[Federal Register Volume 81, Number 228 (Monday, November 28, 2016)]
[Notices]
[Pages 85681-85684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28476]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0124; Notice 1]


General Motors LLC, Receipt of Petition for Inconsequentiality 
and Decision Granting Request To File Out of Time and Request for 
Deferral of Determination

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

ACTION: Notice of receipt of petition and decision granting partial 
relief.

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SUMMARY: On May 16, 2016, TK Holdings Inc. (Takata) filed a defect 
information report (DIR), in which it determined that a defect existed 
in certain passenger-side air bag inflators that it manufactured, 
including passenger inflators that it supplied to General Motors, LLC 
(GM) for use in certain GMT900 vehicles. GM has petitioned the Agency 
for a decision that, because of differences in inflator design and 
vehicle integration, the equipment defect determined to exist by Takata 
is inconsequential as it relates to motor vehicle safety in the GMT900 
vehicles, and that GM should therefore be relieved of its notification 
and remedy obligations.

DATES: The closing date for comments is September 14, 2017.

ADDRESSES: Interested persons are invited to submit written data, 
views, and arguments regarding this petition for inconsequentiality. 
Comments must refer to the docket and notice number cited in the title 
of this notice and be submitted by one of the following methods:
     Internet: Go to http://www.regulations.gov and follow the 
online instructions for submitting comments.
     Mail: Docket Management Facility, M-30, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Room W12-
140, Washington, DC 20590.
     Hand Delivery or Courier: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building, Room W12-
140, Washington, DC 20590 between 9 a.m. and 5 p.m. Eastern Time, 
Monday through Friday, except Federal holidays.
     Facsimile: (202) 493-2251.
    You may call the Docket at (202) 366-9324.
    Note that all comments received will be posted without change to 
http://www.regulations.gov, including any personal information 
provided. Thus, submitting such information makes it public. You may 
wish to read the Privacy Act notice, which can be viewed by clicking on 
the ``Privacy and Security Notice'' link in the footer of http://www.regulations.gov. DOT's complete Privacy Act Statement is available 
for review in the Federal Register published on April 11, 2000 (65 FR 
19477-78).
    The petition, supporting materials, and all comments received 
before the close of business on the closing date indicated above will 
be filed in the docket and will be considered. Comments and supporting 
materials received after the closing date will also be filed and will 
be considered to the extent possible. When the petition is granted or 
denied, notice of the decision will also be published in the Federal 
Register pursuant to the authority indicated at the end of this notice.

[[Page 85682]]


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:

I. Background

    On May 4, 2016, NHTSA issued, and Takata agreed to, an Amendment to 
the November 3, 2015 Consent Order (the ``Amendment''), under which 
Takata is bound to declare a defect in all frontal driver and passenger 
air bag inflators that contain a phase-stabilized ammonium nitrate 
(PSAN)-based propellant and do not contain a moisture-absorbing 
desiccant. Such defect declarations will be made on a rolling basis. 
See Amendment at ] 14. Takata timely submitted the first scheduled 
equipment DIRs on May 16, 2016. See Recall Nos. 16E-042, 16E-043, and 
16E-044. Those DIRs included non-desiccated passenger inflators, 
designated as types SPI YP and PSPI-L YD, that were installed as 
original equipment on certain motor vehicles manufactured by GM (the 
``covered passenger inflators''), as well as other non-desiccated 
passenger inflators installed as original equipment on motor vehicles 
manufactured by a number of other automakers, which are not at issue 
here.
    The Takata filing triggered GM's obligation to file a DIR for the 
affected GM vehicles. See 49 CFR part 573; Amendment at ] 16; November 
3, 2015 Coordinated Remedy Order at ] 46.\1\ GM ultimately submitted 
two DIRs on May 27, 2016. See Recall Nos. 16V-381 (for vehicles in Zone 
A) and 16V-383 (for vehicles in Zone B). In an attachment to the DIRs, 
GM stated that it had not determined the existence of a safety defect, 
and it referred to the recalls as ``preliminary.'' \2\ The attachment 
further indicated that, even though GM had not made an independent 
defect determination, the company was nonetheless filing a DIR in 
response to Takata's defect determination. See Recall Nos. 16V-381 and 
16V-383. GM stated that it ``expect[s] to provide NHTSA with additional 
test data, analysis or other relevant and appropriate evidence in 
support of our belief that our vehicles do not pose an unreasonable 
risk to safety.'' See id. GM also stated that it ``will conduct a 
recall of its airbag inflators covered by the May 2016 Takata DIRs, 
unless GM is able to prove to NHTSA's satisfaction that the inflators 
in its vehicles do not pose an unreasonable risk to safety.'' Id.
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    \1\ Under 49 CFR 573.5(a), a vehicle manufacturer is responsible 
for any safety-related defect determined to exist in any item of 
original equipment. See also 49 U.S.C. 30102(b)(1)(C).
    \2\ Neither the Safety Act nor NHTSA regulations define or use 
the term ``preliminary recall.''
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    On November 15, 2016, GM petitioned the Agency, under 49 U.S.C. 
30118(d), 30120(h) and 49 CFR part 556, for a decision that, because of 
differences in inflator design and vehicle integration, the equipment 
defect determined to exist by Takata is inconsequential as it relates 
to motor vehicle safety in the GMT900 vehicles. See GM's Petition for 
Inconsequentiality and Request for Deferral of Determination Regarding 
Certain GMT900 Vehicles Equipped with Takata ``SPI YP'' and ``PSPI-L 
YD'' Passenger Inflators (the ``Petition''). GM's Petition concluded 
that because the putative defect is inconsequential in the GMT900 
vehicles, the company should be relieved of notification and remedy 
obligations for Takata inflators in those GM vehicles. See Petition at 
p. 18. GM further requested that NHTSA defer its decision on the 
petition until GM is able to complete its testing and engineering 
analysis in August 2017. See id.

II. Request To Accept Late Filing

    As an initial matter, GM requests that NHTSA, in its enforcement 
discretion, accept and consider the Petition even though it was filed 
outside the regulatory filing deadline. See Petition at p. 5 n.5. GM's 
Petition was filed with the Agency on November 15, 2016. Under 49 CFR 
556.4(c), inconsequentiality petitions usually must be filed within 30 
days of the relevant defect determination. Because Takata made a defect 
determination concerning the covered passenger inflators on May 16, 
2016, GM's Petition should have been filed by June 15, 2016.
    GM has requested that NHTSA waive the 30-day filing requirement in 
light of GM's transparency with the Agency, including communications 
occurring before and contemporaneous with the May 2016 DIR filings. See 
Petition at p. 5 n.5. While such transparency alone would not support a 
waiver of the filing deadline, the Agency has considered the totality 
of the facts and circumstances presented here in deciding to grant the 
waiver.
    First, allowing GM's Petition to be filed outside the regulatory 
deadline is not inconsistent with the purpose of such deadline, which 
is to prevent a manufacturer from unduly delaying the remedy of 
defects. See 42 FR 7146. Here, GM's delay in filing the Petition will 
not have any impact on the availability of a remedy. GM has indicated 
that it has been working diligently on a potential remedy and has 
stated it intends to have a validated, alternative remedy available by 
June 30, 2017, should it become necessary. See Petition at p. 17. This 
length of time between DIR submission and remedy is not unusual in the 
context of the Takata recalls, and it is consistent with the lower 
relative rupture risk of the covered passenger inflators and the time 
needed to develop, validate, and ensure the safety of an alternative 
remedy part. Therefore, some elapsed time between the DIR and the 
availability of the remedy is inevitable, regardless of the timing of 
GM's Petition. NHTSA has determined that the availability of the remedy 
for GM's May 2016 DIRs would be essentially the same whether this 
Petition was filed in June or November.
    Second, GM has been proactively investigating Takata inflators in 
GMT900 vehicles since November 2014. See Petition at pp. 4-5. GM 
believes that it has now obtained data through its investigation that 
supports an inconsequentiality finding, and that it will be able to 
prove that the covered passenger inflators do not present an 
unreasonable risk to safety once that investigation concludes in August 
2017. See Petition at p. 18. Given that GM's ongoing investigation pre-
dates the May 2016 DIR filings, the Agency concludes that the company 
is acting in good faith in filing this Petition, even though it filed 
the Petition beyond the deadline.\3\
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    \3\ If it appeared that a manufacturer had filed such a petition 
in an attempt to toll its notification and remedy obligations while 
it began a new investigation, the Agency would not waive the 30-day 
deadline.
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    Finally, GM communicated its intent to file such a petition in the 
attachment to its May 2016 DIRs when it stated, ``GM will conduct a 
recall of its airbag inflators covered by the May 2016 Takata DIRs, 
unless GM is able to prove to NHTSA's satisfaction that the inflators 
in its vehicles do not pose an unreasonable risk to safety.'' See 
Recall Nos. 16V-381 and 16V-383. This statement is consistent with the 
purpose of 49 U.S.C. 30118(d) and 49 CFR part 556, which is to enable 
vehicle manufacturers to petition NHTSA for an exemption from the 
Safety Act's notice and remedy requirements when a defect is determined 
to be inconsequential to motor vehicle safety. Because NHTSA, the 
public, and other stakeholders were on notice (since at least May 2016) 
of GM's intention to attempt to prove the safety of the covered 
passenger inflators,

