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Jaguar Land Rover North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance

American Government Special Collections Reference Desk

American Government Topics:  Jaguar

Jaguar Land Rover North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance

Otto G. Matheke III
National Highway Traffic Safety Administration
3 April 2019


[Federal Register Volume 84, Number 64 (Wednesday, April 3, 2019)]
[Notices]
[Pages 13095-13098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06478]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2017-0072; Notice 2]


Jaguar Land Rover North America, LLC, Grant of Petition for 
Decision of Inconsequential Noncompliance

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

ACTION: Grant of petition.

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SUMMARY: Jaguar Land Rover North America, LLC (JLR), on behalf of 
Jaguar Land Rover Limited, has determined that certain model year (MY) 
2012-2018 Jaguar motor vehicles do not fully comply with Federal Motor 
Vehicle Safety Standard (FMVSS) No. 135, Light Vehicle Brake Systems. 
JLR filed a

[[Page 13096]]

noncompliance report dated June 22, 2017. JLR also petitioned NHTSA on 
July 20, 2017, for a decision that the subject noncompliance is 
inconsequential as it relates to motor vehicle safety. For the reasons 
stated below, NHTSA grants the petition.

FOR FURTHER INFORMATION CONTACT: John Finneran, Office of Vehicle 
Safety Compliance, NHTSA, telephone (202) 366-5289, facsimile (202) 
366-3081.

SUPPLEMENTARY INFORMATION: 

I. Overview

    JLR, on behalf of Jaguar Land Rover Limited, has determined that 
certain MY 2012-2018 Jaguar motor vehicles do not fully comply with 
FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135). JLR filed 
a noncompliance report dated June 22, 2017, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. JLR also 
petitioned NHTSA on July 20, 2017, pursuant to 49 U.S.C. 30118(d) and 
30120(h) and 49 CFR part 556, 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.
    Notice of receipt of the petition was published, with a 30-day 
public comment period, on September 1, 2017, in the Federal Register 
(82 FR 41677). One comment was received. To view the petition, any 
comments, 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-
2017-0072.''

II. Vehicles Involved

    Approximately 126,127 of the following Jaguar motor vehicles, 
manufactured between February 8, 2012, and June 19, 2017, are 
potentially involved:
 2017-2018 Jaguar F-Pace
 2017-2018 Jaguar XE
 2017-2018 Jaguar XF
 2014-2018 Jaguar F-TYPE
 2013-2017 Jaguar XJ
 2012-2015 Jaguar XK

III. Noncompliance

    JLR explains that the noncompliance is that the brake fluid warning 
statement label on the subject vehicles is not permanently affixed as 
required by paragraph S5.4.3(a) of FMVSS No. 135. Specifically, JLR 
installed a label that fits over the neck of the brake fluid reservoir 
that can be removed when the brake fluid reservoir cap is removed.

IV. Rule Requirements

    Paragraph S5.4.3(a) of FMVSS No. 135 titled ``Reservoir Labeling'' 
includes the requirements relevant to this petition:
     Each vehicle equipped with hydraulic brakes shall 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.'' (inserting the recommended type of brake 
fluid as specified in 49 CFR 571.116, e.g., ``DOT 3.'').
     Permanently affixed, engraved or embossed.

