UNITED STATES DEPARTMENT OF TRANSPORTATION 


NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION 


1200 New Jersey A venue, SE 

Washington, DC 20590 

) 

In re: ) 

) 

PE14-016 ) 

Air Bag Inflator Rupture ) 

~~~~~~~~~~~~~~- ) 

PRESERVATION ORDER AND TESTING CONTROL PLAN 

This Preservation Order and Testing Control Plan ("Preservation Order") is issued 

pursuant to the authority ofthe National Highway Traffic Safety Administration ("NHTSA"), an 

operating administration ofthe U.S. Department of Transportation, and hereby requires TK 

Holdings Inc. (hereinafter, "Takata") to preserve certain air bag inflators manufactured by Takata 

that are the subject of an ongoing defect investigation by NHTSA and that may be the subject of 

private litigation, and to implement a control plan for the inspection, testing, or analysis ofthose 

inflators. It is the mutual desire ofNHTSA and Takata to formalize a control plan for the 

preservation and testing ofinflators, in furtherance ofthe safety of vehicle owners, NHTSA's 

ongoing defect investigation, and the interests ofvehicle manufacturers and parties in private 

litigation. 

I. NATURE OF THE ACTION 

1. On June 11, 2014, NHTSA opened a formal defect investigation (Preliminary 

Evaluation, PE14-016) into Takata air bag inflators. 

2. Ten vehicle manufacturers-BMW of North America, LLC ("BMW"); Chrysler 

Group LLC ("Chrysler"); Ford Motor Company ("Ford"); General Motors Company ("General 

Motors"); American Honda Motor Co. ("Honda"); Mazda North American Operations 
("Mazda"); Mitsubishi Motors North America, Inc. ("Mitsubishi"); Nissan North America, Inc. 

("Nissan"); Subaru ofAmerica, Inc. ("Subaru"); and Toyota Motor Engineering & 

Manufacturing North America, Inc. ("Toyota")-are conducting recalls or other safety actions 

(collectively, "safety actions") in the United States to replace certain Takata air bag inflators. 

Those safety actions currently involve replacing Takata air bag inflators of the types designated 

PSDI, PSDI-4, PSDI-4K, SPI, PSPI, and PSPI-L. The procedures agreed to by the vehicle 

manufacturers in conducting these safety actions provide that the inflators that are removed 

through the safety actions are to be shipped to Takata. 

3. Takata acknowledges that after it receives inflators removed through the safety 

actions in the United States described in Paragraph 2, it assumes control over those inflators and 

is the primary source ofthese inflators for further inspection, testing, or analysis. Takata also 

acknowledges that it has within its possession, custody, or control inflators subject to the safety 

actions described by Paragraph 2, which it obtained in a manner other than through removal 

pursuant to those safety actions. The inflators subject to the safety actions described by 

Paragraph 2, whether received by Takata through the safety actions or otherwise obtained by 

Takata, are referred to herein as "recalled or returned inflators." 

4. Takata also acknowledges that it has within its possession, custody, or control 

certain inflators which ruptured prior to being removed in a safety action. These inflators are 

referred to herein as "ruptured inflators." Takata also acknowledges that it has within its 

possession, custody, or control certain ammonium nitrate-containing inflators removed from 

vehicles in the United States not subject to a safety action described in Paragraph 2. These 

inflators are referred to herein as "other ammonium nitrate-containing inflators." 

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5. As the federal agency charged with ensuring the safety of motor vehicles in the 

United States, NHTSA has primary regulatory interest in the safety actions involving Takata 

inflators and in the preservation and testing of inflators in connection with NHTSA' s related 

defect investigation. 

6. Inspection, testing, and analysis of inflators provide information critical to 

NHTSA's defect investigation, including information for, among other things, the purposes of 

evaluating the root cause of inflator ruptures, determining whether the current safety actions are 

sufficient to address the safety risk and to provide an effective remedy to vehicle owners, and 

deciding what, if any, further action is necessary to protect the safety ofvehicle occupants. 

7. Takata acknowledges that NHTSA, as the federal agency charged with ensuring 

the safety ofmotor vehicles in the United States, has primary regulatory interest in the safety 

actions involving Takata inflators and in the preservation and testing of inflators in connection 

with NHTSA's related defect investigation. 

