[Federal Register Volume 85, Number 175 (Wednesday, September 9, 2020)]
[Proposed Rules]
[Pages 55622-55624]
[FR Doc No: 2020-19583]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2020-0785; Product Identifier 2020-NM-063-AD]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FAA proposes to adopt a new airworthiness directive (AD)
for all The Boeing Company Model 747 airplanes and Model 767 airplanes.
This proposed AD was prompted by a report of an un-commanded fuel
transfer between the main and center fuel tanks. This proposed AD would
prohibit operation of an airplane with any inoperative refuel valve
(fueling shut-off valve) secured in the open position. The FAA is
proposing this AD to address the unsafe condition on these products.

DATES: The FAA must receive comments on this proposed AD by October 26,
2020.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, by any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue SE, Washington, DC 20590.
     Hand Delivery: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

    You may examine the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-
0785; or in person at Docket Operations between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. The AD docket contains
this NPRM, any comments received, and other information. The street
address for Docket Operations is listed above. Comments will be
available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT: Jeffrey Rothman, Aerospace Engineer,
Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des
Moines, WA 98190; phone and fax:<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    The FAA invites you to participate in this rulemaking by submitting
written comments, data, or views about this proposal. The most helpful
comments reference a specific portion of the proposal, explain the
reason for any recommended change, and include supporting data. To
ensure the docket does not contain duplicate comments, commenters
should submit only one copy of the comments. Send your comments to an
address listed under the ADDRESSES section. Include ``Docket No. FAA-
2020-0785; Product Identifier 2020-NM-063-AD'' at the beginning of your
comments.
    Except for Confidential Business Information (CBI) as described in
the following paragraph, and other information as described in 14 CFR
11.35, the FAA will post all comments received, without change, as well
as a report summarizing each substantive public contact with FAA
personnel concerning this proposed rulemaking. Before acting on this
proposal, the FAA will consider all comments received by the closing
date for comments. The FAA will consider comments filed after the
comment period has closed if it is possible to do so without incurring
expense or delay. The FAA may change this NPRM because of those
comments.

Confidential Business Information

    CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public
disclosure. If your comments responsive to this NPRM contain commercial
or financial information that is customarily treated as private, that
you actually treat as private, and that is relevant or responsive to
this NPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission containing
CBI as ``PROPIN.'' The FAA will treat such marked submissions as
confidential under the FOIA, and they will not be placed in the public
docket of this NPRM. Submissions containing CBI should be sent to the
person identified in the FOR FURTHER INFORMATION CONTACT section. Any
commentary that the FAA receives which is not specifically designated
as CBI will be placed in the public docket for this rulemaking.

Discussion

    The FAA has received a report of a flight diversion due to an un-
commanded fuel transfer between the main and center fuel tanks.
Following the flight, the operator discovered that a significant amount
of fuel had migrated from the left main tank to the center tank. This
condition was determined to be created by applying the Master Minimum
Equipment List (MMEL)/Dispatch Deviation Guide (DDG) relief for
inoperative refuel valves (fueling shut-off valves) secured in the
``open'' position in the main and center fuel tanks.
    During investigation of the event, the operator's maintenance
personnel restored all fueling shut-off valves to their normal
configuration (closed). The system was tested, and it was confirmed
that the fuel migration stopped.
    Multiple refuel valves secured in the ``open'' position can result
in un-commanded fuel transfer between tanks, which adversely affects
the airplane's center of gravity, aerodynamic drag, and fuel economy.
Fuel exhaustion may occur due to a combination of increased trim drag
(due to unmitigated fuel imbalance) and the unavailability of trapped
fuel due to a fully depleted main tank defeating the center tank fuel
scavenge system.
    The FAA is proposing this AD to address multiple refuel valves
secured in the ``open'' position via MMEL dispatch allowance, which
allows un-commanded fuel transfer between fuel tanks. This condition,
if not addressed, could result in a fuel exhaustion event.

FAA's Determination

    The FAA is proposing this AD because the agency evaluated all the
relevant information and determined the unsafe condition described
previously is likely to exist or develop in other products of the same
type design.

Proposed AD Requirements

    This proposed AD would prohibit operation of an airplane with
multiple refuel valves secured in the ``open'' position.

