
[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Notices]
[Pages 73395-73398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23528]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0064; Notice 2]


Mercedes-Benz USA, LLC, Denial of Petition for Decision of 
Inconsequential Noncompliance

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

[[Page 73396]]


ACTION: Denial of petition.

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SUMMARY: Mercedes-Benz AG and Mercedes-Benz USA, LLC, (collectively, 
``Mercedes-Benz'' or ``Petitioner'') have determined that certain model 
year (MY) 2020 Mercedes-Benz GLS 580 motor vehicles do not fully comply 
with Federal Motor Vehicle Safety Standard (FMVSS) No. 118, Power-
operated Window, Partition, and Roof Panel Systems. Mercedes-Benz filed 
a noncompliance report dated May 11, 2020, and subsequently petitioned 
NHTSA on June 3, 2020, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety. This notice 
announces the denial of Mercedes-Benz's petition.

FOR FURTHER INFORMATION CONTACT: Frederick Smith, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-7487, facsimile (202) 366-3081.

SUPPLEMENTARY INFORMATION: 
    I. Overview: Mercedes-Benz has determined that certain MY 2020 
Mercedes-Benz GLS 580 motor vehicles do not fully comply with the 
requirements of paragraph S6(a)(1) of FMVSS No. 118, Power-operated 
Window, Partition, and Roof Panel Systems (49 CFR 571.118). Mercedes-
Benz filed a noncompliance report dated May 11, 2020, pursuant to 49 
CFR part 573, Defect and Noncompliance Responsibility and Reports. 
Mercedes-Benz subsequently petitioned NHTSA on June 3, 2020, 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 Mercedes-Benz petition was published with a 
30-day public comment period, on October 23, 2020, in the Federal 
Register (85 FR 67604). 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-2020-0064.''
    II. Vehicles Involved: Mercedes-Benz stated that it determined that 
22 MY 2020 Mercedes-Benz GLS 580 motor vehicles manufactured between 
February 8, 2019, and September 20, 2019, do not meet the requirements 
of FMVSS No. 118, S6(a)(1).
    III. Noncompliance: Mercedes-Benz explains that the noncompliance 
is that the automatic reversal systems and actuation devices for the 
sunroofs in the subject vehicles do not fully comply with paragraph 
S6(a)(1) of FMVSS No. 118. Specifically, when the vehicle's ``car wash 
mode'' is activated by using the central touch display in the center 
console, the sunroof may close automatically.
    IV. Rule Requirements: Paragraph S6(a)(1) of FMVSS No. 118 includes 
the requirements relevant to this petition. An actuation device must 
not cause a window, partition, or roof panel to begin to close from any 
open position when tested using a stainless steel sphere having a 
surface finish between 8 and 4 micro inches and a radius of 20 mm 
 0.2 mm, when the surface of the sphere is placed against 
any portion of the actuation device.
    V. Summary of Mercedes-Benz's Petition: The following views and 
arguments presented in this section are the views and arguments 
provided by Mercedes-Benz and do not reflect the views of NHTSA. 
Mercedes-Benz describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    In support of its petition, Mercedes-Benz offers the following 
reasoning:
    1. Mercedes-Benz alleges that ``due to their specific operating 
parameters, even though the buttons used to activate car wash mode do 
not meet the performance requirement of paragraph S6(a), the condition 
does not create an increased safety risk.''
    2. First, Mercedes-Benz states, ``the car wash mode feature must 
