[Federal Register Volume 88, Number 173 (Friday, September 8, 2023)]
[Notices]
[Pages 62140-62146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19441]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2023-0038]


Initial Decision That Certain Frontal Driver and Passenger Air 
Bag Inflators Manufactured by ARC Automotive Inc. and Delphi Automotive 
Systems LLC Contain a Safety Defect; and Scheduling of a Public Meeting

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

ACTION: Notice of initial decision and public meeting.

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SUMMARY: NHTSA will hold a public meeting regarding its initial 
decision that certain frontal and passenger air bag inflators 
manufactured by ARC and Delphi through January 2018 contain a defect 
related to motor vehicle safety and should be recalled.

DATES: The public meeting will be held at DOT headquarters in 
Washington, DC, beginning at 9:30 a.m. on October 5, 2023.

ADDRESSES: You may submit written submissions to the docket number 
identified in the heading of this document by any of the following 
methods:
    <bullet> Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting 
comments.
    <bullet> Mail: Docket Management Facility: U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
    <bullet> Hand Delivery or Courier: 1200 New Jersey Avenue SE, West 
Building Ground Floor, Room W12-140, between 9 a.m. and 5 p.m. ET, 
Monday through Friday, except Federal holidays.
    <bullet> Fax: 202-493-2251.
    Instructions: All submissions must include the agency name and 
docket number. Note that all written submissions received will be 
posted without change to https://www.regulations.gov, including any 
personal information provided. Please see the Privacy Act discussion 
below. We will consider all written submissions received before the 
close of business on Friday, October 20, 2023.
    Docket: For access to the docket to read background documents or 
written submissions received, go to https://www.regulations.gov at any 
time or to

[[Page 62141]]

1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, 
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays. Telephone: 202-366-9826.
    Privacy Act: In accordance with 49 U.S.C. 30118(b)(1), NHTSA will 
make a final decision only after providing an opportunity for 
manufacturers and any interested person to present information, views, 
and arguments. DOT posts written submissions submitted by manufacturers 
and interested persons, without edit, including any personal 
information the submitter provides, to www.regulations.gov, as 
described in the system of records notice (DOT/ALL-14 Federal Docket 
Management System (FDMS)), which can be reviewed at 
www.transportation.gov/privacy.
    Confidential Business Information: If you wish to submit any 
information under a claim of confidentiality, you must submit your 
request directly to NHTSA's Office of the Chief Counsel. Requests for 
confidentiality are governed by 49 CFR part 512. NHTSA is currently 
treating electronic submission as an acceptable method for submitting 
confidential business information (CBI) to the agency under part 512. 
If you would like to submit a request for confidential treatment, you 
may email your submission to Ashley Simpson in the Office of the Chief 
Counsel at <a href="/cdn-cgi/l/email-protection#7332001b1f160a5d201a1e03001c1d33171c075d141c05"><span class="__cf_email__" data-cfemail="cd8cbea5a1a8b4e39ea4a0bdbea2a38da9a2b9e3aaa2bb">[email protected]</span></a> or you may contact her for a secure 
file transfer link. At this time, you should not send a duplicate 
hardcopy of your electronic CBI submissions to DOT headquarters. If you 
claim that any of the information or documents provided to the agency 
constitute confidential business information within the meaning of 5 
U.S.C. 552(b)(4), or are protected from disclosure pursuant to 18 
U.S.C. 1905, you must submit supporting information together with the 
materials that are the subject of the confidentiality request, in 
accordance with part 512, to the Office of the Chief Counsel. Your 
request must include a cover letter setting forth the information 
specified in our confidential business information regulation (49 CFR 
512.8) and a certificate, pursuant to Sec.  512.4(b) and part 512, 
appendix A. In addition, you should submit a copy, from which you have 
redacted the claimed confidential business information, to the Docket 
at the address given above.

FOR FURTHER INFORMATION CONTACT: Ashley Simpson, Office of the Chief 
Counsel, National Highway Traffic Safety Administration, 1200 New 
Jersey Avenue SE, Washington, DC 20590; (202) 366-8726. Persons wishing 
to attend the public meeting or make oral statements must register at 
https://www.nhtsa.gov/events/public-meeting-arc-delphi-air-bag-inflators before the close of business on September 22, 2023. Please 
refer to the supplementary information section for additional 
information on registering for the public meeting.
    The publicly available information on which this initial decision 
is based will be available on the agency's website at https://www.nhtsa.gov/recalls?nhtsaId=EA16003, https://www.nhtsa.gov/recalls?nhtsaId=PE15027, and on the public docket under Docket No. 
NHTSA-2023-0038.

SUPPLEMENTARY INFORMATION: Pursuant to 49 U.S.C. 30118(a) and 49 CFR 
554.10, NHTSA has made an initial decision that certain frontal driver 
and passenger air bag inflators manufactured by ARC Automotive Inc. 
(ARC) and Delphi Automotive Systems LLC (Delphi) through January 2018 
contain a defect related to motor vehicle safety. These air bag 
inflators may rupture when the vehicle's air bag is commanded to 
deploy, causing metal debris to be forcefully ejected into the 
passenger compartment of the vehicle. A rupturing air bag inflator 
poses an unreasonable risk of serious injury or death to vehicle 
occupants. At least seven people have been injured and one person has 
been killed by these rupturing air bag inflators within the United 
States. Based on its investigation, NHTSA believes that ruptures may 
result from the weld slag produced by the friction welding 
manufacturing process. Should weld slag of a sufficient size become 
dislodged, it can cause a blockage of the inflator exit orifice when 
the air bag deploys. A blockage of sufficient size will cause an over 
pressurization and rupture of the inflator, leading to the potential 
forced propulsion of shrapnel or metal fragments from the inflator into 
the passenger compartment. Additional inflator ruptures are expected to 
occur in the future, risking more serious injuries and deaths, if they 
are not recalled and replaced.

