[Federal Register Volume 81, Number 141 (Friday, July 22, 2016)]
[Notices]
[Pages 47854-47856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17356]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0077]


NHTSA Enforcement Guidance Bulletin 2016-03; Procedure for 
Invoking Paragraph 17 of the May 4, 2016 Amendment to the November 3, 
2015 Takata Consent Order

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

ACTION: Notice.

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SUMMARY: The National Highway Traffic Safety Administration (NHTSA) is 
issuing this Enforcement Guidance Bulletin to inform the public of the 
process and procedure the Agency has established in connection with 
Paragraph 17 of the May 4, 2016 Amendment to the November 3, 2015 
Consent Order with TK Holdings Inc., and the standards and criteria 
that will guide Agency decision-making.

[[Page 47855]]


FOR FURTHER INFORMATION CONTACT: 
    For legal issues: Elizabeth Mykytiuk, Office of the Chief Counsel, 
NCC-100, National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 366-5263).
    For general information regarding NHTSA's investigation into Takata 
Air Bag Inflator ruptures and the related recalls: http://www.safercar.gov/rs/takata/index.html.

SUPPLEMENTARY INFORMATION: The National Highway Traffic Safety 
Administration (NHTSA or Agency) is issuing this Enforcement Guidance 
Bulletin (the ``Bulletin'') to inform the public of the circumstances 
under which NHTSA would consider invoking Paragraph 17 of the Agency's 
May 4, 2016 Amendment to the November 3, 2015 Consent Order with TK 
Holdings Inc. (``Takata'') \1\ to alter the recall schedule, as well as 
to provide guidance on the standards and criteria that would guide such 
decision-making.
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    \1\ The November 3, 2015 Consent Order and May 4, 2016 Amendment 
are available on NHTSA's Web site at http://www.safercar.gov/rs/takata/index.html, under the ``Related Documents'' hyperlink.
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I. Background

    On June 11, 2014, NHTSA opened a formal defect investigation 
(Preliminary Evaluation, PE14-016) into certain Takata air bag 
inflators (``inflators'') that may become over-pressurized and/or 
rupture during air bag deployment, resulting in death or injury to the 
driver and/or passenger. On February 24, 2015, NHTSA upgraded and 
expanded this investigation (Engineering Analysis, EA15-001).
    Subsequently, Takata agreed to submit four Defect Information 
Reports (DIRs) on May 18, 2014, declaring that a defect existed in 
certain inflator types that were manufactured by Takata during certain 
periods of time. See Recall Nos. 15E-040, 15E-041, 15E-042, and 15E-
043. Those DIRs triggered an obligation on the part of affected motor 
vehicle manufacturers to conduct a recall of motor vehicles containing 
the defective inflators. See 49 CFR 573.5(a).
    On November 3, 2015, NHTSA issued, and Takata agreed to, a Consent 
Order, which among other things established conditions upon which 
Takata would be required to expand the scope of the defective inflator 
population by filing future DIRs. Again, the filing of such DIRs by 
Takata triggered an obligation by the motor vehicle manufacturers to 
submit DIRs covering the affected motor vehicles and to conduct a 
recall of motor vehicles in which the defective inflators are 
installed. See 49 CFR 573.3(f), 573.5(a); see also Coordinated Remedy 
Order at ] 46 (Nov. 3, 2015).
    On May 4, 2016, NHTSA and Takata agreed to an Amendment to the 
November 3, 2015 Consent Order (the ``Amendment''), under which Takata 
agreed to declare a defect in all driver and passenger inflators that 
contain an ammonium nitrate-based propellant, and do not contain a 
moisture-absorbing desiccant. The Amendment was based upon the findings 
of three independent research organizations that most of the inflator 
ruptures are associated with long-term propellant degradation caused by 
years of exposure to temperature fluctuations and intrusion of moisture 
present in the ambient atmosphere. See Amendment at ] 2. Based upon the 
Agency's conclusions regarding the root cause of the inflator ruptures, 
among other reasons, the recall is to be conducted on a rolling basis, 
with Takata filing additional DIRs on the following schedule (which is 
set forth in Paragraph 14 of the Amendment):

