[Federal Register Volume 69, Number 220 (Tuesday, November 16, 2004)]
[Notices]
[Pages 67211-67212]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-25422]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA 2004-17902; Notice 2]


Volkswagen of America, Inc., Grant of Petition for Decision of 
Inconsequential Noncompliance

    Volkswagen of America, Inc. (Volkswagen) has determined that 
certain vehicles that were produced by Volkswagen AG and AUDI AG in 
2004 do not comply with S4.2.2(a) of 49 CFR 571.114, Federal Motor 
Vehicle Safety Standard (FMVSS) No. 114, ``Theft protection.'' Pursuant 
to 49 U.S.C. 30118(d) and 30120(h), Volkswagen has petitioned for a 
determination that this noncompliance is inconsequential to motor 
vehicle safety and has filed an appropriate report pursuant to 49 CFR

[[Page 67212]]

part 573, ``Defect and Noncompliance Reports.'' Notice of receipt of a 
petition was published, with a 30-day comment period, on May 28, 2004, 
in the Federal Register (69 FR 30745). NHTSA received no comments.
    Approximately 47,962 model year 2004 vehicles are affected 
including approximately 37,663 Touareg, approximately 2,268 Phaeton and 
approximately 8,031 Audi A8L vehicles. S4.2.2(a) of FMVSS No. 114 
requires that

* * * provided that steering is prevented upon the key's removal, 
each vehicle * * * [which has an automatic transmission with a 
``park'' position] may permit key removal when electrical failure of 
this [key-locking] system * * * occurs or may have a device which, 
when activated, permits key removal.

In the affected vehicles, the steering does not lock when the key is 
removed using the override system provided to permit key removal when 
the transmission is not in the ``park'' position.
    Volkswagen believes the noncompliance is inconsequential to motor 
vehicle safety and that no corrective action is warranted. Volkswagen 
explained:

In the Volkswagen and Audi car lines for which this petition is 
submitted, the ability to remove the key with the override system is 
the priority security and safety feature (to the extent that it 
prevents a stolen vehicle from being driven) because the vehicles 
are equipped with an electronic immobilizer which prevents starting 
of the vehicle unless the electronically coded key provided for that 
vehicle is used. The code to start the engine and activate the fuel 
and ignition system is embedded in the engine control module and 
therefore cannot be bypassed or defeated. If the key cannot be 
removed in the event of vehicle power failure, the owner will not be 
able to lock the vehicle and the car can be started and driven by 
anyone who can get it repaired, which is as simple as a jump start.

    Volkswagen explained that when there is no vehicle power failure 
and the override device is used to remove the key when the transmission 
is not in ``park,'' there is no risk to motor vehicle safety because 
this would occur only in a repair shop or under supervised conditions 
when the vehicle must be moved but it is desired to remove the key for 
security reasons. Volkswagen stated that in this case, the electronic 
immobilizer provides anti-theft protection and the steering lock is not 
significant.
    The agency agrees with Volkswagen. The owner's manuals for these 
vehicles state as follows:

There is a chip in the [ignition] key. It automatically deactivates 
the immobilizer when the key is inserted into the ignition lock. The 
electronic immobilizer is automatically activated when you take the 
key out of the ignition lock.

    NHTSA issued an interpretation letter to an unnamed person on 
September 24, 2004, which stated in pertinent part as follows:

The engine control module immobilizer described in your letter 
satisfies the requirements of S4.2(b) because it locks out the 
engine control module if an attempt is made to start the vehicle 
without the correct key or to bypass the electronic ignition system. 
When the engine control module is locked, the vehicle is not capable 
of forward self-mobility because it is incapable of moving forward 
under its own power.

    Theft protection of vehicles is addressed under S4.2 of the 
standard. Section 4.2(b) can be met by preventing either steering or 
forward self-mobility. Therefore, an equivalent level of theft 
protection is provided by ``either steering or forward self-mobility.''
    NHTSA amended FMVSS No. 114 in 1990 to require that vehicles with 
an automatic transmission and a ``park'' position be shifted to 
``park'' or become locked in park before the key can be removed to 
reduce incidents of vehicle rollaway. S4.2.2(a) was added in 1991 to 
permit key removal when an electrical failure occurred and the 
transmission could not be manually shifted into park, provided that 
steering was prevented for theft protection.
    The forward self-mobility feature does not prevent vehicle rollaway 
by itself. However, the parking brake used in combination with the 
forward self-mobility feature will prevent rollaway. The owner's 
manuals for these vehicles include the following information:

The parking brake can be used to prevent the vehicle from moving 
unintentionally. Always apply the parking brake when you leave your 
vehicle and when you park.

    If an electrical failure occurs when the transmission is not in 
park, the driver may be able to remove the ignition key using the 
information in the owner's manual, but will more likely contact the 
manufacturer's hotline or dealer for assistance. Volkswagen is 
instructing its hotline staff and advising its dealers via a service 
bulletin to ask the caller to ensure that the parking brake is firmly 
applied before attempting to remove the key.
    In consideration of the foregoing, NHTSA has decided that the 
petitioner has met its burden of persuasion that the noncompliance 
described 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, the 
noncompliance.

    Authority: 49 U.S.C. 30118, 30120; delegations of authority at 
CFR 1.50 and 501.8.

    Issued on: November 10, 2004.
Kenneth N. Weinstein,
Associate Administrator for Enforcement.
[FR Doc. 04-25422 Filed 11-15-04; 8:45 am]
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