[Federal Register Volume 77, Number 124 (Wednesday, June 27, 2012)]
[Notices]
[Pages 38391-38394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-15667]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0007; Notice 1]


Mercedes-Benz USA, LLC, and Daimler AG (DAG), Receipt of Petition 
for Decision of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Receipt of petition.

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SUMMARY: Mercedes-Benz USA, LLC \1\ (MBUSA) and its parent company 
Daimler AG (DAG)(collectively referred to as ``MB'') have determined 
that certain model year 2011 and 2012 Mercedes-Benz S-Class (221 
platform) passenger cars do not fully comply with paragraph S4.4 TPMS 
Malfunction of Federal Motor Vehicle Safety Standard (FMVSS) No. 138, 
Tire Pressure Monitoring Systems. MB has filed an appropriate report 
pursuant to 49 CFR Part 573, Defect and Noncompliance Responsibility 
and Reports (dated September 30, 2011).
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    \1\ Mercedes-Benz USA, LLC, and Daimler AG are motor vehicle 
manufacturers and importers. Mercedes-Benz USA, LLC is a limited 
liability company organized under the laws of Delaware. Daimler AG 
is organized under the laws of Germany.
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule 
at 49 CFR Part 556), MB has petitioned for an exemption from the 
notification and remedy requirements of 49 U.S.C. Chapter 301 on the 
basis that this noncompliance is inconsequential to motor vehicle 
safety.
    This notice of receipt of MB's petition is published under 49 
U.S.C. 30118 and 30120 and does not represent any agency decision or 
other exercise of judgment concerning the merits of the petition.
    Vehicles involved: Affected are approximately 4,769 model year 2011 
and 2012 Mercedes-Benz S-Class (221 platform) passenger cars that were 
produced from March 2011 through August 2011.
    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 sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, these provisions 
only apply to the

[[Page 38392]]

subject 4,769 \2\ Mercedes-Benz S-Class passenger cars that MB no 
longer controlled at the time it determined that the noncompliance 
existed.
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    \2\ MB's petition, which was filed under 49 CFR Part 556, 
requests an agency decision to exempt MB as motor vehicle 
manufacturers from the notification and recall responsibilities of 
49 CFR Part 573 for 4,769 of the affected motor vehicles. However, a 
decision on this petition cannot relieve motor vehicle distributors 
and dealers of the prohibitions on the sale, offer for sale, 
introduction or delivery for introduction into interstate commerce 
of the noncompliant motor vehicles under their control after MB 
notified them that the subject noncompliance existed.
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    Rule text: Paragraph S4.4 of FMVSS No. 138 requires in pertinent 
part:
    S4.4 TPMS malfunction.
    (a) The vehicle shall be equipped with a tire pressure 
monitoring system that includes a telltale that provides a warning 
to the driver not more than 20 minutes after the occurrence of a 
malfunction that affects the generation or transmission of control 
or response signals in the vehicle's tire pressure monitoring 
system. The vehicle's TPMS malfunction indicator shall meet the 
requirements of either S4.4(b) or S4.4(c).
    (b) Dedicated TPMS malfunction telltale. The vehicle meets the 
requirements of S4.4(a) when equipped with a dedicated TPMS 
malfunction telltale that:
    (1) Is mounted inside the occupant compartment in front of and 
in clear view of the driver;
    (2) Is identified by the word ``TPMS'' as described under the 
``Tire Pressure Monitoring System Malfunction'' Telltale in Table 1 
of Standard No. 101 (49 CFR 571.101);
    (3) Continues to illuminate the TPMS malfunction telltale under 
the conditions specified in S4.4(a) for as long as the malfunction 
exists, whenever the ignition locking system is in the ``On'' 
(``Run'') position; and
    (4) (i) Except as provided in paragraph (ii), each dedicated 
TPMS malfunction telltale must be activated as a check of lamp 
function either when the ignition locking system is activated to the 
``On'' (``Run'') position when the engine is not running, or when 
the ignition locking system is in a position between ``On'' 
(``Run'') and ``Start'' that is designated by the manufacturer as a 
check position.
    (ii) The dedicated TPMS malfunction telltale need not be 
activated when a starter interlock is in operation.
    (c) Combination low tire pressure/TPMS malfunction telltale. The 
vehicle meets the requirements of S4.4(a) when equipped with a 
combined Low Tire Pressure/TPMS malfunction telltale that:
    (1) Meets the requirements of S4.2 and S4.3; and
    (2) Flashes for a period of at least 60 seconds but no longer 
than 90 seconds upon detection of any condition specified in S4.4(a) 
after the ignition locking system is activated to the ``On'' 
(``Run'') position. After each period of prescribed flashing, the 
telltale must remain continuously illuminated as long as a 
malfunction exists and the ignition locking system is in the ``On'' 
(``Run'') position. This flashing and illumination sequence must be 
repeated each time the ignition locking system is placed in the 
``On'' (``Run'') position until the situation causing the 
malfunction has been corrected. Multiple malfunctions occurring 
during any ignition cycle may, but are not required to, reinitiate 
the prescribed flashing sequence.

