[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]
BILLING CODE 4910-59-P