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

American Government Special Collections Reference Desk

American Government Topics:  Mercedes-Benz GLK Class

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

Nancy Lummen Lewis
National Highway Traffic Safety Administration
August 25, 2014


[Federal Register Volume 79, Number 164 (Monday, August 25, 2014)]
[Notices]
[Pages 50733-50735]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-20140]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0166; Notice 2]


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

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Notice of petition denial.

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SUMMARY: Mercedes-Benz USA, LLC (MBUSA) on behalf of itself and its 
parent company Daimler AG (DAG), has determined that certain model year 
(MY) 2013 Mercedes-Benz GLK-Class (X204 platform) multipurpose 
passenger vehicles (MPVs), do not fully comply with paragraph S5.1.1.6 
\1\ of Federal Motor Vehicle Safety Standards (FMVSS) No. 108, Lamps, 
Reflective Devices, and Associated Equipment. MBUSA filed an 
appropriate report dated October 9, 2012 pursuant to 49 CFR Part 573 
Defect and Noncompliance Responsibility and Reports. MBUSA then filed a 
petition for exemption from the notification and remedy requirements of 
49 U.S.C. 30118 on the basis that the defect is inconsequential to 
motor vehicle safety. We are denying this petition because we believe 
that the noncompliant parking lamp is not inconsequential to motor 
vehicles safety.
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    \1\ As published in the 2011 version of 49 CFR 571.108.

ADDRESSES: For further information on this decision contact Mike Cole, 
Office of Vehicle Safety Compliance, the National Highway Traffic 
Safety Administration (NHTSA), telephone (202) 366-2334, facsimile 
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(202) 366-5930.

SUPPLEMENTARY INFORMATION: 
    I. MBUSA's petition: Pursuant to 49 U.S.C. 30118(d) and 30120(h) 
and the rule implementing those provisions at 49 CFR Part 556, MBUSA 
has petitioned for an exemption from the notification and remedy 
requirements of 49 U.S.C. Chapter 301 on the basis that this 
noncompliance is inconsequential to motor vehicle safety.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on August 9, 2013, in the Federal Register (78 
FR 448769). No comments were received. To view the petition and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) Web site at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2012-0166.''
    II. Vehicles involved: Affected are approximately 2,951 MY 2013 
Mercedes-Benz GLK-Class (X204 platform) MPVs manufactured from January 
1, 2012 through August 15, 2012.
    III. Noncompliance: MBUSA explains that the subject vehicles 
contain parking lamps that exceed the maximum designated candlepower 
output level provided in FMVSS No. 108 paragraph S5.1.1.6; id. Figure 
1b (listing maximum candlepower value of 125 cd for parking lamps). Due 
to a programming issue in the electronic control unit, the voltage in 
the parking lamp circuit is 12.8 volts which is higher than the design 
voltage specification of 7 volts in the affected vehicles. This higher 
voltage causes the lamps to exceed the maximum value listed in FMVSS 
No. 108.
    IV. Rule Text: Paragraph S5.1.1.6 of FMVSS No. 108 requires in 
pertinent part:

S5.1.1.6 Instead of the photometric values specified in Table 1 of 
SAE Standards J222 December 1970, or J585e September 1977, a parking 
lamp or tail lamp, respectively, shall meet the minimum percentage 
specified in Figure 1a of the corresponding minimum allowable value 
specified in Figure 1b. The maximum candlepower output of a parking 
lamp shall not exceed that prescribed in Figure 1b, or of a 
taillamp, that prescribed in Figure 1b at H or above. If the sum of 
the percentages of the minimum candlepower measured at the test 
points is not less than that specified for each group listed in 
Figure 1c, a parking lamp or taillamp is not required to meet the 
minimum photometric value at each test point specified in SAE 
Standards J222 or J585e respectively.

