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

American Government Topics:  Mercedes-Benz S-Class

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

Nancy Lummen Lewis
National Highway Traffic Safety Administration
August 14, 2014

[Federal Register Volume 79, Number 157 (Thursday, August 14, 2014)]
[Pages 47718-47720]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-19191]



National Highway Traffic Safety Administration

[Docket No. NHTSA-2012-0007; Notice 2]

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

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Denial of Petition.


SUMMARY: Mercedes-Benz USA, LLC \1\ (MBUSA) and its parent company 
Daimler AG (DAG)(collectively referred to as ``MBUSA'') have determined 
that certain model year 2011 and 2012 Mercedes-Benz S-Class (221 
platform) passenger cars do not fully comply with Federal Motor Vehicle 
Safety Standard (FMVSS) No. 138, Tire Pressure Monitoring Systems 
(TPMS), specifically the requirements in paragraph S4.4. MBUSA filed a 
report for the nonconformance pursuant to 49 CFR Part 573, Defect and 
Noncompliance Responsibility and Reports, on September 30, 2011.

    \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 the Federal Republic of Germany.

ADDRESSES: For further information on this decision please contact Mr. 
Maurice Hicks, Office of Vehicle Safety Compliance, the National 
Highway Traffic Safety Administration (NHTSA), telephone (202) 366-
1708, facsimile (202) 366-5930.

SUPPLEMENTRY INFORMATION: I. MBUSA's Petition: Pursuant to 49 U.S.C. 
30118(d) and 30120(h) and the rule implementing those provisions at 49 
CFR Part 556, on October 28, 2011, MBUSA filed a petition 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.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on June 27, 2012, in the Federal Register (77 FR 
38391). No comments were received. To view the petition, and all 
supporting documents log onto the Federal Docket Management System 
(FDMS) Web site at: http://www.regulations.gov/. Then follow the online 
search instructions to locate docket number ``NHTSA-2012-0007.''
    MUBUSA subsequently submitted clarifying information relevant to 
its Part 556 petition on May 8, 2014, which has been placed in the 
docket. NHTSA has considered this information in response to the 
    II. Vehicles Involved: The affected vehicles included approximately 
4,769 model years 2011 and 2012 Mercedes-Benz S-Class (221 platform) 
passenger cars that were produced from March 2011 through August 2011. 
MBUSA subsequently corrected the non-compliance in 4,510 vehicles 
through a service campaign; MBUSA recently reported 252 vehicles have 
yet to be corrected.
    III. Noncompliance: In the subject Mercedes S-Class vehicles, the 
tire pressure monitoring system malfunction indicators required by S4.4 
may not illuminate in the manner required by FMVSS 138 due to a 
software misprogramming that was applied to these vehicles.
    IV. Rule Text: Section S4.4 of FMVSS No. 138 states specifically:

    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
    (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.

    V. Summary of MBUSA's Analyses: MBUSA stated its belief that the 
subject noncompliances to paragraphs S4.4(b) and (c) are 
inconsequential for the following reasons:
    Absence of Flashing ``Malfunction'' Telltale: In the subject 
vehicles, the TPMS malfunction indicator required by S4.4 may not 
illuminate in the manner required by FMVSS No. 138 due to a software 
programming error that occurred in a limited number of vehicles. The 
subject vehicles use one of the telltale symbols specified for 
``combination'' telltales (the vehicle icon) which activate when 1, 2 
or 3 wheel sensors are missing or malfunctioning. Because this 
particular symbol is used, the vehicle is required to comply with the 
``combination low pressure/TPMS malfunction'' telltale requirements of 
FMVSS No. 138 paragraph S4.4(c)(2). Accordingly, a ``combination'' 
telltale indicator is required to flash for 60-90 seconds to notify the 
driver of a system malfunction, and then to remain continuously 
illuminated. When indicating a low inflation pressure condition, the 
combination telltale indicator is required to illuminate and remain 
continuously illuminated upon successive restarts of the vehicle until 
the low pressure condition is corrected.

