Ford Motor Company; Denial of Petition for Inconsequentiality |
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Topics: Takata, Ford Motor Company
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Jeffrey Mark Giuseppe
National Highway Traffic Safety Administration
25 January 2021
[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Notices]
[Pages 6951-6963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01540]
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DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
[Docket No. NHTSA-2017-0093]
Ford Motor Company; Denial of Petition for Inconsequentiality
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Denial of petition.
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SUMMARY: On July 10, 2017, Takata Corporation (``Takata'') filed a
defect information report (``DIR'') in which it determined that a
safety-related defect
[[Page 6952]]
exists in phase-stabilized ammonium nitrate (``PSAN'') driver-side air
bag inflators that it manufactured with a calcium sulfate desiccant and
supplied to Ford Motor Company (``Ford''), Mazda North American
Operations (``Mazda''), and Nissan North America Inc. (``Nissan'') for
use in certain vehicles. Ford petitioned the Agency for a decision that
the equipment defect determined to exist by Takata is inconsequential
as it relates to motor vehicle safety in the Ford vehicles affected by
Takata's DIR, and that Ford should therefore be relieved of its
notification and remedy obligations under the National Traffic and
Motor Vehicle Safety Act of 1966 and its applicable regulations. After
reviewing the petition, NHTSA has concluded that Ford has not met its
burden of establishing that the defect is inconsequential to motor
vehicle safety, and denies the petition.
ADDRESSES: For further information about this decision, contact Stephen
Hench, Office of Chief Counsel, National Highway Traffic Safety
Administration, 1200 New Jersey Avenue SE, W41-229, Washington, DC
20590, (Tel. 202.366.2262).
For general information about NHTSA's investigation into Takata air
bag inflator ruptures and the related recalls, visit https://www.nhtsa.gov/takata.
SUPPLEMENTARY INFORMATION:
I. Background
The Takata air bag inflator recalls (``Takata recalls'') are the
largest and most complex vehicle recalls in U.S. history. These recalls
currently involve 19 vehicle manufacturers and approximately 67 million
Takata air bag inflators in tens of millions of vehicles in the United
States alone. The recalls are due to a design defect, whereby the
propellant used in Takata's air bag inflators degrades after long-term
exposure to high humidity and temperature cycling. During air bag
deployment, this propellant degradation can cause the inflator to over-
pressurize, causing sharp metal fragments (like shrapnel) to penetrate
the air bag and enter the vehicle compartment. To date, these rupturing
Takata inflators have resulted in the deaths of 18 people across the
United States \1\ and over 400 alleged injuries, including lacerations
and other serious consequences to occupants' face, neck, and chest
areas.
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\1\ Globally, including the United States, the deaths of at
least 30 people are attributable to these rupturing Takata
inflators.
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In May 2015, NHTSA issued, and Takata agreed to, a Consent
Order,\2\ and Takata filed four defect information reports (``DIRs'')
\3\ for inflators installed in vehicles manufactured by twelve \4\
vehicle manufacturers. Recognizing that these unprecedented recalls
would involve many challenges for vehicle manufacturers and consumers,
NHTSA began an administrative proceeding in June 2015 providing public
notice and seeking comment (Docket Number NHTSA-2015-0055). This effort
culminated in NHTSA's establishment of a Coordinated Remedy Program
(``Coordinated Remedy'') in November 2015.\5\ The Coordinated Remedy
prioritizes and phases the various Takata recalls not only to
accelerate the repairs, but also--given the large number of affected
vehicles--to ensure that repair parts are available to fix the highest-
risk vehicles first.\6\
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\2\ The May 2015 Consent Order is available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/consent-order-takata-05182015_0.pdf.
\3\ Recall Nos. 15E-040, 15E-041, 15E-042, and 15E-043.
\4\ The twelve vehicle manufacturers affected by the May 2015
recalls were: BMW of North America, LLC; FCA US, LLC (formerly
Chrysler); Daimler Trucks North America, LLC; Daimler Vans USA, LLC;
Ford Motor Company; General Motors, LLC; American Honda Motor
Company; Mazda North American Operations; Mitsubishi Motors North
America, Inc.; Nissan North America, Inc.; Subaru of America, Inc.;
and Toyota Motor Engineering and Manufacturing.
\5\ See Notice of Coordinated Remedy Program Proceeding for the
Replacement of Certain Takata Air Bag Inflators, 80 FR 32197 (June
5, 2015).
The Coordinated Remedy Order, which established the Coordinated
Remedy, is available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/nhtsa-coordinatedremedyorder-takata.pdf. The Third
Amendment to the Coordinated Remedy Order incorporated additional
vehicle manufacturers, that were not affected by the recalls at the
time that NHTSA issued the CRO into the Coordinated Remedy, and is
available at: https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/final_public_-_third_amendment_to_the_coordinated_remedy_order_with_annex_a-corrected_12.16.16.pdf. The additional affected vehicle
manufacturers are: Ferrari North America, Inc.; Jaguar Land Rover
North America, LLC; McLaren Automotive, Ltd.; Mercedes-Benz US, LCC;
Tesla Motors, Inc.; Volkswagen Group of America, Inc.; and, per
Memorandum of Understanding dated September 16, 2016, Karma
Automotive on behalf of certain Fisker vehicles.
\6\ See Coordinated Remedy Order at 15-18, Annex A; Third
Amendment to the Coordinated Remedy Order at 14-17. These documents,
among other documents related to the Takata recalls discussed
herein, are available on NHTSA's website at http://www.nhtsa.gov/takata.
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Under the Coordinated Remedy, vehicles are prioritized for repair
parts based on various factors relevant to the safety risk--primarily
on vehicle model year (MY), as a proxy for inflator age, and geographic
region. In the early stages of the Takata inflator recalls, affected
vehicles were categorized as belonging to one of two regions: The High
Absolute Humidity (``HAH'') region (largely inclusive of Gulf Coast
states and tropical island states and territories), or the non-HAH
region (inclusive of the remaining states and the District of
Columbia). On May 4, 2016, NHTSA issued, and Takata agreed to, an
amendment to the November 3, 2015 Consent Order (``ACO''), wherein
these geographic regions were refined based on improved understanding
of the risk, and were then categorized as Zones A, B, and C. Zone A
encompasses the higher risk HAH region as well as certain other
states,\7\ Zone B includes states with more moderate climates (i.e.,
lower heat and humidity than Zone A),\8\ and Zone C includes the
cooler-temperature States largely located in the northern part of the
country.\9\
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\7\ Zone A comprises the following U.S. states and
jurisdictions: 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. Amendment to November 3, 2015 Consent Order at ]
7.a.
\8\ Zone B comprises the following U.S. states and
jurisdictions: 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. Amendment to
November 3, 2015 Consent Order at ] 7.b.
\9\ Zone C comprises the following U.S. states and
jurisdictions: 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. Amendment to November
3, 2015 Consent Order at ] 7.c.
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While the Takata recalls to date have been limited almost entirely
to Takata PSAN inflators that do not contain a desiccant (a drying
agent)--i.e., ``non-desiccated'' inflators--under a November 3, 2015
Consent Order issued by NHTSA and agreed to by Takata, Takata is
required to test its PSAN inflators that do contain a desiccant--i.e.,
``desiccated'' inflators--in cooperation with vehicle manufacturers
``to determine the service life and safety of such inflators and to
determine whether, and to what extent, these inflator types suffer from
a defect condition, regardless of whether it is the same or similar to
the conditions at issue'' in the DIRs Takata had filed for its non-
desiccated PSAN inflators.\10\
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\10\ Consent Order ] 28.
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In February 2016, NHTSA requested Ford's assistance in evaluating
Takata calcium-sulfate desiccated PSDI-5 driver-side air bag inflators,
to which Ford agreed. In June 2016, Ford and Takata began a field-
recovery program to evaluate Takata calcium-sulfate desiccated PSDI-5
driver-side air bag inflators that were original equipment in
[[Page 6953]]
MY 2007-2008 Ford Ranger vehicles in Florida, Michigan, and
Arizona.\11\ Nissan also initiated a similar field-recovery program for
its Versa vehicles in March 2016.\12\ By January 2017, a very limited
number of samples from Ford had been recovered and tested.\13\ In March
2017, Takata and Ford met to review the field data collected from the
inflators returned by Ford and Nissan.\14\ Between March and June 2017,
additional Ford inflators were subjected to live dissection, which
included chemical and dimensional propellant analyses, as well as
ballistic testing.\15\ Also in June, Takata reviewed with Ford and
NHTSA field-return data from Ford inflators.\16\ Ford then met with
NHTSA on July 6, 2017 to discuss the data collected to date, as well as
an expansion plan for evaluating Takata calcium-sulfate desiccated
PSDI-5 driver-side air bag inflators.
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\11\ See also Recall No. 17E-034. Later, under Paragraph 43 of
the Third Amendment to the Coordinated Remedy Order (``ACRO''),
NHTSA ordered each vehicle manufacturer ``with any vehicle in its
fleet equipped with a desiccated PSAN Takata inflator'' (and not
using or planning to use such an inflator as a final remedy) to
develop a written plan describing ``plans to confirm the safety and/
or service life'' of desiccated PSAN Takata inflators used in its
fleet. ACRO ] 43. Such plans were to include coordination with
Takata for parts recovery from fleet vehicles, testing, and
anticipated/future plans ``to develop or expand recovery and testing
protocols of the desiccated PSAN inflators.'' Id.
\12\ Recall No. 17V-449. The specific Takata calcium-sulfate
desiccated PSDI-5 driver-side air bag inflators installed in these
Nissan Versa vehicles are a different variant than those installed
in the Ford and Mazda vehicles. There are several differences in
design between the variant installed in Nissan vehicles and the
variants installed in the Ford and Mazda vehicles, which are
discussed further below.
\13\ Recall No. 17E-034.
\14\ Id.
\15\ Id.
\16\ Id.
