[Federal Register Volume 88, Number 171 (Wednesday, September 6, 2023)]
[Notices]
[Pages 61006-61007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19142]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2021-0038; Notice 2]


Porsche Cars North 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: Porsche Cars North America, Inc., (``Porsche''), has 
determined that certain model year (MY) 2017-2021 Porsche Panamera, MY 
2019-2021 Porsche Cayenne, and MY 2020-2021 Porsche Taycan motor 
vehicles do not fully comply with Federal Motor Vehicle Safety Standard 
(FMVSS) No. 135, Light Vehicle Brake Systems. Porsche filed an original 
noncompliance report dated March 10, 2021. Subsequently, Porsche 
petitioned NHTSA on April 1, 2021, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety. 
This notice announces the grant of Porsche's petition.

FOR FURTHER INFORMATION CONTACT: Vince Williams, General Engineer, 
NHTSA, Office of Vehicle Safety Compliance, (202) 366-2319, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Overview

    Porsche has determined that certain MY 2017-2021 Porsche Panamera, 
MY 2019-2021 Porsche Cayenne, and MY 2020-2021 Porsche Taycan motor 
vehicles do not fully comply with the requirements of paragraphs 
S5.5.5(a) and S5.5.5(d)(5) of FMVSS No. 135, Light Vehicle Brake 
Systems (49 CFR 571.135). Porsche filed a noncompliance report dated 
March 10, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Porsche subsequently petitioned NHTSA on 
April 1, 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 Porsche's petition was published with a 30-day 
public comment period, on August 16, 2021, in the Federal Register (86 
FR 45817). 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-2021-0038.''

II. Vehicles Involved

    Approximately 80,666 of the following MY 2017-2021 Porsche motor 
vehicles manufactured between October 23, 2016, and February 9, 2021, 
are potentially involved:

 MY 2017-2021 Panamera 4
 MY 2017-2021 Panamera
 MY 2017-2021 Panamera 4 S
 MY 2017-2020 Panamera Turbo
 MY 2017-2020 Panamera 4 S Executive
 MY 2017-2020 Panamera Turbo Executive
 MY 2018-2021 Panamera 4 Hybrid
 MY 2018-2020 Panamera Turbo S Hybrid
 MY 2018-2021 Panamera 4 Executive
 MY 2018-2020 Panamera 4 Hybrid Executive
 MY 2018-2020 Panamera Turbo S Hybrid Executive
 MY 2018-2020 Panamera 4 Sport Turismo
 MY 2018-2020 Panamera 4 S Sport Turismo
 MY 2018-2020 Panamera 4 Hybrid Sport Turismo
 MY 2018-2020 Panamera Turbo Sport Turismo
 MY 2018-2020 Panamera Turbo S Hybrid Sport Turismo
 MY 2019-2021 Panamera GTS
 MY 2020 Panamera GTS Sport Turismo
 MY 2019-2021 Cayenne
 MY 2019-2021 Cayenne S
 MY 2019-2021 Cayenne Hybrid
 MY 2019-2021 Cayenne Turbo
 MY 2020 Panamera 10 Year Special Model
 MY 2020 Panamera 4 10 Year Special Model
 MY 2020-2021 Taycan 4S
 MY 2020 Taycan Top S
 MY 2020 Taycan Top
 MY 2020 Panamera 4 Hybrid 10 Year Special Model
 MY 2020 Cayenne Turbo S Hybrid
 MY 2020-2021 Cayenne Coupe
 MY 2020-2021 Cayenne S Coupe
 MY 2020-2021 Cayenne Hybrid Coupe
 MY 2020-2021 Cayenne Turbo Coupe
 MY 2020 Cayenne Turbo S Hybrid Coupe
 MY 2021 Taycan
 MY 2021 Taycan Turbo S
 MY 2021 Taycan Turbo
 MY 2021 Panamera Turbo S
 MY 2021 Panamera 4S Hybrid
 MY 2021 Cayenne GTS
 MY 2021 Cayenne GTS Coupe

III. Noncompliance

    Porsche explains that the noncompliance is that the subject 
vehicles are equipped with brake wear indicators that do not meet the 
minimum lettering height requirements, as specified in paragraph 
S5.5.5(d)(5) of FMVSS No. 135. Specifically, the lettering height for 
the brake wear indicators ranges in height from 1.7 mm to 2.2 mm, when 
the required minimum height is 3.2 mm.

