Volkswagen Group of America, Inc., Denial of Petitions for Decision of Inconsequential Noncompliance, 57169-57171 [2023-18020]

Download as PDF Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket Nos. NHTSA–2019–0030 and NHTSA–2021–0066; Notice 2] Volkswagen Group of America, Inc., Denial of Petitions for Decision of Inconsequential Noncompliance National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Denial of petitions. AGENCY: Volkswagen Group of America, Inc. (Volkswagen or the ‘‘Petitioner’’) has determined that certain model year (MY) 2019 and 2021 Audi motor vehicles do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 135, Light Vehicle Brake Systems. Volkswagen filed noncompliance reports dated March 27, 2019, and July 26, 2021. Volkswagen petitioned NHTSA (the ‘‘Agency’’) on April 17, 2019, and August 25, 2021, for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. This notice announces the denial of Volkswagen’s petitions. FOR FURTHER INFORMATION CONTACT: Vince Williams, Office of Vehicle Safety Compliance, National Highway Traffic Safety Administration (NHTSA), telephone (202) 366–2319. SUPPLEMENTARY INFORMATION: lotter on DSK11XQN23PROD with NOTICES1 SUMMARY: I. Overview Volkswagen has determined that certain MY 2019 Audi A6 and Audi A7 and MY 2021 Audi A6 Sedan, A6 Allroad, A7, RS6 Avant, RS7, S6 Sedan, and S7 motor vehicles do not comply with the requirements of paragraph S5.4.3 of FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135). Volkswagen filed noncompliance reports dated March 27, 2019, and July 26, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Volkswagen petitioned NHTSA on April 17, 2019, and August 25, 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. Notices of receipt of Volkswagen’s petitions were published on August 21, 2019 (84 FR 43660) and June 17, 2022 (87 FR 36574) in the Federal Register with a 30-day public comment period. VerDate Sep<11>2014 17:50 Aug 21, 2023 Jkt 259001 No comments were received. To view the petitions 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 numbers ‘‘NHTSA–2019– 0030’’ and ‘‘NHTSA–2021–0066.’’ II. Vehicles Involved Approximately 3,908 MY 2019 Audi A6 and Audi A7 vehicles, manufactured between July 27, 2018 and November 6, 2018, are potentially involved. Additionally, approximately 4,267 MY 2021 Audi A6 Sedan, A6 Allroad, A7, RS6 Avant, RS7, S6 Sedan, and S7 vehicles, manufactured between January 11, 2021, and April 14, 2021, are potentially involved. III. Noncompliance Volkswagen determined that a small number of the vehicles have a European-specification brake fluid reservoir cap instead of the reservoir cap required in S5.4.3 of FMVSS No. 135. The noncompliant brake fluid reservoir caps do not include the warning label required by FMVSS No. 135. IV. Rule Requirements S5.4.3 of FMVSS 135 requires that each vehicle equipped with hydraulic brakes 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.’’ (Manufacturers must insert the recommended type of brake fluid, as specified in 49 CFR 571.116, (e.g., ‘‘DOT 3.’’) The lettering shall be permanently affixed, engraved, or embossed, and located so it is visible by direct view, either on or within 100 mm (3.94 inches) of the brake fluid reservoir filler plug or cap. The color of the lettering must also contrast with its background, if it is not engraved or embossed. V. Summary of Petition The following views and arguments presented in this section, ‘‘V. Summary of Volkswagen’s Petition,’’ are the views and arguments provided by Volkswagen and do not reflect the views of the Agency. Volkswagen describes the subject noncompliance and contends that the noncompliance is inconsequential as it relates to motor vehicle safety. Volkswagen explains that it believes the subject noncompliance is inconsequential to motor vehicle safety because ‘‘the brake fluid cap clearly shows the specification of the brake fluid required’’ and ‘‘provides clear PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 57169 symbols including one for caution and one for referring to owner manual instructions.’’ Volkswagen says that the owner’s manual also ‘‘indicates the proper brake fluid specification for use in the vehicle.’’ Volkswagen states that the ‘‘brake fluid cap conforms to the requirements of ISO 9128:2006 which is a requirement of UN–ECE Regulations 13 and 13h.’’ Volkswagen contends that NHTSA has previously granted the following inconsequentiality petitions, which Volkswagen believes are similar to the subject petition: • Jaguar Land Rover North America, LLC, Grant of Petition for Decision of Inconsequential Noncompliance, 84 FR 13095 (April 3, 2019). • Ford Motor Company, Grant of Petition for Decision of Inconsequential Noncompliance, 78 FR 69931 (November 21, 2013). • Hyundai Motor Company, Grant of Petition for Decision of Inconsequential Noncompliance, 73 FR 38290 (July 3, 2008). According to Volkswagen, ‘‘service to the brake system involving an exchange of the brake fluid is not a standard maintenance activity’’ and repairs to the brake system ‘‘requires basic technical knowledge regarding the brake system and should be performed by a trained technician.’’ Volkswagen states that it has not received any field or customer complaints or notifications about any accidents or injuries related to the subject noncompliance. In Volkswagen’s petition dated April 17, 2019, Volkswagen states that, as of November 7, 2018, production of the subject vehicles has been corrected (i.e., are now compliant) and the vehicles ‘‘at the factory have been corrected and unsold units will be correct prior to sale.’’ In Volkswagen’s petition dated August 25, 2021, Volkswagen again states that production has been corrected and, as of April 14, 2021, the vehicles at its factory have been corrected and the subject vehicles still in its control will be corrected prior to sale. Volkswagen concludes each petition by stating its belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petitions 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. NHTSA’s Analysis In determining inconsequentiality of a noncompliance, NHTSA focuses on the safety risk to individuals who E:\FR\FM\22AUN1.SGM 22AUN1 57170 Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices lotter on DSK11XQN23PROD with NOTICES1 experience the type of event against which a recall would otherwise protect.1 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.2 Arguments that only a small number of vehicles or items of motor vehicle equipment are affected also do not justify granting an inconsequentiality petition.3 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.4 The Safety Act is preventive, and manufacturers cannot and should not 1 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). 2 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’’). 3 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). 4 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). VerDate Sep<11>2014 16:57 Aug 21, 2023 Jkt 259001 wait for deaths or injuries to occur in their vehicles before they carry out a recall.5 Indeed, the very purpose of a recall is to protect individuals from risk. Id. NHTSA has evaluated the merits of these inconsequentiality petitions and determined that Volkswagen has not met its burden of persuasion that the subject noncompliance is inconsequential to motor vehicle safety. S5.4.3 of FMVSS No. 135 requires the following four essential components of the brake fluid cap label: (1) the brake fluid warning statement ‘‘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’’), the lettering shall be (2) permanently affixed, engraved or embossed, (3) located so as to be visible by direct view, either on or within 100mm (3.94in) of the brake fluid reservoir filler plug or cap, and (4) of a color that contrasts with its background, if it is not engraved or embossed. Of the required components of the brake fluid cap reservoir labeling, the statements ‘‘Clean filler cap before removing.’’ and ‘‘Use only fluid from a sealed container.’’ are missing and an exclamation point symbol is used instead of the word ‘‘Warning’’. Volkswagen argues that the brake fluid cap indicates the proper fluid type and contains the symbols conforming to ISO 9128:2006, which is a requirement of UN–ECE Regulations 13 and 13h. These include the aforementioned exclamation mark, a symbol for the brake system, and a third symbol apparently directing the viewer to consult the vehicle’s owner’s manual or service information. NHTSA notes that the symbols on the ISO brake fluid cap are, at best, partially familiar to U.S. vehicle owners and users and are not the equivalent of the printed information required by the safety standard. Furthermore, Volkswagen added that normal brake fluid upkeep is not considered a basic maintenance that a consumer would handle on their own and the servicing of the brake system should be performed by a trained technician with technical knowledge of the brake system. The contention that owners do not perform brake service was not supported by data and is an assumption that becomes increasingly more indefensible as a vehicle ages. When a consumer must check or add brake fluid, it is important to have the required warnings in place to preserve 5 See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C. Cir. 1977). PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 the performance and durability of the brake system. While prior NHTSA determinations that a noncompliance was inconsequential are not considered as binding precedent and the Agency considers each petition on its own merits, the prior decisions cited by the Petitioner have limited applicability in this case. One decision involved a placard with all the required warnings permanently attached to the brake fluid reservoir, but not to the cap itself. The two other decisions that the Petitioner cited involved a single symbol being substituted for a required word or phrase. Conversely, the Petitioner’s subject noncompliance involves multiple symbols that are missing from the noncompliant cap including the statement ‘‘Clean filler cap before removing’’ which is required to prevent unnecessary contamination from being introduced into the brake system when a customer or service technician tries to inspect the brake fluid, as well as the statement ‘‘Use only fluid from a sealed container’’ which is intended to prevent a customer or technician from adding the incorrect grade of brake fluid or contaminated fluid when adding or replenishing the brake fluid. Both of the aforementioned conditions could lead to a degradation of the vehicle’s brake system performance and present an unintended risk to the driver and the driving public. VII. NHTSA’s Decision In consideration of the foregoing, NHTSA finds that Volkswagen has not met its burden of persuasion that the subject FMVSS No. 135 noncompliance is inconsequential to motor vehicle safety. Accordingly, these petitions are 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. The Agency also notes that these petitions involve the same noncompliance that occurred initially in several months of production in 2018 and then reoccurred again in vehicles produced over several months in 2021. Vehicle manufacturers have a legal obligation to ensure that their vehicles manufactured for the U.S. fully comply with applicable FMVSS and are required to exercise reasonable care in certifying their vehicles as compliant. 