North America Subaru, Inc., Denial of Petition for Decision of Inconsequential Noncompliance, 48764-48768 [2022-17130]

Download as PDF khammond on DSKJM1Z7X2PROD with NOTICES 48764 Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 / Notices NHTSA finds that Mazda has provided adequate reasons for its belief that the antitheft device for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the partsmarking requirements of the theft prevention standard. This conclusion is based on the information Mazda provided about its antitheft device. NHTSA believes, based on Mazda’s supporting evidence, that the antitheft device described for its vehicle line is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. The agency concludes that Mazda’s antitheft device will provide four types of performance features listed in section 543.6(a)(3): promoting activation; preventing defeat or circumvention of the device by unauthorized persons; preventing operation of the vehicle by unauthorized entrants; and ensuring the reliability and durability of the device. The agency notes that 49 CFR part 541, Appendix A–1, identifies those lines that are exempted from the theft prevention standard for a given model year. 49 CFR 543.8(f) contains publication requirements incident to the disposition of all part 543 petitions. Advanced listing, including the release of future product nameplates, the beginning model year for which the petition is granted and a general description of the antitheft device is necessary in order to notify law enforcement agencies of new vehicle lines exempted from the parts-marking requirements of the theft prevention standard. If Mazda decides not to use the exemption for its requested vehicle line, the manufacturer must formally notify the agency. If such a decision is made, the line must be fully marked as required by 49 CFR 541.5 and 541.6 (marking of major component parts and replacement parts). NHTSA notes that if a manufacturer to which an exemption has been granted wishes in the future to modify the device on which the exemption is based, the company may have to submit a petition to modify the exemption. Section 543.8(d) states that a part 543 exemption applies only to vehicles that belong to a line exempted under this part and equipped with the antitheft device on which the line’s exemption is based. Further, section 543.10(c)(2) provides for the submission of petitions ‘‘to modify an exemption to permit the use of an antitheft device similar to but VerDate Sep<11>2014 17:26 Aug 09, 2022 Jkt 256001 differing from the one specified in the exemption.’’ 8 For the foregoing reasons, the agency hereby announces a grant in full of Mazda’s petition for exemption for the confidential vehicle line from the partsmarking requirements of 49 CFR part 541, beginning with its MY 2024 vehicles. Issued under authority delegated in 49 CFR 1.95, 501.5 and 501.8. Jane H. Doherty, Director, Office of International Policy, Fuel Economy & Consumer Standards. [FR Doc. 2022–17105 Filed 8–9–22; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2019–0124; Notice 2] North America Subaru, Inc., Denial of Petition for Decision of Inconsequential Noncompliance National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Denial of petition. AGENCY: North America Subaru, Inc., (NASI) on behalf of Subaru Corporation and Subaru of America, Inc. (Subaru) has determined that certain model year (MY) 2016–2020 Subaru Impreza motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. Subaru filed a noncompliance report dated October 10, 2019. NASI, on behalf of Subaru, petitioned NHTSA on October 23, 2019, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This document announces and explains the denial of NASI’s petition. FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), (202) 366–5304, Leroy.Angeles@dot.gov. SUPPLEMENTARY INFORMATION: SUMMARY: 8 The agency wishes to minimize the administrative burden that section 543.10(c)(2) could place on exempted vehicle manufacturers and itself. The agency did not intend in drafting part 543 to require the submission of a modification petition for every change to the components or design of an antitheft device. The significance of many such changes could be de minimis. Therefore, NHTSA suggests that if a manufacturer with an exemption contemplates making any changes, the effects of which might be characterized as de minimis, it should consult the agency before preparing and submitting a petition to modify. PO 00000 Frm 00146 Fmt 4703 Sfmt 4703 I. Overview NASI has determined that certain MY 2016–2020 Subaru Impreza motor vehicles do not fully comply with S8.1.11 and S10.15.6 of FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 571.108). Subaru filed a noncompliance report dated October 10, 2019, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. NASI petitioned NHTSA on October 23, 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 NASI’s petition was published with a 30-day public comment period, in the Federal Register (85 FR 39037, June 29, 2020). One comment was 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– 0124.’’ II. Vehicles Involved Approximately 63,697 MY 2016–2020 Subaru Impreza 4 door and approximately 124,703 Subaru Impreza Station wagon vehicles, totaling 188,400 motor vehicles manufactured between September 23, 2016, and August 7, 2019, are potentially involved. III. Noncompliance NASI explains that there are two separate noncompliances associated with the subject vehicles’ front combination lamps. First, the front combination lamps contain lower beam headlamps that do not meet the requirements of paragraph S10.15.6, and second, the front combination lamps contain reflex reflectors that do not meet the requirements of paragraph S8.1.11 of FMVSS No. 108. Specifically, when tested, the lower beam in two of four front combination lamps (samples: LH1 and LH4) and the reflex reflector in four of four front combination lamps (samples LH1, LH2, LH3 and LH4) failed to comply at certain test points. IV. Rule Requirements S8.1.11 and S10.15.6 of FMVSS No. 108 include the requirements relevant to this petition. 49 CFR 571.108, S8.1.11 requires each reflex reflector be designed to conform to the photometry requirements of Table XVI–a when E:\FR\FM\10AUN1.SGM 10AUN1 Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 / Notices tested according to the procedure of S14.2.3. 49 CFR 571.08, S10.15.6 requires each replaceable bulb headlamp be designed to conform to the photometry requirements of Table XIX for lower beam as specified in Table II– d for the specific headlamp unit and aiming method, when tested according to the procedure of S14.2.5 using any replaceable light source designated for use in the system under test. khammond on DSKJM1Z7X2PROD with NOTICES V. Summary of NASI’s Petition The following views and arguments presented in this section, ‘‘V. Summary of NASI’s Petition,’’ are the views and arguments provided by NASI and do not reflect the views of the Agency. NASI described the subject noncompliance and contended that the noncompliance is inconsequential as it relates to motor vehicle safety. 1. NASI submitted that the nonconformance relating to side reflex reflector photometry is inconsequential as it relates to motor vehicle safety for the following reasons: a. Real-world testing conducted by NASI showed that noncompliant and compliant reflex reflectors are equally detectable in real-world conditions. NASI included an overview of cognitive performance testing of the compliant and noncompliant reflex reflectors with its petition which can be found in full on the FDMS website.1 The cognitive performance test set-up simulated a condition typical of a vehicle approaching an unlit, perpendicular vehicle stalled in the driving lane. This test condition simulates a real-world condition where side reflex reflectors would support improved visibility of that vehicle. The test results show that, with respect to light reflectance and their ability to be detected, there is no noticeable difference observable between the fully compliant reflex reflector and the reflex reflector that marginally fails to comply at select test points. b. At a majority of the test points where the tested reflex reflectors were found to have measured intensities below the required minimum values, the measured values were generally only slightly less than the required minimum. For two of the four lamp assemblies tested, there was one point (point HV) where measured values slightly exceeded the 25% threshold cited by NHTSA and others in the past as being the threshold at which the difference between two lamp intensities of less than 25% cannot be detected 1 https://www.regulations.gov/document/NHTSA2019-0124-0001. VerDate