    Noncompliance: MB described the noncompliances as follows:
    In the subject vehicles, the tire pressure monitoring system 
malfunction indicator required by [paragraph] S4.4 of [FMVSS No. 138] 
may not illuminate in the manner required by FMVSS [No.] 138 due to a 
software misprogramming that occurred in a limited number of vehicles. 
When the system detects a malfunction (specifically, a missing or 
faulty wheel sensor signal in 1, 2 or 3 wheels), the malfunction 
indicator is activated within the required monitoring interval, but is 
activated continuously, rather than initially flashing for 60-90 
seconds as required by [paragraph] S4.4(c)(2).
    In addition, in a situation where all four wheel sensors/signals 
are missing, the subject programming will initially display the 
required warning, but will not automatically display it on subsequent 
restarts as required by [paragraph] S4.4(b)(3). This is because the 
system assumes that the owner has replaced the wheels which contain 
[Tire Pressure Monitoring System] TPMS sensors with wheels which do not 
contain sensors. In this situation, the driver will initially get a 
dedicated malfunction message indicating that the tire pressure 
monitoring system is inoperative, and that there are ``No Wheel 
Sensors.'' On subsequent restarts, this message is still accessible in 
the TPMS menu, but it does not automatically appear in the instrument 
cluster.
    MB'S ANALYSIS OF THE NONCOMPLIANCES: Absence of Flashing 
``Malfunction'' Telltale: The failure of the malfunction telltale to 
flash in the subject vehicles has no negative impact on safety because 
the additional supplemental data in the subject vehicles addresses the 
underlying purpose of the flashing requirement, and more than 
compensates for the absence of an initial flashing.
    In developing the TPMS regulations, MB believes that NHTSA 
recognized that flashing of the TPMS malfunction warning should not be 
required for all vehicles and TPMS systems, depending on the 
distinctiveness and level of information contained in the malfunction 
indicator warning. The subject vehicles use one of the telltale symbols 
specified for ``combination'' telltales (the vehicle icon) when 1, 2 or 
3 wheel sensors are missing or malfunctioning. Because this particular 
symbol is used, the vehicle is technically required to comply with the 
``combination low pressure/TPMS malfunction'' telltale requirements of 
FMVSS No. 138 paragraph S4.4(c), which requires initial flashing, 
rather than the ``dedicated TPMS malfunction'' telltale requirement, 
which does not require initial flashing. Accordingly, under FMVSS No. 
138 paragraph S4.4(c), this ``combination'' malfunction indicator is 
required to flash for 60-90 seconds upon initial illumination to notify 
the driver that the vehicle symbol stands for a system malfunction, as 
opposed to a low inflation pressure situation. Given the clear message 
conveyed by the warning in the subject vehicles, even without flashing, 
a driver would always understand whether his vehicle had a malfunction 
issue on the one hand, or a low tire pressure situation on the other.
    The requirements for ``dedicated'' malfunction telltales at FMVSS 
No. 138 paragraph S4.4(b) do not require any flashing of the telltale 
upon initial detection of a fault or malfunction because the agency 
recognized that malfunction indicator telltales with sufficiently clear 
or distinct information alerting the driver to a problem with the 
function of their TPMS, as opposed to a low tire inflation pressure, 
did not need to flash in order to adequately alert the driver to a 
problem with the system.
    The subject vehicles provide significantly more information than 
the minimum level required by the regulations for either dedicated or 
combination warnings. On the subject vehicles, additional text messages 
specifying the issue in clear terms appear at the same time that the 
required telltale appears. Specifically, the subject vehicles display 
the text message ``Wheel Sensor(s) Missing'' to alert the driver to a 
malfunction, in addition to simply displaying the vehicle icon required 
by the regulations as the minimum notification.
    This text message, which expressly states that there is a system 
malfunction, is much more effective at conveying important safety 
information than relying on owners to review the owner's manual, and 
understand the distinction between a steady or flashing symbol with no 
words. In addition to the words expressly stating what the issue is 
(``Wheel Sensor(s) Missing''), the vehicle depicts an aerial view of a 
car with the actual tire pressure in each tire on the dashboard. In 
addition to the text, where a wheel sensor is missing or malfunctioning 
in up to 3 wheels, a

