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

American Government Special Collections Reference Desk

American Government Topics:  NHTSA, Audi A4, Audi A5, Audi A6, Audi Q5, Audi S4, Audi S5, Audi S6,

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

Claude H. Harris
Federal Register
May 24, 2011

[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Notices]
[Pages 30239-30241]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-12688]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2010-0095; Notice 2]


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

    Volkswagen Group of America, Inc. (Volkswagen),\1\ has determined 
that certain 2009 Model Year (MY) passenger cars and multipurpose 
passenger vehicles (MPV) equipped with indirect Tire Pressure 
Monitoring Systems (TPMS), do not fully comply with paragraph S4.4 of 
Federal Motor Vehicle Safety Standard (FMVSS) No. 138, Tire Pressure 
Monitoring Systems. Specifically, Volkswagen estimated that 
approximately 58,292 2009 MY Audi A6 and S6 model passenger cars, 2010 
MY Audi A6, S6, A5, A5 Cabrio, S5, S5 Cabrio, A4 and S4 passenger cars, 
and 2010 MY Audi Q5 MPV's with indirect TPMS manufactured between 
October 17, 2008 and April 27, 2010 are affected (hereafter referred to 
as ``noncompliant vehicles''). Volkswagen filed a report dated June, 
30, 2010 pursuant to 49 CFR Part 573, Defect and Noncompliance 
Responsibility and Reports.
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    \1\ Volkswagen Group of America, Inc. (Volkswagen) is a vehicle 
manufacturer incorporated under the laws of the state of New Jersey.
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    Pursuant to 49 U.S.C. 30118(d) and 30120(h), and 49 CFR part 556, 
Volkswagen has petitioned for an exemption from the notification and 
remedy requirements of the National Traffic and Motor Vehicle Safety 
Act as amended and recodified, 49 U.S.C. Chapter 301 on the basis that 
this noncompliance is inconsequential to motor vehicle safety. Notice 
of receipt of Volkswagen's petition was published, with a 30-day public 
comment period, on August 11, 2010, in the Federal Register (75 FR 
48740). One comment was received from Schrader Electronics, Ltd. 
(Schrader), a manufacturer of direct-type TPMS systems.\2\
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    \2\ To view the petition, all supporting documents and the 
comment, log onto the Federal Docket Management System Web site at: 
http://www.regulations.gov/. Then follow the online search 
instructions to locate docket number ``NHTSA-2010-0095.''
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    For further information on Volkswagen's petition or this decision, 
contact Mr. John Finneran, Office of Vehicle Safety Compliance, the 
National Highway Traffic Safety Administration (NHTSA), telephone (202) 
366-0645, facsimile (202) 366-5930.
    Volkswagen reported that the noncompliance was brought to its 
attention on October 15, 2009 and June 8, 2010, by the NHTSA's Office 
of Vehicle Safety Compliance (OVSC) regarding the results of OVSC's 
compliance test of a 2009 MY Audi A6 model passenger car to FMVSS No. 
138 requirements.
    On June 3, 2009, OVSC conducted compliance tests on a MY 2009 Audi 
A6 four-door passenger car (Audi A6). The Audi A6 was tested to 
determine compliance with FMVSS No. 138, Tire pressure monitoring 
systems (TPMS). During testing, it was discovered that the Audi A6's 
low tire pressure/TPMS malfunction telltale (TPMS combination telltale) 
failed to remain illuminated as required by FMVSS No. 138.
    During the FMVSS No. 138 compliance test of the Audi A6, the agency 
simulated a system malfunction by installing a smaller test vehicle 
tire using the procedures in paragraph S6 of FMVSS No. 138. The test of 
the Audi A6 transpired without incident until after OVSC cycled the 
ignition off, waited five minutes, cycled the ignition on, and then 
began to drive the vehicle. The TPMS combination telltale's 
illumination sequence repeated, as required in FMVSS 4.4(c)(2). The 
Audi A6 was then driven back to the test facility to replace the 
incompatible tire. When the Audi A6 was driven at speeds below 12.5 
mph, the TPMS combination telltale extinguished while the incompatible 
tire was still mounted on the vehicle.\3\
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    \3\ Incidentally, the Electronic Stability Control malfunction 
telltale also extinguished.
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    According to 49 CFR 571.138, S4.4(c)(2), the TPMS combination 
telltale must remain continuously illuminated as long as the 
malfunction exists. Therefore, the premature extinguishment of the TPMS 
combination telltale is in contravention of 49 CFR 571.138 S4.4(c)(2), 
because the underlying cause of the malfunction, an incompatible tire 
mounted on the Audi A6, had not been corrected.

