[Federal Register Volume 82, Number 149 (Friday, August 4, 2017)]
[Rules and Regulations]
[Pages 36328-36332]
[FR Doc No: 2017-16415]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 25

[Docket No. FAA-2017-0318; Special Conditions No. 25-693-SC]

Special Conditions: Embraer S.A. Model ERJ 190-300 Airplane;
Interaction of Systems and Structures

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final special conditions; request for comments.

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SUMMARY: These special conditions are issued for the Embraer S.A.
(Embraer) Model ERJ 190-300 airplane. This airplane will have novel or
unusual design features when compared to the state of technology
envisioned in the airworthiness standards for transport-category
airplanes. These design features include systems that, directly or as a
result of failure or malfunction, affect airplane structural
performance. The applicable airworthiness regulations do not contain
adequate or appropriate safety standards for this design feature. These
special conditions contain the additional safety standards that the
Administrator considers necessary to establish a level of safety
equivalent to that established by the existing airworthiness standards.

DATES: This action is effective on Embraer on August 4, 2017. Send your
comments by September 18, 2017.

ADDRESSES: Send comments identified by docket number FAA-2017-0318
using any of the following methods:
     Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending
your comments electronically.
     Mail: Send comments to Docket Operations, M-30, U.S.
Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room
W12-140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    Privacy: The FAA will post all comments it receives, without
change, to http://www.regulations.gov/, including any personal
information the commenter provides. Using the search function of the
docket Web site, anyone can find and read the electronic form of all
comments received into any FAA docket, including the name of the
individual sending the comment (or signing the comment for an
association, business, labor union, etc.). DOT's complete Privacy Act
Statement can be found in the Federal Register published on April 11,
2000 (65 FR 19477-19478).
    Docket: Background documents or comments received may be read at
http://www.regulations.gov/ at any time. Follow the online instructions
for accessing the docket or go to Docket Operations in Room W12-140 of
the West Building Ground Floor at 1200 New Jersey Avenue SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Greg Schneider, FAA, Airframe and
Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft
Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-
3356; telephone<PHONE_NUMBER>; facsimile<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The FAA has determined that notice of, and
opportunity for prior public comment on, these special conditions is
impracticable because these procedures would significantly delay
issuance of the design approval and thus delivery of the affected
airplanes.
    In addition, the substance of these special conditions has been
subject to the public-comment process in several prior instances with
no substantive comments received. The FAA therefore finds it
unnecessary to delay the effective date and that good cause exists for
making these special conditions effective upon publication in the
Federal Register.

Comments Invited

    We invite interested people to take part in this rulemaking by
sending written comments, data, or views. The most helpful comments
reference a specific portion of the special conditions, explain the
reason for any recommended change, and include supporting data.
    We will consider all comments we receive by the closing date for
comments. We may change these special conditions based on the comments
we receive.

Background

    On September 13, 2013, Embraer applied for an amendment to Type
Certificate No. A57NM to include the new Model ERJ 190-300 airplane.
The Model ERJ 190-300 airplane, which is a derivative of the Embraer
Model ERJ 190-100 STD airplane currently approved under Type
Certificate No. A57NM, is a 97- to 114-passenger transport-category
airplane. The maximum take-off weight is 124,340 lbs (56,400 kg).

Type Certification Basis

    Under the provisions of Title 14, Code of Federal Regulations (14
CFR) 21.101, Embraer must show that the Model ERJ 190-300 airplane
meets the applicable provisions of the regulations listed in Type
Certificate No. A57NM, or the applicable regulations in effect on the
date of application for the change, except for earlier amendments as
agreed upon by the FAA.
    If the Administrator finds that the applicable airworthiness
regulations (i.e., 14 CFR part 25) do not contain adequate or
appropriate safety standards for the Model ERJ 190-300 airplane because
of a novel or unusual design feature, special conditions are prescribed
under the provisions of Sec.  21.16.
    Special conditions are initially applicable to the model for which
they are issued. Should the type certificate for that model be amended
later to include any other model that incorporates the same novel or
unusual design feature, or should any other model already included on
the same type certificate be modified to incorporate the same novel or
unusual design feature, these special conditions would also apply to
the other model under Sec.  21.101.
    In addition to the applicable airworthiness regulations and special
conditions, the Model ERJ 190-300 airplane must comply with the fuel-
vent and exhaust-emission requirements of 14 CFR part 34 and the noise-
certification requirements of 14 CFR part 36.
    The FAA issues special conditions, as defined in 14 CFR 11.19, in
accordance with Sec.  11.38, and they become part of the type
certification basis under Sec.  21.101.