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Takata analyzed 423 such inflators from the Ford program--as well
as 895 such inflators from the Nissan program.\17\ After a review of
field-return data, on July 10, 2017, Takata, determining that a safety-
related defect exists, filed a DIR for calcium-sulfate desiccated PSDI-
5 driver-side air bag inflators that were produced from January 1, 2005
to December 31, 2012 and installed as original equipment on certain
motor vehicles manufactured by Ford (the ``covered Ford
inflators''),\18\ as well as calcium-sulfate desiccated PSDI-5 driver-
side air bag inflators for those same years of production installed as
original equipment on motor vehicles manufactured by Nissan (the
``covered Nissan inflators'') and Mazda (the ``covered Mazda
inflators'') (collectively, the ``covered inflators'').\19\ As
described further below, the propellant tablets in these inflators may
experience density reduction over time, which could result in the
inflator rupturing, at which point ``metal fragments could pass through
the air bag cushion material, which may result in injury or death to
vehicle occupants.'' \20\
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\17\ See Recall No. 17V-449.
\18\ These covered Ford inflators are identified by the prefixes
ZN and ZQ.
\19\ Recall No. 17E-034.
\20\ Id.
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Takata's DIR filing triggered Ford's obligation to file a DIR for
its affected vehicles.\21\ Ford filed a corresponding DIR, informing
NHTSA that it intended to file a petition for inconsequentiality.\22\
Ford then petitioned the Agency, under 49 U.S.C. 30118(d), 30120(h),
and 49 CFR part 556, for a decision that, because Takata's analysis of
the covered Ford inflators does not show propellant tablet-density
degradation, or increased inflation pressure, and certain inflator
design differences exist between the covered Ford inflators and the
covered Nissan inflators, the equipment defect determined to exist by
Takata is inconsequential as it relates to motor vehicle safety in the
Ford vehicles affected by Takata's DIR.\23\ In addition, citing its
commitment to further investigation, Ford stated that it was expanding
its acquisition, testing, and analysis of the covered Ford inflators,
and requested that the Agency allow Ford until March 31, 2018 to
complete certain testing and analysis before deciding on the
Petition.\24\
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\21\ See 49 U.S.C. 30102(b)(1)(F); 49 CFR part 573; November 3,
2015 Coordinated Remedy Order ]] 45-46. 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).
\22\ Ford Petition for a Determination of Inconsequentiality and
Request for Deferral of Determination Regarding Certain Ford
Vehicles Equipped with Takata PSDI-5 Desiccated Driver Airbag
Inflators (August 16, 2017) (``Petition'') (cover letter).
\23\ Id. at 1, 11-16. Ford also suggested differences in
``vehicle environment'' between affected Ford and Nissan vehicles as
a potential explanation for inflator degradation-risk differences
between the covered Ford inflators and the covered Nissan inflators.
See Petition at 2. However, Ford did not elaborate on this
suggestion elsewhere in its Petition. See id. at 14-16 (focusing on
design differences between the covered Ford inflators and covered
Nissan inflators).
\24\ Id. at 16-20.
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In a Notice published in the Federal Register on November 16, 2017,
NHTSA acknowledged its receipt of Ford's Petition, opened a public
comment period on the Petition to expire on December 18, 2017, and
denied Ford's request that the Agency allow Ford until March 31, 2018
to complete certain testing and analysis before the Agency decided on
the Petition.\25\ NHTSA received four comments in response to this
Notice, none of which advocated granting Ford's Petition. Two
individual commenters appeared to express general discontent with the
state of the Takata recalls for non-desiccated PSAN inflators, and a
third individual simply stated opposition to Ford's Petition without
extensive substantive explanation.
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\25\ See 82 FR 53561.
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The fourth commenter, the Center for Auto Safety (``CAS''),
emphasized the dangers that Takata air bag inflators can pose,
including the PSDI-5 inflators at issue in Ford's Petition. CAS also
stated a concern that granting Ford's Petition ``would effectively
serve as a decision that these inflators are exempt from future recall
should additional PSAN testing prove a danger.'' \26\ Specific to the
substance of Ford's Petition, CAS commented that the Petition
``contains unsupported assertions as fact, and . . . no corresponding
data or scientific studies confirming the safety of the PSDI-5 airbag
inflators,'' and stated that ``[w]here the petition does reference the
testing conducted by Takata on Ford inflators, there is little evidence
provided to suggest that these inflators will continue to perform after
years of exposure.'' \27\ CAS concluded that, ``[a]t best, the testing
performed by Takata suggests that propellant degradation and inflator
chamber pressure have not yet developed the potential to harm occupants
after ten years in service,'' and that NHTSA should deny Ford's
Petition.\28\
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\26\ Comments at 2.
\27\ Id.
\28\ Id. at 2-3 (emphasis in original).
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On October 26, 2018, at an in-person meeting with NHTSA, Ford
shared additional information in support of its Petition, including
internal analyses, test methodologies, and results of tests performed
by Ford and outside parties on behalf of Ford or at Ford's request.\29\
At a subsequent virtual meeting with NHTSA on November 4, 2020, Ford
shared further information in support of its Petition related to
additional work done by a third party since October 2018.\30\
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\29\ Ford submitted an accompanying slide deck, hereinafter
``October 2018 Presentation.'' This presentation is available on the
public docket.
The written materials Ford submitted do not explicitly identify
one of these third parties, which his hereinafter referred to as
``Third Party.''
\30\ Ford submitted an accompanying slide deck, hereinafter
``November 2020 Presentation.'' This presentation is available on
the public docket.
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II. Classes of Motor Vehicles Involved
Ford's Petition involves approximately 3.04 million light
[[Page 6954]]
vehicles that contain the covered Ford inflators. These vehicles are:
\31\
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\31\ Petition at 9-10 & cover letter thereto at 1.
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Ford Ranger (MY 2007-2011) (build dates January 9, 2006
through December 16, 2011);
Ford Fusion (MY 2006-2012) (build dates March 15, 2005
through July 29, 2012);
Lincoln Zephyr/MKZ (MY 2006-2012) (build dates March 15,
2005 through July 29, 2012);
Mercury Milan (MY 2006-2011) (build dates March 15, 2005
through June 4, 2011);
Ford Edge (MY 2007-2010) (build dates June 15, 2006
through July 12, 2010); and
Lincoln MKX (MY 2007-2010) (build dates June 15, 2006
through July 12, 2010).
III. Defect
The defect is present in Takata calcium-sulfate desiccated PSDI-5
driver-side air bag inflators.\32\ According to its DIR, Takata
produced 2.7 million of these defective inflators from January 1, 2005,
to December 31, 2012.\33\ These inflators are the earliest generation
of Takata desiccated PSAN inflators, and were installed as original
equipment in vehicles sold by Ford, Mazda, and Nissan.\34\ The evidence
makes clear that these inflators pose a significant safety risk. In
these inflators, ``[t]he propellant tablets . . . may experience an
alteration over time''--specifically, ``some of the inflators within
the population analyzed show a pattern of propellant density reduction
over time that is understood to predict a future risk of inflator
rupture''--``which could potentially lead to over-aggressive
combustion'' when the air bag in which they are installed deploys.\35\
This ``could create excessive internal pressure, which could result in
the body of the inflator rupturing upon deployment.'' \36\ In the event
of such a rupture, ``metal fragments could pass through the air bag
cushion material, which may result in injury or death to vehicle
occupants.'' \37\ Rupture potentiality may be influenced by ``several
years of exposure to persistent conditions of high absolute humidity,''
as well as other factors, including ``manufacturing variability or
vehicle type.'' \38\
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\32\ Recall No. 17E-034.
\33\ Id. The Agency notes that there is a discrepancy between
this figure of potentially involved inflators cited in Takata's DIR,
and Ford's approximate volume of affected vehicles subject to its
petition (approximately 3.04 million). Recall 17E-034; Petition at
9-10 & cover letter thereto at 1. That discrepancy does not affect
NHTSA's decision on Ford's Petition.
\34\ Recall No. 17E-034.
\35\ Id.
\36\ Id.
\37\ Id.
\38\ Id.
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IV. Legal Background
The National Traffic and Motor Vehicle Safety Act (the ``Safety
Act''), 49 U.S.C. 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.'' \39\
Under the Safety Act, a manufacturer must notify NHTSA when it ``learns
the vehicle or equipment contains a defect and decides in good faith
that the defect is related to motor vehicle safety,'' or ``decides in
good faith that the vehicle or equipment does not comply with an
applicable motor vehicle safety standard.'' \40\ The act of filing a
notification with NHTSA is the first step in a manufacturer's statutory
recall obligations of notification and remedy.\41\ However, Congress
has recognized that, under some limited circumstances, a manufacturer
may petition NHTSA for an exemption from the requirements to notify
owners, purchasers, and dealers and to remedy the vehicles or equipment
on the basis that the defect or noncompliance is inconsequential to
motor vehicle safety.\42\
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\39\ 49 U.S.C. 30102(a)(9).
\40\ Id. 30118(c)(1). ``[A] defect in original equipment, or
noncompliance of original equipment with a motor vehicle safety
standard prescribed under this chapter, is deemed to be a defect or
noncompliance of the motor vehicle in or on which the equipment was
installed at the time of delivery to the first purchaser.'' 49
U.S.C. 30102(b)(1)(F).
\41\ Id. 30118-20.
\42\ Id. 30118(d), 30120(h); 49 CFR part 556.
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``Inconsequential'' is not defined either in the statute or in
NHTSA's regulations, and so must be interpreted based on its
``ordinary, contemporary, common meaning.'' \43\ The inconsequentiality
provision was added to the statute in 1974, and there is no indication
that the plain meaning of the term has changed since 1961--meaning
definitions used today are substantially the same as those used in
1974.\44\ The Cambridge Dictionary defines ``inconsequential'' to mean
``not important,'' or ``able to be ignored.'' \45\ Other dictionaries
similarly define the term as ``lacking importance'' \46\ and
``unimportant.'' \47\
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\43\ See, e.g., Food Mktg. Institute v. Argus Leader Media, 139
S. Ct. 2356, 2363 (2019) (quoting Perrin v. United States, 444 U.S.
37, 42 (1979)).
\44\ See Public Law 93-492, Title I, Sec. 102(a), 88 Stat. 1475
(Oct. 27, 1974); Webster's Third New Int'l Dictionary (principal
copyright 1961) (defining ``inconsequential'' as ``inconsequent;'
defining ``inconsequent'' as ``of no consequence,'' ``lacking worth,
significance, or importance'').
The House Conference Report indicates that the Department of
Transportation planned to define ``inconsequentiality'' through a
regulation; however, it did not do so. See H.R. Rep. 93-1191, 1974
U.S.C.C.A.N. 6046, 6066 (July 11, 1974). Instead, NHTSA issued a
procedural regulation governing the filing and disposition of
petitions for inconsequentiality, but which did not address the
meaning of the term ``inconsequential.'' 42 FR 7145 (Feb. 7, 1977).
