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###### Department of Transportation

###### National Highway Traffic Safety Administration

          - [Docket No. NHTSA-2019-0008; Notice 2]

# AGENCY:

National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

# ACTION:

Grant of petition.

# SUMMARY:

                        Daimler Trucks North America (DTNA) has determined that certain model year (MY) 2017-2019 Freightliner Cascadia motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108,                         *Lamps, Reflective Devices, and Associated Equipment.*                         DTNA filed a noncompliance report dated January 16, 2019. DTNA subsequently petitioned NHTSA on February 8, 2019, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This document announces the grant of DTNA's petition.                    

# FOR FURTHER INFORMATION CONTACT:

                        Leroy Angeles, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366-5304,                         *leroy.angles@dot.gov.*

# SUPPLEMENTARY INFORMATION:

## I. Overview

                    DTNA has determined that certain MY 2017-2019 Freightliner Cascadia motor vehicles do not fully comply with paragraph S6.2.1 of FMVSS No. 108,                     *Lamps, Reflective Devices, and Associated Equipment*                     (49 CFR 571.108). DTNA filed a noncompliance report dated January 16, 2019, pursuant to 49 CFR part 573,                     *Defect and Noncompliance Responsibility and Reports.*                     DTNA subsequently petitioned NHTSA on February 8, 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 DTNA's petition was published with a 30-day public comment period, on February 27, 2020, in the                     **Federal Register**                     (85 FR 11450). 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-2019-0008.”                

## II. Trucks Involved

Approximately 74,675 MY 2017-2019 Freightliner Cascadia motor vehicles, manufactured between May 3, 2016, and December 17, 2018, are potentially involved.

## III. Noncompliance

DTNA described the noncompliance as automatic illumination of the stop lamps when the low air pressure warning indicator light illuminates. Since low air pressure does not necessarily activate the brakes or result in braking without driver intervention, this activation of the stop lamps does not meet the requirements of S6.2.1 of FMVSS No. 108.

## IV. Rule Requirements

Paragraph S6.2.1 of FMVSS No. 108 includes the requirements relevant to this petition. No additional lamp, reflective device, or other motor vehicle equipment is permitted to be installed that impairs the effectiveness of lighting equipment required by FMVSS No. 108.

## V. Summary of DTNA's Petition

The following views and arguments presented in this section, “V. Summary of DTNA's Petition,” are the views and arguments provided by DTNA.

DTNA described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.

DTNA submitted the following background information on how their air brake system affects the stop lamps:

DTNA's air brake system is comprised of two brake systems, primary and secondary. The primary system controls the service brakes on the drive axles, and the secondary system controls the service brakes on the steer axle, in which the higher pressure of these two controls the trailer service brakes. These two systems are isolated from each other so that if there is an air loss in one system, the other system will still be functional to control the vehicle service brakes. When either one of the systems drops below 70 psi, the low air warning indicator light on the dash turns ON and the stop lamps illuminate. However, if this occurs, it does not mean that the drive axle parking brakes being applied, since the other brake system may still be functional and keeping the brake from applying. In such a situation, the air that holds off the drive axle parking brakes would be the higher pressure of either primary or secondary air brake. In other words, if the primary air brake pressure falls below 70 psi, the indicator light and stop lamps illuminate, but the parking brakes do not start to drag since the secondary air (presumably unaffected) remains high and holds off the parking springs. In the same manner, the trailer parking brakes are held off by the higher of either primary or secondary air brake system. Only when both air systems drop below about 70 psi will the trailer parking brakes begin to apply.

DTNA submitted the following views and arguments in support of the petition:

                    1. The normal operating air pressure of the vehicle is between 110 and 130                           ( print page 14326)                        psi. There is a regulator that turns on the air compressor if the air pressure is below 110 psi and turns off the air compressor when the system pressure is above 130 psi. If the air pressure begins to drop and reaches approximately 70 psi, the air system pressure is not adequate to maintain optimum operation, so a warning indicator light illuminates on the dash and a buzzer activates to alert the driver to this condition. On these vehicles, the stop lamps illuminate when the warning indiactor light illuminates on the dash. The events induced by a low air condition after initial vehicle startup are rare and are not expected in normal operation. If the condition were to occur during operation, the driver would be alerted to the circumstances with audible and visual low air warning signals and would be expected to apply the service brakes and pull over in a safe manner. Additionally, if the pressure in both air systems drops below 70 psi, the parking brakes will slowly begin to apply.                

