Mercedes-Benz USA, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, 74209-74212 [2022-26270]
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Federal Register / Vol. 87, No. 231 / Friday, December 2, 2022 / Notices
(granting petition where week and year
were mislabeled on tires).
Cooper Tire concludes that the subject
noncompliance is inconsequential as it
relates to motor vehicle safety and that
its petition requesting exemption from
providing notification of the
noncompliance, as required by 49
U.S.C. 30118, as well as a remedy for
the noncompliance, as required by 49
U.S.C. 30120, should be granted.
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VI. NHTSA’s Analysis
The burden of establishing the
inconsequentiality of a failure to comply
with a performance requirement in an
FMVSS—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.1
In determining inconsequentiality of a
noncompliance, NHTSA focuses on the
safety risk to individuals who
experience the type of event against
which a recall would otherwise
protect.2 In general, NHTSA does not
consider the absence of complaints or
injuries when determining if a
noncompliance is inconsequential to
safety. The absence of complaints does
not mean vehicle occupants have not
experienced a safety issue, nor does it
mean that there will not be safety issues
in the future.3
NHTSA has evaluated and analyzed
the merits of the inconsequential
noncompliance petition submitted by
Cooper Tire and agrees that, based on
the information presented, is granting
Cooper’s request for relief from
notification and remedy based on the
following:
1 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).
2 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).
3 See Morgan 3 Wheeler Limited; Denial of
Petition for Decision of Inconsequential
Noncompliance, 81 FR 21663, 21666 (Apr. 12,
2016); see also United States v. Gen. Motors Corp.,
565 F.2d 754, 759 (D.C. Cir. 1977) (finding defect
poses an unreasonable risk when it ‘‘results in
hazards as potentially dangerous as sudden engine
fire, and where there is no dispute that at least some
such hazards, in this case fires, can definitely be
expected to occur in the future’’).
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74209
• Operational Safety & Performance:
NHTSA reviewed the data Cooper
provided and noted the subject tires
comply with FMVSS No. 139 test
criteria.
• Traceability & Identification:
NHTSA agrees that in this case, the
upside down and backwards date code
in the TIN does not appear to affect the
ability of the manufacturer or consumer
to register or identify the affected tires
in the event of a recall. After reviewing
a sample,4 the Agency agrees that the
date code is legible because this portion
of the TIN is visually separated from the
rest of the TIN and the font style is such
that the characters are obvious even
when rotated 180 degrees from nominal.
The obvious error allows for an accurate
reading of the full TIN if/when
registering and/or recalling the tires in
the future.
(Authority: 49 U.S.C. 30118, 30120:
delegations of authority at 49 CFR 1.95 and
501.8)
VII. NHTSA’s Decision
SUMMARY:
In consideration of the foregoing,
NHTSA finds that Cooper Tire has met
its burden of persuasion that the subject
FMVSS No. 139 noncompliance in the
affected tires is inconsequential to
motor vehicle safety. Accordingly,
Cooper Tire’s petition is hereby granted,
and Cooper Tire is consequently
exempted from the obligation of
providing notification of, and a free
remedy for, that noncompliance 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, this
decision only applies to the subject tires
that Cooper Tire no longer controlled at
the time it determined that the
noncompliance existed. However, the
grant of this petition does not relieve
equipment distributors and dealers of
the prohibitions on the sale, offer for
sale, or introduction or delivery for
introduction into interstate commerce of
the noncompliant tires under their
control after Cooper Tire notified them
that the subject noncompliance existed.
4 A photo of the subject noncompliance can be
found in Cooper Tire’s petition at https://
www.regulations.gov/document/NHTSA-2021-00470001.
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Otto G. Matheke III,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2022–26271 Filed 12–1–22; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2020–0021; Notice 2]
Mercedes-Benz USA, LLC, Grant of
Petition for Decision of
Inconsequential Noncompliance
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Grant of petition.