The procedural regulation, 49 CFR part 556, has remained largely
unchanged since that time, and the changes that have been made have
no effect on the meaning of inconsequentiality.
\45\ https://dictionary.cambridge.org/us/dictionary/english/inconsequential.
\46\ https://ahdictionary.com/word/search.html?q=inconsequential.
\47\ https://www.merriam-webster.com/dictionary/inconsequential.
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The statutory context is also relevant to the meaning of
``inconsequential.'' \48\ The full text of the inconsequentiality
provision is:
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\48\ See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S.
560, 569-72 (2012) (considering ordinary and technical meanings, as
well as statutory context, in determining meaning of a
``interpreter'' under 28 U.S.C. 1920(6)).
On application of a manufacturer, the Secretary shall exempt the
manufacturer from this section if the Secretary decides a defect or
noncompliance is inconsequential to motor vehicle safety. The
Secretary may take action under this subsection only after notice in
the Federal Register and an opportunity for any interested person to
present information, views, and arguments.\49\
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\49\ 49 U.S.C. 30118(d), 30120(h).
As described above, the statute defines ``motor vehicle safety'' to
mean ``the performance of a motor vehicle or motor vehicle equipment in
a way that protects the public against unreasonable risk of accidents .
. . and against unreasonable risk of death or injury in an accident . .
. .'' \50\ This is also consistent with the overall statutory purpose:
``to reduce traffic accidents and deaths and injuries resulting from
traffic accidents.'' \51\
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\50\ Id. 30102(a)(9) (emphasis added).
\51\ Id. 30101.
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The statute explicitly allows a manufacturer to seek an exemption
from carrying out a recall on the basis that either a defect or a
noncompliance is inconsequential to motor vehicle safety.\52\ However,
in practice, substantially all inconsequentiality petitions have
related to noncompliances, and it has been extremely rare for a
manufacturer to seek an exemption in the case of a defect. This is
because a manufacturer
[[Page 6955]]
does not have a statutory obligation to conduct a recall for a defect
unless and until it ``learns the vehicle or equipment contains a defect
and decides in good faith that the defect is related to motor vehicle
safety,'' or NHTSA orders a recall by making a ``final decision that a
motor vehicle or replacement equipment contains a defect related to
motor vehicle safety.'' \53\ Until that threshold determination has
been made by either the manufacturer or the Agency, there is no need
for a statutory exception on the basis that a defect is inconsequential
to motor vehicle safety. And since a defect determination involves a
finding that the defect poses an unreasonable risk to safety, asking
the Agency to make a determination that a defect posing an unreasonable
risk to safety is inconsequential has heretofore been almost
unexplored.\54\
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\52\ Id. 30118(d), 30120(h).
\53\ Id. 30118(c)(1).
\54\ NHTSA notes that the current petition is different in that
the inflators were declared defective by the supplier of the airbag,
and that Ford's defect notice was filed in response to the
supplier's notice.
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Given this statutory context, a manufacturer bears a heavy burden
in petitioning NHTSA to determine that a defect related to motor
vehicle safety (which necessarily involves an unreasonable risk of an
accident, or death or injury in an accident) is nevertheless
inconsequential to motor vehicle safety. In accordance with the plain
meaning of ``inconsequential,'' the manufacturer must show that a risk
posed by a defect is not important or is capable of being ignored. This
appropriately describes the actual consequence of granting a petition
as well. The manufacturer would be relieved of its statutory
obligations to notify vehicle owners and to remedy the defect, and
effectively to ignore the defect as unimportant from a safety
perspective. Accordingly, the threshold of evidence necessary for a
manufacturer to carry its burden of persuasion that a defect is
inconsequential to motor vehicle safety is difficult to satisfy. This
is particularly true where the defect involves a potential failure of
safety-critical equipment, as is the case here.
The Agency necessarily determines whether a defect or noncompliance
is inconsequential to motor vehicle safety based on the specific facts
before it. The scarcity of defect-related inconsequentiality petitions
over the course of the Agency's history reflects the heavy burden of
persuasion, as well as the general understanding among regulated
entities that the grant of such relief would be quite rare. The Agency
has recognized this explicitly in the past. For example, in 2002, NHTSA
stated that ``[a]lthough NHTSA's empowering statute alludes to the
possibility of an inconsequentiality determination with regard to a
defect, the granting of such a petition would be highly unusual.'' \55\
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\55\ Letter from J. Glassman, NHTSA, to V. Kroll, Adaptive
Driving Alliance (Sept. 23, 2002), https://www.nhtsa.gov/interpretations/ada3.
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Of the four known occasions in which the Agency has previously
considered petitions contending that a defect is inconsequential to
motor vehicle safety, the Agency has granted only one of the petitions,
nearly three decades ago, in a vastly different set of
circumstances.\56\ In that case, the defect was a typographical error
in the vehicle's gross vehicle weight rating (GVWR) that had no impact
on the actual ability of the vehicle to carry an appropriate load.
NHTSA granted a motorcycle manufacturer's petition, finding that a
defect was inconsequential to motor vehicle safety where the GVWR was
erroneously described as only 60 lbs., which error was readily apparent
to the motorcycle operator based upon both common sense and the fact
that the 330 lbs. front axle rating and 540 lbs. rear axle rating were
listed directly below the GVWR on the same label.\57\ Moreover, the
error did not actually impact the ability of the motorcycle to carry
the weight for which it was designed.\58\
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\56\ See id.
\57\ Suzuki Motor Co., Ltd.; Grant of Petition for
Inconsequential Defect, 47 FR 41458, 41459 (Sept. 20, 1982) and 48
FR 27635, 27635 (June 16, 1983).
\58\ Id.
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On the other hand, NHTSA denied another petition concerning a
vehicle's weight label where there was a potential safety impact. NHTSA
denied that petition from National Coach Corporation on the basis that
the rear gross axle weight rating (RGAWR) for its buses was too low and
could lead to overloading of the rear axle if the buses were fully
loaded with passengers.\59\ NHTSA rejected arguments that most of the
buses were not used in situations where they were fully loaded with
passengers and that there were no complaints.\60\ NHTSA noted that its
Office of Defects Investigation had conducted numerous investigations
concerning overloading of suspensions that resulted in recalls, that
other manufacturers had conducted recalls for similar issues in the
past, and that, even if current owners were aware of the issue,
subsequent owners were unlikely to be aware absent a recall.\61\
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\59\ Nat'l Coach Corp.; Denial of Petition for Inconsequential
[Defect], 47 FR 49517, 49517 (Nov. 1, 1982). NHTSA's denial was
erroneously titled ``Denial of Petition for Inconsequential
Noncompliance''; the discussion actually addressed the issue as a
defect. See id.; see also Nat'l Coach Corp.; Receipt of Petition for
Inconsequential Defect, 47 FR 4190 (Jan. 28, 1982).
\60\ Id. at 49517-18.
\61\ Id. at 49518.
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NHTSA also denied a petition asserting that a defect was
inconsequential to motor vehicle safety where the defect involved
premature corrosion of critical structure components (the vehicle's
undercarriage), which could result in a crash or loss of vehicle
control.\62\ Fiat filed the petition preemptively, following NHTSA's
initial decision that certain Fiat vehicles contained a safety-related
defect.\63\ In support of its petition, Fiat argued that no crashes or
injuries resulted from components that failed due to corrosion, and
that owners exercising due diligence had adequate warning of the
existence of the defect.\64\ NHTSA rejected those arguments and both
finalized its determination that certain vehicles contained a safety-
related defect (i.e., ordered a recall) and found that the defect was
not inconsequential to motor vehicle safety.\65\ NHTSA explained that
the absence of crashes or injuries was not dispositive: ``the
possibility of an injury or accident can reasonably be inferred from
the nature of the component involved.'' \66\ NHTSA also noted that the
failure mode was identical to another population of vehicles for which
Fiat was carrying out a recall.\67\ The Agency rejected the argument
that there was adequate warning to vehicle owners, explaining that the
average owner does not inspect the underbody of a car and that interior
corrosion may not be visible.\68\
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\62\ Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134, 2137, 41 (Jan.
10, 1980).
\63\ Fiat Motors of N. Am., Inc.; Receipt of Petition for
Determination of Inconsequential Defect, 44 FR 60193, 60193 (Oct.
18, 1979); Fiat Motors Corp. of N. Am.; Receipt of Petition for
Determination of Inconsequential Defect, 44 FR 12793, 12793 (Mar. 8,
1979).
\64\ See, e.g., 45 FR 2134, 2141 (Jan. 10, 1980).
\65\ Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2137-41 (Jan. 10,
1980). Fiat also agreed to a recall of certain of the vehicles, and
NHTSA found that Fiat did not reasonably meet the statutory recall
remedy requirements. Id. at 2134-37.
\66\ Id. at 2139.
\67\ Id.
\68\ Id. at 2140.
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Most recently, the Agency denied a petition asserting that a defect
in non-desiccated Takata PSAN air bag inflators
[[Page 6956]]
was inconsequential to motor vehicle safety, where the defect involved
the degradation of inflator propellant that could cause the inflator to
over-pressurize during air bag deployment--causing metal fragments to
penetrate the air bag and enter the vehicle compartment toward vehicle
occupants.\69\ In support of this petition and its argument that the
inflators at issue were not at risk of rupture--being ``more
resilient'' to rupture than other Takata PSAN inflators--General Motors
made arguments and submitted evidence regarding inflator design
differences and vehicle features, testing and field data analyses,
inflator aging studies, predictive modeling, risk assessments, and
potential risk created by conducting repairs.\70\ The Agency rejected
these arguments and, among other things, observed the severe nature of
the safety risk and that the defect could not be discerned even by a
diligent vehicle owner.\71\ The Agency also specifically noted the
heavy burden on General Motors to demonstrate inconsequentiality,
stating that ``[t]he threshold of evidence necessary to prove the
inconsequentiality of a defect such as this one--involving the
potential performance failure of safety-critical equipment--is very
difficult to overcome.'' \72\
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\69\ Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020).
\70\ Id. at 76161-164, 76167.
\71\ Id. at 76173.
\72\ Id.