Volkswagen's Analysis of Noncompliance

    After reviewing OVSC's test results Volkswagen determined that a 
noncompliance with FMVSS No. 138 existed in the OVSC tested vehicle as 
well as the other 2009 and 2010 MY vehicles. Volkswagen stated that the 
TPMS combination telltale does not remain illuminated during all 
scenarios required by paragraph S4.4 of FMVSS No. 138. Volkswagen also 
explained that there is an interrelationship between the TPMS and 
Electronic Stability Control System (ESC) in the noncompliant vehicles.
    Volkswagen stated that when NHTSA tested the Audi A6 by driving it 
with three of the originally installed 245/40R18 tires and one 
incompatible 215/35ZR18 tire (7% smaller in diameter), the A6's ESC 
System (Audi's name for ESC is ``Electronic Stability Program'') 
initially detected a malfunction and illuminated the ESC malfunction 
indicator telltale lamp (ESC telltale lamp). That ESC malfunction 
detection will also cause the TPMS combination telltale to flash for 
60-90 seconds. Both telltale lamps will then remain illuminated during 
the rest of the ignition cycle independent of vehicle speed. When the 
ignition is subsequently cycled, both the ESC and TPMS combination 
telltale lamps will re-illuminate. The nonconforming scenario occurs 
when the vehicle is maintained at a speed range between 6.2-12.5 miles 
per hour (mph) for approximately 0.2 mile. Under these conditions, the 
ESC malfunction logic code could be cleared from the control system, 
which causes the ESC and TPMS combination telltale lamps to extinguish. 
If the 6.2-12.5 mph speed range is maintained for a longer period of 
time after the ESC and TPMS combination telltale lamps extinguish 
(about 5 minutes), the TPMS acts independently of the ESC. The TPMS 
will recognize the incompatible tire and set the TPMS malfunction logic 
code and re-illuminate the TPMS combination telltale lamp. The TPMS 
combination telltale lamp will stay illuminated independent of any ESC 
malfunctions and perform as described above for as long as the 
incompatible tire is mounted.
    Volkswagen argues that this noncompliance is inconsequential to 
motor vehicle safety, and makes several arguments. First, after the 
TPMS combination telltale lamp is extinguished, as described above, it 
will immediately re-illuminate if the vehicle is accelerated to a speed 
above 12.5 mph, and remain on throughout the ignition cycle regardless 
of the vehicle's speed. Second, the TPMS combination telltale lamp 
would re-illuminate within about 5 minutes if the speed under 12.5 mph 
and over 6.2 mph was maintained. Third, given this condition, the 
function of the TPMS combination telltale lamp would never lead to a 
``flicker'' of the