V. Summary of JLR's Petition

    As background, in JLR's noncompliance report, JLR stated that a 
Product Safety and Compliance Committee (PSCC) Investigation was opened 
on June 6, 2017, following communication from a safety compliance 
engineer from NHTSA's Office of Vehicle Safety Compliance. The 
communication highlighted a concern that the brake reservoir label was 
not permanently affixed to the brake fluid reservoir as required by 
FMVSS No. 135, Light Vehicle Brake Systems. On June 13, 2017, JLR's 
PSCC concluded that the concern should be forwarded to the Recall 
Determination Committee (RDC). The RDC reviewed all information on June 
15, 2017, and concluded that the issue represented a compliance concern 
related to FMVSS No. 135, Light Vehicle Brake Systems, but that the 
condition was considered inconsequential and requested that a petition 
for decision of inconsequential noncompliance be filed with NHTSA.
    JLR described the subject noncompliance and stated its belief that 
the noncompliance is inconsequential as it relates to motor vehicle 
safety.
    In support of its petition, JLR submitted the following reasoning:
    1. The installed label will not fall off or become displaced during 
normal vehicle use or operation.
    2. The installed label provides mechanical resistance to being 
removed.
    3. There is interference between the installed label and reservoir 
filler neck such that a minimum of 2mm interference exists.
    4. The installed label is only able to be removed when the brake 
fluid reservoir cap is displaced which, based on routine maintenance 
schedules, is once every 3 years in service.
    5. The filler cap shows clearly the specification of brake fluid 
required.
    6. The filler cap provides clear symbols including one for caution 
and one referring to handbook instructions. The owner's handbook 
descriptions indicate the proper brake fluid specification to be used 
in the vehicle.
    7. The installed cap conforms to the requirements of ISO9128:2006 
which is a requirement of UN-ECE Regulation 13 and 13h. NHTSA has 
previously granted petitions to accept ISO symbols in the absence of 
FMVSS labeling:
    a. Jaguar Land Rover petition regarding controls and displays 
including brake system-related telltales (78 FR 66101-03).
    b. Ford petition regarding controls and displays including brake 
system-related telltales (78 FR 69931-32)
    c. Hyundai petition regarding lower anchorage identification (73 FR 
38290-91).
    8. JLR has not received any customer complaints on this issue.
    9. There have been no accidents or injuries as a result of this 
issue.
    10. Vehicle production has been corrected to fully conform to FMVSS 
No. 135, Light Vehicle Brake Systems, S5.4.3(a) with a new filler cap.
    JLR concluded by expressing the belief 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

    Comments were received from one individual who was opposed to NHTSA 
granting JLR's petition and provided a wide-ranging list of objections, 
many of which were not directly related to the petition issue of a non-
permanent brake master cylinder reservoir label. Applicable comments 
included the following:
    1. Brake fluid is a toxic, flammable and combustible liquid that 
requires a permanently affixed warning label;
    2. Jaguar cannot say with 100% certainty or any probability that 
the label will not fall off or be displaced during vehicle use or 
operation;
    3. Subsequent purchasers will be exposed to known and undisclosed 
danger;
    4. The vehicles have no routine maintenance schedule and are 
brought in to be serviced within days or months of purchase;
    5. The filler cap alone does not adequately serve as a warning 
label and is not a permanent fixture;
    6. A filler cap can be easily removed and replaced with any other 
cap that has the same measurements;
    7. Jaguar has received customer complaints which have not been 
provided to NHTSA; and

[[Page 13097]]

