[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Notices]
[Pages 48892-48894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23311]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-99-6161; Notice 1]
Mercedes-Benz U.S.A., Inc., Receipt of Application for Decision
of Inconsequential Noncompliance
Mercedes-Benz U.S.A., Inc. (MBUSA) has determined that 1,482 of its
1999 model year vehicles were equipped with convex passenger-side
mirrors that did not meet certain labeling requirements contained in
Federal Motor Vehicle Safety Standard (FMVSS) No. 111, ``Rearview
Mirrors,'' and has filed an appropriate report pursuant to 49 CFR part
573, ``Defect and Noncompliance Reports.'' MBUSA has also applied to be
exempted from the notification and remedy requirements of 49 U.S.C.
chapter 301--``Motor Vehicle Safety'' on the basis that the
noncompliance is inconsequential to motor vehicle safety.
We are publishing this notice of receipt of an application as
required by 49 U.S.C. 30118 and 30120. This action does not represent
any agency decision or other exercise of judgment concerning the merits
of the application.
If a vehicle has a convex passenger-side mirror, paragraph S5.4.2
of FMVSS No. 111 requires that it have the words ``Objects in Mirror
Are Closer Than They Appear'' permanently and indelibly marked at the
lower edge of the mirror's reflective surface.
From April 5 through April 9, 1999, MBUSA sold and/or distributed
1,482 C-Class, E-Class, and E-Class Wagons that contain a typographical
error in the text of the warning label required in paragraph S5.4.2.
The text on the subject vehicles' mirrors reads ``Objects in Mirror
Closer Than They Appear.'' The word ``Are'' is not clearly printed or
visible.
MBUSA supports its application for inconsequential noncompliance
with the following statements:
MBUSA does not believe that the foregoing noncompliance will
impact motor vehicle safety for the following reasons. FMVSS 111
sets forth requirements for the performance and location of rearview
mirrors to reduce the number of deaths and injuries that occur when
the driver of a motor vehicle does not have a clear and reasonably
unobstructed view to the rear. Provisions regarding the use of a
convex side view mirror were added by
[[Page 48893]]
the National Highway Traffic Safety Administration (NHTSA or the
Agency) in an 1982 rulemaking. 47 FR 38698 (1982). The final rule
specifically allowed the use of convex passenger side outside
mirrors. ``Convex mirrors'' are defined as ``a mirror having a
curved reflective surface whose shape is the same as that of the
exterior surface of a section of a sphere.'' See Id. at 38700,
codified at 49 CFR 571.111 S4. NHTSA determined that allowing the
installation of a convex mirror on the passenger side of vehicles
could confer a substantial safety benefit in that such mirrors tend
to provide a wider field of vision than ordinary flat or plane
mirrors. Such a view could be highly desirable in maneuvers such as
moving to the right into an adjacent lane. Id. at 38699.
NHTSA also recognized, however, that there were inherent
drawbacks to the use of convex mirrors as well. One of the more
significant drawbacks was that images of an object viewed in a
convex mirror tend to be smaller than those of the same object
viewed in a plane mirror. Consequently, drivers used to plane
mirrors may erroneously assume that vehicles situated immediately
behind the driver and to the right may be further away than
anticipated. Such an erroneous perception may cause the drive to
move to the right and change lanes before it is actually safe to do
so. In order to address this concern, and at the suggestion of
several automobile manufacturers, NHTSA required that a warning be
permanently etched into all convex passenger side view mirrors. This
suggestion was favored over NHTSA's original proposal which would
have provided for an orange border around the convex mirror to alert
the driver of a potential difference in mirror characteristics. The
written warning was chosen because, based on studies performed at
the request of NHTSA, the Agency found that (1) The fact that a
convex mirror image appears different from that of a plane mirror
does not, in the Agency's view, provide an adequate warning that
objects viewed in the convex mirror are closer than they appear; (2)
the etched warning would serve as a reminder to the driver with each
use and would assist drivers who may not read such a warning
alternatively placed in the owner's manual; and (3) the etched
warning conveys a much clearer warning than the rather ambiguous
orange border. Id. at 38700.