[[Page 30240]]

light or other such confusing performance of the signal except as 
required in FMVSS No. 138 S4.4(c). Fourth, Volkswagen argues that 
operation of the vehicle with an incompatible tire for a short distance 
under 12.5 mph presents no safety risk. Given that the TPMS combination 
telltale lamp would re-illuminate promptly upon the TPMS recognizing 
the incompatible tire at a lower speed after 5 minutes or upon 
acceleration to over 12.5 mph, the chance is insignificant that a 
driver might be confused by the signal, or even notice it. Fifth, 
Volkswagen is not aware of any field or customer complaints regarding 
this noncompliance.
    Volkswagen also informed NHTSA that it has corrected the problem 
that caused this noncompliance so that it will not be repeated in 
future production.
    In summation, Volkswagen believes that the described noncompliance 
of its vehicles with the requirements of FMVSS No. 138 is 
inconsequential as it relates to motor vehicle safety, and that its 
petition, to exempt it from providing recall notification of 
noncompliance as required by 49 U.S.C. 30118 and remedying the recall 
noncompliance as required by 49 U.S.C. 30120 should be granted.

NHTSA Decision

Requirement Background

    Tire pressure monitoring systems provide a warning that indicates 
to the operator when a tire is significantly under inflated. Public Law 
106-414 Sec.  13; 114 Stat. 1800, 1806. Driving on a significantly 
under-inflated tire causes the tire to overheat and can lead to tire 
failure. Under-inflation also reduces tire tread life, and may affect 
the vehicle's handling and stopping ability. When the low tire pressure 
telltale illuminates, the operator is advised by the owner's manual to 
stop and check his or her tires as soon as possible, and inflate them 
to the proper pressure. 49 CFR 571.138 S 4.5(a). As discussed in the 
TPMS rulemaking, NHTSA expected that a typical vehicle will outlast its 
original set of tires, and believed that it is important that drivers 
continue to receive the benefits of the TPMS after the vehicle's tires 
are replaced. The TPMS rule required the TPMS to include a malfunction 
indicator that would alert the driver in situations in which the TPMS 
is unable to detect low tire pressure.\4\ As is relevant here, the 
malfunction indicator is required to detect incompatible replacement 
tires.\5\ This provides useful information to the driver regarding the 
long-term operability of the TPMS, thereby increasing the overall 
benefits of the system.\6\ The indicator illuminates when tires and 
rims that are incompatible with the TPMS are mounted on the vehicle, 
not only to discourage such actions, but also to provide an ongoing 
reminder that the TPMS is unavailable to provide low tire pressure 
warnings.\7\
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    \4\ 70 FR 18136, 18137 (April 8, 2005).
    \5\ 70 FR 18136, 18137 (April 8, 2005).
    \6\ 70 FR 18136, 18137 (April 8, 2005).
    \7\ 70 FR 18136, 18151 (April 8, 2005); See also 70 FR at 18159. 
(In order to ensure continued long-term functionality of the TPMS, 
the final rule requires a TPMS malfunction indicator capable of 
detecting when a replacement tire is installed which prevents 
continued proper functioning of the TPMS and of alerting the driver 
about the problem.)
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NHTSA's Analysis of Volkswagen's Reasoning

    Based on NHTSA's testing and Volkswagen's explanation in its 
petition, the vehicles encompassed by Volkswagen's Noncompliance 
Information Report will not perform according to paragraph S4.4 of 
FMVSS No. 138. Instead, the TPMS combination telltale will illuminate 
as required until the noncomplying vehicle is turned off. When the 
vehicle is restarted, the TPMS combination telltale will flash on and 
off for approximately 65 seconds and then remain illuminated, unless, 
after the TPMS combination telltale stops flashing, the vehicle is 
driven at speeds between 6.2 and 12.5 mph. Under this condition, the 
TPMS combination telltale will extinguish. If the vehicle reaches a 
speed greater than 12.5 mph, the TPMS combination telltale will again 
flash on and off for approximately 65 seconds and then remain 
illuminated for as long as the vehicle continues to run. Similarly, if 
the vehicle is driven at speeds between 6.2 and 12.5 mph, the TPMS 
combination telltale will extinguish and then re-illuminate within 
about 5 minutes of driving, and then will remain illuminated 
continuously until the ignition is turned off.
    NHTSA's understanding is that the TPMS combination telltale will 
not extinguish and illuminate repeatedly if the 12.5 mph speed 
threshold is crossed repeatedly. This is in line with Volkswagen's 
explanation of the system operation which indicates that once the TPMS 
combination telltale is illuminated after one extinguishment, it will 
remain ``on'' until the vehicle is turned off. At most, the TPMS 
combination telltale will remain off for five minutes.
    Volkswagen states that no field or customer complaints have been 
received regarding the noncompliance. NHTSA has checked its records and 
also found no such complaints have been received.

