Volkswagen Group of America, Inc., Grant of Petition for Decision of Inconsequential Noncompliance |
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Topics: NHTSA, Audi A4, Audi A5, Audi A6, Audi Q5, Audi S4, Audi S5, Audi S6,
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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]
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