ‘‘Information Collection Review’’ tab. Underneath the ‘‘Currently under Review’’ section heading, from the dropdown menu select ‘‘Department of Treasury’’ and then click ‘‘submit.’’ This information collection can be located by searching by OMB control number ‘‘1557–0176’’ or ‘‘Record and Disclosure Requirements—Consumer Financial Protection Bureau Regulations B, E, M, Z, and DD and Board of Governors of the Federal Reserve System Regulation CC.’’ Upon finding the appropriate information collection, click on the related ‘‘ICR Reference Number.’’ On the next screen, select ‘‘View Supporting Statement and Other Documents’’ and then click on the link to any comment listed at the bottom of the screen. • For assistance in navigating www.reginfo.gov, please contact the Regulatory Information Service Center at (202) 482–7340. FOR FURTHER INFORMATION CONTACT: Shaquita Merritt, OCC Clearance Officer (202) 649–5490, Chief Counsel’s Office, Office of the Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219. SUPPLEMENTARY INFORMATION: Title: Record and Disclosure Requirements—Consumer Financial Protection Bureau Regulations B, E, M, Z, and DD and Board of Governors of the Federal Reserve System Regulation CC. OMB Control No.: 1557–0176. Type of Review: Regular review. Description: This information collection covers Consumer Financial Protection Board Regulations B, E, M, Z, and DD and Board of Governors of the Federal Reserve System (FRB) Regulation CC. The CFPB and FRB Regulations include the following provisions: Regulation B—12 CFR 1002—Equal Credit Opportunity Act This regulation prohibits lenders from discriminating against credit applicants on certain prohibited bases. The regulation also requires creditors to 1 Following the close of this notice’s 60-day comment period, the OCC will publish a second notice with a 30-day comment period. E:\FR\FM\02OCN1.SGM 02OCN1

Agencies

[Federal Register Volume 85, Number 192 (Friday, October 2, 2020)]
[Notices]
[Pages 62365-62367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21835]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0094; Notice 2]


Porsche Cars North America, Inc., Grant of Petition for Decision 
of Inconsequential Noncompliance

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

ACTION: Grant of petition.

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SUMMARY: Porsche Cars North America, Inc. has determined that certain 
model year (MY) 2018 Porsche 911 GT3 motor vehicles do not fully comply 
with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, 
Reflective Devices, and Associated Equipment. Porsche filed a 
noncompliance report dated July 24, 2019. Porsche subsequently 
petitioned NHTSA on August 20, 2019, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety. 
This document announces the grant of Porsche's petition for 
inconsequential noncompliance.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-5304, facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION:

I. Overview

    Porsche has determined that certain MY 2018 Porsche 911 GT3 motor 
vehicles do not fully comply with Paragraph S8.1.4 and Table I-a of 
FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. (49 
CFR 571.108). Porsche filed a noncompliance report dated July 24, 2019, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. Porsche subsequently petitioned NHTSA on August 20, 2019, 
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 Porsche's petition was published with a 30-day 
public comment period, on January 3, 2020, in the Federal Register (85 
FR 412). 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-2019-0094.''

II. Vehicles Involved

    Approximately 2,610 MY 2018 Porsche 911 GT3 motor vehicles, 
manufactured between August 30, 2017, and December 21, 2018, are 
potentially involved.

III. Noncompliance

    Porsche explains that the noncompliance is that the subject 
vehicles are equipped with rear reflex reflectors that do not meet the 
height requirements as specified in paragraph S8.1.4 and Table I-a of 
FMVSS No. 108. Specifically, the rear reflex reflectors are mounted 
approximately 0.20 inches below the required 15 inches above the road 
surface. The actual height above the road surface is approximately 14.8 
inches.

IV. Rule Requirements

    Paragraph S8.1.4 and Table I-a of FMVSS No. 108 includes the 
requirements relevant to this petition. The reflective devices should 
not be mounted less than 15 inches and no more than 60 inches in 
height.