Sep<11>2014 17:26 Aug 09, 2022 Jkt 256001 reliably by most drivers.2 The two measured values were below the required minimums by 26.9% (sample LH1) and 27.7% (sample LH4). NASI noted that, on average, for the four samples tested by Calcoast, the HV test point was only 24.8% below the required minimum. We also note, as mentioned above, that the cognitive performance testing conducted by NASI found there to be no noticeable differences in detectability for the compliant and noncompliant reflex reflectors in question. c. For a dynamic situation, light reflecting at a particular test point will be observed for only a short period of time. Compared to a light source that is constantly illuminated, the intensity originating from a reflex reflector is more fleeting to an observer. Reflex reflector intensity varies significantly depending on the angle of the driver’s eyes to the reflector’s central axis. Larger angles mean less light will be seen from the reflex reflector. Smaller angles mean more light will be seen from the reflex reflector. As a result, a nonconformity at a given test point for a reflex reflector will generally have a minimal impact on detectability. Thus, minor nonconformances at any one test point should be inconsequential with respect to safety risk. d. NASI contended that it has been recognized by NHTSA in the past that it is inherently difficult to manufacture all lamps 3 to comply with all test points and that random failures do occur. FMVSS No. 108 requires lighting equipment be designed to conform to relevant requirements as opposed to simply comply with relevant requirements. NASI stated that according to NHTSA,4 occasional random noncompliances are to be expected in this very complicated design and manufacturing process and it is for this reason that the ‘‘designed to comply’’ 5 provision is contained in the lighting standard. See commentary from 2 See DOT report, Driver Perception of Just Noticeable Differences of Automotive Signal Lamp Intensities, DOT HS 808 209, September 1994. https://ntrl.ntis.gov/NTRL/dashboard/ searchResults/titleDetail/PB95206306.xhtml. 3 Reflex reflectors are considered reflective devices and not lamps. FMVSS No. 108 defines reflex reflectors as ‘‘devices used on vehicles to give an indication to approaching drivers using reflected light from the lamps of the approaching vehicle.’’ 4 See Nissan Motor Corporation, U.S.A.; Denial of Application for Decision of Inconsequential Noncompliance; 62 FR 63416, November 28, 1997. 5 Specific to reflex reflectors and the lower beam, the regulatory text uses the phrase ‘‘designed to conform.’’ This phrase will be used throughout the analysis section for clarity. PO 00000 Frm 00147 Fmt 4703 Sfmt 4703 48765 the NPRM 6 in which NHTSA proposed to amend FMVSS No. 108 to permit the certification of adaptive driving beam headlighting systems. In that notice, the Agency noted that, historically, there has never been an absolute requirement that every motor vehicle lighting device meets every single photometric test point to comply with FMVSS No. 108. e. NASI stated that NHTSA has previously granted Subaru 7 and General Motors 8 petitions for inconsequentiality involving side reflex reflectors which were determined to be nonconforming at select test points by varying degrees. f. NASI claimed that it is not aware of any field or customer complaints related to the performance of the side reflex reflectors contained the subject front combination lamps, nor has it been made aware of any accidents or injuries that have occurred relating to the performance of these lamp assemblies. 2. NASI submitted that the nonconforming condition relating to lower beam photometry is inconsequential as it relates to motor vehicle safety for the following reasons: a. In compliance testing conducted by CALCOAST–ITL on behalf of NHTSA,9 two of four front combination lamps tested (samples LH1 and LH4) failed to comply with certain low beam photometry requirements in S10.15.6. i. Sample LH1: • Front combination lamp sample LH1 photometry was measured at twenty-four test points. At two of the twenty-four test points, sample LH1 exceeded the maximum allowable luminous intensity values by small amounts (11.4% and 4.7%). At one of the twenty-four test points, sample LH1 was below the minimum acceptable luminous intensity value by 13.0%. • At 21 of 24 test points, sample LH1 complied with the specified luminous intensity values listed in Table XIX–a (LB2V). ii. Sample LH4 • Front combination lamp sample LH4 photometry was measured at 24 test points. At two of the twenty-four test points, the sample LH4 exceeded the maximum allowable luminous intensity values by small amounts (16.8% and 19.4%). 6 See Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices, and Associated Equipment; 83 FR 51766, October 12, 2018. 7 See Subaru of America; Grant of Petition for Determination of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991. 8 See General Motors Corporation; Grant of Petition for Determination of Inconsequential Noncompliance; 57 FR 45866, October 5, 1992. 9 See NHTSA Report No. 108–CAN–19–002. https://static.nhtsa.gov/odi/ctr/9999/TRTR-6460512019-001.pdf. E:\FR\FM\10AUN1.SGM 10AUN1 khammond on DSKJM1Z7X2PROD with NOTICES 48766 Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 / Notices • At 22 of 24 test points, sample LH4 complied with the specified luminous intensity values listed in Table XIX–a (LB2V). iii. For both samples LH1 and LH4, test points at which the maximum allowable luminous intensity values were exceeded at test points 1.0 degree and 0.5 degrees up from the horizontal, respectively. These test points, which were taken in the range of 1.5 degrees to 9.9 degrees left of center, are in place to ensure that glare is minimized to oncoming drivers. In the UMTRI report entitled ‘‘Just Noticeable Differences for Low-Beam Headlamp Intensities’’ (UMTRl–97–4), testing was conducted to evaluate ‘‘just noticeable differences’’ or JNDs for glare intensities of oncoming low-beam headlamps. Specifically, UMTRI looked at whether the 25% rule established by NHTSA for signal lamps would be applicable for the range of intensities relevant to low-beam headlamps. Based on the testing conducted by UMTRI using low-beam headlamps, UMTRI concluded that applying the 25% limit for inconsequential noncompliance to a photometric test point that specifies a maximum for glare protection would be appropriate. Given the UMTRI conclusion, it believes that the small exceedances in maximum intensities for these two test points are inconsequential to safety. iv. For sample LH1, test point 4.0D 20.0R was the third point which was noncompliant per the measurements taken. This test point measures light intensity down and to the right (4 degrees below the horizontal and 20 degrees to the right of center). The minimum intensity value ensures adequate light down and far right (e.g., sidewalk to the right of the vehicle). Sample LH1’s measured light intensity was 13% less than the required value. Of the four samples tested by Calcoast, only one sample was noncompliant at this test point. This degree of nonconformity was minimal (13% below the required value). When the other three samples were tested, the measured intensities at this test point complied with margins of 47.2%, 27.8% and 2.8%. For sample LH1, a point within the Zone 10U–90U/90L–90R at 10.00U–7.3R exceeded the maximum permissible intensity threshold by 8.7%. The maximum allowable intensity of 125 candelas in this zone was established to reduce the amount of glare to the driver of the car with the subject headlamp in driving conditions involving poor weather (rain, fog, snow, etc.). The consequence of one of four samples having a measurement of 8.7% above VerDate Sep<11>2014 17:26 Aug 09, 2022 Jkt 256001 the maximum allowable value is inconsequential given the exceedance is far less than the 25% just noticeable difference. As discussed previously in its petition, NASI stated that NHTSA has recognized in the past that it is inherently difficult to manufacture all lamps to comply with all test points and that random failures do occur. FMVSS No. 108 requires lighting equipment to be designed to conform to relevant requirements as opposed to simply comply with relevant requirements. Occasional random noncompliances are to be expected.10 This is why there has never been an absolute requirement that every motor vehicle lighting device meets every single photometric test point to comply with FMVSS No. 108.11 Based on the data before it, NASI stated that it believes that the light intensity measured at test point 4.0D 20.0R for one of four samples tested is inconsequential to safety. b. NASI claimed that it is not aware of any field or customer complaints related to the low-beam performance of the subject front combination lamps, nor has it been made aware of any accidents or injuries that have occurred relating to the performance of these lamp assemblies. NASI concluded by reiterating 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. VI. Public Comment NHTSA received one comment from the public.12 The commenter stated a belief that NASI provided substantial evidence in support of its position, while also noting an inability to judge the merits of the petition. While the Agency appreciates the commenter’s view on this issue, NHTSA finds that the information submitted by NASI does not satisfy its burden of persuasion as discussed below. VII. NHTSA’s Analysis A. General Principles The burden of establishing the inconsequentiality of a failure to comply with a performance requirement in a 10 See Nissan Motor Corporation, U.S.A.; Denial of Application for Decision of Inconsequential Noncompliance; 62 FR 63416, November 28, 1997. 