Panda Power LLC, Denial of Petition for Decision of Inconsequential Noncompliance

Topics:  Panda Power

Nancy Lummen Lewis
National Highway Traffic Safety Administration
June 27, 2013

[Federal Register Volume 78, Number 124 (Thursday, June 27, 2013)]
[Notices]
[Pages 38800-38801]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-15470]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2010-0166; Notice 2]


Panda Power LLC, Denial of Petition for Decision of 
Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Denial of Petition.

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SUMMARY: Panda Power LLC (Panda Power) \1\, has determined that High 
Intensity Discharge (HID) lighting kits \2\ that it imported and sold 
during 2007, 2008 and 2009 failed to meet the requirements of paragraph 
S7.7 of Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, 
Reflective Devices, and Associated Equipment. Panda Power has filed an 
appropriate report pursuant to 49 CFR Part 573, Defect and 
Noncompliance Responsibility and Reports, dated February 10, 2010.
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    \1\ Panda Power, LLC (Panda Power) is organized under the laws 
of the State of Arizona and is the importer of the subject 
nonconforming replacement equipment. Panda Power sold the 
nonconforming replacement equipment while doing business under the 
name Mobile HID.
    \2\ Panda Power's high-intensity lighting (HID) kits each 
contained 2 light sources, 2 ballasts and a wiring harness with 
relay and fuse).
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule 
implementing those provisions at 49 CFR Part 556, Panda Power 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 December 21, 2010 in the Federal Register (75 FR 80110). 
Comments were received from Daniel Stern Lighting Consultancy and 
Michael F. Turpen. To view the petition, all supporting documents, and 
the comments, 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-2010-0166.''

FOR FURTHER INFORMATION CONTACT: For further information on this 
decision, contact Mr. Michael Cole, Office of Vehicle Safety 
Compliance, the National Highway Traffic Safety Administration (NHTSA), 
telephone (202) 366-2334, facsimile (202) 366-7002.
    Lighting Kits Involved: Affected are approximately 1,851 headlamp 
kits that Panda Power sold during 2007, 2008 and 2009. All of the 
affected HID headlamp kits were manufactured by Guangzhou Kingwoodcar 
Company, LTD, Guangzhou City, China.
    Summary of Panda Power's Analyses: Panda Power did not describe the 
noncompliances in detail, instead it deferred to the agency's concern 
that the subject HID headlamp kits may not comply with one or more of 
the regulations enforced by the agency. This concern was described as 
an apparent noncompliance in a letter NHTSA sent to Panda Power dated 
September 2, 2009. The letter was sent to Panda Power as part of a 
National Highway Traffic Safety Administration (NHTSA) Office of 
Vehicle Safety Compliance Office Activity.\3\
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    \3\ Office Activity Number: OA-108-090606G.
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    In their petition, Panda Power argues that the noncompliance is 
inconsequential to motor vehicle safety for the following reasons: (1) 
The HID headlamp kits were originally intended for sale to the 
agricultural community to be placed on tractors and combines, for off-
road vehicles, and for exhibition purposes; (2) the HID bulbs that were 
sold with the kits in 2007 and 2008 are likely burned out by now and no 
longer functioning; and (3) Panda Power no longer sells the HID 
headlamp kits.
    Supported by the above stated reasons, Panda Power believes that 
although the HID headlamp kits do not meet the required dimensional and 
electrical specifications of FMVSS No. 108, the noncompliance is 
inconsequential to motor vehicle safety and that its petition, to 
exempt it 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.

Discussion
Requirement Background
    Paragraph S7.7 of FMVSS No. 108 requires in pertinent part:

S7.7 Replaceable light sources. Each replaceable light source shall 
be designed to conform to the dimensions and electrical 
specifications furnished with respect to it pursuant to part 564 of 
this chapter, and shall conform to the following requirements: (See 
a,b,c,d,e, and f)

    A new motor vehicle must have a headlighting system that includes 
upper beams and lower beams. Among other things, the headlamps must 
provide light within a specified range of intensity in certain areas, 
and not provide light above specified levels in other areas. In 
general, vehicle manufacturers use one of a number of standard 
replaceable light sources to achieve the regulatory requirements, 
although alternatively they may devise or arrange for development of a 
new light source for a new vehicle. For each of these types of light 
sources, the dimensions and electrical specifications are furnished to 
NHTSA under 49 CFR Part 564. The vehicle manufacturer certifies that 
the vehicle with a particular light source meets FMVSSs, including 
FMVSS No. 108.
    Each headlamp and item of associated equipment (such as a light 
source commonly referred to as a headlamp bulb) manufactured to replace 
any lamp or item of associated equipment must be designed to conform to 
FMVSS No. 108. Each replaceable light source must be designed to 
conform to the dimensions and electrical specifications furnished with 
respect to it pursuant to 49 CFR Part 564. In addition, NHTSA's 
regulations require that the base of the replaceable light source be 
marked with the bulb marking designation, that the replaceable light 
source meet lighting performance requirements and, if a ballast is 
required, additional requirements must be met.
    Headlamp replaceable light sources have standard designations. 
NHTSA's regulations use terms for the various types of headlamp bulbs, 
such as HB1