[[Page 85683]]

thereby avoiding any notice and remedy obligation, there is no 
prejudice to the public caused by GM filing the Petition after the 
standard deadline.
    For the foregoing reasons, NHTSA will grant GM's request and accept 
the filing of its Petition outside of the 30-day deadline. NHTSA is 
granting this extraordinary relief because of the unique circumstances 
surrounding the Takata recall and the particular facts and 
circumstances of this case. This decision should not be considered 
precedent in any other case. The Agency will continue to enforce the 
30-day filing deadline for inconsequentiality petitions, including any 
others that may be filed by GM in connection with future Takata 
recalls.

III. Class of Motor Vehicles Involved

    GM's Petition involves certain ``GMT900'' vehicles that contain the 
covered passenger inflators (designated as inflator types ``SPI YP'' 
and ``PSPI-L YD'').\4\ GMT900 is a GM-specific vehicle platform that 
forms the structural foundation for a variety of GM trucks and sport 
utility vehicles, including: Chevrolet Silverado 1500, GMC Sierra 1500, 
Chevrolet Silverado 2500/3500, GMC Sierra 2500/3500, Chevrolet Tahoe, 
Chevrolet Suburban, Chevrolet Avalanche, GMC Yukon, GMC Yukon XL, 
Cadillac Escalade, Cadillac Escalade ESV, and Cadillac Escalade EXT. 
The GM DIRs included the following GMT900 vehicles:
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    \4\ GM previously filed, and ultimately withdrew, a petition to 
defer the recall of certain newer GMT900 vehicles that will be 
included in Takata's next set of DIRs, scheduled to be submitted on 
December 31, 2016. See 81 FR 64575. This Petition does not include 
or address that population of vehicles. See Petition at pp. 8-9.
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     In Zone A, model year 2007-2011 GMT900 vehicles. Zone A 
comprises 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. See Amendment at 
] 7.a.
     In Zone B, certain model year 2007-2008 GMT900 vehicles. 
Zone B comprises 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.\5\
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    \5\ Takata also filed an equipment DIR covering non-desiccated 
passenger inflators in Zone C that were manufactured between January 
1, 2003 and December 31, 2004. See Recall No. 16E-044. Because GM 
did not use the covered passenger inflators in its GMT900 vehicles 
prior to model year 2007, there were no GMT900 vehicles in Zone C 
affected by Takata's DIR. Zone C comprises 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.
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IV. Summary of GM's Petition