49 U.S.C. 30115(a). Volkswagen should ensure it has improved its processes to prevent further reoccurrence of this issue. E:\FR\FM\22AUN1.SGM 22AUN1 Federal Register / Vol. 88, No. 161 / Tuesday, August 22, 2023 / Notices (Authority: 49 U.S.C. 30118, 30120; delegations of authority at 49 CFR 1.95 and 501.8.) Otto G. Matheke, III, Acting Associate Administrator for Enforcement. [FR Doc. 2023–18020 Filed 8–21–23; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration [Docket No. NHTSA–2022–0094; Notice 2] Hitachi Cable America Inc., Now Known as Proterial Cable America, Inc., and Harley-Davidson Motor Company, Receipt of Supplemental Petitions for Decision of Inconsequential Noncompliance National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT). ACTION: Receipt of supplemental petitions. AGENCY: Hitachi Cable America Inc. (HCA), now known as Proterial Cable America, Inc. (PCA), and HarleyDavidson Motor Company (HarleyDavidson) (collectively, ‘‘the Petitioners’’) have determined that certain PVC, Nylon, and ‘‘Revised Socket’’ Nylon brake hose assemblies equipped in certain model year (MY) 2008–2022 Harley-Davidson motorcycles, and also sold to HarleyDavidson dealers as replacement parts, do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 106, Brake Hoses. The Petitioners filed the appropriate noncompliance reports and subsequently petitioned NHTSA (the ‘‘Agency’’) for a decision that the subject noncompliance is inconsequential as it relates to motor vehicle safety. Notice of receipt was first published on April 13, 2023. This document announces receipt of the Petitioners’ supplemental petitions. DATES: The comment period for the notice published on April 13, 2023, at 88 FR 22523, is extended. Send comments on or before September 21, 2023. SUMMARY: Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and may be submitted by any of the following methods: • Mail: Send comments by mail addressed to the U.S. Department of Transportation, Docket Operations, M– lotter on DSK11XQN23PROD with NOTICES1 ADDRESSES: VerDate Sep<11>2014 16:57 Aug 21, 2023 Jkt 259001 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. • Hand Delivery: Deliver comments by hand to the U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. The Docket Section is open on weekdays from 10:00 a.m. to 5:00 p.m., except on Federal Holidays. • Electronically: Submit comments electronically by logging onto the Federal Docket Management System (FDMS) website at https:// www.regulations.gov/. Follow the online instructions for submitting comments. • Comments may also be faxed to (202) 493–2251. Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to https:// www.regulations.gov, including any personal information provided. All comments and supporting materials received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the fullest extent possible. When the petitions are granted or denied, notice of the decision will also be published in the Federal Register pursuant to the authority indicated at the end of this notice. All comments, background documentation, and supporting materials submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the internet at https:// www.regulations.gov by following the online instructions for accessing the dockets. The docket ID number for these petitions is shown in the heading of this notice. DOT’s complete Privacy Act Statement is available for review in a Federal Register notice published on April 11, 2000 (65 FR 19477–78). FOR FURTHER INFORMATION CONTACT: Manuel Maldonado, General Engineer, NHTSA, Office of Vehicle Safety Compliance, (202) 366–7235. PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 57171 SUPPLEMENTARY INFORMATION: I. Overview: The Petitioners determined that certain PVC, Nylon, and ‘‘Revised Socket’’ Nylon brake hose assemblies equipped in certain MY 2008–2022 Harley-Davidson Touring, CVO Touring, Trike, Softail, Revolution Max, VRSC, XG750A, and XL Sportster motorcycles, and also sold as replacement parts, do not fully comply with paragraph S5.3 of FMVSS No. 106, Brake Hoses (49 CFR 571.106). PCA filed its initial noncompliance report on July 27, 2022, and amended the report on August 25, 2022, October 18, 2022, October 26, 2022, November 16, 2022, March 30, 2023, and May 15, 2023, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. PCA petitioned NHTSA on August 19, 2022, and later amended its petition on November 10, 2022, December 2, 2022, April 21, 2023,1 and May 15, 2023, for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that the subject noncompliances are inconsequential as they relate 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. Harley-Davidson filed its initial noncompliance report on August 9, 2022, and later amended the report on December 6, 2022, February 7, 2023, February 8, 2023, March 8, 2023, May 11, 2023, and June 21, 2023, pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility and Reports. Harley-Davidson petitioned NHTSA on September 2, 2022, and amended its petition on December 29, 2022, and June 2, 2023, 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 the Petitioners’ prior petitions was published on April 13, 2023, in the Federal Register (88 FR 22523). To view the petitions 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–2022–0094.’’ This notice of receipt of the Petitioners’ supplemental petitions is 1 The supplemental petition submitted on April 21, 2023, was incorrectly dated as April 21, 2022. E:\FR\FM\22AUN1.SGM 22AUN1

