[Federal Register Volume 88, Number 97 (Friday, May 19, 2023)]
[Notices]
[Pages 32274-32275]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10702]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2021-0092; 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) 2021-2022 Volkswagen and Audi 
motor vehicles do not fully comply with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 208, Occupant Crash Protection. Volkswagen filed 
an original noncompliance report dated November 19, 2021, and later 
amended the report on November 22, 2021, and December 1, 2021. 
Volkswagen petitioned NHTSA on December 13, 2021, 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: Syed Rahaman, General Engineer, NHTSA, 
Office of Vehicle Safety Compliance, (202) 366-1704.

SUPPLEMENTARY INFORMATION: 
    I. Overview: Volkswagen has determined that certain MY 2021-2022 
Volkswagen and Audi motor vehicles do not fully comply with paragraphs 
S4.5.1(f)(1), S4.5.1(f)(2)(ii), and S4.5.1(f)(2)(vii) of FMVSS No. 208, 
Occupant Crash Protection (49 CFR 571.208).
    Volkswagen filed an original noncompliance report dated November 
19, 2021, and later amended the report on November 22, 2021, and 
December 1, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Volkswagen petitioned NHTSA on December 13, 
2021, 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.
    Notice of receipt of Volkswagen's petition was published with a 30-
day public comment period, on March 14, 2022, in the Federal Register 
(87 FR 14322). 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-2021-0092.''
    II. Vehicles Involved: Approximately 48,948 of the following 
vehicles, manufactured between July 30, 2020, and November 18, 2021, 
are potentially involved:

 MY 2022 Volkswagen Taos
 MY 2021 Volkswagen ID.4
 MY 2022 Volkswagen Golf R A8
 MY 2022 Volkswagen Golf GTI
 MY 2022 Audi S3 Sedan
 MY 2022 Audi A3 Sedan

    III. Noncompliance: Volkswagen explains that the owner's manual for 
the subject vehicles incorrectly states the length of time the 
``Passenger Air Bag On'' light is illuminated while the air bag is 
active and therefore, does not meet the requirements of paragraphs 
S4.5.1(f)(1), S4.5.1(f)(2)(ii), and S4.5.1(f)(2)(vii) of FMVSS No. 208. 
Specifically, when the air bag is activated, the ``Passenger Air Bag 
On'' light will blink for 5 seconds, remain illuminated for 60 seconds, 
and then go out. However, the owner's manual inaccurately states that 
the light will remain illuminated permanently when the air bag is on.
    IV. Rule Requirements: Paragraphs S4.5.1(f)(1), S4.5.1(f)(2)(ii), 
and S4.5.1(f)(2)(vii) of FMVSS No. 208 include the requirements 
relevant to this petition. The owner's manual for any vehicle equipped 
with an inflatable restraint system shall include an accurate 
description of the vehicle's air bag system in an easily understandable 
format. The manufacturer is required to include in the vehicle owner's 
manual a discussion of the advanced passenger air bag system installed 
in the vehicle. The discussion must explain the proper functioning of 
the advanced air bag system and provide a summary of the actions that 
may affect the proper functioning of the system. The discussion shall 
include accurate information on (1) an explanation of how the 
components function together as part of the advanced passenger air bag 
system and (2) a discussion of the telltale light, specifying its 
location in the vehicle and explaining when the light is illuminated.
    V. Summary of Volkswagen's Petition: The following views and 
arguments presented in this section, ``V. Summary of Volkswagen's 
Petition,'' are the views and arguments provided by Volkswagen. They do 
not reflect the views of the Agency. Volkswagen

[[Page 32275]]

describes the subject noncompliance and contends that the noncompliance 
is inconsequential as it relates to motor vehicle safety.
    Volkswagen says that although the owner's manual does not 
accurately state the duration of time that the ``Passenger Air Bag On'' 
light is illuminated, the light ``is neither required nor regulated'' 
by FMVSS No. 208. Volkswagen contends that although the light does not 
remain illuminated, the ``system itself is switched on, is ready to 
function, and is otherwise accurately described within the owner's 
manual.''
    Volkswagen explains that the owner's manual for the subject 
vehicles ``provides an explanation of how the system's components 
function together, as well as how the ``Passenger Air Bag Off'' light 
functions,'' as required by FMVSS No. 208. Volkswagen further explains 
that the owner's manual also provides ``a presentation and explanation 
of the main components of the advanced passenger air bag system, an 
explanation of how the components function, and the basic requirements 
for proper operations, among other important relevant safety 
information.''
    Volkswagen notes that it has corrected the noncompliance for 
vehicles still in its control by adding a supplemental page with the 
accurate information into the owner's manual.
    Volkswagen states that it is aware of one customer inquiry related 
to the subject noncompliance which has been resolved but is not aware 
of any accidents or injuries that have occurred as a result of the 
subject noncompliance.
    Volkswagen 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.
    VI. NHTSA's Analysis: 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.\1\ 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.\2\
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    \1\ 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).
    \2\ 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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    NHTSA agrees with Volkswagen that the Passenger Air Bag On 
indicator is not required by FMVSS No. 208. The Passenger Air Bag Off 
indicator is required by FMVSS No. 208 and appears to meet the 
requirements, i.e., it remains illuminated and its functionality is 
described accurately in the owner's manual.
    As Volkswagen has stated, the vehicle itself functions as intended 
for both the On and Off indicators. If Volkswagen had not implemented 
the On indicator and had no owner's manual information for the On 
indicator, there would not be a noncompliance. Further, if such a 
situation existed, there would be no degradation to safety as it 
relates to the FMVSSs.
    If the air bag was inactive, by either the vehicle determining air 
bag suppression is necessary or by the seat being unoccupied, the Off 
indicator would then illuminate and remain illuminated. This provides 
clear communication to the vehicle occupants.
    The disparity between the behavior of the On indicator and the 
description of its operation in the vehicle owner's manual may cause 
confusion to owners who carefully review that document as it could lead 
them to the belief that the air bag is not in an On condition when in 
fact it is. While the existence of this disparity is a matter of 
concern and may have customer satisfaction consequences for the 
manufacturer, NHTSA does not find that a safety consequence exists in 
this case.
    NHTSA has evaluated the merits of the inconsequential noncompliance 
petition submitted by Volkswagen and has determined that this 
particular noncompliance is inconsequential to motor vehicle safety. 
The inaccurate owner's manual description for the non-required 
Passenger Air Bag On indicator is inconsequential to the safety of the 
vehicles listed above. This does not imply that all inaccurate owner's 
manual descriptions would be considered inconsequential, but rather 
NHTSA agrees that this particular case is inconsequential.
    VII. NHTSA's Decision: In consideration of the foregoing, NHTSA 
finds that Volkswagen has met its burden of persuasion that the subject 
FMVSS No. 208 noncompliance in the affected vehicles is inconsequential 
to motor vehicle safety. Accordingly, Volkswagen's petition is hereby 
granted, and Volkswagen is consequently exempted from the obligation of 
providing notification of, and a free remedy for, that noncompliance 
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 
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. 2023-10702 Filed 5-18-23; 8:45 am]
BILLING CODE 4910-59-P