2010-8981. Fuji Heavy Industries USA, Inc., Receipt of Petition for Decision of Inconsequential Noncompliance

Fuji Heavy Industries USA, Inc. (Fuji), on behalf of Subaru of America, Inc., and Fuji Heavy Industries, Ltd., has determined that the front passenger airbag suppression status telltale in some 2010 Subaru Legacy passenger car and Outback multipurpose vehicle models, manufactured from the start of their 2010 model year production ^[1] through June 30, 2009, did not comply with paragraph S19.2.2 of 49 CFR 571.208, Federal Motor Vehicle Safety Standard (FMVSS) No. 208, Occupant Crash Protection. Fuji estimates that less than 1 percent (0.8%) or about 27 out of a total of 3,405 vehicles potentially involved have the noncompliance.^[2] Fuji has filed an appropriate report pursuant to 49 CFR Part 573, Defect and Noncompliance Responsibility and Reports.

Pursuant to 49 U.S.C. 30118(d) and 30120(h), Fuji has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.

This notice of receipt of Fuji's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.

Fuji estimated that 3,405 ^[3] 2010 Legacy passenger cars and Outback multipurpose passenger vehicles, produced at the Company's Subaru Automotive Indiana plant between the start of model year 2010 production through June 30, 2009, are involved. Fuji also estimated that 0.8% of those 3,405 have the subject noncompliance.

Paragraph S19.2.2 of FMVSS No. 208 requires:

S19.2.2 The vehicle shall be equipped with at least one telltale which emits light whenever the passenger air bag system is deactivated and does not emit light whenever the passenger air bag system is activated, except that the telltale(s) need not illuminate when the passenger seat is unoccupied. Each telltale:

(a) Shall emit yellow light;

(b) Shall have the identifying words “PASSENGER AIR BAG OFF” or “PASS AIR BAG OFF” on the telltale or within 25 mm (1.0 in) of the telltale; and

(c) Shall not be combined with the readiness indicator required by S4.5.2 of this standard.

(d) Shall be located within the interior of the vehicle and forward of and above the design H-point of both the driver's and the right front passenger's seat in their forwardmost seating positions and shall not be located on or adjacent to a surface that can be used for temporary or permanent storage of objects that could obscure the telltale from either the driver's or right front passenger's view, or located where the telltale would be obscured from the driver's view if a rear-facing child restraint listed in appendix A or A-1, as appropriate, is installed in the right front passenger's seat.

(e) Shall be visible and recognizable to a driver and right front passenger during night and day when the occupants have adapted to the ambient light roadway conditions.

(f) Telltales need not be visible or recognizable when not activated.

(g) Means shall be provided for making telltales visible and recognizable to the driver and right front passenger under all driving conditions. The means for providing the required visibility may be adjustable manually or automatically, except that the telltales may not be adjustable under any driving conditions to a level that they become invisible or not recognizable to the driver and right front passenger.

(h) The telltale must not emit light except when the passenger air bag is turned off or during a bulb check upon vehicle starting.

Fuji explained that the noncompliance is that front passenger airbag suppression status telltale lamp did not illuminate as required by paragraph S19.2.2 of FMVSS No. 208. Fuji expressed the belief that the cause of the noncompliance is an open circuit in the power supply to the lamp. The Company said that “installation of the wiring harness to the multifunction display and passenger airbag suppression status telltale was routed at the instrument panel subsupplier such that tension was put on the wiring harness connector” which can cause it to come loose. To correct this problem, the Company has re-routed the wiring harness to “push” rather than “pull” on the wiring harness connector in vehicles manufactured after July 10, 2009.

The noncompliance was discovered on July 1, 2009, at the Company's Subaru Indiana plant during a quality inspection process that revealed a number of multi-function displays that did not illuminate and further inspection revealed that this also affected the front passenger airbag suppression status telltale.^[4]

On July 10, 2009, Fuji completed the inspection of 5,400 of its vehicles awaiting shipment and corrected the noncompliance of 45 vehicles by “pushing tight” the harness connector. In addition, Subaru of America, Inc. notified its U.S. dealers and distributors on July 16, 2009, and included complete repair instructions for vehicles in their inventory which had not been inspected or repaired prior to shipment from the Company.