Novel or Unusual Design Features

    The Embraer Model ERJ 190-300 airplane will incorporate the
following novel or unusual design feature:
    Systems that, directly or as a result of failure or malfunction,
affect airplane structural performance. That is, the

airplane's systems affect how it responds in maneuver and gust
conditions, and thereby affect its structural capability. These systems
may also affect the aeroelastic stability of the airplane. Such systems
include flight control systems, autopilots, stability augmentation
systems, load alleviation systems, and fuel management systems. These
systems represent novel and unusual features when compared to the
technology envisioned in the current airworthiness standards.

Discussion

    Special conditions have been applied on past airplane programs to
require consideration of the effects of systems on structures. The
regulatory authorities and industry developed standardized criteria in
the Aviation Rulemaking Advisory Committee (ARAC) forum based on the
criteria defined in Advisory Circular (AC) 25.672-1, dated November 15,
1983. The ARAC recommendations have been incorporated in European
Aviation Safety Agency (EASA) Certification Specifications (CS) 25.302
and CS 25 Appendix K, which are applicable to Embraer. FAA rulemaking
on this subject is not complete, thus the need for the special
conditions.
    The special conditions are similar to those previously applied to
other airplane models and to the requirements of CS 25.302. The major
differences between these special conditions and the current CS 25.302
are as follows:
    (1) Both the special conditions and CS 25.302 (and by reference
Appendix K) specify the design load conditions to be considered.
Effects of Systems on Structures, special conditions 2.a. and 3.b.i.
clarify that, in some cases, different load conditions are to be
considered due to other special conditions or equivalent-level-of-
safety findings.
    (2) Both the special conditions (see special condition 5, below)
and CS 25.302 allow consideration of the probability of being in a
dispatched configuration when assessing subsequent failures and
potential ``continuation of flight'' loads. The special conditions,
however, also allow using probability when assessing failures that
induce loads at the ``time of occurrence,'' whereas CS 25.302 does not.
    These special conditions contain the additional safety standards
that the Administrator considers necessary to establish a level of
safety equivalent to that established by the existing airworthiness
standards.

Applicability

    As discussed above, these special conditions are applicable to the
Embraer Model ERJ 190-300 airplane. Should Embraer apply at a later
date for a change to the type certificate to include another model
incorporating the same novel or unusual design feature, these special
conditions would apply to that model as well.

Conclusion

    This action affects only a certain novel or unusual design feature
on one model of airplane. It is not a rule of general applicability.
    The substance of these special conditions has been published in the
Federal Register for public comment in several prior instances and has
been derived without substantive change from those previously issued.
It is unlikely that prior public comment would result in a significant
change from the substance contained herein. Therefore, the FAA has
determined that prior public notice and comment are unnecessary and
impracticable, and good cause exists for adopting these special
conditions upon publication in the Federal Register. The FAA is
requesting comments to allow interested persons to submit views that
may not have been submitted in response to the prior opportunities for
comment described above.

List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping
requirements.