11 See Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices, and Associated Equipment; 83 FR 51766, October 12, 2018. 12 Docket No. NHTSA–2019–0124–0003. PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 standard—as opposed to a labeling requirement with no performance implications—is more substantial and difficult to meet. Accordingly, the Agency has not found many such noncompliances inconsequential.13 An important issue to consider in determining inconsequentiality is the safety risk to individuals who experience the type of event against which the recall would otherwise protect.14 The Safety Act is preventive, and manufacturers cannot and should not wait for deaths or injuries to occur in their vehicles before they carry out a recall. See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. Cir. 1977). Indeed, the very purpose of a recall is to protect individuals from risk. See id. In general, NHTSA 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.’’ 15 ‘‘[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.’’ 16 B. NHTSA’s Response to NASI’s Petition FMVSS No. 108 establishes the minimum level of performance for lighting and reflective equipment. The petitioner, not NHTSA, has the burden to demonstrate that a noncompliance with the FMVSS is inconsequential to safety. In the past, the Agency has only determined that a noncompliance with photometric requirements to be inconsequential to safety in very limited 13 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). 14 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). 15 Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016). 16 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’’). E:\FR\FM\10AUN1.SGM 10AUN1 khammond on DSKJM1Z7X2PROD with NOTICES Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 / Notices circumstances, such as when we have determined the brightness differential would not be noticeable to an observer. NHTSA’s analysis will consider each of the two noncompliances. The first noncompliance to be considered, 49 CFR 571.108, S8.1.11, concerns the reflex reflector. The purpose of the reflex reflectors, among other things, is to provide conspicuity to vehicles that are not in operation at night. There is a safety need to provide ample conspicuity to vehicles in order to reduce the risk of motor vehicle crashes. NASI claimed the real-world testing it conducted showed that noncompliant and compliant reflex reflectors are equally detectable in real-world conditions. NHTSA disagrees. In this case, NASI’s testing did not have human participants but instead a camera was used to check visibility of a reflex reflector. NHTSA reviewed the submitted study, and determined that there is a clear difference between the compliant and non-compliant reflex reflector. Further, NHTSA’s test data along with NASI’s in-house failed sample confirms the failures are comparable to each other. In addition, the position of the surrogate vehicle was for only one position and was directly in front of the stimulus vehicle. NASI claimed that a nonconformity at a given test point for a reflex reflector will generally have a minimal impact on detectability and therefore concluded that minor nonconformances at any one test point should be inconsequential with respect to safety risk. NHTSA disagrees, especially considering that 3 of the 5 required test points were not met. Even if light reflecting at a particular test point will be observed for only a short period of time, since there is a drop in performance over several observable angles, we believe that the detectability of this reflex reflector may be impacted when compared to a compliant reflex reflector. Therefore, we do not agree with NASI’s conclusion. We do not agree that the study referenced by NASI (DOT HS 808 209) adequately supports any conclusion that a 25% deviation from the photometric requirement for a reflex reflector is inconsequential. First, this study does not apply to reflex reflectors. Second, the performance requirements for reflex reflectors are measured in (cd/incident ft-c) or (mcd/lux), whereas the performance requirements for signal lighting assessed in the study are measured in candela (cd). Absent compelling evidence, which NASI has not supplied, the Agency does not believe there is any basis for applying the conclusions of a study limited to VerDate Sep<11>2014 17:26 Aug 09, 2022 Jkt 256001 one type of lighting equipment and criteria to another form of equipment evaluated by different criteria. NASI also cites two past petition grants predating DOT HS 808 209; one for Subaru 17 and one for General Motors,18 where NHTSA concurred with the proposition that a 25% deviation in reflector performance is imperceptible. Since evaluating Subaru’s petition almost thirty years ago, NHTSA’s line of reasoning on this subject has evolved. In the previous Subaru petition, NHTSA applied rationale related to tail lamps to reflex reflectors. Today, as explained previously in this section, NHTSA recognizes that the photometry criteria evaluated for reflex reflectors is measured in (cd/incident ft-c) or (mcd/ lux) whereas tail lamps are measured in candela (cd) and therefore it is not proper to apply the logic of the tail lamp analysis to reflex reflectors, despite the prior grant.19 Further, NHTSA does not find the decision issued in the General Motors petition as particularly applicable or persuasive. In that instance, General Motors determined that a noncompliance existed because the installation of an accessory front end cover available at its dealerships masked an existing compliant side marker to the extent that the vehicle with the cover installed did not meet Standard No. 108. Among other things, NHTSA’s notice granting GM’s petition observed that the Agency would not necessarily have considered the condition caused by the installation of the front-end cover as a noncompliance. The second noncompliance pertains to the lower beam not meeting the photometric requirements of FMVSS No. 108, S10.15.6. The purpose of the lower beam, among other things, is to provide down-road illumination while not causing glare to other road users. There is an obvious safety need to minimize glare in order to reduce the risk of motor vehicle crashes. 17 See Subaru of America; Grant of Petition for Determination of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991. 18 See General Motors Corporation; Grant of Petition for Determination of Inconsequential Noncompliance; 57 FR 45866, October 5, 1992. 