[Federal Register Volume 87, Number 69 (Monday, April 11, 2022)]
[Notices]
[Pages 21259-21262]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-07646]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0100; Notice 2]


Nissan North America, Inc., 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: Nissan North America, Inc. (Nissan) has determined that 
certain model year (MY) 2020 Nissan Sentra motor vehicles do not fully 
comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, 
Lamps, Reflective

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Devices, and Associated Equipment. Nissan filed a noncompliance report 
dated August 26, 2020. Nissan subsequently petitioned NHTSA on 
September 18, 2020, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety. This notice 
announces the denial of Nissan's petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, NHTSA, telephone (202) 366-5304.

SUPPLEMENTARY INFORMATION:

I. Overview

    Nissan has determined that certain MY 2020 Nissan Sentra motor 
vehicles do not fully comply with the requirements of paragraph 
S10.18.9.1.2 of FMVSS No. 108, Lamps, Reflective Devices, and 
Associated Equipment (49 CFR 571.108). Nissan filed a noncompliance 
report dated August 26, 2020, pursuant to 49 CFR part 573, Defect and 
Noncompliance Responsibility and Reports. Nissan subsequently 
petitioned NHTSA on September 18, 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.
    Notice of receipt of Nissan's petition was published with a 30-day 
public comment period, on March 24, 2021, in the Federal Register (86 
FR 15769). 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/. Then follow the online 
search instructions to locate docket number ``NHTSA-2020-0100.''

II. Motor Vehicles Involved

    Approximately 5,520 MY 2020 Nissan Sentra motor vehicles, 
manufactured between November 26, 2019, and March 24, 2020, are 
potentially involved.

III. Noncompliance

    Nissan explains that the noncompliance is that the right-hand LED 
headlamp aim in the subject vehicle may be misaligned resulting in a 
vertical gradient value less than 0.13 as required by paragraph 
S10.18.9.1.2 of FMVSS No. 108.

IV. Rule Requirements

    Paragraph S10.18.9.1.2 of FMVSS No. 108 includes the requirements 
relevant to this petition: Vertical gradient. The gradient of the 
cutoff measured at either 2.5[deg] L or 2.0[deg] R must be not less 
than 0.13 based on the procedure of S10.18.9.1.5.

V. Summary of Nissan's Petition

    The following views and arguments presented in this section are the 
views and arguments provided by Nissan and do not reflect the views of 
the Agency. In its petition, Nissan describes the subject noncompliance 
and contends that the noncompliance is inconsequential as it relates to 
motor vehicle safety.
    In support of its petition, Nissan provided NHTSA with the 
following:

