[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Notices]
[Pages 67812-67814]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23672]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0100; Notice 2]


Daimler Trucks North America, Denial of Petition for Decision of 
Inconsequential Noncompliance

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

ACTION: Notice of petition denial.

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SUMMARY: Daimler Trucks North America (DTNA) has determined that 
certain model year (MY) 2011-2019 DTNA motor vehicles do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, 
Lamps, Reflective Devices, and Associated Equipment. DTNA filed a 
noncompliance report dated September 19, 2018. DTNA subsequently 
petitioned NHTSA on October 11, 2018, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety. 
This document announces and explains the denial of DTNA's petition.

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

SUPPLEMENTARY INFORMATION:

I. Overview

    DTNA has determined that certain MY 2011-2019 DTNA motor vehicles 
do not fully comply with paragraph S6.2 of FMVSS No. 108, Lamps, 
Reflective Devices, and Associated Equipment (49 CFR 571.108). DTNA 
filed a noncompliance report dated September 19, 2018, pursuant to 49 
CFR part 573, Defect and Noncompliance Responsibility and Reports. DTNA 
subsequently petitioned NHTSA on October 11, 2018, 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 DTNA's petition was published with a 30-day 
public comment period on April 23, 2019, in the Federal Register (84 FR 
16930). 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/, and then follow the 
online search instructions to locate docket number ``NHTSA-2018-0100.''

II. Vehicles Involved

    Approximately 14,340 MY 2011-2019 Western Star 4700 and 4900, 
Freightliner Business Class M2, 114SD, 108SD, 122SD, and Coronado motor 
vehicles manufactured between May 4, 2010, and August 23, 2018, are 
potentially involved.

III. Noncompliance

    In its noncompliance report, DTNA stated that the noncompliance is 
that the brake lights in the subject vehicles illuminate with Automatic 
Traction Control (ATC) activation and, therefore, do not meet the 
requirements specified in S6.2.1 of FMVSS No. 108.

IV. Rule Requirements

    Paragraphs S6.2.1 and S7.3.5, Table I-a of FMVSS No. 108, include 
the requirements relevant to this petition. No additional lamp, 
reflective device, or other motor vehicle equipment is permitted to be 
installed that impairs the effectiveness of lighting equipment required 
by FMVSS No. 108. Stop lamps must be activated upon application of the 
service brakes. The stop lamps may also be activated by a device 
designed to retard the motion of the vehicle.

V. Summary of DTNA's Petition

    DTNA describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, DTNA offers the following reasoning:
    1. ATC events occur during low traction conditions such as snow, 
ice, and mud. The duration of the event can be very short and may not 
even be noticed by the following driver. If brake light illumination 
for an ATC event is noticed, it would help to provide early warning of 
an adverse road condition ahead and encourage the following driver to 
slow down. Below are several examples of ATC events:
    a. Taking off from a stop: ATC can be very helpful to a driver when 
taking off from a stop in low traction conditions. From time to time, a 
vehicle will park with one drive axle wheel end right over a patch of 
ice, and without ATC, it can be difficult to take off. This happens 
after the vehicle has been stopped and is trying to move. It seems 
unlikely that the activation of the brake lights during this ATC event 
would cause a safety concern to following drivers since the vehicle is 
stationary.
    b. Low speed: At low speed, hazard warning lights are commonly used 
to warn other drivers of adverse road conditions such as those that are 
in effect when an ATC event may occur. Since the hazard lights may 
already be applied in this case, the addition of momentary brake light 
activation is unlikely to cause confusion.
    c. High Speed: For an ATC event to occur at high speed, it would 
signify that road conditions have changed rapidly. One way it could 
happen is if the vehicle has been climbing a hill on dry roads in sub-
freezing conditions and crosses a patch of ice. This causes a wheel to 
lose traction and the ATC applies brake force to that wheel end. The 
torque is transferred to other wheel ends causing a momentary brake 
light illumination. If it is a small ice patch, the event may be over 
and the vehicle may continue on its way. If the ice patch is large, it 
is imperative that the vehicle slows down to a safe speed under slick 
conditions and warns others of the impending slowdown. As soon as slick 
road conditions are noticed and wheels begin to slip, the driver would 
let up on the throttle.
    Brakes are commonly applied causing the brake lights to illuminate 
when a driver sees or senses a change in road conditions such as an icy 
patch. Reducing vehicle speed in adverse conditions increases safety, 
so signaling changing road conditions to following drivers would 
improve safety and give them the opportunity to increase the following 
distance. DOT guidance supports this goal:
    [cir] NHTSA's Winter Driving Tips says: ``Drive slowly. It's harder 
to control or stop your vehicle on a slick or snow-covered road. 
Increase your following distance enough so that you'll have plenty of 
time to stop for vehicles ahead of you.''
    [cir] FMCSA released CMV Driving Tips; Tip #1 is: Reduce Your 
Driving Speed in Adverse Road and/or Weather Conditions. ``You should 
reduce your speed by \1/3\ on wet roads and by \1/2\ or more on snow-
packed roads (i.e., if you would normally be traveling at a speed of 60 
mph on dry pavement, then on a wet road you should reduce your speed to 
40 mph, and on a snow-packed road you should reduce your speed to 30 
mph). When you come upon slick, icy roads you should drive slowly and 
cautiously and pull off the road if you