19 NHTSA acknowledges that a petition for failure to meet reflex reflector (luminosity) was granted as recently as 2020; however, the facts of that petition are substantially different in that the actual measured noncompliance was marginal (one test point having a value .05% below the requirement) and the bulk of rationale was based on a theoretical worst case analysis. See Toyota Motor North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance; 85 FR 39679, July 1, 2020. PO 00000 Frm 00149 Fmt 4703 Sfmt 4703 48767 NHTSA does not concur with the conclusion NASI drew from an UMTRI study 20 that exceeding maximum intensities is inconsequential to safety because NHTSA has no glare-specific study indicating that the level of ‘‘glare’’ involved here is safe and NASI’s petition does not provide any other data establishing that the headlamp noncompliance here has no impact on safety. Furthermore, OVSC reviewed the compliance test data for the samples NHTSA tested and observed that all four samples showed the lower beam to consistently and significantly exceed the maximum photometric requirement at similar test points, prior to a 0.25degree re-aim allowed by S14.2.5.5 of FMVSS No. 108 for headlamp photometric measurement of all headlamps except a Type F upper beam unit not equipped with a vehicle headlamp aiming device (VHAD). The 0.25-degree re-aim procedure affords manufacturers flexibility in meeting the photometric requirements to allow for variations in readings between laboratories. Given this flexibility is already incorporated into the procedure, NHTSA does not agree that failure to meet the requirements after the re-aim is inconsequential to safety. With respect to the ‘‘design to conform’’ argument that NASI applied to both the lower beam and the reflex reflector, NASI claimed that ‘‘occasional random noncompliances are to be expected’’ and that the ‘‘designed to conform’’ provision contained in the lighting standard indicates that the Agency does not demand a higher standard of compliance beyond the manufacturer’s design intent. NASI cited commentary from NHTSA’s NPRM related to amending FMVSS No. 108 to permit the certification of adaptive driving beam (ADB) headlighting systems. However, NHTSA’s Final Rule on ADB noted that the ‘‘designed to conform’’ language was a product of the technology available back in 1967, and that NHTSA may not come to the same conclusion if it were to revisit the issue today, in light of the fact that lighting equipment design, technology, and manufacturing have evolved and advanced since the late 1960’s.21 Additionally, NHTSA also finds that, without consideration of the claim that items that must meet FMVSS No. 108 need only be designed to conform, that 20 See Just Noticeable Differences for Low-Beam Headlamp Intensities (Sayer, Flannagan, Sivak, Kojima, and Flannagan), Report No. UMTRI–97–4, February 1997. 21 Federal Motor Vehicle Safety Standards; Lamps, Reflective Devices, and Associated Equipment, Adaptive Driving Beam Headlamps, 87 FR 9916, 9940 n.92 February 22, 2022. E:\FR\FM\10AUN1.SGM 10AUN1 48768 Federal Register / Vol. 87, No. 153 / Wednesday, August 10, 2022 / Notices design intent is immaterial to the disposition of this petition. NASI’s Part 573 filing states that the side reflex reflector production molds were damaged, and the lower beam reflector mold was worn and both conditions caused product performance issues. Therefore, whatever NASI’s design intent may have been, the failure to conform in the instant case apparently stems from a systemic production problem that is wholly distinct from whether the components were ‘‘designed to conform.’’ NHTSA has consistently held that a lamp’s failure to meet performance requirements will not constitute a compliance failure when such failures are random and occasional.22 However, the test failures for two of the four lower beam functions that NHTSA tested, and four of the four side reflex reflectors that NHTSA tested occurred at around the same test points and photometric values. All of these failures were found to be within 1% to 10% of each other. These data support a pattern of performance that is neither random nor occasional. Based on the pattern of failure established with four samples tested, NHTSA finds that if more lamps were tested, more than an occasional number of failures would be obtained. VIII. NHTSA’s Decision In consideration of the foregoing, NHTSA has decided that NASI has not met its burden of persuasion that the subject FMVSS No. 108 noncompliance is inconsequential to motor vehicle safety. Accordingly, NASI’s petition is hereby denied and NASI is consequently obligated to provide notification of and free remedy for that noncompliance under 49 U.S.C. 30118 and 30120. (Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8) Anne L. Collins, Associate Administrator for Enforcement. [FR Doc. 2022–17130 Filed 8–9–22; 8:45 am] khammond on DSKJM1Z7X2PROD with NOTICES BILLING CODE 4910–59–P 22 See Nissan Motor Corporation, U.S.A.; Denial of Application for Decision of Inconsequential Noncompliance; 62 FR 63416, November 28, 1997. VerDate Sep<11>2014 17:26 Aug 09, 2022 Jkt 256001 DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Petition for Exemption from the Federal Motor Vehicle Theft Prevention Standard; Ford Motor Company National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Grant of petition for exemption. AGENCY: This document grants in full the Ford Motor Company (Ford) petition for exemption from the Federal Motor Vehicle Theft Prevention Standard (theft prevention standard) for its Bronco vehicle line beginning in model year (MY) 2023. The petition is granted because the agency has determined that the antitheft device to be placed on the line as standard equipment is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of the theft prevention standard. Ford also requested confidential treatment for specific information in its petition. Therefore, no confidential information provided for purposes of this notice has been disclosed. DATES: The exemption granted by this notice is effective beginning with the 2023 model year. FOR FURTHER INFORMATION CONTACT: Carlita Ballard, Office of International Policy, Fuel Economy, and Consumer Programs, NHTSA, West Building, W43–439, NRM–310, 1200 New Jersey Avenue SE, Washington, DC 20590. Ms. Ballard’s phone number is (202) 366– 5222. Her fax number is (202) 493–2990. SUPPLEMENTARY INFORMATION: Under 49 U.S.C. chapter 331, the Secretary of Transportation (and the National Highway Traffic Safety Administration (NHTSA) by delegation) is required to promulgate a theft prevention standard to provide for the identification of certain motor vehicles and their major replacement parts to impede motor vehicle theft. NHTSA promulgated regulations at 49 CFR part 541 (theft prevention standard) to require partsmarking for specified passenger motor vehicles and light trucks. Pursuant to 49 U.S.C. 33106, manufacturers that are subject to the parts-marking requirements may petition the Secretary of Transportation for an exemption for a line of passenger motor vehicles equipped with an antitheft device as standard equipment that the Secretary decides is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the partsmarking requirements. In accordance SUMMARY: PO 00000 Frm 00150 Fmt 4703 Sfmt 4703 with this statute, NHTSA promulgated 49 CFR part 543, which establishes the process through which manufacturers may seek an exemption from the theft prevention standard. 49 CFR 543.5 provides general submission requirements for petitions and states that each manufacturer may petition NHTSA for an exemption of one vehicle line per model year. Among other requirements, manufacturers must identify whether the exemption is sought under section 543.6 or section 543.7. Under section 543.6, a manufacturer may request an exemption by providing specific information about the antitheft device, its capabilities, and the reasons the petitioner believes the device to be as effective at reducing and deterring theft as compliance with the parts-marking requirements. Section 543.7 permits a manufacturer to request an exemption under a more streamlined process if the vehicle line is equipped with an antitheft device (an ‘‘immobilizer’’) as standard equipment that complies with one of the standards specified in that section.1 Section 543.8 establishes requirements for processing petitions for exemption from the theft prevention standard. As stated in section 543.8(a), NHTSA processes any complete exemption petition. If NHTSA receives an incomplete petition, NHTSA will notify the petitioner of the deficiencies. Once NHTSA receives a complete petition the agency will process it and, in accordance with section 543.8(b), will grant the petition if it determines that, based upon substantial evidence, the standard equipment antitheft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts-marking requirements of part 541. Section 543.8(c) requires NHTSA to issue its decision either to grant or to deny an exemption petition not later than 120 days after the date on which 1 49 CFR 543.7 specifies that the manufacturer must include a statement that their entire vehicle line is equipped with an immobilizer that meets one of the following standards: (1) The performance criteria (subsection 8 through 21) of C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011), as excerpted in appendix A of [part 543]; (2) National Standard of Canada CAN/ULC– S338–98, Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May 1998); (3) United Nations Economic Commission for Europe (UN/ECE) Regulation No. 97 (ECE R97), Uniform Provisions Concerning Approval of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to Their Alarm System (AS) in effect August 8, 2007; or (4) UN/ECE Regulation No. 116 (ECE R116), Uniform Technical Prescriptions Concerning the Protection of Motor Vehicles Against Unauthorized Use in effect on February 10, 2009. E:\FR\FM\10AUN1.SGM 10AUN1

