Porsche Cars North America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance |
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Topics: Porsche 911
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Otto G. Matheke III
National Highway Traffic Safety Administration
2 October 2020
[Federal Register Volume 85, Number 192 (Friday, October 2, 2020)]
[Notices]
[Pages 62365-62367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21835]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2019-0094; Notice 2]
Porsche Cars North America, Inc., 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: Porsche Cars North America, Inc. has determined that certain
model year (MY) 2018 Porsche 911 GT3 motor vehicles do not fully comply
with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps,
Reflective Devices, and Associated Equipment. Porsche filed a
noncompliance report dated July 24, 2019. Porsche subsequently
petitioned NHTSA on August 20, 2019, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This document announces the grant of Porsche's petition for
inconsequential noncompliance.
FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle
Safety Compliance, the National Highway Traffic Safety Administration
(NHTSA), telephone (202) 366-5304, facsimile (202) 366-3081.
SUPPLEMENTARY INFORMATION:
I. Overview
Porsche has determined that certain MY 2018 Porsche 911 GT3 motor
vehicles do not fully comply with Paragraph S8.1.4 and Table I-a of
FMVSS No. 108, Lamps, Reflective Devices, and Associated Equipment. (49
CFR 571.108). Porsche filed a noncompliance report dated July 24, 2019,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports. Porsche subsequently petitioned NHTSA on August 20, 2019,
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 Porsche's petition was published with a 30-day
public comment period, on January 3, 2020, in the Federal Register (85
FR 412). 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-2019-0094.''
II. Vehicles Involved
Approximately 2,610 MY 2018 Porsche 911 GT3 motor vehicles,
manufactured between August 30, 2017, and December 21, 2018, are
potentially involved.
III. Noncompliance
Porsche explains that the noncompliance is that the subject
vehicles are equipped with rear reflex reflectors that do not meet the
height requirements as specified in paragraph S8.1.4 and Table I-a of
FMVSS No. 108. Specifically, the rear reflex reflectors are mounted
approximately 0.20 inches below the required 15 inches above the road
surface. The actual height above the road surface is approximately 14.8
inches.
IV. Rule Requirements
Paragraph S8.1.4 and Table I-a of FMVSS No. 108 includes the
requirements relevant to this petition. The reflective devices should
not be mounted less than 15 inches and no more than 60 inches in
height.
V. Summary of Porsche's Petition
The following views and arguments presented in this section are the
views and arguments provided by Porsche. They do not reflect the views
of the Agency.
Porsche described the subject noncompliance and stated that the
noncompliance is inconsequential as it relates to motor vehicle safety.
Porsche submitted the following views and arguments in support of
its petition: \1\
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\1\ See Docket Number ``NHTSA-2019-0094-001''.
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1. The installation height requirements of reflex reflectors as
defined by paragraph S8.1.4 of FMVSS No. 108 are intended to assure a
sufficient luminous intensity of the reflex reflectors towards the
source of illumination. Although the rear reflex reflectors'
installation height falls slightly below the specified minimum height
by 0.20 inches (5 mm), Porsche has confirmed that the rear reflex
reflectors meet or exceed all applicable FMVSS requirements regarding
the luminous intensity performance as stated under Sec. 571.108, S14
and all other relevant requirements of FMVSS No. 108 of paragraphs S8.1
and S8.2. Porsche provided a copy of the photometric test results for
the rear reflex reflectors, which Porsche believes shows that the
installation height does not affect the performance of the luminous
intensity of the rear reflex reflectors or the visibility of the
subject vehicles.
2. Porsche is unaware of any accidents, injuries, warranty claims
or customer complaints related to the slight shortfall of the rear
reflex reflectors' installation height. The absence of indicant data
supports the conclusion that the minimal deviation in mounting height
does not affect the performance of the rear reflectors or the
visibility of the subject vehicles.
3. Porsche notes that NHTSA has previously granted a similar
petition.\2\ In that petition, Harley-Davidson Motor Company, Inc.
described the noncompliance with FMVSS No. 108 where the rear reflex
reflectors were mounted an average of 0.3 inches to 0.7 inches below
the required 15-inch height. NHTSA determined that this noncompliance,
where the deviation from the specified height was even greater than in
the present case, was inconsequential to motor vehicle safety based
primarily on the lack of reduction in conspicuity as compared to
compliant vehicles. Porsche suggests that its noncompliant vehicles are
also equally conspicuous.
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\2\ See 79 FR 69558, November 21, 2014.
