[Federal Register Volume 75, Number 98 (Friday, May 21, 2010)]
[Notices]
[Pages 28674-28677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-12190]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2008-0182]
Mercedes-Benz, U.S.A. LLC; Denial of Application for Renewal of
Temporary Exemption From Federal Motor Vehicle Safety Standard No. 108
AGENCY: National Highway Traffic Safety Administration, DOT.
ACTION: Denial of application for renewal of temporary exemption.
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SUMMARY: This document responds to an application from Mercedes-Benz,
U.S.A. LLC (``MBUSA''), on behalf of itself and its parent corporation
Daimler AG (``Daimler''), dated December 3, 2007, for the renewal of a
temporary exemption from S5.5.10 of Federal Motor Vehicle Safety
Standard (FMVSS) No. 108; Lamps, reflective devices, and associated
equipment. The National Highway Traffic Safety Administration (NHTSA)
granted MBUSA's original petition for a temporary exemption on January
30, 2006. Based on the agency's evaluation, NHTSA is denying the
application from MBUSA for the renewal of the temporary exemption.
DATES: The exemption from S5.5.10 of FMVSS No. 108 terminates on July
20, 2010.
FOR FURTHER INFORMATION CONTACT: David Hines, Office of Crash Avoidance
Standards, NHTSA, 1200 New Jersey Avenue, SE., W45-338, Washington, DC
20590, telephone (202)-493-0245, facsimile (202)-366-7002.
SUPPLEMENTARY INFORMATION:
[[Page 28675]]
I. Background
In a petition dated June 5, 2005, Mercedes-Benz, U.S.A. LLC (MBUSA)
petitioned the National Highway Traffic Safety Administration (NHTSA),
for a two-year temporary exemption from S5.5.10 of Federal Motor
Vehicle Safety Standard (FMVSS) No. 108; Lamps, reflective devices, and
associated equipment. S5.5.10 specifies that with certain exceptions
(not applicable to this MBUSA application) all lamps, including stop
lamps, must be wired to be steady-burning.\1\ In order to evaluate a
flashing stop lamp signaling system in the United States, MBUSA sought
a temporary exemption from the ``steady-burning'' requirement as it
applies to stop lamps. MBUSA stated that its flashing stop lamp system
was currently available in Europe on a number of Mercedes vehicles.
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\1\ See S5.5.10 of 49 CFR 571.108. Turn signal lamps, hazard
warning signal lamps, and school bus warning lamps shall be wired to
flash. Headlamps and side marker lamps may be wired to flash for
signaling purposes. Motorcycle headlamps may be wired to allow
either its upper beam or its lower beam, but not both, to modulate
from a higher intensity to a lower intensity in accordance with
section S7.9.
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On January 30, 2006, NHTSA published in the Federal Register a
notice granting the MBUSA application for a temporary exemption, until
January 23, 2008, from the requirements of S5.5.10 of FMVSS No. 108. In
granting MBUSA's request in the original grant, NHTSA made several
determinations. The agency stated that MBUSA had met the requirements
to receive an exemption under 49 CFR Part 555(b), which permits
exemptions from the FMVSS on the basis that the exemption would make
easier the development of field evaluation of safety equipment.
Specifically, the agency stated that based on information provided by
MBUSA, it appeared the proposed lighting equipment provided at least an
equivalent level of safety to the lighting equipment required by FMVSS
No. 108. Furthermore, NHTSA decided that granting the request would be
in the public interest, because the new field data obtained by MBUSA
through the temporary exemption would enable the agency to make more
informed decisions regarding the effect of the flashing stop lamp
signaling systems on motor vehicle safety. In accordance with 49 CFR
555.6(b)(5), MBUSA was permitted to sell up to 2,500 exempted vehicles
in any twelve-month period within the two-year exemption period.
II. MBUSA Application Requesting Renewal of Temporary Exemption
In a petition dated December 3, 2007, MBUSA petitioned NHTSA, on
behalf of itself and its parent corporation Daimler AG (``Daimler''),
for a renewal of the temporary exemption from S5.5.10 of FMVSS No. 108.
According to MBUSA, the basis of the renewal was to further evaluate
whether safety benefits could be identified through the allowance of
flashing stop lamps on passenger vehicles in the United States. MBUSA
stated that the preliminary results from the United States and Europe
were positive and while limited, constituted a trend which could
continue to be monitored.
In its request for a renewal, MBUSA indicated that the company has
``sold a total of approximately 2,870 12 cylinder S and CL class
passenger vehicles in the United States between February 2006 and
August 2007,'' and this number would slightly increase through the
remainder of the exemption period, but remain below the maximum 5,000
vehicle limit over 2 years.