Agencies

[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48764-48768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17130]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0124; Notice 2]


North America Subaru, Inc., Denial of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: North America Subaru, Inc., (NASI) on behalf of Subaru 
Corporation and Subaru of America, Inc. (Subaru) has determined that 
certain model year (MY) 2016-2020 Subaru Impreza motor vehicles do not 
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 
108, Lamps, Reflective Devices, and Associated Equipment. Subaru filed 
a noncompliance report dated October 10, 2019. NASI, on behalf of 
Subaru, petitioned NHTSA on October 23, 2019, for a decision that the 
subject noncompliance is inconsequential as it relates to motor vehicle 
safety. This document announces and explains the denial of NASI's 
petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), (202) 366-5304, [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    NASI has determined that certain MY 2016-2020 Subaru Impreza motor 
vehicles do not fully comply with S8.1.11 and S10.15.6 of FMVSS No. 
108, Lamps, Reflective Devices, and Associated Equipment (49 CFR 
571.108). Subaru filed a noncompliance report dated October 10, 2019, 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports. NASI petitioned NHTSA on October 23, 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 NASI's petition was published with a 30-day 
public comment period, in the Federal Register (85 FR 39037, June 29, 
2020). One comment was 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-2019-0124.''

II. Vehicles Involved

    Approximately 63,697 MY 2016-2020 Subaru Impreza 4 door and 
approximately 124,703 Subaru Impreza Station wagon vehicles, totaling 
188,400 motor vehicles manufactured between September 23, 2016, and 
August 7, 2019, are potentially involved.

III. Noncompliance

    NASI explains that there are two separate noncompliances associated 
with the subject vehicles' front combination lamps. First, the front 
combination lamps contain lower beam headlamps that do not meet the 
requirements of paragraph S10.15.6, and second, the front combination 
lamps contain reflex reflectors that do not meet the requirements of 
paragraph S8.1.11 of FMVSS No. 108. Specifically, when tested, the 
lower beam in two of four front combination lamps (samples: LH1 and 
LH4) and the reflex reflector in four of four front combination lamps 
(samples LH1, LH2, LH3 and LH4) failed to comply at certain test 
points.

IV. Rule Requirements

    S8.1.11 and S10.15.6 of FMVSS No. 108 include the requirements 
relevant to this petition. 49 CFR 571.108, S8.1.11 requires each reflex 
reflector be designed to conform to the photometry requirements of 
Table XVI-a when

[[Page 48765]]

tested according to the procedure of S14.2.3. 49 CFR 571.08, S10.15.6 
requires each replaceable bulb headlamp be designed to conform to the 
photometry requirements of Table XIX for lower beam as specified in 
Table II-d for the specific headlamp unit and aiming method, when 
tested according to the procedure of S14.2.5 using any replaceable 
light source designated for use in the system under test.