    According to the Petition, GM's engineering analysis supports the 
conclusion that the covered passenger inflators in the subject GMT900 
vehicles are currently performing as designed, and will likely continue 
to perform as designed for a number of years--i.e., that the covered 
passenger inflators, as integrated into the GMT900 vehicles, do not 
present an unreasonable risk to safety. See Petition at p. 3
    As an initial matter, GM notes in its Petition that Takata 
submitted the May 16, 2016 equipment DIRs without evidence of any 
incidents of inflator rupture in the SPI YP or PSPI-L YD variants that 
are used only in GMT900 vehicles. Petition at p. 2. GM has been 
studying the long-term performance of the covered passenger inflators 
and has conducted an analysis of the ballistic performance of the 
covered passenger inflators. See Petition at pp. 11-12. Based upon this 
analysis, GM asserts that the covered passenger inflators are not 
currently at risk of rupture. According to the Petition, GM's position 
is based upon the following: an estimated 52,000 Takata passenger 
inflator deployments in GMT900 vehicles without a rupture; ballistic 
tests of 1,418 covered passenger inflators without a rupture or sign of 
abnormal deployment; test deployment of 12 inflators artificially 
exposed to additional humidity and temperature cycling without a 
rupture or sign of abnormal deployment; and analysis, through stress-
strength interference, indicating that the propellant in older covered 
passenger inflators has not degraded to a sufficient extent to create 
rupture risk. See Petition at p. 4.
    GM further states that the covered passenger inflators are not used 
by any other original equipment manufacturer and that those inflators 
have a number of unique design features that influence burn rates and 
internal ballistic dynamics, including greater vent-area-to-propellant-
mass ratios, steel end caps, and thinner propellant wafers. See 
Petition at p. 12. In addition, GM states that the physical environment 
of the GMT900 vehicles better protects the covered passenger inflators 
from temperature cycling that can cause rupture. Id. More specifically, 
GM notes that the GMT900 vehicles have larger interior volumes than 
smaller passenger cars, and are equipped with solar-absorbing 
windshields and side glass. Id. To support the effect such differences 
may have on the safety of the covered passenger inflators, GM cites 
NHTSA's expert Dr. Harold R. Blomquist, who stated in his expert report 
that vehicle platform differences may play a role in the relative risk 
of rupture. See Petition at p. 11 (citing Amendment, Exhibit A at ]] 
30-31).
    Finally, GM states its belief that the covered passenger inflators 
will not present a risk of rupture in the longer term. To supplement 
its internal analysis, GM has retained a third-party expert, Orbital 
ATK, to conduct a long-term aging study that will estimate the service 
life expectancy of the covered passenger inflators in the GMT900 
vehicles. See Petition at p. 12. GM has asked Orbital ATK to test the 
effect of different inflator design variables--i.e., wafer thickness, 
vent area, moisture dynamics, and others--in the GMT900 platform's 
unique thermal environment. See Petition at pp. 17-18. GM anticipates 
that this study will be complete in August 2017. Id.

V. Request To Defer Decision on Petition

    GM implicitly acknowledges that its data, information, and views 
are not yet sufficient for the Agency to grant its inconsequentiality 
petition. Given the status of GM's engineering analysis and the results 
of testing conducted to date, and in order to fully-analyze the 
performance of these inflators over the long-term, the company has 
requested that NHTSA allow GM until August 31, 2017 to complete its 
engineering analysis and inflator aging studies. See Petition at pp. 
17-18. Ordinarily, under 49 CFR 556.4(b)(5), an inconsequentiality 
petition must set forth all data, views, and arguments supporting that 
petition. In this case, GM states that further probative data (e.g., 
further aging testing and analysis) is forthcoming, but necessarily 
will take more time to develop. Therefore, some of the evidence GM 
intends to present cannot yet be set forth in the Petition. 
Accordingly, GM requests that the Agency defer its decision on the 
Petition until such data can be developed.
    GM asserts that it has made a threshold showing that its inflators 
are safe in the short term or, at a minimum, will not present an 
unreasonable risk to safety during the period that the Petition is 
pending. See Petition at p. 3. GM further asserts that because its 
engineers and suppliers have been working on re-designed replacement 
inflators to be ready in the event that the inflators in