A. Inflators Subject to This Initial Decision

    The inflators subject to this initial decision are hybrid, toroidal 
inflators manufactured by ARC and Delphi for use in driver and 
passenger air bag modules, subsequently incorporated into passenger 
vehicles. ARC has been manufacturing driver hybrid, toroidal inflators 
since 2000. In July 2001, ARC granted Delphi a license to manufacture 
driver inflators for use in Delphi's driver air bag modules.\1\ Delphi 
stopped manufacturing the inflators in 2004, having manufactured 
approximately 11 million inflators under the agreement. ARC continued 
to manufacture the driver inflators and began to manufacture passenger 
inflators in 2010. In January 2018, ARC fully implemented an automated 
borescope examination process on its production lines that manufactured 
toroidal inflators, which is used to detect excessive weld slag or 
other debris in the inflator center support, mitigating the risk of a 
field rupture due to exit orifice blockage. The agency is unaware of a 
field rupture of a frontal hybrid, toroidal inflator manufactured after 
the implementation of the borescope examination process.
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    \1\ The Delphi entity that manufactured these inflators no 
longer exists. NHTSA indicated in its April 27, 2023 recall request 
letter that it was acquired by Autoliv ASP, Inc. (``Autoliv''). 
Autoliv has since provided NHTSA with some information indicating 
that it may not have legal liability for the Delphi-manufactured 
inflators. At this time, NHTSA has not verified the entity that has 
legal responsibility under 49 U.S.C. Chapter 301 for those 
inflators. However, as described herein, the vehicle manufacturers 
that used the inflators as original equipment would be responsible 
for carrying out any recalls.
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    Therefore, the inflators subject to this initial decision are the 
approximately 41 million frontal hybrid, toroidal driver and passenger 
inflators manufactured by ARC from 2000 through the implementation of 
the borescope examination process in January 2018, and the 
approximately 11 million driver hybrid, toroidal inflators manufactured 
by Delphi under its licensing agreement with ARC.\2\ For simplicity, 
the inflators subject to this initial decision are described as the 
``subject inflators.'' The subject inflators were incorporated into air 
bag modules used in vehicles manufactured by 12 vehicle manufacturers: 
BMW of North America, LLC, FCA US LLC, Ford Motor Company, General 
Motors LLC, Hyundai Motor America, Inc., Kia America, Inc., Maserati 
North America, Inc., Mercedes-Benz USA LLC, Porsche Cars North America, 
Inc., Tesla Inc., Toyota Motor North America, Inc., and Volkswagen 
Group of America, Inc.
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    \2\ NHTSA's April 27, 2023 recall request letter estimated the 
number of subject inflators as approximately 67 million. Since that 
time, NHTSA has lowered its estimate of the population to 
approximately 52 million inflators, correcting for over-inclusive 
responses reported to the agency by certain manufacturers over the 
course of the investigation. The exact population of inflators and 
vehicles (including the specific vehicle makes, models, and model 
years) subject to any recall that may result will be determined by 
the manufacturers. See 49 CFR 573.6(c)(3).

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[[Page 62142]]

