[Federal Register Volume 87, Number 14 (Friday, January 21, 2022)]
[Notices]
[Pages 3380-3382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01128]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2019-0006; Notice 2]


Volkswagen Group of America, Inc., Grant of Petition for Decision 
of Inconsequential Noncompliance

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

ACTION: Grant of petition.

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SUMMARY: Volkswagen Group of America, Inc. (Volkswagen), has determined 
that certain model year (MY) 2015-2016 Audi A3 and Audi S3 motor 
vehicles do not comply with Federal Motor Vehicle Safety Standard 
(FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. 
Volkswagen filed a noncompliance report dated January 28, 2019, and a 
petition was received by NHTSA on January 28, 2019, for a decision that 
the subject noncompliance is inconsequential as it relates to motor 
vehicle safety. This document announces the grant of Volkswagen's 
petition.

FOR FURTHER INFORMATION CONTACT: Leroy Angeles, Office of Vehicle 
Safety Compliance, the National Highway Traffic Safety Administration 
(NHTSA), (202) 366-5304, [email protected].

SUPPLEMENTARY INFORMATION: 
    I. Overview: Volkswagen has determined that certain MY 2015-2016 
Audi A3 Sedan, S3 Sedan, and A3 Cabriolet motor vehicles do not comply 
with paragraph S9.3.6. of FMVSS No. 108, Lamps, Reflective Devices, and 
Associated Equipment (49 CFR 571.108). Volkswagen filed a noncompliance 
report dated January 28, 2019, pursuant to 49 CFR 573, Defect and 
Noncompliance Responsibility and Reports, and a petition received by 
NHTSA on January 28, 2019, 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 40 U.S.C. 30118 and 49 U.S.C. 30120, Exemption for 
Inconsequential Defect or Noncompliance.
    Notice of receipt of Volkswagen's petition was published with a 30-
day public comment period, on July 9, 2019, in the Federal Register (84 
FR 32830). One comment was 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-2019-0006.''
    II. Vehicles Involved: Approximately 81,831 MY 2015-2016 Audi A3, 
S3 Sedan, and A3 Cabriolet motor vehicles, manufactured between 
November 28, 2013, and July 28, 2016, are potentially involved.
    III. Noncompliance: Volkswagen explains that the noncompliance is 
that the subject vehicles are equipped with turn signal pilot 
indicators that do not meet the flashing rate as required by paragraph 
S9.3.6 of FMVSS No. 108. Specifically, the left turn signal indicator 
does not have a significant change in the flashing rate when the left 
rear turn signal LED array becomes inoperative.
    IV. Rule Requirements: Paragraph S9.3.6 of FMVSS No. 108 provides 
the requirements relevant to this petition. Failure of one or more turn 
signal lamps, such that the minimum photometric performance specified 
in Tables VI or VII of FMVSS No. 108 is not being met, must be 
indicated by the turn signal pilot indicator by a ``steady on,'' 
``steady off,'' or by a significant change in the flashing rate.
    V. Summary of Volkswagen's Petition: Volkswagen describes the 
subject noncompliance and contends that the noncompliance is 
inconsequential as it relates to motor vehicle safety. The following 
views and arguments presented in this section, ``V. Summary of 
Volkswagen's Petition,'' are the views and arguments provided by 
Volkswagen and do not reflect the views of the Agency.
    In support of its petition, Volkswagen offers the following 
reasoning:

    (a) The driver receives two different indicator warnings that 
the rear brake light is inoperative in the instrument cluster 
immediately upon failure of the turn signal lamp to comply with the 
photometry requirements of FMVSS No. 108. This happens because the 
brake light and indicator light/turn signal are combined.
    (b) The subject condition, the lack of a turn signal pilot 
indicator flash rate change, is limited to the condition in which 
the outermost left rear turn signal lamp fails.
    (c) In the case of LED array failure, both the brake light and 
indicator light/turn signal become inoperative. Should the required 
left turn signal become inoperative, Volkswagen confirmed that other 
auxiliary left turn signal lights located on the trunk and the left 
side mirror are still operational. Additionally, the back-up lamp in 
the left rear tail lamp assembly, the left brake light in the trunk 
lid assembly, and the center high mount stop lamp, will remain 
operational.

    Volkswagen concludes 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.
    VI. Public Comments: NHTSA received one comment from the public. 
This comment was received from an individual who believed that 
Volkswagen's reasoning is unclear as it stands, and that NHTSA should 
request more information from Volkswagen or deem the noncompliance 
consequential. The commenter said that it is unclear as to whether the 
``two different indicator warnings in the instrument cluster'' are 
compliant and that a redundancy should not be considered an appropriate 
substitute for a well-functioning, compliant failure indicator that's 
required by the FMVSS. The commenter also said that the rule 
requirements are