8. In connection with NHTSA's defect investigation, Takata has been inspecting, 

testing, and analyzing recalled or returned inflators, and providing NHTSA with information on 

the testing, including the results ofthe testing. The ten vehicle manufacturers conducting safety 

action~ involving Takata air bag inflators in the United States have also formed a coalition 

intending to perform their own testing of recalled or returned inflators through an independent, 

third-party engineering firm. 

9. Takata inflators are also the subject of ongoing private litigation. To date, over 70 

private lawsuits have been filed alleging harm caused by Takata inflators. Additional lawsuits 

seek recovery for personal injuries allegedly caused by Takata inflators. Many of these lawsuits 

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are now, or are anticipated to be, subject to coordinated or consolidated pretrial proceedings in In 

re: Takata Airbag Products Liability Litigation, Case No. 1:15-md-02599-FAM (S.D. Fla.). 

10. Plaintiffs in private litigation against Takata have expressed interest in conducting 

their own inflator testing, including the possibility of forming a consortium for testing. There is a 

federal interest in ensuring that NHTSA, in the course of its ongoing defect investigation, has 

full access to information on any testing performed on Takata inflators, including by plaintiffs, 

their experts, and any plaintiffs' consortium. 

1 L NHTSA issues this Preservation Order pursuant to its authority under the National 

Traffic and Motor Vehicle Safety Act of 1966, as amended and recodified (the "Safety Act"), 49 

U.S.C. § 30101, et seq., as delegated by the Secretary of Transportation, 49 C.F.R. §§ 1.95, 

501.2(a)(l), to inspect and investigate, 49 U.S.C. § 30166(b)(l), to ensure that defective 

vehicles and equipment are recalled, 49 U.S.C. §§ 30118-30119, to ensure the adequacy of 

recalls, 49 U.S.C. § 30120(c), and to require any person to file reports or answers to specific 

questions, 49 U.S.C. § 30166(g). It is AGREED by Takata and ORDERED by NHTSA as 

follows: 

II. TERMS OF PRESERVATION ORDER 

12. This Preservation Order is not intended to nor shall it interfere with any ongoing 

or future testing or analysis by NHTSA, Takata, vehicle manufacturers, or other third parties, or 

hamper any efforts by NHTSA to coordinate testing results and conduct its defect investigation 

pursuant to its primary regulatory interest in the safety actions involving Takata inflators and in 

the preservation and testing ofinflators in connection with NHTSA's related defect 

investigation. 

13. In cooperation with NHTSA' s defect investigation, Takata shall provide to 

NHTSA, on terms acceptable to NHTSA, information on its inspection, testing, or analysis of the 

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recalled or returned inflators, including but not limited to information on the procedures used for 

such inspection, testing, or analysis and the results of such inspection, testing, or analysis. 

14. Except for testing, inspection, or analysis, as provided by Paragraph 1 7, and 

unless otherwise provided for by the terms ofthis Preservation Order, Takata shall take 

reasonable and appropriate steps designed to prevent the partial or full destruction, alteration, 

deletion, shredding, incineration, or loss of recalled or returned inflators, ruptured inflators, and 

other ammonium nitrate-containing inflators as described by Paragraphs 3-4. Takata shall also 

take reasonable and appropriate steps designed to prevent the partial or full destruction, 

alteration, deletion, shredding, incineration, or loss of documents, data, and tangible things 

reasonably anticipated to be relevant to the subject ofNHTSA's defect investigation, including 

but not limited to all such records and materials associated with Takata's inspection, testing, or 

analysis ofinflators. Takata shall make available and submit to NHTSA upon NHTSA' s request 

all data and other records reflecting the results of Takata's inspection, testing, or analysis of 

inflators and shall respond to any request from NHTSA for the submission of other records and 

materials covered by this Paragraph. 

15. As of the date of execution ofthis Preservation Order by Takata and approval by 

NHTSA, Takata shall: 

a. Secure and preserve all recalled or returned inflators, ruptured inflators, 

and other ammonium nitrate-containing inflators in the United States (as described by 

Paragraphs 3-4) in a manner reasonably designed to ensure that inflators not the subject 

of its testing or analysis are preserved in unaltered form; 

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b. Maintain records that enable Takata to track all recalled or returned 

inflators, ruptured inflators, and other ammonium nitrate-containing inflators (as 

described by Paragraphs 3-4) by unique serial number; 

c. Secure and preserve; in unaltered form, all testing data, video, 

photographs, test results, electronic files and communications related to inflator testing, 

which is in Takata's possession, custody, or control; 

d. Set aside no fewer than 10 percent of all recalled or returned inflators (as 

described by Paragraph 3) currently within Takata's possession; and 

e. Set aside no fewer than 10 percent of all recalled or returned inflators (as 

described by Paragraph 3) which come into Takata's possession after the- date of this 

Preservation Order. 