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4. The purpose of the FMVSS No. 108 reflex reflector requirement is
to prevent crashes by permitting early detection of an unlighted motor
vehicle at an intersection or when parked on or by the side of the
road, and the height requirement is intended ``to ensure adequate
reflex reflector performance
[[Page 62366]]
relative to headlamps that would illuminate them.'' \3\ Porsche stated
that the photometry performance of the reflex reflectors in the subject
vehicles well exceeds the minimum performance standards outlined in
FMVSS No. 108, Table XVI. Based on the photometry performance of the
reflectors in the subject vehicles, and the fact that the vehicles meet
or exceed the requirements of paragraphs S8.l and S8.2 of FMVSS No.
108, with regard to reflection performance, Porsche believes the
vehicles satisfy the safety objectives of the standard.
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\3\ See 82 FR 24204, May 25, 2017.
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5. The noncompliance issue has been corrected in production
vehicles and all vehicles currently being produced meet applicable
mounting height requirements.
6. The mounting height of the reflex reflectors complies with the
minimum height requirements of the United Nations ECE regulations.
Those regulations specify a minimum mounting height of 250 mm (9.84
inches) for rear retro-reflectors. See UN R48, Sec. 6.14.4.2. The
reflex reflectors in the subject Porsche vehicles, with a mounting
height of 14.8 inches, are well within this requirement.
Porsche concluded 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.
In response to a request from NHTSA for clarification, Porsche
specified the dimensions of the noncompliant reflex reflector as being
110.119 mm by 35.375mm (4.34 by 1.39 inches). Porsche also clarified
that the 0.2-inch deviation from the minimum required mounting height
is relative to the ``center of the item'' (centroid of the functional
reflective area). Porsche also provided a PowerPoint presentation that
included detailed test data which showed the results of several
photometric analyses performed on the subject reflex reflectors which
included partially masking the reflex reflector to artificially shift
the centroid thereby raising the mounting height.
VI. NHTSA's Analysis
The primary function of a reflex reflector is to reduce crashes by
permitting early detection of a motor vehicle that is approaching an
intersection or parked by the side of the road. While NHTSA recognizes
the importance of this function to safety, each petition is evaluated
on its own merits. In some cases, the marginal nature of a
noncompliance might be one factor in analyzing if a noncompliance is
inconsequential to safety. In this case, Porsche showed the results of
several photometric analyses performed on the subject reflex reflectors
which included partially masking the reflex reflector to shift its
mounting center. The test data showed passing photometric results when
the photometric performance of the reflex reflector was measured for
all partially masked scenarios which set the center point at or above
the minimum required 15 inches. Given the specific circumstances of
this case, the Agency finds the petitioner's study helpful in assessing
the safety risk of this non-compliance. NHTSA has concluded that the
test data provided by Porsche is sufficient to grant this petition. The
purpose of the mounting height is to aid in the visibility of the
reflex reflector from other road users' line of sight. While the
centroid of the reflex reflector is mounted below the minimum height,
the size of the subject reflex reflector is large enough to ensure that
there is a sufficient surface area of the reflex reflector above the
minimum required height to meet the photometry requirements by more
than double the minimum requirement. Thus, the size of the reflex
reflector compensates for its mounting height and achieves the safety
need to aid in visibility.
Porsche additionally cited a prior NHTSA ruling for a similar
noncompliance granting inconsequentiality to Harley-Davidson Motor
Company, Inc. for a reflex reflector mounted at an average of 0.3'' to
0.7'' below the required 15'' height.\4\ See 79 FR 69558, November 21,
2014. The aforementioned petition concerned a similar noncompliance for
a reflex reflector that was mounted 0.3'' to 0.7'' below the minimum
mounting height vs 0.2''. NHTSA believes Porsche has provided
compelling information supporting the grant of its petition.
Specifically, we found Porsche's analysis by masking a portion of the
reflex reflector to demonstrate the performance of the remaining
unmasked portion of the reflex reflector that met the mounting height
requirement especially compelling.
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\4\ See 79 FR 69558, November 21, 2014.
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We note that the noncompliance at issue concerns a failure to meet
a performance requirement. 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.\5\
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\5\ 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.\6\ 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.'' \7\
``[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.'' \8\
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\6\ 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).
\7\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\8\ 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.\9\ Similarly, NHTSA has rejected petitions
based on the assertion that only a small percentage of vehicles or
items of equipment are likely to
[[Page 62367]]
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.\10\ These considerations are also relevant when
considering whether a defect is inconsequential to motor vehicle
safety.
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\9\ 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).
\10\ 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 finds that Porsche has met
its burden of persuasion that the FMVSS No. 108 noncompliance is
inconsequential as it relates to motor vehicle safety. Accordingly,
Porsche's petition is hereby granted and Porsche is exempted from the
obligation to provide notification of and remedy for the subject
noncompliance in the affected vehicles 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, the granting of
this petition only applies to the subject vehicles that Porsche no
longer controlled at the time it determined that the noncompliance
existed. However, this decision 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 Porsche 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. 2020-21835 Filed 10-1-20; 8:45 am]
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