[[Page 67813]]

can no longer safely control the vehicle.''
    2. DTNA states that it is not aware of any accidents, injuries, 
owner complaints, or field reports for brake light illumination 
triggered by ATC events concerning the subject vehicles.
    3. DTNA notes that NHTSA has previously granted petitions for 
decisions of inconsequential noncompliance with lighting requirements 
where there were technical noncompliances that did not create a 
negative impact on safety.
    a. DTNA cites a petition for inconsequentiality submitted by 
General Motors (GM) which was granted by NHTSA. See General Motors 
Corp.; Grant of Application for Decision of Inconsequential 
Noncompliance, 66 FR 32871 (June 18, 2001). This petition dealt with a 
situation in which certain vehicles could experience brief, unintended 
illumination of the center high-mounted stop lamp (CHMSL) if the hazard 
warning lamp switch was depressed to its limit of travel. NHTSA stated: 
``The intended use of a hazard warning lamp and the momentary 
activation of a CHMSL do not provide a conflicting message. The 
illumination of the CHMSL is intended to signify that the vehicle's 
brakes are being applied and that the vehicle might be decelerating. 
Hazard warning lamps are intended as a more general message to nearby 
drivers that extra attention should be given to the vehicle. A brief 
illumination of the CHMSL while activating the hazard warning lamps 
would not confuse the intended general message, nor would the brief 
illumination in the absence of the other brake lamps cause confusion 
that the brakes were unintentionally applied.''
    DTNA believes that the same situation exists in the present case, 
with temporary illumination of the brake lamps during ATC activation. 
The temporary brake light illumination serves to emphasize the message 
to following drivers that adverse or unusual road conditions may exist 
and they should pay close attention.
    b. DTNA also cites another petition for inconsequentiality 
submitted by GM which was granted by NHTSA. See General Motors, LLC, 
Grant of Petition for Decision of Inconsequential Noncompliance, 83 FR 
7847 (Feb. 2, 2018). This petition dealt with a situation in which, 
under certain conditions, the parking lamps on the subject vehicles 
failed to meet the requirement that parking lamps must be activated 
when headlamps are activated in a steady burning state. NHTSA stated: 
``The Agency agrees with GM that in this case, this situation would 
have a low probability of occurrence and, if it should occur, it would 
neither be long-lasting nor likely to occur during a period when 
parking lamps are generally in use. Importantly, when the noncompliance 
does occur, other lamps remain functional. The combination of all of 
the factors, specific to this case, abate the risk to safety.''
    DTNA concludes by again contending that the subject noncompliance 
is inconsequential as it relates to motor vehicle safety and asking 
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, be granted.
    DTNA'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 following the online search 
instructions to locate the docket number listed in the title of this 
notice.

