In yet the latest abrupt and sudden shift in regulatory approach and tactics, NHTSA is finally asking tough questions of Takata and auto manufacturers regarding its exploding airbag defect. Earlier this year regulators made similarly abrupt transitions from deferential treatment to a more stringent inquiry in the General Motors ignition switch recall and the unreported changes to Trinity Industries ET-Plus guardrails. Such actions by federal regulators are not only extremely overdue, but they are also an extremely welcome change from the hands-off approach that dominated for much of the 2000s and early 2010s.
The defect was originally thought to be limited to, or at least significantly more likely to occur in, areas and regions of the country where high absolute humidity is present. However, a new occurrence of the defect in South Carolina – a state not included in the zones considered to “have consistently hot, humid conditions over extended periods of time” – has called the comprehensiveness of Takata’s official explanation into question. Federal regulators are now calling for a nationwide recall of all affected vehicles.
According to NHTSA deputy Administrator David Friedman, “We now know that millions of vehicles must be recalled to address defective Takata air bags and our aggressive investigation is far from over. We’re pushing Takata and all affected manufacturers to issue the recall and to ensure the recalls capture the full scope of the problems.”
To pursue this investigation NHTSA has issued a Special order to Takata, a general order to the 10 auto manufactures who utilize Takata driver-side airbags, and a standard recall acknowledgement letter. Responses to both orders are due by December 5th. The remainder of this blog will examine the Orders issued by NHTSA and will identify the information sought by regulators.
Special order issued to Takata
As per 49 USC 30166(g) a NHTSA Special Order is the legal equivalent to a subpoena. This is the second Special Order directed at Takata (also known as and identified as TK Holdings, Inc.). This Order compels Takata to turn over documents, tests and other information regarding the propellant utilized in its airbags. This request is based on the fact that recently Takata has publicly acknowledged for the first time that that chemical composition of the propellant had been changed. Thus the Special Order seeks information regarding both the “Recalled Inflators” and the “Replacement Inflators”, as defined by the Special Order. Other requests for information from Takata and all affiliated companies include:
- The step-by-step process that Takata utilizes to manufacture airbag propellant including its sourcing of chemicals and raw materials for both the original “Recalled Inflators” and the new “Replacement Inflators”.
- A chronology of each change made to the manufacturing process since January 1, 2000.
- The nature of each change made to the manufacturing process since January 1, 2000.
- The name, title, and contact information of Takata employees who designed, developed, or revised any portion of the propellant manufacturing process used by Takata.
- Documents detailing studies or testing of the propellant.
- Internal documents that were identified in the Reuters article, Takata changes chemical compound involved in airbag recalls.
These requests are but a sample of the many detailed and highly specific requests for production being made by NHTSA. If it is provided, this information should help NHTSA determine the nature of the problem and may result in a recall that is expanded yet again.
General Order Issued to Takata and auto manufacturers
A General Order has also been issued to Takata and auto manufacturers who utilize Takata-manufactured which includes:
- General Motors (GM)
Each named party is required to file, under oath, a detailed report and produce relevant documents regarding the testing or planned testing of Takata inflators outside of the designated high absolute humidity (HAH) areas. The requests for testing data are rather detailed and specific and requests information such as:
- The testing location.
- The status of the testing. Is it completed, ongoing, or planned?
- For the vehicle manufacturers only, whether Takata has performed testing of its inflators outside of the HAH zone. If the testing was performed, NHTSA requests details including results and communications regarding the tests.
- The name, title and contact information of all managers & supervisors involved in the investigation and decision0making process for the defective inflators.
- The name, title and contact information of all engineers, lawyers, employees and other individuals who provided input or data regarding testing of inflators outside of the designated HAH regions.
NHTSA believes that this information will help its investigators better understand the risk involved with the defective airbag inflators. Knowing the types of testing that had been performed and the testing data can help regulators and the public make more informed decisions and can potentially prevent additional catastrophic injuries or death.