Agencies

[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Notices]
[Pages 57169-57171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18020]



[[Page 57169]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket Nos. NHTSA-2019-0030 and NHTSA-2021-0066; Notice 2]


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

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

ACTION: Denial of petitions.

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SUMMARY: Volkswagen Group of America, Inc. (Volkswagen or the 
``Petitioner'') has determined that certain model year (MY) 2019 and 
2021 Audi motor vehicles do not fully comply with Federal Motor Vehicle 
Safety Standard (FMVSS) No. 135, Light Vehicle Brake Systems. 
Volkswagen filed noncompliance reports dated March 27, 2019, and July 
26, 2021. Volkswagen petitioned NHTSA (the ``Agency'') on April 17, 
2019, and August 25, 2021, for a decision that the subject 
noncompliance is inconsequential as it relates to motor vehicle safety. 
This notice announces the denial of Volkswagen's petitions.

FOR FURTHER INFORMATION CONTACT: Vince Williams, Office of Vehicle 
Safety Compliance, National Highway Traffic Safety Administration 
(NHTSA), telephone (202) 366-2319.

SUPPLEMENTARY INFORMATION:

I. Overview

    Volkswagen has determined that certain MY 2019 Audi A6 and Audi A7 
and MY 2021 Audi A6 Sedan, A6 Allroad, A7, RS6 Avant, RS7, S6 Sedan, 
and S7 motor vehicles do not comply with the requirements of paragraph 
S5.4.3 of FMVSS No. 135, Light Vehicle Brake Systems (49 CFR 571.135). 
Volkswagen filed noncompliance reports dated March 27, 2019, and July 
26, 2021, pursuant to 49 CFR part 573, Defect and Noncompliance 
Responsibility and Reports. Volkswagen petitioned NHTSA on April 17, 
2019, and August 25, 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.
    Notices of receipt of Volkswagen's petitions were published on 
August 21, 2019 (84 FR 43660) and June 17, 2022 (87 FR 36574) in the 
Federal Register with a 30-day public comment period. No comments were 
received. To view the petitions 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 numbers ``NHTSA-2019-0030'' and ``NHTSA-2021-0066.''

