SUPPLEMENTARY INFORMATION:

I. Overview: Mercedes-Benz has determined that certain MY 2019-2020 Mercedes-Benz CLA-Class, A-Class, GLA-Class, and GLB-Class motor vehicles do not fully comply with the requirements of paragraph S5.5.5 of FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135). Mercedes-Benz filed a noncompliance report dated January 27, 2020, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports, and subsequently petitioned NHTSA on February 10, 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.

Notice of receipt of Mercedes-Benz's petition was published with a 30-day public comment period, on May 6, 2020, in the Federal Register (85 FR 27024). NHTSA received one comment from the general public but the comment was removed because it wasn't relevant to the noncompliance and didn't address the petition. 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-2020-0010.”

II. Vehicles Involved: Approximately 27,375 of the following MY 2019-2020 Mercedes-Benz CLA-Class, A-Class, GLA-Class, and GLB-Class motor vehicles manufactured between August ( printed page 48493) 20, 2018, and January 16, 2020, are potentially involved:

• Mercedes-Benz A220
• Mercedes-Benz A220 4MATIC
• Mercedes-Benz A35 AMG 4MATIC
• Mercedes-Benz CLA250
• Mercedes-Benz CLA250 4MATIC
• Mercedes-Benz CLA35 AMG 4MATIC
• Mercedes-Benz CLA45 AMG 4MATIC
• Mercedes-Benz GLA250 4MATIC
• Mercedes-Benz GLB250
• Mercedes-Benz GLB250 4MATIC

III. Relevant FMVSS Requirements: Paragraph S5.5.5 of FMVSS No. 135, includes the requirements relevant to this petition. Each visual indicator shall display a word or words in accordance with the requirements of FMVSS No. 101 and S5.5 of FMVSS 135, which shall be legible to the driver under all daytime and nighttime conditions when activated. Unless otherwise specified, the words shall have letters not less than 3.2 mm ( 1/8 inch) high.

IV. Noncompliance: Mercedes-Benz explains that the noncompliance is that the instrument panel in the subject vehicles display the braking indicators in a slightly smaller size than required by paragraph S5.5.5 of FMVSS No. 135. Specifically, the size of the text for the brake indicators in the subject vehicles ranges between 2.92 mm to 3.17 mm when the minimum required is 3.2 mm.

V. Summary of Mercedes-Benz's Petition: The following views and arguments presented in this section, “V. Summary of Mercedes-Benz's Petition,” are the views and arguments provided by Mercedes-Benz and do not reflect the views of the Agency. In its petition, Mercedes-Benz describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.

In support of its petition, Mercedes-Benz offers the following reasoning:

1. Mercedes-Benz believes that the letter height of the braking indicators, which in this instance is slightly smaller than the requirement, does not expose an occupant to any greater risk of injury than an occupant in a vehicle with slightly larger font size.

2. Mercedes-Benz alleges that the purpose of the standardized size requirement for the brake system warning indicators is to ensure they are visually perceptible to drivers under all operating conditions. Mercedes-Benz says that the Agency has a long and consistent history of granting petitions for inconsequentiality for discrepancies involving a letter height requirement where the text appeared somewhat smaller than required. Mercedes-Benz says that NHTSA has granted petitions where the indicators displayed included lettering that was as much as a full millimeter less than the minimum size. See47 FR 31347 (July 19, 1982) (granting a petition of Subaru of America, Inc., where the brake system indicator lettering was only 2.2 mm high, but the ISO symbol indicators were located within the driver's line of sight and continued to be “easily identifiable and very readable”).

3. Mercedes-Benz asserts that in addressing similar noncompliances in the past, the Agency has determined that “it is very unlikely that a vehicle user would either fail to see or fail to understand the meaning of the brake . . . warning light” where the “information presented by the telltales is correct.” See81 FR 92963 (December 20, 2016) (granting General Motors' petition of over 46,000 vehicles where the “Park” indicator displayed at 2.44 mm). In the General Motors decision, the Agency found the discrepancy “pose[d] little, if any, risk to motor vehicle safety” where all other braking indicator requirements were met and the indicators were located in the instrument cluster, adjacent to the speedometer and in direct view of the driver); 69 FR 41568 (July 9, 2004) (granting a petition of Hyundai Motor Company involving more than 237,000 vehicles, where the FMVSS No. 105 braking system indicator letter height varied from 2.5 mm to 3.1 mm).