MMEL Revisions

    This proposed AD refers to items in Sections 28-20 and 28-21 of the
MMEL \1\; those items may also be included in an operator's FAA-
approved minimum equipment list (MEL). This proposed AD would prohibit
operation of the airplane under conditions currently allowed by those
items in the MMEL. The FAA plans to revise the MMEL to remove those
items in a future revision; operators would then be required to also
remove those items from their existing FAA-approved MEL.
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    \1\ The MMEL items can be found in the applicable FAA-approved
MMEL: Boeing 747 B-747-100/200/300/SP SERIES MMEL, Revision 35,
dated April 25, 2014; Boeing 747 B-747-400 LCF MMEL, Revision 3,
November 7, 2014; Boeing 747 B-747-400, B-747-400D, B-747-400F MMEL,
Revision 32, dated December 27, 2018; Boeing 747-8 MMEL, Revision 7,
dated August 25, 2017; and Boeing 767 MMEL, Revision 39, dated
October 26, 2018; which can be found on the Flight Standards
Information Management System (FSIMS) website, https://fsims.faa.gov/PICResults.aspx?mode=Publication&doctype=MMELByModel.
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Costs of Compliance

    The FAA estimates that this proposed AD would affect 750 airplanes
of U.S. registry.
    The FAA has determined that revising the operator's existing FAA-
approved MEL takes an average of 90 work-hours per operator, although
the agency recognizes that this number may vary from operator to
operator. Since operators typically incorporate MEL changes for their
affected fleet(s), the FAA has determined that a per-operator estimate
is more accurate than a per-airplane estimate. Therefore, the FAA
estimates the average total cost per operator to be $7,650 (90 work-
hours x $85 per work-hour).

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    The FAA is issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: General requirements.
Under that section, Congress charges the FAA with promoting safe flight
of civil aircraft in air commerce by prescribing regulations for
practices, methods, and procedures the Administrator finds necessary
for safety in air commerce. This regulation is within the scope of that
authority because it addresses an unsafe condition that is likely to
exist or develop on products identified in this rulemaking action.

Regulatory Findings

    The FAA determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Will not affect intrastate aviation in Alaska, and
    (3) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

The Boeing Company: Docket No. FAA-2020-0785; Product Identifier
2020-NM-063-AD.

(a) Comments Due Date

    The FAA must receive comments by October 26, 2020.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to all The Boeing Company airplanes,
certificated in any category, identified in paragraphs (c)(1) and
(2) of this AD.
    (1) Model 747-100, -100B, -100B SUD, -200B, -200C, -200F, -300,
-400, -400D, -400F, 747SR, 747SP, -8F, and -8 series airplanes.
    (2) Model 767-200, -300, -300F, -400ER, and -2C series
airplanes.

(d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

(e) Unsafe Condition

    This AD was prompted by a report of an un-commanded fuel
transfer between the main and center fuel tanks. The FAA is issuing
this AD to address multiple refuel valves secured in the ``open''
position via Master Minimum Equipment List (MMEL) dispatch
allowance, which allows un-commanded fuel transfer between fuel
tanks. This condition could result in a fuel exhaustion event.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Conditions for Prohibited Operation

    No later than 60 days after the effective date of this AD:
Operation of an airplane with any inoperative refuel valve (fueling
shut-off valve) secured in the open position is prohibited.

(h) MMEL Items

    The MMEL items specified in paragraphs (h)(1) through (6) of
this AD are affected by this prohibition.
    (1) For Model 747-100, -200, and -300 series airplanes: The
following ``Pressure Fueling System'' items.
    (i) MMEL Item 28-20 2), ``Main Tank 1 and 4 Refueling Valves.''
    (ii) MMEL Item 28-20 3), ``Main Tank 2 and 3 Refueling Valves.''
    (iii) MMEL Item 28-20 4), ``Center Tank Refueling Valves.
    (iv) MMEL Item 28-20 5), ``Reserve Tank 1 and 4 Refueling
Valves.''
    (v) MMEL Item 28-20 6), ``Reserve Tank 2 and 3 Refueling
Valves.''
    (2) For Model 747-400LCF series airplanes: MMEL Item 28-21-1 1),
``Refuel Valves,'' second dispatch case with refueling valves
inoperative open.
    (3) For Model 747-400 series airplanes: MMEL Item 28-21-1 1),
``Refuel Valves,'' first dispatch case with refueling valves
inoperative open.
    (4) For Model 747-8 series airplanes: MMEL Item 28-21-01-01-01A,
``Refuel Valves,''
    (5) For Model 767 series airplanes: MMEL Item 28-21-01-01B,
``Fuel Shutoff Valves.''
    (6) For Model 767-2C/KC-46 airplanes: The following ``Pressure
Fueling System'' items.
    (i) MMEL Item 28-21-01-01E, ``Main Tank Shutoff Valve
Inoperative Open.''
    (ii) MMEL Item 28-21-01-01F, ``Center Tank Shutoff Valve
Inoperative Open.''

