[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Notices]
[Pages 17605-17606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-6545]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration


Denial of Motor Vehicle Defect Petition

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Denial of petition for a defect investigation.

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SUMMARY: This notice sets forth the reasons for the denial of a 
petition (DP06-004) submitted by Mr. Eric Moening. In his petition, 
dated August 23, 2006, the petitioner requests the agency to remedy a 
failure of his model year (MY) 1999 Ford Contour to ``comply with 
Federal Motor Vehicle Safety Standard 208 Occupant Crash Protection.'' 
He describes the failure on his vehicle as instrument panel warping, 
and he believes that the warping may adversely affect performance of 
the air bag system or create loose instrument panel components (such as 
the defrost bezel) that could ``become projectiles during air bag 
deployments.'' After a review of the petition and other information, 
including the results of NHTSA's own testing, NHTSA has concluded that 
further expenditure of the agency's resources on the issue raised by 
the petition is not warranted. The agency accordingly denies the 
petition.

FOR FURTHER INFORMATION CONTACT: Ms. Cynthia Glass, Vehicle Integrity 
Division, Office of Defects Investigation, NHTSA, 400 Seventh Street, 
SW., Washington, DC 20590. Telephone: (202) 366-2920.

SUPPLEMENTARY INFORMATION: On August 23, 2006, NHTSA's Office of 
Defects Investigation (ODI) received a petition submitted by Mr. Eric 
Moening (hereinafter identified as the petitioner), requesting that 
NHTSA ``remedy a failure'' of the instrument panel of his MY 1999 Ford 
Contour so that it complies with Federal Motor Vehicle Safety Standard 
(FMVSS) No. 208. The petitioner alleges that his instrument panel has 
warped and the defrost bezel rattles. He contends that ``improperly 
retained instrument panel components can be detrimental to the desired 
performance of front air bag deployments as well as become projectiles 
during air bag deployments.''
    Federal law prohibits manufacturers from selling motor vehicles and 
equipment that do not comply with all applicable Federal Motor Vehicle 
Safety Standards (FMVSS). 49 U.S.C. 30112(a)(1). However, this 
prohibition does not apply after the first purchase of the vehicle or 
equipment. 49 U.S.C. 30112(b)(1). The petitioner alleges that the 
problem with his vehicle first began to develop at least three years 
after its first purchase. Accordingly, the alleged facts provide no 
basis for a compliance investigation. NHTSA has no authority to 
intervene in disputes between an individual and a manufacturer with 
regard to repairs unrelated to safety recalls. However, because the 
petitioner has characterized his letter as a ``petition'', we are 
construing his letter as a request for a defect investigation into 
warping of the leading edge of the dashboard in MY 1999-2000 Ford 
Contour and Mercury Mystique vehicles under 49 U.S.C. 30162.
    Under 49 U.S.C. 30166, NHTSA has the authority to conduct an 
investigation to consider whether a motor vehicle or motor vehicle 
equipment contains a safety-related defect. In addition, any interested 
person may file a petition under 49 U.S.C. 30162 requesting that NHTSA 
begin a proceeding to decide whether to issue an order under Sec.  
30118. NHTSA is authorized under 49 U.S.C. 30118(b) to make a 
determination that a motor vehicle or motor vehicle equipment contains 
a defect related to motor vehicle safety. If NHTSA makes such a 