AGENCY:
Mercedes-Benz AG (MBAG)
and Mercedes-Benz USA, LLC (MBUSA)
(collectively, ‘‘Mercedes-Benz’’) have
determined that certain model year
(MY) 2019 Mercedes-Benz A-Class
motor vehicles do not fully comply with
Federal Motor Vehicle Safety Standard
(FMVSS) No. 104, Windshield Wiping
and Washing Systems. Mercedes-Benz
filed a noncompliance report dated
February 24, 2020. Mercedes-Benz
subsequently petitioned NHTSA on
March 12, 2020, and later provided
supplemental material on July 9, 2020,
for a decision that the subject
noncompliance is inconsequential as it
relates to motor vehicle safety. This
notice announces the grant of MercedesBenz’s petition.
FOR FURTHER INFORMATION CONTACT: Neil
Dold, Office of Vehicle Safety
Compliance, the National Highway
Traffic Safety Administration (NHTSA),
telephone (202) 366–7352, facsimile
(202) 366–3081.
SUPPLEMENTARY INFORMATION:
I. Overview
Mercedes-Benz has determined that
certain MY 2019 Mercedes-Benz A-Class
motor vehicles do not fully comply with
the requirements of paragraph S4.1.2 of
FMVSS No. 104, Windshield Wiping
and Washing Systems (49 CFR 571.104).
Mercedes-Benz filed a noncompliance
report dated February 24, 2020,
pursuant to 49 CFR part 573, Defect and
noncompliance responsibility and
reports. Mercedes-Benz subsequently
petitioned NHTSA on March 12, 2020,
and later provided supplemental
material on July 9, 2020, for an
exemption from the notification and
remedy requirements of 49 U.S.C.
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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 Mercedes Benz’s
petition was published with a 30-day
public comment period, on June 12,
2020, in the Federal Register (85 FR
35990). 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–2020–
0021.’’
II. Vehicles Involved
Approximately 4,145 MY 2019
Mercedes-Benz A220 and A220 4MATIC
motor vehicles manufactured between
August 3, 2018, and November 26, 2019,
are potentially involved.
III. Noncompliance
Mercedes-Benz explains that the
noncompliance is that the windshield
wiping systems in the subject vehicles
do not wipe the percentage of the
windshield as required by paragraph
S4.1.2 of FMVSS No. 104. Specifically,
because of variations in the
manufacturing process, the windshield
wiping system may not meet the
manufacturer’s design specifications
and thus may only wipe 93.8% of Area
B of the windshield instead of the 94%
minimum required.
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IV. Rule Requirements
Paragraph S4.1.2 of FMVSS No. 104
includes the requirements relevant to
this petition. When tested wet in
accordance with SAE Recommended
Practice J903a (1966), each passenger
car windshield wiping system shall
wipe the percentage of designated Areas
A, B, and C of the windshield
(established in accordance with
S4.1.2.1) that (1) is specified in column
2 of the applicable table following
subparagraph S4.1.2.1 and (2) is within
the area bounded by a perimeter line on
the glazing surface 25 millimeters from
the edge of the ‘‘daylight opening.’’
V. Summary of Mercedes-Benz’s
Petition
The following views and arguments
presented in this section, ‘‘V. Summary
of Mercedes-Benz’s Petition,’’ are the
views and arguments provided by
Mercedes-Benz and do not reflect the
views of the Agency. Mercedes-Benz
described the subject noncompliance
and contended that the noncompliance
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is inconsequential as it relates to motor
vehicle safety.
In support of its petition, MercedesBenz submitted the following:
1. Mercedes-Benz cited the definition
of ‘‘motor vehicle safety’’ as cited in the
National Traffic and Motor Vehicle
Safety Act of 1966 and their belief is
that this matter is appropriate for a
decision that the noncompliance is
inconsequential to motor vehicle safety
as it does not present any increased risk
to vehicle occupants.