    The authority citation for these special conditions is as follows:

    Authority:  49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the
Administrator, the following special conditions are issued as part of
the type certification basis for Embraer Model ERJ 190-300 airplanes.
    For airplanes equipped with systems that affect structural
performance, either directly or as a result of a failure or
malfunction, the influence of these systems and their failure
conditions must be taken into account when showing compliance with the
requirements of part 25, subparts C and D.
    For airplanes equipped with flight-control systems, autopilots,
stability-augmentation systems, load-alleviation systems, fuel-
management systems, and other systems that either directly, or as a
result of failure or malfunction, affect structural performance, the
following criteria must be used for showing compliance. If these
special conditions are used for other systems, it may be necessary to
adapt the criteria to the specific system.
    1. The criteria defined herein only address the direct structural
consequences of the system responses and performance. They cannot be
considered in isolation, but should be included in the overall safety
evaluation of the airplane. These criteria may, in some instances,
duplicate standards already established for this evaluation. These
criteria are only applicable to structure the failure of which could
prevent continued safe flight and landing. Specific criteria that
define acceptable limits on handling characteristics or stability
requirements, when operating in the system-degraded or inoperative
mode, are not provided in these special conditions.
    2. Depending upon the specific characteristics of the airplane,
additional studies that go beyond the criteria provided in these
special conditions may be required to demonstrate the airplane's
capability to meet other realistic conditions, such as alternative gust
or maneuver descriptions for an airplane equipped with a load-
alleviation system.
    3. The following definitions are applicable to these special
conditions.
    a. Structural performance: Capability of the airplane to meet the
structural requirements of part 25.
    b. Flight limitations: Limitations that can be applied to the
airplane flight conditions following an in-flight occurrence, and that
are included in the airplane flight manual (e.g., speed limitations,
avoidance of severe weather conditions, etc.).
    c. Operational limitations: Limitations, including flight
limitations, that can be applied to the airplane operating conditions
before dispatch (e.g., fuel, payload and master minimum-equipment list
limitations).
    d. Probabilistic terms: Terms such as probable, improbable, and
extremely improbable, as used in these special conditions, are the same
as those used in Sec.  25.1309.
    e. Failure condition: This term is the same as that used in Sec.
25.1309. However, these special conditions apply only to system-failure
conditions that affect the structural performance of the airplane
(e.g., system-failure conditions that induce loads, change the response
of the airplane to inputs such as gusts or pilot actions, or lower
flutter margins).

Effects of Systems on Structures

    1. General. The following criteria will be used in determining the
influence of a system and its failure conditions on the airplane
structure.
    2. System fully operative. With the system fully operative, the
following apply:
    a. Limit loads must be derived in all normal operating
configurations of the system from all the limit conditions specified in
part 25, subpart C (or defined by special conditions or findings of
equivalent level of safety in lieu of those specified in subpart C),
taking into account any special behavior of such a system or associated
functions, or any effect on the structural performance of the airplane
that may occur up to the limit loads. In particular, any significant
nonlinearity (rate of displacement of control surface, thresholds, or
any other system nonlinearities) must be accounted for in a realistic
or conservative way when deriving limit loads from limit conditions.
    b. The airplane must meet the strength requirements of part 25
(static strength, residual strength), using the specified factors to
derive ultimate loads from the limit loads defined above. The effect of
nonlinearities must be investigated beyond limit conditions to ensure
that the behavior of the system presents no anomaly compared to the
behavior below limit conditions. However, conditions beyond limit
conditions need not be considered when it can be shown that the
airplane has design features that will not allow it to exceed those
limit conditions.
    c. The airplane must meet the aeroelastic stability requirements of
Sec.  25.629.
    3. System in the failure condition. For any system-failure
condition not shown to be extremely improbable, the following apply:
    a. At the time of occurrence. Starting from 1g level flight
conditions, a realistic scenario, including pilot corrective actions,
must be established to determine the loads occurring at the time of
failure and immediately after the failure.
    i. For static-strength substantiation, these loads, multiplied by
an appropriate factor of safety that is related to the probability of
occurrence of the failure, are ultimate loads to be considered for
design. The factor of safety is defined in Figure 1, below.
[GRAPHIC] [TIFF OMITTED] TR04AU17.012