VI. NHTSA's Analysis

    NHTSA has evaluated the merits of DTNA's petition for 
inconsequential noncompliance and has decided that it should be denied.
    The purpose of FMVSS No. 108 is to reduce traffic accidents, and 
deaths and injuries resulting from traffic accidents, by providing 
adequate illumination of the roadway and by enhancing the conspicuity 
of motor vehicles on the public roads so that their presence is 
perceived and their signals understood, both in daylight and darkness 
or other conditions of reduced visibility.
    The noncompliance at issue here is that the stop lamps in the 
subject vehicles illuminate during a traction control event. 
Specifically, during a traction control event, the stop lamps are being 
activated by DTNA's ATC, which is not designed to retard the motion of 
the vehicle. This is a clear noncompliance with paragraphs S6.2.1 and 
S7.3.5, Table I-a of FMVSS No. 108. These paragraphs state that no 
additional lamp, reflective device, or other motor vehicle equipment is 
permitted to be installed that impairs the effectiveness of lighting 
equipment and that the stop lamps must be activated upon application of 
the service brake. The requirements also permit that the stop lamp may 
be activated by a device designed to retard the motion of the vehicle.
    DTNA acknowledges that, in response to a request for interpretation 
from GM, the Agency stated that ``activation of the stop lamps for a 
purpose other than to indicate stopping or slowing will create 
confusion for the driver following as to the meaning of the signal, 
with the potential of causing that driver to apply the brakes in his or 
her vehicle inappropriately.'' \1\ NHTSA continues to adhere to the 
position that inappropriate and misleading activation of stop lamps is 
consequential to safety. As defined by S4 of FMVSS No. 108, stop lamps 
are lamps giving a steady light to the rear of a vehicle to indicate a 
vehicle is stopping or diminishing speed by braking. In contrast, a 
traction control event typically involves a vehicle that is trying to 
gain traction to accelerate or maintain its existing speed. The 
illumination of stop lamps during a traction control event would 
therefore impair the effectiveness of the stop lamps and create a 
potential safety risk by incorrectly signaling to a following driver 
that there is an intent to slow down.
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    \1\ Letter from F. Seales, Jr., NHTSA, to C. Terry, GM (May 26, 
2000), https://isearch.nhtsa.gov/files/21281.ztv.html.
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    DTNA cites a petition from GM that the Agency granted, relating to 
the temporary illumination of the center high mounted stop lamp 
(CHMSL).\2\ The Agency has reviewed this prior decision and finds that 
it does not support a finding of inconsequential noncompliance in this 
case. The noncompliance at issue in that petition involved a brief 
illumination of the CHMSL upon activation of the hazard warning signal, 
which, the Agency concluded, did ``not provide a conflicting message'' 
and ``would not confuse the intended general message.'' See General 
Motors Corp., 66 FR 32872. As previously explained, the illumination of 
a vehicle's stop lamps in a traction control event sends a 
contradictory message.
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    \2\ 66 FR 32871, June 18, 2001.
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    Although the referenced GM decision issued by NHTSA stated that it 
was limited to the specific facts presented, DTNA also cites another 
petition submitted by GM that the Agency granted regarding the failure 
of the subject vehicles to meet the parking lamp requirements of 
paragraph S7.8.5 of FMVSS No. 108.\3\ The Agency has reviewed this 
prior decision as well and finds that it does not support a finding of 
inconsequential noncompliance in this case. The noncompliance at issue 
in that petition involved a situation in which the front parking lamps 
could be turned off under the following circumstances:
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    \3\ 83 FR 7847, February 02, 2018.
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    a. Operated during the daytime with the master lighting switch in 
``AUTO'' mode.
    b. The transmission is not in ``Park.''

[[Page 67814]]

    c. Three or more high-inrush current spikes that exceed the body 
control module (BCM) inrush current threshold occur on the parking 
lamp/daytime running lamp (DRL) circuit within a period of 0.625 
seconds.
    Under certain daytime conditions, a driver rapidly moving the 
headlamp switch between the ``AUTO'' and ``Park'' positions could 
generate these spikes that would turn the park lamps off. Although 
potentially contradictory and misleading lighting signals resulted from 
this noncompliance, NHTSA granted the petition because, among other 
things, the noncompliance would occur only in daytime when parking 
lamps are generally not in use, a fairly high degree of unusual user 
intervention was required, and the condition would correct itself 
during normal vehicle operation. See General Motors, LLC, 83 FR 7848. 
In contrast, the traction control event and the misleading activation 
of brake lights in the petition NHTSA is analyzing requires no unusual 
user intervention, can occur under normal driving conditions, and poses 
a risk both day and night.
    Illumination of the stop lamps during a traction control event is 
an impairment of the stop lamp function. The safety risk occurs when 
the stop lamps are activated and other road users expect that the 
motion of the vehicle is being retarded, but the vehicle is not 
slowing, thereby potentially confusing or misleading road users by the 
introduction of a nonstandard signal.
    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--as opposed to a 
labeling requirement--is more substantial and difficult to meet. 
Accordingly, the Agency has not found many such noncompliances 
inconsequential.\4\ Potential performance failures of safety-critical 
equipment, like seat belts or air bags, are rarely deemed 
inconsequential.
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    \4\ 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.\5\ In general, 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.'' \6\ 
``[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.'' \7\
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    \5\ 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).
    \6\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \7\ 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.\8\ 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.\9\ These 
considerations are also relevant when considering whether a defect is 
inconsequential to motor vehicle safety.
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    \8\ 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).
    \9\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
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VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that DTNA has 
not met its burden of persuasion that the subject FMVSS No. 108 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
DTNA's petition is hereby denied and DTNA 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)

Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2020-23672 Filed 10-23-20; 8:45 am]
BILLING CODE 4910-59-P


