[Federal Register Volume 77, Number 142 (Tuesday, July 24, 2012)]
[Proposed Rules]
[Pages 43216-43218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18060]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

49 CFR Part 552; 557


Denial of Motor Vehicle Defect Petition and Petition for a 
Hearing

AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT.

ACTION: Denial of petition.

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SUMMARY: The Center for Auto Safety has petitioned NHTSA to open defect 
investigations on Model Year (MY) 2002-2004 Ford Escape and 2001-2004 
Mazda Tribute vehicles with certain cruise control cables. The Center 
for Auto Safety has also petitioned for a hearing to address whether 
Ford Motor Company (Ford) and Mazda North American Operations (Mazda) 
met their obligations to notify owners and correct a defect in certain 
Ford Escape and Mazda Tribute vehicles. The petitions to open 
investigations are denied as moot and the petitions to conduct hearings 
are denied.

FOR FURTHER INFORMATION CONTACT: Derek Rinehardt, National Highway 
Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, 
DC 20590 (Telephone: 202-366-3642).

SUPPLEMENTARY INFORMATION: 

I. Background

    The Center for Auto Safety, in letters dated July 8, 2012 and July 
13, 2012, petitioned for a Defect Order under 49 CFR Part 552 and for a 
Hearing on Notification and Remedy of Defects under 49 CFR Part 577. 
The petitions relate to Ford's recall of MY 2002-2004 Ford Escape 
vehicles (Recall 04V-574) and Mazda's recall of MY 2002-2004 Mazda 
Tribute vehicles (Recall 04V-583).
    In 49 CFR Part 573 Defect and Information Reports (Part 573 Report) 
filed in December 2004, Ford and Mazda both informed NHTSA that the 
inner liner of the accelerator cable in certain Ford Escape and Mazda 
Tribute vehicles could migrate out of place during vehicle operation, 
and prevent the throttle body from returning to the idle position. Ford 
and Mazda said that the safety consequence of a throttle body not 
returning to the idle position was a progressive, and in some cases 
sudden increase in speed. Ford and

[[Page 43217]]

Mazda notified vehicle owners of the recalls (Recall 04V-574 and 04V-
583) in January 2005. Thereafter, on October 6, 2005, Ford released a 
recall update to dealers. In that update, Ford provided supplemental 
instructions on how to remove the accelerator cable. The instructions 
indicate that damage to the speed (or cruise) control cable can result 
if the accelerator cable is not properly removed. Mazda, however, did 
not issue a recall update.
    The Center for Auto Safety (CAS) asserts that Ford and Mazda failed 
to notify about 319,500 Ford Escape owners and 84,700 Mazda Tribute 
owners that their vehicles' speed (or cruise) control cables may have 
been damaged during the accelerator cable replacements conducted in 
Recall 04V-574 and Recall 04V-583. According to CAS, these vehicles 
were repaired prior to September 30, 2005. Related to this potential 
damage, CAS states that Ford and Mazda did not file Part 573 Reports 
with NHTSA which would have initiated a second recall. CAS adds that 
Ford and Mazda did not file Part 573 Reports and recall the cruise 
control cables. CAS claims that the cruise control cable can fail 
independently of being damaged in the course of repairs conducted 
pursuant to Recall 04V-574 and Recall 04V-583.
    In its July 8 petition, CAS refers to a crash involving a MY 2002 
Ford Escape which occurred in January 2012 in Payson, Arizona. The 
driver of the Ford Escape was killed in the crash. CAS states that the 
driver's vehicle had been repaired in January 2005, after Recall 04V-
574 was announced but before the October 2005 recall update was 
released.
    NHTSA has been gathering information on the Arizona crash since 
early 2012 when it first learned of it. NHTSA obtained the police 
report when it became available. In June 2012, NHTSA contacted counsel 
representing the driver's family to obtain more information on the 
crash. Independent of CAS's petition, NHTSA opened a preliminary 
investigation (PE 12-019) on July 17, 2012 that among other things will 
encompass issues raised by the Center for Auto Safety's petition.

II. CAS's Petition That NHTSA Open a Defect Investigation Is Denied as 
Moot

    CAS requests that NHTSA open a defect investigation into MY 2002-
2004 Ford Escapes and MY 2001-2004 Mazda Tributes with cruise control 
cables of the same design as in Recall 04V-574, Recall 04V-583, and in 
the Arizona vehicle. Pursuant to 49 CFR 552.3, any interested person 
may file a petition requesting that the Administrator commence a 
proceeding to decide whether to issue an order concerning the 
notification and remedy of a failure of a motor vehicle or item of 
replacement equipment to comply with an applicable motor vehicle safety 
standard or a defect in such vehicle or equipment that relates to motor 
vehicle safety. If NHTSA grants the petition, NHTSA opens an 
investigation.
    Based on the information obtained by NHTSA prior to the filing of 
the CAS petition, NHTSA opened an investigation on July 17, 2012 that 
will, among other issues, assess the scope and remedy of Recall 04V-574 
(involving certain model year 2002-2004 Ford Escape vehicles) and 
Recall 04V-583 (involving certain model year 2002-2004 Mazda Tribute 
vehicles). In view of the fact that NHTSA has opened an investigation 
that will examine the issues on the Ford Escape and Mazda Tribute speed 
control cables, including claims raised by CAS, the agency denies this 
portion of CAS's petition as moot.