MBUSA's application stated, ``Daimler's plan for monitoring the
experience of these vehicles focused on both dealer inputs and
insurance claims.'' Daimler received only one dealer input, but in
early November 2007 received input from an insurance company that
insures about 20 percent of the vehicles that have been sold in the
United States with the flashing stop lamp feature. MBUSA stated that
the data collected from the insurance company at the time of the MBUSA
application was promising. The company reported that with respect to
416 vehicles equipped with the flashing stop lamp feature, there were a
total of 5 reported crashes and of these only one involved activation
of the feature. It said there were a total of 94 reported crashes in a
group of 4,507 vehicles without the flashing stop lamp feature. This,
the company said, translates into a ``crash ratio per month'' for
vehicles with the flashing stop lamp feature of 11.44688645 as compared
to a ratio of 19.86328146 for vehicles without the feature.
MBUSA also indicated that ``data from Germany has also been
promising.'' While intending to monitor a German database with the
acronym GIDAS and data from Germany's Federal Statistical Office,
MBUSA, in its application, indicated that there have thus far been no
GIDAS investigations involving vehicles equipped with flashing stop
lamps among the approximately 1,000 in depth crash investigations
performed for GIDAS every year. The company indicated it examined
Federal Statistical Office crash statistics for 2005 and 2006. MBUSA
stated, ``Although subject to a significant degree of statistical
scatter, data from the Federal Statistical Office for 2005 shows a
decrease of rear impact compared to other Mercedes-Benz passenger cars,
and an experience for 2006 that shows a slight increase in rear impacts
but which is also comparable to the experience with the control group
without the feature.''
III. Comments and Response Regarding the MBUSA Petition for Renewal of
the Temporary Exemption
NHTSA published a notice of receipt of the petition on November 25,
2008, and provided an opportunity for comment.\2\ The agency received
five comments, one each from Nissan North America, Inc., Porsche Cars
North America, Inc., American Honda Motors Co., Inc., Toyota Motor
North America, Inc., and Ms. Barbara Sachau. The four motor vehicle
manufacturers all supported the MBUSA application for renewal of the
temporary exemption. Toyota Motor North America, Inc., also indicated
that it has recently introduced its flashing stop lamp signaling system
on Toyota and Lexus models in the European and Japanese markets.
However, we note that none of the vehicle manufacturers presented data
indicating that the use of the flashing stop lamp systems provided
traffic safety benefits. A fifth comment from Ms. Barbara Sachau
opposed the granting of the petition by stating that vehicle
manufacturers should not determine regulatory policy involving vehicle
safety.
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\2\ We note that under 49 CFR 555.8(e), if an application for
renewal of a temporary exemption that meets the requirements of
Sec. 555.5 has been filed not later than 60 days before the
termination date of an exemption, the exemption does not terminate
until the Administrator grants or denies the application for
renewal.
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In January 2009, Daimler, through a submission by Hogan & Hartson
LLP, supplied additional information related to the experience of
flashing stop lamps in Germany. This submission referenced data samples
representing half of police-reported crashes in Germany for several
years and characterized a preliminary positive safety trend, which was
not able to be considered a stable result due to the low number of rear
end crashes for Mercedes vehicles. In April 2010, MBUSA submitted an
additional comment in support of its petition. It indicated that, to
date, MBUSA/Daimler has sold approximately 4,700 vehicles with flashing
stop lamps in the United States during the pendency of the exemption.
It stated, however, that the
[[Page 28676]]
limited volume of vehicles permitted to be sold each year in the United
States under this type of exemption creates a fundamental impediment to
being able to use statistical analysis to show the impact of a crash
avoidance feature controlled for other influences on the results. MBUSA
stated that the data available in the United States cannot, due to the
limited numbers of vehicles sold, statistically support in just a few
years an analysis showing the number of crashes avoided because drivers
were alerted to an emergency situation through flashing stop lamps.
MBUSA claimed that it is clear that flashing stop lamps do not
otherwise impair any of the important benefits of other rear lamps. It
also claimed that data being developed in other markets does support
the safety benefits of flashing stop lamps.
In its April 2010 submission, MBUSA provided a further update to
the information it had previously submitted concerning data from
Germany. It stated that the data from Germany continues to indicate a
positive trend, with crash rates for vehicles equipped with flashing
stop lamps slightly lower than those for comparable vehicles without
the feature. It also stated that since this feature is now available on
all Mercedes vehicles sold in Germany and other markets, the trend is
expected to be more defined and easier to interpret in the coming
years. In addition, MBUSA noted that the exposure of vehicles with
flashing stop lamps remains too low to derive statistical conclusions
from the data.