    1. Nissan states that ``the supplier (Ichikoh) did not apply the 
correct aiming logic when setting the head lamp aim parameters'' in 
the subject vehicles and, ``[a]s a result, the right-hand LED 
headlamp aim may be misaligned resulting in a vertical gradient 
value below 0.13.'' Nissan states that ``[a] lower G-Value will lead 
to a headlamp cut line that is slightly less sharp.'' According to 
Nissan, ``Ichikoh inspected 3,506 lamps and found 572 lamps with a 
G-Value below 0.13. However, when the cut-off value is brought down 
to two decimals instead of three (per the express requirement in 
FMVSS No. 108), only 286 of the 3,506 lamps (about 8%) fall below 
the 0.13 minimum threshold. Of the 286 lamps, 248 (about 87%) are at 
a gradient value of 0.12.''
    2. According to Nissan, Ichikoh confirmed that, ``even when the 
G-Value is below 0.13, all points of the Light Distribution achieve 
the required specifications of FMVSS 108 for both the low and high 
beam performance.'' Nissan attached to its petition test data from 
Ichikoh regarding such photometric performance.
    3. Nissan states that it ``has not received any reports from the 
field of customer complaints, warranty claims, crashes, injuries, or 
fatalities related to this issue.''
    4. Nissan contends that ``[t]he purpose of the gradient 
requirement is to assist in headlamp re-aiming.'' Nissan states that 
``[t]he vehicles potentially affected by this issue were aimed 
properly at the factory using a different aiming method. Therefore, 
the only potential concern would relate to re-aiming performed after 
the vehicle has been in use.'' Nissan stated that ``[a]iming of the 
headlamps by a service technician in the field is an event that is 
expected to occur infrequently. To confirm this, Nissan searched its 
repair order database for repair orders on the previous generation 
Sentra that involved re-aiming of the headlamps. Out of 1,389,330 
vehicles, 161 repair orders were found that involved headlamp 
aiming. This rate of repair would be 0.011% of vehicles. If the same 
rate of repair is applied to the expected 420 vehicles in the 
subject population [Nissan] would expect only 0.05 vehicles of the 
subject population to require a re-aiming in the field.''
    5. Nissan asserts that ``[t]he difference in gradient values 
between 0.12 and 0.13 does not materially affect the ability of a 
service technician to properly aim the lamp in the rare case that 
this would need to be done in the field.''
    6. ``Even if the lamps had to be re-aimed at some point,'' 
according to Nissan, ``it is unlikely the driver or other motorists 
would notice any glare or observable difference in operation between 
a fully compliant lamp and the subject lamps based on the conditions 
described above.''

    Nissan concludes 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.

VI. Public Comment

    NHTSA received one comment from the general public. The commenter 
explains that they have owned vehicles manufactured by Nissan and 
states that the noncompliance is not inconsequential. The comment does 
not, however, substantively address issues relevant to Nissan's 
petition with any specificity.

VII. NHTSA's Analysis

A. General Principles

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--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 to show that 
the issue is inconsequential to safety. The absence of complaints does 
not mean vehicle occupants have not experienced a safety

[[Page 21261]]

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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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also do not justify granting an 
inconsequentiality petition.\4\ Similarly, mere assertions that only a 
small percentage of vehicles or items of equipment are likely to 
actually exhibit a noncompliance are unpersuasive. The percentage of 
potential occupants that could be adversely affected by a noncompliance 
is not relevant to whether the noncompliance poses an inconsequential 
risk to safety. Rather, NHTSA focuses on the consequence to an occupant 
who is exposed to the consequence of that noncompliance.\5\ Indeed, the 
very purpose of a recall is to protect individuals from risk. Id.
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    \4\ 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).
    \5\ 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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B. NHTSA's Response to Nissan's Petition