2. The Freightliner Cascadia Driver's Manual states “If the low air pressure warning is activated, check the air pressure gauges to determine which system has low air pressure. Although the vehicle's speed can be reduced using the foot brake control pedal, either the front or rear service brakes will not be operating at full capacity, causing a longer stopping distance. Bring the vehicle to a safe stop and have the air system repaired before continuing.”

3. Brakes are commonly applied causing the stop lamps to illuminate when a driver sees a vehicle display warning or senses that the vehicle is experiencing a problem. Reducing vehicle speed in relation to a vehicle operational problem increases safety, providing following drivers the opportunity to increase the following distance. A low air warning indicator light would likely cause the vehicle driver to immediately engage the brake system and bring the vehicle to a safe stop. Stop lamp illumination for a brake system low air event would help provide early warning to following drivers to slow down.

4. DTNA stated, in “Motorcoach Brake Systems and Safety Technologies,” the Federal Motor Carrier Safety Administration issued guidance, while directed toward motorcoach drivers, that supports the expectation that a driver, upon receipt of a low-pressure warning, would apply brakes and pull off the roadway. FMCSA stated: “Low Pressure Warning—In most cases, you should notice an air leak or malfunction before getting a low-pressure warning; however, when a low-pressure warning occurs, immediately bring the motorcoach to a safe stop, off of the roadway. Continuing to operate the motorcoach could result in an automatic application of the park brakes, possibly leading to a loss of control or a stop in an unsafe position.”

5. DTNA is not aware of any accidents, injuries, owner complaints, or field reports related to this condition on the subject vehicles.

6. DTNA also stated that NHTSA has previously granted petitions for decisions of inconsequential noncompliance for lighting requirements where technical noncompliance exists, but does not create a negative impact on safety:
    - In General Motors Corporation; Grant of Application for Decision of Inconsequential Noncompliance. 66 FR 32871  (June 18, 2001) a petition for inconsequentiality by General Motors Corporation was granted by NHTSA. In this instance, certain models could have unintended CHMSL illumination briefly if the hazard warning lamp switch is depressed to its limit of travel.
    - In General Motors, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, a petition for inconsequentiality by General Motors, LLC (GM) was granted by NHTSA. See 83 FR 7847  (February 22, 2018). In this instance, under certain conditions, the parking lamps on the subject vehicles fail to meet the requirement that parking lamps must be activated when headlamps are activated in a steady burning state.                
    - In Grant of Application for Determination of Inconsequential Noncompliance with FMVSS No. 108, a petition for inconsequentiality by General Motors Corporation was granted by NHTSA. See 64 FR 48231  (September 2, 1999). In this instance, a certain model equipped with an electronic turn signal was affected by random inputs that cause the internal timing of the electronic circuit to become unsynchronized causing the left front turn signal lamp to flash at a rapid rate while the left rear turn signal lamp illuminates but does not flash. These conditions can continue after the turn signal lever automatically returns to the off position.                

7. DTNA believes that a technical noncompliance exists but does not create a negative impact on safety when the brake lamps illuminate during a brake system low air warning event. The stop lamp illumination serves to emphasize the message to following drivers that the vehicle is experiencing trouble and they should pay close attention. The Brake Air warning indicator light, on the driver's display panel, shows the driver that there is an issue with the air brake system. This would result in the driver bringing the vehicle to a safe stop and having the air system repaired before continuing.

DTNA concluded by expressing its belief 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. NHTSA's Analysis

                    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]                                          Potential performance failures of safety-critical equipment, like seat belts or air bags, are rarely deemed inconsequential.                

