[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Notices]
[Pages 75907-75920]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26289]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0113]


Denial of Motor Vehicle Defect Petition, DP12-004

AGENCY: National Highway Traffic Safety Administration (NHTSA).

ACTION: Denial of Petition for a Defect Investigation.

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SUMMARY: This notice describes the reasons for denying a petition 
(DP12-004) submitted to NHTSA under 49 U.S.C. 30162, requesting that 
the agency conduct ``a defect investigation into MY 2005-2010 Nissan 
Pathfinder, Frontier, and Xterra vehicles [the subject vehicles] for 
automatic transmission failures related to failed transmission 
coolers.''

FOR FURTHER INFORMATION CONTACT: Bob Young, Office of Defects 
Investigation (ODI), NHTSA; 1200 New Jersey Ave. SE., Washington, DC 
20590. Telephone: 202-366-4806.

SUPPLEMENTARY INFORMATION: In support of his petition, received on 
February 29, 2012, Mr. Mathew Oliver, Director of Operations for the 
North Carolina Consumers Council, Inc. (NCCC); alleged the following:
    (1) ``During the past six months, five owners of 2005 Xterra 
vehicles, and one owner of a 2006 Frontier vehicle, reported that they 
experienced sudden jerking of their vehicle(s) at highway speeds. They 
report, in all instances, that dealers diagnosed the problem as a 
failed transmission fluid cooler located in the radiator that allowed 
coolant to mix with, and contaminate, the automatic transmission fluid 
resulting in damaged internal transmission components and a damaged 
internal transmission computer. The complaints report no warning signs 
leading up to or just prior to the failures'';
    (2) ``NCCC has learned from Web site searches, and through the 
NHTSA Web site, of many other similar complaints in the subject 
vehicles. Web site data and NHTSA reports usually [report] the same 
symptoms and lack of warning. Numerous complaints on the NHTSA Web site 
note repeat oil [sic] cooler and transmission failures'';
    (3) Nissan extended its warranty coverage of subject vehicles' 
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler 
but not to transmissions that may have been damaged as a consequence of 
cooler failures;
    (4) Nissan extended its warranty coverage of subject vehicles' 
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler 
but not to transmissions that may have been damaged as a consequence of 
cooler failures. Additionally, Nissan failed to conduct inspections 
that may have revealed a cooler failure was imminent thus helping 
consumers avoid a catastrophic transmission failure; and
    (5) A class action lawsuit was filed in 2010 on behalf of clients 
relating to this alleged defect.
    Mr. Oliver concluded his petition by stating, ``through our limited 
investigation into the matter, all of the vehicles experiencing these 
[transmission] failures are within the 8 year period specified by the 
extended warranty but are often beyond the 80,000 mile limit. It also 
appears that the number of reported defects is increasing, which is 
concerning to say the least. Due to the nature of the reported defect, 
the severity of the reported failures, the repetitive nature of the 
failures and the limited or missing failure warning signs, we believe 
that an investigation is warranted.''
    NHTSA has reviewed the material provided by the petitioner and 
other pertinent data. The results of this review and our analysis of 
the petition's merit is set forth in the DP12-004 Petition Analysis 
Report, published in its entirety as an appendix to this notice.
    For the reasons presented in the petition analysis report, there is 
no reasonable possibility that an order concerning the notification and 
remedy of a safety-related defect would be issued as a result of 
granting Mr. Oliver's petition. Therefore, in view of the need to 
allocate and prioritize NHTSA's limited resources to best

[[Page 75908]]

accomplish the agency's safety mission, the petition is denied.

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

Jeffrey M. Giuseppe,
Acting Associate Administrator for Enforcement.