V. Summary of Porsche's Petition

    The following views and arguments presented in this section are the 
views and arguments provided by Porsche. They do not reflect the views 
of the Agency.
    Porsche described the subject noncompliance and stated that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Porsche submitted the following views and arguments in support of 
its petition: \1\
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    \1\ See Docket Number ``NHTSA-2019-0094-001''.
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    1. The installation height requirements of reflex reflectors as 
defined by paragraph S8.1.4 of FMVSS No. 108 are intended to assure a 
sufficient luminous intensity of the reflex reflectors towards the 
source of illumination. Although the rear reflex reflectors' 
installation height falls slightly below the specified minimum height 
by 0.20 inches (5 mm), Porsche has confirmed that the rear reflex 
reflectors meet or exceed all applicable FMVSS requirements regarding 
the luminous intensity performance as stated under Sec.  571.108, S14 
and all other relevant requirements of FMVSS No. 108 of paragraphs S8.1 
and S8.2. Porsche provided a copy of the photometric test results for 
the rear reflex reflectors, which Porsche believes shows that the 
installation height does not affect the performance of the luminous 
intensity of the rear reflex reflectors or the visibility of the 
subject vehicles.
    2. Porsche is unaware of any accidents, injuries, warranty claims 
or customer complaints related to the slight shortfall of the rear 
reflex reflectors' installation height. The absence of indicant data 
supports the conclusion that the minimal deviation in mounting height 
does not affect the performance of the rear reflectors or the 
visibility of the subject vehicles.
    3. Porsche notes that NHTSA has previously granted a similar 
petition.\2\ In that petition, Harley-Davidson Motor Company, Inc. 
described the noncompliance with FMVSS No. 108 where the rear reflex 
reflectors were mounted an average of 0.3 inches to 0.7 inches below 
the required 15-inch height. NHTSA determined that this noncompliance, 
where the deviation from the specified height was even greater than in 
the present case, was inconsequential to motor vehicle safety based 
primarily on the lack of reduction in conspicuity as compared to 
compliant vehicles. Porsche suggests that its noncompliant vehicles are 
also equally conspicuous.
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    \2\ See 79 FR 69558, November 21, 2014.
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    4. The purpose of the FMVSS No. 108 reflex reflector requirement is 
to prevent crashes by permitting early detection of an unlighted motor 
vehicle at an intersection or when parked on or by the side of the 
road, and the height requirement is intended ``to ensure adequate 
reflex reflector performance

[[Page 62366]]

relative to headlamps that would illuminate them.'' \3\ Porsche stated 
that the photometry performance of the reflex reflectors in the subject 
vehicles well exceeds the minimum performance standards outlined in 
FMVSS No. 108, Table XVI. Based on the photometry performance of the 
reflectors in the subject vehicles, and the fact that the vehicles meet 
or exceed the requirements of paragraphs S8.l and S8.2 of FMVSS No. 
108, with regard to reflection performance, Porsche believes the 
vehicles satisfy the safety objectives of the standard.
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    \3\ See 82 FR 24204, May 25, 2017.
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    5. The noncompliance issue has been corrected in production 
vehicles and all vehicles currently being produced meet applicable 
mounting height requirements.
    6. The mounting height of the reflex reflectors complies with the 
minimum height requirements of the United Nations ECE regulations. 
Those regulations specify a minimum mounting height of 250 mm (9.84 
inches) for rear retro-reflectors. See UN R48, Sec.  6.14.4.2. The 
reflex reflectors in the subject Porsche vehicles, with a mounting 
height of 14.8 inches, are well within this requirement.
    Porsche concluded 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.
    In response to a request from NHTSA for clarification, Porsche 
specified the dimensions of the noncompliant reflex reflector as being 
110.119 mm by 35.375mm (4.34 by 1.39 inches). Porsche also clarified 
that the 0.2-inch deviation from the minimum required mounting height 
is relative to the ``center of the item'' (centroid of the functional 
reflective area). Porsche also provided a PowerPoint presentation that 
included detailed test data which showed the results of several 
photometric analyses performed on the subject reflex reflectors which 
included partially masking the reflex reflector to artificially shift 
the centroid thereby raising the mounting height.