B. Known Inflator Ruptures Resulting in Death and Injuries

    The agency is currently aware of seven confirmed subject inflator 
ruptures in the United States. These seven ruptures involve both single 
stage and dual stage air bag inflators (as explained below), inflators 
manufactured at different times and in three different manufacturing 
facilities, and inflators incorporated into air bag modules by four 
different module suppliers and used in four different vehicle 
manufacturers' vehicles:
    <bullet> On January 29, 2009, a driver side air bag inflator 
ruptured in a Model Year (MY) 2002 Chrysler Town and Country minivan in 
Ohio. The air bag module was produced by Key Safety Systems, Inc. later 
d/b/a Joyson Safety Systems and used a dual stage ARC inflator. The 
inflator was manufactured in Knoxville, Tennessee. The driver was 
severely injured during the incident.
    <bullet> On April 8, 2014, a driver side air bag inflator ruptured 
in a MY 2004 Kia Optima in New Mexico. The air bag module was 
manufactured by Delphi and had a single stage ARC inflator. The 
inflator was manufactured in Knoxville, Tennessee. The driver sustained 
injuries to the face and legs.
    <bullet> On September 22, 2017, a driver side air bag inflator 
ruptured in a MY 2010 Chevrolet Malibu in Pennsylvania. The air bag 
module was produced by ZF-TRW and used a dual stage ARC inflator. The 
inflator was manufactured in Xian, China. The driver sustained injuries 
to the face and head.
    <bullet> On August 15, 2021, a driver side air bag inflator in a MY 
2015 Chevrolet Traverse ruptured in Michigan. The air bag module was 
produced by Toyoda Gosei and used a dual stage ARC inflator. The 
inflator was manufactured in Reynosa, Mexico. The air bag module was a 
replacement module. The vehicle had been in a prior frontal collision 
and the original air bag module deployed with no issue. The original 
air bag module was also produced by Toyoda Gosei and used a dual stage 
ARC inflator. The driver was killed.
    <bullet> On October 20, 2021, a driver side air bag inflator in a 
MY 2015 Chevrolet Traverse ruptured in Kentucky. The air bag module was 
produced by Toyoda Gosei and used a dual stage ARC inflator. The 
inflator was manufactured in Reynosa, Mexico. The driver sustained 
injuries to the face.
    <bullet> On December 18, 2021, a passenger side air bag inflator 
ruptured in a MY 2016 Audi A3 e-Tron in California. The air bag module 
was produced by Key Safety Systems, Inc. d/b/a Joyson Safety Systems 
and used a dual stage ARC inflator. The inflator was manufactured in 
Reynosa, Mexico. The driver and passenger were injured.
    <bullet> On March 22, 2023, a driver side air bag inflator in a MY 
2017 Chevrolet Traverse ruptured in Michigan. The air bag module was 
produced by Toyoda Gosei and used a dual stage ARC inflator. The 
inflator was manufactured in Reynosa, Mexico. The driver sustained 
injuries to the face.
    NHTSA is also aware of at least two confirmed field ruptures 
outside of the United States, again involving the same universe of 
inflators of varying origins and uses:
    <bullet> On July 11, 2016, a driver side air bag inflator ruptured 
in a MY 2009 Hyundai Elantra in Canada. The air bag module was produced 
by Mobis and used a single stage ARC air bag inflator. The inflator was 
manufactured in Xian, China. The driver was killed.
    <bullet> On October 16, 2017, a passenger side air bag inflator 
ruptured in a MY 2015 Volkswagen Golf in Turkey. The air bag module was 
produced by Key Safety Systems, Inc. later d/b/a Joyson Safety Systems 
and used a single stage ARC inflator. The inflator was manufactured in 
Knoxville, Tennessee. The driver sustained no injuries. There was no 
passenger in the vehicle.

C. Background Regarding Air Bags

    Air bags are safety equipment designed to protect vehicle occupants 
in the event of a crash. Air bags have been used in passenger vehicles 
since the 1970s and were mandated by NHTSA in 1991. All new vehicles 
were required to have frontal air bags by September 1998. Paired with 
seat belts, air bags control the movement of the occupant's upper body 
and head during a moderate to severe crash--defined as a frontal or 
near-frontal impact with a solid, fixed barrier at 8 to 14 mph or 
higher. Upon such an occurrence, a signal to the air bag system's 
electronic control unit initiates the ignition of the inflator 
propellant to generate the gas to immediately fill the air bag cushion.
    The subject inflators are hybrid, toroidal inflators. A hybrid 
inflator uses stored gas that is excited by the propellant to fill the 
air bag cushion. Toroidal inflators are round, non-cylindrical 
inflators. The subject inflators include both single stage and dual 
stage inflators. Single stage inflators deploy at a preset speed and at 
full force. Dual stage inflators deploy at two different stages 
depending on the size of the occupant as measured by the load sensor in 
the front seat and the severity of the impact.\3\ The subject inflators 
were incorporated into air bag modules produced by multiple suppliers. 
The air bag ``inflator'' is a component of the air bag ``module''--the 
inflator is the part that generates the gas that fills the air bag 
cushion. The air bag module is typically comprised of a mounting 
bracket, inflator, cushion (bag that fills with gas), cover (the 
decorative part that matches the interior of the vehicle), and 
connecting wires.
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    \3\ The two inflation stages can deploy sequentially or 
simultaneously. Typically, the first stage is approximately 80% of 
the full force of the air bag, and the second stage is approximately 
20% of the full force of the air bag. The second stage can deploy 
simultaneously with the first stage should the severity of the 
impact warrant dual deployment. The second stage can deploy 
subsequent to the deployment of the first stage for lower severity 
impacts.
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    Although air bags, when properly deployed, provide significant 
safety benefits--NHTSA estimates that frontal air bags have saved more 
than 50 thousand lives over the past 30 years--the rupture of an air 
bag inflator during deployment is rare and extremely dangerous. 
Although the incidence of rupture is rare, NHTSA and the industry have 
acted to address confirmed ruptures through recalls. Other confirmed 
inflator field ruptures in the United States, excluding illegal 
counterfeit products, have resulted in recalls.\4\ There is widespread 
acceptance in the industry that rupturing air bag inflators are safety 
defects requiring a recall.\5\
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    \4\ In the largest air bag inflator recall, TK Holdings, Inc. 
(Takata) issued recalls after determining that certain driver and 
passenger inflators ruptured when activated. See, e.g., 15E-040, 
15E-041, 15E-042, 15E-043. In fact, NHTSA's recall request letter to 
Takata identified six inflator ruptures, one less than identified 
here. In that case, the safety defect was degradation of propellant. 
Takata subsequently recalled certain non-azide driver inflators 
(NADI) due to rupture risk caused by excess moisture in the 
propellant. 19E-080. Other inflator ruptures have also been 
addressed through recalls. In 2021, Key Safety Systems, Inc. d/b/a 
Joyson Safety Systems recalled certain curtain air bag inflators 
which carried a risk of rupture due to moisture corrosion. 21E-080. 
In 2021, FCA recalled certain Mopar side curtain air bag inflators 
for risk of separated inflator cap or rupture. 21E-740. Volvo Car 
USA, LLC conducted a recall in 2021 of certain vehicles equipped 
with inflators manufactured by ZF North America, Inc. for 
susceptibility to rupture due to excess moisture and propellant 
degradation. See 21V-766, 21V-800.
    \5\ Failure of an air bag module to deploy in a crash when it 
should have deployed also puts vehicle occupants at risk and 
therefore has resulted in recalls. See, e.g., 22V-031. The severity 
of risk of a module that ruptures is even greater in that it not 
only fails to protect vehicle occupants from crash forces, but 
itself becomes the cause of injury or death by shooting metal 
shrapnel into the occupant compartment.