2. They state that, in the subject
vehicles, the portion of the windshield
that falls just below the minimum
wiped area is located at the outer edge
of the windshield. In the worst-case
scenario, only 93.8%, instead of the
minimum 94%, of the Area B portion of
the windshield remains wiped (note: the
petition erroneously stated ‘‘unwiped’’
rather than ‘‘wiped’’). In the original
petition, Mercedes-Benz stated that the
affected portion of Area B is located at
the outer edge of the passenger’s side of
the windshield; however, in a
subsequent communication with
NHTSA, they clarified that the affected
portion of Area B is located at the outer
edge of the driver’s side of the
windshield rather than the passenger’s
side.
3. Mercedes-Benz asserts that NHTSA
has previously considered the
performance of windshield wiper
systems in the context of interpreting
the meaning of the term ‘‘daylight
opening’’ in FMVSS No. 104. MercedesBenz says that in 2003, in response to
a request from a manufacturer, NHTSA
interpreted that opaque coatings located
around the edge of the windshield
would not be considered part of the
daylight opening for purposes of
calculating the starting point of the
wiped area. See Letter to Reed, May 6,
2003. This interpretation was an
apparent change in approach for several
manufacturers. In a request for
reconsideration, the industry reported
that many vehicles would not meet the
minimum wiped portion of Area B
based on the Agency’s new
interpretation. In supporting comments,
two manufacturers reported that there
were multiple vehicle models that
would not meet the 94% minimum
requirement for Area B. For one of the
manufacturers, all of its vehicles were
no more than 93.2% of the Area B
minimum, while the other manufacturer
did not provide specific information on
how far its system deviated from the
Area B minimum. After considering the
substantial resources necessary to
redesign the wiper systems outside of
the normal vehicle refresh schedule, the
Agency delayed the date on which it
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would begin enforcement of FMVSS No.
104 based on its updated interpretation.
See Letter to Strassburger, January 7,
2005.
4. Thus, while the Agency was alerted
to the fact that certain vehicles would
not be able to comply with the
minimum wiped area requirements of
FMVSS No. 104, the Agency delayed
implementing enforcement of the new
interpretation for several years. While
the delay was based, in part on the
additional complexities needed to
update the vehicle, fundamentally, the
small deviation in the minimum wiped
area requirement appears to not have
been considered one that adversely
impacted driver visibility or increased
the safety risk to vehicle occupants. In
that case, the deviation from the
minimum wiped portion of Area B was
more than what exists in the subject
vehicles. While it is unclear from the
interpretation letters what portion of
Area B did not meet the minimum
wiped requirements, in the subject
vehicles, only a narrow strip of a
portion of the outer edge of the driver’s
side of the windshield is affected by the
deviation. Due to the location and small
size of the unwiped area, the deviation
would not affect the visibility of the
driver or their ability to safely operate
the vehicle and would not lead to an
overall increased safety risk to the
vehicle occupants.
5. Mercedes-Benz stated that the
windshield wiper systems installed in
the subject vehicles otherwise meet or
exceed the remaining requirements in
FMVSS No. 104 for the wiped portion
of Areas A and C, for wiper frequency,
and the windshield washing system.
Mercedes-Benz has not received any
reports related to a lack of visibility due
to the performance of the windshield
wiping system at issue here.
Mercedes-Benz concluded by again
contending 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.
Mercedes Benz’s complete petition
and all supporting documents are
available by logging onto the Federal
Docket Management System (FDMS)
website at: https://www.regulations.gov
and by following the online search
instructions to locate the docket number
as listed in the title of this notice.
VI. NHTSA’s Analysis
The burden of establishing the
inconsequentiality of a failure to comply
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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.1
Potential performance failures of safetycritical equipment, like seat belts or air
bags, are rarely deemed inconsequential.
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.2 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.’’ 3
‘‘[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.’’ 4
Arguments that only a small number
of vehicles or items of motor vehicle
equipment are affected have also not
justified granting an inconsequentiality
petition.5 Similarly, NHTSA has
1 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).
