Mercedes-Benz U.S.A., Inc., Receipt of Application for Decision of Inconsequential Noncompliance

[Federal Register Volume 64, Number 173 (Wednesday, September 8, 1999)]
[Notices]
[Pages 48892-48894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-23311]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration
[Docket No. NHTSA-99-6161; Notice 1]


Mercedes-Benz U.S.A., Inc., Receipt of Application for Decision 
of Inconsequential Noncompliance

    Mercedes-Benz U.S.A., Inc. (MBUSA) has determined that 1,482 of its 
1999 model year vehicles were equipped with convex passenger-side 
mirrors that did not meet certain labeling requirements contained in 
Federal Motor Vehicle Safety Standard (FMVSS) No. 111, ``Rearview 
Mirrors,'' and has filed an appropriate report pursuant to 49 CFR part 
573, ``Defect and Noncompliance Reports.'' MBUSA has also applied to be 
exempted from the notification and remedy requirements of 49 U.S.C. 
chapter 301--``Motor Vehicle Safety'' on the basis that the 
noncompliance is inconsequential to motor vehicle safety.
    We are publishing this notice of receipt of an application as 
required by 49 U.S.C. 30118 and 30120. This action does not represent 
any agency decision or other exercise of judgment concerning the merits 
of the application.
    If a vehicle has a convex passenger-side mirror, paragraph S5.4.2 
of FMVSS No. 111 requires that it have the words ``Objects in Mirror 
Are Closer Than They Appear'' permanently and indelibly marked at the 
lower edge of the mirror's reflective surface.
    From April 5 through April 9, 1999, MBUSA sold and/or distributed 
1,482 C-Class, E-Class, and E-Class Wagons that contain a typographical 
error in the text of the warning label required in paragraph S5.4.2. 
The text on the subject vehicles' mirrors reads ``Objects in Mirror 
Closer Than They Appear.'' The word ``Are'' is not clearly printed or 
visible.
    MBUSA supports its application for inconsequential noncompliance 
with the following statements:

    MBUSA does not believe that the foregoing noncompliance will 
impact motor vehicle safety for the following reasons. FMVSS 111 
sets forth requirements for the performance and location of rearview 
mirrors to reduce the number of deaths and injuries that occur when 
the driver of a motor vehicle does not have a clear and reasonably 
unobstructed view to the rear. Provisions regarding the use of a 
convex side view mirror were added by

[[Page 48893]]

