Ford Motor Company; Denial of Petition for Inconsequentiality, 6951-6963 [2021-01540]
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Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices
NS states the reason for the proposed
discontinuance is that operations no
longer require TCS.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov.
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested parties desire
an opportunity for oral comment and a
public hearing, they should notify FRA,
in writing, before the end of the
comment period and specify the basis
for their request.
All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Website: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation
(DOT), 1200 New Jersey Ave. SE, W12–
140, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey
Ave. SE, Room W12–140, Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
Holidays.
Communications received by March
11, 2021 will be considered by FRA
before final action is taken. Comments
received after that date will be
considered if practicable.
Anyone can search the electronic
form of any written communications
and comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
document, if submitted on behalf of an
association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits
comments from the public to better
inform its processes. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to www.regulations.gov, as
described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at https://
www.transportation.gov/privacy. See
also https://www.regulations.gov/
privacyNotice for the privacy notice of
regulations.gov.
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18:31 Jan 22, 2021
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Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety,
Chief Safety Officer.
[FR Doc. 2021–01423 Filed 1–22–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
[Docket Number FRA–2021–0003]
Notice of Application for Approval of
Discontinuance or Modification of a
Railroad Signal System
Under part 235 of title 49 Code of
Federal Regulations (CFR) and 49 U.S.C.
20502(a), this document provides the
public notice that on January 5, 2021,
Norfolk Southern Corporation (NS)
petitioned the Federal Railroad
Administration (FRA) seeking approval
to discontinue or modify a signal
system. FRA assigned the petition
Docket Number FRA–2021–0003.
Applicant: Norfolk Southern
Corporation, Tommy A. Phillips,
Senior Director—C&S Engineering,
1200 Peachtree Street NE, Atlanta, GA
30309
Specifically, NS requests permission
to discontinue an automatic block signal
(ABS) and traffic control system (TCS)
on the S line from milepost (MP) S25.7,
Statesville, North Carolina, to MP
S145.0, control point (CP) Craggy, on
the Coastal Division. This includes CPs
at Biltmore, Mitchell, Russell, and
Murphy Junction slide fences, and 52
automatic signals. The main track
between S25.7 and S145.0 will be
converted to NS Rule 171 operation. An
automatic signal at MP S26.2 will be
converted to an operable approach
signal. The signaled sidings within the
application limits will be made noncontrolled, other than main track.
NS states the reason for the proposed
discontinuance is that operations no
longer require ABS or TCS.
A copy of the petition, as well as any
written communications concerning the
petition, is available for review online at
www.regulations.gov.
Interested parties are invited to
participate in these proceedings by
submitting written views, data, or
comments. FRA does not anticipate
scheduling a public hearing in
connection with these proceedings since
the facts do not appear to warrant a
hearing. If any interested parties desire
an opportunity for oral comment and a
public hearing, they should notify FRA,
in writing, before the end of the
comment period and specify the basis
for their request.
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All communications concerning these
proceedings should identify the
appropriate docket number and may be
submitted by any of the following
methods:
• Website: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: Docket Operations Facility,
U.S. Department of Transportation
(DOT), 1200 New Jersey Ave. SE, W12–
140, Washington, DC 20590.
• Hand Delivery: 1200 New Jersey
Ave. SE, Room W12–140, Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
Holidays.
Communications received by March
11, 2021 will be considered by FRA
before final action is taken. Comments
received after that date will be
considered if practicable.
Anyone can search the electronic
form of any written communications
and comments received into any of our
dockets by the name of the individual
submitting the comment (or signing the
document, if submitted on behalf of an
association, business, labor union, etc.).
Under 5 U.S.C. 553(c), DOT solicits
comments from the public to better
inform its processes. DOT posts these
comments, without edit, including any
personal information the commenter
provides, to www.regulations.gov, as
described in the system of records
notice (DOT/ALL–14 FDMS), which can
be reviewed at https://
www.transportation.gov/privacy. See
also https://www.regulations.gov/
privacyNotice for the privacy notice of
regulations.gov.
Issued in Washington, DC.
John Karl Alexy,
Associate Administrator for Railroad Safety,
Chief Safety Officer.
[FR Doc. 2021–01421 Filed 1–22–21; 8:45 am]
BILLING CODE 4910–06–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
[Docket No. NHTSA–2017–0093]
Ford Motor Company; Denial of
Petition for Inconsequentiality
National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Denial of petition.
AGENCY:
On July 10, 2017, Takata
Corporation (‘‘Takata’’) filed a defect
information report (‘‘DIR’’) in which it
determined that a safety-related defect
SUMMARY:
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exists in phase-stabilized ammonium
nitrate (‘‘PSAN’’) driver-side air bag
inflators that it manufactured with a
calcium sulfate desiccant and supplied
to Ford Motor Company (‘‘Ford’’),
Mazda North American Operations
(‘‘Mazda’’), and Nissan North America
Inc. (‘‘Nissan’’) for use in certain
vehicles. Ford petitioned the Agency for
a decision that the equipment defect
determined to exist by Takata is
inconsequential as it relates to motor
vehicle safety in the Ford vehicles
affected by Takata’s DIR, and that Ford
should therefore be relieved of its
notification and remedy obligations
under the National Traffic and Motor
Vehicle Safety Act of 1966 and its
applicable regulations. After reviewing
the petition, NHTSA has concluded that
Ford has not met its burden of
establishing that the defect is
inconsequential to motor vehicle safety,
and denies the petition.
For further information
about this decision, contact Stephen
Hench, Office of Chief Counsel,
National Highway Traffic Safety
Administration, 1200 New Jersey
Avenue SE, W41–229, Washington, DC
20590, (Tel. 202.366.2262).
For general information about
NHTSA’s investigation into Takata air
bag inflator ruptures and the related
recalls, visit https://www.nhtsa.gov/
takata.
ADDRESSES:
SUPPLEMENTARY INFORMATION:
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I. Background
The Takata air bag inflator recalls
(‘‘Takata recalls’’) are the largest and
most complex vehicle recalls in U.S.
history. These recalls currently involve
19 vehicle manufacturers and
approximately 67 million Takata air bag
inflators in tens of millions of vehicles
in the United States alone. The recalls
are due to a design defect, whereby the
propellant used in Takata’s air bag
inflators degrades after long-term
exposure to high humidity and
temperature cycling. During air bag
deployment, this propellant degradation
can cause the inflator to over-pressurize,
causing sharp metal fragments (like
shrapnel) to penetrate the air bag and
enter the vehicle compartment. To date,
these rupturing Takata inflators have
resulted in the deaths of 18 people
across the United States 1 and over 400
alleged injuries, including lacerations
and other serious consequences to
occupants’ face, neck, and chest areas.
1 Globally, including the United States, the deaths
of at least 30 people are attributable to these
rupturing Takata inflators.
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In May 2015, NHTSA issued, and
Takata agreed to, a Consent Order,2 and
Takata filed four defect information
reports (‘‘DIRs’’) 3 for inflators installed
in vehicles manufactured by twelve 4
vehicle manufacturers. Recognizing that
these unprecedented recalls would
involve many challenges for vehicle
manufacturers and consumers, NHTSA
began an administrative proceeding in
June 2015 providing public notice and
seeking comment (Docket Number
NHTSA–2015–0055). This effort
culminated in NHTSA’s establishment
of a Coordinated Remedy Program
(‘‘Coordinated Remedy’’) in November
2015.5 The Coordinated Remedy
prioritizes and phases the various
Takata recalls not only to accelerate the
repairs, but also—given the large
number of affected vehicles—to ensure
that repair parts are available to fix the
highest-risk vehicles first.6
Under the Coordinated Remedy,
vehicles are prioritized for repair parts
based on various factors relevant to the
safety risk—primarily on vehicle model
year (MY), as a proxy for inflator age,
and geographic region. In the early
stages of the Takata inflator recalls,
affected vehicles were categorized as
belonging to one of two regions: The
2 The May 2015 Consent Order is available at:
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/
documents/consent-order-takata-05182015_0.pdf.
3 Recall Nos. 15E–040, 15E–041, 15E–042, and
15E–043.
4 The twelve vehicle manufacturers affected by
the May 2015 recalls were: BMW of North America,
LLC; FCA US, LLC (formerly Chrysler); Daimler
Trucks North America, LLC; Daimler Vans USA,
LLC; Ford Motor Company; General Motors, LLC;
American Honda Motor Company; Mazda North
American Operations; Mitsubishi Motors North
America, Inc.; Nissan North America, Inc.; Subaru
of America, Inc.; and Toyota Motor Engineering and
Manufacturing.
5 See Notice of Coordinated Remedy Program
Proceeding for the Replacement of Certain Takata
Air Bag Inflators, 80 FR 32197 (June 5, 2015).
The Coordinated Remedy Order, which
established the Coordinated Remedy, is available at:
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/
documents/nhtsa-coordinatedremedyordertakata.pdf. The Third Amendment to the
Coordinated Remedy Order incorporated additional
vehicle manufacturers, that were not affected by the
recalls at the time that NHTSA issued the CRO into
the Coordinated Remedy, and is available at:
https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/
documents/final_public_-_third_amendment_to_
the_coordinated_remedy_order_with_annex_acorrected_12.16.16.pdf. The additional affected
vehicle manufacturers are: Ferrari North America,
Inc.; Jaguar Land Rover North America, LLC;
McLaren Automotive, Ltd.; Mercedes-Benz US,
LCC; Tesla Motors, Inc.; Volkswagen Group of
America, Inc.; and, per Memorandum of
Understanding dated September 16, 2016, Karma
Automotive on behalf of certain Fisker vehicles.
6 See Coordinated Remedy Order at 15–18, Annex
A; Third Amendment to the Coordinated Remedy
Order at 14–17. These documents, among other
documents related to the Takata recalls discussed
herein, are available on NHTSA’s website at https://
www.nhtsa.gov/takata.
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High Absolute Humidity (‘‘HAH’’)
region (largely inclusive of Gulf Coast
states and tropical island states and
territories), or the non-HAH region
(inclusive of the remaining states and
the District of Columbia). On May 4,
2016, NHTSA issued, and Takata agreed
to, an amendment to the November 3,
2015 Consent Order (‘‘ACO’’), wherein
these geographic regions were refined
based on improved understanding of the
risk, and were then categorized as Zones
A, B, and C. Zone A encompasses the
higher risk HAH region as well as
certain other states,7 Zone B includes
states with more moderate climates (i.e.,
lower heat and humidity than Zone A),8
and Zone C includes the coolertemperature States largely located in the
northern part of the country.9
While the Takata recalls to date have
been limited almost entirely to Takata
PSAN inflators that do not contain a
desiccant (a drying agent)—i.e., ‘‘nondesiccated’’ inflators—under a
November 3, 2015 Consent Order issued
by NHTSA and agreed to by Takata,
Takata is required to test its PSAN
inflators that do contain a desiccant—
i.e., ‘‘desiccated’’ inflators—in
cooperation with vehicle manufacturers
‘‘to determine the service life and safety
of such inflators and to determine
whether, and to what extent, these
inflator types suffer from a defect
condition, regardless of whether it is the
same or similar to the conditions at
issue’’ in the DIRs Takata had filed for
its non-desiccated PSAN inflators.10
In February 2016, NHTSA requested
Ford’s assistance in evaluating Takata
calcium-sulfate desiccated PSDI–5
driver-side air bag inflators, to which
Ford agreed. In June 2016, Ford and
Takata began a field-recovery program
to evaluate Takata calcium-sulfate
desiccated PSDI–5 driver-side air bag
inflators that were original equipment in
7 Zone A comprises the following U.S. states and
jurisdictions: Alabama, California, Florida, Georgia,
Hawaii, Louisiana, Mississippi, South Carolina,
Texas, Puerto Rico, American Samoa, Guam, the
Northern Mariana Islands (Saipan), and the U.S.
Virgin Islands. Amendment to November 3, 2015
Consent Order at ¶ 7.a.
8 Zone B comprises the following U.S. states and
jurisdictions: Arizona, Arkansas, Delaware, District
of Columbia, Illinois, Indiana, Kansas, Kentucky,
Maryland, Missouri, Nebraska, Nevada, New Jersey,
New Mexico, North Carolina, Ohio, Oklahoma,
Pennsylvania, Tennessee, Virginia, and West
Virginia. Amendment to November 3, 2015 Consent
Order at ¶ 7.b.
9 Zone C comprises the following U.S. states and
jurisdictions: Alaska, Colorado, Connecticut, Idaho,
Iowa, Maine, Massachusetts, Michigan, Minnesota,
Montana, New Hampshire, New York, North
Dakota, Oregon, Rhode Island, South Dakota, Utah,
Vermont, Washington, Wisconsin, and Wyoming.
Amendment to November 3, 2015 Consent Order at
¶ 7.c.
10 Consent Order ¶ 28.
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MY 2007–2008 Ford Ranger vehicles in
Florida, Michigan, and Arizona.11
Nissan also initiated a similar fieldrecovery program for its Versa vehicles
in March 2016.12 By January 2017, a
very limited number of samples from
Ford had been recovered and tested.13
In March 2017, Takata and Ford met to
review the field data collected from the
inflators returned by Ford and Nissan.14
Between March and June 2017,
additional Ford inflators were subjected
to live dissection, which included
chemical and dimensional propellant
analyses, as well as ballistic testing.15
Also in June, Takata reviewed with Ford
and NHTSA field-return data from Ford
inflators.16 Ford then met with NHTSA
on July 6, 2017 to discuss the data
collected to date, as well as an
expansion plan for evaluating Takata
calcium-sulfate desiccated PSDI–5
driver-side air bag inflators.
Takata analyzed 423 such inflators
from the Ford program—as well as 895
such inflators from the Nissan
program.17 After a review of field-return
data, on July 10, 2017, Takata,
determining that a safety-related defect
exists, filed a DIR for calcium-sulfate
desiccated PSDI–5 driver-side air bag
inflators that were produced from
January 1, 2005 to December 31, 2012
and installed as original equipment on
certain motor vehicles manufactured by
Ford (the ‘‘covered Ford inflators’’),18 as
well as calcium-sulfate desiccated
PSDI–5 driver-side air bag inflators for
those same years of production installed
as original equipment on motor vehicles
manufactured by Nissan (the ‘‘covered
Nissan inflators’’) and Mazda (the
11 See also Recall No. 17E–034. Later, under
Paragraph 43 of the Third Amendment to the
Coordinated Remedy Order (‘‘ACRO’’), NHTSA
ordered each vehicle manufacturer ‘‘with any
vehicle in its fleet equipped with a desiccated
PSAN Takata inflator’’ (and not using or planning
to use such an inflator as a final remedy) to develop
a written plan describing ‘‘plans to confirm the
safety and/or service life’’ of desiccated PSAN
Takata inflators used in its fleet. ACRO ¶ 43. Such
plans were to include coordination with Takata for
parts recovery from fleet vehicles, testing, and
anticipated/future plans ‘‘to develop or expand
recovery and testing protocols of the desiccated
PSAN inflators.’’ Id.
12 Recall No. 17V–449. The specific Takata
calcium-sulfate desiccated PSDI–5 driver-side air
bag inflators installed in these Nissan Versa
vehicles are a different variant than those installed
in the Ford and Mazda vehicles. There are several
differences in design between the variant installed
in Nissan vehicles and the variants installed in the
Ford and Mazda vehicles, which are discussed
further below.
13 Recall No. 17E–034.
14 Id.
15 Id.
16 Id.
17 See Recall No. 17V–449.
18 These covered Ford inflators are identified by
the prefixes ZN and ZQ.
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‘‘covered Mazda inflators’’)
(collectively, the ‘‘covered inflators’’).19
As described further below, the
propellant tablets in these inflators may
experience density reduction over time,
which could result in the inflator
rupturing, at which point ‘‘metal
fragments could pass through the air bag
cushion material, which may result in
injury or death to vehicle occupants.’’ 20
Takata’s DIR filing triggered Ford’s
obligation to file a DIR for its affected
vehicles.21 Ford filed a corresponding
DIR, informing NHTSA that it intended
to file a petition for
inconsequentiality.22 Ford then
petitioned the Agency, under 49 U.S.C.
30118(d), 30120(h), and 49 CFR part
556, for a decision that, because
Takata’s analysis of the covered Ford
inflators does not show propellant
tablet-density degradation, or increased
inflation pressure, and certain inflator
design differences exist between the
covered Ford inflators and the covered
Nissan inflators, the equipment defect
determined to exist by Takata is
inconsequential as it relates to motor
vehicle safety in the Ford vehicles
affected by Takata’s DIR.23 In addition,
citing its commitment to further
investigation, Ford stated that it was
expanding its acquisition, testing, and
analysis of the covered Ford inflators,
and requested that the Agency allow
Ford until March 31, 2018 to complete
certain testing and analysis before
deciding on the Petition.24
In a Notice published in the Federal
Register on November 16, 2017, NHTSA
acknowledged its receipt of Ford’s
Petition, opened a public comment
period on the Petition to expire on
December 18, 2017, and denied Ford’s
request that the Agency allow Ford until
March 31, 2018 to complete certain
testing and analysis before the Agency
19 Recall
No. 17E–034.
20 Id.
21 See 49 U.S.C. 30102(b)(1)(F); 49 CFR part 573;
November 3, 2015 Coordinated Remedy Order
¶¶ 45–46. Under 49 CFR 573.5(a), a vehicle
manufacturer is responsible for any safety-related
defect determined to exist in any item of original
equipment. See also 49 U.S.C. 30102(b)(1)(C).
22 Ford Petition for a Determination of
Inconsequentiality and Request for Deferral of
Determination Regarding Certain Ford Vehicles
Equipped with Takata PSDI–5 Desiccated Driver
Airbag Inflators (August 16, 2017) (‘‘Petition’’)
(cover letter).
23 Id. at 1, 11–16. Ford also suggested differences
in ‘‘vehicle environment’’ between affected Ford
and Nissan vehicles as a potential explanation for
inflator degradation-risk differences between the
covered Ford inflators and the covered Nissan
inflators. See Petition at 2. However, Ford did not
elaborate on this suggestion elsewhere in its
Petition. See id. at 14–16 (focusing on design
differences between the covered Ford inflators and
covered Nissan inflators).
24 Id. at 16–20.
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decided on the Petition.25 NHTSA
received four comments in response to
this Notice, none of which advocated
granting Ford’s Petition. Two individual
commenters appeared to express general
discontent with the state of the Takata
recalls for non-desiccated PSAN
inflators, and a third individual simply
stated opposition to Ford’s Petition
without extensive substantive
explanation.
The fourth commenter, the Center for
Auto Safety (‘‘CAS’’), emphasized the
dangers that Takata air bag inflators can
pose, including the PSDI–5 inflators at
issue in Ford’s Petition. CAS also stated
a concern that granting Ford’s Petition
‘‘would effectively serve as a decision
that these inflators are exempt from
future recall should additional PSAN
testing prove a danger.’’ 26 Specific to
the substance of Ford’s Petition, CAS
commented that the Petition ‘‘contains
unsupported assertions as fact, and . . .
no corresponding data or scientific
studies confirming the safety of the
PSDI–5 airbag inflators,’’ and stated that
‘‘[w]here the petition does reference the
testing conducted by Takata on Ford
inflators, there is little evidence
provided to suggest that these inflators
will continue to perform after years of
exposure.’’ 27 CAS concluded that, ‘‘[a]t
best, the testing performed by Takata
suggests that propellant degradation and
inflator chamber pressure have not yet
developed the potential to harm
occupants after ten years in service,’’
and that NHTSA should deny Ford’s
Petition.28
On October 26, 2018, at an in-person
meeting with NHTSA, Ford shared
additional information in support of its
Petition, including internal analyses,
test methodologies, and results of tests
performed by Ford and outside parties
on behalf of Ford or at Ford’s request.29
At a subsequent virtual meeting with
NHTSA on November 4, 2020, Ford
shared further information in support of
its Petition related to additional work
done by a third party since October
2018.30
II. Classes of Motor Vehicles Involved
Ford’s Petition involves
approximately 3.04 million light
25 See
82 FR 53561.
at 2.
26 Comments
27 Id.
28 Id.
at 2–3 (emphasis in original).
submitted an accompanying slide deck,
hereinafter ‘‘October 2018 Presentation.’’ This
presentation is available on the public docket.
The written materials Ford submitted do not
explicitly identify one of these third parties, which
his hereinafter referred to as ‘‘Third Party.’’
30 Ford submitted an accompanying slide deck,
hereinafter ‘‘November 2020 Presentation.’’ This
presentation is available on the public docket.
29 Ford
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vehicles that contain the covered Ford
inflators. These vehicles are: 31
• Ford Ranger (MY 2007–2011) (build
dates January 9, 2006 through December
16, 2011);
• Ford Fusion (MY 2006–2012) (build
dates March 15, 2005 through July 29,
2012);
• Lincoln Zephyr/MKZ (MY 2006–
2012) (build dates March 15, 2005
through July 29, 2012);
• Mercury Milan (MY 2006–2011)
(build dates March 15, 2005 through
June 4, 2011);
• Ford Edge (MY 2007–2010) (build
dates June 15, 2006 through July 12,
2010); and
• Lincoln MKX (MY 2007–2010)
(build dates June 15, 2006 through July
12, 2010).