16. The inflators set aside pursuant to Paragraph 15.d. and e. shall be in proportion to 

the overall number ofrecalled or returned inflators received by Takata from each State (as 

defined by 49 U.S.C. § 30102(a)(10)) and the number ofrecalled or returned inflators from such 

State that fall within each of the types ofinflators subject to the safety actions identified in 

Paragraph 2, including the six inflator types identified in Paragraph 2 or any inflator type 

covered by a future safety action. As is reasonably practicable, the inflators set aside pursuant to 

Paragraph 15.d. and e. shall also include a diversity of inflators, based on factors including but 

not limited to make, model, and model year ofthe vehicles from which they were removed and 

age of inflator. These inflators shall be set aside for the purpose of future inspection, testing, or 

analysis by private plaintiffs (including a consortium thereof, or their experts, consultants, or 

other designated person or entity). 

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17. Inflators other than those set aside pursuant to Paragraph 15.d. and e. may be 

inspected, tested, and analyzed by Takata, BMW, Chrysler, Ford, General Motors, Honda, 

Mazda, Mitsubishi, Nissan, Subaru, Toyota, a coalition ofthose ten vehicle manufacturers, or 

anyone acting on behalf ofthese entities. Such inspection, testing, or analysis, including the 

allocation of inflators for such purposes, shall be subject to NHTSA's regulatory oversight 

pursuant to the Safety Act and all regulations thereunder. 

18. No later than 30 days after execution ofthis Preservation Order by Takata and 

approval by NHTSA, Takata shall submit to NHTSA proposed written protocols for carrying out 

the requirements of Paragraphs 14-17. With respect to Paragraph 15.d. and e., the written 

protocols shall: 

a. Establish a process for a private plaintiff, or a consortium thereof, to seek 

access to inflators for inspection, testing, or analysis by submitting an application to 

Takata; 

b. Require each applicant to certify that the applicant (or the applicant's 

expert, consultant, or other designated person or entity) is qualified safely to handle and 

test inflators in accordance with law and may require the applicant to release Takata from 

any liability associated with applicant's handling and testing of such inflators; 

c. Require each applicant to certify that the applicant has agreed to provide 

information on the inspection, testing, or analysis of Takata inflators to NHTSA by 

signing the attached Exhibit A, a copy ofwhich shall be submitted to Takata in support of 

the application; 

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d. Require each applicant to provide a name, address, phone number, and 

email address for each person responsible for providing information on the inspection, 

testing, or analysis of Takata inflators to NHTSA; 

e. Establish criteria that provide for expeditious approval of an application, 

except for good cause; 

f. Provide for access to inflators as soon as reasonably practicable from the 

date that such access is requested by an applicant, and, subject to availability, 

accommodate the type(s) of inflators requested by the applicant when and as reasonably 

practicable (including by age of inflator and geographic location, make, model, and 

model year ofthe vehicle from which the inflator was removed); 

g. Establish a mechanism for an applicant to obtain available information on 

the type ofinflators provided to the applicant (including age of inflator and geographic 

location, make, model, and model year ofthe vehicle from which the inflator was 

removed); 

h. Ensure that the allocation of inflators to applicants takes into account the 

need to maintain a sufficient quantity ofinflators for future applicants; and 

i. Provide for reporting to NHTSA on the application process, including the 

submission and approval of applications and the provision of access to inflators pursuant 

to such approvals. 

IfNHTSA determines that any changes to the proposed written protocols are warranted, NHTSA 

shall inform Takata in writing of such proposed changes, and Takata shall make prompt and 

reasonable efforts to accommodate NHTSA's feedback. Takata shall provide a revised copy, if 

applicable, ofthe proposed written protocols to NHTSA no later than 5 business days after 

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receiving any such feedback from NHTSA. Upon acceptance by NHTSA of the proposed written 

protocols, NHTSA will make the final written protocols publicly available. The final written 

protocols shall not be subject to attorney-client privilege or attorney work-product protection and 

shall not include confidential business information or information otherwise not subject to public 

disclosure by NHTSA. 