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            DIR dates                  Zone A population          Zone B population         Zone C population
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May 16, 2016.....................  All vehicles not           All vehicles not          All vehicles not
                                    currently under recall     currently under recall    currently under recall
                                    containing non-            containing non-           containing non-
                                    desiccated frontal         desiccated frontal        desiccated frontal
                                    Takata PSAN inflators--    Takata PSAN inflators--   Takata PSAN inflators--
                                    MY 2011 & older.           MY 2008 & older.          MY 2004 & older.
December 31, 2016................  All vehicles not           All vehicles not          All vehicles not
                                    currently under recall     currently under recall    currently under recall
                                    containing non-            containing non-           containing non-
                                    desiccated frontal         desiccated frontal        desiccated frontal
                                    Takata PSAN inflators--    Takata PSAN inflators--   Takata PSAN inflators--
                                    MY 2012 & older.           MY 2009 & older.          MY 2008 & older.
December 31, 2017................  All vehicles not           All vehicles not          All vehicles not
                                    currently under recall     currently under recall    currently under recall
                                    containing non-            containing non-           containing non-
                                    desiccated frontal         desiccated frontal        desiccated frontal
                                    Takata PSAN inflators--    Takata PSAN inflators--   Takata PSAN inflators--
                                    MY 2013 & older.           MY 2010 & older.          MY 2009 & older.
December 31, 2018................  All remaining vehicles     All remaining vehicles    All remaining vehicles
                                    not currently under        not currently under       not currently under
                                    recall containing non-     recall containing non-    recall containing non-
                                    desiccated frontal         desiccated frontal        desiccated frontal
                                    Takata PSAN inflators.     Takata PSAN inflators.    Takata PSAN inflators.
December 31, 2019................  All like for like non-     All like for like non-    All like for like non-
                                    desiccated frontal         desiccated frontal        desiccated frontal
                                    Takata PSAN replacement    Takata PSAN replacement   Takata PSAN replacement
                                    parts.                     parts.                    parts.
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    As set forth in Paragraph 7.a. of the Amendment, Zone A comprises 
the states and U.S. territories with the greatest temperature cycling 
and absolute humidity. It includes the following states and U.S. 
territories: 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.
    Zone B comprises states with moderate temperature cycling and 
absolute humidity. It includes the following states: 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. See Amendment at ] 7.b.
    Zone C comprises states with lower temperature cycling and absolute 
humidity. It includes the following states: 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. See 
Amendment at ] 7.c.
    The Amendment also sets forth a procedure under which the DIR 
schedule above may be modified or amended. More specifically, Paragraph 
17 provides:

[[Page 47856]]

    Based on the presentation of additional test data, analysis, or 
other relevant and appropriate evidence, by Takata, an automobile 
manufacturer, or any other credible source, NHTSA may, after 
consultation with Takata, alter the schedule set forth in Paragraph 14 
to modify or amend a DIR or to defer certain inflator types or 
vehicles, or a portion thereof, to a later DIR filing date. Any such 
evidence must be submitted to NHTSA no later than one-hundred-twenty 
(120) days before the relevant DIR filing date. This paragraph applies 
only to the DIRs scheduled to be issued on or after December 31, 2016 
under the schedule established by Paragraph 14 of this Amendment.
    The Agency believes it is important to provide additional guidance 
on the process and conditions under which NHTSA would consider altering 
the recall schedule to modify or amend a DIR or defer the filing of a 
DIR, as well as guidance on the standards and criteria that would guide 
such decision-making. This process shall not be used to expedite or 
expand the DIR schedule, nor shall it be used to eliminate a population 
of vehicles from the recall.