Fuji believes that the noncompliance is inconsequential to motor vehicle safety. Fuji argues that:

Based on the inspection of approximately 5,400 vehicles still at Subaru Automotive Indiana and a finding that the wiring harness connector to the front passenger airbag suppression status telltale or other multi-function display had been loose on 45 vehicles, Subaru has determined that the expected occurrence rate is about 0.8% [less than one percent].

[Subaru] * * * has determined that 3,405 vehicles were shipped to dealers prior to the discovery of this problem. Using the above frequency rate,

* * * [the Company] expect that only about 27 vehicles will have a noncompliance with FMVSS 208.

All other aspects of the front passenger advanced airbag suppression system will continue to function properly.

Since Subaru has both an OFF and ON indication in the suppression telltale, a complete absence of illumination is a warning that the lamp is not functioning. Since power to the telltale is also power to the multi-function display, the owner will have a clear indication to quickly report a problem to a Subaru dealer.

Vibration bench testing in Japan by the [Company's] supplier revealed that no disengagement of a wiring harness connector that originally worked properly will occur during the use of vehicle.

Dealers will receive a TSB with repair instructions on July 16, 2009 for any vehicles in their inventory, which had not been inspected or repaired prior to shipment to dealers or for vehicles where the owner reports a telltale/multi-function display problem. Dealers will also be instructed to check both the telltale and display at the first scheduled service (at 3,750 or 7,000 miles depending on variant).

In summary, Fuji/Subaru states that it believes the noncompliance is inconsequential to motor vehicle safety because the expected occurrence rate for the noncompliance is less than one percent (about 0.8%); a complete absence of illumination on the telltale gives a clear indication to the vehicle owner to quickly report a problem to the Subaru dealer; the Company's vibration testing supports the conclusion that this noncompliance is not likely to later occur in vehicles that were produced without the noncompliance; and Dealers will also be instructed to check both the telltale and display at the first scheduled service (at 3,750 or 7,000 miles depending on variant) and will receive a technical service bulletin (TSB) with repair instructions for any vehicles in their inventory, which had not been inspected or repaired prior to shipment to dealers or for vehicles where the owner reports a telltale/multi-function display problem.

NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance.

Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and be submitted by any of the following methods:

a. By mail addressed to: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.

b. By hand delivery to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. The Docket Section is open on weekdays from 10 a.m. to 5 p.m. except Federal Holidays.

c. Electronically: by logging onto the Federal Docket Management System (FDMS) Web site at http://www.regulations.gov/​. Follow the online instructions for submitting comments. Comments may also be faxed to 1-202-493-2251.

Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to http://www.regulations.gov,, including any personal information provided.

Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at http://www.regulations.gov by following the online instructions for accessing the dockets. DOT's complete Privacy Act Statement is available for review in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the Federal Register pursuant to the authority indicated below.

Comment closing date: May 19, 2010.

Authority: (49 U.S.C. 30118, 30120: delegations of authority at CFR 1.50 and 501.8)

Claude H. Harris,

Director, Office of Vehicle Safety Compliance.

Footnotes

1.  On April 8, 2010, Fuji provided the actual start of production dates. The start of production for the subject Subaru Legacy passenger cars was June 1, 2009, and the start of production date for the subject Outback multipurpose passenger vehicles was June 15, 2009.

2.  The estimate of a less than one percent frequency rate for the noncompliance was based on Fuji's inspection of approximately 5,400 vehicles on July 2-10, 2009, at their Subaru Automotive Indiana plant after the noncompliance was discovered. Of this total, the Company found 45 models with the noncompliance, or about 0.8% of the inspected vehicles.

3.  Fuji's petition, which was filed under 49 CFR Part 556, requests an agency decision to exempt Fuji as importer from the notification and recall responsibilities of 49 CFR Part 573 for 3,405 vehicles manufactured prior to July 1, 2009. However, the agency cannot relieve Fuji distributors of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of any of the subject vehicles under their control after Fuji recognized that the subject noncompliance existed. Those vehicles must be brought into conformance, exported, or destroyed.

4.  The 2010 Subaru Legacy and Outback models' telltale has both an air bag suppression status indicator for ON and OFF. Thus, either ON or OFF on the telltale should be illuminated whenever the ignition is on.