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Mercedes-Benz USA, LLC, Denial of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Agency: National Highway Traffic Safety Administration Byline: Cem Hatipoglu Date: 25 October 2023 Subjects: American Government  , Safety
Topic: Mercedes-Benz |
[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Notices]
[Pages 73392-73394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23527]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2020-0091; 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).
ACTION: Denial of petition.
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SUMMARY: Mercedes-Benz AG (``MBAG'') and Mercedes-Benz USA, LLC,
(``MBUSA'') (collectively, ``Mercedes-Benz'') have determined that
certain model year (MY) 2019-2021 Mercedes-Benz motor vehicles do not
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No.
135, Light Vehicle Brake Systems. Mercedes-Benz filed a noncompliance
report dated August 14, 2020. Mercedes-Benz subsequently petitioned
NHTSA on September 4, 2020, for a decision that the subject
noncompliance is inconsequential as it relates to motor vehicle safety.
This notice announces denial of Mercedes-Benz's petition.
FOR FURTHER INFORMATION CONTACT: Vince Williams, General Engineer,
Office of Vehicle Safety Compliance, the National Highway Traffic
Safety Administration (NHTSA), telephone (202) 366-2319, facsimile
(202) 366-3018.
SUPPLEMENTARY INFORMATION:
I. Overview: Mercedes-Benz has determined that certain MY 2019-2021
Mercedes-Benz A-Class, CLA-Class, GLA-Class, and GLB-Class motor
vehicles do not fully comply with the requirements of paragraph S5.1.2
of FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135).
Mercedes-Benz filed a noncompliance report dated August 14, 2020,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports. Mercedes-Benz subsequently petitioned NHTSA on September
4, 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.
This notice of receipt of Mercedes-Benz's petition was published
with a 30-day public comment period, on December 11, 2020, in the
Federal Register (85 FR 80225). One comment was 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-2020-0091.''
II. Vehicles Involved: Approximately 56,223 of the following MY
2019-2021 Mercedes-Benz A-Class, CLA-Class, GLA-Class, and GLB-Class
motor vehicles, manufactured between October 8, 2018, and July 27,
2020, are potentially involved:
2020 Mercedes-Benz A35 AMG
2020 Mercedes-Benz CLA45 AMG
2021 Mercedes-Benz GLA250
2019-2020 Mercedes-Benz A220
2020-2021 Mercedes-Benz CLA250
2020 Mercedes-Benz CLA35 AMG
2021 Mercedes-Benz GLA45 AMG
2021 Mercedes-Benz GLA35 AMG
2020 Mercedes-Benz GLB250
III. Noncompliance: Mercedes-Benz explains that the noncompliance
is that the subject vehicles are not equipped with an acoustic or
optical device that warns the driver when the rear brake lining
requires replacement, and therefore, does not meet the requirements
specified in paragraph S5.1.2 of FMVSS No. 135. Specifically, the
subject vehicles are equipped with a service brake system that does not
indicate the wear condition of the rear service brakes.
IV. Rule Requirements: Paragraph S5.1.2 of FMVSS No. 135 includes
the requirements relevant to this petition. The wear condition of all
service brakes shall be indicated by either acoustic or optical devices
warning the driver at his or her driving position when lining
replacement is necessary or by way of visually checking the degree of
brake lining wear, from the outside or underside of the vehicle,
utilizing only the tools or equipment normally supplied with the
vehicle. The removal of wheels is permitted for this purpose.
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. They do not reflect the views of NHTSA.
Mercedes-Benz describes the subject noncompliance and states its belief
that the noncompliance is inconsequential as it relates to motor
vehicle safety.
Mercedes-Benz submits that although the subject vehicles are
equipped with a service brake system that does not indicate the wear
condition of the rear service brakes, the front service brakes use an
electrical brake pad sensor to monitor the wear status of the front
brake pads. Mercedes-Benz explains that once the front service brakes
reach a thickness of \1/8\ inch or 3 mm, ``a warning lamp will
automatically display in the instrument cluster and will remain
permanently illuminated until the vehicle is serviced.'' Mercedes-Benz
states a message will also appear in the instrument cluster stating:
``Check brake pads. See Owner's Manual.'' Mercedes-Benz states that
while the driver is able to manually extinguish the indicator and
message, both the indicator and message will display at each ignition
cycle until the brake linings are replaced. Mercedes-Benz states that
the front brake lining will not become critical until 6,000 miles after
the warning indicator and message first appears.
Mercedes-Benz further explains that ``the brake force distribution
is in a range of 71.9%-75.5% (front)/28.1%-24.5% (rear)'' causing the
lining on the front service brakes to wear faster than the lining on
the rear service brakes. Therefore, Mercedes-Benz explains, when the
driver goes to get the front brakes serviced, ``the standard work
instructions direct the technician to also inspect and evaluate the
status of all other sets of brake pads'' and the driver will be advised
if the rear brake linings are ``not sufficient to make it to the next
service interval.'' Accordingly, Mercedes-Benz argues the ``vehicle's
rear brakes will be inspected by a trained professional technician a
number of times before they ever need to be replaced.''
