Why Was NHTSA Able to Invoke a Coordinated Vehicle Remedy Program for Takata’s Airbag Defects?

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For the auto industry 2014 was defined not only by the number of serious safety-related vehicle recalls, but also by the sheer scope of the recalls ordered. The two biggest recalls in 2014 were the General Motors ignition switch defect and the Takata exploding airbag inflator defect. Both defects are extremely serious and can increase the likelihood that a driver will suffer fatal injuries in an auto wreck or other collision. In the case of the ignition switch defect, the defective ignition switch increases the risk of a loss of vehicle control thereby making an accident more likely. In the case of the Takata airbag defect, when an accident does occur, the airbag that deploys with too much force can lead to severe bodily injuries or death.

These defects have swept away National Highway Traffic Safety Administration’s (NHTSA) previously deferential approach to the manufactures the agency is supposed to regulate. In its place the agency seems to be taking a more aggressive and direct approach with auto makers and auto parts suppliers. In fact, for the first time in history, NHTSA invoked its authority to impose a coordinated remedy order on Takata and the automakers use Takata inflators in their cars, trucks, and SUVs.

What is the Coordinated Vehicle Remedy Program?

On June 5, 2015, NHTSA first initiated the process that would lead to the issuance of its coordinated remedy order. On that date, the agency instituted a formal administrative proceeding to investigate whether it was appropriate for the agency to proceed with the program. At the time NHTSA requested public comment on its consideration of embarking on a coordinated remedy program. Furthermore, the agency sought information from both the vehicle manufacturers and Takata regarding the problems faced and the organization’s plans to address the defect including plans to obtain the requisite replacement inflators. Meeting were re-convened on September 23 and 24 to analyze the gathered data and to begin to formulate a framework that would address the riskiest defective vehicles first.

Under the Coordinated Vehicle Remedy program, NHTSA may work with the affected parties to formulate a coordinated action plan based on risk-assessment principles. In this case the remedy program considers three factors in determining priority for replacement:

  1. Age of the inflator – older inflators present a greater risk of malfunction due to defect.
  2. Geographic location of the inflator – while the airbag inflator defect can apparently occur in all climates, it is probably most likely to occur in high-humidity climates.
  3. Location of the defective inflator within the vehicle – Inflators located in both the driver-side and passenger-side front airbags are the most likely to present for the defect and rupture.

As such a plan overseen by an independent monitor has been established. If Takata is unable to meet the milestones and targets set forth in the plan, it will become liable for the amounts of the fine that have yet to be triggered.

What is the Legal Authority for NHTSA’s Takata Airbag Remedy Program?

NHTSA derives its generalized authority to regulate from the National Traffic and Motor Vehicle Safety Act of 1966. However, more specifically, the authority to order a coordinated remedy program is derived from the TREAD Act. The TREAD Act was passed in 2000 following the Firestone tire recall and was intended to enact legislation to address many of the lessons learned during that recall. Under the TREAD Act, NHTS has the authority to determine whether vehicle manufactures must accelerate their remedies of potential safety defects. The agency can make such an order when it determines that there is a risk of serious bodily injury or death if the recall is not expedited. Furthermore, the remedy program must be able to be accelerated through an expansion of supply of replacement parts and the remedy is unlikely to be completed in a timely manner without such an accelerated program.

Here, NHTSA findings included:

  • There is a risk of serious bodily injury or death if the proposed remedy program was not accelerated.
    • Each of the defective airbag inflators constitutes an “unreasonable risk of serious injury or death” with seven deaths already reported within the United States.
    • The risk of serious bodily injury or death continues to increase as the issue is more likely to occur as the inflator ages.
  • That the acceleration of each of the manufacture’s remedy programs could be accomplished through the expansion of the supply of replacement parts.
    • Alternative Inflator Suppliers should be available to produce additional airbag inflators beyond Takata’s production capacity.
  • The proposed programs were unlikely to be completed in a timely manner if they were not expedited.
    • Expanding the sources was necessary because NHTSA found that Takata’s October 2015 inflator production would “make up only around thirty percent (30%) of the remedy inflators produced that month.”

The program created four “Priority Groups” which requires vehicle manufactures to ensure a certain number of on-hand replacement parts by certain dates. The first date for priority group one is March 31, 2016. The remedy program must be completed by December 31, 2017 for priority groups 1 through 3. The deadline for group 4 does not occur until the last day of 2019.

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Have You or A Loved One Been Injured or Killed by a Takata Airbag?

The Takata airbag inflator defect can inflict serious life-altering or life-ending injuries. If you or a loved one have been injured in a Philadelphia auto wreck where injuries were made worse by an airbag that deployed with too much force, contact the experienced personal injury lawyers of The Reiff Law Firm today by calling (215) 246-9000 today. For more than 34 years, our experienced lawyers have been trusted by Pennsylvanians and Philadelphians to obtain compensation for serious injuries and wrongful death.

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