In the case of MBUSA's affected vehicles, the etched warning
provides that ``Objects in Mirror Closer Than They Appear.'' The
missing word ``Are'' is contrary to the exact wording of the warning
required by FMVSS 111. The cause of this error was traced to a
defective stencil used in the laser printer which etches the
warnings onto mirrors. MBUSA believes that the stencil defect, which
caused the laser printer to inadvertently leave the word ``Are''
from the warning, was caused by dirt or some other cosmetic flaw in
the stencil. This situation apparently was not immediately noticed
by MBUSA's supplier's quality control department. MBUSA does not
believe, however, that the foregoing error in the warning statement
etched onto the affected mirrors, affects their safety in any
discernible way. Specifically, as provided in the preamble to the
final rule amending FMVSS 111 to allow the use of convex mirrors,
one of the potential drawbacks associated with convex mirrors is
that images in such mirrors tend to appear further away than their
actual position. NHTSA recognized the need to provide an adequate
warning to vehicle operators at all times regarding this distortion.
The Agency rejected an earlier proposal for a symbolic warning
because such a warning did not adequately convey the message
regarding the distortion caused by convex mirrors. Instead, NHTSA
required a specifically worded warning that would serve to inform
drivers about the distortion caused by convex mirrors. Although not
technically in compliance with the exact requirements of FMVSS 111,
MBUSA believes that the etched warning on the noncompliant Mercedes-
Benz vehicles still conveys the necessary warning consistent with
the purpose set forth in the preamble to the final rule. The change
caused by the missing word ``Are'' does not alter the meaning of the
warning statement or the spatial relationship between two objects.
Thus, when used in the phrase ``Objects in Mirror Closer Than They
Appear,'' the warning, although grammatically incorrect in the
foregoing context, still conveys the same meaning.
In addition, convex mirrors have been in use since the final
rule amending FMVSS 111 became effective in 1982. In the ensuing 17
years, the driving public has become accustomed to seeing the etched
warning on convex passenger side view mirrors. In fact, almost all
passenger vehicles currently manufactured have convex, rather than
plane, passenger side view mirrors. Because of this, drivers know
that convex side view mirrors contain a slight distortion and are
able to react accordingly. The importance of the warning, while
still viable, is not as critical as when convex mirrors first came
into use. Instead of a message of first impression, the warning now
serves as a reminder to drivers that a convex mirror is in use.
Consequently, the driving public is likely to note that the warning
on affected Mercedes-Benz vehicles is present, thus notifying them
of the existence of a convex mirror, but unlikely to notice a minor
grammatical error that does not effect the meaning of the warning.
Although NHTSA has not previously addressed this exact issue in
prior petitions for inconsequential noncompliance, MBUSA believes
that there are examples of prior petitions which are sufficiently
analogous to support the Company's current petition. Specifically,
NHTSA has previously granted numerous petitions for inconsequential
noncompliance regarding errors contained in various labels or
markings. One of the more frequent areas where inconsequential
mislabeling occurs is in the area of tire labeling. See e.g.,
General Motors Corporation, 64 FR 7944 (1999) (tire information
label on glove compartment containing erroneous information
regarding the maximum number of occupants allowed in vehicle deemed
inconsequential since seat capacity is evident from number of
seating positions and seatbelts); Mercedes-Benz of North America
Inc., 63 FR 59623 (1998) (tire information label with incorrect
sized lettering and incorrect mounting position deemed
inconsequential since information was accurate and legible and
location of label was in a position likely to be found by vehicle
operator); Red River Manufacturing. Inc., 63 FR 59624 (1998) (tire
information on trailer certification labels with English only units
of measure deemed inconsequential since correct English unit
information sans metric is present and label is in compliance with
regulations in all other respects); Cooper Tire and Rubber Company,
62 FR 45474 (1997) (tires with incorrect load and inflation label on
the serial side were deemed inconsequential since incorrect
information was within tire tolerances and accurate information was
provided in two other locations); Bridgestone/Firestone Inc., 57 FR
45865 (1992) (tire serial code with missing number determined
inconsequential since missing number was contained in the code
identifying the manufacturer of the tire and such information was
otherwise discernible from other markings on affected tires); Cooper
Tire & Rubber Co., 56 FR 11300 (1991) (tires maximum inflation
pressure marked ``65 p.s.i. max. press.'' instead of ``65 p.s.i.
cold'' deemed inconsequential since both phrases have the same
meaning and all other information is otherwise correct and in
compliance).