II. Vehicles Involved

    Approximately 3,908 MY 2019 Audi A6 and Audi A7 vehicles, 
manufactured between July 27, 2018 and November 6, 2018, are 
potentially involved.
    Additionally, approximately 4,267 MY 2021 Audi A6 Sedan, A6 
Allroad, A7, RS6 Avant, RS7, S6 Sedan, and S7 vehicles, manufactured 
between January 11, 2021, and April 14, 2021, are potentially involved.

III. Noncompliance

    Volkswagen determined that a small number of the vehicles have a 
European-specification brake fluid reservoir cap instead of the 
reservoir cap required in S5.4.3 of FMVSS No. 135. The noncompliant 
brake fluid reservoir caps do not include the warning label required by 
FMVSS No. 135.

IV. Rule Requirements

    S5.4.3 of FMVSS 135 requires that each vehicle equipped with 
hydraulic brakes 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.'' (Manufacturers must insert the recommended type of brake 
fluid, as specified in 49 CFR 571.116, (e.g., ``DOT 3.'') The lettering 
shall be permanently affixed, engraved, or embossed, and located so it 
is visible by direct view, either on or within 100 mm (3.94 inches) of 
the brake fluid reservoir filler plug or cap. The color of the 
lettering must also contrast with its background, if it is not engraved 
or embossed.

V. Summary of Petition

    The following views and arguments presented in this section, ``V. 
Summary of Volkswagen's Petition,'' are the views and arguments 
provided by Volkswagen and do not reflect the views of the Agency. 
Volkswagen describes the subject noncompliance and contends that the 
noncompliance is inconsequential as it relates to motor vehicle safety.
    Volkswagen explains that it believes the subject noncompliance is 
inconsequential to motor vehicle safety because ``the brake fluid cap 
clearly shows the specification of the brake fluid required'' and 
``provides clear symbols including one for caution and one for 
referring to owner manual instructions.'' Volkswagen says that the 
owner's manual also ``indicates the proper brake fluid specification 
for use in the vehicle.'' Volkswagen states that the ``brake fluid cap 
conforms to the requirements of ISO 9128:2006 which is a requirement of 
UN-ECE Regulations 13 and 13h.''
    Volkswagen contends that NHTSA has previously granted the following 
inconsequentiality petitions, which Volkswagen believes are similar to 
the subject petition:
     Jaguar Land Rover North America, LLC, Grant of Petition 
for Decision of Inconsequential Noncompliance, 84 FR 13095 (April 3, 
2019).
     Ford Motor Company, Grant of Petition for Decision of 
Inconsequential Noncompliance, 78 FR 69931 (November 21, 2013).
     Hyundai Motor Company, Grant of Petition for Decision of 
Inconsequential Noncompliance, 73 FR 38290 (July 3, 2008).
    According to Volkswagen, ``service to the brake system involving an 
exchange of the brake fluid is not a standard maintenance activity'' 
and repairs to the brake system ``requires basic technical knowledge 
regarding the brake system and should be performed by a trained 
technician.''
    Volkswagen states that it has not received any field or customer 
complaints or notifications about any accidents or injuries related to 
the subject noncompliance. In Volkswagen's petition dated April 17, 
2019, Volkswagen states that, as of November 7, 2018, production of the 
subject vehicles has been corrected (i.e., are now compliant) and the 
vehicles ``at the factory have been corrected and unsold units will be 
correct prior to sale.'' In Volkswagen's petition dated August 25, 
2021, Volkswagen again states that production has been corrected and, 
as of April 14, 2021, the vehicles at its factory have been corrected 
and the subject vehicles still in its control will be corrected prior 
to sale.
    Volkswagen concludes each petition by stating its belief that the 
subject noncompliance is inconsequential as it relates to motor vehicle 
safety, and that its petitions 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. NHTSA's Analysis

    In determining inconsequentiality of a noncompliance, NHTSA focuses 
on the safety risk to individuals who