IV. Rule Requirements

    Paragraphs S5.5.5(a) and S5.5.5(d)(5) of FMVSS No. 135 include the 
requirements relevant to this petition. Each visual indicator shall 
display a word or words in accordance with the requirements of FMVSS 
No. 101 (49 CFR 571.101) and FMVSS No. 135, which shall be legible to 
the driver under all daytime and nighttime conditions when activated. 
Unless otherwise specified, the words shall have letters not less than 
3.2 mm (\1/8\ inch) high and the letters and background shall be of 
contrasting colors, one of which is red. Words or symbols in addition 
to those required by FMVSS No. 101 and FMVSS No. 135 may be provided 
for purposes of clarity. If a separate indicator is provided to 
indicate brake lining wear-out as specified in S5.5.1(d), the words 
``Brake Wear'' shall be used.

V. Summary of Porsche's Petition

    The following views and arguments presented in this section, ``V. 
Summary of Porsche's Petition,'' are the views and arguments provided 
by Porsche and do not reflect the views of the Agency.

[[Page 61007]]

Porsche describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Porsche believes that the subject noncompliance is inconsequential 
to vehicle safety. Porsche explains that, in addition to the required 
brake wear indicator, the affected vehicles have a multi-functional 
display that provides brake wear information and is readily visible to 
the driver. Porsche states that the brake wear message can be confirmed 
and then suppressed at the next ignition cycle, however, the operator 
would need to read and understand the message in order to do so. 
Porsche states that the brake wear indicator text is red, which is 
compliant and a contrasting color to the background of the text. 
Porsche believes that along with the color, the position of the text 
makes the brake wear indicator symbol conspicuous to the driver. The 
symbol is located adjacent to the fuel, temperature, and other vehicle 
data displays. Furthermore, Porsche states that the brake wear 
detection is functional and not affected by the noncompliant size of 
the text. Porsche adds that each letter of the text is capitalized, 
making it more easily seen and read by the driver due to the uniform 
height.
    Porsche states that owners of the subject vehicles would understand 
the symbol despite the noncompliant text size because the owner's 
manual provided with the vehicle contains information about the brake 
wear warning symbol. Porsche notes that the subject noncompliance has 
been corrected in production vehicles.
    Porsche contends that NHTSA has granted the prior petitions for 
similar noncompliances.\1\ Furthermore, Porsche says that NHTSA has 
stated in previous determinations that it generally finds labeling 
noncompliances like the subject noncompliance to be ``more appropriate 
for a determination of inconsequentiality.'' \2\
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    \1\ See 81 FR 92964 (Dec. 20, 2016); see also 67 FR 72026 (Dec. 
3, 2002).
    \2\ See, Porsche Cars North America, Inc., Grant of Petition for 
Decision of Inconsequential Noncompliance, 85 FR 62365, 62366 (Oct. 
2, 2020).
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    Porsche 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.

VII. 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.\3\ 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.\4\
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    \3\ 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).
    \4\ 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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    The Agency concurs with Porsche that this noncompliance will not 
have an adverse effect on vehicle safety. Despite the letter height of 
the brake wear indicators being smaller than the 3.2 mm requirement, 
the affected vehicles include a multi-functional display which provides 
supplementary brake wear information that is located within the 
driver's direct field of vision, immediately adjacent to the fuel, 
temperature, other critical vehicle data displays. Although the 
additional brake warnings can be suppressed by the vehicle operator, 
the information is presented at every new ignition cycle and informs 
the driver of the need to change the brake pads while also recommending 
if continued driving is possible/advised. For as long as the brake 
warnings exist, the driver will be required to make a deliberate action 
after every new key cycle in order to suppress the additional brake 
warning messages. Finally, the additional brake warning symbols are 
accurately depicted and displayed in the correct colors, consistent 
with Table 1 of FMVSS No. 101, minimizing any confusion about the 
meaning of the indicators. Due to the aforementioned factors, the 
Agency concurs with Porsche that the subject noncompliance will have an 
adverse effect on vehicle safety and therefore recommends that this 
petition be granted.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Porsche has met 
its burden of persuasion that the subject FMVSS No. 135 noncompliance 
in the affected vehicles is inconsequential to motor vehicle safety. 
Accordingly, Porsche's petition is hereby granted, and Porsche 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 Porsche 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 Porsche 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. 2023-19142 Filed 9-5-23; 8:45 am]
BILLING CODE 4910-59-P