In addition, MBUSA stated that the United States should contribute
to the growing body of international data on flashing stop lamps to the
extent permitted by the regulation. It stated that a number of
manufacturers are offering this feature in other markets in increasing
numbers. MBUSA argued that the agency's decision should not be based on
whether the exemption would create a database that can conclusively
demonstrate a statistical benefit, but should instead base its decision
on being able to contribute to the growing body of international data
with experience from the United States. It stated that while the data
set will be necessarily small because of the regulatory limitations,
the experience is necessary to show that the limited exposure in the
United States remains consistent with the more robust experience found
in other markets. MBUSA also argued that flashing stop lamps can
contribute to the reduction of crashes associated with distracted
driving, and that continuing the exemption would contribute to this
objective.
IV. Agency Analysis and Decision
After carefully considering the MBUSA application for renewal of
the temporary exemption from S5.5.10 of FMVSS No. 108 and the public
comments, we have decided to deny the petition. The reasons for this
decision are explained below.
We note that prior to the submission of MBUSA's original petition
for temporary exemption, NHTSA had denied that company's petition for
rulemaking to permanently amend FMVSS No. 108 to allow flashing brake
signaling systems. Among the reasons for the denial was the need for
additional data on safety benefits of flashing brake lamps.
In granting the original petition for temporary exemption in
January 2006, we stated that we believed a temporary exemption was in
the public interest because the new field data obtained through the
temporary exemption would enable the agency to make more informed
decisions regarding the effect of flashing brake signaling systems on
motor vehicle safety. We also noted that the agency was conducting
research concerning enhanced rear signaling.
We noted, however, that some of the benefits associated with signal
lamps relate to standardization. We stated that we had not made any
determination as to whether it would be appropriate to permit flashing
stop lamps more generally.
In considering MBUSA's application for renewal of the temporary
exemption, we have evaluated whether a renewal would be in the public
interest. As part of this, we have considered whether the additional
field data that would be obtained as a result of a renewed exemption
would enhance, in a meaningful way, the agency's ability to make more
informed decisions in this area. Based on the available information, we
have concluded that the answer is no.
First, after reviewing the material in the renewal request, we are
concerned that MBUSA has not established a rigorous crash evaluation
and data collection program in the U.S. for its flashing stop lamp
system. As such, we believe that a continuation of the current efforts
would not yield additional insight into the anticipated benefits of
such a rear signaling system.
In its application for renewal, the petitioner included the
following paragraph:
``Daimler's plan for monitoring the experience of these vehicles
focused on both dealer inputs and insurance claims. MBUSA received only
one dealer input, but in early November 2007 received input from an
insurance company that insures about 20% of the vehicles that have been
sold in the United States with the flashing stop lamp feature. The data
collected to date from the insurance company is promising. The crash
ratio per month of these vehicles with the flashing stop lamp feature
is 11.44688645; whereas the crash ratio per month of the same vehicles
without the feature was 19.86328146.''
A footnote to this paragraph provided by MBUSA in its application
explained, ``There were a total of 5 reported crashes with regard to
vehicles with the emergency braking feature, of 416 vehicles, and a
total of 94 reported crashes with regard to the 4507 vehicles without
emergency brake assist. Daimler has since learned, based on more
detailed information, that at least 4 of the 5 vehicles involved in the
crashes with the feature did not involve activation of the feature,
indicating an even lower crash per month ratio.''
NHTSA made the following determinations regarding the data and
information presented. First, the agency is struck by the low level of
participation by what would seem to be critical players in a research
crash data collection effort, specifically insurance carriers and
dealers. The agency is concerned about the level of effort devoted to
the research plan on which the original 2-year temporary exemption from
S5.5.10 of FMVSS No. 108 was based. Beyond this, there is no indication
in the data presented, based on only 20 percent of the vehicles in the
U.S. equipped with the flashing stop signaling system, as to the nature
of the crashes involved. It is suggested from the information provided
by MBUSA that four of the five crashes discussed earlier were not rear
end collisions and that one of the crashes occurred because it was the
only case in which the flashing stop lamp signaling system was
activated. In any event, there is not enough information presented in
MBUSA's request for renewal of its exemption to know. The nature of all
the crashes involved is important information to know in assessing the
data presented.
It does not appear, based upon the data provided by MBUSA, that
there is a robust program to evaluate acceptance of the flashing stop
lamps among the American public or whether risk might be transferred to
vehicles without the flashing stop lamps by acting as a distraction
from other on-road events. The agency notes that MBUSA indicated that
it had, on the date of its application
[[Page 28677]]
for extension, received input from only one dealer.