[[Page 57170]]

experience the type of event against which a recall would otherwise 
protect.\1\ 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.\2\
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    \1\ 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).
    \2\ 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.\3\ 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.\4\ The Safety 
Act is preventive, and manufacturers cannot and should not wait for 
deaths or injuries to occur in their vehicles before they carry out a 
recall.\5\ Indeed, the very purpose of a recall is to protect 
individuals from risk. Id.
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    \3\ 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).
    \4\ 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).
    \5\ See, e.g., United States v. Gen. Motors Corp., 565 F.2d 754, 
759 (D.C. Cir. 1977).
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    NHTSA has evaluated the merits of these inconsequentiality 
petitions and determined that Volkswagen has not met its burden of 
persuasion that the subject noncompliance is inconsequential to motor 
vehicle safety. S5.4.3 of FMVSS No. 135 requires the following four 
essential components of the brake fluid cap label: (1) the brake fluid 
warning statement ``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''), the 
lettering shall be (2) permanently affixed, engraved or embossed, (3) 
located so as to be visible by direct view, either on or within 100mm 
(3.94in) of the brake fluid reservoir filler plug or cap, and (4) of a 
color that contrasts with its background, if it is not engraved or 
embossed. Of the required components of the brake fluid cap reservoir 
labeling, the statements ``Clean filler cap before removing.'' and 
``Use only fluid from a sealed container.'' are missing and an 
exclamation point symbol is used instead of the word ``Warning''. 
Volkswagen argues that the brake fluid cap indicates the proper fluid 
type and contains the symbols conforming to ISO 9128:2006, which is a 
requirement of UN-ECE Regulations 13 and 13h. These include the 
aforementioned exclamation mark, a symbol for the brake system, and a 
third symbol apparently directing the viewer to consult the vehicle's 
owner's manual or service information. NHTSA notes that the symbols on 
the ISO brake fluid cap are, at best, partially familiar to U.S. 
vehicle owners and users and are not the equivalent of the printed 
information required by the safety standard.
    Furthermore, Volkswagen added that normal brake fluid upkeep is not 
considered a basic maintenance that a consumer would handle on their 
own and the servicing of the brake system should be performed by a 
trained technician with technical knowledge of the brake system. The 
contention that owners do not perform brake service was not supported 
by data and is an assumption that becomes increasingly more 
indefensible as a vehicle ages. When a consumer must check or add brake 
fluid, it is important to have the required warnings in place to 
preserve the performance and durability of the brake system.
    While prior NHTSA determinations that a noncompliance was 
inconsequential are not considered as binding precedent and the Agency 
considers each petition on its own merits, the prior decisions cited by 
the Petitioner have limited applicability in this case. One decision 
involved a placard with all the required warnings permanently attached 
to the brake fluid reservoir, but not to the cap itself. The two other 
decisions that the Petitioner cited involved a single symbol being 
substituted for a required word or phrase. Conversely, the Petitioner's 
subject noncompliance involves multiple symbols that are missing from 
the noncompliant cap including the statement ``Clean filler cap before 
removing'' which is required to prevent unnecessary contamination from 
being introduced into the brake system when a customer or service 
technician tries to inspect the brake fluid, as well as the statement 
``Use only fluid from a sealed container'' which is intended to prevent 
a customer or technician from adding the incorrect grade of brake fluid 
or contaminated fluid when adding or replenishing the brake fluid. Both 
of the aforementioned conditions could lead to a degradation of the 
vehicle's brake system performance and present an unintended risk to 
the driver and the driving public.

VII. NHTSA's Decision

    In consideration of the foregoing, NHTSA finds that Volkswagen has 
not met its burden of persuasion that the subject FMVSS No. 135 
noncompliance is inconsequential to motor vehicle safety. Accordingly, 
these petitions are 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.
    The Agency also notes that these petitions involve the same 
noncompliance that occurred initially in several months of production 
in 2018 and then reoccurred again in vehicles produced over several 
months in 2021. Vehicle manufacturers have a legal obligation to ensure 
that their vehicles manufactured for the U.S. fully comply with 
applicable FMVSS and are required to exercise reasonable care in 
certifying their vehicles as compliant. 49 U.S.C. 30115(a). Volkswagen 
should ensure it has improved its processes to prevent further 
reoccurrence of this issue.


[[Page 57171]]


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

Otto G. Matheke, III,
Acting Associate Administrator for Enforcement.
[FR Doc. 2023-18020 Filed 8-21-23; 8:45 am]
BILLING CODE 4910-59-P
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