[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