[[Page 47719]]

    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 ``Wheel Sensor(s) Missing.'' MBUSA believes 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 
    In developing the TPMS regulations, MBUSA 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. For this same reason, 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. MBUSA opines 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 
    MBUSA believes that the additional text messaging 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.
    Malfunction Involving All Four Wheel Sensors: When all four wheel 
sensors are missing or inoperative, the subject vehicles utilize a 
dedicated warning: ``Tire pressure monitor inoperative.'' MBUSA states 
the warning exceeds the minimum requirement (``TPMS'') and 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 telltale indicator will not re-illuminate upon 
subsequent drive cycles or after being manually cleared from the 
instrument cluster. 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 S4.4(b)(3).
    MBUSA believes, although theoretically possible for all four wheel 
sensors to fail simultaneously, there is no evidence to support the 
occurrence in real world use. The subject vehicles have been in use for 
3.5 calendar years, and MBUSA has received no complaints or concerns 
related to this TPMS monitoring issue from dealers or customers. 
Likewise, there have been no reports of accidents, injuries or 
incidents related to the failure of this TPMS warning to repeat. The 
probability of such a situation occurring is virtually impossible 
especially considering that all four sensors would need to fail at the 
same time, not just separately. 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 
    In fact, the only situation MBUSA believes would create the 
noncompliance would involve cases where owners would go 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.
    MBUSA further states that because the subject vehicles display an 
initial notification of the loss of four wheel sensors that provides 
significantly more information than the minimum regulatory 
functionality of the telltale, this noncompliance has an 
inconsequential impact on motor vehicle safety. In comparison, a 
dedicated malfunction telltale simply displays 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.
    MBUSA Repair Service Campaign: Since submitting the October 2011 
petition, MSUSA has reprogrammed 4,510 of the subject vehicles during 
normal scheduled maintenance as a part of a service campaign initiated 
on February 2012 (Campaign No. 2012010006). There are now 240 (or 
fewer) vehicles in the field with the incorrect TPMS programming.
    On May 8, 2014, MBUSA submitted an update to its original petition 
for exemption. MBUSA argues that, while it may be theoretically 
possible, many factors exist that would reduce the likelihood for 
owners to have replacement wheels installed without TPMS wheel sensors. 
All replacement wheels sold by authorized Mercedes dealerships will 
always have TPMS sensors included (either the original ones transferred 
or new ones) and recognizing the cost (above $100,000 on average) and 
age of these vehicles, S-Class owners will always likely choose to have 
their wheels and tires replaced at authorized Mercedes dealerships.
    MBUSA also argues that information is provided in the Operator's 
Manual clearly stating that ``for safety reasons, Mercedes-Benz 
recommends that you only use tires, wheels and accessories which have 
been approved by Mercedes-Benz specifically for your vehicle,'' and 
``Always have the tires changed at a qualified specialist workshop, 
e.g. an authorized Mercedes-Benz Center.'' It also states that the TPMS 
telltale should always be checked which would premise that there is no 
reason to expect that sensors would not be used. Even in the case of 
needing snow tires, MBUSA contends it provides sufficient information 
to its owners to encourage them to purchase upgraded optional 
performance packages (i.e., 4-matic all-wheel drive configuration with 
aggressive all season radial tires) which would preclude the need for 
snow tires.
    In summation, MBUSA stated that, for all the reasons cited, this 
technical noncompliance does not represent a ``significant safety 
risk.'' Because the TPMS noncompliance identified above is 
inconsequential to motor vehicle safety MBUSA requests an exemption 
from the notification and remedy provisions of the Motor Vehicle Safety 
Act, which would serve no reasonable purpose under these circumstances.
    VI. NHTSA'S Analysis of MBUSA's Arguments: MBUSA's petition 
identifies two noncompliances with S4.4 of the Standard:
    1. Absence of telltale flashing for malfunction involving 1-3 wheel 
    2. Malfunction involving all four wheel sensors

[[Page 47720]]