In each of the foregoing cases, NHTSA determined that although a
noncompliance of the relevant safety standard had occurred, the
noncompliances were inconsequential with regards to motor vehicle
safety since the erroneous information was corrected elsewhere or
did not otherwise alter the meaning of the information conveyed. The
last two examples cited above are particularly analogous to MBUSA's
current situation. In the Bridgestone/Firestone case, the tire
manufacturer had failed to include the number ``2'' in the tire
serial code. The number 2 was part of the serial marker that
identified Bridgestone/Firestone as the tire manufacturer. Despite
the missing number, NHTSA determined that the violation was
inconsequential since the tires bore the brand name ``Firestone''
and were labeled with the old serial code for Firestone. The tires
also bore the date code, size, model and ``Made in U.S.A.'' markings
which allowed sufficient identification of the tires in the event a
notification and remedy campaign was required. Thus, the
noncompliance was deemed inconsequential. Like Bridgestone/
Firestone, the missing word ``Are'' does not alter the information
conveyed to the consumer. The warning ``Objects in Mirror (Blank)
Closer Than They Appear'' still provides enough information to the
vehicle operator so that the operator is aware a convex passenger
side view mirror is in use and that some distortion will result.
Likewise, the second Cooper Tire & Rubber Company case is also
analogous to MBUSA's current petition. Specifically, in that case
the tire manufacturer had incorrectly stamped a lot of tires with
the label ``MAX. LOAD 2540 LBS. AT 65 P.S.I. MAX. PRESS'' instead of
the appropriate ``MAX. LOAD 2540 LBS. AT 65 P.S.I. COLD.'' NHTSA
determined, however, that since ``MAX PRESS'' was
[[Page 48894]]
understood to mean the maximum cold inflation pressure to which the
tire may be inflated and that the term ``COLD'' carried the same
meaning, that the noncompliance was inconsequential with regards to
motor vehicle safety. Like Cooper Tire & Rubber Company's mislabeled
tires, MBUSA's convex passenger side view mirror warnings the word
``Are'' is not clearly printed or visible. The two warning
statements, however, have the same meaning. Consequently, if the
word ``Are'' is not clearly printed or visible, it has no impact to
the meaning of the warning and should be deemed an inconsequential
noncompliance.
As provided above, MBUSA has identified the cause of the
original error in the etched warning on convex passenger side view
mirrors to a defective stencil used in the laser printer which
etched the affected mirrors. MBUSA has since addressed this issue by
ensuring that the complete and visible warning statement on all
vehicles meets the requirements of FMVSS 111 S5.4.3 and is properly
etched onto the mirror. MBUSA does not believe that the
noncompliance described above has any appreciable impact on motor
vehicle safety. The warning provided in noncompliant vehicles,
although grammatically incorrect, still conveys the exact same
meaning as the warning required by FMVSS 111. In fact, only one word
was not clearly printed or visible in the required warning. This
omission of the word did not change the meaning of the warning
itself. MBUSA requests this application be granted so that an
unnecessary and costly consumer recall action may be avoided. MBUSA
expects a particularly low owner response to such a recall, if it
were undertaken, because the basic message of the warning is
adequately conveyed despite the error in format. In addition, since
convex passenger side view mirrors with warnings have been in
widespread use since 1982, MBUSA does not believe that the driving
public will even note the error since the warning, if even noticed,
will only serve as a reminder to what drivers have long become
accustomed to.
We invite you to comment in writing on MBUSA's application.
Comments should refer to the docket number and be submitted in two
copies to: U.S. Department of Transportation, Docket Management, Room
PL-401, 400 Seventh Street, SW, Washington, DC, 20590.
We will consider comments received before the close of business on
the closing date indicated below. We will file the application and
supporting materials. We will consider, to the extent possible, all
comments received after the closing date. When we grant or deny the
application, we will publish the notice in the Federal Register.
Comment closing date: October 8, 1999.
(49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and
501.8)
Issued on: September 2, 1999.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 99-23311 Filed 9-7-99; 8:45 am]
BILLING CODE 4910-59-P