    8. Jaguar cannot accurately assert that there has been no accidents 
or injuries regarding the issue in question.

VII. NHTSA's Analysis

    NHTSA has evaluated the merits of the inconsequential petition 
submitted by JLR and has considered the applicable comments received 
from the public, and has determined that this particular noncompliance 
is inconsequential to motor vehicle safety. Specifically, paragraph 
S5.4.3 of FMVSS No. 135 requires that each vehicle equipped with 
hydraulic brakes have a brake fluid warning statement with specific 
language that is (a) permanently affixed, engraved or embossed, (b) 
located so as to be visible by direct view either on or within 100 mm 
of the brake fluid reservoir filler plug or cap, and is (c) a color 
that contrasts with its background if it is not engraved or embossed. 
JLR in its submittal of its Part 573 acknowledged that the brake fluid 
warning label is not permanently affixed as it can be removed once the 
filler cap is removed. However, the warning statement wording on the 
label is correct, and requirements (b) and (c) above are met.
    NHTSA has concluded that the noncompliance is inconsequential based 
on two principal reasons: (1) Although the label can be removed, the 
chance of it becoming detached is highly improbable, and (2) in the 
unlikely event of label displacement, the required information 
specified on the label is available from other locations or sources. 
These reasons are further explained below:
    Addressing item (1) above, the installed label appears to be made 
of a durable plastic material which is positioned on the filler neck 
and is retained by the filler cap. During normal vehicle use and 
operation, the filler cap remains attached to the reservoir, and the 
label is effectively permanently affixed. The reservoir filler cap and 
label are positioned within the engine compartment and in many cases, 
further sealed below plastic trim. Thus, to access and remove the label 
requires intentional actions by an owner or service technician by hood 
release, secondary hood release, trim removal, cap removal and finally 
pulling the label itself off. This multi-step process will not occur 
inadvertently.
    JLR explains that the routine maintenance schedule for the brake 
fluid is once every 3 years in service. Unless a brake fluid issue 
arises during the intervening time period, the cap should remain 
affixed and the label in place. In addition, FMVSS No. 135 S5.4.4 
requires the brake fluid reservoir to be so constructed that the level 
of fluid can be checked without the need for the reservoir to be 
opened. Thus, the frequency with which the cap will be removed and 
therefore the time frame in which the label can be removed is 
exceedingly limited. We further note that the removal of the brake 
filler cap for fluid addition, replacement or flush is predominately 
performed by trained service technicians, not vehicle owners, who will 
have no reason to remove a warning tag and are knowledgeable on 
precautions when dealing with brake fluid.
    Addressing item (2) above, the S5.4.3 warning statement that is 
required to be on or near the reservoir filler opening has four 
essential components as listed below:

1. The word ``Warning''
2. The statement ``Clean filler cap before removing''
3. Fluid specification ie., ``DOT 4'' fluid, and
4. The statement ``Brake fluid from a sealed container''.

    In the unlikely event the label is removed, these four specified 
items contained on the warning label are available from other locations 
or sources. The filler cap itself has four embossed yellow symbols on a 
black background. One symbol is for the brake system, indicating that 
the reservoir is brake related. The second symbol is an exclamation 
point within a triangle, generally recognized as a pictorial equivalent 
to the word ``warning,'' and the third is a symbol representing the 
owner's manual, implying that the document should be reviewed prior to 
tampering with the reservoir system. The owner's manual provides 
instructions for topping off the brake fluid, stating ``always use the 
brake fluid with the correct specifications, only use new fluid from an 
airtight container, and to clean the brake fluid filler cap before 
removing . . .'' Thus, the reservoir cap symbols pictorially warn and 
instruct that prior to cap removal, the owner's manual should be 
reviewed where all the pertinent maintenance information is described 
and is redundant to the label statements. Therefore, in the unlikely 
situation where the label has been removed, the technician is still 
warned and guided as to the proper procedures for working with the 
master cylinder reservoir opening. The fourth cap marking is ``DOT 4,'' 
which is redundant to the label listing and is arguably the most 
important caution, as the fluid used is critical to the performance and 
durability of the brake system. Even without the label, the appropriate 
fluid is clearly indicated.
    Furthermore, as indicated by JLR there have been no customer 
complaints or accidents as a result of this issue. As the noncompliance 
has existed for some models since 2012, a significant amount of time 
has elapsed in which the problem could have arisen, yet it has not been 
noted by any complaints or implicated in any accidents.
    Although the S5.4.3 warning label is not technically permanently 
affixed as required in S5.4.3 (a) the noncompliance is inconsequential 
to motor vehicle safety because the likelihood of the tag being 
displaced under normal vehicle operation and usage is exceedingly 
small, and all the information required by S5.4.3 even in the absence 
of the label is detailed in the owner's manual which is pictorially 
referenced by symbols on the cap itself. Lastly, it is likely that only 
trained service technicians will remove the cap leaving the label in 
place, and the critical fluid specification ``DOT 4'' is both on the 
label and the cap.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that JLR has 
met its burden of persuasion that the FMVSS No. 135 noncompliance is 
inconsequential to motor vehicle safety. Accordingly, JLR's petition is 
hereby granted and JLR is exempted from the obligation of providing 
notification of, and a 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 JLR 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 JLR notified them 
that the subject noncompliance existed.


[[Page 13098]]


    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. 2019-06478 Filed 4-2-19; 8:45 am]
 BILLING CODE 4910-59-P

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