APPENDIX--Petition ANALYSIS--DP12-004

1.0 INTRODUCTION

    On February 29, 2012 the National Highway Traffic Safety 
Administration (NHTSA) received a letter from Mr. Mathew Oliver, 
Director of Operations for the North Carolina Consumers Council, Inc. 
(NCCC); petitioning the agency to conduct ``a defect investigation into 
MY 2005-2010 Nissan Pathfinder, Frontier, and Xterra vehicles [the 
subject vehicles] for automatic transmission failures related to failed 
transmission coolers.''
    Mr. Oliver's letter included the following information:
    (1) ``During the past six months, five owners of 2005 Xterra 
vehicles, and one owner of a 2006 Frontier vehicle, reported that they 
experienced sudden jerking of their vehicle(s) at highway speeds. They 
report, in all instances, that dealers diagnosed the problem as a 
failed transmission fluid cooler located in the radiator that allowed 
coolant to mix with, and contaminate, the automatic transmission fluid 
resulting in damaged internal transmission components and a damaged 
internal transmission computer. The complaints report no warning signs 
leading up to or just prior to the failures'';
    (2) ``NCCC has learned from Web site searches, and through the 
NHTSA Web site, of many other similar complaints in the subject 
vehicles. Web site data and NHTSA reports usually [report] the same 
symptoms and lack of warning. Numerous complaints on the NHTSA Web site 
note repeat oil [sic] cooler and transmission failures'';
    (3) Nissan extended its warranty coverage of subject vehicles' 
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler 
but not to transmissions that may have been damaged as a consequence of 
cooler failures;
    (4) Nissan extended its warranty coverage of subject vehicles' 
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler 
but not to transmissions that may have been damaged as a consequence of 
cooler failures. Additionally, Nissan failed to conduct inspections 
that may have revealed a cooler failure was imminent thus allowing 
consumers avoid a catastrophic transmission failure; and
    (5) A class action lawsuit was filed in 2010 on behalf of clients 
relating to this alleged defect.
    Mr. Oliver concluded his petition by stating, ``Through our limited 
investigation into the matter, all of the vehicles experiencing these 
[transmission] failures are within the 8 year period specified by the 
extended warranty but are often beyond the 80,000 mile limit. It also 
appears that the number of reported defects is increasing, which is 
concerning to say the least. Due to the nature of the reported defect, 
the severity of the reported failures, the repetitive nature of the 
failures and the limited or missing failure warning signs, we believe 
that an investigation is warranted.'' \1\
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    \1\ Mathew Oliver, to Administrator, National Highway Traffic 
Safety Administration, Washington, DC, 29 February 2012, page 2.
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    In analyzing the petitioner's allegations and preparing a response, 
we:
     Reviewed the petitioner's letter, received on February 29, 
2012.
     Reviewed the NCCC Web site for additional information.
     Reviewed 2,505 individual complaints filed in our consumer 
complaint database through September 13, 2016.
     Reviewed individual vehicle Carfax information to 
determine ownership and service histories.
     Reviewed vehicle manufacturer information concerning 
relevant extended warranty programs.
     Reviewed vehicle manufacturer technical information 
concerning transmission operation.
     Reviewed vehicle manufacturer technical information 
concerning transmission control module (TCM) and engine control unit 
(ECU) functional relationship, including transmission related fault 
codes triggering an illuminated ``malfunction indicator lamp.''
     Reviewed various ODI safety defect investigations related 
to engine stalling and loss of motive power (LOMP).
     Gathered and reviewed information related to the class 
action lawsuit cited by the petitioner.
     Reviewed vehicle production quantity information from 
Nissan.
     Interviewed owners, in person and by telephone, about 
their experience with related transmission failures.
     Test drove subject vehicles where transmission fluid and 
engine coolant were co-mingled and transmission problems were evident 
and unresolved.
     Interviewed Nissan dealer service staff about the subject 
issue.
     Interviewed independent transmission repair shop staff 
about the subject issue.
     In an effort to learn more about the transmission coolant 
tank failures, ODI secured the services of NHTSA's Vehicle Research and 
Test Center (VRTC). VRTC did the following:
    A. Interviewed subject vehicle owners and test drove their 
vehicles; and
    B. Conducted a root cause analysis to determine why subject fluid 
cooler tanks were failing.
    Based on our analysis of the information gathered during this 
comprehensive effort, it does not appear there is a reasonable 
possibility that an order concerning the notification and remedy of a 
safety-related defect would be issued as a result of granting Mr. 
Oliver's petition. 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.

2.0 SUBJECT VEHICLES

    The subject vehicles are all MY 2005-10 Nissan Pathfinder, 
Frontier, and Xterra vehicles equipped with a RE5R05A 5-spd, 
electronically controlled, automatic transmission. Nissan produced 
857,432 subject vehicles for sale in the United States.

3.0 SUBJECT TRANSMISSION COOLING SYSTEM

    The subject vehicles are equipped with a transmission fluid cooler. 
The cooler, a cylindrical tank located within the radiator and 
submerged in engine coolant, acts as a heat exchanger. Hot transmission 
fluid flows from the transmission to, and through, the tank where it is 
``cooled'' before returning to the transmission. The tank is not 
visible unless the radiator is disassembled.

[[Page 75909]]

[GRAPHIC] [TIFF OMITTED] TN01NO16.129

4.0 THE ALLEGED DEFECT

    The petitioner alleges that consumers are experiencing a subject 
transmission performance issue due to co-mingling of engine coolant and 
automatic transmission fluid (ATF) occurring when the ATF cooling tank 
fails.

5.0 ROOT CAUSE

    NHTSA's Vehicle Research and Test Center (VRTC) in East Liberty, OH 
was tasked with conducting an assessment to determine why ATF and 
engine coolant were co-mingling. VRTC's final report, documenting this 
work, was filed on May 30, 2013.\2\
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    \2\ FINAL REPORT: DP12-004 ``Inspections and Tests of Engine 
Coolant Radiators with Integrated ATF-Temperature-Stabilizing 
Cylinders from 2005-10 Nissan Light Trucks''; Roger A. Saul, 
Director, VRTC, May 30, 2013.
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5.1 MY2005 Nissan Pathfinder, VOQ 10415028