[[Page 3381]]

fairly clear with the possible exception of the lack of specificity of 
the word ``significant'' in the phrase ``significant change in the 
flashing rate'' but that lack of specificity isn't addressed by 
Volkswagen's petition. The commenter also questioned the reasoning in 
paragraph 2 of the petition that the warning that ``both lights'' had 
become inoperative was equivalent to the specific warnings required by 
the Standard.
    VII. NHTSA's Analysis: The burden of establishing the 
inconsequentiality of a failure to comply with a performance 
requirement in a standard--as opposed to a labeling requirement--is 
more substantial and difficult to meet. Accordingly, the Agency has not 
found many such noncompliances inconsequential.\1\ Potential 
performance failures of equipment like seat belts or air bags are 
rarely deemed inconsequential.
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    \1\ 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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    An important issue to consider in determining inconsequentiality 
based upon NHTSA's prior decisions on noncompliance issues was the 
safety risk to individuals who experience the type of event against 
which the recall would otherwise protect.\2\ NHTSA also does not 
consider the absence of complaints or injuries to show that the issue 
is inconsequential to safety. ``Most importantly, the absence of a 
complaint does not mean there have not been any safety issues, nor does 
it mean that there will not be safety issues in the future.'' \3\ 
``[T]he fact that in past reported cases good luck and swift reaction 
have prevented many serious injuries does not mean that good luck will 
continue to work.'' \4\
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    \2\ 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).
    \3\ Morgan 3 Wheeler Limited; Denial of Petition for Decision of 
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
    \4\ 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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    NHTSA has reviewed and evaluated the merits of the inconsequential 
noncompliance petition submitted by Volkswagen.
    For this petition, NHTSA first considered the subject lamp 
configuration which consists of four light assemblies on the rear of 
the subject vehicles. Two outboard assemblies are mounted to the rear 
quarter panels and two inboard assemblies are mounted on the trunk lid. 
These pairs of assemblies, one on each side of the vehicle, are mounted 
adjacent to each other. When a turn signal is activated by the driver, 
the turn lamps in both the outboard and inboard assemblies on the side 
of the vehicle corresponding to the direction the driver selected, will 
illuminate. Volkswagen explained that that the auxiliary inboard lamps 
will remain operational should the outboard lamps become inoperative. 
The Agency did not find these factors to be compelling in granting this 
petition.
    Instead, the Agency found the following considerations to be most 
relevant to its decision:

    (a) While the turn signal pilot indicator does not change in 
flash rate when the left outboard turn signal lamp fails to meet the 
photometric requirements, the subject vehicles provide the drivers 
an alternative method of notification. According to Volkswagen's 
petition, the noncompliance in the subject vehicles is limited to 
when the left rear outboard turn signal lamp fails, and if the left 
inboard turn signal lamp should fail, the turn signal pilot 
indicator will function. Given these conditions, the noncompliance 
creates a scenario where a failure in the left outboard turn signal 
lamp will not activate the ``fast flash'' in the pilot indicator. 
While the driver is not alerted to a failure of the required turn 
signal lamp by means of a change in the flash rate of the turn 
signal pilot indicator lamp, if both the required turn signal lamp 
and the auxiliary turn signal lamp fails, the driver will be alerted 
by the means specified in the standard. In the event this inboard 
turn signal lamp should fail, the turn signal pilot indicator will 
alert the driver.
    (b) In addition, Volkswagen has provided at least two other 
warning lights that illuminate to make the driver aware of the 
failure. A warning light will illuminate at vehicle start-up or when 
the failure occurs while driving. There will also be a constant bulb 
out indicator in the central information display while the turn 
signal lamp is inoperative. Additionally, if the left outboard turn 
signal lamp is out, all other required lamps still operate as 
designed.

    In response to the public comment stating that ``a redundancy 
should not be considered an appropriate substitute for a well-
functioning, compliant failure indicator that's required by the 
FMVSS,'' NHTSA agrees that an alternative method of notification is not 
a substitute for complying with a FMVSS. However, NHTSA has recently 
granted other petitions such as those submitted by Mack Trucks Inc. and 
Volvo Trucks North America where an alternative method of notification 
was a factor considered in granting the petition.\5\ While 
manufacturers are not permitted to knowingly certify a vehicle that 
does not comply with the FMVSS, NHTSA can consider whether such an 
alternative method of performance is a mitigating factor when 
determining the effect of the noncompliance on safety.
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    \5\ See Mack Trucks, Inc., and Volvo Trucks North America, Grant 
of Petitions for Decision of Inconsequential Noncompliance, 84 FR 
67766, December 11, 2019.
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    In the case of the subject petition, failure of the left rear 
outboard turn signal will result in the illumination of a steady 
burning general warning telltale, while a failure of the left rear 
inboard turn signal will produce a compliant ``fast flash'' warning. 
Thus, some form of notification will always result from a failure and 
an FMVSS No. 108-compliant warning will occur if both rear left turn 
signal lamps fail. Based on the specifics of this case, NHTSA believes 
this alternative warning provides adequate notice to drivers that the 
left rear turn signal lamp has failed such that this noncompliance is 
inconsequential to motor vehicle safety.
    VIII. NHTSA's Decision: In consideration of the foregoing, NHTSA 
finds that Volkswagen has met its burden of persuasion that the FMVSS 
No. 108 noncompliance is inconsequential as it relates to motor vehicle 
safety. Accordingly, Volkswagen's petition is hereby granted and they 
are exempted from the obligation to provide notification of and remedy 
for the subject noncompliance in the affected vehicles under 49 U.S.C. 
30118 and 30120.
    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, this decision 
only applies to the subject vehicles that Volkswagen no longer 
controlled at the time it determined that the noncompliance existed. 
However, the granting of this petition does not relieve vehicle 
distributors and dealers of the prohibitions on the sale, offer for

[[Page 3382]]

sale, or introduction or delivery for introduction into interstate 
commerce of the noncompliant vehicles under their control after 
Volkswagen 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.
[FR Doc. 2022-01128 Filed 1-20-22; 8:45 am]
BILLING CODE 4910-59-P