[[Page 38801]]

and HB2. (Bulb manufacturers tend to use corresponding ANSI trade 
numbers such as 9004, as well). Each type of replaceable light source 
is unique in dimensional and electrical design so as not to be 
interchangeable with another type of replaceable light source. Every 
replaceable light source must be designed to conform to the marking, 
dimensional, and electrical specifications applicable to the type of 
replaceable light source that it replaces. For instance, the 
replacement light source must have the same (within a tolerance) 
luminous flux (a measure of light output) as the light source it 
replaces. When the light source is mounted in a headlamp for that type 
of light source, the lamp must discharge light in specified directions 
and intensity levels, to satisfy the same requirements of the standard. 
If it were otherwise, among other things, the wrong light sources could 
be placed in headlamps and the light output would be incorrect or 
improper.
    NHTSA'S Analyses: Panda Power argues that the noncompliance is 
inconsequential to motor vehicle safety, primarily, because the kits 
were originally intended for sale to the agricultural community and to 
be placed on tractors and combines, or for off-road vehicles, or for 
exhibition purposes. NHTSA reviewed the Office Activity file for the 
original investigation with Panda Power. Excerpts from Panda Powers Web 
site, dated June 24, 2009, clearly indicate that these items are 
intended for motor vehicle headlamps. The site displays pictures of 
numerous passenger cars (e.g., Mercedes Benz, Lexus, Toyota, and 
Mitsubishi), references other motor vehicles (e.g., BMW), provides a 
link to Sylvania's replacement bulb guide for motor vehicles, and 
provides pictures of beam patterns as seen on roadways. It also 
provides troubleshooting tips for installations on motor vehicles 
containing daytime running lamps and how to stop lamp flicker when 
hitting bumps in the road. Because of this information, we find that 
Panda Powers claim that they sold these items for non-road use to be 
disingenuous.
    Panda Power further states that its products are likely no longer 
functioning. Regardless of the quality of Panda Power's products, the 
Motor Vehicle Safety Act requires that manufacturers (defined to 
include importers) of noncompliant equipment must notify purchasers of 
the noncompliance (pursuant to 49 U.S.C. 30119) and provide a free 
remedy (pursuant to 49 U.S.C. 30120). If a free remedy cannot be 
provided then repurchase should be initiated in a reasonable time 
frame.
    Panda Power also argues that because it stopped selling the HID 
conversion kits, it should not be required to conduct a recall and 
remedy campaign. Among other things, 49 U.S.C. 30112(a) prohibits the 
importation and sale of noncompliant equipment and Panda Power is 
compelled to discontinue this practice to prevent further violations of 
49 U.S.C. 30112(a), and not as a waiver from the recall and remedy 
requirements. NHTSA'S Response to Comments: NHTSA received comments 
from two parties. Both of these parties recommend denying Panda Power's 
petition.
    Daniel J. Stern of the Daniel Stern Lighting Consultancy provided a 
substantive, practical, and technical argument regarding the effects on 
headlamp performance when replacing standardized headlamp replaceable 
light sources with HID conversion kits. Mr. Stern stated that 
installing HID light sources into headlamps that were designed to 
accept tungsten-halogen light sources would create an enormous increase 
in glare light directed towards other road users, and reduce the 
driver's distance visual acuity due to increased foreground 
illumination. Mr. Stern also stated that the noncompliance created by 
Panda Power's HID kits appear to be systemic, pervasive, and 
substantial, creating a significant safety risk to the motoring public.
    Michael F. Turpen, a private citizen, examined archives of Panda 
Power's Web site using www.waybackmachine.org (a Web site maintained by 
the Internet Archive, a 501(3)(c) non-profit corporation). He 
referenced archived pages of Panda Power's Web site that showed its HID 
Conversion kits installed on motor vehicles, photos of headlamp output 
on streets in residential neighborhoods, and banners that indicate 
``offering HID kits for any vehicle.''
    NHTSA Decision: In consideration of the foregoing, NHTSA has 
decided that Panda Power has not met its burden of persuasion that the 
FMVSS No. 108 noncompliances identified in Panda Power's Noncompliance 
Information Report does not present a significant safety risk resulting 
from increases in glare when its HID headlamp conversion kits are used 
in headlamps that were not designed for this type of light source. 
Therefore, NHTSA does not agree with Panda Power that this specific 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
Panda Power's petition is hereby denied, and the Panda Power 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 
CFR 1.95 and 501.8)

    Issued On: June 19, 2013.
Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2013-15470 Filed 6-26-13; 8:45 am]
BILLING CODE 4910-59-P