    The owner of a 2005 Nissan Pathfinder filed VOQ #10415028, 
including the following summary:
    ``TRANSMISSION STARTED SLIPPING STARTED JERKING WHILE DRIVING, 
ALSOSOUNDED LIKE TIRES WERE MAKING NOISE ESPECIALLY AROUND 40 MPH. I 
WAS DRIVING ON RT 62 NEAR MY HOME AND WAS VERY FORTUNATE NOT BEING T-
BONED AS A PULLED OUT,MY PATHFINDER DIDN'T GO LIKE IT WAS SUPPOSED TO, 
FORTUNATELY THE ONCOMING VEHICLE STOPPED. I TOOK IT TO A NISSAN DEALER 
AND THEY SAID THAT THE 2005,2006,2007 PATHFINDER WERE KNOWN TO HAVE AN 
ISSUE WITH THE COOLER FAILING AND BREAKING DOWN THE TRANSMISSION AND 
THAT THEY KNEW ABOUT THE FAULTY COOLER FOR ALONG TIME. NISSAN SAID THEY 
INCREASED THE WARRANTY FROM 60,000 TO 80,000 BUT OTHER THAN THAT THEY 
HAVE DONE NOTHING. AND DIDN'T INFORM THE PUBLIC. MY FAMILY AND I, 
DIDN'T GET HURT OR HURT SOMEONE ELSE, HOWEVER THIS SCENARIO COULD BE 
VERY DANGEROUS AND NISSAN SHOULD INFORM THE PUBLIC AND RECALL THE 
TRANSMISSION AND FAULTY COOLER BEFORE DEATHS START HAPPENING.''
    In a follow-up phone interview, he reported the transmission and 
radiator were original equipment and that he had the radiator flushed 
once but was still having problems. He knew about the extended 
warranty, but his vehicle mileage was beyond the mileage limit. The 
owner reported that he had not been driving the vehicle for 
approximately one year.
    The owner accepted VRTC's offer of a cost-free tow and free vehicle 
inspection at his local Nissan dealer. If co-mingled fluid was found, 
his radiator would be removed and taken to the Center's lab.
    However, on the day of the inspection (August 28, 2012), he drove 
it to the dealership. The vehicle appeared to be in good condition with 
126,495 miles on the odometer. At the dealership, the owner discussed 
his situation. He had replaced the engine coolant and the ATF 
approximately 12months/40 miles ago. He described transmission 
slipping, jerking, the tires making chirping noises, and lack of 
acceleration when needed, such as pulling out onto a highway. He 
reiterated his concern about the $6,000.00 estimated repair cost.
    VRTC staff removed the radiator cap and found the fluids co-
mingled. The radiator was removed and replaced with a new one. Before 
leaving with the subject radiator, the dealership service manager 
reported that they find co-mingled fluid in subject vehicles about once 
or twice per month.

5.2 VRTC root cause finding

    At VRTC, the radiator was pressurized and submerged in a tank of 
water. The radiator bubbled slowly and steadily from the open ATF ports 
indicating a crossover leak, as shown in Figure 2.

[[Page 75910]]

When the ATF cooling cylinder was removed and pressurized, a leak was 
noted just inboard of the AFT ports, as shown in Figure 3. Figure 4 
shows this was due to a fractured interface between the cylinder and 
the disk that supports the ATF port. This fracture appears to be the 
result of normal hoop stress on the cylinder in an area that was 
restrained by the port disk that resulted in a stress concentration and 
a fatigue fracture.
[GRAPHIC] [TIFF OMITTED] TN01NO16.130


[[Page 75911]]


[GRAPHIC] [TIFF OMITTED] TN01NO16.131


[[Page 75912]]



6.0 EFFECT OF CO-MINGLED FLUID ON VEHICLE OPERATION

    Co-mingled ATF and engine coolant may affect transmission 
performance and may cause an engine stall.

6.1 Transmission performance anomalies due to co-mingled fluid

    Exposure to co-mingled ATF and engine coolant will have an adverse 
effect on transmission performance and longevity. Engine coolant (e.g., 
water, anti-freeze and/or a combination of the two) will cause the 
automatic transmission clutch linings to delaminate from transmission 
clutch plates and bands. Once that begins to occur, transmission 
performance will degrade over time with operators first noting sluggish 
shifts, shift shudder, slipping in gear, and a delay when shifting from 
Park into Drive or Reverse. If not remedied, ultimately the 
transmission will no longer transmit engine power to the driven wheels 
and the vehicle will perform as though its transmission is in neutral 
(i.e., no motive power).

6.2 Engine stalling due to co-mingled fluid

    The subject transmission is electronically controlled by the 
Transmission Control Module (TCM) located internally. By design, the 
TCM should never come in contact with engine coolant. The TCM 
communicates with the Engine Control Module through the vehicle's 
Controller Area Network (CAN). The TCM is capable of diagnosing 
transmission malfunctions and the ECM stores the resulting diagnostic 
trouble codes (DTCs) in memory. In some instances, a TCM malfunction 
(due to contamination by engine coolant, for example), can result in an 
engine stall, poor shift performance, and an engine no-start condition. 
Typically a TCM malfunction will trigger the illumination of a MIL 
(malfunction indicator lamp), which, on the subject vehicles' 
instrument cluster, is displayed as ``Service Engine Soon.''
[GRAPHIC] [TIFF OMITTED] TN01NO16.132

    Typically ``fault codes'' are stored within the ECM when the MIL is 
illuminated due to a TCM anomaly. These codes are later used by 
technicians to diagnose the problem. For example, a ``U1000'' code is 
stored when the TCM cannot communicate with the ECM.\3\ The engine may 
stall when this type of malfunction is detected.
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    \3\ The ``U1000'' code is identified in alleged crash VOQ 
10789140 discussed later in this report.
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7.0 CONSUMER COMPLAINTS TO NHTSA

    As of September 13, 2016 we received 2,505 complaints concerning 
subject vehicle transmission performance. Of these, 2,081 were 
submitted since the petition was filed on February 29, 2012.
    After reviewing the complaints, they broadly fall into two 
categories: Customer Satisfaction and Potential Hazard.

7.1 Customer Satisfaction-Related

    Of the 2,505 complaints received by ODI, 1,867 pertained to 
customer satisfaction issues such as cost of repair, vehicle shudder 
and shake, no engine start, engine overheat, no cabin heat, no reverse, 
and check engine light on. Fully fifty percent of these complaints 
(944) mention cost of repair, the single most reported concern. Vehicle 
shudder and shake was identified in 798 VOQs, the most reported 
vehicle-related customer satisfaction issue.