    V. Summary of MBUSA's Analyses: MBUSA stated its belief that the 
subject noncompliance is inconsequential to motor vehicle safety for 
the following reasons:
    Although the parking lamps in the subject vehicles exceed the 
candlepower limits of FMVSS No. 108, the level of brightness of the 
lamps is very low. As explained below, to evaluate the impact on motor 
vehicle safety in actual use, MBUSA analyzed the brightness of the 
lamps in use and has confirmed that the potential exceedance is 
minimal, and below the level perceptible to the human eye during night-
time driving operations which would be pertinent to determining 
potential safety relevance.
    MBUSA claims that the agency should consider how the non-compliance 
affects how drivers perceive the lower beam headlamp and the parking 
lamp together at night because FMVSS No. 108 requires both lamps to be 
illuminated at the same time. As noted above, the output limit for 
parking lamps is 125 cd. The maximum output value for lower beam 
headlamps is 1,000 cd at 0.5U--1.5L to L test points (0.5 degrees up 
from the H-point and from 1.5 degrees left of the vertical centerline 
to the end of the leftward measurements) and 700 cd for 1 U--1.5L to L 
test points (1 degree up from the H-point and from 1.5 degrees left of 
the vertical centerline to the end of the leftward measurements). See 
FMVSS No. 108 paragraph S7.7; id. Figure 17-2 (photometric test point 
values for lower beams). Thus, the maximum output for the combined 
parking lamp and lower beam headlamp is 1,125 cd (125 cd + 1,000 cd) 
for the 0.5U test points and 825 cd (125 cd + 700 cd) for the 1U test 
points.
    MBUSA measured the output of the combined parking lamp and lower 
beam headlamp on the subject vehicles using two different headlamp 
samples. Two samples were used to evaluate the impact of normal part to 
part production variations on light output. In order to provide a 
complete overview of the brightness of the lights, measurements were 
done every 10 cm on the two horizontal lines at 0.5U and 1U, from 20 to 
100 cm from the vertical centerline to the left, measured at a distance 
of 25 meters. (This is the same method used for certification testing 
for lower beam headlamps.)
    With the first sample headlamp, all candlepower measurements were 
below 1,125 cd (for the 0.5U test points) and below 825 cd (for the 1U 
test points). Thus, for this headlamp, there were no exceedances of the 
combined brightness standard. For the second headlamp, the candlepower 
measurements were below 1,125 cd at all measurements for the 0.5U test 
points, and below 825 cd for half of the 1U test point measurements. 
The candlepower measurement was slightly above 825 cd (840-920 cd) for 
five of the 1U test point measurements with the second headlight. Thus, 
even the maximum measurement of 920 cd for the worst-case measurement 
location is only 11% above the reference value

[[Page 50734]]