the National Highway Traffic Safety Administration (NHTSA or the 
Agency) in an 1982 rulemaking. 47 FR 38698 (1982). The final rule 
specifically allowed the use of convex passenger side outside 
mirrors. ``Convex mirrors'' are defined as ``a mirror having a 
curved reflective surface whose shape is the same as that of the 
exterior surface of a section of a sphere.'' See Id. at 38700, 
codified at 49 CFR 571.111 S4. NHTSA determined that allowing the 
installation of a convex mirror on the passenger side of vehicles 
could confer a substantial safety benefit in that such mirrors tend 
to provide a wider field of vision than ordinary flat or plane 
mirrors. Such a view could be highly desirable in maneuvers such as 
moving to the right into an adjacent lane. Id. at 38699.
    NHTSA also recognized, however, that there were inherent 
drawbacks to the use of convex mirrors as well. One of the more 
significant drawbacks was that images of an object viewed in a 
convex mirror tend to be smaller than those of the same object 
viewed in a plane mirror. Consequently, drivers used to plane 
mirrors may erroneously assume that vehicles situated immediately 
behind the driver and to the right may be further away than 
anticipated. Such an erroneous perception may cause the drive to 
move to the right and change lanes before it is actually safe to do 
so. In order to address this concern, and at the suggestion of 
several automobile manufacturers, NHTSA required that a warning be 
permanently etched into all convex passenger side view mirrors. This 
suggestion was favored over NHTSA's original proposal which would 
have provided for an orange border around the convex mirror to alert 
the driver of a potential difference in mirror characteristics. The 
written warning was chosen because, based on studies performed at 
the request of NHTSA, the Agency found that (1) The fact that a 
convex mirror image appears different from that of a plane mirror 
does not, in the Agency's view, provide an adequate warning that 
objects viewed in the convex mirror are closer than they appear; (2) 
the etched warning would serve as a reminder to the driver with each 
use and would assist drivers who may not read such a warning 
alternatively placed in the owner's manual; and (3) the etched 
warning conveys a much clearer warning than the rather ambiguous 
orange border. Id. at 38700.
    In the case of MBUSA's affected vehicles, the etched warning 
provides that ``Objects in Mirror Closer Than They Appear.'' The 
missing word ``Are'' is contrary to the exact wording of the warning 
required by FMVSS 111. The cause of this error was traced to a 
defective stencil used in the laser printer which etches the 
warnings onto mirrors. MBUSA believes that the stencil defect, which 
caused the laser printer to inadvertently leave the word ``Are'' 
from the warning, was caused by dirt or some other cosmetic flaw in 
the stencil. This situation apparently was not immediately noticed 
by MBUSA's supplier's quality control department. MBUSA does not 
believe, however, that the foregoing error in the warning statement 
etched onto the affected mirrors, affects their safety in any 
discernible way. Specifically, as provided in the preamble to the 
final rule amending FMVSS 111 to allow the use of convex mirrors, 
one of the potential drawbacks associated with convex mirrors is 
that images in such mirrors tend to appear further away than their 
actual position. NHTSA recognized the need to provide an adequate 
warning to vehicle operators at all times regarding this distortion. 
The Agency rejected an earlier proposal for a symbolic warning 
because such a warning did not adequately convey the message 
regarding the distortion caused by convex mirrors. Instead, NHTSA 
required a specifically worded warning that would serve to inform 
drivers about the distortion caused by convex mirrors. Although not 
technically in compliance with the exact requirements of FMVSS 111, 
MBUSA believes that the etched warning on the noncompliant Mercedes-
Benz vehicles still conveys the necessary warning consistent with 
the purpose set forth in the preamble to the final rule. The change 
caused by the missing word ``Are'' does not alter the meaning of the 
warning statement or the spatial relationship between two objects. 
Thus, when used in the phrase ``Objects in Mirror Closer Than They 
Appear,'' the warning, although grammatically incorrect in the 
foregoing context, still conveys the same meaning.
    In addition, convex mirrors have been in use since the final 
rule amending FMVSS 111 became effective in 1982. In the ensuing 17 
years, the driving public has become accustomed to seeing the etched 
warning on convex passenger side view mirrors. In fact, almost all 
passenger vehicles currently manufactured have convex, rather than 
plane, passenger side view mirrors. Because of this, drivers know 
that convex side view mirrors contain a slight distortion and are 
able to react accordingly. The importance of the warning, while 
still viable, is not as critical as when convex mirrors first came 
into use. Instead of a message of first impression, the warning now 
serves as a reminder to drivers that a convex mirror is in use. 
Consequently, the driving public is likely to note that the warning 
on affected Mercedes-Benz vehicles is present, thus notifying them 
of the existence of a convex mirror, but unlikely to notice a minor 
grammatical error that does not effect the meaning of the warning.
    Although NHTSA has not previously addressed this exact issue in 
prior petitions for inconsequential noncompliance, MBUSA believes 
that there are examples of prior petitions which are sufficiently 
analogous to support the Company's current petition. Specifically, 
NHTSA has previously granted numerous petitions for inconsequential 
noncompliance regarding errors contained in various labels or 
markings. One of the more frequent areas where inconsequential 
mislabeling occurs is in the area of tire labeling. See e.g., 
General Motors Corporation, 64 FR 7944 (1999) (tire information 
label on glove compartment containing erroneous information 
regarding the maximum number of occupants allowed in vehicle deemed 
inconsequential since seat capacity is evident from number of 
seating positions and seatbelts); Mercedes-Benz of North America 
Inc., 63 FR 59623 (1998) (tire information label with incorrect 
sized lettering and incorrect mounting position deemed 
inconsequential since information was accurate and legible and 
location of label was in a position likely to be found by vehicle 
operator); Red River Manufacturing. Inc., 63 FR 59624 (1998) (tire 
information on trailer certification labels with English only units 
of measure deemed inconsequential since correct English unit 
information sans metric is present and label is in compliance with 
regulations in all other respects); Cooper Tire and Rubber Company, 
62 FR 45474 (1997) (tires with incorrect load and inflation label on 
the serial side were deemed inconsequential since incorrect 
information was within tire tolerances and accurate information was 
provided in two other locations); Bridgestone/Firestone Inc., 57 FR 
45865 (1992) (tire serial code with missing number determined 
inconsequential since missing number was contained in the code 
identifying the manufacturer of the tire and such information was 
otherwise discernible from other markings on affected tires); Cooper 
Tire & Rubber Co., 56 FR 11300 (1991) (tires maximum inflation 
pressure marked ``65 p.s.i. max. press.'' instead of ``65 p.s.i. 
cold'' deemed inconsequential since both phrases have the same 
meaning and all other information is otherwise correct and in 
compliance).
    In each of the foregoing cases, NHTSA determined that although a 
noncompliance of the relevant safety standard had occurred, the 
noncompliances were inconsequential with regards to motor vehicle 
safety since the erroneous information was corrected elsewhere or 
did not otherwise alter the meaning of the information conveyed. The 
last two examples cited above are particularly analogous to MBUSA's 
current situation. In the Bridgestone/Firestone case, the tire 
manufacturer had failed to include the number ``2'' in the tire 
serial code. The number 2 was part of the serial marker that 
identified Bridgestone/Firestone as the tire manufacturer. Despite 
the missing number, NHTSA determined that the violation was 
inconsequential since the tires bore the brand name ``Firestone'' 
and were labeled with the old serial code for Firestone. The tires 
also bore the date code, size, model and ``Made in U.S.A.'' markings 
which allowed sufficient identification of the tires in the event a 
notification and remedy campaign was required. Thus, the 
noncompliance was deemed inconsequential. Like Bridgestone/
Firestone, the missing word ``Are'' does not alter the information 
conveyed to the consumer. The warning ``Objects in Mirror (Blank) 
Closer Than They Appear'' still provides enough information to the 
vehicle operator so that the operator is aware a convex passenger 
side view mirror is in use and that some distortion will result.
    Likewise, the second Cooper Tire & Rubber Company case is also 
analogous to MBUSA's current petition. Specifically, in that case 
the tire manufacturer had incorrectly stamped a lot of tires with 
the label ``MAX. LOAD 2540 LBS. AT 65 P.S.I. MAX. PRESS'' instead of 
the appropriate ``MAX. LOAD 2540 LBS. AT 65 P.S.I. COLD.'' NHTSA 
determined, however, that since ``MAX PRESS'' was