2 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).
3 Morgan 3 Wheeler Limited; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR
21663, 21666 (Apr. 12, 2016).
4 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’’).
5 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
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rejected petitions based on the assertion
that only a small percentage of vehicles
or items of equipment are likely to
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.6
These considerations are also relevant
when considering whether a defect is
inconsequential to motor vehicle safety.
NHTSA has evaluated the merits of
the inconsequential noncompliance
petition submitted by Mercedes-Benz
and has determined that this particular
noncompliance is inconsequential to
motor vehicle safety. Specifically, the
Agency considered the following when
making its decision:
1. Given the inconsistent information
in the petition about which portions of
the windshield did not meet the
Standard, NHTSA requested additional
information from Mercedes-Benz. On
July 9, 2020, Mercedes-Benz responded,
and the supplemental information
provided is available on the FDMS
website.7 In the worst-case scenario
presented in this data, Area C is
completely (100%) wiped, as required
by the standard. Area A, according to
this data, has a wiped area of 91%—
exceeding the standard’s minimum
threshold of 80%—while the wiped
portion of Area B is slightly below the
required minimum 94% threshold at
93.8%.
2. The magnitude of the deviation
from Mercedes-Benz’s design
specification was also considered.
Vehicles manufactured without
deviation from Mercedes-Benz’s
specification would have wiped 91.4%
of Area A and 94.3% of Area B. In the
worst-case scenario described by
Mercedes-Benz, comparing the
manufacturing deviation to MercedesBenz’s design specification, the percent
of Area A wiped decreases by 0.4% to
the aforementioned 91% of Area A’s
total area and the percent of Area B
wiped decreases by 0.5% to the
aforementioned 93.8% of Area B’s total
area. There is no change in the wiped
portion of Area C (the area of the
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).
6 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).
7 Regulations.gov/docket/NHTSA-2020-0021.
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74211
windshield directly in front of the
driver).
3. NHTSA also considered the
location within Area B affected by the
manufacturing deviation. The reduction
in wiped area is located at the outer
edge of Area B on the driver’s side—
with greater deviation in wiper coverage
toward the top of the windshield—
where the impact to visibility is less
likely to create a safety risk. A depiction
of the wiper deviation was provided by
Mercedes-Benz in the petition and was
updated on July 9, 2020, after NHTSA
requested additional information. Both
depictions are available on the FDMS
website.
4. Although Mercedes-Benz’s petition
cited a letter of interpretation that
delayed enforcement of the threshold
for minimum wiped area for Area B,
NHTSA did not consider this to be
persuasive. The delay at issue resulted
from the agency’s determination that
strict enforcement would be inequitable.
NHTSA did not determine that the
requirements of the Standard should be
relaxed. Our analysis here is based on
the location and magnitude of the
specific noncompliance as detailed in
this notice and the documents included
in the docket.
5. NHTSA has determined, based on
both the magnitude and the location of
the wiper deviation, that the difference
between a compliant vehicle (produced
without the manufacturing deviation)
and a worst-case noncompliant vehicle
(produced with the manufacturing
deviation) is unlikely to impact
visibility in a manner that would be
consequential to safety.
VII. NHTSA’s Decision
In consideration of the foregoing,
NHTSA finds that Mercedes-Benz has
met its burden of persuasion that the
subject FMVSS No. 104 noncompliance
in the affected vehicles is
inconsequential to motor vehicle safety.
Accordingly, Mercedes-Benz’s petition
is hereby granted, and Mercedes-Benz is
exempted from the obligation of
providing notification of, and a free
remedy for, that noncompliance 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, this
decision only applies to the subject
vehicles that Mercedes-Benz no longer
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controlled at the time it determined that
the noncompliance existed. However,
the granting of this petition 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 Mercedes-Benz 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. 2022–26270 Filed 12–1–22; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF THE TREASURY
Bureau of the Fiscal Service
Proposed Collection of Information:
CMIA Annual Report and Direct Cost
Claims
Notice and request for
comments.