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Agency practice over several decades therefore shows that
inconsequentiality petitions are rarely filed in the defect context,
and virtually never granted. Nonetheless, in light of the importance of
the issues here, and the fact that Ford's defect notification was filed
in response to the notification provided by Ford's supplier, the Agency
also considered the potential usefulness of the Agency's precedent on
noncompliance. The same legal standard--``inconsequential to motor
vehicle safety''--applies to both defects and noncompliances.\73\
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\73\ 49 U.S.C. 30118(d), 30120(h).
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In the noncompliance context, in some instances, NHTSA has
determined that a manufacturer met its burden of demonstrating that a
noncompliance was inconsequential to safety. For example, labels
intended to provide safety advice to an occupant that may have a
misspelled word, or that may be printed in the wrong format or the
wrong type size, have been deemed inconsequential where they should not
cause any misunderstanding, especially where other sources of correct
information are available.\74\ These decisions are similar in nature to
the lone instance where NHTSA granted a petition for an inconsequential
defect, as discussed above.
---------------------------------------------------------------------------
\74\ See, e.g., Gen. Motors, LLC.; cf. Grant of Petition for
Decision of Inconsequential Noncompliance, 81 FR 92963 (Dec. 20,
2016). By contrast, in Michelin, we reached the opposite conclusion
under different facts. There, the defect was a failure to mark the
maximum load and corresponding inflation pressure in both Metric and
English units on the sidewall of the tires. Michelin N. America,
Inc.; Denial of Petition for Decision of Inconsequential
Noncompliance, 82 FR 41678 (Sept. 1, 2017).
---------------------------------------------------------------------------
However, the burden of establishing the inconsequentiality of a
failure to comply with a performance requirement in a standard--as
opposed to a labeling requirement--is more substantial and difficult to
meet. Accordingly, the Agency has not found many such noncompliances
inconsequential.\75\ Potential performance failures of safety-critical
equipment, like seat belts or air bags, are rarely deemed
inconsequential.
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\75\ Cf. Gen. Motors Corporation; Ruling on Petition for
Determination of Inconsequential Noncompliance, 69 FR 19897, 19899
(Apr. 14, 2004) (citing prior cases where noncompliance was expected
to be imperceptible, or nearly so, to vehicle occupants or
approaching drivers).
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An important issue to consider in determining inconsequentiality
based upon NHTSA's prior decisions on noncompliance issues was the
safety risk to individuals who experience the type of event against
which the recall would otherwise protect.\76\ NHTSA also does not
consider the absence of complaints or injuries to show that the issue
is inconsequential to safety.\77\ ``Most importantly, the absence of a
complaint does not mean there have not been any safety issues, nor does
it mean that there will not be safety issues in the future.'' \78\
``[T]he fact that in past reported cases good luck and swift reaction
have prevented many serious injuries does not mean that good luck will
continue to work.'' \79\
---------------------------------------------------------------------------
\76\ See Gen. Motors, LLC; Grant of Petition for Decision of
Inconsequential Noncompliance, 78 FR 35355 (June 12, 2013) (finding
noncompliance had no effect on occupant safety because it had no
effect on the proper operation of the occupant classification system
and the correct deployment of an air bag); Osram Sylvania Prods.
Inc.; Grant of Petition for Decision of Inconsequential
Noncompliance, 78 FR 46000 (July 30, 2013) (finding occupant using
noncompliant light source would not be exposed to significantly
greater risk than occupant using similar compliant light source).
\77\ See Combi USA Inc., Denial of Petition for Decision of
Inconsequential Noncompliance, 78 FR 71028, 71030 (Nov. 27, 2013).
\78\ Morgan 3 Wheeler Ltd.; Denial of Petition for Decision of
Inconsequential Noncompliance, 81 FR 21663, 21666 (Apr. 12, 2016).
\79\ United States v. Gen. Motors Corp., 565 F.2d 754, 759 (D.C.
Cir. 1977) (finding defect poses an unreasonable risk when it
``results in hazards as potentially dangerous as sudden engine fire,
and where there is no dispute that at least some such hazards, in
this case fires, can definitely be expected to occur in the
future'').
---------------------------------------------------------------------------
Arguments that only a small number of vehicles or items of motor
vehicle equipment are affected have also not justified granting an
inconsequentiality petition.\80\ Similarly, NHTSA has rejected
petitions based on the assertion that only a small percentage of
vehicles or items of equipment are actually likely to exhibit a
noncompliance. The percentage of potential occupants that could be
adversely affected by a noncompliance does not determine the question
of inconsequentiality. Rather, the issue to consider is the consequence
to an occupant who is exposed to the consequence of that
noncompliance.\81\ These considerations are also relevant when
considering whether a defect is inconsequential to motor vehicle
safety.
---------------------------------------------------------------------------
\80\ See Mercedes-Benz, U.S.A., L.L.C.; Denial of Application
for Decision of Inconsequential Noncompliance, 66 FR 38342 (July 23,
2001) (rejecting argument that noncompliance was inconsequential
because of the small number of vehicles affected); Aston Martin
Lagonda Ltd.; Denial of Petition for Decision of Inconsequential
Noncompliance, 81 FR 41370 (June 24, 2016) (noting that situations
involving individuals trapped in motor vehicles--while infrequent--
are consequential to safety); Morgan 3 Wheeler Ltd.; Denial of
Petition for Decision of Inconsequential Noncompliance, 81 FR 21663,
21664 (Apr. 12, 2016) (rejecting argument that petition should be
granted because the vehicle was produced in very low numbers and
likely to be operated on a limited basis).
\81\ See Gen. Motors Corp.; Ruling on Petition for Determination
of Inconsequential Noncompliance, 69 FR 19897, 19900 (Apr. 14,
2004); Cosco Inc.; Denial of Application for Decision of
Inconsequential Noncompliance, 64 FR 29408, 29409 (June 1, 1999).
---------------------------------------------------------------------------
V. Information Before the Agency
Ford advances several arguments in support of its Petition. In sum,
Ford asserts that there is a difference in expected performance between
desiccated and non-desiccated Takata PSAN inflators; that there are
design differences between its covered inflators and another variant of
the same type; that although there are signs of aging in field returns,
there is no indication of propellant degradation that could lead to
rupture and no imminent safety risk; and that no ruptures of the
covered inflators are expected to occur for at least over twenty-six
years of cumulative exposure in the worst-case environment, for the
worst-case vehicle configuration, and worst-case customer usage. Ford
supports these arguments with its own analyses, results of inflator
testing and analyses conducted by three outside entities, and
predictive modeling.
[[Page 6957]]
A. Ford's Statistical Analysis of MEAF Data
Ford undertook its own statistical analysis of data in the Master
Engineering Analysis File (``MEAF''),\82\ which Ford contends ``shows a
clear difference in expected field performance between desiccated and
non-desiccated inflators,'' and ``suggests that the factors causing
degradation in the non-desiccated population of inflators are not
currently affecting'' the covered Ford inflators.\83\ Four charts
underpin Ford's assertions.
---------------------------------------------------------------------------
\82\ For several years, Takata has inspected, tested, and
analyzed inflators returned from the field. The compiled and
summarized test results for hundreds of thousands of inflators are
contained in the Takata MEAF, which is updated on an ongoing basis.
Takata's MEAF file was available to the Agency in making its
determination, and it is from this file that some of the information
considered by the Agency was derived, and discussed herein.
\83\ November 2020 Presentation at 11; October 2018 Presentation
at 14.
---------------------------------------------------------------------------
The first chart is of box plots of primary-chamber pressures of
covered Ford inflators by age, which Ford asserts shows there is ``[n]o
significant trend of primary pressure increase with inflator age.''
\84\ The second chart Ford provides is a lognormal histogram
illustrating the frequency of maximum values of primary-chamber
pressure of covered Ford inflators, which Ford asserts shows that the
probability of a covered Ford inflator exceeding a 92.37 MPa
``threshold'' \85\ is estimated as less than 1 x
10-\15\.\86\ Ford's third chart illustrates predicted
primary-chamber pressure for covered Ford inflators with probability
curves for three module ages--15, 20, and 30 years old, which Ford
contends shows that the probability of a module with thirty years in
service exceeding a 92.37 MPa threshold is 6.56 x
10-\6\.\87\ And a fourth chart consists of probability plots
(log normalized, 95% confidence) comparing primary-chamber pressure
maximum values between Ford modules with desiccated Takata PSAN
inflators and Ford modules with non-desiccated Takata PSAN
inflators.\88\ Ford states this shows that the probability of exceeding
a 92.37 MPa threshold for desiccated parts ``is several orders of
magnitude lower than that of non-desiccated parts.'' \89\
---------------------------------------------------------------------------
\84\ November 2020 Presentation at 7; October 2018 Presentation
at 10.
\85\ This appears to be the level at which Ford considers an
abnormal deployment to be a potentiality. This 92.37 figure is used
throughout Ford's materials.
\86\ November 2020 Presentation at 8; October 2018 Presentation
at 11.
\87\ November 2020 Presentation at 9; October 2018 Presentation
at 12.
\88\ November 2020 Presentation at 10; October 2018 Presentation
at 13.
\89\ Id.
---------------------------------------------------------------------------
B. Takata's Live Dissections and Ballistic Testing
According to Ford, Takata analyzed 1,992 calcium-sulfate desiccated
PSDI-5 driver-side air bag inflators returned from the field from Ford
vehicles, which included 1,008 inflators from Ford Ranger vehicles \90\
and 984 from Fusion/Edge vehicles.\91\ Analysis involved both live
dissections and ballistic testing, with 1,257 inflators subject to
ballistic testing, and 735 inflators subject to live dissection.\92\
Ford concludes from the results that while ``no indication of
degradation that could lead to a rupture and no imminent risk to safety
has been identified,'' Takata's analysis did ``identif[y] signs of
aging'' in the inflators.\93\
---------------------------------------------------------------------------
\90\ Ford noted in its Petition that twenty of these inflators
were from salvage yards ``where the conditions used to store the
parts cannot be determined.'' Petition at 11.
\91\ November 2020 Presentation at 12; October 2018 Presentation
at 7. Takata also analyzed 895 inflators from Nissan Versa vehicles.
See Recall No. 17V-449; Petition at 11 (``approximately 1,000'').
\92\ November 2020 Presentation at 12; October 2018 Presentation
at 15; see Petition at 14.
\93\ November 2020 Presentation at 12; October 2018 Presentation
at 15.