III. Defect
The defect is present in Takata
calcium-sulfate desiccated PSDI–5
driver-side air bag inflators.32 According
to its DIR, Takata produced 2.7 million
of these defective inflators from January
1, 2005, to December 31, 2012.33 These
inflators are the earliest generation of
Takata desiccated PSAN inflators, and
were installed as original equipment in
vehicles sold by Ford, Mazda, and
Nissan.34 The evidence makes clear that
these inflators pose a significant safety
risk. In these inflators, ‘‘[t]he propellant
tablets . . . may experience an
alteration over time’’—specifically,
‘‘some of the inflators within the
population analyzed show a pattern of
propellant density reduction over time
that is understood to predict a future
risk of inflator rupture’’—‘‘which could
potentially lead to over-aggressive
combustion’’ when the air bag in which
they are installed deploys.35 This
‘‘could create excessive internal
pressure, which could result in the body
of the inflator rupturing upon
deployment.’’ 36 In the event of such a
rupture, ‘‘metal fragments could pass
through the air bag cushion material,
which may result in injury or death to
vehicle occupants.’’ 37 Rupture
potentiality may be influenced by
‘‘several years of exposure to persistent
conditions of high absolute humidity,’’
31 Petition
at 9–10 & cover letter thereto at 1.
No. 17E–034.
33 Id. The Agency notes that there is a
discrepancy between this figure of potentially
involved inflators cited in Takata’s DIR, and Ford’s
approximate volume of affected vehicles subject to
its petition (approximately 3.04 million). Recall
17E–034; Petition at 9–10 & cover letter thereto at
1. That discrepancy does not affect NHTSA’s
decision on Ford’s Petition.
34 Recall No. 17E–034.
35 Id.
36 Id.
37 Id.
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as well as other factors, including
‘‘manufacturing variability or vehicle
type.’’ 38
IV. Legal Background
The National Traffic and Motor
Vehicle Safety Act (the ‘‘Safety Act’’), 49
U.S.C. Chapter 301, defines ‘‘motor
vehicle safety’’ as ‘‘the performance of a
motor vehicle or motor vehicle
equipment in a way that protects the
public against unreasonable risk of
accidents occurring because of the
design, construction, or performance of
a motor vehicle, and against
unreasonable risk of death or injury in
an accident, and includes
nonoperational safety of a motor
vehicle.’’ 39 Under the Safety Act, a
manufacturer must notify NHTSA when
it ‘‘learns the vehicle or equipment
contains a defect and decides in good
faith that the defect is related to motor
vehicle safety,’’ or ‘‘decides in good
faith that the vehicle or equipment does
not comply with an applicable motor
vehicle safety standard.’’ 40 The act of
filing a notification with NHTSA is the
first step in a manufacturer’s statutory
recall obligations of notification and
remedy.41 However, Congress has
recognized that, under some limited
circumstances, a manufacturer may
petition NHTSA for an exemption from
the requirements to notify owners,
purchasers, and dealers and to remedy
the vehicles or equipment on the basis
that the defect or noncompliance is
inconsequential to motor vehicle
safety.42
‘‘Inconsequential’’ is not defined
either in the statute or in NHTSA’s
regulations, and so must be interpreted
based on its ‘‘ordinary, contemporary,
common meaning.’’ 43 The
inconsequentiality provision was added
to the statute in 1974, and there is no
indication that the plain meaning of the
term has changed since 1961—meaning
definitions used today are substantially
the same as those used in 1974.44 The
38 Id.
39 49
U.S.C. 30102(a)(9).
30118(c)(1). ‘‘[A] defect in original
equipment, or noncompliance of original
equipment with a motor vehicle safety standard
prescribed under this chapter, is deemed to be a
defect or noncompliance of the motor vehicle in or
on which the equipment was installed at the time
of delivery to the first purchaser.’’ 49 U.S.C.
30102(b)(1)(F).
41 Id. 30118–20.
42 Id. 30118(d), 30120(h); 49 CFR part 556.
43 See, e.g., Food Mktg. Institute v. Argus Leader
Media, 139 S. Ct. 2356, 2363 (2019) (quoting Perrin
v. United States, 444 U.S. 37, 42 (1979)).
44 See Public Law 93–492, Title I, § 102(a), 88
Stat. 1475 (Oct. 27, 1974); Webster’s Third New Int’l
Dictionary (principal copyright 1961) (defining
‘‘inconsequential’’ as ‘‘inconsequent;’ defining
40 Id.
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Cambridge Dictionary defines
‘‘inconsequential’’ to mean ‘‘not
important,’’ or ‘‘able to be ignored.’’ 45
Other dictionaries similarly define the
term as ‘‘lacking importance’’ 46 and
‘‘unimportant.’’ 47
The statutory context is also relevant
to the meaning of ‘‘inconsequential.’’ 48
The full text of the inconsequentiality
provision is:
On application of a manufacturer, the
Secretary shall exempt the manufacturer
from this section if the Secretary decides a
defect or noncompliance is inconsequential
to motor vehicle safety. The Secretary may
take action under this subsection only after
notice in the Federal Register and an
opportunity for any interested person to
present information, views, and arguments.49
As described above, the statute
defines ‘‘motor vehicle safety’’ to mean
‘‘the performance of a motor vehicle or
motor vehicle equipment in a way that
protects the public against unreasonable
risk of accidents . . . and against
unreasonable risk of death or injury in
an accident . . . .’’ 50 This is also
consistent with the overall statutory
purpose: ‘‘to reduce traffic accidents
and deaths and injuries resulting from
traffic accidents.’’ 51
The statute explicitly allows a
manufacturer to seek an exemption from
carrying out a recall on the basis that
either a defect or a noncompliance is
inconsequential to motor vehicle
safety.52 However, in practice,
substantially all inconsequentiality
petitions have related to
noncompliances, and it has been
extremely rare for a manufacturer to
seek an exemption in the case of a
defect. This is because a manufacturer
‘‘inconsequent’’ as ‘‘of no consequence,’’ ‘‘lacking
worth, significance, or importance’’).
The House Conference Report indicates that the
Department of Transportation planned to define
‘‘inconsequentiality’’ through a regulation;
however, it did not do so. See H.R. Rep. 93–1191,
1974 U.S.C.C.A.N. 6046, 6066 (July 11, 1974).
Instead, NHTSA issued a procedural regulation
governing the filing and disposition of petitions for
inconsequentiality, but which did not address the
meaning of the term ‘‘inconsequential.’’ 42 FR 7145
(Feb. 7, 1977). The procedural regulation, 49 CFR
part 556, has remained largely unchanged since that
time, and the changes that have been made have no
effect on the meaning of inconsequentiality.
45 https://dictionary.cambridge.org/us/dictionary/
english/inconsequential.
46 https://ahdictionary.com/word/
search.html?q=inconsequential.
47 https://www.merriam-webster.com/dictionary/
inconsequential.
48 See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560, 569–72 (2012) (considering ordinary
and technical meanings, as well as statutory
context, in determining meaning of a ‘‘interpreter’’
under 28 U.S.C. 1920(6)).
49 49 U.S.C. 30118(d), 30120(h).
50 Id. 30102(a)(9) (emphasis added).
51 Id. 30101.
52 Id. 30118(d), 30120(h).
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does not have a statutory obligation to
conduct a recall for a defect unless and
until it ‘‘learns the vehicle or equipment
contains a defect and decides in good
faith that the defect is related to motor
vehicle safety,’’ or NHTSA orders a
recall by making a ‘‘final decision that
a motor vehicle or replacement
equipment contains a defect related to
motor vehicle safety.’’ 53 Until that
threshold determination has been made
by either the manufacturer or the
Agency, there is no need for a statutory
exception on the basis that a defect is
inconsequential to motor vehicle safety.
And since a defect determination
involves a finding that the defect poses
an unreasonable risk to safety, asking
the Agency to make a determination that
a defect posing an unreasonable risk to
safety is inconsequential has heretofore
been almost unexplored.54
Given this statutory context, a
manufacturer bears a heavy burden in
petitioning NHTSA to determine that a
defect related to motor vehicle safety
(which necessarily involves an
unreasonable risk of an accident, or
death or injury in an accident) is
nevertheless inconsequential to motor
vehicle safety. In accordance with the
plain meaning of ‘‘inconsequential,’’ the
manufacturer must show that a risk
posed by a defect is not important or is
capable of being ignored. This
appropriately describes the actual
consequence of granting a petition as
well. The manufacturer would be
relieved of its statutory obligations to
notify vehicle owners and to remedy the
defect, and effectively to ignore the
defect as unimportant from a safety
perspective. Accordingly, the threshold
of evidence necessary for a
manufacturer to carry its burden of
persuasion that a defect is
inconsequential to motor vehicle safety
is difficult to satisfy. This is particularly
true where the defect involves a
potential failure of safety-critical
equipment, as is the case here.
The Agency necessarily determines
whether a defect or noncompliance is
inconsequential to motor vehicle safety
based on the specific facts before it. The
scarcity of defect-related
inconsequentiality petitions over the
course of the Agency’s history reflects
the heavy burden of persuasion, as well
as the general understanding among
regulated entities that the grant of such
relief would be quite rare. The Agency
has recognized this explicitly in the
53 Id.
30118(c)(1).
notes that the current petition is
different in that the inflators were declared
defective by the supplier of the airbag, and that
Ford’s defect notice was filed in response to the
supplier’s notice.
54 NHTSA
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past. For example, in 2002, NHTSA
stated that ‘‘[a]lthough NHTSA’s
empowering statute alludes to the
possibility of an inconsequentiality
determination with regard to a defect,
the granting of such a petition would be
highly unusual.’’ 55
Of the four known occasions in which
the Agency has previously considered
petitions contending that a defect is
inconsequential to motor vehicle safety,
the Agency has granted only one of the
petitions, nearly three decades ago, in a
vastly different set of circumstances.56
In that case, the defect was a
typographical error in the vehicle’s
gross vehicle weight rating (GVWR) that
had no impact on the actual ability of
the vehicle to carry an appropriate load.
NHTSA granted a motorcycle
manufacturer’s petition, finding that a
defect was inconsequential to motor
vehicle safety where the GVWR was
erroneously described as only 60 lbs.,
which error was readily apparent to the
motorcycle operator based upon both
common sense and the fact that the 330
lbs. front axle rating and 540 lbs. rear
axle rating were listed directly below
the GVWR on the same label.57
Moreover, the error did not actually
impact the ability of the motorcycle to
carry the weight for which it was
designed.58
On the other hand, NHTSA denied
another petition concerning a vehicle’s
weight label where there was a potential
safety impact. NHTSA denied that
petition from National Coach
Corporation on the basis that the rear
gross axle weight rating (RGAWR) for its
buses was too low and could lead to
overloading of the rear axle if the buses
were fully loaded with passengers.59
NHTSA rejected arguments that most of
the buses were not used in situations
where they were fully loaded with
passengers and that there were no
complaints.60 NHTSA noted that its
Office of Defects Investigation had
conducted numerous investigations
concerning overloading of suspensions
that resulted in recalls, that other
55 Letter from J. Glassman, NHTSA, to V. Kroll,
Adaptive Driving Alliance (Sept. 23, 2002), https://
www.nhtsa.gov/interpretations/ada3.
56 See id.
57 Suzuki Motor Co., Ltd.; Grant of Petition for
Inconsequential Defect, 47 FR 41458, 41459 (Sept.
20, 1982) and 48 FR 27635, 27635 (June 16, 1983).
58 Id.
59 Nat’l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517, 49517 (Nov.
1, 1982). NHTSA’s denial was erroneously titled
‘‘Denial of Petition for Inconsequential
Noncompliance’’; the discussion actually addressed
the issue as a defect. See id.; see also Nat’l Coach
Corp.; Receipt of Petition for Inconsequential
Defect, 47 FR 4190 (Jan. 28, 1982).
60 Id. at 49517–18.
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manufacturers had conducted recalls for
similar issues in the past, and that, even
if current owners were aware of the
issue, subsequent owners were unlikely
to be aware absent a recall.61
NHTSA also denied a petition
asserting that a defect was
inconsequential to motor vehicle safety
where the defect involved premature
corrosion of critical structure
components (the vehicle’s
undercarriage), which could result in a
crash or loss of vehicle control.62 Fiat
filed the petition preemptively,
following NHTSA’s initial decision that
certain Fiat vehicles contained a safetyrelated defect.63 In support of its
petition, Fiat argued that no crashes or
injuries resulted from components that
failed due to corrosion, and that owners
exercising due diligence had adequate
warning of the existence of the defect.64
NHTSA rejected those arguments and
both finalized its determination that
certain vehicles contained a safetyrelated defect (i.e., ordered a recall) and
found that the defect was not
inconsequential to motor vehicle
safety.65 NHTSA explained that the
absence of crashes or injuries was not
dispositive: ‘‘the possibility of an injury
or accident can reasonably be inferred
from the nature of the component
involved.’’ 66 NHTSA also noted that the
failure mode was identical to another
population of vehicles for which Fiat
was carrying out a recall.67 The Agency
rejected the argument that there was
adequate warning to vehicle owners,
explaining that the average owner does
not inspect the underbody of a car and
that interior corrosion may not be
visible.68
Most recently, the Agency denied a
petition asserting that a defect in nondesiccated Takata PSAN air bag inflators
61 Id.
at 49518.
Determination & Order Regarding Safety
Related Defects in the 1971 Fiat Model 850 and the
1970–74 Fiat Model 124 Automobiles Imported and
Distributed by Fiat Motors of N. Am., Inc.; Ruling
on Petition of Inconsequentiality, 45 FR 2134, 2137,
41 (Jan. 10, 1980).
63 Fiat Motors of N. Am., Inc.; Receipt of Petition
for Determination of Inconsequential Defect, 44 FR
60193, 60193 (Oct. 18, 1979); Fiat Motors Corp. of
N. Am.; Receipt of Petition for Determination of
Inconsequential Defect, 44 FR 12793, 12793 (Mar.
8, 1979).
64 See, e.g., 45 FR 2134, 2141 (Jan. 10, 1980).
65 Final Determination & Order Regarding Safety
Related Defects in the 1971 Fiat Model 850 and the
1970–74 Fiat Model 124 Automobiles Imported and
Distributed by Fiat Motors of N. Am., Inc.; Ruling
on Petition of Inconsequentiality, 45 FR 2137–41
(Jan. 10, 1980). Fiat also agreed to a recall of certain
of the vehicles, and NHTSA found that Fiat did not
reasonably meet the statutory recall remedy
requirements. Id. at 2134–37.
66 Id. at 2139.
67 Id.
68 Id. at 2140.
62 Final
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was inconsequential to motor vehicle
safety, where the defect involved the
degradation of inflator propellant that
could cause the inflator to overpressurize during air bag deployment—
causing metal fragments to penetrate the
air bag and enter the vehicle
compartment toward vehicle
occupants.69 In support of this petition
and its argument that the inflators at
issue were not at risk of rupture—being
‘‘more resilient’’ to rupture than other
Takata PSAN inflators—General Motors
made arguments and submitted
evidence regarding inflator design
differences and vehicle features, testing
and field data analyses, inflator aging
studies, predictive modeling, risk
assessments, and potential risk created
by conducting repairs.70 The Agency
rejected these arguments and, among
other things, observed the severe nature
of the safety risk and that the defect
could not be discerned even by a
diligent vehicle owner.71 The Agency
also specifically noted the heavy burden
on General Motors to demonstrate
inconsequentiality, stating that ‘‘[t]he
threshold of evidence necessary to
prove the inconsequentiality of a defect
such as this one—involving the
potential performance failure of safetycritical equipment—is very difficult to
overcome.’’ 72
Agency practice over several decades
therefore shows that inconsequentiality
petitions are rarely filed in the defect
context, and virtually never granted.
Nonetheless, in light of the importance
of the issues here, and the fact that
Ford’s defect notification was filed in
response to the notification provided by
Ford’s supplier, the Agency also
considered the potential usefulness of
the Agency’s precedent on
noncompliance. The same legal
standard—‘‘inconsequential to motor
vehicle safety’’—applies to both defects
and noncompliances.73
In the noncompliance context, in
some instances, NHTSA has determined
that a manufacturer met its burden of
demonstrating that a noncompliance
was inconsequential to safety. For
example, labels intended to provide
safety advice to an occupant that may
have a misspelled word, or that may be
printed in the wrong format or the
wrong type size, have been deemed
inconsequential where they should not
cause any misunderstanding, especially
where other sources of correct
69 Gen. Motors LLC, Denial of Consolidated
Petition for Decision of Inconsequential Defect, 85
FR 76159 (Nov. 27, 2020).
70 Id. at 76161–164, 76167.
71 Id. at 76173.
72 Id.
73 49 U.S.C. 30118(d), 30120(h).
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information are available.74 These
decisions are similar in nature to the
lone instance where NHTSA granted a
petition for an inconsequential defect,
as discussed above.
However, the burden of establishing
the inconsequentiality of a failure to
comply with a performance requirement
in a standard—as opposed to a labeling
requirement—is more substantial and
difficult to meet. Accordingly, the
Agency has not found many such
noncompliances inconsequential.75
Potential performance failures of safetycritical equipment, like seat belts or air
bags, are rarely deemed inconsequential.
An important issue to consider in
determining inconsequentiality based
upon NHTSA’s prior decisions on
noncompliance issues was the safety
risk to individuals who experience the
type of event against which the recall
would otherwise protect.76 NHTSA also
does not consider the absence of
complaints or injuries to show that the
issue is inconsequential to safety.77
‘‘Most importantly, the absence of a
complaint does not mean there have not
been any safety issues, nor does it mean
that there will not be safety issues in the
future.’’ 78 ‘‘[T]he fact that in past
reported cases good luck and swift
reaction have prevented many serious
injuries does not mean that good luck
will continue to work.’’ 79
74 See, e.g., Gen. Motors, LLC.; cf. Grant of
Petition for Decision of Inconsequential
Noncompliance, 81 FR 92963 (Dec. 20, 2016). By
contrast, in Michelin, we reached the opposite
conclusion under different facts. There, the defect
was a failure to mark the maximum load and
corresponding inflation pressure in both Metric and
English units on the sidewall of the tires. Michelin
N. America, Inc.; Denial of Petition for Decision of
Inconsequential Noncompliance, 82 FR 41678
(Sept. 1, 2017).
75 Cf. Gen. Motors Corporation; Ruling on Petition
for Determination of Inconsequential
Noncompliance, 69 FR 19897, 19899 (Apr. 14,
2004) (citing prior cases where noncompliance was
expected to be imperceptible, or nearly so, to
vehicle occupants or approaching drivers).
76 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).
77 See Combi USA Inc., Denial of Petition for
Decision of Inconsequential Noncompliance, 78 FR
71028, 71030 (Nov. 27, 2013).
78 Morgan 3 Wheeler Ltd.; Denial of Petition for
Decision of Inconsequential Noncompliance, 81 FR
21663, 21666 (Apr. 12, 2016).
79 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
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Arguments that only a small number
of vehicles or items of motor vehicle
equipment are affected have also not
justified granting an inconsequentiality
petition.80 Similarly, NHTSA has
rejected petitions based on the assertion
that only a small percentage of vehicles
or items of equipment are actually likely
to exhibit a noncompliance. The
percentage of potential occupants that
could be adversely affected by a
noncompliance does not determine the
question of inconsequentiality. Rather,
the issue to consider is the consequence
to an occupant who is exposed to the
consequence of that noncompliance.81
These considerations are also relevant
when considering whether a defect is
inconsequential to motor vehicle safety.
V. Information Before the Agency
Ford advances several arguments in
support of its Petition. In sum, Ford
asserts that there is a difference in
expected performance between
desiccated and non-desiccated Takata
PSAN inflators; that there are design
differences between its covered inflators
and another variant of the same type;
that although there are signs of aging in
field returns, there is no indication of
propellant degradation that could lead
to rupture and no imminent safety risk;
and that no ruptures of the covered
inflators are expected to occur for at
least over twenty-six years of
cumulative exposure in the worst-case
environment, for the worst-case vehicle
configuration, and worst-case customer
usage. Ford supports these arguments
with its own analyses, results of inflator
testing and analyses conducted by three
outside entities, and predictive
modeling.
where there is no dispute that at least some such
hazards, in this case fires, can definitely be
expected to occur in the future’’).
80 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).
81 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).
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A. Ford’s Statistical Analysis of MEAF
Data
lower than that of non-desiccated
parts.’’ 89
Ford undertook its own statistical
analysis of data in the Master
Engineering Analysis File (‘‘MEAF’’),82
which Ford contends ‘‘shows a clear
difference in expected field performance
between desiccated and non-desiccated
inflators,’’ and ‘‘suggests that the factors
causing degradation in the nondesiccated population of inflators are
not currently affecting’’ the covered
Ford inflators.83 Four charts underpin
Ford’s assertions.