ACTION:
The Department of the
Treasury, as part of its continuing effort
to reduce paperwork and respondent
burden, invites the general public and
other Federal agencies to take this
opportunity to comment on proposed
and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995.
Currently the Bureau of the Fiscal
Service within the Department of the
Treasury is soliciting comments
concerning the CMIA Annual Report
and Direct Cost Claims.
DATES: Written comments should be
received on or before January 31, 2023
to be assured of consideration.
ADDRESSES: Direct all written comments
and requests for additional information
to Bureau of the Fiscal Service, Bruce A.
Sharp, Room #4006–A, P.O. Box 1328,
Parkersburg, WV 26106–1328, or
bruce.sharp@fiscal.treasury.gov.
SUPPLEMENTARY INFORMATION:
Title: CMIA Annual Report and Direct
Cost Claims.
OMB Number: 1530–0066.
Form Number: None.
Abstract: States and Territories must
report interest owed to and from the
Federal government for major Federal
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The data is used by Treasury and other
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Federal interest claims, to assess State
and Federal cash management practices
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SUMMARY:
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19:14 Dec 01, 2022
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and to exchange amounts of interest
owed.
Current Actions: Extension of a
currently approved collection.
Type of Review: Regular.
Affected Public: Federal Government,
State, Local or Tribal Government.
Estimated Number of Respondents:
56.
Estimated Time per Respondent:
Average 393.5 hours per state.
Estimated Total Annual Burden
Hours: 22,036.
Request for Comments: Comments
submitted in response to this notice will
be summarized and/or included in the
request for OMB approval. All
comments will become a matter of
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1. Whether the collection of information
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whether the information shall have
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agency’s estimate of the burden of the
collection of information; 3. ways to
enhance the quality, utility, and clarity
of the information to be collected; 4.
ways to minimize the burden of the
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respondents, including through the use
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and 5. estimates of capital or start-up
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to provide information.
Dated: November 18, 2022.
Bruce A. Sharp,
Bureau PRA Clearance Officer.
[FR Doc. 2022–26220 Filed 12–1–22; 8:45 am]
BILLING CODE 4810–AS–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Proposed Collection; Comment
Request for Form 706–A
Internal Revenue Service (IRS),
Treasury.
AGENCY:
Notice and request for
comments.
ACTION:
The Internal Revenue Service
(IRS), as part of its continuing effort to
reduce paperwork and respondent
burden, invites the general public and
other Federal agencies to take this
opportunity to comment on information
collections, as required by the
Paperwork Reduction Act of 1995. The
IRS is soliciting comments concerning
United States Additional Estate Tax
Return.
SUMMARY:
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Written comments should be
received on or before January 31, 2023
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ADDRESSES: Direct all written comments
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Please reference the information
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SUPPLEMENTARY INFORMATION:
Title: United States Additional Estate
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OMB Number: 1545–0016.
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Abstract: Form 706–A is used by
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section 2032A(c). IRS uses the
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is also used for the basis election of
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Current Actions: There are no changes
being made to the form at this time.
Type of Review: Extension of a
currently approved collection.
Affected Public: Individuals or
households.
Estimated Number of Respondents:
180.
Estimated Time per Respondent: 1
hour, 19 minutes.
Estimated Total Annual Burden
Hours: 1,678.
The following paragraph applies to all
of the collections of information covered
by this notice:
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless the collection of information
displays a valid OMB control number.
Books or records relating to a collection
of information must be retained as long
as their contents may become material
in the administration of any internal
revenue law. Generally, tax returns and
tax return information are confidential,
as required by 26 U.S.C. 6103.
Request for Comments: Comments
submitted in response to this notice will
be summarized and/or included in the
request for OMB approval. All
comments will become a matter of
public record.
