[Federal Register Volume 69, Number 104 (Friday, May 28, 2004)]
[Notices]
[Pages 30745-30746]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12134]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2004-17902; Notice 1]


Volkswagen of America, Inc., Receipt of Petition for Decision of 
Inconsequential Noncompliance

    Volkswagen of America, Inc. (Volkswagen) has determined that 
certain vehicles that were produced by Volkswagen AG and AUDI AG in 
2004 do not comply with S4.2.2(a) of 49 CFR 571.114, Federal Motor 
Vehicle Safety Standard (FMVSS) No. 114, ``Theft protection.'' 
Volkswagen has filed an appropriate report pursuant to 49 CFR Part 573, 
``Defect and Noncompliance Reports.''
    Pursuant to 49 U.S.C. 30118(d) and 30120(h), Volkswagen 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 Volkswagen'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.
    Approximately 47,962 model year 2004 vehicles are affected 
including approximately 37,663 Touareg, approximately 2,268 Phaeton and 
approximately 8,031 Audi A8L vehicles. S4.2.2(a) of FMVSS No. 114 
requires that

* * * provided that steering is prevented upon the key's removal, 
each vehicle * * * [which has an automatic transmission with a 
``park'' position] may permit key removal when electrical failure of 
this [key-locking] system * * * occurs or may have a device which, 
when activated, permits key removal.

    In the affected vehicles, the steering does not lock when the key 
is removed using the override system provided to permit key removal 
when the transmission is not in the ``park'' position.
    Volkswagen believes that the noncompliance is inconsequential to 
motor vehicle safety and that no corrective action is warranted. 
Volkswagen states the following in its petition:

    The ignition key/transmission interlock requirements of S4.2 
were enacted in Docket 1-21, Notice 9 published May 30, 1990. In 
that amendment, there was no provision for an override to permit key 
removal if the transmission was not in the PARK position. In 
response to petitions for reconsideration and comments to the 
original NPRM by Toyota, Nissan, Subaru and the Rover Group, NHTSA 
published Docket 1-21, Notice 10 on March 26, 1991 to revise S4.2 by 
adding S4.2.1 and S4.2.2 which permitted an override device located 
behind a non-transparent cover that must be removed with the use of 
a tool. The activation of the override could permit removal of the 
key even though the transmission is not in PARK. An override could 
also permit moving the transmission out of the PARK position after 
removal of the key. The condition required for the operation of the 
override device in each case was that the steering would be 
prevented when the key is removed.
    Toyota and Honda filed petitions for reconsideration to the 
March 1991 Final Rule amendment and these were responded to in 
Docket 1-21, Notice 11 on January 17, 1992. In Notice 11, NHTSA 
amended S4.2.2(a) to clarify that key removal is permitted even 
though the transmission was not in PARK without the activation of 
the override device in the event of vehicle electrical failure. 
However, removal of the key with the transmission not in PARK under 
conditions when the vehicle has normal electric power would only be 
permitted with the use of the override device. The condition for 
permitting key removal under any situation when the transmission was 
not in PARK was that the steering would be prevented when the key is 
removed.
    The provision that the steering must be locked when the key is 
removed was discussed in both Notice 10 (56 FR 12467, March 20, 
1991) and in Notice 11 (57 FR 2040, January 17, 1992) and the stated 
intent was ``to ensure that Standard No. 114's theft protection 
aspects are not jeopardized.'' There is no indication that the 
requirement for the steering to be locked was based on any need to 
prevent personal injury or property damage.

    Volkswagen states that it believes the noncompliance is 
inconsequential to motor vehicle safety because the presence or absence 
of a steering lock when the vehicle is without power and the key 
removed has no significance to motor vehicle safety. Volkswagen 
explains:

    In the Volkswagen and Audi car lines for which this petition is 
submitted, the ability to remove the key with the override system is 
the priority security and safety feature (to the extent that it 
prevents a stolen vehicle from being driven) because the vehicles 
are equipped with an electronic immobilizer which prevents starting 
of the vehicle unless the electronically coded key provided for that 
vehicle is used. The code to start the engine and activate the fuel 
and ignition system is embedded in the engine control module and 
therefore cannot be bypassed or defeated. If the key cannot be 
removed in the event of vehicle power failure, the owner will not be 
able to lock the vehicle and the car can be started and driven by 
anyone who can get it repaired, which is as simple as a jump start.

    Volkswagen asserts that there is no risk to motor vehicle safety 
from using the override device to remove the key when the transmission 
is not in ``park'' when there is no vehicle power failure because this 
would occur only in a repair shop or under supervised conditions when 
the vehicle must be moved but it is desired to remove the key for 
security reasons. Volkswagen states that in this case, the electronic 
immobilizer provides anti-theft protection and the steering lock is not 
significant.
    Interested persons are invited to submit written data, views, and 
arguments on the petition described above. 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. Mail: Docket Management 
Facility, U.S. Department of Transportation, Nassif Building, Room PL-
401, 400 Seventh Street, SW., Washington, DC 20590-0001. Hand Delivery: 
Room PL-401 on the plaza level of the Nassif Building, 400 Seventh 
Street, SW., Washington, DC. It is requested, but not required, that 
two copies of the comments be provided. The Docket Section is open on 
weekdays from 10 a.m. to 5 p.m. except Federal Holidays. Comments may 
be submitted electronically by logging onto the Docket Management 
System Web site at http://dms.dot.gov. Click on ``Help'' to obtain 
instructions for filing the document electronically. Comments may be 
faxed to 1-202-493-2251, or may be submitted to the Federal eRulemaking 
Portal: go to http://www.regulations.gov. Follow the online 
instructions for submitting comments.

[[Page 30746]]

    The petition, supporting materials, and all comments received 
before the close of business on the closing date 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.
    Comment closing date: June 28, 2004.

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

    Issued on: May 24, 2004.
Kenneth N. Weinstein,
Associate Administrator for Enforcement.
[FR Doc. 04-12134 Filed 5-27-04; 8:45 am]
BILLING CODE 4910-59-P