of 825 cd. Overall, the testing indicates that due to these normal 
production variations in lower beam headlamps, in many cases, there 
will be no exceedance of the combined parking lamp/lower beam headlamp 
maximum candlepower, even with the parking lamp over-voltage. The 
testing indicated that even in the worst-case measurement locations, 
with the worst-case lower beam headlamp sample, there was the potential 
for only an 11% exceedance of the combined lamp brightness, which is 
below the human detection threshold.
    MBUSA is not aware of any incidents or customer complaints related 
to the subject noncompliant parking lamps.
    MBUSA also notes that NHTSA has granted petitions (55FR37601 and 
59FR65428) for non-compliance from the maximum intensity requirements 
for other lamps required by FMVSS No. 108 in the past that MBUSA 
believes are similar to this petition. Specifically, MBUSA cited 55 FR 
37601 (incorrectly cited as 53 FR 37601) and 59 FR 65428.
    MBUSA has informed NHTSA that it has corrected the noncompliance so 
that all future production vehicles will comply with FMVSS No. 108.
    In summation, MBUSA believes that the described noncompliance of 
its vehicles is inconsequential to motor vehicle safety, and that its 
petition, to exempt from providing recall notification of noncompliance 
as required by 49 U.S.C. 30118 and remedying the recall noncompliance 
as required by 49 U.S.C. 30120 should be granted.
    VI. NHTSA's Analysis of MBUSA's Arguments: NHTSA has reviewed 
MBUSA's petition and has determined that the noncompliance is not 
inconsequential to motor vehicle safety. The agency believes that the 
noncompliant parking lamp will be noticeably brighter than a compliant 
lamp and potentially glaring to oncoming drivers, and will mask to some 
extent the output of the front turn signal lamps, and that this is 
consequential to safety.
    MBUSA argues that if the parking lamp output were to be combined 
with the lower beam headlamp output, then the combination would only 
exceed the combined theoretical maximum photometry requirement by 11% 
for the worst case scenario, and that this amount would be below the 
human detection threshold. To support this assertion, MBUSA referenced 
two prior inconsequentiality petitions that were granted when candela 
values exceeded the maximum required values by less than 20% and 25%.
    Regarding MBUSA's reference to 55 FR 37601, this notice granted an 
inconsequentiality petition to Hella Inc., for taillamps that exceeded 
the maximum candlepower upwards of 20% at certain test points. Hella 
argued that: (1) As installed on the vehicle, the taillamps are driven 
by a lower voltage than the laboratory test voltage and would have a 
photometric output less than that seen in NHTSA testing; (2) that 
studies have established that the human eye cannot detect a change in 
intensity unless it is more than a 25% increase or decrease; (3) that 
the intensity of the lamps does not present a safety hazard because of 
glare; and (4) that Hella was not aware of any complaints, accidents, 
or injuries related to the noncompliance.
    Regarding MBUSA's reference to 59 FR 65428, this notice granted an 
inconsequentiality petition to General Motors for center high mounted 
stop lamps (CHMSLs) whose photometric output was partially obscured by 
a painted section of glazing. In general, with the largest obscuration 
and lowest performing lamps tested, the CHMSL output failed to meet the 
minimum photometry requirements by less than 20%.
    In both cases, the agency agreed that because the photometric 
output was within 20% of the required output at the individual test 
points, that this was not discernable by the naked eye. In fact, the 
agency stated that up to 25% is a reasonable criterion for use in 
inconsequentiality decisions.
    We are aware of a University of Michigan Transportation Research 
Institute (UMTRI) report titled ``Just Noticeable Differences for Low-
Beam Headlamp Intensities'' (UMTRI-97-4, February 1997). This report 
concludes that drivers in oncoming vehicles will not notice differences 
in the intensity of headlamps that are less than 25 percent. We 
believe, however, that it would not be appropriate to use this study to 
judge the merits of MBUSA's application. This is based on two factors.
    First, the study focuses only on the lower beam of a headlamp 
system. The MBUSA vehicles do not comply with the parking lamp 
photometry requirements. We cannot presume that a study which examines 
light intensity associated with the lower beam mode would also apply to 
the light intensity of a lower beam lamp in combination with a parking 
lamp. Plus, a lower beam lamp in actual use is susceptible to poor 
aiming and increased voltage which could increase the lower beam 
intensity significantly and thus become its own source of glare to 
oncoming drivers in addition to the noncompliant parking lamp.
    Second, the research finds that the just noticeable differences, 
under controlled conditions, are between 11 and 19 percent. UMTRI 
concludes that, in real world conditions, the just noticeable 
differences would be somewhat larger due to the rather simple and 
uncluttered environment of a controlled study. In a controlled study, 
observers can devote much more attention to small differences due to 
the lack of other distractions that are common during driving. This 
leads UMTRI to conclude that 25 percent is a reasonable value upon 
which to judge inconsequential noncompliance applications. However, we 
have noticed in the many complaints received that consumers are very 
aware of and sensitive to the glare produced by oncoming drivers' 
headlamps. This public sensitivity leads us to believe that glare in 
the ``real-world'' is not necessarily like that in laboratory studies. 
Many of these complaints can be found at http://www.regulations.gov 
(see dockets: NHTSA-1998-4820; NHTSA-2001-8885; and NHTSA-2002-13957). 
This demonstrates that glare is of great significance to the public.
    Furthermore, the agency previously rejected the argument that other 
lamps can compensate for noncompliant lamps in two denials of 
inconsequentiality petitions to Nissan in 1997 (62 FR 63416) and GM in 
2004 (69 FR 1778).
    We are also aware of a NHTSA sponsored study titled ``Driver 
Perception of Just Noticeable Difference[s] in [of Automotive] Signal 
Lamp Intensities.'' [DOT HS 808 209, September 1994] This study 
demonstrated that a change in luminous intensity of 25 percent or less 
is not noticeable by most drivers. In applying the just noticeable 
differences research to the maximums of a parking lamp, 25% would 
equate to 156cd (for the 125cd maximum requirement) or 312cd (for the 
250cd maximum requirement).
    In this case, MBUSA did not provide the photometric data for the 
noncompliant lamp. Rather, it combined the requirements of the parking 
lamp and the lower beam headlamp to create a theoretical requirement, 
and argues that the failure of the combined light output is less than 
20% of the theoretical requirement. By combining the lower beam and 
parking lamps to create a theoretical requirement, MBUSA appears to be 
inflating the ``25%'' range that the agency would use to evaluate its 
petition.
    To learn more about the performance of the noncompliant parking 
lamp, the agency requested photometry data from