---------------------------------------------------------------------------
Ford did not much further explain the nature or results of this
ballistic testing and live dissection in either its October 2018 or
November 2020 Presentations. Ford does, however, further describe such
analyses with respect to the approximately 423 inflators from Ford
Rangers that Takata had analyzed at that point.\94\
---------------------------------------------------------------------------
\94\ Petition at 14. Ford noted that twenty of the inflators
from Ford Rangers were from salvage yards ``where the conditions
used to store the parts cannot be determined.'' Id. at 11.
When Ford filed its Petition, Takata had analyzed over 1,300 of
its calcium-sulfate desiccated PSDI-5 driver-side air bag inflators:
The approximately 423 inflators from Ford Rangers, and the remainder
from Nissan Versa vehicles. Id. at 14.
---------------------------------------------------------------------------
Ford asserts that about 360 live dissections of the Ford Ranger
inflators demonstrated ``consistent inflator output performance''--
specifically, that measurements of ignition-tablet discoloration,
``generate'' density,\95\ and moisture content of certain inflator
constituents did not indicate a reduction-in-density trend.\96\ Ford
describes in its Petition that during visual inspection of the covered
Ford inflators, ``Takata observed slight discoloration of the
propellant tablets in the primary and secondary chambers,'' but that
such discoloration ``is not an indicant by itself that the propellant
has degraded''--only that the propellant had been exposed to elevated
temperatures.\97\ Takata also observed changes in color in the primary
and secondary booster auto-ignition tablets.\98\ On a scale of 1-10,
with a discoloration of 10 ``indicating severe exposure'' to elevated
temperatures, Ford states that ``the vast majority'' \99\ of observed
discoloration in inflators obtained from vehicles in certain high-heat-
and-humidity states ``was within the 1-3 range after seven to eleven
years of vehicle service,'' while acknowledging that ``[s]even samples
were in the 5-6 range.'' \100\ Accordingly, Ford asserts, the results
of visual inspection ``evidence time-in-service, but not tablet density
loss.'' \101\ Ford's Petition also states that Takata took density
measurements of propellant tablets in the primary and secondary
chambers of covered Ford inflators.\102\ ``[A] small number of samples
\103\ were measured with a density slightly below the minimum average
tablet production specification,'' although Ford noted that ``a nearly
equal number . . . measured densities higher than the maximum average
tablet production specification.'' \104\ Ford argues that such data
does ``not support a conclusion that tablet density is degrading in the
inflators designed for Ford after 10 years of service.'' \105\
---------------------------------------------------------------------------
\95\ Ford utilizes the term ``generate'' throughout its
Petition. See, e.g., Petition at 3 (``generate system'') & 6
(``generate''). In the Agency's experience, ``generate'' is not
among nomenclature commonly used with respect to air bag inflators--
NHTSA is more familiar with the term ``generant.'' In context,
however, it appears that Ford is referring to an inflator's function
generating gas to inflate the air bag, or the air bag inflator's
propellant itself. See id.; see also id. at 15 (referring to
``Generate--2004,'' indicating a reference to a particular type of
propellant produced by Takata).
\96\ Id. at 11-12.
\97\ Id. at 12.
\98\ Id.
\99\ Ford did not state the exact size of this ``vast
majority.''
\100\ Petition at 12.
\101\ Id.
\102\ Id.
\103\ Ford did not state the exact size of this sample.
\104\ Petition at 12-13.
\105\ Id. at 13.
---------------------------------------------------------------------------
Ford contends in its Petition that its conclusions are further
supported by forty-seven ballistic deployment tests that showed no
inflator exceeding the production primary-chamber pressure performance
specifications.\106\ The results of these tests are, according to Ford,
consistent with data from newly manufactured PSDI-5 inflators in Ford
vehicles.\107\ Ford also emphasizes that Takata did not observe
pressure vessel ruptures or pressure excursions on any
[[Page 6958]]
desiccated PSDI-5 inflator, and that ``[t]he maximum primary chamber
pressure that Takata measured'' in covered Ford inflators was about 15
MPa lower than that measured in a covered Nissan inflator (which
exhibited primary chamber pressure exceeding 60 MPa).\108\
---------------------------------------------------------------------------
\106\ Id. at 12-13.
\107\ Id. at 14.
\108\ Id.
---------------------------------------------------------------------------
C. ``Design Differences'' in Inflators Equipped in Ford Vehicles
In its Petition, Ford contends that ``[t]here are significant
design differences'' in the covered Ford inflators when compared to the
covered Nissan inflators, and that such differences may explain
differences observed between the inflator variants in generate
properties and during testing.\109\ Ford cites its inflator variant as
having ``fewer potential moisture sources'' because the inflators
contain only two, foil-wrapped auto-ignition tablets (instead of three
that are not foil-wrapped), contain divider disk foil tape, and utilize
certain EPDM generate cushion material (instead of ceramic) that
``reduces generate movement over time, maintains generate integrity,
and leads to consistent and predictable burn rates.'' \110\ Ford posits
that such differences may explain differences observed between the two
inflator variants' generate material properties, and ballistic-testing
results.\111\
---------------------------------------------------------------------------
\109\ Id. at 14-15.
\110\ Id. at 15-16 (providing table).
\111\ Id. at 14-15; see also November 2020 Presentation at 31;
October 2018 Presentation at 29-30.
---------------------------------------------------------------------------
D. Northrop Grumman's Analysis
Northrop Grumman (``NG'') analyzed the covered Ford inflators,
results of which were presented to the Agency subsequent to Ford's
filing of its Petition. According to Ford, NG's assessment of field-
return parts and modeling ``identified expected signs of aging but no
indication of degradation that could lead to rupture,'' and the
assessment ``identified clear and significant differences between
desiccated and non-desiccated inflators of similar age and design.''
\112\
---------------------------------------------------------------------------
\112\ November 2020 Presentation at 13; October 2018
Presentation at 16.
---------------------------------------------------------------------------
Specifically, NG undertook 58 dissections, 138 tank tests, MEAF
analysis, design comparisons, CT scans, and ballistic modeling. The
inflators subject to dissection and tank tests included inflators from
Ford Rangers (2006-2007, prefix ZN) and Fusions (2006-2008, prefix ZQ)
in South Florida; Edges (2006-2008, prefix ZQ) in South Florida and
Georgia; Rangers (2006-2007, prefix ZN) in Arizona, Rangers in Michigan
(2006-2008, prefix ZN); and virgin inflators (prefixes ZN and ZQ).\113\
---------------------------------------------------------------------------
\113\ November 2020 Presentation at 14; October 2018
Presentation at 17.
---------------------------------------------------------------------------
NG also completed probability-of-failure projections for the
covered Ford inflators under its inflator aging model, on which Ford
updated the Agency in November 2020.\114\ Ford considered the results
of those projections in conjunction with anticipated vehicle attrition
and the probabilities of crashes with air bag deployments.\115\
---------------------------------------------------------------------------
\114\ November 2020 Presentation at 22.
\115\ Id.
---------------------------------------------------------------------------
1. Live Dissections
According to Ford, NG performed various assessments related to live
dissections of inflators: \116\
---------------------------------------------------------------------------
\116\ November 2020 Presentation at 15-16; October 2018
Presentation at 18-19.
---------------------------------------------------------------------------
Propellant health analysis. According to Ford, the covered
Ford inflators are susceptible to energetic disassembly when tablet
density is at 1.64 g/cc or lower,\117\ and the densities of the tablets
from such returned inflators were measured ``well above'' 1.63-1.64 g/
cc.
---------------------------------------------------------------------------
\117\ Although not explained, this assertion appears to be
derived from NG's ballistic modeling, which found that ``[a]n
equivalent low press tablet density below 1.631 g/cc was required to
produce sufficient augmented burning.'' See November 2020
Presentation at 17; October 2018 Presentation at 20.
---------------------------------------------------------------------------
AI-1 analysis. NG measured the propellant tablets for
outer diameter (``OD''), weight, and color. Ford states that the OD and
weight of field returns were ``similar'' to virgin inflators. Also
according to Ford, ``[i]n older undesiccated inflators, the AI-1 tablet
color is an indicator of age based on humidity and temperature exposure
in the field, and the returned inflators retained a 0-2 color (10 the
darkest),'' which was ``similar'' to virgin inflators. Ford further
notes that thermogravimetric analysis ``indicated similar weight loss
to virgin samples.''
Moisture content. According to Ford, the propellants from
the returned inflators were lower in moisture content than non-
desiccated PSDI-5 inflators (prefix ZA) and desiccated PSDI-5 (prefix
YT) inflators.
X-ray micro-computed tomography (micro-CT scan). Ford
asserts that ``[n]o definitive trend was observed with respect to void
count, size, or total volume, and tablet density.'' According to Ford,
``[t]ypically, 20,000 voids were identified ranging in size from
1x10-\5\ to .3 cubic millimeters.''
Scanning electron microscope (SEM). NG processed 2004
tablets from non-desiccated PSAN inflators (prefix ZA) through the
Independent Testing Coalition's (``ITC'') aging study (1920
cycles).\118\ Those had ``higher surface roughness than tablets from
Ford desiccated inflators.'' Propellant in desiccated PSDI-5 inflators
(prefixes GE and YT) aged at 1920 cycles, according to Ford, also had
higher surface roughness than propellant in the field-returned Ford
PSDI-5 inflators (prefixes ZN and ZQ)--which had surface roughness
``similar'' to propellant in virgin inflators.
---------------------------------------------------------------------------
\118\ The ITC is funded by a consortium of vehicle
manufacturers.
---------------------------------------------------------------------------
Burn rate (closed bomb). According to Ford, ``[n]o
significant differences were observed between 2004 propellant from
virgin and returned inflators,'' and ``[n]o anomalous pressure traces
were observed.''
O-ring. Ford states that ``[a]lthough a significant
decrease in [O]-ring squeeze is observed in the 2006-8 PSDI-5D inflator
igniter assembly sealing system, the remaining squeeze is deemed
acceptable to prevent moisture leakage around the O-ring.'' According
to Ford, older O-rings have a loss of resiliency from a decrease in the
horizontal diameter that occurs with increasing age.
Inflator Tank Testing. Ford states that results showed one
Ford PSDI-5 inflator (ZN prefix) with a chamber pressure approximately
20% higher than the average of the other tested inflators. ``All other
PSDI-5 ZN curves were grouped tightly with the virgin inflators,'' as
were, according to Ford, the ZQ prefix inflators. Ford also notes that
the inflator with the higher pressure was from a vehicle in Michigan,
and that the pressure ``was well below any expected inflator rupture
pressure.''