    Note 1 to paragraph (h): The MMEL items specified in paragraph
(h) of this AD can be found in the applicable FAA-approved MMEL:
Boeing 747 B-747-100/200/300/SP SERIES MMEL, Revision 35, dated
April 25, 2014; Boeing 747 B-747-400 LCF MMEL, Revision 3, November
7, 2014; Boeing 747 B-747-400, B-747-400D, B-747-400F MMEL, Revision
32, dated December 27, 2018; Boeing 747-8 MMEL, Revision 7, dated
August 25, 2017; and Boeing 767 MMEL,

Revision 39, dated October 26, 2018; which can be found on the
Flight Standards Information Management System (FSIMS) website,
https://fsims.faa.gov/PICResults.aspx?mode=Publication&doctype=MMELByModel.

(i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle ACO Branch, FAA, has the authority to
approve AMOCs for this AD, if requested using the procedures found
in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request
to your principal inspector or local Flight Standards District
Office, as appropriate. If sending information directly to the
manager of the certification office, send it to the attention of the
person identified in paragraph (j) of this AD. Information may be
emailed to<EMAIL_ADDRESS>    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair, modification, or alteration required by this AD
if it is approved by The Boeing Company Organization Designation
Authorization (ODA) that has been authorized by the Manager, Seattle
ACO Branch, FAA, to make those findings. To be approved, the repair
method, modification deviation, or alteration deviation must meet
the certification basis of the airplane, and the approval must
specifically refer to this AD.

(j) Related Information

    For more information about this AD, contact Jeffrey Rothman,
Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch,
2200 South 216th St., Des Moines, WA 98190; phone and fax: 206-231-
3558<EMAIL_ADDRESS>
    Issued on August 21, 2020.
Gaetano A. Sciortino,
Deputy Director for Strategic Initiatives, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2020-19583 Filed 9-8-20; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 15 (Monday, January 25, 2016)]
[Rules and Regulations]
[Pages 3962-3963]
[FR Doc No: 2016-01382]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 100

[Docket No. USCG-2015-1103]

Special Local Regulations; Southern California Annual Marine
Events for the San Diego Captain of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Notice of enforcement of regulation.

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SUMMARY: The Coast Guard will enforce the Hanohano Ocean Challenge
special local regulations on Saturday, January 23, 2016. This event
occurs in Mission Bay in San Diego, CA. These special local regulations
are necessary to provide for the safety of the participants, crew,
spectators, sponsor safety vessels, and general users of the waterway.
During the enforcement period, persons and vessels are prohibited from
entering into, transiting through, or anchoring within this regulated
area unless authorized by the Captain of the Port, or his designated
representative.

DATES: The regulations in 33 CFR 100.1101 will be enforced for the
location listed in item 16 in Table 1 to 33 CFR 100.1101 from 6 a.m.
until 2 p.m. on January 23, 2016.

FOR FURTHER INFORMATION CONTACT: If you have questions on this notice
of

enforcement, call or email Petty Officer Randolph Pahilanga, Waterways
Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278-
7656, email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: The Coast Guard will enforce the special
local regulations in 33 CFR 100.1101 in support of the Hanohano Ocean
Challenge (Item 16 on Table 1 of 33 CFR 100.1101) in Mission Bay in San
Diego, CA from 6 a.m. to 2 p.m. on Saturday, January 23, 2016.
    Under the provisions of 33 CFR 100.1101, persons and vessels are
prohibited from entering into, transiting through, or anchoring within
this regulated area unless authorized by the Captain of the Port, or
his designated representative. Spectator vessels may safely transit
outside the regulated area, but may not anchor, block, loiter, or
impede the transit of participants or official patrol vessels. The
Coast Guard may be assisted by other Federal, State, or local law
enforcement agencies in patrol and notification of this regulation.
    This document is issued under authority of 33 CFR 100.1101 and 5
U.S.C. 552(a). In addition to this document in the Federal Register,
the Coast Guard will provide the maritime community with advance
notification of this enforcement period via the Local Notice to
Mariners and local advertising by the event sponsor.
    If the Captain of the Port Sector San Diego or his designated
representative determines that the regulated area need not be enforced
for the full duration stated on this document, he or she may use a
Broadcast Notice to Mariners or other communications coordinated with
the event sponsor to grant general permission to enter the regulated
area.

    Dated: January 4, 2016.
J.S. Spaner,
Captain, U.S. Coast Guard, Captain of the Port, San Diego.
[FR Doc. 2016-01382 Filed 1-22-16; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 87, Number 153 (Wednesday, August 10, 2022)]
[Notices]
[Pages 48764-48768]
[FR Doc No: 2022-17130]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0124; Notice 2]

North America Subaru, Inc., Denial of Petition for Decision of
Inconsequential Noncompliance

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

ACTION: Denial of petition.