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D. Legal Background on Safety Defects and Recall Responsibilities

    The National Traffic and Motor Vehicle Safety Act (Safety Act), as 
amended, requires manufacturers to conduct a recall for safety defects 
in motor vehicles and motor vehicle equipment. See 49 U.S.C. 30118-20. 
Specifically, a manufacturer must notify NHTSA, owners, dealers, and 
distributors of any ``defect . . . related to motor vehicle safety.'' 
49 U.S.C. 30118. The Safety Act defines ``defect'' as ``includ[ing] any 
defect in performance, construction, a component, or material of a 
motor vehicle or motor vehicle equipment.'' 49 U.S.C. 30102(a)(2). 
``Motor vehicle safety'' means ``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.'' Id. Sec.  30101(a)(8). A 
safety defect therefore may be determined to exist without knowing its 
precise cause.
    A motor vehicle or component contains a ``defect'' if it is subject 
to a significant number of failures in normal operation. See United 
States v. General Motors Corp., 518 F.2d 420, 427 (D.D.C. 1975). To 
establish that a significant number of failures exists, the agency need 
only show that the figure is more than de minimis. See id. at 438 n.84. 
The agency must also show that the failure condition occurred under 
circumstances which, in the absence of a defect, would not have 
occurred. See United States v. General Motors Corp., 841 F.2d 400, 412 
(D.C. Cir. 1988).
    Any safety defect determination, whether made by NHTSA or by a 
manufacturer, requires notification to owners pursuant to 49 U.S.C. 
30119 and a free remedy pursuant to 49 U.S.C. 30120. Under the Safety 
Act, an air bag inflator installed in a new vehicle is original 
equipment. See id. Sec.  30102(a)(8), (b)(1)(C). For recall purposes, 
``a defect in original equipment . . . is deemed to be a defect . . . 
of the motor vehicle in which the equipment was installed at the time 
of delivery to the first purchaser.'' Id. Sec.  30102(b)(1)(F).
    When a safety defect exists in original equipment used by more than 
one vehicle manufacturer, as in this case, the equipment supplier and 
each vehicle manufacturer must notify the agency by filing a recall 
report pursuant to 49 CFR part 573. 49 CFR 573.3(f). Vehicle 
manufacturers are then generally responsible for carrying out recalls 
for their vehicles containing defective parts, such as air bag 
inflators, by notifying vehicle owners and providing a free remedy. See 
49 U.S.C. 30102(b)(1)(F), 30118-20. An equipment manufacturer is 
responsible under the Safety Act for recalling its replacement 
equipment. See id. 30118. Replacement equipment is ``motor vehicle 
equipment . . . that is not original equipment.'' Id. Sec.  
30102(b)(1)(D).