determination, NHTSA issues an order directing the manufacturer of the 
vehicle or equipment to notify the owners, purchasers and dealers of 
the defect and to remedy the defect under Sec.  30120.
    As a practical matter, NHTSA's grant of a petition under Sec.  
30162 begins an investigation that may or may not result in a recall. 
In determining whether to grant or deny a petition under Sec.  30162, 
NHTSA conducts a technical review of the petition. 49 CFR 552.6. This 
review may consist of an analysis of the material submitted, together 
with the information already in possession of the agency or acquired in 
the course of the review. NHTSA has discretion to decide which matters 
are worthy of investigation and a possible recall order. In addition to 
the technical merits of the petition, NHTSA may consider additional 
factors, such as the allocation of agency resources, agency priorities, 
and the likelihood of success of litigation that might arise from the 
order sought by the petitioner. 49 CFR 552.8. As noted above, if NHTSA 
grants the petition, an investigation is commenced to determine the 
existence of the defect. 49 CFR 552.9.
    In August 2001, the petitioner received a letter from Ford Motor 
Company describing Ford's Customer Satisfaction Program Number 01B78 
(01B78). Ford initiated this program in August 2001, and it was in 
effect through August 31, 2002. Ford offered free repair of any 1999 
and 2000 Ford Contour and Mercury Mystique vehicle experiencing panel 
warping at the front edge of the instrument panel cover near the 
windshield. Initially, Ford offered customers a dealer inspection of 
the instrument panel and a free repair as required. Ford instructed 
dealers to repair all vehicles with a panel repair kit unless the 
warping was greater than 2 inches at the defroster grill opening. For 
vehicles with greater than 2 inches warping, Ford instructed dealers to 
replace the instrument panel.
    Ford issued to Ford and Lincoln Mercury dealers two supplements to 
the original 01B78 program that superseded each preceding program. In 
December 2001, Ford issued Supplement 1 (01B78S1), which 
provided a revision of the original repair procedure to ``address some 
dealer-identified issues.'' 01B78S1 did not affect Ford's policy of 
replacing the instrument panel only when the panel warping is greater 
than 2 inches and repairing other vehicles with a panel repair kit. In 
May 2002, Ford issued Supplement 2 (01B78S2), which provided a 
revised repair procedure that ``requires the use of a new repair kit 
that includes a new defroster grille cover that is placed on top of the 
defroster grille.'' 01B78S2 also provided that ``[i]nstrument panel 
replacement is no longer covered under this program.'' And, 01B78S2 
states that, ``All vehicles that have not had 01B78 or 01B78S1 
completed, regardless of whether the warpage is visible or not, should 
be serviced as soon as possible before expiration of this program.'' 
Neither 01B78S1 nor 01B78S2 changed the program's August 31, 2002, 
expiration date.
    In February 2003, after Customer Satisfaction Program Number 01B78 
expired, Ford issued technical service bulletin ``TSB 03-4-6, Trim--
Instrument Panel Warpage Repair.'' This TSB described Ford's most 
current repair procedure for a warped instrument panel, which was 
identical to the procedure provided in 01B78S2. The TSB did not extend 
the expiration date of the offer for free repair that had now expired.
    The petitioner indicates that when he took his car into his 
Lincoln-Mercury dealership in 2001 in response to 01B78, the dealership 
advised him that his vehicle ``was not in need of repair.'' He reports 
that, by late 2002, his vehicle