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SUMMARY: North America Subaru, Inc., (NASI) on behalf of Subaru
Corporation and Subaru of America, Inc. (Subaru) has determined that
certain model year (MY) 2016-2020 Subaru Impreza motor vehicles do not
fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No.
108, Lamps, Reflective Devices, and Associated Equipment. Subaru filed
a noncompliance report dated October 10, 2019. NASI, on behalf of
Subaru, petitioned NHTSA on October 23, 2019, for a decision that the
subject noncompliance is inconsequential as it relates to motor vehicle
safety. This document announces and explains the denial of NASI's
petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle
Safety Compliance, the National Highway Traffic Safety Administration
(NHTSA),<PHONE_NUMBER>, [email protected].

SUPPLEMENTARY INFORMATION:

I. Overview

    NASI has determined that certain MY 2016-2020 Subaru Impreza motor
vehicles do not fully comply with S8.1.11 and S10.15.6 of FMVSS No.
108, Lamps, Reflective Devices, and Associated Equipment (49 CFR
571.108). Subaru filed a noncompliance report dated October 10, 2019,
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility
and Reports. NASI petitioned NHTSA on October 23, 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 NASI's petition was published with a 30-day
public comment period, in the Federal Register (85 FR 39037, June 29,
2020). One comment was 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-2019-0124.''

II. Vehicles Involved

    Approximately 63,697 MY 2016-2020 Subaru Impreza 4 door and
approximately 124,703 Subaru Impreza Station wagon vehicles, totaling
188,400 motor vehicles manufactured between September 23, 2016, and
August 7, 2019, are potentially involved.

III. Noncompliance

    NASI explains that there are two separate noncompliances associated
with the subject vehicles' front combination lamps. First, the front
combination lamps contain lower beam headlamps that do not meet the
requirements of paragraph S10.15.6, and second, the front combination
lamps contain reflex reflectors that do not meet the requirements of
paragraph S8.1.11 of FMVSS No. 108. Specifically, when tested, the
lower beam in two of four front combination lamps (samples: LH1 and
LH4) and the reflex reflector in four of four front combination lamps
(samples LH1, LH2, LH3 and LH4) failed to comply at certain test
points.

IV. Rule Requirements

    S8.1.11 and S10.15.6 of FMVSS No. 108 include the requirements
relevant to this petition. 49 CFR 571.108, S8.1.11 requires each reflex
reflector be designed to conform to the photometry requirements of
Table XVI-a when

tested according to the procedure of S14.2.3. 49 CFR 571.08, S10.15.6
requires each replaceable bulb headlamp be designed to conform to the
photometry requirements of Table XIX for lower beam as specified in
Table II-d for the specific headlamp unit and aiming method, when
tested according to the procedure of S14.2.5 using any replaceable
light source designated for use in the system under test.