[[Page 48894]]

understood to mean the maximum cold inflation pressure to which the 
tire may be inflated and that the term ``COLD'' carried the same 
meaning, that the noncompliance was inconsequential with regards to 
motor vehicle safety. Like Cooper Tire & Rubber Company's mislabeled 
tires, MBUSA's convex passenger side view mirror warnings the word 
``Are'' is not clearly printed or visible. The two warning 
statements, however, have the same meaning. Consequently, if the 
word ``Are'' is not clearly printed or visible, it has no impact to 
the meaning of the warning and should be deemed an inconsequential 
noncompliance.
    As provided above, MBUSA has identified the cause of the 
original error in the etched warning on convex passenger side view 
mirrors to a defective stencil used in the laser printer which 
etched the affected mirrors. MBUSA has since addressed this issue by 
ensuring that the complete and visible warning statement on all 
vehicles meets the requirements of FMVSS 111 S5.4.3 and is properly 
etched onto the mirror. MBUSA does not believe that the 
noncompliance described above has any appreciable impact on motor 
vehicle safety. The warning provided in noncompliant vehicles, 
although grammatically incorrect, still conveys the exact same 
meaning as the warning required by FMVSS 111. In fact, only one word 
was not clearly printed or visible in the required warning. This 
omission of the word did not change the meaning of the warning 
itself. MBUSA requests this application be granted so that an 
unnecessary and costly consumer recall action may be avoided. MBUSA 
expects a particularly low owner response to such a recall, if it 
were undertaken, because the basic message of the warning is 
adequately conveyed despite the error in format. In addition, since 
convex passenger side view mirrors with warnings have been in 
widespread use since 1982, MBUSA does not believe that the driving 
public will even note the error since the warning, if even noticed, 
will only serve as a reminder to what drivers have long become 
accustomed to.

    We invite you to comment in writing on MBUSA's application. 
Comments should refer to the docket number and be submitted in two 
copies to: U.S. Department of Transportation, Docket Management, Room 
PL-401, 400 Seventh Street, SW, Washington, DC, 20590.
    We will consider comments received before the close of business on 
the closing date indicated below. We will file the application and 
supporting materials. We will consider, to the extent possible, all 
comments received after the closing date. When we grant or deny the 
application, we will publish the notice in the Federal Register.
    Comment closing date: October 8, 1999.

(49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.50 and 
501.8)

    Issued on: September 2, 1999.
L. Robert Shelton,
Associate Administrator for Safety Performance Standards.
[FR Doc. 99-23311 Filed 9-7-99; 8:45 am]
BILLING CODE 4910-59-P