The first chart is of box plots of
primary-chamber pressures of covered
Ford inflators by age, which Ford asserts
shows there is ‘‘[n]o significant trend of
primary pressure increase with inflator
age.’’ 84 The second chart Ford provides
is a lognormal histogram illustrating the
frequency of maximum values of
primary-chamber pressure of covered
Ford inflators, which Ford asserts shows
that the probability of a covered Ford
inflator exceeding a 92.37 MPa
‘‘threshold’’ 85 is estimated as less than
1 × 10¥15.86 Ford’s third chart
illustrates predicted primary-chamber
pressure for covered Ford inflators with
probability curves for three module
ages—15, 20, and 30 years old, which
Ford contends shows that the
probability of a module with thirty years
in service exceeding a 92.37 MPa
threshold is 6.56 × 10¥6.87 And a fourth
chart consists of probability plots (log
normalized, 95% confidence)
comparing primary-chamber pressure
maximum values between Ford modules
with desiccated Takata PSAN inflators
and Ford modules with non-desiccated
Takata PSAN inflators.88 Ford states this
shows that the probability of exceeding
a 92.37 MPa threshold for desiccated
parts ‘‘is several orders of magnitude
B. Takata’s Live Dissections and
Ballistic Testing
82 For several years, Takata has inspected, tested,
and analyzed inflators returned from the field. The
compiled and summarized test results for hundreds
of thousands of inflators are contained in the Takata
MEAF, which is updated on an ongoing basis.
Takata’s MEAF file was available to the Agency in
making its determination, and it is from this file
that some of the information considered by the
Agency was derived, and discussed herein.
83 November 2020 Presentation at 11; October
2018 Presentation at 14.
84 November 2020 Presentation at 7; October 2018
Presentation at 10.
85 This appears to be the level at which Ford
considers an abnormal deployment to be a
potentiality. This 92.37 figure is used throughout
Ford’s materials.
86 November 2020 Presentation at 8; October 2018
Presentation at 11.
87 November 2020 Presentation at 9; October 2018
Presentation at 12.
88 November 2020 Presentation at 10; October
2018 Presentation at 13.
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According to Ford, Takata analyzed
1,992 calcium-sulfate desiccated PSDI–
5 driver-side air bag inflators returned
from the field from Ford vehicles, which
included 1,008 inflators from Ford
Ranger vehicles 90 and 984 from Fusion/
Edge vehicles.91 Analysis involved both
live dissections and ballistic testing,
with 1,257 inflators subject to ballistic
testing, and 735 inflators subject to live
dissection.92 Ford concludes from the
results that while ‘‘no indication of
degradation that could lead to a rupture
and no imminent risk to safety has been
identified,’’ Takata’s analysis did
‘‘identif[y] signs of aging’’ in the
inflators.93
Ford did not much further explain the
nature or results of this ballistic testing
and live dissection in either its October
2018 or November 2020 Presentations.
Ford does, however, further describe
such analyses with respect to the
approximately 423 inflators from Ford
Rangers that Takata had analyzed at that
point.94
Ford asserts that about 360 live
dissections of the Ford Ranger inflators
demonstrated ‘‘consistent inflator
output performance’’—specifically, that
measurements of ignition-tablet
discoloration, ‘‘generate’’ density,95 and
moisture content of certain inflator
constituents did not indicate a
89 Id.
90 Ford noted in its Petition that twenty of these
inflators were from salvage yards ‘‘where the
conditions used to store the parts cannot be
determined.’’ Petition at 11.
91 November 2020 Presentation at 12; October
2018 Presentation at 7. Takata also analyzed 895
inflators from Nissan Versa vehicles. See Recall No.
17V–449; Petition at 11 (‘‘approximately 1,000’’).
92 November 2020 Presentation at 12; October
2018 Presentation at 15; see Petition at 14.
93 November 2020 Presentation at 12; October
2018 Presentation at 15.
94 Petition at 14. Ford noted that twenty of the
inflators from Ford Rangers were from salvage yards
‘‘where the conditions used to store the parts
cannot be determined.’’ Id. at 11.
When Ford filed its Petition, Takata had analyzed
over 1,300 of its calcium-sulfate desiccated PSDI–
5 driver-side air bag inflators: The approximately
423 inflators from Ford Rangers, and the remainder
from Nissan Versa vehicles. Id. at 14.
95 Ford utilizes the term ‘‘generate’’ throughout its
Petition. See, e.g., Petition at 3 (‘‘generate system’’)
& 6 (‘‘generate’’). In the Agency’s experience,
‘‘generate’’ is not among nomenclature commonly
used with respect to air bag inflators—NHTSA is
more familiar with the term ‘‘generant.’’ In context,
however, it appears that Ford is referring to an
inflator’s function generating gas to inflate the air
bag, or the air bag inflator’s propellant itself. See id.;
see also id. at 15 (referring to ‘‘Generate—2004,’’
indicating a reference to a particular type of
propellant produced by Takata).
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reduction-in-density trend.96 Ford
describes in its Petition that during
visual inspection of the covered Ford
inflators, ‘‘Takata observed slight
discoloration of the propellant tablets in
the primary and secondary chambers,’’
but that such discoloration ‘‘is not an
indicant by itself that the propellant has
degraded’’—only that the propellant had
been exposed to elevated
temperatures.97 Takata also observed
changes in color in the primary and
secondary booster auto-ignition
tablets.98 On a scale of 1–10, with a
discoloration of 10 ‘‘indicating severe
exposure’’ to elevated temperatures,
Ford states that ‘‘the vast majority’’ 99 of
observed discoloration in inflators
obtained from vehicles in certain highheat-and-humidity states ‘‘was within
the 1–3 range after seven to eleven years
of vehicle service,’’ while
acknowledging that ‘‘[s]even samples
were in the 5–6 range.’’ 100 Accordingly,
Ford asserts, the results of visual
inspection ‘‘evidence time-in-service,
but not tablet density loss.’’ 101 Ford’s
Petition also states that Takata took
density measurements of propellant
tablets in the primary and secondary
chambers of covered Ford inflators.102
‘‘[A] small number of samples 103 were
measured with a density slightly below
the minimum average tablet production
specification,’’ although Ford noted that
‘‘a nearly equal number . . . measured
densities higher than the maximum
average tablet production
specification.’’ 104 Ford argues that such
data does ‘‘not support a conclusion that
tablet density is degrading in the
inflators designed for Ford after 10 years
of service.’’ 105
Ford contends in its Petition that its
conclusions are further supported by
forty-seven ballistic deployment tests
that showed no inflator exceeding the
production primary-chamber pressure
performance specifications.106 The
results of these tests are, according to
Ford, consistent with data from newly
manufactured PSDI–5 inflators in Ford
vehicles.107 Ford also emphasizes that
Takata did not observe pressure vessel
ruptures or pressure excursions on any
96 Id.
97 Id.
at 11–12.
at 12.
98 Id.
99 Ford did not state the exact size of this ‘‘vast
majority.’’
100 Petition at 12.
101 Id.
102 Id.
103 Ford did not state the exact size of this
sample.
104 Petition at 12–13.
105 Id. at 13.
106 Id. at 12–13.
107 Id. at 14.
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desiccated PSDI–5 inflator, and that
‘‘[t]he maximum primary chamber
pressure that Takata measured’’ in
covered Ford inflators was about 15
MPa lower than that measured in a
covered Nissan inflator (which
exhibited primary chamber pressure
exceeding 60 MPa).108
C. ‘‘Design Differences’’ in Inflators
Equipped in Ford Vehicles
In its Petition, Ford contends that
‘‘[t]here are significant design
differences’’ in the covered Ford
inflators when compared to the covered
Nissan inflators, and that such
differences may explain differences
observed between the inflator variants
in generate properties and during
testing.109 Ford cites its inflator variant
as having ‘‘fewer potential moisture
sources’’ because the inflators contain
only two, foil-wrapped auto-ignition
tablets (instead of three that are not foilwrapped), contain divider disk foil tape,
and utilize certain EPDM generate
cushion material (instead of ceramic)
that ‘‘reduces generate movement over
time, maintains generate integrity, and
leads to consistent and predictable burn
rates.’’ 110 Ford posits that such
differences may explain differences
observed between the two inflator
variants’ generate material properties,
and ballistic-testing results.111
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D. Northrop Grumman’s Analysis
Northrop Grumman (‘‘NG’’) analyzed
the covered Ford inflators, results of
which were presented to the Agency
subsequent to Ford’s filing of its
Petition. According to Ford, NG’s
assessment of field-return parts and
modeling ‘‘identified expected signs of
aging but no indication of degradation
that could lead to rupture,’’ and the
assessment ‘‘identified clear and
significant differences between
desiccated and non-desiccated inflators
of similar age and design.’’ 112
Specifically, NG undertook 58
dissections, 138 tank tests, MEAF
analysis, design comparisons, CT scans,
and ballistic modeling. The inflators
subject to dissection and tank tests
included inflators from Ford Rangers
(2006–2007, prefix ZN) and Fusions
(2006–2008, prefix ZQ) in South
Florida; Edges (2006–2008, prefix ZQ)
in South Florida and Georgia; Rangers
(2006–2007, prefix ZN) in Arizona,
108 Id.
109 Id.
at 14–15.
at 15–16 (providing table).
111 Id. at 14–15; see also November 2020
Presentation at 31; October 2018 Presentation at 29–
30.
112 November 2020 Presentation at 13; October
2018 Presentation at 16.
110 Id.
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Rangers in Michigan (2006–2008, prefix
ZN); and virgin inflators (prefixes ZN
and ZQ).113
NG also completed probability-offailure projections for the covered Ford
inflators under its inflator aging model,
on which Ford updated the Agency in
November 2020.114 Ford considered the
results of those projections in
conjunction with anticipated vehicle
attrition and the probabilities of crashes
with air bag deployments.115
1. Live Dissections
According to Ford, NG performed
various assessments related to live
dissections of inflators: 116
• Propellant health analysis.
According to Ford, the covered Ford
inflators are susceptible to energetic
disassembly when tablet density is at
1.64 g/cc or lower,117 and the densities
of the tablets from such returned
inflators were measured ‘‘well above’’
1.63–1.64 g/cc.
• AI–1 analysis. NG measured the
propellant tablets for outer diameter
(‘‘OD’’), weight, and color. Ford states
that the OD and weight of field returns
were ‘‘similar’’ to virgin inflators. Also
according to Ford, ‘‘[i]n older
undesiccated inflators, the AI–1 tablet
color is an indicator of age based on
humidity and temperature exposure in
the field, and the returned inflators
retained a 0–2 color (10 the darkest),’’
which was ‘‘similar’’ to virgin inflators.
Ford further notes that
thermogravimetric analysis ‘‘indicated
similar weight loss to virgin samples.’’
• Moisture content. According to
Ford, the propellants from the returned
inflators were lower in moisture content
than non-desiccated PSDI–5 inflators
(prefix ZA) and desiccated PSDI–5
(prefix YT) inflators.
• X-ray micro-computed tomography
(micro-CT scan). Ford asserts that ‘‘[n]o
definitive trend was observed with
respect to void count, size, or total
volume, and tablet density.’’ According
to Ford, ‘‘[t]ypically, 20,000 voids were
identified ranging in size from 1x10¥5
to .3 cubic millimeters.’’
• Scanning electron microscope
(SEM). NG processed 2004 tablets from
non-desiccated PSAN inflators (prefix
ZA) through the Independent Testing
113 November 2020 Presentation at 14; October
2018 Presentation at 17.
114 November 2020 Presentation at 22.
115 Id.
116 November 2020 Presentation at 15–16; October
2018 Presentation at 18–19.
117 Although not explained, this assertion appears
to be derived from NG’s ballistic modeling, which
found that ‘‘[a]n equivalent low press tablet density
below 1.631 g/cc was required to produce sufficient
augmented burning.’’ See November 2020
Presentation at 17; October 2018 Presentation at 20.
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Coalition’s (‘‘ITC’’) aging study (1920
cycles).118 Those had ‘‘higher surface
roughness than tablets from Ford
desiccated inflators.’’ Propellant in
desiccated PSDI–5 inflators (prefixes GE
and YT) aged at 1920 cycles, according
to Ford, also had higher surface
roughness than propellant in the fieldreturned Ford PSDI–5 inflators (prefixes
ZN and ZQ)—which had surface
roughness ‘‘similar’’ to propellant in
virgin inflators.
• Burn rate (closed bomb). According
to Ford, ‘‘[n]o significant differences
were observed between 2004 propellant
from virgin and returned inflators,’’ and
‘‘[n]o anomalous pressure traces were
observed.’’
• O-ring. Ford states that ‘‘[a]lthough
a significant decrease in [O]-ring
squeeze is observed in the 2006–8
PSDI–5D inflator igniter assembly
sealing system, the remaining squeeze is
deemed acceptable to prevent moisture
leakage around the O-ring.’’ According
to Ford, older O-rings have a loss of
resiliency from a decrease in the
horizontal diameter that occurs with
increasing age.
• Inflator Tank Testing. Ford states
that results showed one Ford PSDI–5
inflator (ZN prefix) with a chamber
pressure approximately 20% higher
than the average of the other tested
inflators. ‘‘All other PSDI–5 ZN curves
were grouped tightly with the virgin
inflators,’’ as were, according to Ford,
the ZQ prefix inflators. Ford also notes
that the inflator with the higher pressure
was from a vehicle in Michigan, and
that the pressure ‘‘was well below any
expected inflator rupture pressure.’’
2. Ballistic Modeling
NG developed ballistic models ‘‘to
investigate the observed performance
behavior of Ford PSDI–5 ZN and ZQ
inflators and to evaluate the potential
sensitivity of the inflators to certain
design deviations.’’ 119 Representative
performance models were anchored to
measured pressure data from virgin
inflators.120 ‘‘The models simulated
inflator ignition, chamber volumetric
filling, burst tape rupture, ignition delay
between chambers and steady state
combustion.’’ 121 According to Ford, the
PSDI–5 design required ‘‘significant
degradation of the 2004 propellant
tablets’’ to obtain failure pressures.122
Specifically, ‘‘[a]n equivalent low press
tablet density below 1.631 g/cc was
118 The ITC is funded by a consortium of vehicle
manufacturers.
119 November 2020 Presentation at 17; October
2018 Presentation at 20.
120 Id.
121 Id.
122 Id.
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required to produce sufficient
augmented burning.’’ 123 Ford states that
such degradation was not observed in
the field returns of covered Ford
inflators.124
3. MEAF Assessment
NG analyzed MEAF data up to
February 2018 to determine whether
covered Ford inflators had energetic
deployment (‘‘ED’’) rates were
dependent on platform, inflator age,
climate zone, or other factors.125 Among
the ‘‘key’’ findings according to Ford:
For non-desiccated PSDI–5 inflators,
abnormal deployments began to occur
after 10.5 years, and EDs after 11.5
years; inflator variants with calciumsulfate desiccant experienced normal
deployments up to 12.5 years (which at
the time were the oldest inflators
contained in the MEAF); the calciumsulfate desiccant ‘‘appear[ed] to be
largely saturated after 8 years;’’ and the
covered Ford inflators contained less
moisture in the 3110 booster propellant
than the non-desiccated inflators.126
4. Probability-of-Failure Projections
In its November 2020 Presentation to
the Agency, Ford cites NG’s PSAN
Inflator Test Program and Predictive
Aging Model Final Report from October
2019 (‘‘NG Model’’),127 first observing
that this report indicates that for another
OEM’s PSDI–5 inflator with a calciumsulfate desiccant (prefix YT), a T3
vehicle in Miami with the most severe
aging (top 1%, hereinafter a ‘‘1% usage’’
vehicle), may reach a probability of
failure of 1 in 10,000 (.01%) in less than
thirty years.128 Ford then states that
under the NG model, for the Ford
covered inflators prefixes ZN and ZQ, a
1% usage T3 vehicle in Miami has an
expected 25.7 and 25.6 years,
respectively, to a .01% probability of
failure.129 Ford further states that this is
an additional two years when compared
to the YT prefix version of the inflator
(of another OEM).130
Vehicle
Model year
Fusion ..............................................................................................................
MKZ .................................................................................................................
Milan ................................................................................................................
Edge .................................................................................................................
MKX .................................................................................................................
Ranger .............................................................................................................
Ford therefore states that the earliest
a Ford vehicle in a Miami-type
environment may reach a .01%
probability of failure is over a decade in
the future for a 1%-usage T3 vehicle and
that, in other words, ‘‘the predictive
model suggests that no inflator ruptures
are expected to occur for at least 26
years of cumulative exposure in the
worst case environment, worst case
vehicle configuration, and worst case
customer usage’’ (i.e., 2031 for the oldest
vehicles).136
Ford also makes several other
observations, including that: 137
• ‘‘[s]tudying parts prior to
approximately 16–18 years in service
would not identify meaningful inflator
123 Id.
124 Id.
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125 Id.
126 Id.
127 NG previously submitted this report to the
Agency, which contains information regarding the
safety of desiccated Takata PSAN inflators. The
report is available at https://www.nhtsa.gov/sites/
nhtsa.dot.gov/files/documents/ngis_takata_
investigation_final_report_oct_2019.pdf.
128 November 2020 Presentation at 23. T3 refers
to a ‘‘temperature band.’’ Under NG’s report, there
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are three temperature bands—T1, T2, T3. T3 is the
highest temperature band, representing vehicles
with maximum inflator temperatures near or
slightly above 70°C. NG Report at 18–19; see
November Presentation at 24. The ‘‘1% usage
vehicle’’ refers to a vehicle with the most severe
environmental exposure based on customer usage.
See November 2020 Presentation at 24.
129 November 2020 Presentation at 25.
130 Id.
131 Id. at 26.
132 Id.
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Ford then asserts that the earliest
Fusion/Milan/MKZ vehicles equipped
with the covered Ford inflators were
built in 2005, and that if those vehicles
perform as T3 vehicles, the earliest
calendar year for a 1 in 10,000
probability of failure is 2031 for a 1%
usage vehicle.131 Similarly, Ford asserts
that the earliest Ranger, Edge/MKX
vehicles equipped with the covered
Ford inflators were built in 2006, and
that if those vehicles perform as T3
vehicles, the earliest calendar year for a
1 in 10,000 probability of failure is 2032
for a 1% usage vehicle.132
Ford builds on these assertions by
stating that ‘‘for a rupture to occur the
vehicle must be in service and
experience a crash resulting in airbag
deployment,’’ and that based on vehicle
attrition and crash statistics, Ford does
not project a field event at twenty-six
years of service.133 Ford provides the
below data in support: 134
Volume
(Florida)
2006–2012
2006–2012
2006–2011
2007–2010
2007–2010
2007–2011
aging information’’ (i.e., 2023 for the
oldest vehicles);
• the ITC, in coordination with NG, is
conducting a surveillance program for
desiccated Takata PSAN inflators, and
data gathered from that program can
validate the NG models;
• ‘‘[w]ith newer inflators that have
not yet shown signs of aging, there is a
significant opportunity for improving
the fidelity and accuracy of the model
with enhanced anchoring data’’; and
• there is time for a separate
surveillance program for the covered
Ford inflators ‘‘well before any potential
risk is projected’’ after the results of
NG’s surveillance program that are
expected in 2021.
Sfmt 4703
6959
Probability
of inflator
rupture 135 at
26 years in
service
Expected
cumulative
events at 26
years in
service
75,232
5.08E–07
0.038
39,161
6.34E–07
0.025
Ford concludes that it ‘‘believes that
the current data indicates that the
subject inflators do not present an
unreasonable risk to safety and that it
supports granting the petition.’’ 138
E. Additional Third-Party Analysis
According to Ford, an additional
Third Party found that no pressure
excursions were detected in the covered
Ford inflators analyzed to date.139 The
Third Party also found that some field
inflators experienced porosity growth
greater than virgin inflators with 2004
propellant, ‘‘but not to a level sufficient
to cause pressure excursions in bomb
133 Id.
134 Id.
135 Ford notes this was ‘‘[a]djusted for the
population attrition & accident probabilities using
vehicles currently registered in Florida (not all of
which have always been registered in Florida).’’ Id.
136 Id. at 26–27.
137 Id. at 27.
138 Id.
139 Id. at 18; October 2018 Presentation at 21.
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testing.’’ 140 In addition, ‘‘[n]o
significant increase in tablet ODs was
observed for field populations’’ of
covered inflators.141 These findings
were derived from live dissections
performed on 39 inflators and
deployment tests on 65 inflators.142 The
inflators were field-return parts
obtained from Florida, Michigan, and
Ohio.143
VI. Response to Ford’s Supporting
Information and Analyses
Ford, through its Petition and
supporting analysis, seeks to show that
the covered Ford inflators are not at risk
of rupture such that the defect is
inconsequential to safety. First, as noted
above, when taking into consideration
the Agency’s noncompliance precedent,
an important factor is also the severity
of the consequence of the defect were it
to occur—i.e., the safety risk to an
occupant who is exposed to an inflator
rupture. Ford did not provide any
information to suggest that result would
be any different were a covered Ford
inflator to rupture in a Ford vehicle.