4. In subject noncompliance, the letter height for the braking indicators is only slightly smaller than the 3.2 mm minimum. Depending on the particular indicator, the text size can be smaller by a range of 0.03 mm up to a maximum of .28 mm. The electronic instrument cluster is located within the driver's direct field of vision, and the braking indicators are located adjacent to the speedometer and, therefore, remain within the driver's direct line of sight. Mercedes-Benz claims that this slight difference in size is not visually perceptible and does not affect the driver's ability to read or understand the indicators. Mercedes-Benz further asserts that the indicators are clearly illuminated and remain visible under all driving conditions.

5. Mercedes-Benz states that all of the indicators at issue here are accurately depicted and are displayed in the correct colors, consistent with FMVSS No. 101, Table 1. Thus, there should not be any confusion about the meaning of the indicators, and the standard symbol that is displayed continues to convey the intended meaning of the indicator. Further, although the lettering that appears below the ISO symbols is slightly smaller than 3.2 mm minimum height, the overall height of the ABS and Parking Brake symbols is more than 3.2 mm and exceeds the height requirement of the standard. Finally, the functionality of the brake indicators themselves is not affected by the software issue. The indicators properly display during both the instrument cluster warning lamp operation check and in the event a brake malfunction were to occur.

6. Mercedes-Benz says that it has not received any reports related to the performance of the indicators included on the 10.25-inch displays in the subject vehicles. Nor has it received any reports related to customers' inability to read or decipher the brake telltales.

Mercedes-Benz concludes 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.

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 general public. While the Agency takes great interest in the public's concerns and appreciates the commenter's feedback, the comment does not address the purpose of this particular petition.

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 based upon NHTSA's prior decisions on noncompliance issues was the safety risk to individuals who experience the type of event against which the recall would otherwise protect.^[2] In general, ( printed page 48494) 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]

Arguments that only a small number of vehicles or items of motor vehicle equipment are affected have also not justified granting an inconsequentiality petition.^[5] Similarly, 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.^[6] These considerations are also relevant when considering whether a defect is inconsequential to motor vehicle safety.

While reviewing this petition, NHTSA contacted Mercedes to find out if there were additional warnings messages that triggered along with the brake indicator. Mercedes provided several screenshots that show supplemental warning messages that activate along with brake indicator and help convey the required brake warnings to the driver. Taking into consideration all the information provided and the oversized height of the additional information, the Agency agrees with Mercedes-Benz that this noncompliance will not have an adverse effect on vehicle safety. Despite the letter height of the braking indicators being slightly smaller than the 3.2 mm requirement, the overall height of the adjacent ABS and Parking Brake ISO symbols is more than 3.2 mm. Additionally, the location of the braking indicators within the electronic instrument cluster are positioned within the driver's direct field of vision as they are situated adjacent to the speedometer and therefore always remain visible. The aforementioned factors make it very unlikely for a driver to fail to read and understand the meaning of the braking indicators. Because the symbols are accurately depicted and are displayed in the correct colors, consistent with FMVSS No. 101, Table 1, there should not be any confusion about the meaning of the indicators, and the standard symbol that is displayed continues to convey the intended meaning of the indicator.

VII. NHTSA's Decision: In consideration of the foregoing, NHTSA finds that Mercedes-Benz has met its burden of persuasion that the subject FMVSS No. 135 noncompliance in the affected vehicles is inconsequential to motor vehicle safety. Accordingly, Mercedes-Benz's petition is hereby granted, and Mercedes-Benz 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 section 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 vehicles that Mercedes-Benz no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after Mercedes-Benz 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.)

91 FR 48492