2024-28118. Daimler Truck North America, LLC; Receipt of Petition for Decision of Inconsequential Noncompliance

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Department of Transportation

National Highway Traffic Safety Administration

1. [Docket No. NHTSA-2024-0018; Notice 1]

AGENCY:

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

ACTION:

Receipt of petition.

SUMMARY:

Daimler Truck North America, LLC (DTNA) has determined that a model year (MY) 2022 Western Star 4900 truck tractor does not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 136, Electronic Stability Control Systems for Heavy Vehicles. DTNA filed a noncompliance report dated February 28, 2024, and subsequently petitioned NHTSA (the “Agency”) on March 22, 2024, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This document announces receipt of DTNA's petition.

DATES:

Send comments on or before January 2, 2025.

ADDRESSES:

Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods:

• Mail: Send comments by mail addressed to the 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 comments by hand to the 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 for Federal Holidays.
• Electronically: Submit comments electronically by logging onto the Federal Docket Management System (FDMS) website at https://www .regulations.gov/. Follow the online instructions for submitting comments.
• Comments may also be faxed to [phone].

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 comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to regulations.gov, including any personal information provided.

All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible.

When the petition is granted or denied, notice of the decision will also be published in the Federal Register pursuant to the authority indicated at the end of this notice.

All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at regulations.gov by following the online instructions for accessing the dockets. The docket ID number for this petition is shown in the heading of this notice.

DOT's complete Privacy Act Statement is available for review in a Federal Register notice published on April 11, 2000 (65 FR 19477-78).

FOR FURTHER INFORMATION CONTACT:

Ahmad Barnes, General Engineer, NHTSA, Office of Vehicle Safety Compliance, [phone].

SUPPLEMENTARY INFORMATION:

I. Overview

DTNA determined that one MY 2022 Western Star 4900 truck tractor does not fully comply with section 5.2 of FMVSS No. 136, Electronic Stability Control Systems for Heavy Vehicles. (49 CFR 571.136).

DTNA filed a noncompliance report dated February 28, 2024, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. DTNA petitioned NHTSA on March 22, 2024, 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.

This notice of receipt of DTNA's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or another exercise of judgment concerning the merits of the petition.

II. Vehicles

Involved One MY 2022 Western Star 4900 truck tractor, manufactured on October 6, 2021, was reported by the manufacturer.

III. Rule Requirements

Paragraph S5.2 of FMVSS No. 136 includes the requirements relevant to this petition. FMVSS No. 136 establishes the standards for, and requires the installation of, electronic stability control (ESC) systems in certain heavy vehicles for the purpose of reducing loss of control and rollovers. The system's operational requirements outlined in paragraph S5.2 are:

(1) The ESC system must function when the vehicle is traveling at speeds greater than 20 km/h (12.4 mph), while reversing, and during system initialization.

(2) The ESC system must remain capable of activation, even when the antilock brake system or the traction control system is engaged.

IV. Noncompliance

DTNA explains that the subject vehicle does not conform to FMVSS No. 136 paragraph S5.2 because it is equipped with a function that deactivates the required ESC system. Specifically, the subject vehicle is equipped with an “off-road mode” that the driver can activate which deactivates the vehicle's ESC system, including at speeds above 20 km/h (12.4 mph)

V. Summary of DTNA Petition

The following views and arguments presented in this section, “V. Summary of DTNA's Petition,” are the views and arguments provided by DTNA. They have not been evaluated by the Agency and do not reflect the views of the Agency. DTNA describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety.

DTNA reports that the subject vehicle was inadvertently equipped with a feature that disables the ESC functionality. DTNA states that this feature, which is commonly used in vocational trucks for off-road conditions, was also used in truck tractors prior to the implementation of FMVSS No. 136. DTNA asserts that this feature is necessary for vocational use in off-road conditions that antilock brake (ABS) and electronic stability control (ESC) systems are not designed to handle effectively. DTNA explains that ( print page 95354) the feature enables wheel locking to reduce stopping distances on uneven terrain and surfaces with poor traction, such as dirt or gravel. DTNA notes that the subject noncompliance has been corrected in production, and the off-road system is no longer installed on DTNA's truck tractors subject to FMVSS No. 136.

DTNA explains that ABS and ESC systems are not optimized for off-road use and may impact vehicle safety in such settings. DTNA states that while ABS and ESC systems were designed and tested for driving on paved roads, they do not account for driving on surfaces with irregularities. DTNA cites brake supplier ZF, which asserts that vehicles tuned for off-road driving is safer without ABS/ESC functions in those conditions, not less. According to ZF, ESC systems require accurate vehicle speed data based on the reference speed. The reference speed is normally determined by a reading from a non-driven steer axle, as that axle is not influenced by drive slip; by definition, however, all-wheel-drive vehicles do not have a non-driven steer axle. This limitation is addressed in modern trucks not subject to FMVSS No. 136 by disabling ESC when the front axle is engaged by the transfer case. DTNA further highlights that ZF representatives indicate that off-road driving requires more aggressive maneuvers, which exceed the thresholds of ABS/ESC systems designed for highway use. Additionally, the inertial sensors and algorithms designed for highway conditions, may inadvertently activate inappropriately in off-road conditions.