E. The Agency's Investigation

    On July 13, 2015, NHTSA's Office of Defects Investigation (ODI) 
opened a Preliminary Evaluation (PE) defect investigation, identified 
as PE15-027, to investigate an alleged safety defect in hybrid, 
toroidal inflators designed and manufactured by ARC \6\ for use in 
vehicles sold or leased in the United States.
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    \6\ Approximately 11 million of the subject inflators were 
designed by ARC but manufactured by Delphi.
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    NHTSA's investigation was prompted by reports of driver air bag 
inflator ruptures in a MY 2002 Chrysler Town & Country and a MY 2004 
Kia Optima. Both vehicles were equipped with inflators manufactured by 
ARC in Knoxville, Tennessee. During the PE phase of the investigation, 
NHTSA obtained information from ARC identifying the air bag module 
manufacturers to which it supplied inflators during the time period of 
June 2000 through October 2004. The time frame for the initial inquiry 
was bracketed by the date that ARC commenced production of the hybrid 
toroidal inflator and the build date of the Kia Optima. NHTSA then 
obtained information from the module manufacturers to identify the 
vehicle manufacturers that used the inflators.
    NHTSA also ordered vehicle and inflator manufacturers, including 
ARC, to report to the agency information related to any inflator field 
ruptures.\7\ Standing General Order (SGO) 2015-02. The agency also 
began to work with the involved manufacturers to conduct a field 
recovery program to better understand the potential failure modes.
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    \7\ The term field rupture refers to an inflator rupture that 
occurs when a vehicle is in a crash.
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    On July 11, 2016, the ARC-manufactured inflator in a MY 2009 
Hyundai Elantra ruptured in Canada. That rupture, which resulted in a 
fatality, prompted ODI's upgrade of the investigation to the 
Engineering Analysis phase, then identified as EA16-003, on August 4, 
2016. The ruptured inflator was manufactured by ARC in Xian, China. ARC 
confirmed that the ruptured inflator was substantially similar to the 
inflator at issue in the prior Kia Optima rupture in that the inflators 
underwent the same assembly and manufacturing process.
    The agency continued its investigation, issuing information request 
letters to the manufacturers and issuing Standing General Order 2016-
01. Standing General Order 2016-01 requires ARC to notify the agency of 
an inflator rupture occurring during a lot acceptance test,\8\ 
hydroburst test,\9\ or assembly line gas fill.\10\ This initial 
notification must be made within 24 hours of ARC's notice of such an 
event. The order also requires ARC to make additional reporting about 
the rupture as its investigation into such a rupture progresses. SGO 
2016-01 was superseded by SGO 2017-01, which revised the reportable 
rupture incidents to include only those occurring during lot acceptance 
tests.
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    \8\ A lot acceptance test refers to the random testing of 
completed air bag inflators. This test is conducted at the 
beginning, middle, and end of a manufacturing shift, or at any time 
the assembly line is shifted to production of a different part. If 
an inflator ruptures or fails in some way during a lot acceptance 
test, the entire lot of inflators is quarantined. The term ``lot'' 
refers to the number of inflators that were manufactured in an 
identified manufacturing plant on a specific assembly line for a 
specific shift.
    \9\ A hydroburst test is a destructive examination of the 
strength of the inflator housing. An inflator subject to a 
hydroburst test is filled with water until its housing fails. The 
housing is instrumented to measure the water pressure attained. An 
inflator that bursts prior to attaining the pressure specifications 
for its housing fails the test.
    \10\ An assembly line gas fill refers to the process of filling 
the inflator with compressed gas. During that process, ruptures may 
occasionally occur when the compressed gas is exposed to the heat 
generated during the gas fill and welding of the burst disc.
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    Since issuing these Standing General Orders, vehicle manufacturers 
have confirmed and reported to the agency five additional field 
ruptures in the United States involving the subject inflators. To date, 
manufacturers have generally conducted small lot-specific recalls to 
address inflator ruptures.\11\ In May 2023, General Motors LLC also 
initiated a recall to address a somewhat broader scope of vehicles by 
model and model year.\12\ The vast majority of the subject inflators 
covered by this notice are not covered by these existing recalls.
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    \11\ See Recalls 17V-189, 17V-529, 19V-019, 21V-782, 22V-246, 
22E-040, and 22V-543. These recalls collectively cover a population 
of 6,289 vehicles and 74 service parts.
    \12\ See Recall 23V-334. This recall covers 995,085 MY 2014-2017 
Buick Enclave, Chevrolet Traverse, and GMC Acadia vehicles.
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    NHTSA's investigation revealed a potential failure mechanism most 
likely causing the ruptures. ARC designed and manufactured the subject 
inflators using a method called friction welding to join

[[Page 62144]]

the inflator upper and lower pressure vessels. The friction welding 
process, in some circumstances, produced excess weld slag, which, if 
loose, will be propelled toward the inflator exit orifice during an air 
bag deployment, along with any other debris in the inflator center 
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support. As explained in the agency's recall request letter to ARC:

ARC's inflator design is such that during a triggered deployment, 
the stored gas, excited by the propellant, has a single path through 
the exit orifice to exit the inflator and fill the air bag cushion. 
Should any debris of sufficient size be in the inflator center 
support, the exit orifice could become blocked. Blockage of the exit 
orifice could cause over pressurization of the air bag inflator. 
Over pressurization of the inflator has the potential to cause it to 
rupture resulting in metal fragments being forcefully propelled into 
the passenger compartment.

    NHTSA's April 27, 2023 Recall Request Letter to ARC, page 2. This 
occurrence can lead to injury or death of the vehicle occupants in what 
would otherwise be a normal and safe air bag deployment.
    ARC took steps to address this issue in January 2018, when it 
completed the borescope installation on its toroidal inflator 
manufacturing lines. The borescope examination process effectively 
allows ARC to detect the occurrence of excess weld slag or other debris 
in its inflators, and there are no known field ruptures in ARC's 
hybrid, toroidal inflators manufactured after January 2018. However, 
prior to the implementation of the borescope inspections, ARC and 
Delphi collectively manufactured and sold approximately 52 million 
subject inflators for use in vehicles sold or leased in the United 
States that may contain excess slag.
    NHTSA continued its investigation, with further testing and 
coordination with the involved manufacturers, to determine appropriate 
next steps to address the risk associated with these inflators. A field 
recovery program of the subject inflators concluded in April 2018, in 
which subject inflators in MY 2001-2005 vehicles were collected from 
salvage yards and tested at ARC's Knoxville facility. None of the over 
900 inflators ruptured in that testing program.
    Further work determined that any loose debris in the center support 
will follow the air flow during a deployment to exit through the center 
support exit orifice. If the debris is smaller than the exit orifice, 
the debris will not block the airflow and result in a rupture. However, 
if the debris is larger than the diameter of the exit orifice, it will 
not be able to pass through the exit orifice, causing a blockage. A 
blockage of sufficient size will lead to an over pressurization of the 
inflator that results in an inflator rupture.
    Despite no ruptures observed in the field recovery program testing 
of inflators removed from MY 2002-2005 vehicles and described above, 
manufacturers subsequently reported and confirmed three field ruptures 
of the subject inflators in 2021. The agency continued its 
investigation and although 2022 passed with no known incidents, another 
field rupture occurred in March 2023.