V. Summary of NASI's Petition

    The following views and arguments presented in this section, ``V. 
Summary of NASI's Petition,'' are the views and arguments provided by 
NASI and do not reflect the views of the Agency.
    NASI described the subject noncompliance and contended that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    1. NASI submitted that the nonconformance relating to side reflex 
reflector photometry is inconsequential as it relates to motor vehicle 
safety for the following reasons:
    a. Real-world testing conducted by NASI showed that noncompliant 
and compliant reflex reflectors are equally detectable in real-world 
conditions. NASI included an overview of cognitive performance testing 
of the compliant and noncompliant reflex reflectors with its petition 
which can be found in full on the FDMS website.\1\ The cognitive 
performance test set-up simulated a condition typical of a vehicle 
approaching an unlit, perpendicular vehicle stalled in the driving 
lane. This test condition simulates a real-world condition where side 
reflex reflectors would support improved visibility of that vehicle. 
The test results show that, with respect to light reflectance and their 
ability to be detected, there is no noticeable difference observable 
between the fully compliant reflex reflector and the reflex reflector 
that marginally fails to comply at select test points.
---------------------------------------------------------------------------

    \1\ https://www.regulations.gov/document/NHTSA-2019-0124-0001.
---------------------------------------------------------------------------

    b. At a majority of the test points where the tested reflex 
reflectors were found to have measured intensities below the required 
minimum values, the measured values were generally only slightly less 
than the required minimum. For two of the four lamp assemblies tested, 
there was one point (point HV) where measured values slightly exceeded 
the 25% threshold cited by NHTSA and others in the past as being the 
threshold at which the difference between two lamp intensities of less 
than 25% cannot be detected reliably by most drivers.\2\ The two 
measured values were below the required minimums by 26.9% (sample LH1) 
and 27.7% (sample LH4). NASI noted that, on average, for the four 
samples tested by Calcoast, the HV test point was only 24.8% below the 
required minimum. We also note, as mentioned above, that the cognitive 
performance testing conducted by NASI found there to be no noticeable 
differences in detectability for the compliant and noncompliant reflex 
reflectors in question.
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    \2\ See DOT report, Driver Perception of Just Noticeable 
Differences of Automotive Signal Lamp Intensities, DOT HS 808 209, 
September 1994. https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB95206306.xhtml.
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    c. For a dynamic situation, light reflecting at a particular test 
point will be observed for only a short period of time. Compared to a 
light source that is constantly illuminated, the intensity originating 
from a reflex reflector is more fleeting to an observer. Reflex 
reflector intensity varies significantly depending on the angle of the 
driver's eyes to the reflector's central axis. Larger angles mean less 
light will be seen from the reflex reflector. Smaller angles mean more 
light will be seen from the reflex reflector. As a result, a 
nonconformity at a given test point for a reflex reflector will 
generally have a minimal impact on detectability. Thus, minor 
nonconformances at any one test point should be inconsequential with 
respect to safety risk.
    d. NASI contended that it has been recognized by NHTSA in the past 
that it is inherently difficult to manufacture all lamps \3\ to comply 
with all test points and that random failures do occur. FMVSS No. 108 
requires lighting equipment be designed to conform to relevant 
requirements as opposed to simply comply with relevant requirements. 
NASI stated that according to NHTSA,\4\ occasional random 
noncompliances are to be expected in this very complicated design and 
manufacturing process and it is for this reason that the ``designed to 
comply'' \5\ provision is contained in the lighting standard. See 
commentary from the NPRM \6\ in which NHTSA proposed to amend FMVSS No. 
108 to permit the certification of adaptive driving beam headlighting 
systems. In that notice, the Agency noted that, historically, there has 
never been an absolute requirement that every motor vehicle lighting 
device meets every single photometric test point to comply with FMVSS 
No. 108.
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    \3\ Reflex reflectors are considered reflective devices and not 
lamps. FMVSS No. 108 defines reflex reflectors as ``devices used on 
vehicles to give an indication to approaching drivers using 
reflected light from the lamps of the approaching vehicle.''
    \4\ See Nissan Motor Corporation, U.S.A.; Denial of Application 
for Decision of Inconsequential Noncompliance; 62 FR 63416, November 
28, 1997.
    \5\ Specific to reflex reflectors and the lower beam, the 
regulatory text uses the phrase ``designed to conform.'' This phrase 
will be used throughout the analysis section for clarity.
    \6\ See Federal Motor Vehicle Safety Standards; Lamps, 
Reflective Devices, and Associated Equipment; 83 FR 51766, October 
12, 2018.
---------------------------------------------------------------------------

    e. NASI stated that NHTSA has previously granted Subaru \7\ and 
General Motors \8\ petitions for inconsequentiality involving side 
reflex reflectors which were determined to be nonconforming at select 
test points by varying degrees.
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    \7\ See Subaru of America; Grant of Petition for Determination 
of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991.
    \8\ See General Motors Corporation; Grant of Petition for 
Determination of Inconsequential Noncompliance; 57 FR 45866, October 
5, 1992.
---------------------------------------------------------------------------

    f. NASI claimed that it is not aware of any field or customer 
complaints related to the performance of the side reflex reflectors 
contained the subject front combination lamps, nor has it been made 
aware of any accidents or injuries that have occurred relating to the 
performance of these lamp assemblies.
    2. NASI submitted that the nonconforming condition relating to 
lower beam photometry is inconsequential as it relates to motor vehicle 
safety for the following reasons:
    a. In compliance testing conducted by CALCOAST-ITL on behalf of 
NHTSA,\9\ two of four front combination lamps tested (samples LH1 and 
LH4) failed to comply with certain low beam photometry requirements in 
S10.15.6.
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    \9\ See NHTSA Report No. 108-CAN-19-002. https://static.nhtsa.gov/odi/ctr/9999/TRTR-646051-2019-001.pdf.
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    i. Sample LH1:
     Front combination lamp sample LH1 photometry was measured 
at twenty-four test points. At two of the twenty-four test points, 
sample LH1 exceeded the maximum allowable luminous intensity values by 
small amounts (11.4% and 4.7%). At one of the twenty-four test points, 
sample LH1 was below the minimum acceptable luminous intensity value by 
13.0%.
     At 21 of 24 test points, sample LH1 complied with the 
specified luminous intensity values listed in Table XIX-a (LB2V).
    ii. Sample LH4
     Front combination lamp sample LH4 photometry was measured 
at 24 test points. At two of the twenty-four test points, the sample 
LH4 exceeded the maximum allowable luminous intensity values by small 
amounts (16.8% and 19.4%).