first be activated by the user. Car wash mode is not automatically 
enabled unless and until the operator activates the feature by 
affirmatively accepting the option and turning the feature on. Thus, 
unless car wash mode is already active within the vehicle, the 
condition described above cannot occur.''
    3. Mercedes-Benz further states, ``[o]nce the vehicle has 
initialized car wash mode, the feature can only be activated through a 
series of steps using either the vehicle's central touch display or 
from a touchpad located in the center console. Activating car wash mode 
is a multi-step process and the process varies depending on the current 
menu contained on the display screen. For example, if car wash mode has 
been programmed by the user inside the ``favorites'' menu, then a 
series of two touches is needed to activate car wash mode. In all other 
cases, the operator would first need to change the display screen to 
the vehicle menu first and from there, navigate to the car wash mode 
icon. In either case, car wash mode will not become active unless each 
of these steps is executed in the corresponding order. Because of the 
complexity involved in navigating through the required sequence of 
events there is an extremely low likelihood of the car wash mode being 
inadvertently activated in the first place.''
    4. Further, Mercedes-Benz claims ``the sunroofs in the subject 
vehicles contain an auto-reverse feature. Upon detecting an object or 
obstruction inside the sunroof, it will automatically stop and reverse 
course and fully retract. While the sunroofs do not meet the 
requirements of paragraph S5, Mercedes-Benz states that they are 
certified to the European standard UN-R-21. The European standard 
incorporates many of the performance features included in the automatic 
reversal function contained in FMVSS No. 118, paragraph S5. The 
sunroofs in the subject vehicles will automatically reverse prior to 
exerting 100 Newtons of pinch force, and consistent with the options 
provided at paragraph S5.2, the sunroof will either retract to a 
position at least as wide as the initial position before closing or 
will allow a 200-mm rod to be inserted in the gap.''
    5. Mercedes-Benz says that NHTSA ``has previously granted petitions 
for inconsequential treatment for FMVSS No. 118 involving similar 
circumstances and vehicle features. NHTSA granted a petition by General 
Motors involving a noncompliance with FMVSS No. 118, paragraph S4(e), 
where for 60 seconds after the vehicles are started, an issue with the 
sunroof module would allow the sunroof to close via the control button 
if the engine is turned off and a front door is opened. In that 
instance, in order to activate the sunroof, a series of specific steps 
must be taken in order and the steps must be completed within a 60-
second time frame. See General Motors Corporation, Grant of Petition 
for Decision of Inconsequential Noncompliance, 73 FR 22459 (April 25, 
2008). In granting the petition, the Agency found that the potential 
for entrapment in a power operated sunroof presented less of a risk of 
entrapment than power-operated windows because, in general, sunroofs 
are less physically accessible than power-operated windows. The 
decision also focused on the presence of an auto-reverse feature, which 
would reverse the movement of the sunroof before it exerted a pressure 
of 100 Newtons. In granting the petition, the Agency noted the presence 
of this auto-reverse feature as one that would further reduce the risk 
of entrapment.''
    6. Mercedes-Benz further asserts that ``much like the conditions 
present in the General Motors Corporation vehicles,

