[Federal Register Volume 78, Number 91 (Friday, May 10, 2013)]
[Notices]
[Pages 27474-27476]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11089]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2010-0041; Notice 2]


Fuji Heavy Industries USA, Inc., Grant of Petition for Decision 
of Inconsequential Noncompliance

AGENCY: National Highway Traffic Safety Administration, DOT.

ACTION: Grant of petition.

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SUMMARY: Fuji Heavy Industries USA, Inc. (Fuji) has determined that 
certain model year 2010 Subaru Legacy passenger car and Outback 
multipurpose Passenger Cars, manufactured from the start of their 2010 
model year production through June 30, 2009, did not comply with 
paragraph S19.2.2 of Federal Motor Vehicle Safety Standard FMVSS No. 
208, Occupant Crash Protection. Fuji has filed an appropriate report 
pursuant to 49 CFR part 573, Defect and Noncompliance Responsibility 
and Reports, dated July 16, 2009.
    Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule 
implementing those provisions at 49 CFR part 556, Fuji has petitioned 
for an exemption from the notification and remedy requirements of 49 
U.S.C. Chapter 301 on the basis that this noncompliance is 
inconsequential to motor vehicle safety. Notice of receipt of Fuji's 
petition was published, with a 30-day public comment period, on April 
19, 2010, in the Federal Register (75 FR 20423). Comments were received 
from Advocates for Highway & Auto Safety. To view the petition, the 
comments, and all supporting documents log onto the Federal Docket 
Management System (FDMS) Web site at: http://www.regulations.gov/. Then 
follow the online search instructions to locate docket number ``NHTSA-
2010-0041.''
    For further information on this decision, contact Mr. Lawrence 
Valvo, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-
5359.
    Vehicles Involved: Affected are approximately 3,405 model year 2010 
Subaru Legacy passenger car and Outback multipurpose Passenger Cars, 
manufactured from the start of their 2010 model year production through 
June 30, 2009. Fuji also estimated that 0.8% of those 3,405 have the 
subject noncompliance.
    Summary of Fuji's Analysis and Arguments: Fuji explained that the 
noncompliance is that front passenger air bag suppression status 
telltale lamp did not illuminate as required by paragraph S19.2.2 of 
FMVSS No. 208.

[[Page 27475]]

Fuji expressed the belief that the cause of the noncompliance is an 
open circuit in the power supply to the lamp. The Company said that 
``installation of the wiring harness to the multifunction display and 
passenger air bag suppression status telltale was routed at the 
instrument panel subsupplier such that tension was put on the wiring 
harness connector'' which can cause it to come loose. To correct this 
problem, the Company has re-routed the wiring harness to ``push'' 
rather than ``pull'' on the wiring harness connector in vehicles 
manufactured after July 10, 2009.
    The noncompliance was discovered on July 1, 2009, at the Company's 
Subaru Indiana plant during a quality inspection process that revealed 
a number of multi-function displays that did not illuminate and further 
inspection revealed that this also affected the front passenger air bag 
suppression status telltale.\1\
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    \1\ The 2010 Subaru Legacy and Outback models' telltale has both 
an air bag suppression status indicator for ON and OFF. Thus, either 
ON or OFF on the telltale should be illuminated whenever the 
ignition is on.
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    On July 10, 2009, Fuji completed the inspection of 5,400 of its 
vehicles awaiting shipment and corrected the noncompliance of 45 
vehicles by ``pushing tight'' the harness connector. In addition, 
Subaru of America, Inc. notified its U.S. dealers and distributors on 
July 16, 2009, and included complete repair instructions for vehicles 
in their inventory which had not been inspected or repaired prior to 
shipment from the Company.
    Fuji believes that the noncompliance is inconsequential to motor 
vehicle safety. Fuji argues that:

    Based on the inspection of approximately 5,400 vehicles still at 
Subaru Automotive Indiana and a finding that the wiring harness 
connector to the front passenger air bag suppression status telltale 
or other multi-function display had been loose on 45 vehicles, 
Subaru has determined that the expected occurrence rate is about 
0.8% [less than one percent].
    [Subaru] . . . has determined that 3,405 vehicles were shipped 
to dealers prior to the discovery of this problem. Using the above 
frequency rate, . . . [the Company] expect that only about 27 
vehicles will have a noncompliance with FMVSS 208.
    All other aspects of the front passenger advanced air bag 
suppression system will continue to function properly.
    Since Subaru has both an OFF and ON indication in the 
suppression telltale, a complete absence of illumination is a 
warning that the lamp is not functioning. Since power to the 
telltale is also power to the multi-function display, the owner will 
have a clear indication to quickly report a problem to a Subaru 
dealer.
    Vibration bench testing in Japan by the [Company's] supplier 
revealed that no disengagement of a wiring harness connector that 
originally worked properly will occur during the use of vehicle.
    Dealers will receive a TSB with repair instructions on July 16, 
2009 for any vehicles in their inventory, which had not been 
inspected or repaired prior to shipment to dealers or for vehicles 
where the owner reports a telltale/multi-function display problem. 
Dealers will also be instructed to check both the telltale and 
display at the first scheduled service (at 3,750 or 7,000 miles 
depending on variant).

    In summary, Fuji/Subaru states that it believes the noncompliance 
is inconsequential to motor vehicle safety because the expected 
occurrence rate for the noncompliance is less than one percent (about 
0.8%); a complete absence of illumination on the telltale gives a clear 
indication to the vehicle owner to quickly report a problem to the 
Subaru dealer; the Company's vibration testing supports the conclusion 
that this noncompliance is not likely to later occur in vehicles that 
were produced without the noncompliance; and Dealers will also be 
instructed to check both the telltale and display at the first 
scheduled service (at 3,750 or 7,000 miles depending on variant) and 
will receive a technical service bulletin (TSB) with repair 
instructions for any vehicles in their inventory, which had not been 
inspected or repaired prior to shipment to dealers or for vehicles 
where the owner reports a telltale/multi-function display problem.
    Discussion: NHTSA has reviewed and accepts Fuji's analyses that the 
noncompliance is inconsequential to motor vehicle safety. Fuji has 
provided documentation that the front passenger air bag suppression 
status telltale lamp does comply with all other safety performance 
requirements of the standard, except the illumination. NHTSA has 
reviewed all incoming complaints on the subject vehicles and found no 
complaints matching the subject noncompliance.
    NHTSA's Response to Comments: NHTSA received a comment from 
Advocates for Highway & Auto Safety (Advocates) that recommended 
conditions under which to grant or deny concerning Fuji's petition.
    Advocates expressed concern that the inability of the air bag 
telltale to accurately communicate the status of the front passenger 
air bag in the subject vehicles may mislead passengers to behave in a 
manner that is in conflict with the actual air bag status, thereby 
posing a significant danger to the passenger in the event of a crash. 
It provided the following examples as scenarios which, they claim, may 
place a passenger at risk.
    1. ``The lack of a lighted indicator may be mistakenly interpreted 
to mean that the air bag itself has malfunctioned, or that only the air 
bag suppression feature is not working and that it is safe for an adult 
to use the front passenger seating position.''
    2. ``[T]he lack of a lighted ``ON'' symbol on the telltale may be 
taken to mean that the air bag suppression is not activated and that it 
would be safe to place a rear facing infant restraint or a young child 
in the front passenger seat falsely assuming that the air bag would not 
deploy in the event of a crash.
    Advocates believes that Subaru should be able to document the 
number of front passenger air bag telltales that were serviced, found 
to be malfunctioning, and were repaired out of the 3,405 affected 
Subaru Legacys and Outbacks that were shipped to dealers during the 10 
month period before Subaru identified the problem since owners would 
have had ample time to notice a malfunction of the telltale and return 
their vehicle to the dealer for repair. Advocates recommended that if 
the repair data indicate that many or most of the noncompliant vehicles 
(27 of 3,405 potentially affected, as estimated by Subaru) have been 
repaired, that NHTSA should grant the petition, assuming that the 
agency agrees with Subaru's 0.8 percent noncompliance rate. 
Furthermore, it recommended that if the agency believes Subaru's 0.8 
percent noncompliance rate is not reliable, or if many or most of the 
estimated 27 noncompliant vehicles have not been repaired, then the 
agency should deny the petition.
    Advocates stated that ``NHTSA has on a number of occasions stated 
that noncompliance in even a single vehicle is significant, and 
therefore not inconsequential, if the failure to comply poses a threat 
to occupant safety'' and ``NHTSA has pointed out that small numbers or 
low percentages of noncompliant vehicles do not provide the basis for 
granting of a petition for inconsequential noncompliance.'' Though 
these assertions are correct, the agency has decided to grant Fuji's 
request for inconsequentiality for reasons other than the low number of 
vehicle that Subaru had calculated to be noncompliant. These reasons 
are as follows:
     Fuji issued a technical service bulletin (TSB) to its 
dealerships on July 16, 2009, that described the repair procedure for 
vehicles with inoperative passenger air bag status telltale lamps. This 
led to the repair of 28 vehicles