NHTSA's Consideration

    NHTSA rarely grants inconsequentiality petitions for noncompliances 
of performance standards.\8\ The majority of the 49 CFR Part 556 
petitions NHTSA has granted have been for noncompliances with labeling 
requirements in the FMVSSs. In order for a performance-related petition 
to be granted, the petitioner must demonstrate that the noncompliance 
``do[es] not create a significant safety risk.'' \9\ The relevant issue 
is whether an occupant who is affected by the noncompliance is likely 
to be exposed to a significantly greater risk than an occupant using a 
compliant vehicle or equipment.\10\
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    \8\ General Motors Corp., 69 FR 19899, 19900 (April 14, 2004); 
Cosco, Inc., 64 FR 29408, 29409 (June 1, 1999) (NHTSA-99-4033).
    \9\ Cosco, Inc., 64 FR 29409.
    \10\ GM Corp., 69 FR 19900; Cosco, Inc., 64 FR 29409.
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    In its petition, Volkswagen argues that driving a vehicle with an 
incompatible tire for a short distance at a speed under 12.5 mph 
presents no safety risk. Volkswagen explained that the TPMS combination 
telltale lamp would re-illuminate promptly upon the TPMS recognizing 
the incompatible tire at a lower speed or upon acceleration. A warning 
to the driver, in the manner required by FMVSS No. 138 must be provided 
within 20 minutes of cumulative driving time at vehicle speeds above 
31.1 mph after the occurrence of a malfunction.

NHTSA Conclusions

    First, there appears to be an insignificant safety risk created by 
the noncompliance. The underlying concern is that the TPMS would not be 
working, and the TPMS combination telltale would not so indicate. But 
the TPMS initially detects a malfunction and the TPMS combination 
telltale illuminates and remains illuminated for the remainder of the 
drive cycle. It is on subsequent drive cycles that the TPMS combination 
telltale will extinguish if the vehicle is maintained initially at a 
speed under 12.5 mph. The telltale illuminates and remains illuminated 
for the remainder of the drive cycle after about 5 minutes or when the 
vehicle exceeds 12.5 mph, whichever first occurs. This amounts to an 
outage of short duration at slow speeds. Significantly, the malfunction 
indicator would remain illuminated after that.

[[Page 30241]]

The driver would lack information that the TPMS system was not 
functioning due to an incompatible tire for such a limited period of 
time that there would not be a significant safety risk.\11\
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    \11\ We note that TPMSs were not developed to warn the driver of 
extremely rapid pressure losses that could accompany a vehicle 
encounter with a road hazard or a tire blowout. As the agency noted, 
presumably, a driver would be well aware of the tire problem in 
those situations, and the TPMS would provide little added benefit. 
70 FR 53079, 53083 (Sept. 7, 2005).
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    Second, the TPMS combination telltale does not ``flicker'' \12\ off 
and on in stop-and-go traffic. A flickering telltale, due to its 
inconsistent pattern of illumination, could confuse drivers and may 
lead them to ignore the warning provided by the TPMS combination 
telltale. As Volkswagen demonstrated in its petition, the vehicle's 
TPMS combination telltale will be extinguished for a period of about 
five minutes at slow speeds, after which it stays illuminated 
permanently.
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    \12\ A ``flicker'' is different from the standard's S4.4(c)(2) 
requirement that a combination low tire pressure/TPMS malfunction 
telltale ``flash'' for a period of 60-90 seconds when a malfunction 
is detected.
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    Furthermore, occupants of the noncomplying vehicles would not be 
exposed to significantly greater risk than if they were occupants in a 
complying vehicle. The malfunction indicator would illuminate shortly 
after an incompatible tire is installed and the vehicle was then 
driven. This should provide a highly relevant warning to the person who 
had the new tire installed. The indicator would remain illuminated for 
the remainder of the drive cycle. On subsequent drive cycles, there may 
be a five-minute interval near the beginning of the drive cycle when 
the TPMS combination telltale extinguishes. Otherwise, the TPMS 
combination telltale will be illuminated. If an occupant of a 
noncomplying vehicle is unaware of a TPMS malfunction at this speed for 
five minutes, we do not believe that the malfunction would pose a 
significant risk when compared to an occupant in a compliant vehicle.