And second, as a general matter, at
various points, Ford’s Petition
implicitly appears to adopt the covered
Nissan inflators as a standard for
inconsequentiality. However,
differentiating the covered Ford
inflators from the covered Nissan
inflators, e.g., through ballistic-testing or
live-dissection results, does not directly
answer the question of whether the
defect in the covered Ford inflators is,
on its own merits, inconsequential to
motor vehicle safety. Even assuming
that the covered Ford inflators compare
favorably to the covered Nissan
inflators, NHTSA has not made an
inconsequentiality determination for the
covered Nissan inflators—nor will it be
doing so.144 Ford similarly argued in
subsequent materials, for example, with
regard to NG’s live dissections and
predictive-model results, as well as
Ford’s statistical analysis of the MEAF,
that the covered Ford inflators
compared favorably to other inflator
variants, and even to non-desiccated
inflators. Merely demonstrating that
one’s own defective product compares
favorably to another’s defective product
140 Id.
141 Id.
142 Id.
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143 Id.
144 Ford’s comparisons might carry more
evidentiary weight if, for instance, the Agency had
previously granted an inconsequentiality petition
from Nissan for its covered inflators. Nissan did not
petition the Agency for an inconsequentiality
determination for its covered inflators. See also 49
CFR 556.4(c) (requiring such a petition is submitted
not later than thirty days after defect or
noncompliance determination).
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does not suffice for an
inconsequentiality determination.
Relatedly, Ford’s argument regarding
‘‘design differences’’ between the
covered Ford and covered Nissan
inflators appears to be more of an
identification of areas for further study
or potential explanation—not a
standalone argument in support of an
inconsequentiality determination. Ford
identifies design differences ‘‘that may
account for the difference in material
properties of the generate,’’ and
differences in pressures measured
during ballistic testing of the
inflators.145 Ford did not persuasively
connect these design differences to
meaningful improved performance in
generate properties and pressure
differences 146 and, even if Ford had, the
covered Nissan inflators are not a proxy
standard for inconsequentiality.
In addition to these issues, signs of
aging were observed in the covered Ford
inflators; the sample sizes used for the
analyses were limited; and there are
shortcomings regarding various analyses
that undermine their conclusions—
including some information that was
missing or unclear. Ford’s probabilityof-failure projections are also
unpersuasive—and notably belied by
the limited evidence available from
ballistic testing and analysis on realworld field returns of the covered Ford
inflators. These additional issues are
discussed below.
A. Signs of Aging
Ford admits that signs of aging were
observed in the covered Ford inflators.
While Ford indirectly dismisses this is
as a non-issue—concluding that there is
no degradation ‘‘that would signal either
an imminent or developing risk to
safety’’—aging leads to degradation,
which leads to risk of inflator rupture.
Further, the 2004 propellant that is
present in the covered Ford inflators
degrades until, at some point, it no
longer burns normally, but in an
accelerated and unpredictable manner
that can cause an inflator rupture. ‘‘The
purpose of the Safety Act . . . is to
prevent serious injuries stemming from
established defects before they
occur.’’ 147 And as CAS commented,
‘‘tests demonstrating that inflators are
‘OK for now’ in no way ensures safety
145 Petition
at 14–15 (emphasis added).
as described further below, based
on recent MEAF data, one covered Ford inflator has
the highest chamber pressure tested for Takata
calcium-sulfate desiccated PSDI–5 inflators.
147 United States v. Gen. Motors Corp., 565 F.2d
754, 759 (D.C. Cir. 1977).
146 Moreover,
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throughout the maximum useful life of
these vehicles.’’ 148
B. Samples
The Agency finds shortcomings in the
sample sizes utilized in the analyses.
Ford’s total field-return sample was,
across the Takata, NG, and the
additional Third Party analyses, less
than 3,000 inflators for an affected
population of over 3 million vehicles.
Ford presented analysis from Takata of
fewer than 2,000 inflators, while NG
analyzed only 196, and the additional
Third Party analyzed just over 100. In
total, Ford cites to 1,460 ballistic tests,
which is approximately .05% of the
total population subject to Ford’s
Petition. By comparison, for example,
that percentage of the population tested
is much smaller than the percentage of
inflators tested as of November 2019 in
a mid-sized pick-up vehicle population
equipped with non-desiccated PSAN
inflators—1.81%—with one observed
test rupture. Ford’s own statistical
analysis of the MEAF regarding Pc
Primary Max Value frequency 149 was
also based on only 1,247 inflators.150
C. Additional Underlying Information
Other shortcomings regarding various
analyses presented here—including
some information that was missing or
unclear—further undermine the
associated conclusions. These are
identifiable in both Ford’s Petition and
in the subsequent Presentations to the
Agency.
1. Ford’s Petition
As an initial matter, Ford submitted
little of the relevant underlying data,
and did not fully explain the underlying
methodologies and results, associated
with the arguments in its 2017 Petition.
More specifically, one of Ford’s
arguments in its 2017 Petition is that
Takata’s live dissections of covered Ford
inflators does not show tablet-density
degradation or increased inflation
pressure, and therefore, Takata ‘‘did not
identify a reduction in density trend’’ in
148 See
Comments at 3.
November 2020 Presentation at 8.
150 Moreover, twenty of the inflators (from Ranger
vehicles) were from salvage yards, ‘‘where the
conditions used to store the parts cannot be
determined.’’ Petition at 11. Further highlighting
the significance of this shortcoming, Ford noted in
its Petition the potential importance of ‘‘vehicle
environment’’ with respect to inflator-degradation
risk but did not elaborate on this suggestion
elsewhere in its Petition. See id. at 2; id. 14–16
(focusing on design differences between the covered
Ford inflators and covered Nissan inflators). For
purposes of its arguments related to the NG Model,
Ford presented a worst-case scenario, where it was
assumed for purposes of that scenario that the
vehicles at issue would be in the T3 temperature
band.
149 See
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the covered Ford inflators.151 Tablet
discoloration was graded on a
qualitative 1–10 scale, but to what
discoloration characteristics each level
of this scale corresponds is not
explained. And Ford’s conclusion that a
‘‘vast majority’’ of discoloration in
certain inflators was within a certain
low range of discoloration (with seven
samples in a certain mid-range) is
vague, and Ford did not provide
information about the specific
distribution of the results (e.g., the
number of inflators receiving each
discoloration value or the number of
inflators in each Zone).152
Ford also provides little information
about the specific inflators tested and
associated results with regard to density
measurements—such as actual
dimensions, mass, and densities, among
measurements—instead largely relying
on general descriptions the results.153
For inflation pressure, Ford offers
evidence of ballistic tests, although the
breakdown of this sample with regard to
vehicle model year and location, as well
as how many of these inflators were
obtained from salvage yards with
unknown environment exposures (and
the associated results), was not
provided.154
2. Subsequent Submissions to the
Agency
Ford’s statistical analysis of the MEAF
contains several shortcomings in the
first two charts—box plots of primarychamber pressure by age of inflator, and
a lognormal histogram of maximum
values illustrating the frequency of
maximum values of primary-chamber
pressure of covered Ford inflators. In
the box plots, Ford does not specify or
illustrate what a ‘‘normal’’ or
‘‘expected’’ primary-chamber pressure
would be. Nor did Ford provide
information showing how many
inflators each age group comprises—
although the lack of whiskers in the box
plot for inflators aged thirteen years
suggests that, at least for that age group,
the sample size is small. There are also
outlier pressure values observed in the
nine- to twelve-year age groups, which
concern the Agency. And in the
histogram, Ford does not distinguish
among different inflator ages—which
would have highlighted any trends in
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151 Id.
at 11.
id. at 12.
153 See id. at 12–13 (‘‘[A] small number of
samples were measured with a density slightly
below the minimum average tablet production
specification, while a nearly equal number of
samples measured densities higher than the
maximum. . . .’’).
154 See id. at 13.
152 See
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primary-chamber pressure maximum
values based on age.
There are also several shortcomings
with the second two charts—the
probability curves for module ages, and
probability plots comparing primarychamber pressure maximum values of
Ford modules with desiccated and nondesiccated inflators, respectively. As to
the probability curves, while details
were not provided by Ford, this analysis
appears to assume that degradation will
proceed linearly. However, researchers
that have been most closely involved in
analyzing Takata inflators, including
NG, all seem to agree that the
degradation process is, at the very least,
complex, and does not follow a linear
trajectory. Instead, 2004 propellant
(which is contained in the covered Ford
inflators) degrades until, at some point,
it no longer burns normally, but in an
accelerated and unpredictable manner
that can cause an inflator rupture. As to
the probability plots, while a
comparison between desiccated and
non-desiccated inflators is somewhat
informative from a broad perspective, it
is too general to lend much support to
Ford’s Petition, and as noted above, the
performance of non-desiccated Takata
PSAN inflators is not a sound
benchmark for whether the defect in the
covered Ford inflators is
inconsequential to safety.
Regarding NG’s analysis, as an initial
matter, over a quarter of the 196
inflators analyzed were non-aged/virgin
inflators and, further, degradation
would not be expected in the inflators
from Michigan (from which,
collectively, 55 of the inflators were
obtained). Ford also acknowledges aging
in inflator O-rings from this analysis. In
addition, there are several particular
issues with NG’s live dissections worth
noting. Findings regarding moisture
content are of limited value, and Ford
did not present important information
on the referenced comparator prefix ZA
and YT inflators—e.g., age and the
geographic region in which they were
used. As to the SEM results, Ford does
not explain how the concept of surface
roughness relates to the long-term safety
of the inflators at issue here. Similarly,
regarding the additional Third Party’s
analysis, OD growth for the tablet grain
form has not been found to be reliable
indicator of propellant health, and Ford
does not demonstrate otherwise.
D. Probability-of-Failure Projections
Ford’s probability-of-failure
projections are also unpersuasive. As
previously described, these projections,
submitted in support of Ford’s Petition
in November 2020, are based on the NG
Model. While the projections are
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6961
informative in various respects, NHTSA
does not view the Model’s outputs for
the covered Ford inflators as fully
squaring with the evidence available for
those inflators from real-world field
returns 155—which renders what Ford
provides unpersuasive for the purposes
of its Petition. Even with the limited
testing evidence available, ballistic
testing of field returns of the covered
Ford inflators includes three inflator
deployments with primary-chamber
pressures between 60 and 70 MPa—
coming from two ZQ inflators with a
field age between 12 and 13 years (one
of which exhibited a pressure of 68
MPa), and one ZN inflator with a field
age between 10 and 11 years.156 In the
Agency’s experience, such primarychamber pressure results are indicative
of propellant degradation and potential
future rupture risk. The nature of these
results, in addition to causing concern,
undercuts one of Ford’s notable
arguments in its Petition: That ‘‘[t]he
maximum primary chamber pressure
that Takata measured’’ in covered Ford
inflators was about 15 MPa lower than
that measured in a covered Nissan
inflator (which exhibited primary
chamber pressure exceeding 60 MPa).
Indeed, at least three covered Ford
inflators have now exceeded 60 MPa in
ballistic testing (one ZN, two ZQ), and
according to recent MEAF data, one of
these inflators (of the ZQ variant) has
the highest chamber pressure tested for
Takata calcium-sulfate desiccated PSDI–
5 inflators.
Data from the MEAF also may suggest
the beginning stages of notable density
changes in propellant tablets in the
covered Ford inflators with increasing
field age. Recent results from primary
tablets in inflators with field ages
between 12 and 14 years show four
inflators with density measurements
near (or below) 1.68 g/cc; according to
Ford, 1.64 g/cc is the point at which the
PSDI–5 inflators with 2004 tablets are
susceptible to energetic disassembly.157
155 While it may be possible to age an inflator
artificially in a manner that replicates aging
characteristics in the field (and then test those
inflators), Ford did not attempt to do this for the
covered Ford inflators.
156 Also notable is that all three results are over
three standard deviations above even the average
field-return results for ZN and ZQ inflators
collectively (for which the Agency would expect a
higher average than virgin inflators).
Ford also noted a ZN inflator tested by NG with
a chamber pressure approximately 20% higher than
the average of the other inflators in tank testing. The
specific measurement (and measurements of other
NG tests) does not appear to have been provided to
the Agency.
157 These results regard recently tested ZQ
inflators with greater field ages than previously
tested ZN inflators, although it should also be noted
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Similarly, there are a number of field
returns measured with secondarychamber tablet densities under 1.66 g/cc
(mostly ZN, although one ZQ inflator),
including ZN inflators under 1.64 g/cc—
one of which was measured as low as
1.62 g/cc. This undermines the
contention that the densities of the
tablets from returned covered Ford
inflators were measured ‘‘well above’’
1.63–1.64 g/cc, as well as assertions
regarding the results of visual
inspections that it contends ‘‘evidence
time-in-service, but not tablet density
loss.’’
The above results from real-world
field returns signal that propellant
degradation in the covered Ford
inflators is occurring. While the
predictive model that Ford references
(and its applicable results) is
informative in certain respects, the
specific metrics Ford cites in support
cannot be sufficiently squared with the
actual testing that has been completed
on real-world field returns to be
persuasive for Ford’s Petition.158
Further, there are shortcomings
particular to the metrics on which Ford
relies regarding the Model. Notably,
Ford contends that ‘‘there are no
expected field events projected at 26
years of service.’’ 159 However, Ford’s
figures for an expected number of
cumulative field events 160 were cut off
at 26 years in service and limited to an
analysis of vehicles in Florida—a
combined volume of 114,393 vehicles,
which is less than 4% of the total
population of Ford vehicles at issue.161
While such vehicles may be among the
highest risk populations, unless it is
that one ZN inflator with a field age of about 10
years measured a primary-tablet density just above
1.66 g/cc—lower than any result for a ZQ inflator.
158 See also Exhibit A (Report of Dr. Harold
Blomquist) to Gen. Motors LLC, Denial of
Consolidated Petition for Decision of
Inconsequential Defect, 85 FR 76159 (Nov. 27,
2020) at para.272 (indicating that—in assessing a
similar model with regard to a petition for
inconsequentiality—apparent inconsistencies
between that model’s predictions and high-pressure
ballistic test results of field returns—of inflators not
at issue here—‘‘suggest caution should be used’’ in
applying the results of that model).
159 See November 2020 Presentation at 26.
160 These figures, which appear based on the
twenty-sixth year of service (the point at which,
under the NG Model and according to Ford, there
is a 1% probability of failure for a covered Ford
inflator in a T3 vehicle with the most severe (top
1%) usage factors in Miami), were 0.038 for a
population of approximately 75,000 Fusion, MKZ,
and Milan vehicles, and 0.025 for a population of
approximately 39,000 Edge, MKX, and Ranger
vehicles. See November 2020 Presentation at 26.
161 Ford did not submit evidence demonstrating
that none of the vehicles subject to the Petition
would be in service after 26 years—in Florida or
otherwise. And while Ford adjusted relevant
metrics for attrition and crash probabilities, Ford
did not submit specific information about how
these adjustments were made.
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18:31 Jan 22, 2021
Jkt 253001
assumed that there is a cumulative zero
probability of inflator rupture (through
26 years in service) for every vehicle in
every other State (including States other
than Florida with high heat and
humidity),162 these calculations do not
reflect the expected cumulative events
for the entire population of 3.04 million
vehicles installed with calcium-sulfate
desiccated Takata inflators through 26
years in service—thereby understating
the risk, as suggested by the Model, for
the vehicles at issue in Ford’s Petition.
In other words, Ford does not provide
a fleet-level assessment here—the total
number of cumulative events expected
to occur in the coming years for such
vehicles. And in any case, Ford’s
metrics are undercut by the ballistic
results and analysis of field-returned
inflators showing elevated pressures
and propellant density changes
discussed above.
VII. Decision
The relief sought here is
extraordinary. Ford’s Petition is quite
distinct from previous petitions
discussed above relating to defective
labels that may (or may not) mislead the
user of the vehicle to create an unsafe
condition.163 Nor is the risk here
comparable to a deteriorating exterior
component of vehicle that—even if an
average owner is unlikely to inspect the
component—might (or might not) be
visibly discerned.164 Rather, similar to
the defect at issue in NHTSA’s recent
decision on a petition regarding certain
non-desiccated Takata PSAN air bag
inflators installed in General Motors
vehicles, the defect here poses an unsafe
condition caused by the degradation of
an important component of a safety
device that is designed to protect
vehicle occupants in crashes.165 Instead
of protecting occupants, this propellant
degradation can lead to an uncontrolled
explosion of the inflator and propel
sharp metal fragments toward occupants
162 Although 26 years is—under the NG Model
and according to Ford—the point at which there is
a 1% probability of failure for a covered Ford
inflator in a vehicle with the most severe (top 1%)
usage factors in Miami, Ford does not explain why
this is an appropriate point at which to end its
analysis of the expected number of cumulative field
events.
163 See Nat’l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1,
1982); Suzuki Motor Co., Ltd.; Grant of Petition for
Inconsequential Defect, 48 FR 27635 (June 16,
1983).
164 See Final Determination & Order Regarding
Safety Related Defects in the 1971 Fiat Model 850
and the 1970–74 Fiat Model 124 Automobiles
Imported and Distributed by Fiat Motors of N. Am.,
Inc.; Ruling on Petition of Inconsequentiality, 45 FR
2134 (Jan. 10, 1980).
165 See Gen. Motors LLC, Denial of Consolidated
Petition for Decision of Inconsequential Defect, 85
FR 76159 (Nov. 27, 2020).
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Fmt 4703
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in a manner that can cause serious
injury and even death.166 This unsafe
condition—hidden in an air bag
module—is not discernible even by a
diligent vehicle owner, let alone an
average owner.167
NHTSA has been offered no
persuasive reason to think that without
a recall, even if current owners are
aware of the defect and instant petition,
subsequent owners of vehicles equipped
with covered Ford inflators would be
made aware of the issue.168 This is not
the type of defect for which notice alone
enables an owner to avoid the safety
risk. A remedy is required to address the
underlying safety defect.
As discussed above, the threshold of
evidence necessary to prove the
inconsequentiality of a defect such as
this one—involving the potential
performance failure of safety-critical
equipment—is very difficult to
overcome.169 Ford bears a heavy
burden, and the evidence and argument
Ford provides suffers from numerous,
significant deficiencies, as previously
described in detail. In all events, the
information that Ford presents in its
Petition and subsequent Presentations to
the Agency is inadequate to support a
grant of its Petition.
As noted above, at various points
Ford’s Petition appears to focus on
differentiating the covered Ford
inflators from the covered Nissan
inflators—not directly answering the
question of whether the defect in the
covered Ford inflators is, on its own
merits, inconsequential to motor vehicle
safety. Ford similarly argued in
subsequent materials that the covered
166 See id. at 76173; cf. Gen. Motors, LLC; Grant
of Petition for Decision of Inconsequential
Noncompliance, 78 FR 35355–01, 2013 WL
2489784 (June 12, 2013) (finding noncompliance
inconsequential where ‘‘occupant classification
system will continue to operate as designed and
will enable or disable the air bag as intended’’).
167 See Gen. Motors LLC, Denial of Consolidated
Petition for Decision of Inconsequential Defect, 85
FR 76159, 76173 (Nov. 27, 2020); Final
Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970–
74 Fiat Model 124 Automobiles Imported and
Distributed by Fiat Motors of N. Am., Inc.; Ruling
on Petition of Inconsequentiality, 45 FR 2134 (Jan.
10, 1980) (rejecting argument there was adequate
warning to vehicle owners of underbody corrosion,
as the average owner does not undertake an
inspection of the underbody of a vehicle, and
interior corrosion of the underbody may not be
visible).
168 See Nat’l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1,
1982) (observing, inter alia, that other
manufacturers had conducted recalls for similar
issues in the past, and that, even if current owners
were aware of the issue, subsequent owners were
unlikely to be aware absent a recall).
169 See Gen. Motors LLC, Denial of Consolidated
Petition for Decision of Inconsequential Defect, 85
FR 76159, 76173 (Nov. 27, 2020).
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Ford inflators compared favorably to
another inflator variant of the same
type, and even to non-desiccated
inflators. These comparisons do not
suffice for an inconsequentiality
determination. Relatedly, Ford’s
argument regarding design differences
does not suffice to support an
inconsequentiality determination. This
argument, furthermore, was not
persuasively connected to meaningful
improved performance in generateproperties and pressure differences (and
even if it had been, the covered Nissan
inflators are not an appropriate proxy
standard for inconsequentiality). The
sample sizes used for the analyses were
also limited, and there are shortcomings
regarding various analyses that
undermine their conclusions—
including some information was
missing or unclear.
As a general matter, signs of aging
were observed in the covered Ford
inflators, which leads to propellant
degradation, which leads to inflator
rupture—and the 2004 propellant that is
present in the covered Ford inflators
degrades until, at some point, it no
longer burns normally, but in an
accelerated and unpredictable manner
that can cause an inflator rupture.
Perhaps most importantly, even with
the limited testing evidence available,
ballistic testing of field returns of the
covered Ford inflators includes three
inflator deployments with primarychamber pressures between 60 and 70
MPa—coming from two ZQ inflators
with a field age between 12 and 13 years
(one of which exhibited a pressure of 68
MPa), and one ZN inflator with a field
age between 10 and 11 years. Data from
the MEAF also appears to indicate the
beginning stages of density changes in
propellant tablets in the covered Ford
inflators with increasing field age. These
results from real-world field returns
signal that propellant degradation in the
covered Ford inflators is occurring, and
belie the probability-of-failure
projections that Ford provides (which
have their own additional shortcomings
that lead to an understatement of the
potential risk).