III. CAS's Petition for a Hearing on Notification and Remedy of Defects 
Is Denied

    CAS's petition for a hearing on notification and remedy of defects 
pursuant to 49 CFR Part 557 requests that NHTSA hold a hearing to 
determine whether Ford and Mazda reasonably met their obligations to 
notify owners and correct the defects at issue in Recall 04V-574 and 
Recall 04V-583. In determining whether to hold a hearing, the agency 
considers (1) The nature of the complaint; (2) the seriousness of the 
alleged breach of obligation to remedy; (3) the existence of similar 
complaints; (4) the ability of the NHTSA to resolve the problem without 
holding a hearing; and (5) other pertinent matters. 49 CFR 557.6.
    We first consider the nature of the complaint. CAS claims that Ford 
did not notify owners of about 319,500 vehicles of potential damage to 
speed control cables caused by a faulty recall repair in Recall 04V-
574. CAS claims that Mazda did not notify owners of about 84,700 
vehicles of potential damage to speed control cables caused by a faulty 
recall repair in Recall 04V-583. CAS also claims that Ford and Mazda 
did not file Reports pursuant to 49 CFR Part 573 with NHTSA which would 
have initiated a second recall. Finally, CAS claims that Ford and Mazda 
did not file Part 573 Reports and recall the cruise control cable. 
Federal regulations require vehicle manufacturers to submit reports to 
NHTSA for each defect that the manufacturer or the Administrator of 
NHTSA determines to be related to motor vehicle safety. 49 CFR 573.6. 
Issues of the nature raised by CAS will be addressed in PE 12-019.
    Second, we consider the seriousness of the alleged breach of 
obligation to remedy. If CAS's claims are true, they are serious. NHTSA 
will consider them in PE 12-019.
    Third, we consider the existence of similar complaints. NHTSA 
received complaints from consumers by way of Vehicle Owner 
Questionnaires (VOQ's) regarding accelerator cable failure, cruise 
control cable failure, and/or stuck throttles. These are identified in 
the PE 12-019 Opening Resume in certain MY 2002-2004 Ford Escape and 
Mazda Tribute vehicles. NHTSA takes these complaints seriously. 
Considering the VOQ complaints in the context of the 2012 crash in 
Arizona, NHTSA opened a preliminary evaluation to investigate the 
safety consequence broadly including the scope and adequacy of Recall 
04V-574 and Recall 04V-583. However, aside from the petition from CAS, 
NHTSA has not received any other complaints that Ford and Mazda failed 
to notify owners of vehicles that had been repaired pursuant to Recall 
04V-574 or Recall 04V-583 of a faulty recall repair, file a Part 573 
Report with NHTSA and initiate a second Ford Escape or Mazda Tribute 
recall, or file a Part 573 Report reporting the cruise control cable 
defect and recalling the Ford Escape and Mazda Tribute cruise control 
cables. Nor has NHTSA received any other requests that the Agency 
conduct a hearing to assess whether Ford and Mazda have met their 
statutory and regulatory obligations to notify owners and correct the 
defects at issue in Recall 04V-574 and Recall 04V-583.
    Fourth, we consider the likelihood that NHTSA can resolve this 
alleged problem without a hearing. NHTSA believes that it can obtain 
the information it needs to resolve this matter by directly using its 
information gathering authorities with respect to Ford and Mazda, 
contacting Ford Escape and Mazda Tribute owners and otherwise 
conducting an agency investigation. We do not believe that there would 
be benefits to holding a hearing. In fact, the time taken to plan for 
and hold a hearing would detract from the investigation.
    Finally, the Agency will consider other pertinent factors. The 
Agency has opened PE 12-019 to assess the Ford Escape and Mazda Tribute 
recalls and broader issues that may not be related to those recalls. We 
believe that an investigation is a more efficient way of obtaining the 
information necessary to evaluate the issues presented in CAS's 
petition than holding a hearing.

[[Page 43218]]

    CAS's petition for a hearing is denied.

    Authority: 49 U.S.C. 30118-30120, 30162; delegation of authority 
at 49 CFR 1.50 and 501.8.

    Issued on: July 17, 2012.
David Strickland,
Administrator.
[FR Doc. 2012-18060 Filed 7-23-12; 8:45 am]
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