Volkswagen Group of America, Inc., Denial of Petition for Decision of Inconsequential Noncompliance Publication: Federal Register Signing Official: Anne L. Collins Agency: National Highway Traffic Safety Administration Date: 24 October 2022 Topic: Volkswagen, Audi

[Federal Register Volume 87, Number 204 (Monday, October 24, 2022)]
[Notices]
[Pages 64307-64309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-23020]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2020-0066; Notice 2]


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

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

ACTION: Denial of petition.

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SUMMARY: Volkswagen Group of America, Inc., (``Volkswagen'') has 
determined that certain model year (MY) 2019-2020 Volkswagen and Audi 
motor vehicles do not fully comply with Federal Motor Vehicle Safety 
Standard (FMVSS) No. 138, Tire Pressure Monitoring Systems. Volkswagen 
filed a noncompliance report dated May 6, 2020, and later amended it on 
May 15, 2020. Volkswagen subsequently petitioned NHTSA on May 20, 2020, 
and later amended the petition on June 8, 2020, for a decision that the 
subject noncompliance is inconsequential as it relates to motor vehicle 
safety. This document announces and explains the denial of Volkswagen's 
petition.

FOR FURTHER INFORMATION CONTACT: Ahmad Barnes, Office of Vehicle Safety 
Compliance, NHTSA, (202) 366-7236.

SUPPLEMENTARY INFORMATION:

I. Overview

    Volkswagen has determined that certain MY 2019-2020 Volkswagen and 
Audi motor vehicles do not fully comply with the requirements of 
paragraph S6(f)(3) of FMVSS No. 138, Tire Pressure Monitoring Systems 
(49 CFR 571.138). Volkswagen filed a noncompliance report dated May 6, 
2020, and later amended it on May 15, 2020, pursuant to 49 CFR part 
573, Defect and Noncompliance Responsibility and Reports. Volkswagen 
subsequently petitioned NHTSA on May 20, 2020,\1\ 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.
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    \1\ Volkswagen amended this petition on June 8, 2020 to correct 
certain vehicle information to match its filing information.
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    Notice of receipt of Volkswagen's petition was published with a 30-
day public comment period on July 10, 2020, in the Federal Register (85 
FR 41670). One comment was received. To view the petition and all 
supporting documents, log onto the Federal Docket Management System 
(FDMS) website at https://www.regulations.gov/, and then follow the 
online search instructions to locate docket number ``NHTSA-2020-0066''

II. Vehicles Involved

    Approximately 299,043 of the following MY 2019-2020 Volkswagen and 
Audi motor vehicles manufactured between November 26, 2018, and 
February 19, 2020, are potentially involved:

 2019-2020 Volkswagen Atlas
 2020 Volkswagen Atlas Cross Sport
 2019 Volkswagen Golf R
 2019 Volkswagen Tiguan LWB
 2019-2020 Volkswagen Jetta NF
 2019-2020 Volkswagen Jetta GLI
 2019 Volkswagen Golf Sportwagen A7
 2019 Audi Q3
 2019-2020 Volkswagen Golf GTI
 2019 Volkswagen Golf Alltrack
 2019-2020 Volkswagen Golf A7
 2019-2020 Audi A3 Sedan
 2019 Audi A3 Cabriolet

III. Noncompliance

    Volkswagen explains that the noncompliance is that the subject 
vehicles are equipped with tire pressure monitoring systems (TPMS) that 
do not fully comply with the requirements set forth in paragraph 
S6(f)(3) of FMVSS No. 138. Specifically, when there is a simultaneous 
pressure loss on all four tires, in which pressure loss occurs at the 
same rate and time, the detection may not occur within the 20-minute 
timeframe specified in test procedure requirements.

IV. Rule Requirements

    Paragraphs S4.2(a), S4.3.1(c), and S6(f)(3) of FMVSS No. 138 
include the requirements relevant to this petition. Paragraph S4.2(a) 
requires that the TPMS must illuminate a low tire pressure warning 
telltale not more than 20 minutes after the inflation pressure in one 
or more of the vehicle's tires, up to a total of four tires, is equal 
to or less than either the pressure 25 percent below the vehicle 
manufacturer's recommended cold inflation pressure, or the pressure 
specified in the 3rd column of Table 1 of FMVSS No. 138 for the 
corresponding type of tire, whichever is higher. Paragraph S4.3.1(c) 
requires that the TPMS is illuminated under the conditions specified in 
Paragraph S4.2. Paragraph S6(f)(3) requires that the sum of the total 
cumulative drive time under the test procedures described in paragraphs 
S6(f)(1) and (2) shall be the lesser of 20 minutes or the time at which 
the low tire pressure telltale illuminates.

V. Summary of Volkswagen's Petition

    The following summarizes the views and arguments provided by 
Volkswagen in its petition. Therein, Volkswagen describes the subject 
noncompliance and contends that the noncompliance is inconsequential as 
it relates to motor vehicle safety.
    In support of its petition, Volkswagen offers the following 
reasoning:
    1. A rapid tire pressure loss on one or more tires is accurately 
detected and the low tire pressure warning telltale will illuminate and 
warn the driver.
    2. A pressure loss on fewer than four tires at the same time and 
rate will be detected, and the low tire pressure warning telltale will 
illuminate and warn the driver.
    3. A simultaneous pressure loss on all four tires at the same rate 
will be detected and indicated to the driver, but not in the required 
20 minutes. Internal tests have shown that in those tests where the 
pressure loss was not detected in 20 minutes, a warning to the

