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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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On July 31, 2024, the National Highway Traffic Safety Administration (NHTSA) issued a <a href="https://www.federalregister.gov/documents/2024/08/05/2024-17251/supplemental-initial-decision-that-certain-frontal-driver-and-passenger-air-bag-inflators">supplemental initial decision</a> regarding the recall of approximately 49 million airbag inflators manufactured by ARC Automotive Inc. and Delphi Automotive Systems LLC and installed in vehicles in the United States. NHTSA’s supplemental notification follows its September 5, 2023 <a href="https://www.federalregister.gov/documents/2023/09/08/2023-19441/initial-decision-that-certain-frontal-driver-and-passenger-air-bag-inflators-manufactured-by-arc">initial decision</a> finding that the subject airbag inflators contain a defect that poses an unreasonable risk to motor vehicle safety. In its supplemental notice, NHTSA reaffirmed its initial finding and further detailed the basis for its initial decision.

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Specifically, NHTSA’s supplemental initial decision found that the subject airbag inflators are defective because, according to the agency, they have “an established risk of rupturing when commanded to deploy.” The agency maintained its position in the initial decision that the problems leading to the failures may be present throughout the entire population of inflators because, inter alia, the agency “obtained evidence of issues in the friction welding process of the subject inflators that resulted in either over-pressurization or weld failure when the inflators were commanded to deploy.” According to the agency, the inflator manufacturers’ addition of a borescope examination process in the assembly line has mitigated the risk of a field rupture in the subject inflators.  Based on this finding, the agency limited the estimated population of subject inflators to those produced from 2000 through the full implementation of the automated borescope (i.e., between August 2017 and June 2018).

The agency also continued to find that the defect is related to motor vehicle safety because (1) the risk posed by an inflator is severe, and (2) future inflator ruptures are expected. Notably, the agency has updated its statistical calculations in the supplemental initial decision, finding that the rupture rate of the subject inflators is 7 out of 1,349,802 (the initial decision estimated that the rupture rate was 7 out of 2.6 million). The agency’s denominator in the initial supplemental decision was based on its estimate of subject airbag inflators (combined driver-side and passenger-side) that deployed in vehicles from 2000 to 2023. While the agency acknowledged in the supplemental initial decision that the “overwhelming majority of the subject inflators will not rupture upon deployment,” the agency also asserted that “based on the evidence linking past ruptures to the same friction welding process, all of the subject inflators are at risk of rupturing.” Further, according to the agency, the severity of the rupture risk is so high that it renders that risk unacceptable under the Safety Act.

Based on these findings, the agency reaffirmed its position that the alleged defect in the subject airbag inflators presents an unreasonable risk to motor vehicle safety and thus warrants a recall under the Safety Act.

The supplemental initial decision provides interested parties an opportunity to file comments by September 4, 2024.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2024/08/NHTSA-Seeks-Comments-on-Reaffirmed-Airbag-Inflator-Recall-Decision.pdf

NHTSA Seeks Comments on Reaffirmed Airbag Inflator Recall Decision

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