Given the severity of the consequence
of propellant degradation in these air
bag inflators—the rupture of the inflator
and metal shrapnel sprayed at vehicle
occupants—a finding of
inconsequentiality to safety demands
extraordinarily robust and persuasive
evidence. What Ford presents here,
while valuable and informative in
certain respects, suffers from far too
many shortcomings, both when the
evidence is assessed individually and in
its totality, to demonstrate that the
defect in covered Ford inflators is not
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18:31 Jan 22, 2021
Jkt 253001
important or can otherwise be ignored
as a matter of safety.
In consideration of the forgoing,
NHTSA has decided Ford has not
demonstrated that the defect is
inconsequential to motor vehicle safety.
Accordingly, Ford’s Petition is hereby
denied, and Ford is obligated to provide
notification of, and a remedy for, the
defect pursuant to 49 U.S.C. 30118 and
30120. Within 30 days of the issuance
of this decision, Ford shall submit to
NHTSA a proposed schedule for the
notification of vehicle owners and the
launch of a remedy required to fulfill
those obligations.
Authority: 49 U.S.C. 30101, et seq., 30118,
30120(h), 30162, 30166(b)(1), 30166(g)(1);
delegation of authority at 49 CFR 1.95(a); 49
CFR parts 556, 573, 577.
Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2021–01540 Filed 1–22–21; 8:45 am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
[Docket No. PHMSA–2020–0008]
Pipeline Safety: Request for Special
Permit; El Paso Natural Gas Company,
L.L.C.
Pipeline and Hazardous
Materials Safety Administration
(PHMSA); DOT.
ACTION: Notice.
AGENCY:
PHMSA is publishing this
notice to solicit public comments on a
request for special permit received from
the El Paso Natural Gas Company, L.L.C.
(EPNG). The special permit request is
seeking relief from compliance with
certain requirements in the Federal
pipeline safety regulations. At the
conclusion of the 30-day comment
period, PHMSA will review the
comments received from this notice as
part of its evaluation to grant or deny
the special permit request.
DATES: Submit any comments regarding
this special permit request by February
24, 2021.
ADDRESSES: Comments should reference
the docket number for this specific
special permit request and may be
submitted in the following ways:
• E-Gov Website: https://
www.Regulations.gov. This site allows
the public to enter comments on any
Federal Register notice issued by any
agency.
• Fax: 1–202–493–2251.
SUMMARY:
PO 00000
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Fmt 4703
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6963
• Mail: Docket Management System:
U.S. Department of Transportation,
Docket Operations, M–30, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Docket Management
System: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9:00
a.m. and 5:00 p.m., Monday through
Friday, except Federal holidays.
Instructions: You should identify the
docket number for the special permit
request you are commenting on at the
beginning of your comments. If you
submit your comments by mail, please
submit two (2) copies. To receive
confirmation that PHMSA has received
your comments, please include a selfaddressed stamped postcard. Internet
users may submit comments at https://
www.Regulations.gov.
Note: There is a privacy statement
published on https://www.Regulations.gov.
Comments, including any personal
information provided, are posted without
changes or edits to https://
www.Regulations.gov.
Confidential Business Information:
Confidential Business Information (CBI)
is commercial or financial information
that is both customarily and actually
treated as private by its owner. Under
the Freedom of Information Act (FOIA)
(5 U.S.C. 552), CBI is exempt from
public disclosure. If your comments
responsive to this notice contain
commercial or financial information
that is customarily treated as private,
that you actually treat as private, and
that is relevant or responsive to this
notice, it is important that you clearly
designate the submitted comments as
CBI. Pursuant to 49 Code of Federal
Regulations (CFR) § 190.343, you may
ask PHMSA to give confidential
treatment to information you give to the
agency by taking the following steps: (1)
Mark each page of the original
document submission containing CBI as
‘‘Confidential’’; (2) send PHMSA, along
with the original document, a second
copy of the original document with the
CBI deleted; and (3) explain why the
information you are submitting is CBI.
Unless you are notified otherwise,
PHMSA will treat such marked
submissions as confidential under the
FOIA, and they will not be placed in the
public docket of this notice.
Submissions containing CBI should be
sent to Kay McIver, DOT, PHMSA–
PHP–80, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001. Any
commentary PHMSA receives that is not
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]]>Agencies
[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Notices]
[Pages 6951-6963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01540]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2017-0093]
Ford Motor Company; Denial of Petition for Inconsequentiality
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Denial of petition.
-----------------------------------------------------------------------
SUMMARY: On July 10, 2017, Takata Corporation (``Takata'') filed a
defect information report (``DIR'') in which it determined that a
safety-related defect
[[Page 6952]]
exists in phase-stabilized ammonium nitrate (``PSAN'') driver-side air
bag inflators that it manufactured with a calcium sulfate desiccant and
supplied to Ford Motor Company (``Ford''), Mazda North American
Operations (``Mazda''), and Nissan North America Inc. (``Nissan'') for
use in certain vehicles. Ford petitioned the Agency for a decision that
the equipment defect determined to exist by Takata is inconsequential
as it relates to motor vehicle safety in the Ford vehicles affected by
Takata's DIR, and that Ford should therefore be relieved of its
notification and remedy obligations under the National Traffic and
Motor Vehicle Safety Act of 1966 and its applicable regulations. After
reviewing the petition, NHTSA has concluded that Ford has not met its
burden of establishing that the defect is inconsequential to motor
vehicle safety, and denies the petition.
ADDRESSES: For further information about this decision, contact Stephen
Hench, Office of Chief Counsel, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, W41-229, Washington, DC
20590, (Tel. 202.366.2262).
For general information about NHTSA's investigation into Takata air
bag inflator ruptures and the related recalls, visit https://www.nhtsa.gov/takata.
SUPPLEMENTARY INFORMATION:
I. Background
The Takata air bag inflator recalls (``Takata recalls'') are the
largest and most complex vehicle recalls in U.S. history. These recalls
currently involve 19 vehicle manufacturers and approximately 67 million
Takata air bag inflators in tens of millions of vehicles in the United
States alone. The recalls are due to a design defect, whereby the
propellant used in Takata's air bag inflators degrades after long-term
exposure to high humidity and temperature cycling. During air bag
deployment, this propellant degradation can cause the inflator to over-
pressurize, causing sharp metal fragments (like shrapnel) to penetrate
the air bag and enter the vehicle compartment. To date, these rupturing
Takata inflators have resulted in the deaths of 18 people across the
United States \1\ and over 400 alleged injuries, including lacerations
and other serious consequences to occupants' face, neck, and chest
areas.
---------------------------------------------------------------------------
\1\ Globally, including the United States, the deaths of at
least 30 people are attributable to these rupturing Takata
inflators.
---------------------------------------------------------------------------
In May 2015, NHTSA issued, and Takata agreed to, a Consent
Order,\2\ and Takata filed four defect information reports (``DIRs'')
\3\ for inflators installed in vehicles manufactured by twelve \4\
vehicle manufacturers. Recognizing that these unprecedented recalls
would involve many challenges for vehicle manufacturers and consumers,
NHTSA began an administrative proceeding in June 2015 providing public
notice and seeking comment (Docket Number NHTSA-2015-0055). This effort
culminated in NHTSA's establishment of a Coordinated Remedy Program
(``Coordinated Remedy'') in November 2015.\5\ The Coordinated Remedy
prioritizes and phases the various Takata recalls not only to
accelerate the repairs, but also--given the large number of affected
vehicles--to ensure that repair parts are available to fix the highest-
risk vehicles first.\6\
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\2\ The May 2015 Consent Order is available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/consent-order-takata-05182015_0.pdf.
\3\ Recall Nos. 15E-040, 15E-041, 15E-042, and 15E-043.
\4\ The twelve vehicle manufacturers affected by the May 2015
recalls were: BMW of North America, LLC; FCA US, LLC (formerly
Chrysler); Daimler Trucks North America, LLC; Daimler Vans USA, LLC;
Ford Motor Company; General Motors, LLC; American Honda Motor
Company; Mazda North American Operations; Mitsubishi Motors North
America, Inc.; Nissan North America, Inc.; Subaru of America, Inc.;
and Toyota Motor Engineering and Manufacturing.
\5\ See Notice of Coordinated Remedy Program Proceeding for the
Replacement of Certain Takata Air Bag Inflators, 80 FR 32197 (June
5, 2015).
The Coordinated Remedy Order, which established the Coordinated
Remedy, is available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf. The Third
Amendment to the Coordinated Remedy Order incorporated additional
vehicle manufacturers, that were not affected by the recalls at the
time that NHTSA issued the CRO into the Coordinated Remedy, and is
available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/final_public_-_third_amendment_to_the_coordinated_remedy_order_with_annex_a-corrected_12.16.16.pdf. The additional affected vehicle
manufacturers are: Ferrari North America, Inc.; Jaguar Land Rover
North America, LLC; McLaren Automotive, Ltd.; Mercedes-Benz US, LCC;
Tesla Motors, Inc.; Volkswagen Group of America, Inc.; and, per
Memorandum of Understanding dated September 16, 2016, Karma
Automotive on behalf of certain Fisker vehicles.
\6\ See Coordinated Remedy Order at 15-18, Annex A; Third
Amendment to the Coordinated Remedy Order at 14-17. These documents,
among other documents related to the Takata recalls discussed
herein, are available on NHTSA's website at https://www.nhtsa.gov/takata.
---------------------------------------------------------------------------
Under the Coordinated Remedy, vehicles are prioritized for repair
parts based on various factors relevant to the safety risk--primarily
on vehicle model year (MY), as a proxy for inflator age, and geographic
region. In the early stages of the Takata inflator recalls, affected
vehicles were categorized as belonging to one of two regions: The High
Absolute Humidity (``HAH'') region (largely inclusive of Gulf Coast
states and tropical island states and territories), or the non-HAH
region (inclusive of the remaining states and the District of
Columbia). On May 4, 2016, NHTSA issued, and Takata agreed to, an
amendment to the November 3, 2015 Consent Order (``ACO''), wherein
these geographic regions were refined based on improved understanding
of the risk, and were then categorized as Zones A, B, and C. Zone A
encompasses the higher risk HAH region as well as certain other
states,\7\ Zone B includes states with more moderate climates (i.e.,
lower heat and humidity than Zone A),\8\ and Zone C includes the
cooler-temperature States largely located in the northern part of the
country.\9\
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\7\ Zone A comprises the following U.S. states and
jurisdictions: Alabama, California, Florida, Georgia, Hawaii,
Louisiana, Mississippi, South Carolina, Texas, Puerto Rico, American
Samoa, Guam, the Northern Mariana Islands (Saipan), and the U.S.
Virgin Islands. Amendment to November 3, 2015 Consent Order at ]
7.a.
\8\ Zone B comprises the following U.S. states and
jurisdictions: Arizona, Arkansas, Delaware, District of Columbia,
Illinois, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska,
Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma,
Pennsylvania, Tennessee, Virginia, and West Virginia. Amendment to
November 3, 2015 Consent Order at ] 7.b.
\9\ Zone C comprises the following U.S. states and
jurisdictions: Alaska, Colorado, Connecticut, Idaho, Iowa, Maine,
Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New
York, North Dakota, Oregon, Rhode Island, South Dakota, Utah,
Vermont, Washington, Wisconsin, and Wyoming. Amendment to November
3, 2015 Consent Order at ] 7.c.
---------------------------------------------------------------------------
While the Takata recalls to date have been limited almost entirely
to Takata PSAN inflators that do not contain a desiccant (a drying
agent)--i.e., ``non-desiccated'' inflators--under a November 3, 2015
Consent Order issued by NHTSA and agreed to by Takata, Takata is
required to test its PSAN inflators that do contain a desiccant--i.e.,
``desiccated'' inflators--in cooperation with vehicle manufacturers
``to determine the service life and safety of such inflators and to
determine whether, and to what extent, these inflator types suffer from
a defect condition, regardless of whether it is the same or similar to
the conditions at issue'' in the DIRs Takata had filed for its non-
desiccated PSAN inflators.\10\
---------------------------------------------------------------------------
\10\ Consent Order ] 28.
---------------------------------------------------------------------------
In February 2016, NHTSA requested Ford's assistance in evaluating
Takata calcium-sulfate desiccated PSDI-5 driver-side air bag inflators,
to which Ford agreed. In June 2016, Ford and Takata began a field-
recovery program to evaluate Takata calcium-sulfate desiccated PSDI-5
driver-side air bag inflators that were original equipment in
[[Page 6953]]
MY 2007-2008 Ford Ranger vehicles in Florida, Michigan, and
Arizona.\11\ Nissan also initiated a similar field-recovery program for
its Versa vehicles in March 2016.\12\ By January 2017, a very limited
number of samples from Ford had been recovered and tested.\13\ In March
2017, Takata and Ford met to review the field data collected from the
inflators returned by Ford and Nissan.\14\ Between March and June 2017,
additional Ford inflators were subjected to live dissection, which
included chemical and dimensional propellant analyses, as well as
ballistic testing.\15\ Also in June, Takata reviewed with Ford and
NHTSA field-return data from Ford inflators.\16\ Ford then met with
NHTSA on July 6, 2017 to discuss the data collected to date, as well as
an expansion plan for evaluating Takata calcium-sulfate desiccated
PSDI-5 driver-side air bag inflators.
---------------------------------------------------------------------------
\11\ See also Recall No. 17E-034. Later, under Paragraph 43 of
the Third Amendment to the Coordinated Remedy Order (``ACRO''),
NHTSA ordered each vehicle manufacturer ``with any vehicle in its
fleet equipped with a desiccated PSAN Takata inflator'' (and not
using or planning to use such an inflator as a final remedy) to
develop a written plan describing ``plans to confirm the safety and/
or service life'' of desiccated PSAN Takata inflators used in its
fleet. ACRO ] 43. Such plans were to include coordination with
Takata for parts recovery from fleet vehicles, testing, and
anticipated/future plans ``to develop or expand recovery and testing
protocols of the desiccated PSAN inflators.'' Id.
\12\ Recall No. 17V-449. The specific Takata calcium-sulfate
desiccated PSDI-5 driver-side air bag inflators installed in these
Nissan Versa vehicles are a different variant than those installed
in the Ford and Mazda vehicles. There are several differences in
design between the variant installed in Nissan vehicles and the
variants installed in the Ford and Mazda vehicles, which are
discussed further below.
\13\ Recall No. 17E-034.
\14\ Id.
\15\ Id.
\16\ Id.
---------------------------------------------------------------------------
Takata analyzed 423 such inflators from the Ford program--as well
as 895 such inflators from the Nissan program.\17\ After a review of
field-return data, on July 10, 2017, Takata, determining that a safety-
related defect exists, filed a DIR for calcium-sulfate desiccated PSDI-
5 driver-side air bag inflators that were produced from January 1, 2005
to December 31, 2012 and installed as original equipment on certain
motor vehicles manufactured by Ford (the ``covered Ford
inflators''),\18\ as well as calcium-sulfate desiccated PSDI-5 driver-
side air bag inflators for those same years of production installed as
original equipment on motor vehicles manufactured by Nissan (the
``covered Nissan inflators'') and Mazda (the ``covered Mazda
inflators'') (collectively, the ``covered inflators'').\19\ As
described further below, the propellant tablets in these inflators may
experience density reduction over time, which could result in the
inflator rupturing, at which point ``metal fragments could pass through
the air bag cushion material, which may result in injury or death to
vehicle occupants.'' \20\
---------------------------------------------------------------------------
\17\ See Recall No. 17V-449.
\18\ These covered Ford inflators are identified by the prefixes
ZN and ZQ.
\19\ Recall No. 17E-034.
\20\ Id.
---------------------------------------------------------------------------
Takata's DIR filing triggered Ford's obligation to file a DIR for
its affected vehicles.\21\ Ford filed a corresponding DIR, informing
NHTSA that it intended to file a petition for inconsequentiality.\22\
Ford then petitioned the Agency, under 49 U.S.C. 30118(d), 30120(h),
and 49 CFR part 556, for a decision that, because Takata's analysis of
the covered Ford inflators does not show propellant tablet-density
degradation, or increased inflation pressure, and certain inflator
design differences exist between the covered Ford inflators and the
covered Nissan inflators, the equipment defect determined to exist by
Takata is inconsequential as it relates to motor vehicle safety in the
Ford vehicles affected by Takata's DIR.\23\ In addition, citing its
commitment to further investigation, Ford stated that it was expanding
its acquisition, testing, and analysis of the covered Ford inflators,
and requested that the Agency allow Ford until March 31, 2018 to
complete certain testing and analysis before deciding on the
Petition.\24\
---------------------------------------------------------------------------
\21\ See 49 U.S.C. 30102(b)(1)(F); 49 CFR part 573; November 3,
2015 Coordinated Remedy Order ]] 45-46. Under 49 CFR 573.5(a), a
vehicle manufacturer is responsible for any safety-related defect
determined to exist in any item of original equipment. See also 49
U.S.C. 30102(b)(1)(C).
\22\ Ford Petition for a Determination of Inconsequentiality and
Request for Deferral of Determination Regarding Certain Ford
Vehicles Equipped with Takata PSDI-5 Desiccated Driver Airbag
Inflators (August 16, 2017) (``Petition'') (cover letter).
\23\ Id. at 1, 11-16. Ford also suggested differences in
``vehicle environment'' between affected Ford and Nissan vehicles as
a potential explanation for inflator degradation-risk differences
between the covered Ford inflators and the covered Nissan inflators.
See Petition at 2. However, Ford did not elaborate on this
suggestion elsewhere in its Petition. See id. at 14-16 (focusing on
design differences between the covered Ford inflators and covered
Nissan inflators).
\24\ Id. at 16-20.
---------------------------------------------------------------------------
In a Notice published in the Federal Register on November 16, 2017,
NHTSA acknowledged its receipt of Ford's Petition, opened a public
comment period on the Petition to expire on December 18, 2017, and
denied Ford's request that the Agency allow Ford until March 31, 2018
to complete certain testing and analysis before the Agency decided on
the Petition.\25\ NHTSA received four comments in response to this
Notice, none of which advocated granting Ford's Petition. Two
individual commenters appeared to express general discontent with the
state of the Takata recalls for non-desiccated PSAN inflators, and a
third individual simply stated opposition to Ford's Petition without
extensive substantive explanation.
---------------------------------------------------------------------------
\25\ See 82 FR 53561.
---------------------------------------------------------------------------
The fourth commenter, the Center for Auto Safety (``CAS''),
emphasized the dangers that Takata air bag inflators can pose,
including the PSDI-5 inflators at issue in Ford's Petition. CAS also
stated a concern that granting Ford's Petition ``would effectively
serve as a decision that these inflators are exempt from future recall
should additional PSAN testing prove a danger.'' \26\ Specific to the
substance of Ford's Petition, CAS commented that the Petition
``contains unsupported assertions as fact, and . . . no corresponding
data or scientific studies confirming the safety of the PSDI-5 airbag
inflators,'' and stated that ``[w]here the petition does reference the
testing conducted by Takata on Ford inflators, there is little evidence
provided to suggest that these inflators will continue to perform after
years of exposure.'' \27\ CAS concluded that, ``[a]t best, the testing
performed by Takata suggests that propellant degradation and inflator
chamber pressure have not yet developed the potential to harm occupants
after ten years in service,'' and that NHTSA should deny Ford's
Petition.\28\
---------------------------------------------------------------------------
\26\ Comments at 2.
\27\ Id.
\28\ Id. at 2-3 (emphasis in original).
---------------------------------------------------------------------------
On October 26, 2018, at an in-person meeting with NHTSA, Ford
shared additional information in support of its Petition, including
internal analyses, test methodologies, and results of tests performed
by Ford and outside parties on behalf of Ford or at Ford's request.\29\
At a subsequent virtual meeting with NHTSA on November 4, 2020, Ford
shared further information in support of its Petition related to
additional work done by a third party since October 2018.\30\
---------------------------------------------------------------------------
\29\ Ford submitted an accompanying slide deck, hereinafter
``October 2018 Presentation.'' This presentation is available on the
public docket.
The written materials Ford submitted do not explicitly identify
one of these third parties, which his hereinafter referred to as
``Third Party.''
\30\ Ford submitted an accompanying slide deck, hereinafter
``November 2020 Presentation.'' This presentation is available on
the public docket.
---------------------------------------------------------------------------
II. Classes of Motor Vehicles Involved
Ford's Petition involves approximately 3.04 million light
[[Page 6954]]
vehicles that contain the covered Ford inflators. These vehicles are:
\31\
---------------------------------------------------------------------------
\31\ Petition at 9-10 & cover letter thereto at 1.
---------------------------------------------------------------------------
Ford Ranger (MY 2007-2011) (build dates January 9, 2006
through December 16, 2011);
Ford Fusion (MY 2006-2012) (build dates March 15, 2005
through July 29, 2012);
Lincoln Zephyr/MKZ (MY 2006-2012) (build dates March 15,
2005 through July 29, 2012);
Mercury Milan (MY 2006-2011) (build dates March 15, 2005
through June 4, 2011);
Ford Edge (MY 2007-2010) (build dates June 15, 2006
through July 12, 2010); and
Lincoln MKX (MY 2007-2010) (build dates June 15, 2006
through July 12, 2010).