[[Page 73397]]

the noncompliance in the car wash mode feature of the subject vehicles 
similarly does not create an increased safety risk. Assuming that the 
function has been initialized by the operator, a series of specific and 
coordinated steps must occur in order to activate car wash mode. If 
those steps are not carried out in the precise order required, then the 
car-wash mode program will not be activated. Even in the unlikely event 
that the car wash mode function is inadvertently activated, there is no 
enhanced risk of injury because of the sunroof auto-reverse feature.''
    Mercedes-Benz concludes 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.
    VI. NHTSA's Analysis: 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, NHTSA 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\ 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.'' \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 reviewed the Mercedes-Benz inconsequentiality petition 
and does not concur with Mercedes-Benz's conclusion that the 
noncompliance is inconsequential to motor vehicle safety and is denying 
Mercedes-Benz's petition.
    FMVSS 118 S6 sets performance requirements intended to mitigate the 
potential for injury from a window or sunroof being inadvertently 
closed when a person is in its path. Under the standard, the operating 
controls may not allow a window, sunroof or partition to close when a 
test sphere (simulating a child's knee) is pressed against the control. 
Specifically, FMVSS No. 118 S6(a)(1) requires that ``an actuation 
device must not cause a window, partition, or roof panel to begin to 
close from any open position when tested . . . [u]sing a stainless 
steel sphere having a surface finish between 8 and 4 micro inches and a 
radius of 20 mm  0.2 mm, place the surface of the sphere 
against any portion of the actuation device.''
    According to the Mercedes-Benz petition, ``the actuation devices 
used to engage car wash mode do not meet the inadvertent activation 
provisions of FMVSS No. 118 S6(a)(1).'' However, Mercedes-Benz argues 
activating car-wash mode is a multi-step process and the process varies 
depending on the current menu contained on the display screen of a 
particular vehicle. After considering information provided by Mercedes-
Benz and from online descriptions of the system, NHTSA believes there 
is a minimal level of complexity involved in navigating through the 
required sequence of events to actuate and close the sunroof. The 
controls at issue include those located on the console between the 
front seats where a child could easily stand or kneel. Given the 
unpredictable behavior of an unattended child, inadvertent selection of 
the ``Quick Access'' or ``Favorite'' hard buttons, where the ``Car Wash 
Mode'' icon can be located, is a foreseeable and appreciable risk. Car 
Wash Mode can be programmed as the only selectable icon within the 
``Favorite'' menu, increasing its susceptibility to accidental 
engagement.
    In their petition, Mercedes-Benz states, ``the sunroofs in the 
subject vehicles contain an auto-reverse feature. Upon detecting an 
object or obstruction inside the sunroof, it will automatically stop 
and reverse course and fully retract. While the sunroofs do not meet 
the requirements of S5, they are certified to the European standard UN-
R-21. The European standard incorporates many of the performance 
features included in the automatic reversal function contained in FMVSS 
118, S5.'' NHTSA acknowledges that the sunroofs in the Mercedes-Benz 
vehicles in question are compliant with UN-R-21, but Mercedes-Benz 
concedes they do not comply with FMVSS 118 S5, NHTSA's regulations 
governing automatic reversal systems. While UN-R-21 does provide a 
level of safety, FMVSS 118 S5 provides a greater level of protection 
from pinching injuries, particularly to smaller appendages like a 
child's fingers.
    Finally, in the petition Mercedes-Benz claims the circumstances 
here are analogous to the circumstances in a previous NHTSA 
determination that

[[Page 73398]]

noncompliance was inconsequential. NHTSA considers each petition on its 
own merits and the prior decision cited by the Petitioner has limited 
applicability in this case. NHTSA believes the circumstances for 
accidental window/sunroof closure involved in the cited General Motors 
(GM) petition are significantly different than those required under 
Mercedes-Benz current petition. In granting the GM petition, the agency 
was persuaded that the high level of complexity involved in navigating 
through the required sequence of events effectively eliminated any 
entrapment risk, particularly the limited timeframe within which the 
events would have to occur. Specifically, NHTSA stated, ``[i]t is very 
unlikely that the entire sequence of events--starting the engine, 
turning the engine off, opening a front door, a person becoming 
positioned in the sunroof opening, and pushing the sunroof close 
button--will occur in less than 60 seconds from the time the ignition 
is turned off and the vehicle operator has exited the vehicle and left 
the immediate area.'' General Motors, Decision Granting Petition for 
Inconsequential Noncompliance, 73 FR 22459 (April 25, 2008). In 
contrast, the noncompliance in the Mercedes-Benz petition does not 
involve as great a level of complexity in the required sequence of 
events that would lead to sunroof engagement. The Mercedes-Benz 
petition states, in the subject vehicles, as few as two inputs to the 
centralized control devices is sufficient to actuate and close the 
sunroof, i.e., with Car Wash Mode included in the ``Favorites'' menu. 
Furthermore, the touch screens at issue here remain activated 
indefinitely until the vehicle is turned off or a user activates a 
command. NHTSA therefore does not agree that the prior determination in 
the GM case is analogous or persuasive here.
    Therefore, Mercedes-Benz has not met its burden of persuasion and 
for the reasons described herein NHTSA does not find that the subject 
noncompliance is inconsequential to motor vehicle safety.
    VII. NHTSA's Decision: In consideration of the foregoing analysis, 
NHTSA finds that Mercedes-Benz has not met its burden of persuasion 
that the FMVSS No. 118 noncompliance at issue is inconsequential to 
motor vehicle safety.
    Accordingly, Mercedes-Benz's petition is hereby denied and 
Mercedes-Benz is consequently obligated to provide notification of, and 
a free remedy for, the 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)

Cem Hatipoglu,
Acting Associate Administrator for Enforcement.
[FR Doc. 2023-23528 Filed 10-24-23; 8:45 am]
BILLING CODE 4910-59-P