    NHTSA has evaluated the merits of Nissan's petition and has decided 
to deny the petition.
    The purpose of the gradient requirement is to allow for proper aim 
of a visually/optically aimed headlamp. Failure to properly aim the 
headlamp can result in glare to surrounding vehicles or less down road 
visibility which can potentially lead to a crash.
    Nissan states that the supplier did not apply the correct aiming 
logic when setting the headlamp aim parameters and, as a result, the 
headlamp aim may be misaligned resulting in a vertical gradient value 
less than 0.13. Nissan does not further describe the technical details 
surrounding the process that led to the noncompliance, and it is 
somewhat unclear as to what issue caused these lamps to have a gradient 
below that permitted by the standard. Generally, the Agency understands 
that vertical headlamp aim does not impact the value of the gradient 
calculation (the mathematical description of the change in intensity 
from one angular location to the next). The headlamp aim that is 
``misaligned'' in the subject vehicles might be the horizontal aim, 
which is permanently set during the manufacturing process. A permanent 
horizontal misaim could result in the vertical scan line that is used 
in the gradient calculation to be measured in a location other than 
that intended by the beam pattern designer. In any case, the precise 
process failure that led to the noncompliance is not necessary in the 
Agency's analysis of the noncompliance impact on safety described 
below.
    NHTSA reviewed the test data from Nissan's supplier, Ichikoh, 
regarding photometric performance of the lower beam and upper beam with 
G-values less than 0.13, and did not find it compelling. Nissan only 
provided one set of measurements for one lamp. In addition, their 
argument does not take into account the potential mis-aim which could 
be caused by the non-compliant gradient. Furthermore, while Nissan 
claimed that it is unlikely the driver or other motorists would notice 
any glare or observable difference in operation between a fully 
compliant lamp and the subject lamp, Nissan did not submit any data to 
support this claim.
    NHTSA believes that any gradient less than the minimum requirement 
of 0.13 can affect the ability of the lamp to be properly aimed. As 
NHTSA has previously stated in the preamble to a final rule amending 
FMVSS 108,\6\ and as provided as background in its associated notice of 
proposed rulemaking,\7\ the gradient is based on a +/-0.1 degree 
laboratory aim accuracy and a 0.25 degree field aim accuracy with 
confidence limits of +/-2 sigma. A University of Michigan 
Transportation Research Institute (UMTRI) study \8\ provided the 
information needed to establish the necessary gradient within the 
defined confidence bounds. The Society of Automotive Engineers (SAE) 
Beam Pattern Task Force also conducted a study \9\ regarding visually 
aimable headlamps in which they found the standard deviation of 
vertical aim to be smaller than the standard deviation in the UMTRI 
study. Based on the SAE Beam Pattern Task Force study, a NHTSA-
established advisory committee for regulatory negotiation to develop 
recommended specifications for altering the lower beam patterns of 
FMVSS 108 concluded that a gradient of 0.13 would satisfy the 
committee's goal for field aim accuracy.\10\ Nissan did not provide 
data to support that the subject headlamps meet the photometric 
requirements even when misaimed, which is the potential consequence of 
not meeting the gradient requirement.
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    \6\ Federal Motor Vehicle Safety Standards; Lamps, Reflective 
Devices and Associated Equipment; Final Rule; 62 FR 10710 (Mar. 10, 
1997).
    \7\ See Federal Motor Vehicle Safety Standards; Lamps, 
Reflective Devices and Associated Equipment; Notice of Proposed 
Rulemaking, 61 FR 36334 (July 10, 1996).
    \8\ See Visual Aiming of European and U.S. Low-Beam Headlamps, 
Report No. UMTRI-91-34, by Sivak, Flannagan, Chandra, and Gellatly 
(Nov. 1991), available at https://deepblue.lib.umich.edu/handle/2027.42/936.
    \9\ See Harmonized Vehicle Headlamp Performance Requirements 
(first issued Jan. 1, 1995), available at https://www.sae.org/standards/content/j1735_201102/.
    \10\ The committee's consensus was reflected in NHTSA's final 
rule.
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    NHTSA is also not persuaded by Nissan's contention that the 
noncompliance involved here does not have a safety impact because it is 
relatively rare for headlamps to be re-aimed. Nissan's data supporting 
this claim, which relied on dealer repair records for the previous 
generation Sentra, is not, in NHTSA's view, representative. As vehicles 
age and their warranties expire, consumers are less likely to have 
service performed at a dealership. Instances of headlight service at 
independent garages and body shops also would not be included in 
Nissan's survey. And in any event, as stated above, arguments that only 
a small number of vehicles or items of motor vehicle equipment are 
affected have also not justified granting an inconsequentiality 
petition. For similar reasons, also unpersuasive is the number of lamps 
that exhibit a G-Value less than the 0.13 minimum threshold, or that 
Nissan has not received any reports from the field of customer 
complaints, warranty claims, crashes, injuries, or fatalities related 
to this issue.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that Nissan 
has not met its burden of persuasion that the subject FMVSS No. 108 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
Nissan's petition is hereby denied, and Nissan is obligated to provide 
notification of, and free remedy for, that noncompliance under 49 
U.S.C. 30118 and 30120.


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(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49 
CFR 1.95 and 501.8)

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-07646 Filed 4-8-22; 8:45 am]
BILLING CODE 4910-59-P