[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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \73\ 49 U.S.C. 30118(d), 30120(h).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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