7.2 Potential Hazard

    Six hundred and thirty-eight VOQs reported the following potential 
hazards: unable to maintain vehicle speed, loss of motive power, and 
engine stalling. As in the customer satisfaction- related VOQs 
discussed previously, cost of repair was the single most identified 
issue, with fifty-four percent (344) voicing the concern. Allegations 
of ``unable to maintain speed'' and ``no motive power'' were found in 
573 complaints (299 and 274, respectively). Engine stalling was 
identified in 65 VOQs. Average vehicle mileage when these complaints 
were filed is approximately 106,482.

[[Page 75913]]

8.0 ALLEGED CRASH REPORTS

    Four crashes are alleged; two due to loss of motive power, one due 
to an engine stall, and the fourth due to vehicle shudder.

8.1 Alleged crash report #1--VOQ 10555827--Loss of motive power

    This VOQ was filed with us on December 12, 2013 by the second owner 
of a MY2008 Nissan Xterra. No VIN was provided. It includes this 
summary:
    ``WHILE DRIVING THROUGH THE INTERSECTION, MY VEHICLE SUDDENLY LOST 
POWER CAUSING ME TO GET REAR ENDED. VERY MINIMAL DAMAGE TO MY VEHICLE 
BUT MY DAUGHTER WAS IN THE CAR WITH ME. UPON FURTHER INSPECTION AT A 
SHOP IT WAS CONCLUDED THAT THE CAUSE OF THE LOSS OF POWER WAS DUE TO A 
FAILURE IN THE TEAMS FLUID COOLER CAUSING RADIATOR FLUID TO ENTER THE 
TRANSMISSION. ``
    In a subsequent telephone conversation, complainant stated that he 
had purchased the vehicle, with 112,098 miles, from a private owner on 
December 6, 2013. No transmission or radiator issues were disclosed. 
However some sluggishness in transmission up- and down- shifting was 
noted about a day before the crash.
    The owner reported that he was driving the Xterra, with his 12 y.o. 
daughter as a passenger, on December 9, 2013 as they approached an 
intersection at about 40 mph. The vehicle suddenly lost motive power, 
slowed, and was rear-ended resulting in damage to the rear bumper and 
no personal injury. No police report was filed. Later that day, he 
drove the Xterra to his local Nissan dealer where co-mingled fluids 
were found. He was given a repair estimate of $4500 to replace the 
radiator and transmission. He was also told that, based on vehicle age 
and mileage, he was not eligible of either Nissan's extended warranty 
or the class action settlement terms (which are, in fact, identical). 
So, unable to afford this repair, the vehicle has been parked near his 
home since.
    We attempted to gather service and owner history information but 
without a VIN have been unable to do this. The owner agreed to provide 
the VIN by email. To date he has not done so.

8.2 Alleged crash report #2--VOQ 10561840--Shudder

    This VOQ was filed with ODI on January 28, 2014 by the second owner 
of a MY2007 Nissan Pathfinder. The alleged crash occurred on January 
10, 2014, at about 90,000 miles which he summarized as follows:
    ``I REQUEST THAT THE DOT NHTSA INVESTIGATE MANUFACTURER DEFECTS IN 
2007 NISSAN PATHFINDERS COOLING SYSTEM AND TRANSMISSION AS UNEXPECTED 
FAILURE RELATES TO DRIVER SAFETY. MY 2007 PATHFINDER WITH 90,000 MILES 
CAUSED A MAJOR COLLISION WITH A DEER AS THE TRANSMISSION BEGAN TO FAIL. 
DRIVING HOME, AT AROUND 40MPH, UP A HILL (ENGINE UNDER LOAD @2,200-
2,500 RPM) THE WHOLE CAR BEGAN SUDDENLY TO ``SHUDDER''- SIMILAR TO THE 
FEELING/SOUND OF RIDING OVER HIGHWAY RUMBLE STRIPS. THIS RESULTED IN A 
LOSS OF CONTROL OVER THE SPEED OF THE VEHICLE AND A NOTICEABLE 
DISTRACTION LEAVING ME UNPREPARED AS A LARGE BUCK RAN OUT FROM THE TREE 
LINE ATTEMPTING TO CROSS THE ROAD- THE BUCK DID NOT MAKE IT ACROSS. AS 
I HAVE FOUND IN MY RESEARCH AFTERWARDS, THERE IS A WIDELY KNOWN 
MANUFACTURER DEFECT IN WHICH ENGINE COOLANT MIXES WITH TRANSMISSION 
FLUID. THE RESULTING ``GOOP'' SHREDS THE INTERNAL PARTS OF THE 
TRANSMISSION RENDERING IT (ALONG WITH THE RADIATOR AND COMPONENTS) 
COMPLETELY USELESS. THESE VEHICLES ARE UNSAFE FOR THE ROADWAYS AS THIS 
PROBLEM OCCURS SUDDENLY AND UNEXPECTEDLY WITHOUT WARNING. I CONSIDER 
MYSELF LUCKY FOR BEING ALIVE- NOW, BUT SINCE NISSAN NOR ANY OTHER 
ORGANIZATION IS WILLING TO RECALL OR REPLACE THIS VEHICLE/AFFECTED 
PARTS, I AM STUCK, FORCED [EMPHASIS ADDED] TO DRIVE ON THE ROAD BEING A 
HAZARD TO OTHERS AND MYSELF.''
    Numerous attempts to contact this filer, by mail, email, and 
telephone have been unsuccessful.
    According to the VOQ, the incident was not reported to police.
    A Carfax vehicle history report reveals that the subject owner, the 
vehicle's second, purchased it on February 21, 2009 at 29,526 miles. 
The detailed service history includes 11 service visits prior to the 
alleged crash . . . none related to either the transmission or radiator 
nor are any crash-related repairs identified either before or after the 
alleged crash date. We recognize, however, that not all service 
attempts may be documented in the report.