VI. NHTSA's Analysis

    The primary function of a reflex reflector is to reduce crashes by 
permitting early detection of a motor vehicle that is approaching an 
intersection or parked by the side of the road. While NHTSA recognizes 
the importance of this function to safety, each petition is evaluated 
on its own merits. In some cases, the marginal nature of a 
noncompliance might be one factor in analyzing if a noncompliance is 
inconsequential to safety. In this case, Porsche showed the results of 
several photometric analyses performed on the subject reflex reflectors 
which included partially masking the reflex reflector to shift its 
mounting center. The test data showed passing photometric results when 
the photometric performance of the reflex reflector was measured for 
all partially masked scenarios which set the center point at or above 
the minimum required 15 inches. Given the specific circumstances of 
this case, the Agency finds the petitioner's study helpful in assessing 
the safety risk of this non-compliance. NHTSA has concluded that the 
test data provided by Porsche is sufficient to grant this petition. The 
purpose of the mounting height is to aid in the visibility of the 
reflex reflector from other road users' line of sight. While the 
centroid of the reflex reflector is mounted below the minimum height, 
the size of the subject reflex reflector is large enough to ensure that 
there is a sufficient surface area of the reflex reflector above the 
minimum required height to meet the photometry requirements by more 
than double the minimum requirement. Thus, the size of the reflex 
reflector compensates for its mounting height and achieves the safety 
need to aid in visibility.
    Porsche additionally cited a prior NHTSA ruling for a similar 
noncompliance granting inconsequentiality to Harley-Davidson Motor 
Company, Inc. for a reflex reflector mounted at an average of 0.3'' to 
0.7'' below the required 15'' height.\4\ See 79 FR 69558, November 21, 
2014. The aforementioned petition concerned a similar noncompliance for 
a reflex reflector that was mounted 0.3'' to 0.7'' below the minimum 
mounting height vs 0.2''. NHTSA believes Porsche has provided 
compelling information supporting the grant of its petition. 
Specifically, we found Porsche's analysis by masking a portion of the 
reflex reflector to demonstrate the performance of the remaining 
unmasked portion of the reflex reflector that met the mounting height 
requirement especially compelling.
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    \4\ See 79 FR 69558, November 21, 2014.
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    We note that the noncompliance at issue concerns a failure to meet 
a performance requirement. The burden of establishing the 
inconsequentiality of a failure to comply with a performance 
requirement in a standard--as opposed to a labeling requirement--is 
more substantial and difficult to meet. Accordingly, the Agency has not 
found many such noncompliances inconsequential.\5\
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    \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).
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    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.\6\ NHTSA also does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to safety. ``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.'' \7\ 
``[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.'' \8\
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    \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\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \8\ 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'').
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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected have also not justified granting an 
inconsequentiality petition.\9\ Similarly, NHTSA has rejected petitions 
based on the assertion that only a small percentage of vehicles or 
items of equipment are likely to

[[Page 62367]]

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.\10\ These considerations are also relevant when 
considering whether a defect is inconsequential to motor vehicle 
safety.
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    \9\ 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).
    \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).
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VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Porsche has met 
its burden of persuasion that the FMVSS No. 108 noncompliance is 
inconsequential as it relates to motor vehicle safety. Accordingly, 
Porsche's petition is hereby granted and Porsche is exempted from the 
obligation to provide notification of and remedy for the subject 
noncompliance in the affected vehicles under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, the granting of 
this petition only applies to the subject vehicles that Porsche no 
longer controlled at the time it determined that the noncompliance 
existed. However, this decision does not relieve vehicle distributors 
and dealers of the prohibitions on the sale, offer for sale, or 
introduction or delivery for introduction into interstate commerce of 
the noncompliant vehicles under their control after Porsche notified 
them that the subject noncompliance existed.

    Authority: 49 U.S.C. 30118, 30120: delegations of authority at 
49 CFR 1.95 and 501.8.

Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2020-21835 Filed 10-1-20; 8:45 am]
BILLING CODE 4910-59-P