V. Summary of NASI's Petition

    The following views and arguments presented in this section, ``V.
Summary of NASI's Petition,'' are the views and arguments provided by
NASI and do not reflect the views of the Agency.
    NASI described the subject noncompliance and contended that the
noncompliance is inconsequential as it relates to motor vehicle safety.
    1. NASI submitted that the nonconformance relating to side reflex
reflector photometry is inconsequential as it relates to motor vehicle
safety for the following reasons:
    a. Real-world testing conducted by NASI showed that noncompliant
and compliant reflex reflectors are equally detectable in real-world
conditions. NASI included an overview of cognitive performance testing
of the compliant and noncompliant reflex reflectors with its petition
which can be found in full on the FDMS website.\1\ The cognitive
performance test set-up simulated a condition typical of a vehicle
approaching an unlit, perpendicular vehicle stalled in the driving
lane. This test condition simulates a real-world condition where side
reflex reflectors would support improved visibility of that vehicle.
The test results show that, with respect to light reflectance and their
ability to be detected, there is no noticeable difference observable
between the fully compliant reflex reflector and the reflex reflector
that marginally fails to comply at select test points.
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    \1\ https://www.regulations.gov/document/NHTSA-2019-0124-0001.
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    b. At a majority of the test points where the tested reflex
reflectors were found to have measured intensities below the required
minimum values, the measured values were generally only slightly less
than the required minimum. For two of the four lamp assemblies tested,
there was one point (point HV) where measured values slightly exceeded
the 25% threshold cited by NHTSA and others in the past as being the
threshold at which the difference between two lamp intensities of less
than 25% cannot be detected reliably by most drivers.\2\ The two
measured values were below the required minimums by 26.9% (sample LH1)
and 27.7% (sample LH4). NASI noted that, on average, for the four
samples tested by Calcoast, the HV test point was only 24.8% below the
required minimum. We also note, as mentioned above, that the cognitive
performance testing conducted by NASI found there to be no noticeable
differences in detectability for the compliant and noncompliant reflex
reflectors in question.
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    \2\ See DOT report, Driver Perception of Just Noticeable
Differences of Automotive Signal Lamp Intensities, DOT HS 808 209,
September 1994. https://ntrl.ntis.gov/NTRL/dashboard/searchResults/titleDetail/PB95206306.xhtml.
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    c. For a dynamic situation, light reflecting at a particular test
point will be observed for only a short period of time. Compared to a
light source that is constantly illuminated, the intensity originating
from a reflex reflector is more fleeting to an observer. Reflex
reflector intensity varies significantly depending on the angle of the
driver's eyes to the reflector's central axis. Larger angles mean less
light will be seen from the reflex reflector. Smaller angles mean more
light will be seen from the reflex reflector. As a result, a
nonconformity at a given test point for a reflex reflector will
generally have a minimal impact on detectability. Thus, minor
nonconformances at any one test point should be inconsequential with
respect to safety risk.
    d. NASI contended that it has been recognized by NHTSA in the past
that it is inherently difficult to manufacture all lamps \3\ to comply
with all test points and that random failures do occur. FMVSS No. 108
requires lighting equipment be designed to conform to relevant
requirements as opposed to simply comply with relevant requirements.
NASI stated that according to NHTSA,\4\ occasional random
noncompliances are to be expected in this very complicated design and
manufacturing process and it is for this reason that the ``designed to
comply'' \5\ provision is contained in the lighting standard. See
commentary from the NPRM \6\ in which NHTSA proposed to amend FMVSS No.
108 to permit the certification of adaptive driving beam headlighting
systems. In that notice, the Agency noted that, historically, there has
never been an absolute requirement that every motor vehicle lighting
device meets every single photometric test point to comply with FMVSS
No. 108.
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    \3\ Reflex reflectors are considered reflective devices and not
lamps. FMVSS No. 108 defines reflex reflectors as ``devices used on
vehicles to give an indication to approaching drivers using
reflected light from the lamps of the approaching vehicle.''
    \4\ See Nissan Motor Corporation, U.S.A.; Denial of Application
for Decision of Inconsequential Noncompliance; 62 FR 63416, November
28, 1997.
    \5\ Specific to reflex reflectors and the lower beam, the
regulatory text uses the phrase ``designed to conform.'' This phrase
will be used throughout the analysis section for clarity.
    \6\ See Federal Motor Vehicle Safety Standards; Lamps,
Reflective Devices, and Associated Equipment; 83 FR 51766, October
12, 2018.
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    e. NASI stated that NHTSA has previously granted Subaru \7\ and
General Motors \8\ petitions for inconsequentiality involving side
reflex reflectors which were determined to be nonconforming at select
test points by varying degrees.
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    \7\ See Subaru of America; Grant of Petition for Determination
of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991.
    \8\ See General Motors Corporation; Grant of Petition for
Determination of Inconsequential Noncompliance; 57 FR 45866, October
5, 1992.
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    f. NASI claimed that it is not aware of any field or customer
complaints related to the performance of the side reflex reflectors
contained the subject front combination lamps, nor has it been made
aware of any accidents or injuries that have occurred relating to the
performance of these lamp assemblies.
    2. NASI submitted that the nonconforming condition relating to
lower beam photometry is inconsequential as it relates to motor vehicle
safety for the following reasons:
    a. In compliance testing conducted by CALCOAST-ITL on behalf of
NHTSA,\9\ two of four front combination lamps tested (samples LH1 and
LH4) failed to comply with certain low beam photometry requirements in
S10.15.6.
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    \9\ See NHTSA Report No. 108-CAN-19-002. https://static.nhtsa.gov/odi/ctr/9999/TRTR-646051-2019-001.pdf.
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    i. Sample LH1:
     Front combination lamp sample LH1 photometry was measured
at twenty-four test points. At two of the twenty-four test points,
sample LH1 exceeded the maximum allowable luminous intensity values by
small amounts (11.4% and 4.7%). At one of the twenty-four test points,
sample LH1 was below the minimum acceptable luminous intensity value by
13.0%.
     At 21 of 24 test points, sample LH1 complied with the
specified luminous intensity values listed in Table XIX-a (LB2V).
    ii. Sample LH4
     Front combination lamp sample LH4 photometry was measured
at 24 test points. At two of the twenty-four test points, the sample
LH4 exceeded the maximum allowable luminous intensity values by small
amounts (16.8% and 19.4%).