8.3 Alleged crash report #3--VOQ 10789140--Engine Stall

    This VOQ was filed on November 9, 2015 by the owner of a MY2008 
Nissan Pathfinder. It contains the following summary:
    `` ON NOVEMBER 6, 2015 AROUND OR ABOUT 7:00PM MY V6 2008 NISSAN 
PATHFINDER SERVICE ENGINE LIGHT TURNED ON WHILE IN FIRST GEAR IN 
MOSTION; THE SUV ENGINE AND TRANSMISSION TURNED OFF HAD NO BRAKES AND 
HAD A FENDER BENDER WHILE IN MOTION, HAD THE SUV TOWED HOME AND CHECKED 
THE CODE ON THE OBD AND IT READ CODE: U1000 CONTROLLER AREA NETWORK 
(CAN) COMMUNCATION LINE SIGAL MALFUNCTION.DID A VISUAL CHECK INSIDE 
RADIATOR FILLER PORT, ELECTRICAL FUSE (10AMP FUSE TO THE TRANSMISSION 
BLEW WHICH ATOMCTICLY TOLD ME A COMMUNICATION HARNESS IS OPEN OR 
SHORTED; OR A FAULTY ENGINE CONTROL MODULE(ECM))AND ALSO CHECKED THE 
RESIVOR FILLER PORT, FOUND RED TRANSMISSION FLUID AND GREEN ENGINE 
COOLENT FLUID INCORPORATED IN RADIATOR (CONTAMINATION), ALSO CHECKED 
TRANSMISSION DIP STICK TO SEE IF TRANSMISSON FLUIDS LOW BUT INSTEAD 
FOUND RUST AT THE END PART OF THE DIPSTICK INSIDE THE TRANSMISSON 
INDICATING ENGINE COOLENT CONTAMINATION (WATER) ALL INSIDE THE 
TRANSMISSION.WHO KNOW HOW MUCH RUST IS INSIDE THE TRANSMISSION UNTIL A 
FULL TEAR DOWN AND THOROUGH INSPECTION IS PERFORMED.....CAR IS 
STATIONARY AND WILL NOT START''
    We have been unable to contact the owner to confirm the details 
related in his complaint.
    This vehicle, with 105,985 miles, was bought at auction in July, 
2015 by a used car dealer in Texas before being sold, on September 9th 
to the current owner (and VOQ filer). Fifty-seven days later the 
alleged crash occurred due to an engine stall. No police report was 
filed. The Carfax service history shows no transmission/radiator-
related repairs and indicates that the only service work done on the 
vehicle since September 9, 2015 was a ``maintenance inspection'' at 
111,916 miles.

8.4 Alleged crash report #4--VOQ 10854627--Loss of motive power

    This VOQ was filed with us on April 10, 2016 alleging that a crash 
occurred on September 15, 2015 involving a

[[Page 75914]]

MY2006 Nissan Frontier. The Carfax Vehicle History Report shows there 
have been at least 5 owners of this truck with the current owner filing 
a VOQ containing this narrative:
    ``I BOUGHT MY 06 NISSAN FRONTIER WITH 95000 MILES GREAT TRUCK LOVED 
IT WHEN IT GOT TO 118000 MILES THE RADIATOR MESSED UP CAUSING ME TO 
REPLACE THE RAD AND TRANS FLUSH 500$ TWO WEEKS LATER NO REVERSE ONE DAY 
HEADED HOME FROM WORK GOING UP LICK HILL SECOND GEAR GOS OUT CAUSING ME 
TO GET REARENED THEN THERE'S 200$ FOR TOWING AND A SMASHED UP TRUCK 
JUST SPENT 8000 ON THE TRUCK AND CAN NOT AFFORD TO PUT 4000 MORE IN IT 
WHAT THE HELL THIS IS A JOKE MY TRUCK WILL ROT TO THE GROUND BEFORE I 
SPEND 4000 MORE I HOPE THIS IS TAKEN CARE OF NOBODY SHOULD HAVE TO DEAL 
WITH THIS NOW I A PIECE OF JUST THAT'S NOT WORTH 2500 NISSAN U SUCK''
    In a subsequent telephone conversation with us, the owner said, 
after finding co-mingled ATF/engine coolant, he replaced the radiator 
and then had an independent repair shop perform a transmission fluid 
flush. The transmission still would not shift into reverse. No further 
repair attempts were made. Two weeks later the September 15th crash 
occurred. No police accident report was filed and the vehicle has been 
parked since.

9.0 ODI VEHICLE INSPECTIONS

    ODI met with two local owners for an interview and vehicle 
inspection. The second prompted the discovery, and inspection, of a 
third vehicle.