[[Page 17606]]

began to show signs of the instrument panel warping and that by spring 
2006, ``the defrost bezel began to rattle.'' In July 2006, he contacted 
the same dealership and ``was told that this $400 repair would not be 
covered [under the TSB]'' because his vehicle was past warranty 
coverage (36,000 miles/3 years).
    Determining an appropriate response to Mr. Moening's petition 
requires assessment of the potential safety consequences of the alleged 
defect. A review of NHTSA's consumer complaint database for the MY 1999 
and 2000 Ford Contour and Mercury Mystique vehicles in February 2007 
revealed 302 complaints regarding instrument panel warping. Most of the 
complaints report that the warping of the instrument panel reduces 
forward visibility or degrades the performance of the defroster. Other 
complaints indicate that the repair performed by the dealer was only a 
temporary fix and the problem returned. A considerable number of 
complaints express concern that the instrument panel warping may affect 
the performance of the air bag system, either by causing the air bag to 
deploy prematurely or by hindering proper inflation of the air bag. 
However, as of November 2006 there were no reports of actual improper 
deployments, nor were there reports of injuries, crashes or loss of 
control because of instrument panel warping while driving the subject 
vehicle.
    NHTSA evaluated forward visibility from the driver's seating 
position in a subject vehicle, a 1999 Ford Contour, with a warped 
instrument panel (more than 3 inches of vertical warping at the 
centerline of the vehicle) and compared this to the forward visibility 
in the vehicle with the warped portion of the instrument panel held 
down in its proper position. Also, NHTSA used for comparison two other 
vehicles: a 2000 Ford Contour with an unwarped instrument panel and a 
peer vehicle, a 2005 Saturn Ion with an unwarped instrument panel. 
NHTSA evaluated the visibility using both a 12-inch and a 28-inch tall 
traffic cone placed at various positions in front of the subject and 
peer vehicles. NHTSA selected three subject drivers; two were short 
females (4'9'' and 5'3'' tall) and the other a tall male (6'1''). NHTSA 
recorded the minimum distance from the front of the vehicle to the cone 
that allowed the driver to see the top of the cone.
    When conducting the test using the 28-inch cone, there were 
negligible visibility differences between the subject and peer vehicles 
for all three drivers. Similarly, when conducting the test using the 
12-inch cone, there were negligible visibility differences when each 
driver viewed the cone through the portion of the windshield directly 
in front of the driver. However, in order for each short female to see 
the top of the 12-inch cone through the right side of the windshield of 
the 1999 Contour with the warped instrument panel, the cone needed to 
be moved two feet further from the vehicle than was necessary for the 
same driver to see the same cone through the same portion of the 
windshield for either the 1999 Contour with the instrument panel held 
down or the 2000 Contour with the unwarped instrument panel. The 
practical effect of this difference is minimal: the smallest drivers 
still have a clear view as they approach such a small object (12 inches 
or less), but could lose sight of such an object if it is off to the 
right of their forward field of vision just two feet sooner than a 
taller driver would. We believe that the observed slight reduction in 
one portion of the field of view that might be experienced by the 
smallest of drivers fails to demonstrate any material effect on safety. 
This conclusion is supported by the absence of any report in the 
agency's complaint database of alleged loss of control or crash 
attributed to this problem for these vehicles, which have now acquired 
nearly 8 years of field experience.
    NHTSA also evaluated the ability of the defroster in a 1999 Ford 
Contour with a warped instrument panel to clear the windshield of heavy 
early morning frost. NHTSA compared these results with the performance 
of the defrosters in three other vehicles with unwarped instrument 
panels: a 2000 Ford Contour, a 2005 Saturn Ion and a 1999 Volvo S80. 
The comparison demonstrated that the defroster in the subject vehicle 
with the warped instrument panel, though functional, required 
approximately three to four minutes longer to clear most of the frost 
from the windshield compared with the other vehicles. However we do not 
find this reduction in the speed of the defroster's performance to be a 
likely safety hazard. The defroster is still capable of performing its 
intended function.
    The principal concern expressed by the petitioner was the potential 
for warping of the instrument panel to degrade the performance of the 
air bag system. As of November 2006, NHTSA's consumer complaint 
database contained no allegations that instrument panel warping 
affected the actual deployment of the passenger air bag, nor are there 
reports of instrument panel components becoming projectiles during air 
bag deployments. Through examination of the construction of the 
instrument panel on a subject vehicle, NHTSA determined that warping of 
the instrument panel is confined to the surface materials of the 
instrument panel, and does not extend to the supporting structure of 
the air bag system. Based on a review of the agency's complaint 
database and examination of subject vehicles, we find no evidence that 
the warping of the instrument panel could cause either inappropriate 
deployment of the passenger air bag, impede proper deployment of the 
passenger air bag, or block the air bag deployment path.
    Based on a review of the petitioner's request and the information 
provided above, it is unlikely that NHTSA would issue an order for the 
notification and remedy of a safety-related defect at the conclusion of 
an investigation. Therefore, in view of the need to allocate and 
prioritize NHTSA's limited resources to best accomplish the agency's 
safety mission, the petition is denied. This action does not constitute 
a finding by NHTSA that a safety-related defect does not exist. The 
agency will take further action if warranted by future circumstances.

    Authority: 49 U.S.C. 30162(d); delegations of authority at CFR 
1.50 and 501.8.

Daniel C. Smith,
Associate Administrator for Enforcement.
 [FR Doc. E7-6545 Filed 4-6-07; 8:45 am]
BILLING CODE 4910-59-P