[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Notices]
[Pages 57169-57171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18020]



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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket Nos. NHTSA-2019-0030 and NHTSA-2021-0066; Notice 2]


Volkswagen Group of America, Inc., Denial of Petitions for 
Decision of Inconsequential Noncompliance

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

ACTION: Denial of petitions.

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SUMMARY: Volkswagen Group of America, Inc. (Volkswagen or the 
``Petitioner'') has determined that certain model year (MY) 2019 and 
2021 Audi motor vehicles do not fully comply with Federal Motor Vehicle 
Safety Standard (FMVSS) No. 135, Light Vehicle Brake Systems. 
Volkswagen filed noncompliance reports dated March 27, 2019, and July 
26, 2021. Volkswagen petitioned NHTSA (the ``Agency'') on April 17, 
2019, and August 25, 2021, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety. 
This notice announces the denial of Volkswagen's petitions.

FOR FURTHER INFORMATION CONTACT: Vince Williams, Office of Vehicle 
Safety Compliance, National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-2319.

SUPPLEMENTARY INFORMATION:

I. Overview

    Volkswagen has determined that certain MY 2019 Audi A6 and Audi A7 
and MY 2021 Audi A6 Sedan, A6 Allroad, A7, RS6 Avant, RS7, S6 Sedan, 
and S7 motor vehicles do not comply with the requirements of paragraph 
S5.4.3 of FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135). 
Volkswagen filed noncompliance reports dated March 27, 2019, and July 
26, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Volkswagen petitioned NHTSA on April 17, 
2019, and August 25, 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.
    Notices of receipt of Volkswagen's petitions were published on 
August 21, 2019 (84 FR 43660) and June 17, 2022 (87 FR 36574) in the 
Federal Register with a 30-day public comment period. No comments were 
received. To view the petitions 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 numbers ``NHTSA-2019-0030'' and ``NHTSA-2021-0066.''

II. Vehicles Involved

    Approximately 3,908 MY 2019 Audi A6 and Audi A7 vehicles, 
manufactured between July 27, 2018 and November 6, 2018, are 
potentially involved.
    Additionally, approximately 4,267 MY 2021 Audi A6 Sedan, A6 
Allroad, A7, RS6 Avant, RS7, S6 Sedan, and S7 vehicles, manufactured 
between January 11, 2021, and April 14, 2021, are potentially involved.

III. Noncompliance

    Volkswagen determined that a small number of the vehicles have a 
European-specification brake fluid reservoir cap instead of the 
reservoir cap required in S5.4.3 of FMVSS No. 135. The noncompliant 
brake fluid reservoir caps do not include the warning label required by 
FMVSS No. 135.

IV. Rule Requirements

    S5.4.3 of FMVSS 135 requires that each vehicle equipped with 
hydraulic brakes have a brake fluid warning statement that reads as 
follows, in letters at least 3.2 mm (\1/8\ inch) high: ``WARNING: Clean 
filler cap before removing. Use only __ fluid from a sealed 
container.'' (Manufacturers must insert the recommended type of brake 
fluid, as specified in 49 CFR 571.116, (e.g., ``DOT 3.'') The lettering 
shall be permanently affixed, engraved, or embossed, and located so it 
is visible by direct view, either on or within 100 mm (3.94 inches) of 
the brake fluid reservoir filler plug or cap. The color of the 
lettering must also contrast with its background, if it is not engraved 
or embossed.

V. Summary of Petition

    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. 
Volkswagen describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Volkswagen explains that it believes the subject noncompliance is 
inconsequential to motor vehicle safety because ``the brake fluid cap 
clearly shows the specification of the brake fluid required'' and 
``provides clear symbols including one for caution and one for 
referring to owner manual instructions.'' Volkswagen says that the 
owner's manual also ``indicates the proper brake fluid specification 
for use in the vehicle.'' Volkswagen states that the ``brake fluid cap 
conforms to the requirements of ISO 9128:2006 which is a requirement of 
UN-ECE Regulations 13 and 13h.''
    Volkswagen contends that NHTSA has previously granted the following 
inconsequentiality petitions, which Volkswagen believes are similar to 
the subject petition:
     Jaguar Land Rover North America, LLC, Grant of Petition 
for Decision of Inconsequential Noncompliance, 84 FR 13095 (April 3, 
2019).
     Ford Motor Company, Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 69931 (November 21, 2013).
     Hyundai Motor Company, Grant of Petition for Decision of 
Inconsequential Noncompliance, 73 FR 38290 (July 3, 2008).
    According to Volkswagen, ``service to the brake system involving an 
exchange of the brake fluid is not a standard maintenance activity'' 
and repairs to the brake system ``requires basic technical knowledge 
regarding the brake system and should be performed by a trained 
technician.''
    Volkswagen states that it has not received any field or customer 
complaints or notifications about any accidents or injuries related to 
the subject noncompliance. In Volkswagen's petition dated April 17, 
2019, Volkswagen states that, as of November 7, 2018, production of the 
subject vehicles has been corrected (i.e., are now compliant) and the 
vehicles ``at the factory have been corrected and unsold units will be 
correct prior to sale.'' In Volkswagen's petition dated August 25, 
2021, Volkswagen again states that production has been corrected and, 
as of April 14, 2021, the vehicles at its factory have been corrected 
and the subject vehicles still in its control will be corrected prior 
to sale.
    Volkswagen concludes each petition by stating its belief that the 
subject noncompliance is inconsequential as it relates to motor vehicle 
safety, and that its petitions 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

