Porsche Cars North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance, 62365-62367 [2020-21835]
Download as PDF
<![CDATA[
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]
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\1\ See Docket Number ``NHTSA-2019-0094-001''.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ See 79 FR 69558, November 21, 2014.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\3\ See 82 FR 24204, May 25, 2017.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\4\ See 79 FR 69558, November 21, 2014.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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'').
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