III. Defect
The defect is present in Takata calcium-sulfate desiccated PSDI-5
driver-side air bag inflators.\32\ According to its DIR, Takata
produced 2.7 million of these defective inflators from January 1, 2005,
to December 31, 2012.\33\ These inflators are the earliest generation
of Takata desiccated PSAN inflators, and were installed as original
equipment in vehicles sold by Ford, Mazda, and Nissan.\34\ The evidence
makes clear that these inflators pose a significant safety risk. In
these inflators, ``[t]he propellant tablets . . . may experience an
alteration over time''--specifically, ``some of the inflators within
the population analyzed show a pattern of propellant density reduction
over time that is understood to predict a future risk of inflator
rupture''--``which could potentially lead to over-aggressive
combustion'' when the air bag in which they are installed deploys.\35\
This ``could create excessive internal pressure, which could result in
the body of the inflator rupturing upon deployment.'' \36\ In the event
of such a rupture, ``metal fragments could pass through the air bag
cushion material, which may result in injury or death to vehicle
occupants.'' \37\ Rupture potentiality may be influenced by ``several
years of exposure to persistent conditions of high absolute humidity,''
as well as other factors, including ``manufacturing variability or
vehicle type.'' \38\
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\32\ Recall No. 17E-034.
\33\ Id. The Agency notes that there is a discrepancy between
this figure of potentially involved inflators cited in Takata's DIR,
and Ford's approximate volume of affected vehicles subject to its
petition (approximately 3.04 million). Recall 17E-034; Petition at
9-10 & cover letter thereto at 1. That discrepancy does not affect
NHTSA's decision on Ford's Petition.
\34\ Recall No. 17E-034.
\35\ Id.
\36\ Id.
\37\ Id.
\38\ Id.
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IV. Legal Background
The National Traffic and Motor Vehicle Safety Act (the ``Safety
Act''), 49 U.S.C. Chapter 301, defines ``motor vehicle safety'' as
``the performance of a motor vehicle or motor vehicle equipment in a
way that protects the public against unreasonable risk of accidents
occurring because of the design, construction, or performance of a
motor vehicle, and against unreasonable risk of death or injury in an
accident, and includes nonoperational safety of a motor vehicle.'' \39\
Under the Safety Act, a manufacturer must notify NHTSA when it ``learns
the vehicle or equipment contains a defect and decides in good faith
that the defect is related to motor vehicle safety,'' or ``decides in
good faith that the vehicle or equipment does not comply with an
applicable motor vehicle safety standard.'' \40\ The act of filing a
notification with NHTSA is the first step in a manufacturer's statutory
recall obligations of notification and remedy.\41\ However, Congress
has recognized that, under some limited circumstances, a manufacturer
may petition NHTSA for an exemption from the requirements to notify
owners, purchasers, and dealers and to remedy the vehicles or equipment
on the basis that the defect or noncompliance is inconsequential to
motor vehicle safety.\42\
---------------------------------------------------------------------------
\39\ 49 U.S.C. 30102(a)(9).
\40\ Id. 30118(c)(1). ``[A] defect in original equipment, or
noncompliance of original equipment with a motor vehicle safety
standard prescribed under this chapter, is deemed to be a defect or
noncompliance of the motor vehicle in or on which the equipment was
installed at the time of delivery to the first purchaser.'' 49
U.S.C. 30102(b)(1)(F).
\41\ Id. 30118-20.
\42\ Id. 30118(d), 30120(h); 49 CFR part 556.
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``Inconsequential'' is not defined either in the statute or in
NHTSA's regulations, and so must be interpreted based on its
``ordinary, contemporary, common meaning.'' \43\ The inconsequentiality
provision was added to the statute in 1974, and there is no indication
that the plain meaning of the term has changed since 1961--meaning
definitions used today are substantially the same as those used in
1974.\44\ The Cambridge Dictionary defines ``inconsequential'' to mean
``not important,'' or ``able to be ignored.'' \45\ Other dictionaries
similarly define the term as ``lacking importance'' \46\ and
``unimportant.'' \47\
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\43\ See, e.g., Food Mktg. Institute v. Argus Leader Media, 139
S. Ct. 2356, 2363 (2019) (quoting Perrin v. United States, 444 U.S.
37, 42 (1979)).
\44\ See Public Law 93-492, Title I, Sec. 102(a), 88 Stat. 1475
(Oct. 27, 1974); Webster's Third New Int'l Dictionary (principal
copyright 1961) (defining ``inconsequential'' as ``inconsequent;'
defining ``inconsequent'' as ``of no consequence,'' ``lacking worth,
significance, or importance'').
The House Conference Report indicates that the Department of
Transportation planned to define ``inconsequentiality'' through a
regulation; however, it did not do so. See H.R. Rep. 93-1191, 1974
U.S.C.C.A.N. 6046, 6066 (July 11, 1974). Instead, NHTSA issued a
procedural regulation governing the filing and disposition of
petitions for inconsequentiality, but which did not address the
meaning of the term ``inconsequential.'' 42 FR 7145 (Feb. 7, 1977).
The procedural regulation, 49 CFR part 556, has remained largely
unchanged since that time, and the changes that have been made have
no effect on the meaning of inconsequentiality.
\45\ https://dictionary.cambridge.org/us/dictionary/english/inconsequential.
\46\ https://ahdictionary.com/word/search.html?q=inconsequential.
\47\ https://www.merriam-webster.com/dictionary/inconsequential.
---------------------------------------------------------------------------
The statutory context is also relevant to the meaning of
``inconsequential.'' \48\ The full text of the inconsequentiality
provision is:
---------------------------------------------------------------------------
\48\ See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
560, 569-72 (2012) (considering ordinary and technical meanings, as
well as statutory context, in determining meaning of a
``interpreter'' under 28 U.S.C. 1920(6)).
On application of a manufacturer, the Secretary shall exempt the
manufacturer from this section if the Secretary decides a defect or
noncompliance is inconsequential to motor vehicle safety. The
Secretary may take action under this subsection only after notice in
the Federal Register and an opportunity for any interested person to
present information, views, and arguments.\49\
---------------------------------------------------------------------------
\49\ 49 U.S.C. 30118(d), 30120(h).
As described above, the statute defines ``motor vehicle safety'' to
mean ``the performance of a motor vehicle or motor vehicle equipment in
a way that protects the public against unreasonable risk of accidents .
. . and against unreasonable risk of death or injury in an accident . .
. .'' \50\ This is also consistent with the overall statutory purpose:
``to reduce traffic accidents and deaths and injuries resulting from
traffic accidents.'' \51\
---------------------------------------------------------------------------
\50\ Id. 30102(a)(9) (emphasis added).
\51\ Id. 30101.
---------------------------------------------------------------------------
The statute explicitly allows a manufacturer to seek an exemption
from carrying out a recall on the basis that either a defect or a
noncompliance is inconsequential to motor vehicle safety.\52\ However,
in practice, substantially all inconsequentiality petitions have
related to noncompliances, and it has been extremely rare for a
manufacturer to seek an exemption in the case of a defect. This is
because a manufacturer
[[Page 6955]]
does not have a statutory obligation to conduct a recall for a defect
unless and until it ``learns the vehicle or equipment contains a defect
and decides in good faith that the defect is related to motor vehicle
safety,'' or NHTSA orders a recall by making a ``final decision that a
motor vehicle or replacement equipment contains a defect related to
motor vehicle safety.'' \53\ Until that threshold determination has
been made by either the manufacturer or the Agency, there is no need
for a statutory exception on the basis that a defect is inconsequential
to motor vehicle safety. And since a defect determination involves a
finding that the defect poses an unreasonable risk to safety, asking
the Agency to make a determination that a defect posing an unreasonable
risk to safety is inconsequential has heretofore been almost
unexplored.\54\
---------------------------------------------------------------------------
\52\ Id. 30118(d), 30120(h).
\53\ Id. 30118(c)(1).
\54\ NHTSA notes that the current petition is different in that
the inflators were declared defective by the supplier of the airbag,
and that Ford's defect notice was filed in response to the
supplier's notice.
---------------------------------------------------------------------------
Given this statutory context, a manufacturer bears a heavy burden
in petitioning NHTSA to determine that a defect related to motor
vehicle safety (which necessarily involves an unreasonable risk of an
accident, or death or injury in an accident) is nevertheless
inconsequential to motor vehicle safety. In accordance with the plain
meaning of ``inconsequential,'' the manufacturer must show that a risk
posed by a defect is not important or is capable of being ignored. This
appropriately describes the actual consequence of granting a petition
as well. The manufacturer would be relieved of its statutory
obligations to notify vehicle owners and to remedy the defect, and
effectively to ignore the defect as unimportant from a safety
perspective. Accordingly, the threshold of evidence necessary for a
manufacturer to carry its burden of persuasion that a defect is
inconsequential to motor vehicle safety is difficult to satisfy. This
is particularly true where the defect involves a potential failure of
safety-critical equipment, as is the case here.
The Agency necessarily determines whether a defect or noncompliance
is inconsequential to motor vehicle safety based on the specific facts
before it. The scarcity of defect-related inconsequentiality petitions
over the course of the Agency's history reflects the heavy burden of
persuasion, as well as the general understanding among regulated
entities that the grant of such relief would be quite rare. The Agency
has recognized this explicitly in the past. For example, in 2002, NHTSA
stated that ``[a]lthough NHTSA's empowering statute alludes to the
possibility of an inconsequentiality determination with regard to a
defect, the granting of such a petition would be highly unusual.'' \55\
---------------------------------------------------------------------------
\55\ Letter from J. Glassman, NHTSA, to V. Kroll, Adaptive
Driving Alliance (Sept. 23, 2002), https://www.nhtsa.gov/interpretations/ada3.
---------------------------------------------------------------------------
Of the four known occasions in which the Agency has previously
considered petitions contending that a defect is inconsequential to
motor vehicle safety, the Agency has granted only one of the petitions,
nearly three decades ago, in a vastly different set of
circumstances.\56\ In that case, the defect was a typographical error
in the vehicle's gross vehicle weight rating (GVWR) that had no impact
on the actual ability of the vehicle to carry an appropriate load.
NHTSA granted a motorcycle manufacturer's petition, finding that a
defect was inconsequential to motor vehicle safety where the GVWR was
erroneously described as only 60 lbs., which error was readily apparent
to the motorcycle operator based upon both common sense and the fact
that the 330 lbs. front axle rating and 540 lbs. rear axle rating were
listed directly below the GVWR on the same label.\57\ Moreover, the
error did not actually impact the ability of the motorcycle to carry
the weight for which it was designed.\58\
---------------------------------------------------------------------------
\56\ See id.
\57\ Suzuki Motor Co., Ltd.; Grant of Petition for
Inconsequential Defect, 47 FR 41458, 41459 (Sept. 20, 1982) and 48
FR 27635, 27635 (June 16, 1983).
\58\ Id.
---------------------------------------------------------------------------
On the other hand, NHTSA denied another petition concerning a
vehicle's weight label where there was a potential safety impact. NHTSA
denied that petition from National Coach Corporation on the basis that
the rear gross axle weight rating (RGAWR) for its buses was too low and
could lead to overloading of the rear axle if the buses were fully
loaded with passengers.\59\ NHTSA rejected arguments that most of the
buses were not used in situations where they were fully loaded with
passengers and that there were no complaints.\60\ NHTSA noted that its
Office of Defects Investigation had conducted numerous investigations
concerning overloading of suspensions that resulted in recalls, that
other manufacturers had conducted recalls for similar issues in the
past, and that, even if current owners were aware of the issue,
subsequent owners were unlikely to be aware absent a recall.\61\
---------------------------------------------------------------------------
\59\ Nat'l Coach Corp.; Denial of Petition for Inconsequential
[Defect], 47 FR 49517, 49517 (Nov. 1, 1982). NHTSA's denial was
erroneously titled ``Denial of Petition for Inconsequential
Noncompliance''; the discussion actually addressed the issue as a
defect. See id.; see also Nat'l Coach Corp.; Receipt of Petition for
Inconsequential Defect, 47 FR 4190 (Jan. 28, 1982).
\60\ Id. at 49517-18.
\61\ Id. at 49518.
---------------------------------------------------------------------------
NHTSA also denied a petition asserting that a defect was
inconsequential to motor vehicle safety where the defect involved
premature corrosion of critical structure components (the vehicle's
undercarriage), which could result in a crash or loss of vehicle
control.\62\ Fiat filed the petition preemptively, following NHTSA's
initial decision that certain Fiat vehicles contained a safety-related
defect.\63\ In support of its petition, Fiat argued that no crashes or
injuries resulted from components that failed due to corrosion, and
that owners exercising due diligence had adequate warning of the
existence of the defect.\64\ NHTSA rejected those arguments and both
finalized its determination that certain vehicles contained a safety-
related defect (i.e., ordered a recall) and found that the defect was
not inconsequential to motor vehicle safety.\65\ NHTSA explained that
the absence of crashes or injuries was not dispositive: ``the
possibility of an injury or accident can reasonably be inferred from
the nature of the component involved.'' \66\ NHTSA also noted that the
failure mode was identical to another population of vehicles for which
Fiat was carrying out a recall.\67\ The Agency rejected the argument
that there was adequate warning to vehicle owners, explaining that the
average owner does not inspect the underbody of a car and that interior
corrosion may not be visible.\68\
---------------------------------------------------------------------------
\62\ Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134, 2137, 41 (Jan.
10, 1980).
\63\ Fiat Motors of N. Am., Inc.; Receipt of Petition for
Determination of Inconsequential Defect, 44 FR 60193, 60193 (Oct.
18, 1979); Fiat Motors Corp. of N. Am.; Receipt of Petition for
Determination of Inconsequential Defect, 44 FR 12793, 12793 (Mar. 8,
1979).
\64\ See, e.g., 45 FR 2134, 2141 (Jan. 10, 1980).
\65\ Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2137-41 (Jan. 10,
1980). Fiat also agreed to a recall of certain of the vehicles, and
NHTSA found that Fiat did not reasonably meet the statutory recall
remedy requirements. Id. at 2134-37.
\66\ Id. at 2139.
\67\ Id.
\68\ Id. at 2140.
---------------------------------------------------------------------------
Most recently, the Agency denied a petition asserting that a defect
in non-desiccated Takata PSAN air bag inflators
[[Page 6956]]
was inconsequential to motor vehicle safety, where the defect involved
the degradation of inflator propellant that could cause the inflator to
over-pressurize during air bag deployment--causing metal fragments to
penetrate the air bag and enter the vehicle compartment toward vehicle
occupants.\69\ In support of this petition and its argument that the
inflators at issue were not at risk of rupture--being ``more
resilient'' to rupture than other Takata PSAN inflators--General Motors
made arguments and submitted evidence regarding inflator design
differences and vehicle features, testing and field data analyses,
inflator aging studies, predictive modeling, risk assessments, and
potential risk created by conducting repairs.\70\ The Agency rejected
these arguments and, among other things, observed the severe nature of
the safety risk and that the defect could not be discerned even by a
diligent vehicle owner.\71\ The Agency also specifically noted the
heavy burden on General Motors to demonstrate inconsequentiality,
stating that ``[t]he threshold of evidence necessary to prove the
inconsequentiality of a defect such as this one--involving the
potential performance failure of safety-critical equipment--is very
difficult to overcome.'' \72\
---------------------------------------------------------------------------
\69\ Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020).
\70\ Id. at 76161-164, 76167.
\71\ Id. at 76173.
\72\ Id.
---------------------------------------------------------------------------
Agency practice over several decades therefore shows that
inconsequentiality petitions are rarely filed in the defect context,
and virtually never granted. Nonetheless, in light of the importance of
the issues here, and the fact that Ford's defect notification was filed
in response to the notification provided by Ford's supplier, the Agency
also considered the potential usefulness of the Agency's precedent on
noncompliance. The same legal standard--``inconsequential to motor
vehicle safety''--applies to both defects and noncompliances.\73\
---------------------------------------------------------------------------
\73\ 49 U.S.C. 30118(d), 30120(h).
---------------------------------------------------------------------------
In the noncompliance context, in some instances, NHTSA has
determined that a manufacturer met its burden of demonstrating that a
noncompliance was inconsequential to safety. For example, labels
intended to provide safety advice to an occupant that may have a
misspelled word, or that may be printed in the wrong format or the
wrong type size, have been deemed inconsequential where they should not
cause any misunderstanding, especially where other sources of correct
information are available.\74\ These decisions are similar in nature to
the lone instance where NHTSA granted a petition for an inconsequential
defect, as discussed above.
---------------------------------------------------------------------------
\74\ See, e.g., Gen. Motors, LLC.; cf. Grant of Petition for
Decision of Inconsequential Noncompliance, 81 FR 92963 (Dec. 20,
2016). By contrast, in Michelin, we reached the opposite conclusion
under different facts. There, the defect was a failure to mark the
maximum load and corresponding inflation pressure in both Metric and
English units on the sidewall of the tires. Michelin N. America,
Inc.; Denial of Petition for Decision of Inconsequential
Noncompliance, 82 FR 41678 (Sept. 1, 2017).
---------------------------------------------------------------------------
However, the burden of establishing the inconsequentiality of a
failure to comply with a performance requirement in a standard--as
opposed to a labeling requirement--is more substantial and difficult to
meet. Accordingly, the Agency has not found many such noncompliances
inconsequential.\75\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
---------------------------------------------------------------------------
\75\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
---------------------------------------------------------------------------
An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\76\ NHTSA also does not
consider the absence of complaints or injuries to show that the issue
is inconsequential to safety.\77\ ``Most importantly, the absence of a
complaint does not mean there have not been any safety issues, nor does
it mean that there will not be safety issues in the future.'' \78\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \79\
---------------------------------------------------------------------------
\76\ 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).
\77\ See Combi USA Inc., Denial of Petition for Decision of
Inconsequential Noncompliance, 78 FR 71028, 71030 (Nov. 27, 2013).
\78\ Morgan 3 Wheeler Ltd.; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\79\ 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'').
---------------------------------------------------------------------------
Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\80\ Similarly, NHTSA has rejected
petitions based on the assertion that only a small percentage of
vehicles or items of equipment are actually likely to exhibit a
noncompliance. The percentage of potential occupants that could be
adversely affected by a noncompliance does not determine the question
of inconsequentiality. Rather, the issue to consider is the consequence
to an occupant who is exposed to the consequence of that
noncompliance.\81\ These considerations are also relevant when
considering whether a defect is inconsequential to motor vehicle
safety.
---------------------------------------------------------------------------
\80\ 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).
\81\ 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).
---------------------------------------------------------------------------
V. Information Before the Agency
Ford advances several arguments in support of its Petition. In sum,
Ford asserts that there is a difference in expected performance between
desiccated and non-desiccated Takata PSAN inflators; that there are
design differences between its covered inflators and another variant of
the same type; that although there are signs of aging in field returns,
there is no indication of propellant degradation that could lead to
rupture and no imminent safety risk; and that no ruptures of the
covered inflators are expected to occur for at least over twenty-six
years of cumulative exposure in the worst-case environment, for the
worst-case vehicle configuration, and worst-case customer usage. Ford
supports these arguments with its own analyses, results of inflator
testing and analyses conducted by three outside entities, and
predictive modeling.
[[Page 6957]]
A. Ford's Statistical Analysis of MEAF Data
Ford undertook its own statistical analysis of data in the Master
Engineering Analysis File (``MEAF''),\82\ which Ford contends ``shows a
clear difference in expected field performance between desiccated and
non-desiccated inflators,'' and ``suggests that the factors causing
degradation in the non-desiccated population of inflators are not
currently affecting'' the covered Ford inflators.\83\ Four charts
underpin Ford's assertions.
---------------------------------------------------------------------------
\82\ For several years, Takata has inspected, tested, and
analyzed inflators returned from the field. The compiled and
summarized test results for hundreds of thousands of inflators are
contained in the Takata MEAF, which is updated on an ongoing basis.
Takata's MEAF file was available to the Agency in making its
determination, and it is from this file that some of the information
considered by the Agency was derived, and discussed herein.
\83\ November 2020 Presentation at 11; October 2018 Presentation
at 14.
---------------------------------------------------------------------------
The first chart is of box plots of primary-chamber pressures of
covered Ford inflators by age, which Ford asserts shows there is ``[n]o
significant trend of primary pressure increase with inflator age.''
\84\ The second chart Ford provides is a lognormal histogram
illustrating the frequency of maximum values of primary-chamber
pressure of covered Ford inflators, which Ford asserts shows that the
probability of a covered Ford inflator exceeding a 92.37 MPa
``threshold'' \85\ is estimated as less than 1 x
10-\15\.\86\ Ford's third chart illustrates predicted
primary-chamber pressure for covered Ford inflators with probability
curves for three module ages--15, 20, and 30 years old, which Ford
contends shows that the probability of a module with thirty years in
service exceeding a 92.37 MPa threshold is 6.56 x
10-\6\.\87\ And a fourth chart consists of probability plots
(log normalized, 95% confidence) comparing primary-chamber pressure
maximum values between Ford modules with desiccated Takata PSAN
inflators and Ford modules with non-desiccated Takata PSAN
inflators.\88\ Ford states this shows that the probability of exceeding
a 92.37 MPa threshold for desiccated parts ``is several orders of
magnitude lower than that of non-desiccated parts.'' \89\
---------------------------------------------------------------------------
\84\ November 2020 Presentation at 7; October 2018 Presentation
at 10.