Additionally, Mercedes-Benz states that in the event that the
subject vehicle is ``taken to an independent repair facility that did
not follow Mercedes-Benz's comprehensive brake pad inspection
protocols, there is not an increased safety risk.'' According to
Mercedes-Benz, if the rear brake lining becomes fully worn, the subject
vehicle ``would continue to meet the braking distance requirements of
FMVSS [No.] 135'' due to the brake force distribution described above
and the performance of the rear brakes. Furthermore, Mercedes-
[[Page 73393]]
Benz argues that if a driver of the subject vehicle had completely worn
rear braking linings, ``the driver will hear the unmistakable sound of
metal being pressed against the brake discs.''
Mercedes-Benz states that it is not aware of any reports or
complaints about the issue from the field and it has corrected the
condition in production.
Mercedes-Benz concluded by reiterating 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.
Mercedes-Benz'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 by following the online
search instructions to locate the docket number as listed in the title
of this notice.
VI. Public Comment: NHTSA received one comment from the public.
This comment was submitted by Ricquitta Johnson. The comment only
states the docket number for the notice of receipt and does not provide
any feedback or address the purpose of this petition.
VII. NHTSA's Analysis: The burden of establishing the
inconsequentiality of a failure to comply with a performance
requirement in an FMVSS--as opposed to a labeling requirement with no
performance implications--is more substantial and difficult to meet.
Accordingly, the Agency has not found many such noncompliances
inconsequential.\1\
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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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In determining inconsequentiality of a noncompliance, NHTSA focuses
on the safety risk to individuals who experience the type of event
against which a recall would otherwise protect.\2\ In general, NHTSA
does not consider the absence of complaints or injuries when
determining if a noncompliance is inconsequential to safety. The
absence of complaints does not mean vehicle occupants have not
experienced a safety issue, nor does it mean that there will not be
safety issues in the future.\3\
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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\ See Morgan 3 Wheeler Limited; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr.
12, 2016); see also 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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NHTSA has evaluated the merits of Mercedes-Benz's petition and
determined that Mercedes-Benz has not met its burden of persuasion that
the subject noncompliance is inconsequential to motor vehicle safety.
Paragraph S5.1.2 of FMVSS No. 135 requires all vehicles to have an
acoustic or optical warning device on all wheels, or a means of
visually checking the degree of brake lining wear from the outside or
underside of the vehicle by utilizing only the tools or equipment
normally supplied with the vehicle. The removal of wheels is also
permitted for this purpose. According to the petition's description of
the system at issue, the front wheels on the subject vehicles meet the
brake requirement in that they are equipped with electrical brake pad
sensors that monitor the front brake pads and provide an optical
warning to the driver once the brake pads reach a certain OEM
determined thickness. However, the rear wheels are neither equipped
with an optical or audible sensor to alert the driver once the rear
brake pads are below the OEM recommended thickness nor are the vehicles
supplied with a visual means of checking the degree of brake lining
wear from the outside or underside of the vehicle. Specifically, the
vehicle is lacking an inspection gauge with the necessary instructions
to check the wear of the brake pads on the rear axle from the outside
or underside of the vehicle.
In its petition, Mercedes-Benz states that the front brakes provide
72-75% of the braking force. Due to this unequal brake force
distribution, the front brake pads will wear out faster than the rear
brake pads. Mercedes-Benz contends that anytime the front brake pads
are serviced at a Mercedes-Benz workshop or an independent work
facility, the standard work instructions are to inspect both the front
and rear brake pads to determine if the rear brake pads also need to be
replaced. Mercedes-Benz also states that if the rear brake pads are not
serviced at the time when the front pads are inspected and the rear
brake pads wear out, even completely, before the next scheduled brake
inspection, the front brakes and brake distribution will always be
adequate to meet the stopping requirements of FMVSS No. 135. Mercedes-
Benz claims that in the case where the rear brake pads are completely
worn out, the driver will hear an unmistakable sound of metal being
pressed against the brake discs which will alert them that the pads are
worn out.
NHTSA finds that the repair scenario described by Mercedes-Benz
does not account for all drivers of Mercedes-Benz vehicles. Some
drivers may not follow brake service or maintenance schedules. Without
receiving a warning that the brake pads need to be replaced, these
drivers could continue to operate the vehicle for an extended period
once the rear brake pads reach the OEM determined minimum thickness. In
addition, the ``do it yourself (DIY)'' customers who may not have the
technical expertise of a Mercedes-Benz technician, could potentially
miss checking the condition of the rear brake pads during brake
servicing and, without a warning, continue to operate the vehicle for
an extended period once the rear brake pads reach the OEM determined
minimum thickness.
Although Mercedes-Benz claims that the brake force distribution
described above and the performance of the front brakes are enough to
meet the stopping requirements of the regulation in the event the rear
brake lining is completely worn, Mercedes-Benz provided no data to
support this assertion. Additionally, with regard to Mercedes-Benz'
claim that the driver would hear the unmistakable sound of metal on the
rear disc once the rear pads completely wear out, no data was provided
to support this contention and further, the purpose of the standard is
to notify the driver prior to reaching such an extreme brake pad wear
state that most of the brake power on that wheel is lost. 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.
VIII. NHTSA's Decision: In consideration of the foregoing, NHTSA
has decided that Mercedes-Benz has not met its burden of persuasion
that the subject FMVSS No. 135 noncompliance is inconsequential to
motor vehicle safety. Accordingly, Mercedes-Benz's petition is hereby
denied, and Mercedes-Benz is consequently obligated to provide
notification and a free remedy for that noncompliance under 49 U.S.C.
30118 and 30120.
[[Page 73394]]
(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. 2023-23527 Filed 10-24-23; 8:45 am]
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