2. Ballistic Modeling
NG developed ballistic models ``to investigate the observed
performance behavior of Ford PSDI-5 ZN and ZQ inflators and to evaluate
the potential sensitivity of the inflators to certain design
deviations.'' \119\ Representative performance models were anchored to
measured pressure data from virgin inflators.\120\ ``The models
simulated inflator ignition, chamber volumetric filling, burst tape
rupture, ignition delay between chambers and steady state combustion.''
\121\ According to Ford, the PSDI-5 design required ``significant
degradation of the 2004 propellant tablets'' to obtain failure
pressures.\122\ Specifically, ``[a]n equivalent low press tablet
density below 1.631 g/cc was
[[Page 6959]]
required to produce sufficient augmented burning.'' \123\ Ford states
that such degradation was not observed in the field returns of covered
Ford inflators.\124\
---------------------------------------------------------------------------
\119\ November 2020 Presentation at 17; October 2018
Presentation at 20.
\120\ Id.
\121\ Id.
\122\ Id.
\123\ Id.
\124\ Id.
---------------------------------------------------------------------------
3. MEAF Assessment
NG analyzed MEAF data up to February 2018 to determine whether
covered Ford inflators had energetic deployment (``ED'') rates were
dependent on platform, inflator age, climate zone, or other
factors.\125\ Among the ``key'' findings according to Ford: For non-
desiccated PSDI-5 inflators, abnormal deployments began to occur after
10.5 years, and EDs after 11.5 years; inflator variants with calcium-
sulfate desiccant experienced normal deployments up to 12.5 years
(which at the time were the oldest inflators contained in the MEAF);
the calcium-sulfate desiccant ``appear[ed] to be largely saturated
after 8 years;'' and the covered Ford inflators contained less moisture
in the 3110 booster propellant than the non-desiccated inflators.\126\
---------------------------------------------------------------------------
\125\ Id.
\126\ Id.
---------------------------------------------------------------------------
4. Probability-of-Failure Projections
In its November 2020 Presentation to the Agency, Ford cites NG's
PSAN Inflator Test Program and Predictive Aging Model Final Report from
October 2019 (``NG Model''),\127\ first observing that this report
indicates that for another OEM's PSDI-5 inflator with a calcium-sulfate
desiccant (prefix YT), a T3 vehicle in Miami with the most severe aging
(top 1%, hereinafter a ``1% usage'' vehicle), may reach a probability
of failure of 1 in 10,000 (.01%) in less than thirty years.\128\ Ford
then states that under the NG model, for the Ford covered inflators
prefixes ZN and ZQ, a 1% usage T3 vehicle in Miami has an expected 25.7
and 25.6 years, respectively, to a .01% probability of failure.\129\
Ford further states that this is an additional two years when compared
to the YT prefix version of the inflator (of another OEM).\130\
---------------------------------------------------------------------------
\127\ NG previously submitted this report to the Agency, which
contains information regarding the safety of desiccated Takata PSAN
inflators. The report is available at https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/ngis_takata_investigation_final_report_oct_2019.pdf.
\128\ November 2020 Presentation at 23. T3 refers to a
``temperature band.'' Under NG's report, there are three temperature
bands--T1, T2, T3. T3 is the highest temperature band, representing
vehicles with maximum inflator temperatures near or slightly above
70[deg]C. NG Report at 18-19; see November Presentation at 24. The
``1% usage vehicle'' refers to a vehicle with the most severe
environmental exposure based on customer usage. See November 2020
Presentation at 24.
\129\ November 2020 Presentation at 25.
\130\ Id.
---------------------------------------------------------------------------
Ford then asserts that the earliest Fusion/Milan/MKZ vehicles
equipped with the covered Ford inflators were built in 2005, and that
if those vehicles perform as T3 vehicles, the earliest calendar year
for a 1 in 10,000 probability of failure is 2031 for a 1% usage
vehicle.\131\ Similarly, Ford asserts that the earliest Ranger, Edge/
MKX vehicles equipped with the covered Ford inflators were built in
2006, and that if those vehicles perform as T3 vehicles, the earliest
calendar year for a 1 in 10,000 probability of failure is 2032 for a 1%
usage vehicle.\132\
---------------------------------------------------------------------------
\131\ Id. at 26.
\132\ Id.
---------------------------------------------------------------------------
Ford builds on these assertions by stating that ``for a rupture to
occur the vehicle must be in service and experience a crash resulting
in airbag deployment,'' and that based on vehicle attrition and crash
statistics, Ford does not project a field event at twenty-six years of
service.\133\ Ford provides the below data in support: \134\
---------------------------------------------------------------------------
\133\ Id.
\134\ Id.
\135\ Ford notes this was ``[a]djusted for the population
attrition & accident probabilities using vehicles currently
registered in Florida (not all of which have always been registered
in Florida).'' Id.
----------------------------------------------------------------------------------------------------------------
Probability Expected
of inflator cumulative
Vehicle Model year Volume rupture \135\ events at 26
(Florida) at 26 years in years in
service service
----------------------------------------------------------------------------------------------------------------
Fusion.......................................... 2006-2012 75,232 5.08E-07 0.038
MKZ............................................. 2006-2012
Milan........................................... 2006-2011
Edge............................................ 2007-2010 39,161 6.34E-07 0.025
MKX............................................. 2007-2010
Ranger.......................................... 2007-2011
----------------------------------------------------------------------------------------------------------------
Ford therefore states that the earliest a Ford vehicle in a Miami-
type environment may reach a .01% probability of failure is over a
decade in the future for a 1%-usage T3 vehicle and that, in other
words, ``the predictive model suggests that no inflator ruptures are
expected to occur for at least 26 years of cumulative exposure in the
worst case environment, worst case vehicle configuration, and worst
case customer usage'' (i.e., 2031 for the oldest vehicles).\136\
---------------------------------------------------------------------------
\136\ Id. at 26-27.
---------------------------------------------------------------------------
Ford also makes several other observations, including that: \137\
---------------------------------------------------------------------------
\137\ Id. at 27.
---------------------------------------------------------------------------
``[s]tudying parts prior to approximately 16-18 years in
service would not identify meaningful inflator aging information''
(i.e., 2023 for the oldest vehicles);
the ITC, in coordination with NG, is conducting a
surveillance program for desiccated Takata PSAN inflators, and data
gathered from that program can validate the NG models;
``[w]ith newer inflators that have not yet shown signs of
aging, there is a significant opportunity for improving the fidelity
and accuracy of the model with enhanced anchoring data''; and
there is time for a separate surveillance program for the
covered Ford inflators ``well before any potential risk is projected''
after the results of NG's surveillance program that are expected in
2021.
Ford concludes that it ``believes that the current data indicates
that the subject inflators do not present an unreasonable risk to
safety and that it supports granting the petition.'' \138\
---------------------------------------------------------------------------
\138\ Id.
---------------------------------------------------------------------------
E. Additional Third-Party Analysis
According to Ford, an additional Third Party found that no pressure
excursions were detected in the covered Ford inflators analyzed to
date.\139\ The Third Party also found that some field inflators
experienced porosity growth greater than virgin inflators with 2004
propellant, ``but not to a level sufficient to cause pressure
excursions in bomb
[[Page 6960]]
testing.'' \140\ In addition, ``[n]o significant increase in tablet ODs
was observed for field populations'' of covered inflators.\141\ These
findings were derived from live dissections performed on 39 inflators
and deployment tests on 65 inflators.\142\ The inflators were field-
return parts obtained from Florida, Michigan, and Ohio.\143\
---------------------------------------------------------------------------
\139\ Id. at 18; October 2018 Presentation at 21.
\140\ Id.
\141\ Id.
\142\ Id.
\143\ Id.
---------------------------------------------------------------------------
VI. Response to Ford's Supporting Information and Analyses
Ford, through its Petition and supporting analysis, seeks to show
that the covered Ford inflators are not at risk of rupture such that
the defect is inconsequential to safety. First, as noted above, when
taking into consideration the Agency's noncompliance precedent, an
important factor is also the severity of the consequence of the defect
were it to occur--i.e., the safety risk to an occupant who is exposed
to an inflator rupture. Ford did not provide any information to suggest
that result would be any different were a covered Ford inflator to
rupture in a Ford vehicle.
And second, as a general matter, at various points, Ford's Petition
implicitly appears to adopt the covered Nissan inflators as a standard
for inconsequentiality. However, differentiating the covered Ford
inflators from the covered Nissan inflators, e.g., through ballistic-
testing or live-dissection results, does not directly answer the
question of whether the defect in the covered Ford inflators is, on its
own merits, inconsequential to motor vehicle safety. Even assuming that
the covered Ford inflators compare favorably to the covered Nissan
inflators, NHTSA has not made an inconsequentiality determination for
the covered Nissan inflators--nor will it be doing so.\144\ Ford
similarly argued in subsequent materials, for example, with regard to
NG's live dissections and predictive-model results, as well as Ford's
statistical analysis of the MEAF, that the covered Ford inflators
compared favorably to other inflator variants, and even to non-
desiccated inflators. Merely demonstrating that one's own defective
product compares favorably to another's defective product does not
suffice for an inconsequentiality determination.
---------------------------------------------------------------------------
\144\ Ford's comparisons might carry more evidentiary weight if,
for instance, the Agency had previously granted an
inconsequentiality petition from Nissan for its covered inflators.
Nissan did not petition the Agency for an inconsequentiality
determination for its covered inflators. See also 49 CFR 556.4(c)
(requiring such a petition is submitted not later than thirty days
after defect or noncompliance determination).
---------------------------------------------------------------------------
Relatedly, Ford's argument regarding ``design differences'' between
the covered Ford and covered Nissan inflators appears to be more of an
identification of areas for further study or potential explanation--not
a standalone argument in support of an inconsequentiality
determination. Ford identifies design differences ``that may account
for the difference in material properties of the generate,'' and
differences in pressures measured during ballistic testing of the
inflators.\145\ Ford did not persuasively connect these design
differences to meaningful improved performance in generate properties
and pressure differences \146\ and, even if Ford had, the covered
Nissan inflators are not a proxy standard for inconsequentiality.
---------------------------------------------------------------------------
\145\ Petition at 14-15 (emphasis added).