NHTSA's Response to Comments

    In its comments to the docket, Schrader stated its belief that the 
petition should be denied because, it alleges, safety deficiencies are 
inherent in indirect type TPMS and the compliance test procedure used 
by NHTSA is inadequate for the detection of such deficiencies. Schrader 
did not specifically address the TPMS combination telltale lamp 
noncompliance that is the essence of the Volkswagen petition. Instead, 
Schrader stated that it believes there are more ``problems'' with the 
indirect system, and asked NHTSA to undertake a comprehensive review 
and expand its test procedure.
    NHTSA's safety standards and test procedures generally are 
technology neutral to permit manufacturers to have maximum flexibility 
in meeting any specified performance requirements. Although Schrader 
alleges that the test procedure may be problematic, the current test 
procedure (TP-138-03) follows precisely the testing protocol specific 
in FMVSS No. 138 and did uncover a noncompliance in the Audi indirect 
TPMS system.
    However, if Schrader still takes issue with the actual test 
requirements that originate in FMVSS No. 138, it should petition the 
agency for a rulemaking revision. Requests for rulemaking changes 
should be submitted in a petition for rulemaking filed under the 
provisions of 49 CFR Part 552 Petitions for Rulemaking, Defect, and 
Noncompliance Orders.
    Because Schrader's comments did not provide any information 
addressing Volkswagen's telltale noncompliance that is the essence of 
its petition, Schrader's comments do not support denying the subject 
petition.

Decision

    After a review of Volkswagen's arguments, Schrader's comments, and 
the final rule preamble language, NHTSA is convinced that Volkswagen 
has met its burden of demonstrating that the noncompliance does not 
present a significant safety risk. Therefore, NHTSA agrees with 
Volkswagen that this specific noncompliance is inconsequential to motor 
vehicle safety.
    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 58,292 \13\ vehicles that Volkswagen no longer 
controlled at the time that it determined that a noncompliance existed 
in the subject vehicles.
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    \13\ Volkswagen's petition, which was filed under 49 CFR Part 
556, requests an agency decision to exempt Volkswagen as a 
manufacturer from the notification and recall responsibilities of 49 
CFR Part 573 for 58,292 of the affected vehicles. However, the 
agency cannot 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.
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    In consideration of the foregoing, NHTSA has decided that 
Volkswagen has met its burden of persuasion that the FMVSS No. 138 TPMS 
noncompliance in the vehicles identified in Volkswagen's Noncompliance 
Information Report is inconsequential to motor vehicle safety. 
Accordingly, Volkswagen's petition is granted and the petitioner is 
exempted from the obligation of providing notification of, and a remedy 
for, that noncompliance under 49 U.S.C. 30118 and 30120.

    Authority:  49 U.S.C. 30118, 30120; delegations of authority at 
49 CFR 1.50 and 501.8.

    Issued on: May 18, 2011.
Claude H. Harris,
Acting Associate Administrator for Enforcement.
[FR Doc. 2011-12688 Filed 5-23-11; 8:45 am]
BILLING CODE 4910-59-P

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