\85\ This appears to be the level at which Ford considers an
abnormal deployment to be a potentiality. This 92.37 figure is used
throughout Ford's materials.
\86\ November 2020 Presentation at 8; October 2018 Presentation
at 11.
\87\ November 2020 Presentation at 9; October 2018 Presentation
at 12.
\88\ November 2020 Presentation at 10; October 2018 Presentation
at 13.
\89\ Id.
---------------------------------------------------------------------------
B. Takata's Live Dissections and Ballistic Testing
According to Ford, Takata analyzed 1,992 calcium-sulfate desiccated
PSDI-5 driver-side air bag inflators returned from the field from Ford
vehicles, which included 1,008 inflators from Ford Ranger vehicles \90\
and 984 from Fusion/Edge vehicles.\91\ Analysis involved both live
dissections and ballistic testing, with 1,257 inflators subject to
ballistic testing, and 735 inflators subject to live dissection.\92\
Ford concludes from the results that while ``no indication of
degradation that could lead to a rupture and no imminent risk to safety
has been identified,'' Takata's analysis did ``identif[y] signs of
aging'' in the inflators.\93\
---------------------------------------------------------------------------
\90\ Ford noted in its Petition that twenty of these inflators
were from salvage yards ``where the conditions used to store the
parts cannot be determined.'' Petition at 11.
\91\ November 2020 Presentation at 12; October 2018 Presentation
at 7. Takata also analyzed 895 inflators from Nissan Versa vehicles.
See Recall No. 17V-449; Petition at 11 (``approximately 1,000'').
\92\ November 2020 Presentation at 12; October 2018 Presentation
at 15; see Petition at 14.
\93\ November 2020 Presentation at 12; October 2018 Presentation
at 15.
---------------------------------------------------------------------------
Ford did not much further explain the nature or results of this
ballistic testing and live dissection in either its October 2018 or
November 2020 Presentations. Ford does, however, further describe such
analyses with respect to the approximately 423 inflators from Ford
Rangers that Takata had analyzed at that point.\94\
---------------------------------------------------------------------------
\94\ Petition at 14. Ford noted that twenty of the inflators
from Ford Rangers were from salvage yards ``where the conditions
used to store the parts cannot be determined.'' Id. at 11.
When Ford filed its Petition, Takata had analyzed over 1,300 of
its calcium-sulfate desiccated PSDI-5 driver-side air bag inflators:
The approximately 423 inflators from Ford Rangers, and the remainder
from Nissan Versa vehicles. Id. at 14.
---------------------------------------------------------------------------
Ford asserts that about 360 live dissections of the Ford Ranger
inflators demonstrated ``consistent inflator output performance''--
specifically, that measurements of ignition-tablet discoloration,
``generate'' density,\95\ and moisture content of certain inflator
constituents did not indicate a reduction-in-density trend.\96\ Ford
describes in its Petition that during visual inspection of the covered
Ford inflators, ``Takata observed slight discoloration of the
propellant tablets in the primary and secondary chambers,'' but that
such discoloration ``is not an indicant by itself that the propellant
has degraded''--only that the propellant had been exposed to elevated
temperatures.\97\ Takata also observed changes in color in the primary
and secondary booster auto-ignition tablets.\98\ On a scale of 1-10,
with a discoloration of 10 ``indicating severe exposure'' to elevated
temperatures, Ford states that ``the vast majority'' \99\ of observed
discoloration in inflators obtained from vehicles in certain high-heat-
and-humidity states ``was within the 1-3 range after seven to eleven
years of vehicle service,'' while acknowledging that ``[s]even samples
were in the 5-6 range.'' \100\ Accordingly, Ford asserts, the results
of visual inspection ``evidence time-in-service, but not tablet density
loss.'' \101\ Ford's Petition also states that Takata took density
measurements of propellant tablets in the primary and secondary
chambers of covered Ford inflators.\102\ ``[A] small number of samples
\103\ were measured with a density slightly below the minimum average
tablet production specification,'' although Ford noted that ``a nearly
equal number . . . measured densities higher than the maximum average
tablet production specification.'' \104\ Ford argues that such data
does ``not support a conclusion that tablet density is degrading in the
inflators designed for Ford after 10 years of service.'' \105\
---------------------------------------------------------------------------
\95\ Ford utilizes the term ``generate'' throughout its
Petition. See, e.g., Petition at 3 (``generate system'') & 6
(``generate''). In the Agency's experience, ``generate'' is not
among nomenclature commonly used with respect to air bag inflators--
NHTSA is more familiar with the term ``generant.'' In context,
however, it appears that Ford is referring to an inflator's function
generating gas to inflate the air bag, or the air bag inflator's
propellant itself. See id.; see also id. at 15 (referring to
``Generate--2004,'' indicating a reference to a particular type of
propellant produced by Takata).
\96\ Id. at 11-12.
\97\ Id. at 12.
\98\ Id.
\99\ Ford did not state the exact size of this ``vast
majority.''
\100\ Petition at 12.
\101\ Id.
\102\ Id.
\103\ Ford did not state the exact size of this sample.
\104\ Petition at 12-13.
\105\ Id. at 13.
---------------------------------------------------------------------------
Ford contends in its Petition that its conclusions are further
supported by forty-seven ballistic deployment tests that showed no
inflator exceeding the production primary-chamber pressure performance
specifications.\106\ The results of these tests are, according to Ford,
consistent with data from newly manufactured PSDI-5 inflators in Ford
vehicles.\107\ Ford also emphasizes that Takata did not observe
pressure vessel ruptures or pressure excursions on any
[[Page 6958]]
desiccated PSDI-5 inflator, and that ``[t]he maximum primary chamber
pressure that Takata measured'' in covered Ford inflators was about 15
MPa lower than that measured in a covered Nissan inflator (which
exhibited primary chamber pressure exceeding 60 MPa).\108\
---------------------------------------------------------------------------
\106\ Id. at 12-13.
\107\ Id. at 14.
\108\ Id.
---------------------------------------------------------------------------
C. ``Design Differences'' in Inflators Equipped in Ford Vehicles
In its Petition, Ford contends that ``[t]here are significant
design differences'' in the covered Ford inflators when compared to the
covered Nissan inflators, and that such differences may explain
differences observed between the inflator variants in generate
properties and during testing.\109\ Ford cites its inflator variant as
having ``fewer potential moisture sources'' because the inflators
contain only two, foil-wrapped auto-ignition tablets (instead of three
that are not foil-wrapped), contain divider disk foil tape, and utilize
certain EPDM generate cushion material (instead of ceramic) that
``reduces generate movement over time, maintains generate integrity,
and leads to consistent and predictable burn rates.'' \110\ Ford posits
that such differences may explain differences observed between the two
inflator variants' generate material properties, and ballistic-testing
results.\111\
---------------------------------------------------------------------------
\109\ Id. at 14-15.
\110\ Id. at 15-16 (providing table).
\111\ Id. at 14-15; see also November 2020 Presentation at 31;
October 2018 Presentation at 29-30.
---------------------------------------------------------------------------
D. Northrop Grumman's Analysis
Northrop Grumman (``NG'') analyzed the covered Ford inflators,
results of which were presented to the Agency subsequent to Ford's
filing of its Petition. According to Ford, NG's assessment of field-
return parts and modeling ``identified expected signs of aging but no
indication of degradation that could lead to rupture,'' and the
assessment ``identified clear and significant differences between
desiccated and non-desiccated inflators of similar age and design.''
\112\
---------------------------------------------------------------------------
\112\ November 2020 Presentation at 13; October 2018
Presentation at 16.
---------------------------------------------------------------------------
Specifically, NG undertook 58 dissections, 138 tank tests, MEAF
analysis, design comparisons, CT scans, and ballistic modeling. The
inflators subject to dissection and tank tests included inflators from
Ford Rangers (2006-2007, prefix ZN) and Fusions (2006-2008, prefix ZQ)
in South Florida; Edges (2006-2008, prefix ZQ) in South Florida and
Georgia; Rangers (2006-2007, prefix ZN) in Arizona, Rangers in Michigan
(2006-2008, prefix ZN); and virgin inflators (prefixes ZN and ZQ).\113\
---------------------------------------------------------------------------
\113\ November 2020 Presentation at 14; October 2018
Presentation at 17.
---------------------------------------------------------------------------
NG also completed probability-of-failure projections for the
covered Ford inflators under its inflator aging model, on which Ford
updated the Agency in November 2020.\114\ Ford considered the results
of those projections in conjunction with anticipated vehicle attrition
and the probabilities of crashes with air bag deployments.\115\
---------------------------------------------------------------------------
\114\ November 2020 Presentation at 22.
\115\ Id.
---------------------------------------------------------------------------
1. Live Dissections
According to Ford, NG performed various assessments related to live
dissections of inflators: \116\
---------------------------------------------------------------------------
\116\ November 2020 Presentation at 15-16; October 2018
Presentation at 18-19.
---------------------------------------------------------------------------
Propellant health analysis. According to Ford, the covered
Ford inflators are susceptible to energetic disassembly when tablet
density is at 1.64 g/cc or lower,\117\ and the densities of the tablets
from such returned inflators were measured ``well above'' 1.63-1.64 g/
cc.
---------------------------------------------------------------------------
\117\ Although not explained, this assertion appears to be
derived from NG's ballistic modeling, which found that ``[a]n
equivalent low press tablet density below 1.631 g/cc was required to
produce sufficient augmented burning.'' See November 2020
Presentation at 17; October 2018 Presentation at 20.
---------------------------------------------------------------------------
AI-1 analysis. NG measured the propellant tablets for
outer diameter (``OD''), weight, and color. Ford states that the OD and
weight of field returns were ``similar'' to virgin inflators. Also
according to Ford, ``[i]n older undesiccated inflators, the AI-1 tablet
color is an indicator of age based on humidity and temperature exposure
in the field, and the returned inflators retained a 0-2 color (10 the
darkest),'' which was ``similar'' to virgin inflators. Ford further
notes that thermogravimetric analysis ``indicated similar weight loss
to virgin samples.''
Moisture content. According to Ford, the propellants from
the returned inflators were lower in moisture content than non-
desiccated PSDI-5 inflators (prefix ZA) and desiccated PSDI-5 (prefix
YT) inflators.
X-ray micro-computed tomography (micro-CT scan). Ford
asserts that ``[n]o definitive trend was observed with respect to void
count, size, or total volume, and tablet density.'' According to Ford,
``[t]ypically, 20,000 voids were identified ranging in size from
1x10-\5\ to .3 cubic millimeters.''
Scanning electron microscope (SEM). NG processed 2004
tablets from non-desiccated PSAN inflators (prefix ZA) through the
Independent Testing Coalition's (``ITC'') aging study (1920
cycles).\118\ Those had ``higher surface roughness than tablets from
Ford desiccated inflators.'' Propellant in desiccated PSDI-5 inflators
(prefixes GE and YT) aged at 1920 cycles, according to Ford, also had
higher surface roughness than propellant in the field-returned Ford
PSDI-5 inflators (prefixes ZN and ZQ)--which had surface roughness
``similar'' to propellant in virgin inflators.
---------------------------------------------------------------------------
\118\ The ITC is funded by a consortium of vehicle
manufacturers.
---------------------------------------------------------------------------
Burn rate (closed bomb). According to Ford, ``[n]o
significant differences were observed between 2004 propellant from
virgin and returned inflators,'' and ``[n]o anomalous pressure traces
were observed.''
O-ring. Ford states that ``[a]lthough a significant
decrease in [O]-ring squeeze is observed in the 2006-8 PSDI-5D inflator
igniter assembly sealing system, the remaining squeeze is deemed
acceptable to prevent moisture leakage around the O-ring.'' According
to Ford, older O-rings have a loss of resiliency from a decrease in the
horizontal diameter that occurs with increasing age.
Inflator Tank Testing. Ford states that results showed one
Ford PSDI-5 inflator (ZN prefix) with a chamber pressure approximately
20% higher than the average of the other tested inflators. ``All other
PSDI-5 ZN curves were grouped tightly with the virgin inflators,'' as
were, according to Ford, the ZQ prefix inflators. Ford also notes that
the inflator with the higher pressure was from a vehicle in Michigan,
and that the pressure ``was well below any expected inflator rupture
pressure.''
2. Ballistic Modeling
NG developed ballistic models ``to investigate the observed
performance behavior of Ford PSDI-5 ZN and ZQ inflators and to evaluate
the potential sensitivity of the inflators to certain design
deviations.'' \119\ Representative performance models were anchored to
measured pressure data from virgin inflators.\120\ ``The models
simulated inflator ignition, chamber volumetric filling, burst tape
rupture, ignition delay between chambers and steady state combustion.''
\121\ According to Ford, the PSDI-5 design required ``significant
degradation of the 2004 propellant tablets'' to obtain failure
pressures.\122\ Specifically, ``[a]n equivalent low press tablet
density below 1.631 g/cc was
[[Page 6959]]
required to produce sufficient augmented burning.'' \123\ Ford states
that such degradation was not observed in the field returns of covered
Ford inflators.\124\
---------------------------------------------------------------------------
\119\ November 2020 Presentation at 17; October 2018
Presentation at 20.
\120\ Id.
\121\ Id.
\122\ Id.
\123\ Id.
\124\ Id.
---------------------------------------------------------------------------
3. MEAF Assessment
NG analyzed MEAF data up to February 2018 to determine whether
covered Ford inflators had energetic deployment (``ED'') rates were
dependent on platform, inflator age, climate zone, or other
factors.\125\ Among the ``key'' findings according to Ford: For non-
desiccated PSDI-5 inflators, abnormal deployments began to occur after
10.5 years, and EDs after 11.5 years; inflator variants with calcium-
sulfate desiccant experienced normal deployments up to 12.5 years
(which at the time were the oldest inflators contained in the MEAF);
the calcium-sulfate desiccant ``appear[ed] to be largely saturated
after 8 years;'' and the covered Ford inflators contained less moisture
in the 3110 booster propellant than the non-desiccated inflators.\126\
---------------------------------------------------------------------------
\125\ Id.
\126\ Id.
---------------------------------------------------------------------------
4. Probability-of-Failure Projections
In its November 2020 Presentation to the Agency, Ford cites NG's
PSAN Inflator Test Program and Predictive Aging Model Final Report from
October 2019 (``NG Model''),\127\ first observing that this report
indicates that for another OEM's PSDI-5 inflator with a calcium-sulfate
desiccant (prefix YT), a T3 vehicle in Miami with the most severe aging
(top 1%, hereinafter a ``1% usage'' vehicle), may reach a probability
of failure of 1 in 10,000 (.01%) in less than thirty years.\128\ Ford
then states that under the NG model, for the Ford covered inflators
prefixes ZN and ZQ, a 1% usage T3 vehicle in Miami has an expected 25.7
and 25.6 years, respectively, to a .01% probability of failure.\129\
Ford further states that this is an additional two years when compared
to the YT prefix version of the inflator (of another OEM).\130\
---------------------------------------------------------------------------
\127\ NG previously submitted this report to the Agency, which
contains information regarding the safety of desiccated Takata PSAN
inflators. The report is available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ngis_takata_investigation_final_report_oct_2019.pdf.
\128\ November 2020 Presentation at 23. T3 refers to a
``temperature band.'' Under NG's report, there are three temperature
bands--T1, T2, T3. T3 is the highest temperature band, representing
vehicles with maximum inflator temperatures near or slightly above
70[deg]C. NG Report at 18-19; see November Presentation at 24. The
``1% usage vehicle'' refers to a vehicle with the most severe
environmental exposure based on customer usage. See November 2020
Presentation at 24.
\129\ November 2020 Presentation at 25.
\130\ Id.
---------------------------------------------------------------------------
Ford then asserts that the earliest Fusion/Milan/MKZ vehicles
equipped with the covered Ford inflators were built in 2005, and that
if those vehicles perform as T3 vehicles, the earliest calendar year
for a 1 in 10,000 probability of failure is 2031 for a 1% usage
vehicle.\131\ Similarly, Ford asserts that the earliest Ranger, Edge/
MKX vehicles equipped with the covered Ford inflators were built in
2006, and that if those vehicles perform as T3 vehicles, the earliest
calendar year for a 1 in 10,000 probability of failure is 2032 for a 1%
usage vehicle.\132\
---------------------------------------------------------------------------
\131\ Id. at 26.
\132\ Id.
---------------------------------------------------------------------------
Ford builds on these assertions by stating that ``for a rupture to
occur the vehicle must be in service and experience a crash resulting
in airbag deployment,'' and that based on vehicle attrition and crash
statistics, Ford does not project a field event at twenty-six years of
service.\133\ Ford provides the below data in support: \134\
---------------------------------------------------------------------------
\133\ Id.
\134\ Id.
\135\ Ford notes this was ``[a]djusted for the population
attrition & accident probabilities using vehicles currently
registered in Florida (not all of which have always been registered
in Florida).'' Id.
----------------------------------------------------------------------------------------------------------------
Probability Expected
of inflator cumulative
Vehicle Model year Volume rupture \135\ events at 26
(Florida) at 26 years in years in
service service
----------------------------------------------------------------------------------------------------------------
Fusion.......................................... 2006-2012 75,232 5.08E-07 0.038
MKZ............................................. 2006-2012
Milan........................................... 2006-2011
Edge............................................ 2007-2010 39,161 6.34E-07 0.025
MKX............................................. 2007-2010
Ranger.......................................... 2007-2011
----------------------------------------------------------------------------------------------------------------
Ford therefore states that the earliest a Ford vehicle in a Miami-
type environment may reach a .01% probability of failure is over a
decade in the future for a 1%-usage T3 vehicle and that, in other
words, ``the predictive model suggests that no inflator ruptures are
expected to occur for at least 26 years of cumulative exposure in the
worst case environment, worst case vehicle configuration, and worst
case customer usage'' (i.e., 2031 for the oldest vehicles).\136\
---------------------------------------------------------------------------
\136\ Id. at 26-27.
---------------------------------------------------------------------------
Ford also makes several other observations, including that: \137\
---------------------------------------------------------------------------
\137\ Id. at 27.
---------------------------------------------------------------------------
``[s]tudying parts prior to approximately 16-18 years in
service would not identify meaningful inflator aging information''
(i.e., 2023 for the oldest vehicles);
the ITC, in coordination with NG, is conducting a
surveillance program for desiccated Takata PSAN inflators, and data
gathered from that program can validate the NG models;
``[w]ith newer inflators that have not yet shown signs of
aging, there is a significant opportunity for improving the fidelity
and accuracy of the model with enhanced anchoring data''; and
there is time for a separate surveillance program for the
covered Ford inflators ``well before any potential risk is projected''
after the results of NG's surveillance program that are expected in
2021.
Ford concludes that it ``believes that the current data indicates
that the subject inflators do not present an unreasonable risk to
safety and that it supports granting the petition.'' \138\
---------------------------------------------------------------------------
\138\ Id.
---------------------------------------------------------------------------
E. Additional Third-Party Analysis
According to Ford, an additional Third Party found that no pressure
excursions were detected in the covered Ford inflators analyzed to
date.\139\ The Third Party also found that some field inflators
experienced porosity growth greater than virgin inflators with 2004
propellant, ``but not to a level sufficient to cause pressure
excursions in bomb
[[Page 6960]]
testing.'' \140\ In addition, ``[n]o significant increase in tablet ODs
was observed for field populations'' of covered inflators.\141\ These
findings were derived from live dissections performed on 39 inflators
and deployment tests on 65 inflators.\142\ The inflators were field-
return parts obtained from Florida, Michigan, and Ohio.\143\
---------------------------------------------------------------------------
\139\ Id. at 18; October 2018 Presentation at 21.
\140\ Id.
\141\ Id.
\142\ Id.
\143\ Id.
---------------------------------------------------------------------------
VI. Response to Ford's Supporting Information and Analyses
Ford, through its Petition and supporting analysis, seeks to show
that the covered Ford inflators are not at risk of rupture such that
the defect is inconsequential to safety. First, as noted above, when
taking into consideration the Agency's noncompliance precedent, an
important factor is also the severity of the consequence of the defect
were it to occur--i.e., the safety risk to an occupant who is exposed
to an inflator rupture. Ford did not provide any information to suggest
that result would be any different were a covered Ford inflator to
rupture in a Ford vehicle.
And second, as a general matter, at various points, Ford's Petition
implicitly appears to adopt the covered Nissan inflators as a standard
for inconsequentiality. However, differentiating the covered Ford
inflators from the covered Nissan inflators, e.g., through ballistic-
testing or live-dissection results, does not directly answer the
question of whether the defect in the covered Ford inflators is, on its
own merits, inconsequential to motor vehicle safety. Even assuming that
the covered Ford inflators compare favorably to the covered Nissan
inflators, NHTSA has not made an inconsequentiality determination for
the covered Nissan inflators--nor will it be doing so.\144\ Ford
similarly argued in subsequent materials, for example, with regard to
NG's live dissections and predictive-model results, as well as Ford's
statistical analysis of the MEAF, that the covered Ford inflators
compared favorably to other inflator variants, and even to non-
desiccated inflators. Merely demonstrating that one's own defective
product compares favorably to another's defective product does not
suffice for an inconsequentiality determination.