\146\ Moreover, as described further below, based on recent MEAF
data, one covered Ford inflator has the highest chamber pressure
tested for Takata calcium-sulfate desiccated PSDI-5 inflators.
---------------------------------------------------------------------------
In addition to these issues, signs of aging were observed in the
covered Ford inflators; the sample sizes used for the analyses were
limited; and there are shortcomings regarding various analyses that
undermine their conclusions--including some information that was
missing or unclear. Ford's probability-of-failure projections are also
unpersuasive--and notably belied by the limited evidence available from
ballistic testing and analysis on real-world field returns of the
covered Ford inflators. These additional issues are discussed below.
A. Signs of Aging
Ford admits that signs of aging were observed in the covered Ford
inflators. While Ford indirectly dismisses this is as a non-issue--
concluding that there is no degradation ``that would signal either an
imminent or developing risk to safety''--aging leads to degradation,
which leads to risk of inflator rupture. Further, the 2004 propellant
that is present in the covered Ford inflators degrades until, at some
point, it no longer burns normally, but in an accelerated and
unpredictable manner that can cause an inflator rupture. ``The purpose
of the Safety Act . . . is to prevent serious injuries stemming from
established defects before they occur.'' \147\ And as CAS commented,
``tests demonstrating that inflators are `OK for now' in no way ensures
safety throughout the maximum useful life of these vehicles.'' \148\
---------------------------------------------------------------------------
\147\ United States v. Gen. Motors Corp., 565 F.2d 754, 759
(D.C. Cir. 1977).
\148\ See Comments at 3.
---------------------------------------------------------------------------
B. Samples
The Agency finds shortcomings in the sample sizes utilized in the
analyses. Ford's total field-return sample was, across the Takata, NG,
and the additional Third Party analyses, less than 3,000 inflators for
an affected population of over 3 million vehicles. Ford presented
analysis from Takata of fewer than 2,000 inflators, while NG analyzed
only 196, and the additional Third Party analyzed just over 100. In
total, Ford cites to 1,460 ballistic tests, which is approximately .05%
of the total population subject to Ford's Petition. By comparison, for
example, that percentage of the population tested is much smaller than
the percentage of inflators tested as of November 2019 in a mid-sized
pick-up vehicle population equipped with non-desiccated PSAN
inflators--1.81%--with one observed test rupture. Ford's own
statistical analysis of the MEAF regarding Pc Primary Max Value
frequency \149\ was also based on only 1,247 inflators.\150\
---------------------------------------------------------------------------
\149\ See November 2020 Presentation at 8.
\150\ Moreover, twenty of the inflators (from Ranger vehicles)
were from salvage yards, ``where the conditions used to store the
parts cannot be determined.'' Petition at 11. Further highlighting
the significance of this shortcoming, Ford noted in its Petition the
potential importance of ``vehicle environment'' with respect to
inflator-degradation risk but did not elaborate on this suggestion
elsewhere in its Petition. See id. at 2; id. 14-16 (focusing on
design differences between the covered Ford inflators and covered
Nissan inflators). For purposes of its arguments related to the NG
Model, Ford presented a worst-case scenario, where it was assumed
for purposes of that scenario that the vehicles at issue would be in
the T3 temperature band.
---------------------------------------------------------------------------
C. Additional Underlying Information
Other shortcomings regarding various analyses presented here--
including some information that was missing or unclear--further
undermine the associated conclusions. These are identifiable in both
Ford's Petition and in the subsequent Presentations to the Agency.
1. Ford's Petition
As an initial matter, Ford submitted little of the relevant
underlying data, and did not fully explain the underlying methodologies
and results, associated with the arguments in its 2017 Petition. More
specifically, one of Ford's arguments in its 2017 Petition is that
Takata's live dissections of covered Ford inflators does not show
tablet-density degradation or increased inflation pressure, and
therefore, Takata ``did not identify a reduction in density trend'' in
[[Page 6961]]
the covered Ford inflators.\151\ Tablet discoloration was graded on a
qualitative 1-10 scale, but to what discoloration characteristics each
level of this scale corresponds is not explained. And Ford's conclusion
that a ``vast majority'' of discoloration in certain inflators was
within a certain low range of discoloration (with seven samples in a
certain mid-range) is vague, and Ford did not provide information about
the specific distribution of the results (e.g., the number of inflators
receiving each discoloration value or the number of inflators in each
Zone).\152\
---------------------------------------------------------------------------
\151\ Id. at 11.
\152\ See id. at 12.
---------------------------------------------------------------------------
Ford also provides little information about the specific inflators
tested and associated results with regard to density measurements--such
as actual dimensions, mass, and densities, among measurements--instead
largely relying on general descriptions the results.\153\ For inflation
pressure, Ford offers evidence of ballistic tests, although the
breakdown of this sample with regard to vehicle model year and
location, as well as how many of these inflators were obtained from
salvage yards with unknown environment exposures (and the associated
results), was not provided.\154\
---------------------------------------------------------------------------
\153\ See id. at 12-13 (``[A] small number of samples were
measured with a density slightly below the minimum average tablet
production specification, while a nearly equal number of samples
measured densities higher than the maximum. . . .'').
\154\ See id. at 13.
---------------------------------------------------------------------------
2. Subsequent Submissions to the Agency
Ford's statistical analysis of the MEAF contains several
shortcomings in the first two charts--box plots of primary-chamber
pressure by age of inflator, and a lognormal histogram of maximum
values illustrating the frequency of maximum values of primary-chamber
pressure of covered Ford inflators. In the box plots, Ford does not
specify or illustrate what a ``normal'' or ``expected'' primary-chamber
pressure would be. Nor did Ford provide information showing how many
inflators each age group comprises--although the lack of whiskers in
the box plot for inflators aged thirteen years suggests that, at least
for that age group, the sample size is small. There are also outlier
pressure values observed in the nine- to twelve-year age groups, which
concern the Agency. And in the histogram, Ford does not distinguish
among different inflator ages--which would have highlighted any trends
in primary-chamber pressure maximum values based on age.
There are also several shortcomings with the second two charts--the
probability curves for module ages, and probability plots comparing
primary-chamber pressure maximum values of Ford modules with desiccated
and non-desiccated inflators, respectively. As to the probability
curves, while details were not provided by Ford, this analysis appears
to assume that degradation will proceed linearly. However, researchers
that have been most closely involved in analyzing Takata inflators,
including NG, all seem to agree that the degradation process is, at the
very least, complex, and does not follow a linear trajectory. Instead,
2004 propellant (which is contained in the covered Ford inflators)
degrades until, at some point, it no longer burns normally, but in an
accelerated and unpredictable manner that can cause an inflator
rupture. As to the probability plots, while a comparison between
desiccated and non-desiccated inflators is somewhat informative from a
broad perspective, it is too general to lend much support to Ford's
Petition, and as noted above, the performance of non-desiccated Takata
PSAN inflators is not a sound benchmark for whether the defect in the
covered Ford inflators is inconsequential to safety.
Regarding NG's analysis, as an initial matter, over a quarter of
the 196 inflators analyzed were non-aged/virgin inflators and, further,
degradation would not be expected in the inflators from Michigan (from
which, collectively, 55 of the inflators were obtained). Ford also
acknowledges aging in inflator O-rings from this analysis. In addition,
there are several particular issues with NG's live dissections worth
noting. Findings regarding moisture content are of limited value, and
Ford did not present important information on the referenced comparator
prefix ZA and YT inflators--e.g., age and the geographic region in
which they were used. As to the SEM results, Ford does not explain how
the concept of surface roughness relates to the long-term safety of the
inflators at issue here. Similarly, regarding the additional Third
Party's analysis, OD growth for the tablet grain form has not been
found to be reliable indicator of propellant health, and Ford does not
demonstrate otherwise.
D. Probability-of-Failure Projections
Ford's probability-of-failure projections are also unpersuasive. As
previously described, these projections, submitted in support of Ford's
Petition in November 2020, are based on the NG Model. While the
projections are informative in various respects, NHTSA does not view
the Model's outputs for the covered Ford inflators as fully squaring
with the evidence available for those inflators from real-world field
returns \155\--which renders what Ford provides unpersuasive for the
purposes of its Petition. Even with the limited testing evidence
available, ballistic testing of field returns of the covered Ford
inflators includes three inflator deployments with primary-chamber
pressures between 60 and 70 MPa--coming from two ZQ inflators with a
field age between 12 and 13 years (one of which exhibited a pressure of
68 MPa), and one ZN inflator with a field age between 10 and 11
years.\156\ In the Agency's experience, such primary-chamber pressure
results are indicative of propellant degradation and potential future
rupture risk. The nature of these results, in addition to causing
concern, undercuts one of Ford's notable arguments in its Petition:
That ``[t]he maximum primary chamber pressure that Takata measured'' in
covered Ford inflators was about 15 MPa lower than that measured in a
covered Nissan inflator (which exhibited primary chamber pressure
exceeding 60 MPa). Indeed, at least three covered Ford inflators have
now exceeded 60 MPa in ballistic testing (one ZN, two ZQ), and
according to recent MEAF data, one of these inflators (of the ZQ
variant) has the highest chamber pressure tested for Takata calcium-
sulfate desiccated PSDI-5 inflators.
---------------------------------------------------------------------------
\155\ While it may be possible to age an inflator artificially
in a manner that replicates aging characteristics in the field (and
then test those inflators), Ford did not attempt to do this for the
covered Ford inflators.
\156\ Also notable is that all three results are over three
standard deviations above even the average field-return results for
ZN and ZQ inflators collectively (for which the Agency would expect
a higher average than virgin inflators).
Ford also noted a ZN inflator tested by NG with a chamber
pressure approximately 20% higher than the average of the other
inflators in tank testing. The specific measurement (and
measurements of other NG tests) does not appear to have been
provided to the Agency.
---------------------------------------------------------------------------
Data from the MEAF also may suggest the beginning stages of notable
density changes in propellant tablets in the covered Ford inflators
with increasing field age. Recent results from primary tablets in
inflators with field ages between 12 and 14 years show four inflators
with density measurements near (or below) 1.68 g/cc; according to Ford,
1.64 g/cc is the point at which the PSDI-5 inflators with 2004 tablets
are susceptible to energetic disassembly.\157\
[[Page 6962]]
Similarly, there are a number of field returns measured with secondary-
chamber tablet densities under 1.66 g/cc (mostly ZN, although one ZQ
inflator), including ZN inflators under 1.64 g/cc--one of which was
measured as low as 1.62 g/cc. This undermines the contention that the
densities of the tablets from returned covered Ford inflators were
measured ``well above'' 1.63-1.64 g/cc, as well as assertions regarding
the results of visual inspections that it contends ``evidence time-in-
service, but not tablet density loss.''