Comments are invited on: (a) whether
the collection of information is
DATES:
E:\FR\FM\02DEN1.SGM
02DEN1
]]>Agencies
[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Notices]
[Pages 74209-74212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-26270]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2020-0021; Notice 2]
Mercedes-Benz USA, LLC, Grant of Petition for Decision of
Inconsequential Noncompliance
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation (DOT).
ACTION: Grant of petition.
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SUMMARY: Mercedes-Benz AG (MBAG) and Mercedes-Benz USA, LLC (MBUSA)
(collectively, ``Mercedes-Benz'') have determined that certain model
year (MY) 2019 Mercedes-Benz A-Class motor vehicles do not fully comply
with Federal Motor Vehicle Safety Standard (FMVSS) No. 104, Windshield
Wiping and Washing Systems. Mercedes-Benz filed a noncompliance report
dated February 24, 2020. Mercedes-Benz subsequently petitioned NHTSA on
March 12, 2020, and later provided supplemental material on July 9,
2020, for a decision that the subject noncompliance is inconsequential
as it relates to motor vehicle safety. This notice announces the grant
of Mercedes-Benz's petition.
FOR FURTHER INFORMATION CONTACT: Neil Dold, Office of Vehicle Safety
Compliance, the National Highway Traffic Safety Administration (NHTSA),
telephone (202) 366-7352, facsimile (202) 366-3081.
SUPPLEMENTARY INFORMATION:
I. Overview
Mercedes-Benz has determined that certain MY 2019 Mercedes-Benz A-
Class motor vehicles do not fully comply with the requirements of
paragraph S4.1.2 of FMVSS No. 104, Windshield Wiping and Washing
Systems (49 CFR 571.104). Mercedes-Benz filed a noncompliance report
dated February 24, 2020, pursuant to 49 CFR part 573, Defect and
noncompliance responsibility and reports. Mercedes-Benz subsequently
petitioned NHTSA on March 12, 2020, and later provided supplemental
material on July 9, 2020, for an exemption from the notification and
remedy requirements of 49 U.S.C.
[[Page 74210]]
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 Mercedes Benz's petition was published with a
30-day public comment period, on June 12, 2020, in the Federal Register
(85 FR 35990). 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-2020-0021.''
II. Vehicles Involved
Approximately 4,145 MY 2019 Mercedes-Benz A220 and A220 4MATIC
motor vehicles manufactured between August 3, 2018, and November 26,
2019, are potentially involved.
III. Noncompliance
Mercedes-Benz explains that the noncompliance is that the
windshield wiping systems in the subject vehicles do not wipe the
percentage of the windshield as required by paragraph S4.1.2 of FMVSS
No. 104. Specifically, because of variations in the manufacturing
process, the windshield wiping system may not meet the manufacturer's
design specifications and thus may only wipe 93.8% of Area B of the
windshield instead of the 94% minimum required.
IV. Rule Requirements
Paragraph S4.1.2 of FMVSS No. 104 includes the requirements
relevant to this petition. When tested wet in accordance with SAE
Recommended Practice J903a (1966), each passenger car windshield wiping
system shall wipe the percentage of designated Areas A, B, and C of the
windshield (established in accordance with S4.1.2.1) that (1) is
specified in column 2 of the applicable table following subparagraph
S4.1.2.1 and (2) is within the area bounded by a perimeter line on the
glazing surface 25 millimeters from the edge of the ``daylight
opening.''
V. Summary of Mercedes-Benz's Petition
The following views and arguments presented in this section, ``V.
Summary of Mercedes-Benz's Petition,'' are the views and arguments
provided by Mercedes-Benz and do not reflect the views of the Agency.
Mercedes-Benz described the subject noncompliance and contended that
the noncompliance is inconsequential as it relates to motor vehicle
safety.