[[Page 27476]]

which agrees with Fuji's initial estimate of 27 vehicles.
     As of April 10, 2013, a total of 144 consumer complaints 
have been received by NHTSA for the 2010 Subaru Legacy and Outback 
models. None of these complaints are related to the problem described 
by Subaru in their petition for inconsequentiality.
     As described in Fuji's petition, power is supplied to the 
passenger air bag status telltale lamp and the multifunction display 
with the same wiring harness connector. If the telltale does not 
receive power due to an open circuit from a loose connector, the entire 
multi-function display will also not illuminate and will be inoperable. 
Fuji believes this condition will be apparent to the consumer and would 
lead them to have the vehicle serviced. There were no consumer 
complaints reported to NHTSA related to this problem.
     Fuji explained that, based upon their supplier's vibration 
testing, the fault would not occur on a vehicle that originally had a 
functioning passenger air bag status telltale lamp and multifunction 
display. There were no consumer complaints reported to NHTSA related to 
loss of illumination of the telltale lamp and/or multifunction display.
    Given the absence any related consumer complaints to date, the 
conspicuous nature of the problem on any vehicles with the fault, and 
Fuji's action to put in place a procedure to repair the few that did, 
the agency does not believe there is a significant risk to the motoring 
public in this specific case.
    NHTSA Decision: In consideration of the foregoing, NHTSA has 
decided that Fuji met its burden of persuasion that the FMVSS No. 208 
noncompliance with respect to the front passenger air bag suppression 
status telltale lamp described in Fuji's Noncompliance Information 
Report is inconsequential to motor vehicle safety. Accordingly, Fuji's 
petition is hereby granted and the Fuji is exempted from the obligation 
of providing notification of, and a remedy for, that noncompliance 
under 49 U.S.C. 30118 and 30120.
    NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 
30120(h)) that permit manufacturers to file petitions for a 
determination of inconsequentiality allow NHTSA to exempt manufacturers 
only from the duties found in sections 30118 and 30120, respectively, 
to notify owners, purchasers, and dealers of a defect or noncompliance 
and to remedy the defect or noncompliance. Therefore, this decision 
only applies to the 3,405 noncompliant vehicles that Fuji no longer 
controlled at the time that it determined that a noncompliance existed 
in the subject vehicles.

    Authority:  49 U.S.C. 30118, 30120; delegations of authority at 
49 CFR 1.95 and 501.8.

    Issued On: May 6, 2013.
Claude H. Harris,
Director, Office of Vehicle Safety Compliance.
[FR Doc. 2013-11089 Filed 5-9-13; 8:45 am]
BILLING CODE 4910-59-P