9.1 VOQ 10695005

    On June 28, 2016, we met with the original owner of the MY 2007 
Nissan Pathfinder at his home in the Baltimore, MD suburbs. We focused 
on this owner because his vehicle was involved in a loss of motive 
power incident; the dealer confirmed the fluid was co-mingled; and it 
had not been repaired. His VOQ (10695005), filed on March 18, 2015, 
included the following summary:
    ``PURCHASED 2007 NISSAN PATHFINDER BRAND NEW. BROUGHT TO NISSAN 
DEALER DUE TO CHECK ENGINE LIGHT ON DASHBOARD. DIAGNOSIS PERFORMED AND 
DETERMINED RADIATOR/TRANSMISSION FLUID/COOLANT LEAKING INTO 
TRANSMISSION. ESTIMATED REPAIR $6000 TO REPLACE RADIATOR/THERMOSTAT/
TRANSMISSION. AT 140000 MILES, NISSAN STATES NO LONGER UNDER POWERTRAIN 
WARRANTY. DECLINED SERVICE.''
    While meeting with the owner, he told us that about a week after 
filing his VOQ, he drove the Pathfinder, with his family, to a birthday 
party about 20 miles away. He noted that the vehicle seemed to shudder 
when shifting and that engaging ``Drive'' occurred sluggishly when 
shifting out of ``Park''. While driving home from the party, it 
suddenly became difficult to keep up with traffic on the Baltimore 
beltway. Soon he was driving in the far right lane with his flashers 
on. They finally made it home but the vehicle was unable to negotiate 
the ramp onto his driveway so he just parked it on the ramp. The 
following day he was able to move the vehicle in reverse and he parked 
it, on the street in front of his house, where it remained until our 
visit.
[GRAPHIC] [TIFF OMITTED] TN01NO16.133

    The owner advised he had made no attempt to have the vehicle 
repaired due to the estimated $6,000.00 repair cost. He was aware of 
both Nissan's extended warranty and the class action settlement but 
neither would cover his repair due to both age (now 11 years) and 
mileage (greater than 100,000).
    During our visit, we removed the radiator cap and found co-mingled 
ATF/coolant.

[[Page 75915]]

[GRAPHIC] [TIFF OMITTED] TN01NO16.134

    We then drove the vehicle, accompanied by the owner, around his 
neighborhood. The engine started easily as the owner had charged the 
battery in anticipation of our meeting. Initially, no transmission 
shift anomalies were noted but the check engine light was illuminated 
as described over a year earlier in the subject VOQ. However, as the 
engine warmed up, we began to notice sluggish engagement whenever the 
transmission would up-, and down-, shift. After about 10 minutes, we 
parked in front of his house. No other transmission anomalies were 
noted.
    When asked why, after being told by the dealer that he needed a new 
transmission, he elected to drive to the birthday party in the 
Pathfinder with his wife and three children, he told us he did not 
realize that the transmission might fail in a way that would make it 
impossible to maintain highway speed. He further advised that he did 
not want to spend $6,000.00 to repair the vehicle and was awaiting the 
outcome of this investigation before deciding whether to sell the 
vehicle or have it repaired.

9.2 VOQ 10721809

    On May 27, 2015 we received a VOQ from the owner of a MY2006 Nissan 
Pathfinder located in the northern Baltimore suburbs. She is the 
vehicle's second owner, having purchased it on October 8, 2011. Vehicle 
mileage was 53,887 at that time. The VOQ summary reads:
    ``TRANSMISSION IS SHAKY AND JERKS WHEN SHIFTING, APPARENTLY NISSAN 
KNEW ABOUT RADIATOR COOLANT LEAKING INTO THE TRANSMISSION LINE!!!''
    We decided to meet with this owner because the dealer installed an 
aftermarket ATF cooler in addition to replacing the radiator and 
transmission. On June 30, 2016 we met at her work and inspected her 
vehicle.

[[Page 75916]]

[GRAPHIC] [TIFF OMITTED] TN01NO16.135

    She advised that the radiator and transmission were replaced by her 
local Nissan dealer on December 15, 2015 and provided a copy of the 
repair order. At the time her vehicle was less than 10 years old and 
had fewer than 90,000 miles (87,110), thus she was eligible for the 
$3,000.00 deductible extended warranty coverage. We confirmed that an 
external ATF cooler had been installed. After discussing the repair, we 
removed the radiator cap and found apparent co-mingled fluid:
[GRAPHIC] [TIFF OMITTED] TN01NO16.136

    Further inspection found that the aftermarket cooler had been 
installed ``in series'' so that ATF still flowed through the OE ATF 
cooler. Thus, a failure of the OE cooler could still result in co-
mingled ATF and engine coolant.

[[Page 75917]]

We were to confirm that the source of the co-mingled fluid resulted 
from an OE cooler failure, however.

9.2.3 No VOQ

    Following our visit with owner two (VOQ 10721809), we cold-called a 
local Nissan dealer service department to learn about its perspective 
concerning subject transmission failures due to ATF/engine coolant co-
mingling.
    The service manager advised that his department had replaced 
``about 30'' subject transmissions due to ATF cooler failures. ``In 
fact, he said, we have one in right now.'' He then led us out to the 
lot where we found this 2005 Xterra:
[GRAPHIC] [TIFF OMITTED] TN01NO16.137

    Upon removing the radiator cap, we found evidence of fluid co-
mingling:
[GRAPHIC] [TIFF OMITTED] TN01NO16.138


[[Page 75918]]


    When asked for this vehicle owner's contact information, the 
service manager was reluctant to provide it without first contacting 
the customer. He said would have them call us. As of September 21, 2016 
we have not heard from the customer.
    According to a Carfax report, run on September 21, 2016, this 
vehicle has had three owners. The first sold the vehicle on December 
18, 2010 with 38, 353 miles. The second owner traded in the vehicle on 
July 15, 2016 (16 days after we inspected it) with 102, 816 miles. On 
September 5, 2016 the vehicle was sold at auction to an unidentified 
buyer as a ``dealer vehicle.'' The last service noted occurred on June 
27, 2016 as ``recommended maintenance performed/Oil and filter 
changed.'' No transmission or radiator-related work is identified.