F. The Agency's April 2023 Request That ARC Conduct a Recall

    After learning of a March 22, 2023, driver-side air bag inflator 
rupture in a MY 2017 Chevrolet Traverse in Michigan, in which the 
driver was injured, the agency determined that the then current 
response to the incidents (lot recalls) was insufficient and advised 
ARC by letter on April 27, 2023 of its tentative conclusion that the 
subject inflators pose an unreasonable risk of death and injury and 
therefore contain a safety-related defect within the meaning of the 
Safety Act. The earlier lot recalls were insufficient to address the 
safety risk, as new ruptures continued to occur outside of the recalled 
populations. In the April 27, 2023 letter, ODI requested that ARC 
initiate a recall of all subject inflators, in accordance with 49 
U.S.C. 30118-20. In its May 11, 2023 response to ODI, ARC declined to 
submit a Part 573 recall report for the subject inflators, arguing that 
the agency lacks sufficient evidence to find the existence of a safety 
defect and minimizing the seven confirmed ruptures in the United States 
as merely ``occasional or isolated failures that are an inevitable part 
of any volume manufacturing process.'' \13\ Additional arguments raised 
by ARC in its response are addressed further below.
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    \13\ See ARC's May 11, 2023 response to NHTSA's Recall Request 
letter, page 2.
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G. Additional Information on the Initial Decision of a Safety Defect

    Based on its investigation, NHTSA has made an initial decision, 
pursuant to 49 U.S.C. 30118(a) and 49 CFR 554.10, that the subject 
inflators contain a safety-related defect. Air bag inflators that 
rupture when commanded to deploy are plainly defective, as they both 
fail to protect vehicle occupants as they should, and, themselves, pose 
an unreasonable risk of serious injury or death to vehicle occupants. 
Air bags are essential and required items of motor vehicle equipment. 
See 49 CFR 571.208. Absent a defect, an air bag inflator inflates the 
air bag, helping to minimize or avoid injury to occupants in a crash. 
An air bag inflator that fails by rupture not only does not perform its 
job as a safety device, but instead actively threatens injury or death, 
even in a crash where the vehicle occupants would otherwise have been 
unharmed. This defect poses an unreasonable risk of injury or death 
from metal fragments forcibly propelled into the passenger compartment 
of a vehicle when the inflator ruptures.
    As explained in NHTSA's April 27, 2023, recall request letter, 
identifying the root cause of the failure is not necessary to make a 
safety defect determination. See United States v. Gen. Motors Corp., 
518 F.2d 420, 432 (D.C. Cir. 1975). A defect can occur in the 
``performance, construction, a component, or material of a motor 
vehicle or motor vehicle equipment.'' 49 U.S.C. 30102(a)(3). Similarly, 
``motor vehicle safety'' is ``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.'' 49 U.S.C. 30102(a)(9). The 
D.C. Circuit explained that ``a determination of `defect' does not 
require any predicate of a finding identifying engineering, 
metallurgical, or manufacturing failures.'' Gen. Motors Corp., 518 F.2d 
at 432.
    Here, NHTSA believes that the evidence does identify a likely 
cause. The manufacture of the subject inflators included a friction 
welding process that in some inflators produces weld slag. Upon normal 
deployment of an air bag in a crash, any debris, if larger than the 5-
millimeter diameter of the exit orifice of the inflator center support, 
can become lodged in that exit orifice and block the air flow required 
to fill the air bag cushion. The inability of the air to exit the 
inflator due to the blocked exit orifice can lead to over 
pressurization of the air bag inflator. The over pressurization can 
lead to a rupture of the air bag inflator. A rupture of the air bag 
inflator will forcefully propel metal fragments into the passenger 
compartment, likely causing significant injury or death to the vehicle 
occupant(s).
    ARC's argument that the root cause ``has not been confirmed,'' or 
purportedly is not the cause of some of the ruptures, is not a reason 
for delaying a recall. ``A determination of `defect'

[[Page 62145]]

may be based exclusively on the performance record of the vehicle or 
component.'' Id. ``[T]he Government need only establish a significant 
number of . . . failures'' where significant is defined as a ``non-de 
minimis number of failures.'' Id. at 438. Here, there is no dispute 
that ARC inflators have repeatedly ruptured and that those ruptures 
have severely injured and killed vehicle occupants.
    While establishing the root cause is unnecessary for a recall 
determination, these ruptures certainly constitute evidence of failure 
in the performance of motor vehicle equipment. The seven ruptures 
confirmed thus far in the United States are not de minimis in equipment 
that is specifically manufactured to save lives and minimize or prevent 
injuries, but instead have caused deaths and injuries in survivable 
crashes. For these reasons, ARC's attempts to distinguish the ruptures 
from each other misses the point. The fact that the subject population 
has experienced seven confirmed ruptures, no matter the root cause, 
warrants the initial determination of a safety defect.
    A failure of an air bag inflator has far more serious safety 
consequences than that of most other vehicle equipment. Therefore, 
fewer failures are necessary to exceed the de minimis threshold. This 
is acknowledged by the industry based on the prior history of recall 
precedents addressing confirmed field ruptures of other air bag 
inflators, as described above.
    ARC inappropriately minimizes the severity of risk from its 
rupturing inflators by describing these events as manufacturing 
anomalies or a part of normal business.\14\ Specifically, ARC 
characterized the ruptures as ``isolated events'' and ``an inevitable 
part of any volume manufacturing process.'' NHTSA rejects any 
suggestion that the seven inflator ruptures are in some way normal or 
to be expected, absent a safety defect. Indeed, the industry has 
recognized the serious safety impact of inflator ruptures even in this 
specific case by conducting the eight recalls that have already 
occurred for parts of the subject inflator population. An inflator that 
explosively ruptures, propelling metal fragments at a high velocity 
into an occupied passenger compartment of a motor vehicle--and into the 
occupants themselves--cannot simply be dismissed as a normal 
manufacturing anomaly, with vehicle owners left uninformed yet bearing 
the risk of the peril they and their occupants face.
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    \14\ ``ARC recognizes, however, that even with appropriate 
industry standards . . . and efforts by manufacturers to minimize 
the risks of failures, the manufacturing processes may not 
completely eliminate the risk of occasional or isolated failures.'' 
ARC June 14, 2023 Special Order Response at 5.
---------------------------------------------------------------------------