19. Takata shall not release any recalled or returned inflator or ruptured inflator (as 

described by Paragraphs 3-4) to any vehicle manufacturer, private plaintiff, or consortium 

thereof (including their experts, consultants, or other designated person or entity), for inspection, 

testing, or analysis unless that vehicle manufacturer, private plaintiff, or consortium thereof 

accedes to this Preservation Order by signing a copy ofthe attached Exhibit A, requiring 

preservation ofmaterials associated with the inspection, testing, or analysis and provision of 

information on the inspection, testing, or analysis to NHTSA, on terms acceptable to NHTSA. 

20. Takata shall, upon written request by NHTSA, address Takata's compliance with 

this Preservation Order by, at NHTSA's election and in its sole discretion, submitting a written 

report to NHTSA or meeting with NHTSA representatives. 

21. Takata shall provide written notice of each required submission under this 

Preservation Order by electronic mail to NHTSA's Director, Office of Defects Investigation 

(currently Frank Borris, Frank.Borris@dot.gov), and with a copy to NHTSA's Assistant Chief 

Counsel for Litigation and Enforcement (currently Timothy H. Goodman, 

Tim.Goodman@dot.gov). NHTSA will provide notice to Takata ifthe individuals holding these 

positions or their email addresses change. 

22. On demand by NHTSA, Takata shall release into NHTSA's custody any recalled 

or returned inflator or category of intlators subject to this Preservation Order for inspection, 

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testing, or analysis including any recalled or returned inflator or category of inflators otherwise 

required to be set aside pursuant to Paragraph 15.d. and e. Nothing herein shall limit NHTSA's 

ability to carry out its defect investigation. 

III. TIME PERIOD OF PRESERVATION ORDER 

23. Upon NHTSA's closure ofPE14-016 and any Engineering Analysis that may 

follow, the NHTSA Administrator shall issue a written order providing notice of termination of 

this Preservation Order and may issue such a written order earlier, at his sole discretion. This 

Preservation Order shall remain in effect for 90 days following the issuance of that subsequent 

written order ofthe NHTSA Administrator. NHTSA and Takata anticipate that this 90-day term 

will allow parties to any private litigation that remains pending sufficient time to obtain an 

appropriate preservation order. 

IV. AMENDMENT 

24. This Preservation Order cannot be modified, amended, or waived other than by a 

writing agreed to by NHTSA and Takata setting forth such modification, amendment, or waiver. 

NHTSA reserves all authority to take any further action permitted by law. 

V. INTERPRETATION CONSISTENT WITH FEDERAL LAW 

25. Nothing in this Preservation Order shall be interpreted or construed in a manner 

inconsistent with, or contravening, any federal law, rule, or regulation, in effect at the time ofthe 

execution of this Preservation Order by Takata and approval by NHTSA or any subsequent 

amendment. 

VI. MISCELLANEOUS 

26. This Preservation Order does not release Takata from civil or criminal liabilities, 

if any, that may be asserted by the United States, the Department of Transportation, NHTSA, or 

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any other governmental entity. 

27. This Preservation Order shall be effective following its execution by Takata and 

approval by NHTSA and shall remain in effect until such time as the NHTSA Administrator 

issues a notice oftermination pursuant to Paragraph 23 and for a period of 90 days thereafter as 

provided in that paragraph. NHTSA may bring an action against Takata in any United States 

District Court to enforce this Preservation Order, including in response to any material breach by 

Takata of its obligations hereunder. Takata hereby waives any and all objections as to venue in 

such enforcement action and any and all defenses to the enforceability ofthis Preservation Order. 

Nothing herein shall constitute an admission of any wrongdoing or to the jurisdiction ofNHTSA 

as to any other order, proceeding, or demand. 

28. This Preservation Order constitutes the entire agreement regarding the resolution 

ofthe subject matter therein, and supersedes any and all prior or contemporaneous written or oral 

agreements or representations. 

29. This Preservation Order shall be binding upon, and inure to the benefit of, Takata 

and its directors, officers, employees, agents, subsidiaries, successors, and assigns. Takata hereby 

waives any and all defenses to the enforceability ofthis Preservation Order that may exist or 

arise in connection with any person or entity succeeding to the interests or obligations herein, 

including as a result of any changes to the corporate structure or relationships among or between 

Takata and any ofits parents, subsidiaries, or affiliates. 

30. This Preservation Order shall not be construed to create rights in, or grant any 

cause of action to, any individual or entity not party to this Preservation Order, other than as 

expressly provided herein. 

