[Federal Register Volume 87, Number 138 (Wednesday, July 20, 2022)]
[Notices]
[Pages 43376-43378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15491]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2018-0028; Notice 2]


Mobility Ventures, LLC, 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: Mobility Ventures, LLC (Mobility), a wholly owned subsidiary 
of AM General, LLC, has determined that certain model year (MY) 2015-
2016 Mobility Ventures MV-1 motor vehicles do not fully comply with 
Federal Motor Vehicle Safety Standard (FMVSS) No. 126, Electronic 
Stability Control Systems for Light Vehicles. Mobility filed a 
noncompliance Part 573 Safety Recall Report on February 14, 2018. 
Mobility subsequently petitioned NHTSA on February 20, 2018, for a 
decision that the subject noncompliance is inconsequential as it 
relates to motor vehicle safety. This notice announces the denial of 
Mobility's petition.

FOR FURTHER INFORMATION CONTACT: Vince Williams, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-2319.

SUPPLEMENTARY INFORMATION:

I. Overview

    Mobility has determined that certain MY 2015-2016 Mobility MV-1 
motor vehicles do not fully comply with the requirements of paragraph 
S5.3.3 \1\ of FMVSS No. 126, Electronic Stability Control Systems for 
Light Vehicles (49 CFR 571.126). Mobility filed a noncompliance Part 
573 Safety Recall Report on February 14, 2018, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. Mobility 
subsequently petitioned NHTSA on February 20, 2018, pursuant to 49 
U.S.C. 30118(d) and 30120(h) and 49 CFR part 556, 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.
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    \1\ NHTSA believes that Mobility inadvertently cited paragraph 
S4.3.3 of FMVSS No. 126 in its petition. NHTSA believes, based on 
Mobility's Part 573 Safety Recall Report, that Mobility meant to 
cite paragraph S5.3.3 of FMVSS No. 126 in its petition.
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    Notice of receipt of Mobility's petition was published with a 30-
day public comment period, on September 17, 2019, in the Federal 
Register (84 FR 48990). No comments were 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-2018-0028.''

II. Vehicles Involved

    Approximately 977 MY 2015-2016 Mobility Ventures MV-1 vehicles, 
manufactured between December 22, 2014, and August 24, 2015, are 
potentially involved.

III. Noncompliance

    Mobility reports that the previous model year vehicles (2011-2014) 
were equipped with a 4.6L V8 powertrain with 6 ignition states and the 
engine was changed in model years (2015-2016) to a 3.7L V6 powertrain 
with 11 ignition states. Following the change, the supplier of the 
Electronic Brake Control Module (EBCM) incorrectly programmed the EBCM 
memory chip to recognize the possible power mode states. This issue led 
to the telltale warning lamp not illuminating to indicate an Electronic 
Stability Control (ESC) fault under certain starting conditions, thus, 
not complying with paragraph S5.3.3 of FMVSS No. 126.

IV. Rule Requirements

    Paragraph S5.3.3 of FMVSS No. 126, includes the requirements 
relevant to this petition. As of September 1, 2011, except as provided 
in paragraphs S5.3.4, S5.3.5, S5.3.8, and S5.3.10, the ESC malfunction 
telltale must illuminate when a malfunction of the ESC system exists 
and must remain continuously illuminated under the conditions specified 
in paragraph S5.3 for as long as the malfunction exists (unless the 
``ESC malfunction'' and ``ESC Off'' telltale are combined in a two-part

[[Page 43377]]

telltale and the ``ESC Off'' telltale is illuminated), whenever the 
ignition locking system is in the ``On'' (``Run'') position.

V. Summary of Mobility's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Mobility's Petition,'' are the views and arguments provided 
by Mobility. Mobility describes the subject noncompliance and contends 
that the noncompliance is inconsequential as it relates to motor 
vehicle safety.
    Mobility states its belief that the subject noncompliance is 
inconsequential ``because the Traction Control Off warning lamp will 
illuminate when a fault is detected, either immediately if the operator 
pauses with the key in the `ignition on' state before starting the 
vehicle, or upon driving if the vehicle is started without pausing in 
the `ignition on' state.'' Despite the noncompliance, Mobility claims 
that the driver would still be ``alerted to the possibility of a 
malfunction with the ESC system by the illumination of the Traction 
Control Off warning lamp.'' Although Mobility believes the subject 
noncompliance to be inconsequential to motor vehicle safety, it and its 
EBCM supplier, BWI Group, are ``developing a plug-and play re-flashing 
tool that will permit uploading of revised software into the current 
EBCM installed in the vehicle.'' Mobility explains that the software 
``tracks the ignition sequences required by FMVSS No. 126, and fully 
corrects the observed noncompliance.'' However, Mobility says its only 
available solution at present would be ``to remove and replace the 
entire electrical and hydraulic unit with one that has had its software 
updated.''
    Mobility states that it ``has notified its dealers to stop sale of 
any affected MV-1 vehicles that may be in their dealer inventory (new, 
used or demonstrator) until the EBCM software is updated.'' In 
addition, Mobility says that its ``authorized dealers will perform EBCM 
unit replacement or re-flashing (when available) free-of-charge when 
vehicle owners present to Dealers for service.''
    Mobility says ``is not aware of any issues'' related to the subject 
noncompliance, nor has it ``received any warranty claims, field 
reports, or information about injuries or crashes related to the 
performance of the ESC.''
    Mobility concludes by expressing its belief 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.
    Mobility'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 listed in the heading 
of this notice.

