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.

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, 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 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 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.

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. 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.

Arguments that only a small number of vehicles or items of motor vehicle equipment are affected also do not justify granting an inconsequentiality petition. 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.

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 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)