By Colleen Kave, J.D.
The National Highway Traffic Safety Administration (NHTSA) has issued an Enforcement Guidance Bulletin to inform the public of the circumstances under which the agency would consider invoking Paragraph 17 of the May 4, 2016, amendment to the November 3, 2015, Consent Order with TK Holdings Inc. (Takata), as well as to provide guidance on the standards and criteria that would guide such decision-making. The amended Consent Order expanded and accelerated the recall of Takata air bag inflators, and Paragraph 17 of that document sets forth a procedure under which the recall schedule may be modified or amended (NHTSA Notice, 81 FR 47854, July 22, 2016).
The amended Consent Order required Takata to make a series of safety defect decisions that would support vehicle manufacturer recall campaigns of an additional 35-40 million air bag inflators. The expanded recall was scheduled to unfold in five phases between May 2016 and December 2019 and would be structured around prioritization of risk determined by the age of the inflators and the climate in which vehicles are operated. The amendment also established a procedure for modifying or amending the recall schedule. More specifically, Paragraph 17 provided that NHTSA may alter the schedule and defer the recall of certain inflator types or vehicles to a later date based on the presentation of additional test data, analysis, or other relevant and appropriate evidence by Takata, an automobile manufacturer, or any other credible source. Any such evidence must be submitted to NHTSA no later than one-hundred twenty days before the relevant Defect Information Report (DIR) filing date.
However, NHTSA believed it was important to provide additional guidance on the process and conditions under which it would consider altering the recall schedule to modify or amend a DIR or defer the filing of a DIR, as well as guidance on the standards and criteria that would guide such decision-making. The agency asserted that this process would not be used to expedite or expand the DIR schedule, nor would it be used to eliminate a population of vehicles from the recall. The Enforcement Guidance Bulletin details how Takata, a vehicle manufacturer, or other credible source may petition the agency for a modification or amendment to the DIR schedule; the process by which NHTSA will publish notice of the petition and invite public comments; the method by which the grant or denial of a petition will be issued to the petitioner and the standard of proof the agency will employ; and the requirements for appeal of the agency’s decision.
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