     At 22 of 24 test points, sample LH4 complied with the
specified luminous intensity values listed in Table XIX-a (LB2V).
    iii. For both samples LH1 and LH4, test points at which the maximum
allowable luminous intensity values were exceeded at test points 1.0
degree and 0.5 degrees up from the horizontal, respectively. These test
points, which were taken in the range of 1.5 degrees to 9.9 degrees
left of center, are in place to ensure that glare is minimized to
oncoming drivers. In the UMTRI report entitled ``Just Noticeable
Differences for Low-Beam Headlamp Intensities'' (UMTRl-97-4), testing
was conducted to evaluate ``just noticeable differences'' or JNDs for
glare intensities of oncoming low-beam headlamps. Specifically, UMTRI
looked at whether the 25% rule established by NHTSA for signal lamps
would be applicable for the range of intensities relevant to low-beam
headlamps. Based on the testing conducted by UMTRI using low-beam
headlamps, UMTRI concluded that applying the 25% limit for
inconsequential noncompliance to a photometric test point that
specifies a maximum for glare protection would be appropriate. Given
the UMTRI conclusion, it believes that the small exceedances in maximum
intensities for these two test points are inconsequential to safety.
    iv. For sample LH1, test point 4.0D 20.0R was the third point which
was noncompliant per the measurements taken. This test point measures
light intensity down and to the right (4 degrees below the horizontal
and 20 degrees to the right of center). The minimum intensity value
ensures adequate light down and far right (e.g., sidewalk to the right
of the vehicle). Sample LH1's measured light intensity was 13% less
than the required value.
    Of the four samples tested by Calcoast, only one sample was
noncompliant at this test point. This degree of nonconformity was
minimal (13% below the required value). When the other three samples
were tested, the measured intensities at this test point complied with
margins of 47.2%, 27.8% and 2.8%.
    For sample LH1, a point within the Zone 10U-90U/90L-90R at 10.00U-
7.3R exceeded the maximum permissible intensity threshold by 8.7%. The
maximum allowable intensity of 125 candelas in this zone was
established to reduce the amount of glare to the driver of the car with
the subject headlamp in driving conditions involving poor weather
(rain, fog, snow, etc.). The consequence of one of four samples having
a measurement of 8.7% above the maximum allowable value is
inconsequential given the exceedance is far less than the 25% just
noticeable difference.
    As discussed previously in its petition, NASI stated that NHTSA has
recognized in the past that it is inherently difficult to manufacture
all lamps to comply with all test points and that random failures do
occur. FMVSS No. 108 requires lighting equipment to be designed to
conform to relevant requirements as opposed to simply comply with
relevant requirements. Occasional random noncompliances are to be
expected.\10\ This is why there has never been an absolute requirement
that every motor vehicle lighting device meets every single photometric
test point to comply with FMVSS No. 108.\11\
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    \10\ See Nissan Motor Corporation, U.S.A.; Denial of Application
for Decision of Inconsequential Noncompliance; 62 FR 63416, November
28, 1997.
    \11\ See Federal Motor Vehicle Safety Standards; Lamps,
Reflective Devices, and Associated Equipment; 83 FR 51766, October
12, 2018.
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    Based on the data before it, NASI stated that it believes that the
light intensity measured at test point 4.0D 20.0R for one of four
samples tested is inconsequential to safety.
    b. NASI claimed that it is not aware of any field or customer
complaints related to the low-beam performance of the subject front
combination lamps, nor has it been made aware of any accidents or
injuries that have occurred relating to the performance of these lamp
assemblies.
    NASI concluded by reiterating 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. Public Comment

    NHTSA received one comment from the public.\12\ The commenter
stated a belief that NASI provided substantial evidence in support of
its position, while also noting an inability to judge the merits of the
petition. While the Agency appreciates the commenter's view on this
issue, NHTSA finds that the information submitted by NASI does not
satisfy its burden of persuasion as discussed below.
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    \12\ Docket No. NHTSA-2019-0124-0003.
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VII. NHTSA's Analysis

A. General Principles

    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.\13\
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    \13\ 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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    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.\14\ The Safety Act is
preventive, and manufacturers cannot and should not wait for deaths or
injuries to occur in their vehicles before they carry out a recall.
See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977). Indeed, the very purpose of a recall is to protect
individuals from risk. See id. 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.'' \15\
``[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.'' \16\
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    \14\ 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).
    \15\ Morgan 3 Wheeler Limited; Denial of Petition for Decision
of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12,
2016).
    \16\ 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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B. NHTSA's Response to NASI's Petition

