Notice2022-26270
Mercedes-Benz USA, LLC, Grant of Petition for Decision of Inconsequential Noncompliance
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Published
December 2, 2022
Issuing agencies
Transportation DepartmentNational Highway Traffic Safety Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 231 (Friday, December 2, 2022)</title>
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[Federal Register Volume 87, Number 231 (Friday, December 2, 2022)]
[Notices]
[Pages 74209-74212]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. 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: <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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%.
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\7\ <a href="http://Regulations.gov/docket/NHTSA-2020-0021">Regulations.gov/docket/NHTSA-2020-0021</a>.
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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
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