Also, MBUSA did not make it possible for NHTSA to evaluate its
suggested claims of potential safety benefits of its flashing stop lamp
system because its application for renewal and the data provided to
NHTSA to date does not clearly identify how it will appropriately track
applicable rear end collisions in the United States, and does not
include an explanation of the comparisons cited in its application.
Without definitions of the comparison groups, raw data, and a
description of the calculations made, the MBUSA claim of potential
safety benefits is not supported.
Moreover, even if MBUSA were to develop a more robust evaluation
program, it is not clear how the additional vehicles produced as a
result of an extended exemption would provide significant additional
data on safety benefits of flashing stop lamps. As indicated above,
MBUSA stated in its recent comments that the data available in the
United States cannot, due to the limited numbers of vehicles that can
be sold under a temporary exemption, statistically support in just a
few years an analysis showing the number of crashes avoided because
drivers were alerted to an emergency situation through flashing stop
lamps.
The petitioner argued that the agency's decision should not be
based on whether the exemption would create a database that can
conclusively demonstrate a statistical benefit, but NHTSA should
instead base its decision on being able to contribute to the growing
body of international data with experience from the United States. It
stated that while the data set will be necessarily small because of the
regulatory limitations, the experience is necessary to show that the
limited exposure in the United States remains consistent with the more
robust experience found in other markets.
However, MBUSA has already sold approximately 4700 vehicles with
flashing stop lamps in the United States during the pendency of the
existing exemption, and it has not provided any specific explanation as
to how a two year extension resulting in potentially up to 5000
additional vehicles in this country would result in significant
additional meaningful data concerning safety benefits of flashing brake
lamps. Also, it is unclear how extending the exemption in this country
would facilitate the analysis of the German data, especially given the
difference in the sizes of the relevant vehicle populations.
MBUSA also mentioned the fact that the flashing stop lamp signaling
system is permitted in Europe in support of an extension of its
temporary exemption from S5.5.10 of FMVSS No. 108. While NHTSA is
always interested in actions taken in other parts of the world, there
is nothing presented in MBUSA's request for renewal relating to safety
benefits and crash reduction data provided to the European regulatory
authorities. We note the data from Germany referenced in MBUSA's
renewal request is not any more effective in shedding light on the
effectiveness of the flashing stop lamp signaling system in preventing
rear end collisions. The request notes that the ``GIDAS database'',
which includes ``about 1,000 in depth crash investigations each year''
thus far has not included investigations of vehicles equipped with the
flashing stop lamp signaling system. No conclusion can be drawn from
this fact. The request indicated that crash statistics have been
received for 2005 and 2006 from the Federal Statistical Office. The
crash data is ``subject to a significant degree of statistical
scatter,'' MBUSA says, but maintains the data ``shows a decrease of
rear impacts compared to other Mercedes-Benz passenger cars, and an
experience for 2006 that shows a slight increase in rear impacts but
which is also comparable to the experience with the control group
without the feature.''
Again, this information is inconclusive. There is no indication of
the sample size involved and the number of crashes on which MBUSA makes
its assertions as to the impact of the flashing stop lamp signaling
system. The agency does not know what MBUSA means when it says the
crash data is subject to a ``significant degree of statistical
scatter'' and the impact it has on the conclusion suggested by MBUSA or
the likelihood that the larger sample will be enough for statistically
significant conclusions.
MBUSA also argued that flashing stop lamps can contribute to the
reduction of crashes associated with distracted driving, and that
continuing the exemption would contribute to this objective. However,
while NHTSA is interested in potential safety benefits of enhanced rear
signaling, MBUSA has not shown how extending the exemption would result
in significant meaningful data concerning safety benefits of flashing
stop lamps.
After considering the available information, we have concluded that
MBUSA has not provided adequate justification for renewal of the
exemption. It has not shown that the additional field data that would
be obtained as a result of a renewed exemption would enhance, in a
meaningful way, NHTSA's ability to make more informed decisions
concerning anticipated benefits of flashing brake lamps. Moreover, as
noted earlier, some of the benefits associated with signal lamps relate
to standardization. We have therefore concluded that it would not be in
public interest to renew this exemption, and we are denying the
application.
In order to allow MBUSA adequate time to make the necessary
production changes, we are making this decision to deny the request
effective 60 days after publication of this notice.
Issued: May 17, 2010.
Stephen R. Kratzke,
Associate Administrator for Rulemaking.
[FR Doc. 2010-12190 Filed 5-20-10; 8:45 am]
BILLING CODE 4910-59-P