Products Liability Law Daily Wrap Up, NOTICES—MOTOR VEHICLES—NHTSA grants Volkswagen’s inconsequential noncompliance petition relating to Audi, Cabriolet vehicles, (Feb 23, 2022)

By WK Editorial Staff

The agency determined that the lack of a turn signal pilot indicator flash rate change in the subject vehicles is inconsequential to motor vehicle safety.

The National Highway Traffic Safety Administration (NHTSA) granted a petition for a determination of inconsequential noncompliance filed by Volkswagen Group of America, Inc. relating to approximately 81,831 model year (MY) 2015-2016 Audi A3, S3 Sedan, and A3 Cabriolet motor vehicles manufactured between November 28, 2013, and July 28, 2016, that do not comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 108, Lamps, Reflective Devices, and Associated Equipment. The petition was filed in July 2019 [see Products Liability Law Daily’s July 11, 2019 analysis]. NHTSA received one comment on the petition (NHTSA Notice, 87 FR 3380, January 21, 2022).

Noncompliance. Volkswagen explained that the noncompliance is that the subject vehicles are equipped with turn signal pilot indicators that do not meet the flashing rate as required by paragraph S9.3.6 of FMVSS No. 108. Specifically, the left turn signal indicator does not have a significant change in the flashing rate when the left rear turn signal LED array becomes inoperative. Under paragraph S9.3.6 of FMVSS No. 108, failure of one or more turn signal lamps-such that the minimum photometric performance specified in Table VI or VII of FMVSS No. 108 is not being met-must be indicated by the turn signal pilot indicator by a “steady on,” “steady off,” or by a significant change in the flashing rate.

Volkswagen’s petition. In its petition, Volkswagen asserted that the noncompliance is inconsequential as it relates to motor vehicle safety for the following reasons:

• The driver receives two different indicator warnings that the rear brake light is inoperative in the instrument cluster immediately upon failure of the turn signal lamp to comply with the photometry requirements of FMVSS No. 108. This happens because the brake light and indicator light/turn signal are combined.

• The subject condition-the lack of a turn signal pilot indicator flash rate change-is limited to the condition in which the outermost left rear turn signal lamp fails.

• In the case of LED array failure, both the brake light and indicator light/turn signal become inoperative. Should the required left turn signal become inoperative, other auxiliary left turn signal lights located on the trunk and the left side mirror are still operational. Additionally, the back-up lamp in the left rear tail lamp assembly, the left brake light in the trunk lid assembly, and the center high mount stop lamp will remain operational.

Comment received. NHTSA received one comment from an individual who believed that Volkswagen's reasoning was unclear and that NHTSA should request more information from Volkswagen or deem the noncompliance consequential. The commenter said, among other things, that it is unclear as to whether the “two different indicator warnings in the instrument cluster” are compliant and that a redundancy should not be considered an appropriate substitute for a well-functioning, compliant failure indicator that's required by the FMVSS.

NHTSA’s analysis. NHTSA found the following considerations to be most relevant to its decision:

• While the turn signal pilot indicator does not change in flash rate when the left outboard turn signal lamp fails to meet the photometric requirements, the subject vehicles provide the drivers an alternative method of notification. According to Volkswagen's petition, the noncompliance in the subject vehicles is limited to when the left rear outboard turn signal lamp fails, and if the left inboard turn signal lamp should fail, the turn signal pilot indicator will function. Given these conditions, the noncompliance creates a scenario in which a failure in the left outboard turn signal lamp will not activate the “fast flash” in the pilot indicator. While the driver is not alerted to a failure of the required turn signal lamp by means of a change in the flash rate of the turn signal pilot indicator lamp, if both the required turn signal lamp and the auxiliary turn signal lamp fail, the driver will be alerted by the means specified in the standard. In the event this inboard turn signal lamp should fail, the turn signal pilot indicator will alert the driver.

• In addition, Volkswagen has provided at least two other warning lights that illuminate to make the driver aware of the failure. A warning light will illuminate at vehicle start-up or when the failure occurs while the vehicle is being driven. There also will be a constant “bulb out” indicator in the central information display while the turn signal lamp is inoperative. Additionally, if the left outboard turn signal lamp is out, all other required lamps still operate as designed.

In response to the public comment stating that “a redundancy should not be considered an appropriate substitute for a well-functioning, compliant failure indicator that's required by the FMVSS,” NHTSA agrees that an alternative method of notification is not a substitute for complying with an FMVSS. However, NHTSA has recently granted other petitions such as those submitted by Mack Trucks Inc. and Volvo Trucks North America in which an alternative method of notification was a factor considered in granting the petition. While manufacturers are not permitted to knowingly certify a vehicle that does not comply with the FMVSS, NHTSA can consider whether such an alternative method of performance is a mitigating factor when determining the effect of the noncompliance on safety.

Here, a failure of the left rear outboard turn signal will result in the illumination of a steady burning general warning telltale, while a failure of the left rear inboard turn signal will produce a compliant “fast flash” warning. Thus, some form of notification always will result from a failure, and an FMVSS No. 108-compliant warning will occur if both rear left turn signal lamps fail. Based on the specifics of this case, NHTSA determined that the alternative warning provides adequate notice to drivers that the left rear turn signal lamp has failed such that the noncompliance is inconsequential to motor vehicle safety.

NHTSA’s decision. NHTSA concluded that Volkswagen met its burden of persuasion that the FMVSS No. 108 noncompliance is inconsequential as it relates to motor vehicle safety. Accordingly, the agency granted the automaker’s petition, exempting Volkswagen from the obligation to provide notification of, and a remedy for, the subject noncompliance. NHTSA further noted that the decision applies only to the subject vehicles that Volkswagen no longer controlled at the time it determined that the noncompliance existed. However, the agency stated, the granting of the petition does not 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.

Companies: Volkswagen Group of America, Inc.

RegulatoryActivity: NoticesFR MotorVehiclesNews MotorEquipmentNews