In support of its petition, Mercedes-Benz submitted the following:
1. Mercedes-Benz cited the definition of ``motor vehicle safety''
as cited in the National Traffic and Motor Vehicle Safety Act of 1966
and their belief is that this matter is appropriate for a decision that
the noncompliance is inconsequential to motor vehicle safety as it does
not present any increased risk to vehicle occupants.
2. They state that, in the subject vehicles, the portion of the
windshield that falls just below the minimum wiped area is located at
the outer edge of the windshield. In the worst-case scenario, only
93.8%, instead of the minimum 94%, of the Area B portion of the
windshield remains wiped (note: the petition erroneously stated
``unwiped'' rather than ``wiped''). In the original petition, Mercedes-
Benz stated that the affected portion of Area B is located at the outer
edge of the passenger's side of the windshield; however, in a
subsequent communication with NHTSA, they clarified that the affected
portion of Area B is located at the outer edge of the driver's side of
the windshield rather than the passenger's side.
3. Mercedes-Benz asserts that NHTSA has previously considered the
performance of windshield wiper systems in the context of interpreting
the meaning of the term ``daylight opening'' in FMVSS No. 104.
Mercedes-Benz says that in 2003, in response to a request from a
manufacturer, NHTSA interpreted that opaque coatings located around the
edge of the windshield would not be considered part of the daylight
opening for purposes of calculating the starting point of the wiped
area. See Letter to Reed, May 6, 2003. This interpretation was an
apparent change in approach for several manufacturers. In a request for
reconsideration, the industry reported that many vehicles would not
meet the minimum wiped portion of Area B based on the Agency's new
interpretation. In supporting comments, two manufacturers reported that
there were multiple vehicle models that would not meet the 94% minimum
requirement for Area B. For one of the manufacturers, all of its
vehicles were no more than 93.2% of the Area B minimum, while the other
manufacturer did not provide specific information on how far its system
deviated from the Area B minimum. After considering the substantial
resources necessary to redesign the wiper systems outside of the normal
vehicle refresh schedule, the Agency delayed the date on which it would
begin enforcement of FMVSS No. 104 based on its updated interpretation.
See Letter to Strassburger, January 7, 2005.
4. Thus, while the Agency was alerted to the fact that certain
vehicles would not be able to comply with the minimum wiped area
requirements of FMVSS No. 104, the Agency delayed implementing
enforcement of the new interpretation for several years. While the
delay was based, in part on the additional complexities needed to
update the vehicle, fundamentally, the small deviation in the minimum
wiped area requirement appears to not have been considered one that
adversely impacted driver visibility or increased the safety risk to
vehicle occupants. In that case, the deviation from the minimum wiped
portion of Area B was more than what exists in the subject vehicles.
While it is unclear from the interpretation letters what portion of
Area B did not meet the minimum wiped requirements, in the subject
vehicles, only a narrow strip of a portion of the outer edge of the
driver's side of the windshield is affected by the deviation. Due to
the location and small size of the unwiped area, the deviation would
not affect the visibility of the driver or their ability to safely
operate the vehicle and would not lead to an overall increased safety
risk to the vehicle occupants.
5. Mercedes-Benz stated that the windshield wiper systems installed
in the subject vehicles otherwise meet or exceed the remaining
requirements in FMVSS No. 104 for the wiped portion of Areas A and C,
for wiper frequency, and the windshield washing system. Mercedes-Benz
has not received any reports related to a lack of visibility due to the
performance of the windshield wiping system at issue here.
Mercedes-Benz concluded by again contending 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.
Mercedes Benz's complete petition and all supporting documents are
available by logging onto the Federal Docket Management System (FDMS)
website at: https://www.regulations.gov and by following the online
search instructions to locate the docket number as listed in the title
of this notice.
VI. NHTSA's Analysis
The burden of establishing the inconsequentiality of a failure to
comply
[[Page 74211]]
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.\1\ Potential performance failures of
safety-critical equipment, like seat belts or air bags, are rarely
deemed inconsequential.
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\1\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\2\ 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.'' \3\
``[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.'' \4\
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\2\ 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).