10.0 COST OF REPAIR

    The single most commonly reported concern, expressed by 1,288 of 
the 2,505 owners filing related VOQs with us, is repair cost. Once an 
automatic transmission has been exposed to engine coolant due to a 
radiator failure, vehicle owners are faced with an expensive repair. 
With subject vehicles, a radiator replacement and fluid flush costs 
between $500.00 and $1,000.00. However, fluid flushes do nothing to 
reverse damage done to transmission clutch material. Thus, replacing a 
subject transmission (to effectively repair the vehicle) will cost an 
additional $3,200.00 to $6,500.00 for a total repair cost (radiator and 
transmission replacement) of $4,200.00-$7,500.00. Since these failures 
occur on some vehicles greater than ten years old, such an expense may 
be more than 50% of vehicle re-sale value. Finally, despite two 
warranty extensions by Nissan and a class action settlement, owners are 
still faced with a steep repair bill to correct a manufacturing issue.

10.1. Nissan's first extended warranty

    In October, 2010, Nissan extended its warranty coverage of subject 
radiators to 8 years/80,000 miles from the original 3 years/36,000 
miles. Nissan claims it did this to ``demonstrate our commitment to 
stand behind our products and our customers, by addressing an issue 
that had been identified with a limited number of vehicles. 
Specifically, in a small number of vehicles equipped with automatic 
transmissions, a crack in the radiator assembly might occur at higher 
mileages leading to internal leakage of engine coolant.'' No direct 
notice of this warranty extension was sent to the affected customers. 
Nissan later claimed such coverage extended to ``other affected 
components'' (such as the transmission). However, affected Nissan 
customers report that the company would refuse to cover replacement of 
automatic transmissions damaged by such ``internal leakage of engine 
coolant'' resulting from a ``crack in the radiator assembly.'' Here is 
one such report:
    VOQ 10310194--``I OWN A 2005 NISSAN PATHFINDER AND I HAVE BEEN 
HAVING PROBLEMS WITH THE HEAT STAYING CONSISTENT (DOES NOT BLOW HOT AIR 
WHEN IDLE) AS WELL A VIBRATION WHEN DRIVING AT CERTAIN SPEEDS. I ALSO 
BEGIN TO NOTICE THAT TRANSMISSION BEGAN TO SLIP. I WOULD STOP AT A RED 
LIGHT AND GO TO TAKE OFF AND WOULD NOT BE ABLE TO PICK UP SPEED WHICH 
CAN BE DANGEROUS WHEN ENTERING THE HIGHWAY. I RESEARCHED THIS ONLINE 
AND FOUND MANY OTHERS HAVING THE SAME PROBLEMS. I TOOK THE TRUCK TO A 
NISSAN DEALERSHIP AND THEY TOLD ME EXACTLY WHAT I ALREADY KNEW, THE 
RADIATOR WAS NOW NO GOOD AND LEAKING ANTIFREEZE INTO THE TRANSMISSION 
WHICH HAS CAUSED BOTH OF THEM TO BE RUINED AND THEY WANT TO CHARGE ME 
5K TO REPLACE. I ASKED IF THE DEALERSHIP HAS SEEN THIS BEFORE AND IT 
WAS CONFIRMED THAT SEVERAL OF THE SAME VEHICLES HAVE BEEN IN FOR THIS 
VERY REASON. HE ADVISED THAT NISSAN HAS NOT PAID FOR THESE SERVICES AS 
THE VEHICLES ARE ALWAYS OUT OF WARRANTY ON THE RADIATOR. I STILL HAVE 
2000 MILES LEFT ON MY POWERTRAIN AND ADVISED THAT I WOULD BE CONTACTING 
NISSAN FOR ``GOODWILL'' ASSISTANCE. NISSAN FINALLY CONTACTED ME AND 
ADVISED THAT SINCE THE PROBLEM WAS INITIALLY CAUSED BY THE RADIATOR, 
THEY WOULD NOT HONOR THE POWERTRAIN WARRANTY...''

10.2 Class Action Lawsuit

    On September 30, 2010, shortly before Nissan's first extension of 
subject radiator warranty terms, a class action lawsuit was filed 
against the company alleging cross-contamination (co-mingling) of 
coolant and transmission fluid in MY 2005 Nissan Pathfinders. Nissan 
asserts it was already in the process of extending the warranty before 
the lawsuit was filed.\4\ Later, the lawsuit complaint was amended to 
include all vehicles covered by Nissan's first warranty extension 
(which are also the ``subject vehicles'' in this petition analysis).
---------------------------------------------------------------------------

    \4\ DECISION MEMORANDUM, United States District Court, S.D. New 
York; in re NISSAN RADIATOR/TRANSMISSION COOLER LITIGATION; No. 10 
DV 7493(VB); May 30, 2013, page 1.
---------------------------------------------------------------------------