---------------------------------------------------------------------------
\144\ Ford's comparisons might carry more evidentiary weight if,
for instance, the Agency had previously granted an
inconsequentiality petition from Nissan for its covered inflators.
Nissan did not petition the Agency for an inconsequentiality
determination for its covered inflators. See also 49 CFR 556.4(c)
(requiring such a petition is submitted not later than thirty days
after defect or noncompliance determination).
---------------------------------------------------------------------------
Relatedly, Ford's argument regarding ``design differences'' between
the covered Ford and covered Nissan inflators appears to be more of an
identification of areas for further study or potential explanation--not
a standalone argument in support of an inconsequentiality
determination. Ford identifies design differences ``that may account
for the difference in material properties of the generate,'' and
differences in pressures measured during ballistic testing of the
inflators.\145\ Ford did not persuasively connect these design
differences to meaningful improved performance in generate properties
and pressure differences \146\ and, even if Ford had, the covered
Nissan inflators are not a proxy standard for inconsequentiality.
---------------------------------------------------------------------------
\145\ Petition at 14-15 (emphasis added).
\146\ Moreover, as described further below, based on recent MEAF
data, one covered Ford inflator has the highest chamber pressure
tested for Takata calcium-sulfate desiccated PSDI-5 inflators.
---------------------------------------------------------------------------
In addition to these issues, signs of aging were observed in the
covered Ford inflators; the sample sizes used for the analyses were
limited; and there are shortcomings regarding various analyses that
undermine their conclusions--including some information that was
missing or unclear. Ford's probability-of-failure projections are also
unpersuasive--and notably belied by the limited evidence available from
ballistic testing and analysis on real-world field returns of the
covered Ford inflators. These additional issues are discussed below.
A. Signs of Aging
Ford admits that signs of aging were observed in the covered Ford
inflators. While Ford indirectly dismisses this is as a non-issue--
concluding that there is no degradation ``that would signal either an
imminent or developing risk to safety''--aging leads to degradation,
which leads to risk of inflator rupture. Further, the 2004 propellant
that is present in the covered Ford inflators degrades until, at some
point, it no longer burns normally, but in an accelerated and
unpredictable manner that can cause an inflator rupture. ``The purpose
of the Safety Act . . . is to prevent serious injuries stemming from
established defects before they occur.'' \147\ And as CAS commented,
``tests demonstrating that inflators are `OK for now' in no way ensures
safety throughout the maximum useful life of these vehicles.'' \148\
---------------------------------------------------------------------------
\147\ United States v. Gen. Motors Corp., 565 F.2d 754, 759
(D.C. Cir. 1977).
\148\ See Comments at 3.
---------------------------------------------------------------------------
B. Samples
The Agency finds shortcomings in the sample sizes utilized in the
analyses. Ford's total field-return sample was, across the Takata, NG,
and the additional Third Party analyses, less than 3,000 inflators for
an affected population of over 3 million vehicles. Ford presented
analysis from Takata of fewer than 2,000 inflators, while NG analyzed
only 196, and the additional Third Party analyzed just over 100. In
total, Ford cites to 1,460 ballistic tests, which is approximately .05%
of the total population subject to Ford's Petition. By comparison, for
example, that percentage of the population tested is much smaller than
the percentage of inflators tested as of November 2019 in a mid-sized
pick-up vehicle population equipped with non-desiccated PSAN
inflators--1.81%--with one observed test rupture. Ford's own
statistical analysis of the MEAF regarding Pc Primary Max Value
frequency \149\ was also based on only 1,247 inflators.\150\
---------------------------------------------------------------------------
\149\ See November 2020 Presentation at 8.
\150\ Moreover, twenty of the inflators (from Ranger vehicles)
were from salvage yards, ``where the conditions used to store the
parts cannot be determined.'' Petition at 11. Further highlighting
the significance of this shortcoming, Ford noted in its Petition the
potential importance of ``vehicle environment'' with respect to
inflator-degradation risk but did not elaborate on this suggestion
elsewhere in its Petition. See id. at 2; id. 14-16 (focusing on
design differences between the covered Ford inflators and covered
Nissan inflators). For purposes of its arguments related to the NG
Model, Ford presented a worst-case scenario, where it was assumed
for purposes of that scenario that the vehicles at issue would be in
the T3 temperature band.
---------------------------------------------------------------------------
C. Additional Underlying Information
Other shortcomings regarding various analyses presented here--
including some information that was missing or unclear--further
undermine the associated conclusions. These are identifiable in both
Ford's Petition and in the subsequent Presentations to the Agency.
1. Ford's Petition
As an initial matter, Ford submitted little of the relevant
underlying data, and did not fully explain the underlying methodologies
and results, associated with the arguments in its 2017 Petition. More
specifically, one of Ford's arguments in its 2017 Petition is that
Takata's live dissections of covered Ford inflators does not show
tablet-density degradation or increased inflation pressure, and
therefore, Takata ``did not identify a reduction in density trend'' in
[[Page 6961]]
the covered Ford inflators.\151\ Tablet discoloration was graded on a
qualitative 1-10 scale, but to what discoloration characteristics each
level of this scale corresponds is not explained. And Ford's conclusion
that a ``vast majority'' of discoloration in certain inflators was
within a certain low range of discoloration (with seven samples in a
certain mid-range) is vague, and Ford did not provide information about
the specific distribution of the results (e.g., the number of inflators
receiving each discoloration value or the number of inflators in each
Zone).\152\
---------------------------------------------------------------------------
\151\ Id. at 11.
\152\ See id. at 12.
---------------------------------------------------------------------------
Ford also provides little information about the specific inflators
tested and associated results with regard to density measurements--such
as actual dimensions, mass, and densities, among measurements--instead
largely relying on general descriptions the results.\153\ For inflation
pressure, Ford offers evidence of ballistic tests, although the
breakdown of this sample with regard to vehicle model year and
location, as well as how many of these inflators were obtained from
salvage yards with unknown environment exposures (and the associated
results), was not provided.\154\
---------------------------------------------------------------------------
\153\ See id. at 12-13 (``[A] small number of samples were
measured with a density slightly below the minimum average tablet
production specification, while a nearly equal number of samples
measured densities higher than the maximum. . . .'').
\154\ See id. at 13.
---------------------------------------------------------------------------
2. Subsequent Submissions to the Agency
Ford's statistical analysis of the MEAF contains several
shortcomings in the first two charts--box plots of primary-chamber
pressure by age of inflator, and a lognormal histogram of maximum
values illustrating the frequency of maximum values of primary-chamber
pressure of covered Ford inflators. In the box plots, Ford does not
specify or illustrate what a ``normal'' or ``expected'' primary-chamber
pressure would be. Nor did Ford provide information showing how many
inflators each age group comprises--although the lack of whiskers in
the box plot for inflators aged thirteen years suggests that, at least
for that age group, the sample size is small. There are also outlier
pressure values observed in the nine- to twelve-year age groups, which
concern the Agency. And in the histogram, Ford does not distinguish
among different inflator ages--which would have highlighted any trends
in primary-chamber pressure maximum values based on age.
There are also several shortcomings with the second two charts--the
probability curves for module ages, and probability plots comparing
primary-chamber pressure maximum values of Ford modules with desiccated
and non-desiccated inflators, respectively. As to the probability
curves, while details were not provided by Ford, this analysis appears
to assume that degradation will proceed linearly. However, researchers
that have been most closely involved in analyzing Takata inflators,
including NG, all seem to agree that the degradation process is, at the
very least, complex, and does not follow a linear trajectory. Instead,
2004 propellant (which is contained in the covered Ford inflators)
degrades until, at some point, it no longer burns normally, but in an
accelerated and unpredictable manner that can cause an inflator
rupture. As to the probability plots, while a comparison between
desiccated and non-desiccated inflators is somewhat informative from a
broad perspective, it is too general to lend much support to Ford's
Petition, and as noted above, the performance of non-desiccated Takata
PSAN inflators is not a sound benchmark for whether the defect in the
covered Ford inflators is inconsequential to safety.
Regarding NG's analysis, as an initial matter, over a quarter of
the 196 inflators analyzed were non-aged/virgin inflators and, further,
degradation would not be expected in the inflators from Michigan (from
which, collectively, 55 of the inflators were obtained). Ford also
acknowledges aging in inflator O-rings from this analysis. In addition,
there are several particular issues with NG's live dissections worth
noting. Findings regarding moisture content are of limited value, and
Ford did not present important information on the referenced comparator
prefix ZA and YT inflators--e.g., age and the geographic region in
which they were used. As to the SEM results, Ford does not explain how
the concept of surface roughness relates to the long-term safety of the
inflators at issue here. Similarly, regarding the additional Third
Party's analysis, OD growth for the tablet grain form has not been
found to be reliable indicator of propellant health, and Ford does not
demonstrate otherwise.
D. Probability-of-Failure Projections
Ford's probability-of-failure projections are also unpersuasive. As
previously described, these projections, submitted in support of Ford's
Petition in November 2020, are based on the NG Model. While the
projections are informative in various respects, NHTSA does not view
the Model's outputs for the covered Ford inflators as fully squaring
with the evidence available for those inflators from real-world field
returns \155\--which renders what Ford provides unpersuasive for the
purposes of its Petition. Even with the limited testing evidence
available, ballistic testing of field returns of the covered Ford
inflators includes three inflator deployments with primary-chamber
pressures between 60 and 70 MPa--coming from two ZQ inflators with a
field age between 12 and 13 years (one of which exhibited a pressure of
68 MPa), and one ZN inflator with a field age between 10 and 11
years.\156\ In the Agency's experience, such primary-chamber pressure
results are indicative of propellant degradation and potential future
rupture risk. The nature of these results, in addition to causing
concern, undercuts one of Ford's notable arguments in its Petition:
That ``[t]he maximum primary chamber pressure that Takata measured'' in
covered Ford inflators was about 15 MPa lower than that measured in a
covered Nissan inflator (which exhibited primary chamber pressure
exceeding 60 MPa). Indeed, at least three covered Ford inflators have
now exceeded 60 MPa in ballistic testing (one ZN, two ZQ), and
according to recent MEAF data, one of these inflators (of the ZQ
variant) has the highest chamber pressure tested for Takata calcium-
sulfate desiccated PSDI-5 inflators.
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\155\ While it may be possible to age an inflator artificially
in a manner that replicates aging characteristics in the field (and
then test those inflators), Ford did not attempt to do this for the
covered Ford inflators.
\156\ Also notable is that all three results are over three
standard deviations above even the average field-return results for
ZN and ZQ inflators collectively (for which the Agency would expect
a higher average than virgin inflators).
Ford also noted a ZN inflator tested by NG with a chamber
pressure approximately 20% higher than the average of the other
inflators in tank testing. The specific measurement (and
measurements of other NG tests) does not appear to have been
provided to the Agency.
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Data from the MEAF also may suggest the beginning stages of notable
density changes in propellant tablets in the covered Ford inflators
with increasing field age. Recent results from primary tablets in
inflators with field ages between 12 and 14 years show four inflators
with density measurements near (or below) 1.68 g/cc; according to Ford,
1.64 g/cc is the point at which the PSDI-5 inflators with 2004 tablets
are susceptible to energetic disassembly.\157\
[[Page 6962]]
Similarly, there are a number of field returns measured with secondary-
chamber tablet densities under 1.66 g/cc (mostly ZN, although one ZQ
inflator), including ZN inflators under 1.64 g/cc--one of which was
measured as low as 1.62 g/cc. This undermines the contention that the
densities of the tablets from returned covered Ford inflators were
measured ``well above'' 1.63-1.64 g/cc, as well as assertions regarding
the results of visual inspections that it contends ``evidence time-in-
service, but not tablet density loss.''
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\157\ These results regard recently tested ZQ inflators with
greater field ages than previously tested ZN inflators, although it
should also be noted that one ZN inflator with a field age of about
10 years measured a primary-tablet density just above 1.66 g/cc--
lower than any result for a ZQ inflator.
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The above results from real-world field returns signal that
propellant degradation in the covered Ford inflators is occurring.
While the predictive model that Ford references (and its applicable
results) is informative in certain respects, the specific metrics Ford
cites in support cannot be sufficiently squared with the actual testing
that has been completed on real-world field returns to be persuasive
for Ford's Petition.\158\
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\158\ See also Exhibit A (Report of Dr. Harold Blomquist) to
Gen. Motors LLC, Denial of Consolidated Petition for Decision of
Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020) at para.272
(indicating that--in assessing a similar model with regard to a
petition for inconsequentiality--apparent inconsistencies between
that model's predictions and high-pressure ballistic test results of
field returns--of inflators not at issue here--``suggest caution
should be used'' in applying the results of that model).
---------------------------------------------------------------------------
Further, there are shortcomings particular to the metrics on which
Ford relies regarding the Model. Notably, Ford contends that ``there
are no expected field events projected at 26 years of service.'' \159\
However, Ford's figures for an expected number of cumulative field
events \160\ were cut off at 26 years in service and limited to an
analysis of vehicles in Florida--a combined volume of 114,393 vehicles,
which is less than 4% of the total population of Ford vehicles at
issue.\161\ While such vehicles may be among the highest risk
populations, unless it is assumed that there is a cumulative zero
probability of inflator rupture (through 26 years in service) for every
vehicle in every other State (including States other than Florida with
high heat and humidity),\162\ these calculations do not reflect the
expected cumulative events for the entire population of 3.04 million
vehicles installed with calcium-sulfate desiccated Takata inflators
through 26 years in service--thereby understating the risk, as
suggested by the Model, for the vehicles at issue in Ford's Petition.
In other words, Ford does not provide a fleet-level assessment here--
the total number of cumulative events expected to occur in the coming
years for such vehicles. And in any case, Ford's metrics are undercut
by the ballistic results and analysis of field-returned inflators
showing elevated pressures and propellant density changes discussed
above.
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\159\ See November 2020 Presentation at 26.
\160\ These figures, which appear based on the twenty-sixth year
of service (the point at which, under the NG Model and according to
Ford, there is a 1% probability of failure for a covered Ford
inflator in a T3 vehicle with the most severe (top 1%) usage factors
in Miami), were 0.038 for a population of approximately 75,000
Fusion, MKZ, and Milan vehicles, and 0.025 for a population of
approximately 39,000 Edge, MKX, and Ranger vehicles. See November
2020 Presentation at 26.
\161\ Ford did not submit evidence demonstrating that none of
the vehicles subject to the Petition would be in service after 26
years--in Florida or otherwise. And while Ford adjusted relevant
metrics for attrition and crash probabilities, Ford did not submit
specific information about how these adjustments were made.
\162\ Although 26 years is--under the NG Model and according to
Ford--the point at which there is a 1% probability of failure for a
covered Ford inflator in a vehicle with the most severe (top 1%)
usage factors in Miami, Ford does not explain why this is an
appropriate point at which to end its analysis of the expected
number of cumulative field events.
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VII. Decision
The relief sought here is extraordinary. Ford's Petition is quite
distinct from previous petitions discussed above relating to defective
labels that may (or may not) mislead the user of the vehicle to create
an unsafe condition.\163\ Nor is the risk here comparable to a
deteriorating exterior component of vehicle that--even if an average
owner is unlikely to inspect the component--might (or might not) be
visibly discerned.\164\ Rather, similar to the defect at issue in
NHTSA's recent decision on a petition regarding certain non-desiccated
Takata PSAN air bag inflators installed in General Motors vehicles, the
defect here poses an unsafe condition caused by the degradation of an
important component of a safety device that is designed to protect
vehicle occupants in crashes.\165\ Instead of protecting occupants,
this propellant degradation can lead to an uncontrolled explosion of
the inflator and propel sharp metal fragments toward occupants in a
manner that can cause serious injury and even death.\166\ This unsafe
condition--hidden in an air bag module--is not discernible even by a
diligent vehicle owner, let alone an average owner.\167\
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\163\ See Nat'l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1, 1982); Suzuki Motor
Co., Ltd.; Grant of Petition for Inconsequential Defect, 48 FR 27635
(June 16, 1983).
\164\ See Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134 (Jan. 10,
1980).
\165\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020).
\166\ See id. at 76173; cf. Gen. Motors, LLC; Grant of Petition
for Decision of Inconsequential Noncompliance, 78 FR 35355-01, 2013
WL 2489784 (June 12, 2013) (finding noncompliance inconsequential
where ``occupant classification system will continue to operate as
designed and will enable or disable the air bag as intended'').
\167\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159, 76173 (Nov. 27,
2020); Final Determination & Order Regarding Safety Related Defects
in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134 (Jan. 10, 1980)
(rejecting argument there was adequate warning to vehicle owners of
underbody corrosion, as the average owner does not undertake an
inspection of the underbody of a vehicle, and interior corrosion of
the underbody may not be visible).
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NHTSA has been offered no persuasive reason to think that without a
recall, even if current owners are aware of the defect and instant
petition, subsequent owners of vehicles equipped with covered Ford
inflators would be made aware of the issue.\168\ This is not the type
of defect for which notice alone enables an owner to avoid the safety
risk. A remedy is required to address the underlying safety defect.
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\168\ See Nat'l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1, 1982) (observing,
inter alia, that other manufacturers had conducted recalls for
similar issues in the past, and that, even if current owners were
aware of the issue, subsequent owners were unlikely to be aware
absent a recall).
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As discussed above, the threshold of evidence necessary to prove
the inconsequentiality of a defect such as this one--involving the
potential performance failure of safety-critical equipment--is very
difficult to overcome.\169\ Ford bears a heavy burden, and the evidence
and argument Ford provides suffers from numerous, significant
deficiencies, as previously described in detail. In all events, the
information that Ford presents in its Petition and subsequent
Presentations to the Agency is inadequate to support a grant of its
Petition.
---------------------------------------------------------------------------
\169\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159, 76173 (Nov. 27,
2020).
---------------------------------------------------------------------------
As noted above, at various points Ford's Petition appears to focus
on differentiating the covered Ford inflators from the covered Nissan
inflators--not directly answering the question of whether the defect in
the covered Ford inflators is, on its own merits, inconsequential to
motor vehicle safety. Ford similarly argued in subsequent materials
that the covered
[[Page 6963]]
Ford inflators compared favorably to another inflator variant of the
same type, and even to non-desiccated inflators. These comparisons do
not suffice for an inconsequentiality determination. Relatedly, Ford's
argument regarding design differences does not suffice to support an
inconsequentiality determination. This argument, furthermore, was not
persuasively connected to meaningful improved performance in generate-
properties and pressure differences (and even if it had been, the
covered Nissan inflators are not an appropriate proxy standard for
inconsequentiality). The sample sizes used for the analyses were also
limited, and there are shortcomings regarding various analyses that
undermine their conclusions--including some information was missing or
unclear.
As a general matter, signs of aging were observed in the covered
Ford inflators, which leads to propellant degradation, which leads to
inflator rupture--and the 2004 propellant that is present in the
covered Ford inflators degrades until, at some point, it no longer
burns normally, but in an accelerated and unpredictable manner that can
cause an inflator rupture. Perhaps most importantly, even with the
limited testing evidence available, ballistic testing of field returns
of the covered Ford inflators includes three inflator deployments with
primary-chamber pressures between 60 and 70 MPa--coming from two ZQ
inflators with a field age between 12 and 13 years (one of which
exhibited a pressure of 68 MPa), and one ZN inflator with a field age
between 10 and 11 years. Data from the MEAF also appears to indicate
the beginning stages of density changes in propellant tablets in the
covered Ford inflators with increasing field age. These results from
real-world field returns signal that propellant degradation in the
covered Ford inflators is occurring, and belie the probability-of-
failure projections that Ford provides (which have their own additional
shortcomings that lead to an understatement of the potential risk).
Given the severity of the consequence of propellant degradation in
these air bag inflators--the rupture of the inflator and metal shrapnel
sprayed at vehicle occupants--a finding of inconsequentiality to safety
demands extraordinarily robust and persuasive evidence. What Ford
presents here, while valuable and informative in certain respects,
suffers from far too many shortcomings, both when the evidence is
assessed individually and in its totality, to demonstrate that the
defect in covered Ford inflators is not important or can otherwise be
ignored as a matter of safety.
In consideration of the forgoing, NHTSA has decided Ford has not
demonstrated that the defect is inconsequential to motor vehicle
safety. Accordingly, Ford's Petition is hereby denied, and Ford is
obligated to provide notification of, and a remedy for, the defect
pursuant to 49 U.S.C. 30118 and 30120. Within 30 days of the issuance
of this decision, Ford shall submit to NHTSA a proposed schedule for
the notification of vehicle owners and the launch of a remedy required
to fulfill those obligations.
Authority: 49 U.S.C. 30101, et seq., 30118, 30120(h), 30162,
30166(b)(1), 30166(g)(1); delegation of authority at 49 CFR 1.95(a);
49 CFR parts 556, 573, 577.
Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2021-01540 Filed 1-22-21; 8:45 am]
BILLING CODE 4910-59-P