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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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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also do not justify granting an 
inconsequentiality petition.\3\ Similarly, mere assertions that only a 
small percentage of vehicles or items of equipment are likely to 
actually exhibit a noncompliance are unpersuasive. The percentage of 
potential occupants that could be adversely affected by a noncompliance 
is not relevant to whether the noncompliance poses an inconsequential 
risk to safety. Rather, NHTSA focuses on the consequence to an occupant 
who is exposed to the consequence of that noncompliance.\4\ The Safety 
Act is preventive, and manufacturers cannot and should not wait for 
deaths or injuries to occur in their vehicles before they carry out a 
recall.\5\ Indeed, the very purpose of a recall is to protect 
individuals from risk. Id.
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    \3\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application for 
Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23, 
2001) (rejecting argument that noncompliance was inconsequential 
because of the small number of vehicles affected); Aston Martin 
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential 
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations 
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of 
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663, 
21664 (Apr. 12, 2016) (rejecting argument that petition should be 
granted because the vehicle was produced in very low numbers and 
likely to be operated on a limited basis).
    \4\ See Gen. Motors Corp.; Ruling on Petition for Determination 
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14, 
2004); Cosco Inc.; Denial of Application for Decision of 
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
    \5\ See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 
759 (D.C. Cir. 1977).
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    NHTSA has evaluated the merits of these inconsequentiality 
petitions and determined that Volkswagen has not met its burden of 
persuasion that the subject noncompliance is inconsequential to motor 
vehicle safety. S5.4.3 of FMVSS No. 135 requires the following four 
essential components of the brake fluid cap label: (1) the brake fluid 
warning statement ``Warning: Clean filler cap before removing. Use only 
fluid from a sealed container.'' (Inserting the recommended type of 
brake fluid as specified in 49 CFR 571.116, e.g. ``DOT 3''), the 
lettering shall be (2) permanently affixed, engraved or embossed, (3) 
located so as to be visible by direct view, either on or within 100mm 
(3.94in) of the brake fluid reservoir filler plug or cap, and (4) of a 
color that contrasts with its background, if it is not engraved or 
embossed. Of the required components of the brake fluid cap reservoir 
labeling, the statements ``Clean filler cap before removing.'' and 
``Use only fluid from a sealed container.'' are missing and an 
exclamation point symbol is used instead of the word ``Warning''. 
Volkswagen argues that the brake fluid cap indicates the proper fluid 
type and contains the symbols conforming to ISO 9128:2006, which is a 
requirement of UN-ECE Regulations 13 and 13h. These include the 
aforementioned exclamation mark, a symbol for the brake system, and a 
third symbol apparently directing the viewer to consult the vehicle's 
owner's manual or service information. NHTSA notes that the symbols on 
the ISO brake fluid cap are, at best, partially familiar to U.S. 
vehicle owners and users and are not the equivalent of the printed 
information required by the safety standard.
    Furthermore, Volkswagen added that normal brake fluid upkeep is not 
considered a basic maintenance that a consumer would handle on their 
own and the servicing of the brake system should be performed by a 
trained technician with technical knowledge of the brake system. The 
contention that owners do not perform brake service was not supported 
by data and is an assumption that becomes increasingly more 
indefensible as a vehicle ages. When a consumer must check or add brake 
fluid, it is important to have the required warnings in place to 
preserve the performance and durability of the brake system.
    While prior NHTSA determinations that a noncompliance was 
inconsequential are not considered as binding precedent and the Agency 
considers each petition on its own merits, the prior decisions cited by 
the Petitioner have limited applicability in this case. One decision 
involved a placard with all the required warnings permanently attached 
to the brake fluid reservoir, but not to the cap itself. The two other 
decisions that the Petitioner cited involved a single symbol being 
substituted for a required word or phrase. Conversely, the Petitioner's 
subject noncompliance involves multiple symbols that are missing from 
the noncompliant cap including the statement ``Clean filler cap before 
removing'' which is required to prevent unnecessary contamination from 
being introduced into the brake system when a customer or service 
technician tries to inspect the brake fluid, as well as the statement 
``Use only fluid from a sealed container'' which is intended to prevent 
a customer or technician from adding the incorrect grade of brake fluid 
or contaminated fluid when adding or replenishing the brake fluid. Both 
of the aforementioned conditions could lead to a degradation of the 
vehicle's brake system performance and present an unintended risk to 
the driver and the driving public.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Volkswagen has 
not met its burden of persuasion that the subject FMVSS No. 135 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
these petitions are hereby denied and Volkswagen is consequently 
obligated to provide notification of and free remedy for that 
noncompliance under 49 U.S.C. 30118 and 30120.
    The Agency also notes that these petitions involve the same 
noncompliance that occurred initially in several months of production 
in 2018 and then reoccurred again in vehicles produced over several 
months in 2021. Vehicle manufacturers have a legal obligation to ensure 
that their vehicles manufactured for the U.S. fully comply with 
applicable FMVSS and are required to exercise reasonable care in 
certifying their vehicles as compliant. 49 U.S.C. 30115(a). Volkswagen 
should ensure it has improved its processes to prevent further 
reoccurrence of this issue.


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

Otto G. Matheke, III,
Acting Associate Administrator for Enforcement.
[FR Doc. 2023-18020 Filed 8-21-23; 8:45 am]
BILLING CODE 4910-59-P