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Mobility Ventures, LLC, Denial of Petition for Decision of Inconsequential Noncompliance/span> Publication: Federal Register Signing Official: Anne L. Collins Agency: National Highway Traffic Safety Administration Date: 20 July 2022 Topic: Mobility Ventures MV-1 
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[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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