---------------------------------------------------------------------------
\157\ These results regard recently tested ZQ inflators with
greater field ages than previously tested ZN inflators, although it
should also be noted that one ZN inflator with a field age of about
10 years measured a primary-tablet density just above 1.66 g/cc--
lower than any result for a ZQ inflator.
---------------------------------------------------------------------------
The above results from real-world field returns signal that
propellant degradation in the covered Ford inflators is occurring.
While the predictive model that Ford references (and its applicable
results) is informative in certain respects, the specific metrics Ford
cites in support cannot be sufficiently squared with the actual testing
that has been completed on real-world field returns to be persuasive
for Ford's Petition.\158\
---------------------------------------------------------------------------
\158\ See also Exhibit A (Report of Dr. Harold Blomquist) to
Gen. Motors LLC, Denial of Consolidated Petition for Decision of
Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020) at para.272
(indicating that--in assessing a similar model with regard to a
petition for inconsequentiality--apparent inconsistencies between
that model's predictions and high-pressure ballistic test results of
field returns--of inflators not at issue here--``suggest caution
should be used'' in applying the results of that model).
---------------------------------------------------------------------------
Further, there are shortcomings particular to the metrics on which
Ford relies regarding the Model. Notably, Ford contends that ``there
are no expected field events projected at 26 years of service.'' \159\
However, Ford's figures for an expected number of cumulative field
events \160\ were cut off at 26 years in service and limited to an
analysis of vehicles in Florida--a combined volume of 114,393 vehicles,
which is less than 4% of the total population of Ford vehicles at
issue.\161\ While such vehicles may be among the highest risk
populations, unless it is assumed that there is a cumulative zero
probability of inflator rupture (through 26 years in service) for every
vehicle in every other State (including States other than Florida with
high heat and humidity),\162\ these calculations do not reflect the
expected cumulative events for the entire population of 3.04 million
vehicles installed with calcium-sulfate desiccated Takata inflators
through 26 years in service--thereby understating the risk, as
suggested by the Model, for the vehicles at issue in Ford's Petition.
In other words, Ford does not provide a fleet-level assessment here--
the total number of cumulative events expected to occur in the coming
years for such vehicles. And in any case, Ford's metrics are undercut
by the ballistic results and analysis of field-returned inflators
showing elevated pressures and propellant density changes discussed
above.
---------------------------------------------------------------------------
\159\ See November 2020 Presentation at 26.
\160\ These figures, which appear based on the twenty-sixth year
of service (the point at which, under the NG Model and according to
Ford, there is a 1% probability of failure for a covered Ford
inflator in a T3 vehicle with the most severe (top 1%) usage factors
in Miami), were 0.038 for a population of approximately 75,000
Fusion, MKZ, and Milan vehicles, and 0.025 for a population of
approximately 39,000 Edge, MKX, and Ranger vehicles. See November
2020 Presentation at 26.
\161\ Ford did not submit evidence demonstrating that none of
the vehicles subject to the Petition would be in service after 26
years--in Florida or otherwise. And while Ford adjusted relevant
metrics for attrition and crash probabilities, Ford did not submit
specific information about how these adjustments were made.
\162\ Although 26 years is--under the NG Model and according to
Ford--the point at which there is a 1% probability of failure for a
covered Ford inflator in a vehicle with the most severe (top 1%)
usage factors in Miami, Ford does not explain why this is an
appropriate point at which to end its analysis of the expected
number of cumulative field events.
---------------------------------------------------------------------------
VII. Decision
The relief sought here is extraordinary. Ford's Petition is quite
distinct from previous petitions discussed above relating to defective
labels that may (or may not) mislead the user of the vehicle to create
an unsafe condition.\163\ Nor is the risk here comparable to a
deteriorating exterior component of vehicle that--even if an average
owner is unlikely to inspect the component--might (or might not) be
visibly discerned.\164\ Rather, similar to the defect at issue in
NHTSA's recent decision on a petition regarding certain non-desiccated
Takata PSAN air bag inflators installed in General Motors vehicles, the
defect here poses an unsafe condition caused by the degradation of an
important component of a safety device that is designed to protect
vehicle occupants in crashes.\165\ Instead of protecting occupants,
this propellant degradation can lead to an uncontrolled explosion of
the inflator and propel sharp metal fragments toward occupants in a
manner that can cause serious injury and even death.\166\ This unsafe
condition--hidden in an air bag module--is not discernible even by a
diligent vehicle owner, let alone an average owner.\167\
---------------------------------------------------------------------------
\163\ See Nat'l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1, 1982); Suzuki Motor
Co., Ltd.; Grant of Petition for Inconsequential Defect, 48 FR 27635
(June 16, 1983).
\164\ See Final Determination & Order Regarding Safety Related
Defects in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134 (Jan. 10,
1980).
\165\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159 (Nov. 27, 2020).
\166\ See id. at 76173; cf. Gen. Motors, LLC; Grant of Petition
for Decision of Inconsequential Noncompliance, 78 FR 35355-01, 2013
WL 2489784 (June 12, 2013) (finding noncompliance inconsequential
where ``occupant classification system will continue to operate as
designed and will enable or disable the air bag as intended'').
\167\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159, 76173 (Nov. 27,
2020); Final Determination & Order Regarding Safety Related Defects
in the 1971 Fiat Model 850 and the 1970-74 Fiat Model 124
Automobiles Imported and Distributed by Fiat Motors of N. Am., Inc.;
Ruling on Petition of Inconsequentiality, 45 FR 2134 (Jan. 10, 1980)
(rejecting argument there was adequate warning to vehicle owners of
underbody corrosion, as the average owner does not undertake an
inspection of the underbody of a vehicle, and interior corrosion of
the underbody may not be visible).
---------------------------------------------------------------------------
NHTSA has been offered no persuasive reason to think that without a
recall, even if current owners are aware of the defect and instant
petition, subsequent owners of vehicles equipped with covered Ford
inflators would be made aware of the issue.\168\ This is not the type
of defect for which notice alone enables an owner to avoid the safety
risk. A remedy is required to address the underlying safety defect.
---------------------------------------------------------------------------
\168\ See Nat'l Coach Corp.; Denial of Petition for
Inconsequential [Defect], 47 FR 49517 (Nov. 1, 1982) (observing,
inter alia, that other manufacturers had conducted recalls for
similar issues in the past, and that, even if current owners were
aware of the issue, subsequent owners were unlikely to be aware
absent a recall).
---------------------------------------------------------------------------
As discussed above, the threshold of evidence necessary to prove
the inconsequentiality of a defect such as this one--involving the
potential performance failure of safety-critical equipment--is very
difficult to overcome.\169\ Ford bears a heavy burden, and the evidence
and argument Ford provides suffers from numerous, significant
deficiencies, as previously described in detail. In all events, the
information that Ford presents in its Petition and subsequent
Presentations to the Agency is inadequate to support a grant of its
Petition.
---------------------------------------------------------------------------
\169\ See Gen. Motors LLC, Denial of Consolidated Petition for
Decision of Inconsequential Defect, 85 FR 76159, 76173 (Nov. 27,
2020).
---------------------------------------------------------------------------
As noted above, at various points Ford's Petition appears to focus
on differentiating the covered Ford inflators from the covered Nissan
inflators--not directly answering the question of whether the defect in
the covered Ford inflators is, on its own merits, inconsequential to
motor vehicle safety. Ford similarly argued in subsequent materials
that the covered
[[Page 6963]]
Ford inflators compared favorably to another inflator variant of the
same type, and even to non-desiccated inflators. These comparisons do
not suffice for an inconsequentiality determination. Relatedly, Ford's
argument regarding design differences does not suffice to support an
inconsequentiality determination. This argument, furthermore, was not
persuasively connected to meaningful improved performance in generate-
properties and pressure differences (and even if it had been, the
covered Nissan inflators are not an appropriate proxy standard for
inconsequentiality). The sample sizes used for the analyses were also
limited, and there are shortcomings regarding various analyses that
undermine their conclusions--including some information was missing or
unclear.
As a general matter, signs of aging were observed in the covered
Ford inflators, which leads to propellant degradation, which leads to
inflator rupture--and the 2004 propellant that is present in the
covered Ford inflators degrades until, at some point, it no longer
burns normally, but in an accelerated and unpredictable manner that can
cause an inflator rupture. Perhaps most importantly, even with the
limited testing evidence available, ballistic testing of field returns
of the covered Ford inflators includes three inflator deployments with
primary-chamber pressures between 60 and 70 MPa--coming from two ZQ
inflators with a field age between 12 and 13 years (one of which
exhibited a pressure of 68 MPa), and one ZN inflator with a field age
between 10 and 11 years. Data from the MEAF also appears to indicate
the beginning stages of density changes in propellant tablets in the
covered Ford inflators with increasing field age. These results from
real-world field returns signal that propellant degradation in the
covered Ford inflators is occurring, and belie the probability-of-
failure projections that Ford provides (which have their own additional
shortcomings that lead to an understatement of the potential risk).
Given the severity of the consequence of propellant degradation in
these air bag inflators--the rupture of the inflator and metal shrapnel
sprayed at vehicle occupants--a finding of inconsequentiality to safety
demands extraordinarily robust and persuasive evidence. What Ford
presents here, while valuable and informative in certain respects,
suffers from far too many shortcomings, both when the evidence is
assessed individually and in its totality, to demonstrate that the
defect in covered Ford inflators is not important or can otherwise be
ignored as a matter of safety.
In consideration of the forgoing, NHTSA has decided Ford has not
demonstrated that the defect is inconsequential to motor vehicle
safety. Accordingly, Ford's Petition is hereby denied, and Ford is
obligated to provide notification of, and a remedy for, the defect
pursuant to 49 U.S.C. 30118 and 30120. Within 30 days of the issuance
of this decision, Ford shall submit to NHTSA a proposed schedule for
the notification of vehicle owners and the launch of a remedy required
to fulfill those obligations.
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.
Jeffrey Mark Giuseppe,
Associate Administrator for Enforcement.
[FR Doc. 2021-01540 Filed 1-22-21; 8:45 am]
BILLING CODE 4910-59-P