VI. Supplemental Information:

    Mobility's petition contained sparse details about the condition(s) 
of when the ``Traction Control Off'' lamp would set in lieu of the ESC 
malfunction lamp or whether the required ESC lamp would eventually set 
at some point during the drive cycle. The petition also did not mention 
if the issue affected ``ALL'' ESC related faults or if it was specific 
to the faults attributed to steering angle sensor failures.
    NHTSA requested more detailed information from Mobility about the 
subject noncompliance. In Mobility's supplemental response, it 
confirmed that under the subject noncompliance, the appropriate ESC 
diagnostic trouble code is triggered internally in the system; however, 
due to the failure in the software programming, the system incorrectly 
illuminates the ``Traction Control Off'' malfunction lamp instead of 
the required ``ESC'' malfunction lamp. Mobility added that the 
``Traction Control Off'' lamp also illuminates when an operator 
manually ``turns off'' the Traction Control System (TCS) via the push-
button toggle switch and that the TCS will remain ``Off'' and the lamp 
illuminated until either the TCS is re-enabled via an ignition-cycle 
or, the operator pushes the toggle switch a second time. Mobility also 
confirmed that the TCS remains fully functional and effective in this 
scenario.
    NHTSA also requested clarification from Mobility with respect to 
how much time lapses after the vehicle starts moving until the system 
sets the ESC fault code and at what speed this occurs. Mobility 
responded to NHTSA that it should take approximately 8 minutes of 
driving a vehicle before the ESC fault code sets. However, Mobility 
failed to provide any insight with respect to what speed it believes a 
vehicle would need to be traveling for the system to set the ESC fault 
code.

VII. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in an FMVSS--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.\2\
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    \2\ 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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    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which a recall would otherwise protect.\3\ In general, NHTSA 
does not consider the absence of complaints or injuries when 
determining if a noncompliance is inconsequential to safety. The 
absence of complaints does not mean vehicle occupants have not 
experienced a safety issue, nor does it mean that there will not be 
safety issues in the future.\4\
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    \3\ 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).
    \4\ See Morgan 3 Wheeler Limited; Denial of Petition for 
Decision of Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 
12, 2016); see also 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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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also do not justify granting an 
inconsequentiality petition.\5\ Similarly, mere assertions that only a 
small percentage of vehicles or items of equipment are likely to 
actually exhibit a noncompliance are unpersuasive. The percentage of 
potential occupants that could be adversely affected by a noncompliance 
is not relevant to whether the noncompliance poses an inconsequential 
risk to safety. Rather,

[[Page 43378]]

NHTSA focuses on the consequence to an occupant who is exposed to the 
consequence of that noncompliance.\6\ 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.\7\ Indeed, the 
very purpose of a recall is to protect individuals from risk. Id.
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    \5\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \6\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
    \7\ See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 
759 (D.C. Cir. 1977).
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    NHTSA evaluated the merits of the petition submitted by Mobility 
and has determined that its petition has not met the burden of 
persuasion that the subject FMVSS No. 126 noncompliance is 
inconsequential to motor vehicle safety. Specifically, S5.3.3 of FMVSS 
No. 126 requires that the ESC malfunction telltale must illuminate when 
a malfunction of the ESC system exists and must remain continuously 
illuminated under the conditions specified in paragraph S5.3 for as 
long as the malfunction exists (unless the ``ESC malfunction'' and 
``ESC Off'' telltale are combined in a two-part telltale and the ``ESC 
Off'' telltale is illuminated), or whenever the ignition locking system 
is in the ``On'' (``Run'') position.
    In making this determination, NHTSA considered Mobility's argument 
that the condition which causes this noncompliance is inconsequential 
to motor vehicle safety because when it occurs, it would alert the 
vehicle operator of the possibility of an ESC malfunction due to it 
immediately illuminating the ``Traction Control Off'' warning lamp when 
the fault occurs as opposed to the ESC malfunction lamp and then later 
illuminating the ESC malfunction lamp after the vehicle is driven for 
some period of time. While reviewing this petition, NHTSA requested 
clarification from Mobility about some of the details in the petition 
and attempted to learn how the issue would manifest itself to the 
operator in a real-life scenario. Mobility responded to NHTSA's request 
and provided supplemental information about how the fault code would 
set and the conditions in which it would illuminate the malfunctions 
lamps. Despite the additional information provided, Mobility has not 
met its burden of proof that this noncompliance is inconsequential to 
vehicle safety. The ESC system, with its corresponding ESC malfunction 
lamp, is a required safety system with the purpose of reducing the 
number of deaths and injuries that result from crashes in which the 
driver loses directional control of the vehicle, including those 
resulting in vehicle rollovers. It would not be in the best interest of 
the public to allow a vehicle to operate with an ESC malfunction at any 
point without illuminating the required ESC malfunction lamp. An 
illuminated Traction Control Off lamp does not carry the same sense of 
urgency as the ESC malfunction lamp. Whenever an ESC failure is 
detected, it is imperative that the ESC malfunction lamp illuminates as 
to alert the driver that the ESC system is not active and that the 
system should be serviced immediately.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Mobility has 
not met its burden of persuasion that the subject FMVSS No. 126 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
Mobility's petition is hereby denied. Mobility 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. 2022-15491 Filed 7-19-22; 8:45 am]
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