[[Page 38393]]

blank with two dashes appears next to the faulty wheel in lieu of a 
numeric pressure display, and the word ``Service'' is illuminated in 
the bottom of the display. Because the TPMS system in the subject 
vehicles provide significantly more than the minimum level of 
information, it does not rely on the difference between steady 
illumination and flashing to provide information on the type of TPMS 
issue to the driver.
    In summary, MB believes that the regulations require only a 
flashing vehicle symbol to signal a system malfunction. The subject 
vehicles display a steady vehicle symbol, plus the following four 
additional pieces of information, which directly communicate the 
specific nature of the system malfunction: (1) The actual tire pressure 
on each wheel with a sensor; (2) two blank dashes next to a wheel with 
faulty sensors/signals; (3) the word ``Service'' on the bottom of the 
display; and (4) a clear text message expressly stating that there is a 
missing wheel sensor. Because the subject vehicles contain this 
supplemental information, the failure to initially flash the vehicle 
symbol due to a programming error in a limited number of vehicles has 
an inconsequential impact on safety.
    Malfunction Involving All Four Wheel Sensors: Where all four wheel 
sensors are missing or inoperative, the subject vehicles utilize a 
dedicated warning that displays a clear and concise malfunction message 
that informs the driver clearly and precisely about what is wrong with 
the vehicle. However, this dedicated malfunction indicator will not re-
illuminate upon subsequent drive cycles or after being manually cleared 
from the instrument cluster because the system assumes that the wheels 
have been replaced, and that continued notice of this unique situation 
is not needed. While the message is always available when the driver 
manually scrolls through the TPMS menu, the message does not continue 
to illuminate whenever the vehicle is ``on'' as required by FMVSS No. 
138 paragraph S4.4(b)(3).
    This functionality has an inconsequential impact on motor vehicle 
safety. In any situation where all four sensors fail while driving, the 
warning will always illuminate as required. The failure to activate on 
subsequent drive cycles is only an issue where all four wheel sensors/
signals are missing from the beginning of a given drive cycle. The only 
situation in which all four wheel sensors would be removed would be 
where an owner goes to considerable effort to remove all four wheels 
(for example to replace the standard wheels with snow tires). In such a 
situation, the owner would be well aware that the wheels with sensors 
had been removed, and there would be no need to continually repeat the 
warning at each vehicle restart.
    Similarly, although it is theoretically possible for all four wheel 
sensors to fail simultaneously, MB is not aware of any such failures in 
the field. The probability of such a situation occurring is virtually 
impossible. For example, one single sensor has a less than 100 ppm per 
year probability of failure. The likelihood of all four sensors failing 
within the same year is thus less than 0.00000001 ppm (or 
1*10-16). In addition, to create the noncompliance scenario, 
all four sensors would need to fail at the same time, not just within 
the same year, thus further reducing the probability even more. A much 
more likely malfunction scenario would be where one (or in a very 
unlikely situation two) sensor signal fails in sequence, which would 
provide the operator with repeated warnings of the need to repair the 
wheel sensors upon each vehicle restart. In fact, this functionality is 
identical to the warning system for four missing wheel sensor signals 
used in Europe and in the rest of the world, where it has been 
determined to provide an adequate level of warning and motor vehicle 
safety.
    In addition, the TPMS regulations recognize that there are certain 
circumstances where a TPMS warning may be manually cleared or reset by 
the owner and removed from the instrument cluster, even though the 