31. If any provision ofthis Preservation Order is held illegal or unenforceable in a 

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judicial proceeding, the remainder ofthis Preservation Order shall remain operative and binding, 

but only ifthe elimination ofthe invalidated provision does not alter the fundamental terms of 

this Preservation Order (including, without limitation, Paragraphs 14-19). 

[SIGNATURE PAGES FOLLOW] 

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APPROVED AND SO ORDERED: 


Dated: February 25, 2015 

Dated: February 25, 2015 

Dated: February 25, 2015 

Dated: February 25, 2015 

NATIONAL HIGHWAY TRAFFIC SAFETY 

ADMINISTRATION, 

U.S. DEPARTMENT OF TRANSPORTATION 

By: \\ORIGINAL SIGNED BY\\ 

Mark R. Rosekind 

:~lltls~~ Lfu± 


0. Kevin Vincent 

Chief Counsel 

By: -F4~ Timothy H. Goodman 

Assistant Chief Counsel 

for Litigation & Enforcement 

By: 

Kerry E. Kolodziej 

Senior Trial Attorney 

13 

AGREED: 


TKHOLDINGS).~C. I\A 

,. , f , 

,,.,,~:- . \.· 

Dated: February 24, 2015 By: ' ; ./\.Al-'\!'----'\'

i " ,< .; 

Frank Roe 

Executive Vice President 

14 

AGREED: 

DECHERTLLP 

Dated: February 24, 2015 By: ~~~,/iwt~~ <f Steven G. Bradbury " 

Dechert LLP 

Outside Counsel 

15 

EXHIBIT A 


ACCESSION TO PRESERVATION ORDER AND TESTING CONTROL PLAN 


I, [Name], am an authorized representative of [Manufacturer, Plaintiff, or Consortium 

Name]. On behalf of [Manufacturer, Plaintiff, or Consortium Name]: 

1. I am aware of and have reviewed the terms ofthe Preservation Order and Testing 

Control Plan, entered on February 25, 2015, by the National Highway Traffic Safety 

Administration ("NHTSA") in In re: PE14-016, Air Bag Inflator Rupture ("Preservation 

Order"). 

2. I acknowledge that NHTSA, as the federal agency charged with ensuring the 

safety ofmotor vehicles in the United States, has primary regulatory interest in the safety actions 

involving Takata inflators and in the preservation and testing ofinflators in connection with 

NHTSA's related defect investigation. 

3. As a condition ofreceiving Takata inflator(s) for inspection, testing, or analysis, 

pursuant to the Preservation Order, I agree to take reasonable and appropriate steps to prevent 

the partial or full destruction, alteration, deletion, shredding, incineration, or loss of documents, 

data, records, and tangible things reasonably anticipated to be relevant to the subject of 

NHTSA's defect investigation, including but not limited to all such materials associated with the 

inspection, testing, or analysis of Takata inflators. I further agree to make available and submit 

to NHTSA upon NHTSA's request all data and other records reflecting the results of inspection, 

testing, or analysis ofinflators and shall respond to any request from NHTSA for the submission 

of other records and materials covered by this Paragraph. 

4. In cooperation with NHTSA's defect investigation, I agree to provide to NHTSA, 

on terms acceptable to NHTSA, information on the inspection, testing, or analysis of Takata 

16 

inflators, including but not limited to information on the procedures used for such inspection, 

testing, or analysis and the results of such testing, inspection, or analysis. 

[SIGNATURE PAGE FOLLOWS] 

17 

EXHIBIT A (FOR A MANUFACTURER) 


AGREED: 

[MANUFACTURER NAME] 

Dated: _____, 2015 By: 

[Name] 

[Title] 

18 

-----

EXHIBIT A (FOR A PLAINTIFF) 


AGREED: 

[PLAINTIFF NAME] 

Dated: , 2015 	 By: 

Plaintiff in [Lawsuit] 

Dated: _____, 2015 	 By: 

Counsel for [Plaintiff] 

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EXHIBIT A (FOR A CONSORTIUM) 

AGREED: 

[CONSORTIUM NAME] 

Dated: , 2015 -----­ By: 

[Name] 

[Title] 

ON BEHALF OF THE FOLLOWING CONSORTIUM MEMBERS: 

[If for a consortium ofvehicle manufacturers, list each vehicle manufacturer which is a 

consortium member. If for a consortium of plaintiffs, list each plaintiff who is a consortium 

member, and identify the name of each plaintiffs counsel and each plaintiffs lawsuit.] 

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