    Nor are after-the-fact recalls of sub-populations of the subject 
inflators enough to address the unreasonable risk. The subject air bag 
inflators have repeatedly ruptured in vehicles, injuring and killing 
vehicle occupants. Those rupturing inflators were manufactured at 
different times in plants located in three different countries, used in 
air bag modules manufactured by four different suppliers, and installed 
in vehicles produced by four different manufacturers. New ruptures have 
unpredictably occurred outside the sub-populations of vehicles 
recalled, and it is expected that additional ruptures will occur in the 
future. See United States v. General Motors, 565 F. 2d 754, 758 (D.C. 
Cir. 1977) (``[W]here a defect--a term used in the sense of an `error 
or mistake'--has been established in a motor vehicle, and where this 
defect results in hazards as potentially dangerous as a 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, 
then the defect must be viewed as one `related to motor vehicle 
safety.' '') (footnotes omitted). The Safety Act is preventive, and a 
recall of the subject inflators should not wait for more injuries or 
deaths to occur. See, e.g., United States v. Gen. Motors Corp., 565 
F.2d 754, 759 (D.C. Cir. 1977) (``The purpose of the Safety Act . . . 
is not to protect individuals from the risks associated with defective 
vehicles only after serious injuries have already occurred; it is to 
prevent serious injuries stemming from established defects before they 
occur.'').
    The large size of the subject population involved here does not 
negate the need for a recall. ARC suggested that the rupture risk of 
the subject inflators is properly captured by noting that only 7 of the 
then estimated 67 million subject inflators have been known to rupture, 
concluding that the rupture rate is 7 out of 67 million.\15\ ARC argued 
that--
---------------------------------------------------------------------------

    \15\ As noted above, the estimated population is now corrected 
to approximately 52 million.

the existence of seven (or, more accurately, five) field incidents 
among the 67 million toroidal driver and passenger inflators 
produced for the U.S. market during the 18-year period referenced in 
the RRL across multiple manufacturing lines in different plant 
locations does not support a finding that a systemic and prevalent 
---------------------------------------------------------------------------
defect exists across this population.

    ARC's May 11, 2023 Response to NHTSA's Recall Request Letter, page 
2. However, ARC's use of the entire subject inflator population as the 
baseline results in an inaccurate assessment of the risk. As crashes 
are relatively uncommon events, the vast majority of the subject 
inflators have not experienced a command for deployment, and the defect 
manifests itself only upon air bag deployment. Therefore, the rupture 
rate of the subject inflators is properly estimated as the ratio of 
inflators ruptures to total field air bag deployments--not to the total 
subject inflator population. NHTSA estimates that approximately 
2,600,000 of the subject air bag inflators have deployed in the 
field.\16\ A more accurate representation of the rupture risk of the 
subject inflators is, therefore, 7 out of 2.6 million.
---------------------------------------------------------------------------

    \16\ This estimate assumes that: (1) In any given year, 0.4% of 
the vehicles with subject inflators on the road experience a frontal 
impact with a delta-V of 15 mph or more. (This figure was derived 
from the light trucks in the 2015 Fatality Analysis Reporting System 
(FARS), 2015 General Estimates System (GES), 2016 vehicle 
registration data from S&P Global Mobility's (f/k/a R.L. Polk, Inc), 
and 2015 Crashworthiness Data System.); (2) The subject inflators 
deploy at about a change in velocity of 15 mph, regardless of other 
conditions (such as, in the case of passenger air bags, whether a 
person of a threshold weight is in the passenger seat); and (3) the 
vehicles with subject inflators remain on the road according to the 
average of the car and class 1-2a light truck attrition models from 
NHTSA's 2016 CAFE Model.
---------------------------------------------------------------------------

    Finally, in response to ARC's argument that it was not a proper 
recipient of the recall request letter (which it mischaracterizes as 
``procedurally faulty''), NHTSA notes that its recall request was based 
on ARC's legal obligation to file notice of a safety defect with NHTSA 
(See 49 CFR 573.3(f)) and in accordance with established practice. 
NHTSA previously sent a recall request letter to Takata concerning six 
identified ruptures of its air bag inflators, which ultimately resulted 
in recalls carried out by the vehicle manufacturers that used the 
approximately 67 million defective Takata inflators.\17\ As described 
above, when a safety defect is identified in original equipment 
supplied to more than one manufacturer, the equipment manufacturer and 
each manufacturer of vehicles in which the equipment has been installed 
must file Part 573 recall reports with NHTSA, which are each assigned a 
unique recall number. See 49 CFR 573.3.
---------------------------------------------------------------------------