[[Page 64308]]

driver was still shown in under 50 minutes. Volkswagen believes this 
behavior is not relevant for real world driving, as this particular 
diffusion scenario, involving all four tires at the same time and same 
rate, is very unlikely to happen in real world driving.
    4. Volkswagen states that as of the production dates listed below 
for each respective vehicle, the condition has been corrected:
    Volkswagen:
     2019-2020 Volkswagen Golf vehicles, as of October 26, 
2019;
     2019 Volkswagen Golf Alltrack vehicles, as of October 26, 
2019;
     2019-2020 Volkswagen Golf GTI vehicles, as of October 26, 
2019;
     2019 Volkswagen Golf Sportwagen vehicles, as of August 28, 
2019;
     2019 Volkswagen Golf R vehicles, as of August 20, 2019;
     2019-2020 Volkswagen Jetta vehicles, as of October 24, 
2019;
     2019-2020 Volkswagen Jetta GLI vehicles, as of October 24, 
2019;
     2019 Volkswagen Tiguan vehicles, as of August 18, 2019;
     2019-2020 Volkswagen Atlas vehicles, as of February 20, 
2020; and
     2020 Volkswagen Atlas Cross Sport vehicles, as of July 25, 
2019.
    Audi:
     2019-2020 Audi A3 vehicles, as of January 25, 2020;
     2019 Audi A3 Cabriolet vehicles, as of July 13, 2019; and
     2019 Audi Q3 vehicles, as of July 31, 2019.
    5. The affected vehicles held at the factory have been corrected, 
and unsold units in dealer inventory will be corrected prior to sale.
    6. Additionally, Volkswagen states that it is not aware of any 
field or customer complaints related to this condition, nor has it been 
made aware of any accidents or injuries that have occurred as a result 
of this issue.
    Volkswagen concludes by again contending that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety, 
and asking that it 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.

VI. Public Comment

    NHTSA received one comment from the public. This comment was 
submitted anonymously by an individual who expressed their opinion that 
the subject noncompliance is inconsequential. However, the commenter 
did not provide any information specific to the subject noncompliance 
in support of this opinion. While the Agency takes great interest in 
the public's concerns and appreciates the commenter's feedback, the 
comment does not address the substance of Volkswagen's petition.

VII. NHTSA's Analysis

    The burden of establishing the inconsequentiality of a failure to 
comply with a performance requirement in a standard--as opposed to a 
labeling requirement with no performance implications--is more 
substantial and difficult to meet. Accordingly, the Agency has not 
found many such noncompliances inconsequential.\2\
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    \2\ Cf. Gen. Motors Corporation; Ruling on Petition for 
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899 
(Apr. 14, 2004) (citing prior cases where noncompliance was expected 
to be imperceptible, or nearly so, to vehicle occupants or 
approaching drivers).
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    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who experience the type of event 
against which the recall would otherwise protect.\3\ In general, NHTSA 
does not consider the absence of complaints or injuries as evidence 
that the issue 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, e.g., 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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    Arguments that only a small number of vehicles or items of motor 
vehicle equipment are affected also do not justify granting an 
inconsequentiality petition.\5\ 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.\6\
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    \5\ 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).
    \6\ 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).
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    NHTSA has evaluated the merits of Volkswagen's petition for 
inconsequential noncompliance and has decided to deny the petition.
    The intent of FMVSS No. 138 is to ensure that performance 
requirements for TPMS warn drivers of significant under-inflation of 
tires and the resulting safety problems.
    Volkswagen explains that in certain instances where there is 
simultaneous pressure loss on all 4 tires, in which the pressure loss 
occurs at the same rate and time, the detection may not occur within 
the prescribed timeframe of the FMVSS No. 138 test procedure, but that 
a warning to the driver was still shown in under 50 minutes. Volkswagen 
believes this behavior is not relevant for real world driving, as this 
particular diffusion scenario, involving all four tires at the same 
time and same rate, is very unlikely to happen in real world driving.
    The loss of tire air pressure in one, two, three, or all four tires 
is relevant and can occur under normal driving conditions. Under-
inflation is one of the leading causes of tire failure. If tire 
pressure is too low, too much of the tire's surface area touches the 
road, which increases friction. Increased friction can cause the tires 
to overheat, which can lead to premature wear, tread separation, and 
blowouts. Even if the likelihood of all four tires deflating at the 
same rate at the same time is low, when they happen, blowouts can 
endanger the driver of the vehicle with the damaged tire as well as 
other drivers sharing the adjacent roadway. A blowout could cause the 
driver to lose control of their vehicle and crash. Depending on the 
severity of the blowout, other drivers might swerve to

[[Page 64309]]

avoid pieces of flying debris from the blown tire and crash their 
vehicles. The TPMS detection requirements were established to reduce 
the possibility of any negative consequences due to underinflated 
tires. The Agency established the requirement that the driver be given 
a warning when tire pressure is 25 percent or more below the vehicle 
manufacturer's recommended cold tire inflation pressure. This low-tire 
pressure threshold, combined with the corresponding 20-minute limit to 
notify vehicle operators of this condition, was created to facilitate 
warning drivers of significant underinflation of tires to prevent 
resulting safety problems.

VIII. NHTSA's Decision

    In consideration of the foregoing, NHTSA has decided that 
Volkswagen has not met its burden of persuasion that the subject FMVSS 
No. 138 noncompliance is inconsequential to motor vehicle safety. 
Accordingly, Volkswagen's petition is 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.

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

Anne L. Collins,
Associate Administrator for Enforcement.
[FR Doc. 2022-23020 Filed 10-21-22; 8:45 am]
BILLING CODE 4910-59-P