    FMVSS No. 108 establishes the minimum level of performance for
lighting and reflective equipment. The petitioner, not NHTSA, has the
burden to demonstrate that a noncompliance with the FMVSS is
inconsequential to safety. In the past, the Agency has only determined
that a noncompliance with photometric requirements to be
inconsequential to safety in very limited

circumstances, such as when we have determined the brightness
differential would not be noticeable to an observer.
    NHTSA's analysis will consider each of the two noncompliances.
    The first noncompliance to be considered, 49 CFR 571.108, S8.1.11,
concerns the reflex reflector. The purpose of the reflex reflectors,
among other things, is to provide conspicuity to vehicles that are not
in operation at night. There is a safety need to provide ample
conspicuity to vehicles in order to reduce the risk of motor vehicle
crashes.
    NASI claimed the real-world testing it conducted showed that
noncompliant and compliant reflex reflectors are equally detectable in
real-world conditions. NHTSA disagrees. In this case, NASI's testing
did not have human participants but instead a camera was used to check
visibility of a reflex reflector. NHTSA reviewed the submitted study,
and determined that there is a clear difference between the compliant
and non-compliant reflex reflector. Further, NHTSA's test data along
with NASI's in-house failed sample confirms the failures are comparable
to each other. In addition, the position of the surrogate vehicle was
for only one position and was directly in front of the stimulus
vehicle.
    NASI claimed that a nonconformity at a given test point for a
reflex reflector will generally have a minimal impact on detectability
and therefore concluded that minor nonconformances at any one test
point should be inconsequential with respect to safety risk. NHTSA
disagrees, especially considering that 3 of the 5 required test points
were not met. Even if light reflecting at a particular test point will
be observed for only a short period of time, since there is a drop in
performance over several observable angles, we believe that the
detectability of this reflex reflector may be impacted when compared to
a compliant reflex reflector. Therefore, we do not agree with NASI's
conclusion.
    We do not agree that the study referenced by NASI (DOT HS 808 209)
adequately supports any conclusion that a 25% deviation from the
photometric requirement for a reflex reflector is inconsequential.
First, this study does not apply to reflex reflectors. Second, the
performance requirements for reflex reflectors are measured in (cd/
incident ft-c) or (mcd/lux), whereas the performance requirements for
signal lighting assessed in the study are measured in candela (cd).
Absent compelling evidence, which NASI has not supplied, the Agency
does not believe there is any basis for applying the conclusions of a
study limited to one type of lighting equipment and criteria to another
form of equipment evaluated by different criteria.
    NASI also cites two past petition grants predating DOT HS 808 209;
one for Subaru \17\ and one for General Motors,\18\ where NHTSA
concurred with the proposition that a 25% deviation in reflector
performance is imperceptible. Since evaluating Subaru's petition almost
thirty years ago, NHTSA's line of reasoning on this subject has
evolved. In the previous Subaru petition, NHTSA applied rationale
related to tail lamps to reflex reflectors. Today, as explained
previously in this section, NHTSA recognizes that the photometry
criteria evaluated for reflex reflectors is measured in (cd/incident
ft-c) or (mcd/lux) whereas tail lamps are measured in candela (cd) and
therefore it is not proper to apply the logic of the tail lamp analysis
to reflex reflectors, despite the prior grant.\19\
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    \17\ See Subaru of America; Grant of Petition for Determination
of Inconsequential Noncompliance; 56 FR 59971, November 26, 1991.
    \18\ See General Motors Corporation; Grant of Petition for
Determination of Inconsequential Noncompliance; 57 FR 45866, October
5, 1992.
    \19\ NHTSA acknowledges that a petition for failure to meet
reflex reflector (luminosity) was granted as recently as 2020;
however, the facts of that petition are substantially different in
that the actual measured noncompliance was marginal (one test point
having a value .05% below the requirement) and the bulk of rationale
was based on a theoretical worst case analysis. See Toyota Motor
North America, Inc., Grant of Petition for Decision of
Inconsequential Noncompliance; 85 FR 39679, July 1, 2020.
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    Further, NHTSA does not find the decision issued in the General
Motors petition as particularly applicable or persuasive. In that
instance, General Motors determined that a noncompliance existed
because the installation of an accessory front end cover available at
its dealerships masked an existing compliant side marker to the extent
that the vehicle with the cover installed did not meet Standard No.
108. Among other things, NHTSA's notice granting GM's petition observed
that the Agency would not necessarily have considered the condition
caused by the installation of the front-end cover as a non-compliance.
    The second noncompliance pertains to the lower beam not meeting the
photometric requirements of FMVSS No. 108, S10.15.6. The purpose of the
lower beam, among other things, is to provide down-road illumination
while not causing glare to other road users. There is an obvious safety
need to minimize glare in order to reduce the risk of motor vehicle
crashes.
    NHTSA does not concur with the conclusion NASI drew from an UMTRI
study \20\ that exceeding maximum intensities is inconsequential to
safety because NHTSA has no glare-specific study indicating that the
level of ``glare'' involved here is safe and NASI's petition does not
provide any other data establishing that the headlamp noncompliance
here has no impact on safety. Furthermore, OVSC reviewed the compliance
test data for the samples NHTSA tested and observed that all four
samples showed the lower beam to consistently and significantly exceed
the maximum photometric requirement at similar test points, prior to a
0.25-degree re-aim allowed by S<IP_ADDRESS> of FMVSS No. 108 for headlamp
photometric measurement of all headlamps except a Type F upper beam
unit not equipped with a vehicle headlamp aiming device (VHAD). The
0.25-degree re-aim procedure affords manufacturers flexibility in
meeting the photometric requirements to allow for variations in
readings between laboratories. Given this flexibility is already
incorporated into the procedure, NHTSA does not agree that failure to
meet the requirements after the re-aim is inconsequential to safety.
---------------------------------------------------------------------------