[[Page 50735]]

MBUSA. (the data provided by MBUSA is included in Docket NHTSA-2012-
0166) In reviewing the information, the data shows that the 
noncompliant parking lamp exceeded the maximum photometric requirements 
at 12 of 18 test points. The overages ranged from 16% to 504% with the 
majority (7 out of 12) of failures being over 200%. As such, the actual 
performance of the noncompliant parking lamps is far beyond what the 
agency would consider to be within the range of the just noticeable 
differences research and we believe that it will be noticeably brighter 
than a compliant lamp and potentially glaring to oncoming drivers.
    Further, MBUSA did not provide any information regarding the 
proximity of the noncompliant parking lamp to the front turn signal 
lamp. FMVSS No. 108 requires that any front turn signal lamp that is 
within a certain distance of any lamp (such as an auxiliary lower beam 
or fog lamp used to supplement the lower beam headlamp), to meet higher 
intensities in order to comply with the standard. For instance, if the 
front turn signal lamp is within 60mm of the lighted edge of the 
auxiliary lamp, then the turn signal must be 2.5 times brighter than 
the ``base'' turn signal lamp photometric requirements. Other 
requirements exist as well depending on the proximity of the turn 
signal lamp to the lighted edge of the auxiliary lamp, however no 
information was provided by the petitioner on the noncompliant lamp's 
key relationship to other lamps for the agency to evaluate. Because the 
performance of these noncompliant parking lamps approaches the 
performance of a fog lamp and the close proximity of these lamps to the 
front turn signal lamps, the agency is concerned that the noncompliant 
parking lamp may mask the output of a ``base'' front turn signal lamp. 
To address our concerns, the agency requested information regarding the 
certification of the front turn signal lamps. MBUSA responded that the 
front turn signal lamps were indeed certified to the base photometric 
requirements.
    VII. NHTSA Decision: In consideration of the foregoing, NHTSA has 
decided that MBUSA has not met its burden of persuasion and that the 
noncompliance described is inconsequential to motor vehicle safety. 
Accordingly, MBUSA's petition is hereby denied, and MBUSA must notify 
owners, purchasers and dealers pursuant to 49 U.S.C. 30118 and provide 
a remedy in accordance with 49 U.S.C. 30120.

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

Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2014-20140 Filed 8-22-14; 8:45 am]
BILLING CODE 4910-59-P

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