    \17\ November 26, 2014 Recall Request Letter to TK Holdings 
Inc., https://static.nhtsa.gov/odi/inv/2014/INRM-PE14016-60978.pdf.
---------------------------------------------------------------------------

    To be clear, the vehicle manufacturers that used the subject 
inflators as original equipment would be legally responsible for 
carrying out any recalls of those inflators, including providing notice 
to

[[Page 62146]]

vehicle owners and a free remedy. See 49 U.S.C. 30118-20. That does not 
excuse ARC--the manufacturer and designer of the inflators--from 
complying with its own obligations under the Safety Act and 
regulations.
    To address the risk that additional vehicle occupants will be 
killed and injured from these rupturing inflators, the agency has made 
this initial determination that the subject hybrid, toroidal inflators 
designed by ARC and manufactured by ARC and Delphi from 2000 through 
January 2018 are defective and pose an unreasonable risk of death or 
injury, and therefore should be recalled.
    Pursuant to the Safety Act, NHTSA may make a final decision ``only 
after giving the manufacturer[s] an opportunity to present information, 
views, and arguments showing that there is no defect or noncompliance 
or that the defect does not affect motor vehicle safety. Any interested 
person also shall be given an opportunity to present information, 
views, and arguments.'' 49 U.S.C. 30118(b)(1). If NHTSA makes a final 
decision that the subject inflators contain a safety defect, NHTSA will 
order ARC to comply with the obligation to file notice of the safety 
defect with the agency \18\ and will order the vehicle manufacturers to 
carry out recalls by providing notice and a free remedy. See id. Sec.  
30118(b)(2).
---------------------------------------------------------------------------

    \18\ Any entity determined responsible for the Delphi-
manufactured inflators may also be subject to this order.
---------------------------------------------------------------------------

H. Public Meeting

    Pursuant to 49 U.S.C. 30118(b)(1) and 49 CFR 554.10(b), NHTSA will 
conduct a public meeting, beginning at 9:30 a.m., October 5, 2023, in 
the West Atrium, U.S. Department of Transportation Building, 1200 New 
Jersey Avenue SE, Washington, DC, at which time ARC, the manufacturers 
that used the subject inflators in their vehicles, and other interested 
persons will have an opportunity to present information, views, and 
arguments on the issue of whether the subject inflators contain a 
safety defect. A transcript of the public meeting will be taken.
    The public meeting will also be livestreamed on NHTSA's website. 
The livestream will allow viewing only.
    Interested persons are invited to participate in this proceeding 
through written and/or oral statements. Written submissions must be 
submitted with the docket number identified in the heading of this 
document through the Federal eRulemaking Portal, mail, hand delivery, 
or fax as outlined above before the close of business on Friday, 
October 20, 2023.
    Persons wishing to attend the public meeting or make oral 
statements must register at https://www.nhtsa.gov/events/public-meeting-arc-delphi-air-bag-inflators before the close of business on 
September 22, 2023. Each person wishing to attend must provide his or 
her name, organization, and country of citizenship. Non-U.S. citizens 
must also provide date of birth, title or position, and passport or 
diplomatic ID number, along with expiration date. Media is invited to 
attend in-person or watch the event's livestream. Members of the media 
should register by emailing <a href="/cdn-cgi/l/email-protection#3e70766a6d7f735b5a575f7e5a514a10595148"><span class="__cf_email__" data-cfemail="b2fcfae6e1f3ffd7d6dbd3f2d6ddc69cd5ddc4">[email protected]</span></a> with their name, outlet, 
and attendance preference.
    Anyone wishing to make an oral statement must attend the public 
meeting in person and should specify in registering the amount of time 
that the statement is expected to last. Any exhibits should be 
submitted into the public docket in accordance with the instructions in 
this notice rather than be presented during the public meeting. The 
agency will prepare a schedule of oral statements. Depending upon the 
number of persons who wish to make oral statements and the anticipated 
length of those statements, the agency may limit the length of oral 
statements to ensure the public meeting may be completed on October 5. 
Registrants who request to make oral statements will be notified in 
advance, on or about September 29, 2023, with additional details.
    NHTSA is committed to providing equal access to this event for all 
participants, and people who need accommodations should send a request 
to Carla Bridges, Office of the Chief Counsel, National Highway Traffic 
Safety Administration by email at <a href="/cdn-cgi/l/email-protection#1d5e7c6f717c335f6f74797a786e5d797269337a726b"><span class="__cf_email__" data-cfemail="5516342739347b17273c3132302615313a217b323a23">[email protected]</span></a> before the 
close of business on September 22, 2023.
    This will not be a formal adjudicatory proceeding. There is no 
cross-examination of witnesses.
    Authority: 49 U.S.C. 30118(a), (b); 49 CFR 554.10; delegations of 
authority at 49 CFR 1.50(a) and 49 CFR 501.8.

    Issued on: September 5, 2023.
Cem Hatipoglu,
Acting Associate Administrator for Enforcement.
[FR Doc. 2023-19441 Filed 9-5-23; 4:15 pm]
BILLING CODE 4910-59-P


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