    \20\ See Just Noticeable Differences for Low-Beam Headlamp
Intensities (Sayer, Flannagan, Sivak, Kojima, and Flannagan), Report
No. UMTRI-97-4, February 1997.
---------------------------------------------------------------------------

    With respect to the ``design to conform'' argument that NASI
applied to both the lower beam and the reflex reflector, NASI claimed
that ``occasional random noncompliances are to be expected'' and that
the ``designed to conform'' provision contained in the lighting
standard indicates that the Agency does not demand a higher standard of
compliance beyond the manufacturer's design intent. NASI cited
commentary from NHTSA's NPRM related to amending FMVSS No. 108 to
permit the certification of adaptive driving beam (ADB) headlighting
systems. However, NHTSA's Final Rule on ADB noted that the ``designed
to conform'' language was a product of the technology available back in
1967, and that NHTSA may not come to the same conclusion if it were to
revisit the issue today, in light of the fact that lighting equipment
design, technology, and manufacturing have evolved and advanced since
the late 1960's.\21\
---------------------------------------------------------------------------

    \21\ Federal Motor Vehicle Safety Standards; Lamps, Reflective
Devices, and Associated Equipment, Adaptive Driving Beam Headlamps,
87 FR 9916, 9940 n.92 February 22, 2022.
---------------------------------------------------------------------------

    Additionally, NHTSA also finds that, without consideration of the
claim that items that must meet FMVSS No. 108 need only be designed to
conform, that

design intent is immaterial to the disposition of this petition. NASI's
Part 573 filing states that the side reflex reflector production molds
were damaged, and the lower beam reflector mold was worn and both
conditions caused product performance issues. Therefore, whatever
NASI's design intent may have been, the failure to conform in the
instant case apparently stems from a systemic production problem that
is wholly distinct from whether the components were ``designed to
conform.''
    NHTSA has consistently held that a lamp's failure to meet
performance requirements will not constitute a compliance failure when
such failures are random and occasional.\22\ However, the test failures
for two of the four lower beam functions that NHTSA tested, and four of
the four side reflex reflectors that NHTSA tested occurred at around
the same test points and photometric values. All of these failures were
found to be within 1% to 10% of each other. These data support a
pattern of performance that is neither random nor occasional. Based on
the pattern of failure established with four samples tested, NHTSA
finds that if more lamps were tested, more than an occasional number of
failures would be obtained.
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    \22\ See Nissan Motor Corporation, U.S.A.; Denial of Application
for Decision of Inconsequential Noncompliance; 62 FR 63416, November
28, 1997.
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VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that NASI has
not met its burden of persuasion that the subject FMVSS No. 108
noncompliance is inconsequential to motor vehicle safety. Accordingly,
NASI's petition is hereby denied and NASI is consequently obligated to
provide notification of and free remedy for that noncompliance under 49
U.S.C. 30118 and 30120.

(Authority: 49 U.S.C. 30118, 30120: delegations of authority at 49
CFR 1.95 and 501.8)

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-17130 Filed 8-9-22; 8:45 am]
BILLING CODE 4910-59-P