II. Process and Procedure

    A. Petition: No later than 120 days before the applicable DIR 
filing date, Takata, a vehicle manufacturer, or other credible source 
(the ``petitioner'') may petition the Agency for a modification or 
amendment to the DIR schedule. The petition shall be in writing and 
shall be directed to the Associate Administrator for Enforcement, with 
a copy to Chief Counsel. The petition shall specify the precise 
modification or amendment to the DIR schedule being requested by the 
petitioner, including the affected vehicle makes, models, and model 
years (the ``particular class of vehicles''). The petition shall also 
set forth all data, information, and arguments of the petitioner 
supporting its petition. To the extent the petitioner requests 
confidential treatment under 49 CFR part 512 in connection with any 
data, information, and arguments, it shall submit a publicly available 
summary of such confidential materials.
    B. Public Notice and Comment: Within 14 days of receiving a 
petition, NHTSA shall publish a notice of the petition in the Federal 
Register. The notice shall include a brief summary of the petition, a 
description of the particular class of vehicles, a statement of the 
availability of the petition and other relevant information for public 
inspection, and an invitation to interested persons to submit written 
data, information, and arguments concerning the petition to a public 
docket. The notice of the petition shall also specify the deadline for 
submitting data, information, and arguments concerning the petition, 
which deadline shall not be less than 14 days after the Federal 
Register notice.
    C. Disposition of the Petition: After reviewing the written data, 
views, and arguments from the petitioner and any interested persons, as 
well as other available information, and after consulting with Takata, 
the Associate Administrator for Enforcement shall make a decision 
whether to grant or deny the petition. Notice of the grant or denial of 
the petition shall be issued to the petitioner, and to Takata and any 
affected vehicle manufacturer, no less than 45 days before the relevant 
DIR filing date. Notice of the grant or denial of the petition shall 
also be published in the Federal Register.
    D. Appeal: Within 14 days of notice of a grant or denial in the 
Federal Register, any interested person may appeal the grant or denial 
of the petition to the Administrator. An appeal shall be in writing and 
shall be directed to the Administrator, with a copy to the Chief 
Counsel. The Administrator will base his final decision on the data, 
information, and arguments submitted in support of the petition and 
during the comment period, and other available information. The final 
decision will be issued no less than 5 days before the applicable DIR 
filing date. Notice of final decision shall also be published in the 
Federal Register.

III. Standard of Proof

    NHTSA may grant the petition if the Agency finds that the written 
data, information, and arguments regarding the petition and other 
available information demonstrate, by a preponderance of the evidence, 
that either: (i) There has not yet been, nor will be for some period of 
years in the future, sufficient propellant degradation to render the 
inflators contained in the particular class of vehicles unreasonably 
dangerous in terms of susceptibility to rupture; or (ii) the service 
life expectancy of the inflators installed in the particular class of 
vehicles is sufficiently long that they will not pose an unreasonable 
risk to motor vehicle safety if recalled at a later date.
    The Agency may rely on any relevant criteria in determining whether 
the available evidence satisfies the standard of proof. Generally, a 
petitioner may satisfy the standard of proof by submitting evidence 
concerning the physical attributes of the category of inflators at 
issue. Such evidence may include, but is not limited to, inflator 
diffusion rates, booster and propellant moisture content (over time), 
wafer diameter, and closed-bomb test data. In evaluating this evidence, 
the Agency will closely scrutinize the number of inflators tested, the 
age of the inflators tested, and the history of the vehicles from which 
the inflators were removed. A petitioner may also satisfy the standard 
of proof through robust predictive modeling, which modeling shall be 
independently verified by NHTSA's expert, Dr. Harold Blomquist. In all 
instances, a petition will be denied if there has been a rupture 
incident in the field or in testing that involves the inflator type 
contained in the particular class of vehicles at issue.
    Applicability/Legal Statement: This Enforcement Guidance Bulletin 
sets forth NHTSA's current interpretation and thinking on the process 
and procedures under Paragraph 17 of the Amendment, and the standards 
and criteria that will guide its decision-making. This Bulletin is not 
a final agency action and is intended as guidance only. This Bulletin 
is not intended, nor can it be relied upon, to create any rights 
enforceable by any party against NHTSA, the Department of 
Transportation, or the United States. Moreover, the process and 
procedures set forth herein do not establish any defense to any 
violations of the statutes and regulations that NHTSA administers. This 
Bulletin may be revised without notice to reflect changes in NHTSA's 
evaluation and analysis, or to clarify and update text.

    Authority:  49 U.S.C. 30101, et seq., 30118, 30162, 30166(b)(1), 
30166(g)(1); delegation of authority at 49 CFR 1.95(a).

    Issued: July 15, 2016.
Mark R. Rosekind, Ph.D.
Administrator.
[FR Doc. 2016-17356 Filed 7-21-16; 8:45 am]
 BILLING CODE 4910-59-P