\3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\4\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
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Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\5\ Similarly, NHTSA has rejected petitions
based on the assertion that only a small percentage of vehicles or
items of equipment are likely to 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.\6\ These
considerations are also relevant when considering whether a defect is
inconsequential to motor vehicle safety.
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\5\ 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).
\6\ See Gen. Motors Corp.; Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14,
2004); Cosco Inc.; Denial of Application for Decision of
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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NHTSA has evaluated the merits of the inconsequential noncompliance
petition submitted by Mercedes-Benz and has determined that this
particular noncompliance is inconsequential to motor vehicle safety.
Specifically, the Agency considered the following when making its
decision:
1. Given the inconsistent information in the petition about which
portions of the windshield did not meet the Standard, NHTSA requested
additional information from Mercedes-Benz. On July 9, 2020, Mercedes-
Benz responded, and the supplemental information provided is available
on the FDMS website.\7\ In the worst-case scenario presented in this
data, Area C is completely (100%) wiped, as required by the standard.
Area A, according to this data, has a wiped area of 91%--exceeding the
standard's minimum threshold of 80%--while the wiped portion of Area B
is slightly below the required minimum 94% threshold at 93.8%.
---------------------------------------------------------------------------
\7\ Regulations.gov/docket/NHTSA-2020-0021.
---------------------------------------------------------------------------
2. The magnitude of the deviation from Mercedes-Benz's design
specification was also considered. Vehicles manufactured without
deviation from Mercedes-Benz's specification would have wiped 91.4% of
Area A and 94.3% of Area B. In the worst-case scenario described by
Mercedes-Benz, comparing the manufacturing deviation to Mercedes-Benz's
design specification, the percent of Area A wiped decreases by 0.4% to
the aforementioned 91% of Area A's total area and the percent of Area B
wiped decreases by 0.5% to the aforementioned 93.8% of Area B's total
area. There is no change in the wiped portion of Area C (the area of
the windshield directly in front of the driver).
3. NHTSA also considered the location within Area B affected by the
manufacturing deviation. The reduction in wiped area is located at the
outer edge of Area B on the driver's side--with greater deviation in
wiper coverage toward the top of the windshield--where the impact to
visibility is less likely to create a safety risk. A depiction of the
wiper deviation was provided by Mercedes-Benz in the petition and was
updated on July 9, 2020, after NHTSA requested additional information.
Both depictions are available on the FDMS website.
4. Although Mercedes-Benz's petition cited a letter of
interpretation that delayed enforcement of the threshold for minimum
wiped area for Area B, NHTSA did not consider this to be persuasive.
The delay at issue resulted from the agency's determination that strict
enforcement would be inequitable. NHTSA did not determine that the
requirements of the Standard should be relaxed. Our analysis here is
based on the location and magnitude of the specific noncompliance as
detailed in this notice and the documents included in the docket.
5. NHTSA has determined, based on both the magnitude and the
location of the wiper deviation, that the difference between a
compliant vehicle (produced without the manufacturing deviation) and a
worst-case noncompliant vehicle (produced with the manufacturing
deviation) is unlikely to impact visibility in a manner that would be
consequential to safety.
VII. NHTSA's Decision
In consideration of the foregoing, NHTSA finds that Mercedes-Benz
has met its burden of persuasion that the subject FMVSS No. 104
noncompliance in the affected vehicles is inconsequential to motor
vehicle safety. Accordingly, Mercedes-Benz's petition is hereby
granted, and Mercedes-Benz is exempted from the obligation of providing
notification of, and a free remedy for, that noncompliance 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, this decision
only applies to the subject vehicles that Mercedes-Benz no longer
[[Page 74212]]
controlled at the time it determined that the noncompliance existed.
However, the granting of this petition 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
Mercedes-Benz 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. 2022-26270 Filed 12-1-22; 8:45 am]
BILLING CODE 4910-59-P