    Regarding the malfunction telltale that does not initially flash 
for 60-90 seconds, MBUSA has provided the required visual telltale, a 
combined telltale which is the plan view of the vehicle, although one 
that does not flash before it remains continuously illuminated, but 
instead adds several additional text messages that clearly communicate 
a system malfunction and continue to be displayed until the malfunction 
has been corrected. NHTSA believes that because the subject vehicles 
contain this additional information, the failure of the vehicle's 
malfunction telltale to initially flash has an inconsequential impact 
on safety.
    MBUSA's second noncompliance involves the scenario where all four 
wheel sensors are simultaneously malfunctioning or missing. Under this 
scenario the subject vehicle's TPMS will initially display a separate 
dedicated malfunction warning, but will not automatically display the 
warning on subsequent ignition cycles as required by FMVSS No. 138 
S4.4(b)(3). MBUSA judges the noncompliance inconsequential to motor 
vehicle safety on the basis that, although the situation presents a 
technical noncompliance with FMVSS 138 No. S4.4, there is no negative 
impact on safety, because the circumstances causing the non-compliance 
can only exist if owners deliberately decide to install replacement 
wheels without TPMS sensors. MBUSA asserts there is no reason to assume 
that replacement wheels will not have TPMS sensors given the normal 
experiences of S-Class owners and existing precautions. MBUSA also 
points out that the absence of a ``significant safety risk'' 
substantiates exemption from notification and remedy requirements as 
NHTSA explained in the Volkswagen's petition for inconsequential 
treatment of a noncompliance with the TPMS malfunction warning 
requirements of FMVSS No. 138 S4.4(c)(2) (76 FR 30240, May 24, 2010).
    The intent of FMVSS No. 138 is stated in paragraph S1 Purpose and 
scope: This standard specifies performance requirements for TPMSs to 
warn drivers of significant under-inflation of tires and the resulting 
safety problems. A malfunction will reduce the effectiveness of the 
TPMS or, in some scenarios, can render it inoperative. As such, the 
lack of a malfunction indicator to warn the driver of a malfunction 
until the malfunction has been resolved is one of the critical 
requirements of the standard to address the safety concerns of an 
inoperative TPMS. MBUSA contends that there is no safety risk but fails 
to acknowledge that a vehicle owner in some cases may not be aware that 
the wheel sensors have been removed. For example, if the ignition were 
cycled by a second party after the sensors were removed and prior to 
the vehicle being returned to the owner, the owner may never see the 
first and only malfunction indication. The potential risk is that the 
vehicle can then be operated with a TPMS that appears to be functioning 
properly. It also is possible after long periods of time for owners to 
forget that the wheel sensors are missing or even for a subsequent 
owner to purchase one of the 252 vehicles without knowing the sensors 
are missing. When a low inflation pressure condition occurs, these 
owners would not be warned, and this condition could lead to a vehicle 
    MBUSA also explained that replacement wheels will always have TPMS 
sensors included (either the original ones transferred or new ones) and 
that statements in the MB S-Class Operator's Manual or optional OEM 
tire and wheel packages can address a variety of use conditions which 
will discourage the use of unapproved tires and rims and encourage the 
use of wheel sensors. Despite these factors, NHTSA believes the 
possibility still remains for owners to install wheel packages not 
having TPMS sensors. For example, an authorized dealership may not be 
in close proximity to an owner or an owner may want custom wheels or 
upsized wheel options that are not available through MBUSA. In these 
instances, there would be a safety risk for these owners.
    Finally, MBUSA believes that owner's manual warnings or its 
marketing of optional equipment are sufficient enough to prevent owners 
from entering into misuse situations. However, owner's manuals may be 
ignored or not read by vehicle owners and there is no guarantee that a 
manual will remain with the vehicle throughout its entire useful life. 
Furthermore, owners may also choose not to buy MBUSA optional tire and 
wheel packages for economic reasons (i.e., these packages may cost 
considerably more). Therefore, given these factors, NHTSA concludes 
MBUSA's claim that the noncompliance has no significant safety risk is 
    VII. NHTSA's Decision: In consideration of the foregoing, NHTSA has 
decided that MBUSA has not met its burden of persuasion that the FMVSS 
No. 138 noncompliance identified in its Part 573 Report and Petition is 
inconsequential to motor vehicle safety. Accordingly, MBUSA's petition 
is hereby denied. For the remaining vehicles not remedied, MBUSA must 
notify owners, purchasers and dealers pursuant to 49 U.S.C. 30118 and 
provide remedy in accordance with 49 U.S.C. 30120.

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

Nancy Lummen Lewis,
Associate Administrator for Enforcement.
[FR Doc. 2014-19191 Filed 8-13-14; 8:45 am]

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