[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]
BILLING CODE 4910-59-P