General Motors LLC, Receipt of Petition for Inconsequentiality and Decision Granting Request To File Out of Time and Request for Deferral of Determination |
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Topics: General Motors, Takata
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Paul A. Hemmersbaugh
National Highway Traffic Safety Administration
28 November 2016
[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]
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