                    An important issue to consider in determining inconsequentiality is the safety risk to individuals who experience the type of event against which the 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. “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.” [3]                                          “[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.” [4] 
      ( print page 14327)    
                    NHTSA has rejected petitions based on the assertion that only a small percentage of vehicles or items of equipment are likely to 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.[5]                                          These considerations are also relevant when considering whether a defect is inconsequential to motor vehicle safety.                

NHTSA notes that DTNA misquoted the decision language pertaining to a prior inconsequential noncompliance petition (83 FR 7847) by adding “The Agency agrees with GM that in this case” prior to the original statement. NHTSA does not consider this addition accurate.

                    The noncompliance, in the DTNA case currently being considered, is that the stop lamp illuminates when a braking system low air pressure warning indicator light is illuminated, regardless of whether the service brakes are applied.[6]                                          As the subject trucks have two air brake systems, which split the trailer brakes from the steer axle brakes, low air pressure will cause a brake application only if air pressure is lost in both systems. Should only one of the two air brake systems report low air pressure, the parking brakes would not engage but the stop lamps would illuminate in addition to the low air warning indicator light, which includes an audible alarm. The Agency believes that an alert would prompt the operator to safely pull over and/or attempt to slow/stop the truck soon after the warnings appear. In that case, the noncompliance would only result in a momentary illumination of the stop lamps without the brakes being applied.                

If the driver of a subject vehicle did not apply the brakes immediately after receiving a low air pressure warning, following drivers would be presented with a false indication that the subject truck was braking. Further, should there be an air leak, application of the service brakes will cause the air pressure to further drop, braking performance may be impacted, and it is also possible that the system will no longer be able to achieve proper pressure, which subsequently may cause the parking brakes to engage. As the function of a stop lamp is to notify other road users that a vehicle is stopping and/or slowing down, a vehicle equipped with an air braking system where the low air pressure warning on the instrument cluster along with an audible warning has been activated will likely prompt the driver to immediately pull over and/or attempt to slow/stop the vehicle.

                    A previous NHTSA interpretation concerning trailer stop lamp illumination, requested by Wabash National Corporation, explained that the stop lamps were permitted to be illuminated in the event that the emergency braking system was activated when significant deceleration could occur.[7]                                          NHTSA does not agree with DTNA's argument that the activation of the stop lamps when the low air pressure warning occurs would be helpful for a warning other drivers of the brake malfunction. Nonetheless, NHTSA still believes this noncompliance would be inconsequential to safety. This is because when a vehicle with air brakes experiences a low-air event and notifies the driver of a brake system malfunction, NHTSA believes that the driver would likely respond by pulling over to the side of the road and taking the vehicle out of service until the brake system can be repaired. Because the act of pulling over to the side of the road would result in the intentional activation of the stop lamps and this sequence of events would likely occur only once before the vehicle is repaired, NHTSA believes that the activation of the brake lamps due to the low air pressure event would be inconsequential to safety.                

## VII. NHTSA's Decision

In consideration of the foregoing, NHTSA finds that DTNA has met its burden of persuasion that the subject FMVSS No. 108 noncompliance in the affected trucks is inconsequential to motor vehicle safety. Accordingly, DTNA's petition is hereby granted and DTNA is consequently exempted from the obligation of providing notification of, and a free remedy for, that noncompliance 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, this decision only applies to the subject trucks that DTNA no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve truck distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant trucks under their control after DTNA 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.

# Footnotes

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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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).                    
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3.                                                     *Morgan 3 Wheeler Limited; Denial of Petition for Decision of Inconsequential Noncompliance,*81 FR 21663, 21666 (Apr. 12, 2016).                    
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4.                                                     *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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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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6.                             Per FMVSS No. 108, stop lamps should only be activated upon activation of the service brakes, or a device intended to retard the movement of the vehicle. See FMVSS No. 108, Table I-a.                    
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7.                                                     *https://isearch.nhtsa.gov/​files/​22036.ztv.html.*
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[FR Doc. 2022-05304 Filed 3-11-22; 8:45 am]

BILLING CODE 4910-59-P