Products Liability Law Daily Wrap Up, NOTICES—MOTOR VEHICLES—NHTSA grants Porsche’s inconsequential noncompliance petition, (Oct 25, 2017)

By Colleen Kave, J.D.

The National Highway Traffic Safety Administration (NHTSA) granted Porsche Cars North America, Incorporated’s (PCNA) petition for a determination of inconsequential noncompliance in relation to approximately 17 model year 2017 Porsche 911 Turbo and Porsche 911 Turbo Cabriolet motor vehicles, manufactured between May 31, 2016, and January 11, 2017, that do not fully comply with paragraph S5.2.1 of FMVSS No. 101, Controls and Displays, and paragraph S5.5.5 of FMVSS No. 135, Light Vehicle Brake Systems (NHTSA Notice, 82 FR 49476, October 25, 2017).

In its petition (82 FR 17507, April 11, 2017), PCNA explained that the noncompliance is that the telltales used for Brake Warning, Park Brake Warning, and Antilock Braking System (ABS) failure warnings are displayed using International Organization for Standardization (ISO) symbols instead of the words "Brake" and "ABS" as required by paragraph S5.2.1 of FMVSS No. 101 and paragraph S5.5.5 of FMVSS No. 135.

The company stated its belief that the noncompliance is inconsequential to motor vehicle safety for the following reasons:

• The owner’s manual for the subject vehicles is written for multiple markets and depicts both the "BRAKE" and ISO symbol telltales for brake warning, as well as the "ABS" and ISO symbol telltales for ABS lamp.

• The ISO symbol for ABS lamp also contains the word "ABS," which is additionally embedded in a circle with two vertical lines. In case of an illumination of the ISO symbol, the malfunction display, located in the instrument cluster, will display an additional warning message that states "ABS/PSM failure. Drive with caution" and an initial warning chime will sound. Porsche believes that in the event the ISO ABS telltale is displayed, the driver would recognize a possible ABS malfunction.

• In the event the brake fluid level in the master cylinder reservoir is less than the recommended safe level, the ISO symbol will illuminate, and the multifunction display will display a warning message that states "Brake fluid level. Park vehicle safely" and an initial warning chime will sound. The message will stay continuously displayed, provided there are no other serious message(s), which would result in the messages being displayed in an alternating manner. If the brake fluid is still low on subsequent ignition key cycles, the message will be redisplayed in the message center.

• The parking brake in the subject vehicles is set by pushing a button labelled "P," which is located on the left hand side of the steering wheel. Once the parking brake is set, a red light indicator located in the button will illuminate. Thus, the application of the parking brake is in full view of the operator. When the parking brake is engaged, it illuminates the ISO symbol, and should the operator proceed with the parking brake engaged, the parking brake releases automatically if the following prerequisites are fulfilled: the engine is running; the driver’s door is closed; the driver’s seat belt is fastened. If one of these prerequisites is not fulfilled, the electric parking brake is not automatically released when the operator attempts to drive off. A message appears on the multifunction display, and the red light indicator in the button as well as the ISO symbol for the brake will flash.

• In all cases, the ISO symbols for the brake and ABS telltale illuminate and remain illuminated in accordance with the requirements of FMVSS No. 135.

• Porsche is unaware of any field or owner complaints regarding the issue of noncompliant telltales.

NHTSA’s decision. The agency found that the subject noncompliances on these specific vehicles—use of the ISO symbol for low brake fluid and parking brake actuation and ABS malfunction instead of the required words—are inconsequential to motor vehicle safety. Primarily, NHTSA based its conclusion on the fact that multiple sources of information are simultaneously activated to properly warn the driver of the conditions. In other words, illumination of each ISO symbol is accompanied by multiple redundant operator notifications, including messages on an instrument cluster display and audible chimes. Additionally, the agency noted that drivers have, over time, become increasingly familiar with ISO symbol meaning, as many ISO symbols have been used on U.S.-certified vehicles in conjunction with the required text. Therefore, ISO symbol usage for these specific vehicles is unlikely to lead to any misunderstanding, especially since other sources of correct information beyond the provided telltales are available. For these reasons, NHTSA determined that PCNA met its burden of persuasion that the FMVSS Nos. 101 and 135 noncompliances are inconsequential as they relate to motor vehicle safety and granted its petition.

Companies: Porsche Cars North America, Inc. (PCNA)

RegulatoryActivity: NoticesFR MotorVehiclesNews