According to DTNA, the optional off-road mode makes the vehicle safer in off-road conditions. DTNA's petition cites a graph from SAE International's report J2246 (2014) to illustrate that ABS systems are optimized for hard, paved surfaces, which typically involves a wheel slip ratio of around 20 percent before arresting longitudinal force. DTNA notes that off-road driving often occurs on looser, more deformable surfaces with higher wheel slip ratios. DTNA states that the ABS algorithm, which limits wheel slip, may result in sub-optimal performance in these conditions. Instead, DTNA suggests that an algorithm allowing for wheel lock-up in these conditions would provide superior stopping distance on loose, deformable surfaces, particularly for trained commercial drivers who select the off-road mode.

DTNA explains that prohibiting the optimization of vocational vehicles for off-road environments restricts their ability to complete their tasks. DTNA's petition includes a table (Figure 3) showing that while vehicles in normal operation mode are compliant and optimal for paved road conditions, they may have difficulties when used on off-road terrain DTNA contends that while vehicles in off-road mode are not compliant, they are unlikely to be operated on paved roads as all drivers of the subject vehicle should have a commercial driver's license and training as well as the presence of an off-road mode indicator on the instrument cluster. Vehicles in normal operation mode in off-road conditions are compliant but not optimal for the conditions and are difficult to operate. DTNA asserts that vehicles in off-road mode in off road conditions are, while noncompliant, are the best suited for off-road conditions.

DTNA notes that while NHTSA might be concerned that this off-road function may be used on road conditions, this is unlikely because the system must be manually engaged before it can activate, and the instrument cluster indicates when off-road mode is engaged. Additionally, the system cannot be accidentally left on as it disengages automatically after the vehicle is shut off. DTNA also emphasizes that drivers of the subject vehicle must have commercial driver's licenses, ensuring that they are trained and familiar with commercial vehicles and would understand the off-road function and its activation.

DTNA notes that light-duty trucks are allowed to be equipped with a switch that disables the ESC system, in accordance with FMVSS No. 126. Citing NHTSA's rationale from the FMVSS No. 126 final rule on April 6, 2007 (72 FR 17236), DTNA states that NHTSA recognized the need to temporarily disable the ESC in certain conditions where the system could hinder vehicle performance. DTNA further notes that NHTSA permitted the option to temporarily disable ESC because ESC is not suited for certain conditions and may be an unnecessary impediment to the operation of a vehicle in those conditions and without the ability to temporarily disable the function, drivers may disable it entirely. DTNA, points out that similar to in light-duty trucks, the heavy-duty vehicle in question defaults back to ESC enabled mode after the vehicle is turned off. DTNA also suggests that the conditions in which ESC might be temporarily disabled and reactivated are similar to those considered by NHTSA for light duty vehicles, which NHTSA concluded allowed for an appropriate level of safety.

Experienced commercial vehicle drivers highlight the necessity of ESC disablement in off-road environments. Drivers working in the construction, mining, logging, and forestry industries agree that standard ABS and ESC systems are disruptive and counterproductive in the off-road environments where they frequently work. Rugged off-road conditions present challenges that could and would not exist in highway conditions and would therefore necessitate a different approach to vehicle control.

Drawing from customer complaints, DTNA cites real world situations in which the mandatory ABS and ESC systems in question are frustrating and inadequate in off-road conditions. According to one customer, it has become such a commonplace issue that dealers in the Canadian logging industry “predominantly order logging trucks as trucks (rather than truck tractors) to avoid ESC.”

(1) DTNA refers to NHTSA precedent to highlight the importance of prioritizing real-world safety benefits when necessary. DTNA compares its petition to the 1988 D.C. Circuit Court case U.S. v. General Motors Corp. also known as the “X-Cars Case” (6556 F. Supp. 15555, D.D.C. 1987). DTNA summarizes that in the “X-Cars Case,” the D.C. Circuit Court recognized the propensity of those vehicles to lock up their wheels during certain braking events but concluded that the risk to motor vehicle safety was insignificant and did not rise to the level of a defect posing an unreasonable risk to motor vehicle safety. DTNA notes that the testing procedures outlined in FMVSS No. 136 were based on conditions like a “solid-paved surface” with a peak friction coefficient of 1.02 and a slope of 0 percent to 1 percent, while surfaces with irregularities like dips and large cracks, are unsuitable for testing under the standard. However, DTNA believes this does not reflect real-world scenarios where wheel lock up may be necessary under certain circumstances.

DTNA also mentions that NHTSA maintained its decision to deny ESC disablement functions in FMVSS No. 136 as part of the rulemaking process as neither Bendix nor Meritor WABCO provided justification for why disablement would be beneficial in off-road conditions. (80 FR 36085, June 23, 2015.) DTNA states that while NHTSA acknowledged Bendix's assertion that the current ESC systems were optimized for on-road and mild off-road conditions, more severe off-road conditions may require optimization better suited to those conditions. DTNA suggests that this acknowledgment ( print page 95355) implies that certain ESC systems may not perform optimally in severe off-road conditions, which are relevant to operators of the subject vehicle.

DTNA concludes by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety and 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.

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, any decision on this petition only applies to the subject vehicles that DTNA no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve vehicle distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant vehicles under their control after DTNA notified them that the subject noncompliance existed.

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

Otto G. Matheke III,

Director, Office of Vehicle Safety Compliance.