underlying condition still remains. The situation in subject vehicles 
is analogous.
    Finally, MB believe that as with the absence of flashing discussed 
above, the subject vehicles display an initial notification of the loss 
of four wheel sensors that provides significantly more information than 
the minimum regulatory requirement. Where a dedicated malfunction 
telltale is used, the regulations allow the vehicle, as a minimum level 
of compliance, to simply display the abbreviation ``TPMS'' in yellow 
with no flashing. In the subject vehicles, rather than display a simple 
abbreviation, which would require the use of the owner's manual to 
determine that the message indicated a malfunction (as opposed to a low 
tire pressure situation, for example), the display specifically states 
that the ``Tire pressure monitor'' is ``inoperative,'' and more 
specifically that ``No wheel sensors'' are detected. With this enhanced 
level of information and clarity, it is not necessary for this 
particular message to repeat upon each vehicle re-start, especially 
given how rare this unique situation would be in actual use. For each 
of these reasons, this technical noncompliance does not represent a 
``significant safety risk.''
    In summation, MB believes that the described noncompliance of its 
vehicles is inconsequential to motor vehicle safety, and that its 
petition, to exempt from providing recall notification of noncompliance 
as required by 49 U.S.C. 30118 and remedying the recall noncompliance 
as required by 49 U.S.C. 30120 should be granted.
    Comments: Interested persons are invited to submit written data, 
views, and arguments on this petition. Comments must refer to the 
docket and notice number cited at the beginning of this notice and be 
submitted by any of the following methods:
    a. By mail addressed to: U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590.
    b. By hand delivery to U.S. Department of Transportation, Docket 
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue SE., Washington, DC 20590. The Docket Section is open on 
weekdays from 10 a.m. to 5 p.m. except Federal Holidays.
    c. Electronically: by logging onto the Federal Docket Management 
System (FDMS) Web site at http://www.regulations.gov/. Follow the 
online instructions for submitting comments. Comments may also be faxed 
to 1-202-493-2251.
    Comments must be written in the English language, and be no greater 
than 15 pages in length, although there is no limit to the length of 
necessary attachments to the comments. If comments are submitted in 
hard copy form, please ensure that two copies are provided. If you wish 
to receive confirmation that your comments were received, please 
enclose a stamped, self-addressed postcard with the comments. Note that 
all comments received will be posted without change to http://www.regulations.gov, including any personal information provided.
    Documents submitted to a docket may be viewed by anyone at the 
address and times given above. The documents may also be viewed on the 
Internet at http://www.regulations.gov by following the online 
instructions for accessing the dockets. DOT's complete Privacy Act 
Statement is available for review in the Federal Register published on 
April 11, 2000, (65 FR 19477-78).
    The petition, supporting materials, and all comments received 
before the close of business on the closing date

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indicated below will be filed and will be considered. All comments and 
supporting materials received after the closing date will also be filed 
and will be considered to the extent possible. When the petition is 
granted or denied, notice of the decision will be published in the 
Federal Register pursuant to the authority indicated below.

DATES: Comment closing date: July 27, 2012.

    Authority: (49 U.S.C. 30118, 30120: Delegations of authority at 
CFR 1.50 and 501.8)

    Issued on: June 20, 2012.
Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2012-15667 Filed 6-26-12; 8:45 am]
BILLING CODE 4910-59-P