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###### Department of Transportation

###### National Highway Traffic Safety Administration

          - [Docket No. NHTSA-2008-0182]

# AGENCY:

National Highway Traffic Safety Administration, DOT.

# ACTION:

Denial of application for renewal of temporary exemption.

# 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:                          ( print 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.                

                    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.                

                    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                           ( print 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                           ( print 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.

# Footnotes

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.                    
        Back to Citation      

2.                             We note that under 49 CFR 555.8(e), if an application for renewal of a temporary exemption that meets the requirements of § 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.                    
        Back to Citation      

[FR Doc. 2010-12190 Filed 5-20-10; 8:45 am]

BILLING CODE 4910-59-P