[[Page 48766]]

     At 22 of 24 test points, sample LH4 complied with the 
specified luminous intensity values listed in Table XIX-a (LB2V).
    iii. For both samples LH1 and LH4, test points at which the maximum 
allowable luminous intensity values were exceeded at test points 1.0 
degree and 0.5 degrees up from the horizontal, respectively. These test 
points, which were taken in the range of 1.5 degrees to 9.9 degrees 
left of center, are in place to ensure that glare is minimized to 
oncoming drivers. In the UMTRI report entitled ``Just Noticeable 
Differences for Low-Beam Headlamp Intensities'' (UMTRl-97-4), testing 
was conducted to evaluate ``just noticeable differences'' or JNDs for 
glare intensities of oncoming low-beam headlamps. Specifically, UMTRI 
looked at whether the 25% rule established by NHTSA for signal lamps 
would be applicable for the range of intensities relevant to low-beam 
headlamps. Based on the testing conducted by UMTRI using low-beam 
headlamps, UMTRI concluded that applying the 25% limit for 
inconsequential noncompliance to a photometric test point that 
specifies a maximum for glare protection would be appropriate. Given 
the UMTRI conclusion, it believes that the small exceedances in maximum 
intensities for these two test points are inconsequential to safety.
    iv. For sample LH1, test point 4.0D 20.0R was the third point which 
was noncompliant per the measurements taken. This test point measures 
light intensity down and to the right (4 degrees below the horizontal 
and 20 degrees to the right of center). The minimum intensity value 
ensures adequate light down and far right (e.g., sidewalk to the right 
of the vehicle). Sample LH1's measured light intensity was 13% less 
than the required value.
    Of the four samples tested by Calcoast, only one sample was 
noncompliant at this test point. This degree of nonconformity was 
minimal (13% below the required value). When the other three samples 
were tested, the measured intensities at this test point complied with 
margins of 47.2%, 27.8% and 2.8%.
    For sample LH1, a point within the Zone 10U-90U/90L-90R at 10.00U-
7.3R exceeded the maximum permissible intensity threshold by 8.7%. The 
maximum allowable intensity of 125 candelas in this zone was 
established to reduce the amount of glare to the driver of the car with 
the subject headlamp in driving conditions involving poor weather 
(rain, fog, snow, etc.). The consequence of one of four samples having 
a measurement of 8.7% above the maximum allowable value is 
inconsequential given the exceedance is far less than the 25% just 
noticeable difference.
    As discussed previously in its petition, NASI stated that NHTSA has 
recognized in the past that it is inherently difficult to manufacture 
all lamps to comply with all test points and that random failures do 
occur. FMVSS No. 108 requires lighting equipment to be designed to 
conform to relevant requirements as opposed to simply comply with 
relevant requirements. Occasional random noncompliances are to be 
expected.\10\ This is why there has never been an absolute requirement 
that every motor vehicle lighting device meets every single photometric 
test point to comply with FMVSS No. 108.\11\
---------------------------------------------------------------------------

    \10\ See Nissan Motor Corporation, U.S.A.; Denial of Application 
for Decision of Inconsequential Noncompliance; 62 FR 63416, November 
28, 1997.
    \11\ See Federal Motor Vehicle Safety Standards; Lamps, 
Reflective Devices, and Associated Equipment; 83 FR 51766, October 
12, 2018.
---------------------------------------------------------------------------

    Based on the data before it, NASI stated that it believes that the 
light intensity measured at test point 4.0D 20.0R for one of four 
samples tested is inconsequential to safety.
    b. NASI claimed that it is not aware of any field or customer 
complaints related to the low-beam performance of the subject front 
combination lamps, nor has it been made aware of any accidents or 
injuries that have occurred relating to the performance of these lamp 
assemblies.
    NASI concluded by reiterating 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.

VI. Public Comment

    NHTSA received one comment from the public.\12\ The commenter 
stated a belief that NASI provided substantial evidence in support of 
its position, while also noting an inability to judge the merits of the 
petition. While the Agency appreciates the commenter's view on this 
issue, NHTSA finds that the information submitted by NASI does not 
satisfy its burden of persuasion as discussed below.
---------------------------------------------------------------------------

    \12\ Docket No. NHTSA-2019-0124-0003.
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VII. NHTSA's Analysis

A. General Principles

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--as opposed to a 
labeling requirement with no performance implications--is more 
substantial and difficult to meet. Accordingly, the Agency has not 
found many such noncompliances inconsequential.\13\
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    \13\ 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 is 
the safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\14\ The Safety Act is 
preventive, and manufacturers cannot and should not wait for deaths or 
injuries to occur in their vehicles before they carry out a recall. 
See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. 
Cir. 1977). Indeed, the very purpose of a recall is to protect 
individuals from risk. See id. In general, NHTSA 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.'' \15\ 
``[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.'' \16\
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    \14\ 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).
    \15\ Morgan 3 Wheeler Limited; Denial of Petition for Decision 
of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 
2016).
    \16\ 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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B. NHTSA's Response to NASI's Petition

    FMVSS No. 108 establishes the minimum level of performance for 
lighting and reflective equipment. The petitioner, not NHTSA, has the 
burden to demonstrate that a noncompliance with the FMVSS is 
inconsequential to safety. In the past, the Agency has only determined 
that a noncompliance with photometric requirements to be 
inconsequential to safety in very limited

[[Page 48767]]