    On July 23, 2012, Nissan and the plaintiffs agreed to settlement 
terms and formal settlement papers were executed in August, 2012. On 
October 9, 2012 the court preliminarily approved the following 
settlement and granted the plaintiff attorneys application for an award 
of attorneys' fees in the amount of $1,620,000.00.
    ``Nissan agrees to make repairs through authorized [Nis-san] 
Dealers, if and as needed, on the radiator assembly and other damaged 
components (including the trans-mission) in Class Vehicles owned or 
leased by Settlement Class Members because of cross-contamination of 
engine coolant and transmission fluid (and inclusive of towing costs, 
if any) as a result of a defect in the radiator up to a maximum of 10 
years or 100,000 miles, which-ever is less, subject to the following 
customer co-pay:
    (a) All repairs on vehicles that exceed eight years or 80,000 
miles, whichever is less, but fewer than nine years or 90,000 miles, 
whichever is less, are subject to a customer co-pay in the amount of 
$2500 which is the responsibility of the Settlement Class Member.
    (b) All repairs on vehicles that exceed nine years or 90,000 miles, 
whichever is less, but fewer than 10 years or 100,000 miles, whichever 
is less, are subject to a customer co-pay in the amount of $3000 which 
is the responsibility of the Settlement Class Member.
    Nissan also agreed to reimburse Class Members who have paid for 
repairs to their radiators and other damaged components (including the 
transmission) because of cross-contamination of engine coolant and 
transmission fluid as a result of a defect in the radiator between 8 
years/80,000 miles, whichever occurs first, and 10 years/100,000 miles, 
whichever occurs first, subject to the mileage-related co-payments 
described above. Reimbursement is inclusive of towing costs, if any, 
incurred as a result of this problem.''
    On January 7, 2013, settlement notices were sent to the subject 
vehicle owners.

10.3 Nissan's second extended warranty

    On October 12, 2012, three days after the court approved the class 
action lawsuit settlement, Nissan released the

[[Page 75919]]

following bulletin notifying its dealers that it was further extending 
warranty coverage of subject radiators.
[GRAPHIC] [TIFF OMITTED] TN01NO16.139

    The terms described in this bulletin are identical to those found 
in the lawsuit settlement, including the specific reference to coverage 
of transmissions damaged as a result of radiator failure and the 
reimbursement provision. And, as in the class settlement, there would 
be no assistance for owners of subject vehicles older than 10 years or 
with more than 100,000 miles.

11.0 NHTSA ANALYSIS

    Automatic transmission failures as a result of clutch degradation 
(which, in this case occurs due to contamination by engine coolant) are 
progressive. Prior to a complete breakdown, vehicle performance will 
exhibit hesitation when shifting from Park to D/R, harsh shifting, 
intermittent slippage and/or vehicle shudder before a loss of motive 
force occurs. In many instances drivers report they had no idea that 
vehicle shift shudder would ultimately result in a loss of motive power 
and leave them stranded if they ignored an apparent problem with their 
vehicle's transmission. Those that do have the vehicle inspected for 
``shift shudder,'' for example, many times refuse the service due to 
cost and continue driving it instead. Others, faced with the expense of 
replacing the transmission and radiator (frequently without the benefit 
of the extended warranty or class action settlement since their vehicle 
is either too old or has too many miles), simply sell it to an 
unsuspecting buyer. Indeed, the four crashes alleged to have occurred 
due to the subject issue involved vehicles that had been purchased, 
used, less than two months earlier at an average of 109,000 miles. The 
petitioner (NCCC) recognized this latter scenario in a May 18, 2016 
consumer advisory against purchasing a subject vehicle.\5\
---------------------------------------------------------------------------

    \5\ North Carolina Consumer Council at www.ncconsumer.org/news-articles/nccc-advises-against-the-purchase-of-nissan-pathfinder-frontier-and-xterra-vehicles.

---------------------------------------------------------------------------

[[Page 75920]]

    The United States Code for Motor Vehicle Safety (Title 49, 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.''
    The Office of Defects Investigations (ODI) has opened many defect 
investigations into engine stalling and/or loss of motive power. The 
majority of investigations resulting in safety recalls involved a 
complete loss of motive power, frequently accompanied by loss of power-
assist to steering and brake systems (the latter conditions not present 
here). Factors that support recalls to remedy these conditions include 
a lack of warning or precursor symptoms to the driver; stalling during 
power-demand situations such as accelerating or to maintain highway 
speeds/uphill grades; and an inability to immediately ``restart'' or 
restore mobility to a stranded vehicle. Absent very high failure rates 
in new vehicles, NHTSA has not successfully pursued hesitation, reduced 
engine power modes, or stalling outside the conditions listed above, 
primarily because these conditions have not been found to demonstrate 
an unreasonable risk to motor vehicle safety. Experience of harsh 
shifting and transmission degradation over time would typically fall 
into this category, even if it leads to an eventual loss of motive 
power condition.

12.0 FINDINGS

1. Of the 2,505 complaints received through September 13, 2016, 1,288 
(51%) mention repair cost . . . the single most cited issue
2. The high repair cost motivates many owners to delay repair if one is 
done at all. The extended warranty/CA settlement terms contribute to 
this.
3. Cost of repair motivates some owners to sell un-repaired vehicles w/
o disclosing co-mingling problem
4. Transmission failures resulting in LOMP, due to co-mingled fluid, 
are slowly progressive . . . vibration, shift degradation, slipping, 
then loss of motive power.
5. While many owners acknowledge noticing shift quality degradation, 
they did not understand that, if left untended, it could result in loss 
of motive force.
6. Three of the four alleged crashes involve pre-event warning symptoms 
which were ignored and all involved used vehicles that had recently 
been purchased presumably with a pre-existing fluid co-mingling 
condition.

13.0 CONCLUSION

    Based on the foregoing analysis, there is no reasonable possibility 
that an order concerning the notification and remedy of a safety-
related defect would be issued as a result of granting Mr. Oliver's 
petition. 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.
[FR Doc. 2016-26289 Filed 10-31-16; 8:45 am]
 BILLING CODE 4910-59-P