[[Page 85684]]

these vehicles must be replaced, providing GM the additional time it 
requests will not delay GM's efforts to develop and validate 
replacement inflators as an available remedy for the Subject GMT900 
Vehicles, should that remedy ultimately be required. Id.
    The Agency acknowledges that GM has produced probative evidence to 
support its inconsequentiality claim. The testing and data collected by 
GM to date--while not yet sufficient--tends to support GM's Petition, 
at least with respect to the short-term safety of the covered passenger 
inflators. Based upon the data GM has developed and presented to date, 
NHTSA believes that in the coming months this evidence could ultimately 
grow and develop to support GM's position with respect to the long-term 
safety of the covered passenger inflators. Presently, however, the 
evidence GM has presented is not yet sufficient to prove (by a 
preponderance of the evidence) their long-term safety. Based upon the 
evidence and analysis GM has presented to date, and its plan to develop 
and analyze additional data, NHTSA agrees that GM's request for 
additional time is reasonable and supported by the testing and data 
collected to date.
    Moreover, although a pending inconsequentiality petition tolls GM's 
obligation to provide a remedy, NHTSA does not believe consumers will 
be significantly impacted by the requested deferral. As explained 
above, GM has been working toward an alternative remedy in the event it 
should become necessary, and expects that remedy to be available in 
June 2017. The length of the requested deferral is through August 2017. 
Therefore, if NHTSA ultimately were to deny this Petition at the 
conclusion of GM's engineering analysis, no significant delay in the 
availability of remedy parts would result.
    For these reasons, NHTSA will grant the requested relief, and allow 
GM an opportunity to provide more evidence and a fuller record upon 
which the Agency can make its determination. Subject to the conditions 
that follow, GM shall have until August 31, 2017 to present all data, 
views, and arguments supporting this Petition, including additional 
analysis and testing results, through a supplement or amendment, which 
shall be published in the docket. GM shall be required to provide NHTSA 
with monthly updates on GM's engineering analysis, Orbital ATK's study, 
and any other data, analysis, or test results GM develops in its effort 
to support its inconsequentiality claim. In addition, GM shall provide 
the Agency with a non-confidential summary of each update that will be 
made available through the public docket. During this time, any 
interested person may also submit written data, views, and arguments 
regarding this Petition. Following the conclusion of the requested 
deferral--i.e., August 31, 2017, NHTSA will make a decision whether to 
grant or deny the Petition after considering all available information.
    NHTSA reserves the right to deny this Petition at any time prior to 
August 31, 2017, in the event necessary to mitigate an unreasonable 
risk to safety within the meaning of the Safety Act, based upon, inter 
alia, future field ruptures, ballistic testing failures that are not 
related to artificial aging tests, or other relevant facts or 
circumstances.
    Accordingly, NHTSA hereby gives notice of its receipt of GM's 
Petition for Inconsequentiality and Request for Deferral of 
Determination Regarding Certain GMT900 Vehicles Equipped with Takata 
``SPI YP'' and ``PSPI-L YD'' Passenger Inflators. And it is hereby 
ORDERED that:
    1. GM's request to file an inconsequentiality petition for DIRs 
16V-381 and 16V-383 beyond the 30-day deadline is GRANTED;
    2. The period for public comment on GM's Petition shall run from 
the publication of this decision through September 14, 2017;
    3. GM's request for a deferral of the Agency's decision so that it 
may have additional time to present evidence and analysis in support of 
this Petition is GRANTED, and GM's time for the development and 
presentation of further evidence, data, and information is extended to 
August 31, 2017;
    4. GM shall provide NHTSA with monthly updates on its engineering 
analysis, Orbital ATK's study, and any other data, analysis, or test 
results the company develops in its effort to support this Petition, 
and GM shall provide the Agency with a non-confidential summary of each 
update that will be added to the public docket; and
    5. NHTSA retains the right to rule on the Petition at any time 
before August 31, 2017 (i.e., to either deny or grant the Petition) 
should additional evidence, facts, or circumstances--in NHTSA's sole 
judgment and discretion--warrant such a decision.

    Authority:  49 U.S.C. 30101, et seq., 30118, 30120(h), 30162, 
30166(b)(1), 30166(g)(1); delegation of authority at 49 CFR 1.95(a); 
49 CFR parts 556, 573, 577.

Paul A. Hemmersbaugh,
Chief Counsel.
[FR Doc. 2016-28476 Filed 11-25-16; 8:45 am]
 BILLING CODE 4910-59-P