circumstances, such as when we have determined the brightness 
differential would not be noticeable to an observer.
    NHTSA's analysis will consider each of the two noncompliances.
    The first noncompliance to be considered, 49 CFR 571.108, S8.1.11, 
concerns the reflex reflector. The purpose of the reflex reflectors, 
among other things, is to provide conspicuity to vehicles that are not 
in operation at night. There is a safety need to provide ample 
conspicuity to vehicles in order to reduce the risk of motor vehicle 
crashes.
    NASI claimed the real-world testing it conducted showed that 
noncompliant and compliant reflex reflectors are equally detectable in 
real-world conditions. NHTSA disagrees. In this case, NASI's testing 
did not have human participants but instead a camera was used to check 
visibility of a reflex reflector. NHTSA reviewed the submitted study, 
and determined that there is a clear difference between the compliant 
and non-compliant reflex reflector. Further, NHTSA's test data along 
with NASI's in-house failed sample confirms the failures are comparable 
to each other. In addition, the position of the surrogate vehicle was 
for only one position and was directly in front of the stimulus 
vehicle.
    NASI claimed that a nonconformity at a given test point for a 
reflex reflector will generally have a minimal impact on detectability 
and therefore concluded that minor nonconformances at any one test 
point should be inconsequential with respect to safety risk. NHTSA 
disagrees, especially considering that 3 of the 5 required test points 
were not met. Even if light reflecting at a particular test point will 
be observed for only a short period of time, since there is a drop in 
performance over several observable angles, we believe that the 
detectability of this reflex reflector may be impacted when compared to 
a compliant reflex reflector. Therefore, we do not agree with NASI's 
conclusion.
    We do not agree that the study referenced by NASI (DOT HS 808 209) 
adequately supports any conclusion that a 25% deviation from the 
photometric requirement for a reflex reflector is inconsequential. 
First, this study does not apply to reflex reflectors. Second, the 
performance requirements for reflex reflectors are measured in (cd/
incident ft-c) or (mcd/lux), whereas the performance requirements for 
signal lighting assessed in the study are measured in candela (cd). 
Absent compelling evidence, which NASI has not supplied, the Agency 
does not believe there is any basis for applying the conclusions of a 
study limited to one type of lighting equipment and criteria to another 
form of equipment evaluated by different criteria.
    NASI also cites two past petition grants predating DOT HS 808 209; 
one for Subaru \17\ and one for General Motors,\18\ where NHTSA 
concurred with the proposition that a 25% deviation in reflector 
performance is imperceptible. Since evaluating Subaru's petition almost 
thirty years ago, NHTSA's line of reasoning on this subject has 
evolved. In the previous Subaru petition, NHTSA applied rationale 
related to tail lamps to reflex reflectors. Today, as explained 
previously in this section, NHTSA recognizes that the photometry 
criteria evaluated for reflex reflectors is measured in (cd/incident 
ft-c) or (mcd/lux) whereas tail lamps are measured in candela (cd) and 
therefore it is not proper to apply the logic of the tail lamp analysis 
to reflex reflectors, despite the prior grant.\19\
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    \17\ See Subaru of America; Grant of Petition for Determination 
of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991.
    \18\ See General Motors Corporation; Grant of Petition for 
Determination of Inconsequential Noncompliance; 57 FR 45866, October 
5, 1992.
    \19\ NHTSA acknowledges that a petition for failure to meet 
reflex reflector (luminosity) was granted as recently as 2020; 
however, the facts of that petition are substantially different in 
that the actual measured noncompliance was marginal (one test point 
having a value .05% below the requirement) and the bulk of rationale 
was based on a theoretical worst case analysis. See Toyota Motor 
North America, Inc., Grant of Petition for Decision of 
Inconsequential Noncompliance; 85 FR 39679, July 1, 2020.
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    Further, NHTSA does not find the decision issued in the General 
Motors petition as particularly applicable or persuasive. In that 
instance, General Motors determined that a noncompliance existed 
because the installation of an accessory front end cover available at 
its dealerships masked an existing compliant side marker to the extent 
that the vehicle with the cover installed did not meet Standard No. 
108. Among other things, NHTSA's notice granting GM's petition observed 
that the Agency would not necessarily have considered the condition 
caused by the installation of the front-end cover as a non-compliance.
    The second noncompliance pertains to the lower beam not meeting the 
photometric requirements of FMVSS No. 108, S10.15.6. The purpose of the 
lower beam, among other things, is to provide down-road illumination 
while not causing glare to other road users. There is an obvious safety 
need to minimize glare in order to reduce the risk of motor vehicle 
crashes.
    NHTSA does not concur with the conclusion NASI drew from an UMTRI 
study \20\ that exceeding maximum intensities is inconsequential to 
safety because NHTSA has no glare-specific study indicating that the 
level of ``glare'' involved here is safe and NASI's petition does not 
provide any other data establishing that the headlamp noncompliance 
here has no impact on safety. Furthermore, OVSC reviewed the compliance 
test data for the samples NHTSA tested and observed that all four 
samples showed the lower beam to consistently and significantly exceed 
the maximum photometric requirement at similar test points, prior to a 
0.25-degree re-aim allowed by S14.2.5.5 of FMVSS No. 108 for headlamp 
photometric measurement of all headlamps except a Type F upper beam 
unit not equipped with a vehicle headlamp aiming device (VHAD). The 
0.25-degree re-aim procedure affords manufacturers flexibility in 
meeting the photometric requirements to allow for variations in 
readings between laboratories. Given this flexibility is already 
incorporated into the procedure, NHTSA does not agree that failure to 
meet the requirements after the re-aim is inconsequential to safety.
---------------------------------------------------------------------------

    \20\ See Just Noticeable Differences for Low-Beam Headlamp 
Intensities (Sayer, Flannagan, Sivak, Kojima, and Flannagan), Report 
No. UMTRI-97-4, February 1997.
---------------------------------------------------------------------------

    With respect to the ``design to conform'' argument that NASI 
applied to both the lower beam and the reflex reflector, NASI claimed 
that ``occasional random noncompliances are to be expected'' and that 
the ``designed to conform'' provision contained in the lighting 
standard indicates that the Agency does not demand a higher standard of 
compliance beyond the manufacturer's design intent. NASI cited 
commentary from NHTSA's NPRM related to amending FMVSS No. 108 to 
permit the certification of adaptive driving beam (ADB) headlighting 
systems. However, NHTSA's Final Rule on ADB noted that the ``designed 
to conform'' language was a product of the technology available back in 
1967, and that NHTSA may not come to the same conclusion if it were to 
revisit the issue today, in light of the fact that lighting equipment 
design, technology, and manufacturing have evolved and advanced since 
the late 1960's.\21\
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    \21\ Federal Motor Vehicle Safety Standards; Lamps, Reflective 
Devices, and Associated Equipment, Adaptive Driving Beam Headlamps, 
87 FR 9916, 9940 n.92 February 22, 2022.
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    Additionally, NHTSA also finds that, without consideration of the 
claim that items that must meet FMVSS No. 108 need only be designed to 
conform, that

[[Page 48768]]

design intent is immaterial to the disposition of this petition. NASI's 
Part 573 filing states that the side reflex reflector production molds 
were damaged, and the lower beam reflector mold was worn and both 
conditions caused product performance issues. Therefore, whatever 
NASI's design intent may have been, the failure to conform in the 
instant case apparently stems from a systemic production problem that 
is wholly distinct from whether the components were ``designed to 
conform.''
    NHTSA has consistently held that a lamp's failure to meet 
performance requirements will not constitute a compliance failure when 
such failures are random and occasional.\22\ However, the test failures 
for two of the four lower beam functions that NHTSA tested, and four of 
the four side reflex reflectors that NHTSA tested occurred at around 
the same test points and photometric values. All of these failures were 
found to be within 1% to 10% of each other. These data support a 
pattern of performance that is neither random nor occasional. Based on 
the pattern of failure established with four samples tested, NHTSA 
finds that if more lamps were tested, more than an occasional number of 
failures would be obtained.
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    \22\ See Nissan Motor Corporation, U.S.A.; Denial of Application 
for Decision of Inconsequential Noncompliance; 62 FR 63416, November 
28, 1997.
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VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that NASI has 
not met its burden of persuasion that the subject FMVSS No. 108 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
NASI's petition is hereby denied and NASI is consequently obligated to 
provide notification of and free remedy for that noncompliance under 49 
U.S.C. 30118 and 30120.

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

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-17130 Filed 8-9-22; 8:45 am]
BILLING CODE 4910-59-P
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