    ii. For residual-strength substantiation, the airplane must be able
to withstand two thirds of the ultimate loads defined in special
condition 3.a.i. For pressurized cabins, these loads must be combined
with the normal operating differential pressure.
    iii. Freedom from aeroelastic instability must be shown up to the
speeds defined in Sec.  25.629(b)(2). For failure conditions that
result in speeds beyond VC/MC, freedom from
aeroelastic instability must be shown to increased speeds, so that the
margins intended by Sec.  25.629(b)(2) are maintained.
    iv. Failures of the system that result in forced structural
vibrations (oscillatory failures) must not produce loads that could
result in detrimental deformation of primary structure.
    b. For the continuation of the flight. For the airplane in the
system-failed state, and considering any appropriate reconfiguration
and flight limitations, the following apply:
    i. The loads derived from the following conditions (or defined by
special conditions or findings of equivalent level of safety in lieu of
the following conditions) at speeds up to VC/MC
(or the speed limitation prescribed for the remainder of the flight)
must be determined:
    1. The limit symmetrical maneuvering conditions specified in
Sec. Sec.  25.331 and 25.345.
    2. the limit gust and turbulence conditions specified in Sec. Sec.
25.341 and 25.345.
    3. the limit rolling conditions specified in Sec.  25.349, and the
limit unsymmetrical conditions specified in Sec. Sec.  25.367, and
25.427(b) and (c).
    4. the limit yaw-maneuvering conditions specified in Sec.  25.351.
    5. the limit ground-loading conditions specified in Sec. Sec.
25.473, 25.491, 25.493(d), and 25.503.
    ii. For static-strength substantiation, each part of the structure
must be able to withstand the loads in special condition 3.b.i.,
multiplied by a factor of safety depending on the probability of being
in this failure state. The factor of safety is defined in Figure 2,
below.

[GRAPHIC] [TIFF OMITTED] TR04AU17.013

Qj = (Tj)(Pj)

Where:

Tj = Average time spent in failure mode j (in hours)
Pj = Probability of occurrence of failure mode j (per
hour)

    Note:  If Pj is greater than 10-3 per
flight hour, then a 1.5 factor of safety must be applied to all
limit load conditions specified in part 25, subpart C.

    iii. For residual-strength substantiation, the airplane must be
able to withstand two-thirds of the ultimate loads defined in paragraph
3.b.ii. of these special conditions. For pressurized cabins, these
loads must be combined with the normal operating differential pressure.
    iv. If the loads induced by the failure condition have a
significant effect on fatigue or damage tolerance, then their effects
must be taken into account.
    v. Freedom from aeroelastic instability must be shown up to a speed
determined from Figure 3, below. Flutter clearance speeds V' and V''
may be based on the speed limitation specified for the remainder of the
flight using the margins defined by Sec.  25.629(b).
[GRAPHIC] [TIFF OMITTED] TR04AU17.014

V' = Clearance speed as defined by Sec.  25.629(b)(2)
V'' = Clearance speed as defined by Sec.  25.629(b)(1)

Qj = (Tj)(Pj)

Where:

Tj = Average time spent in failure mode j (in hours)
Pj = Probability of occurrence of failure mode j (per
hour)

    Note: If Pj is greater than 10-3 per
flight hour, then the flutter clearance speed must not be less than
V''.

    vi. Freedom from aeroelastic instability must also be shown up to
V' in Figure 3, above, for any probable system-failure condition,
combined with any damage required or selected for investigation by
Sec.  25.571(b).
    c. Consideration of certain failure conditions may be required by
other sections of part 25 regardless of calculated system reliability.
Where analysis shows the probability of these failure conditions to be
less than 10-9 per flight hour, criteria other than those
specified in this paragraph may be used for structural substantiation
to show continued safe flight and landing.
    4. Failure indications. For system-failure detection and
indication, the following apply:
    a. The system must be checked for failure conditions, not extremely
improbable, that degrade the structural capability below the level
required by part 25, or that significantly reduce the reliability of
the remaining system. As far as reasonably practicable, the flightcrew
must be made aware of these failures before flight. Certain elements of
the control system, such as mechanical and hydraulic components, may
use special periodic inspections, and electronic components may use
daily checks, in lieu of detection and indication systems, to achieve
the objective of this requirement. These certification-maintenance
requirements must be limited to components that are not readily
detectable by normal detection-and-indication systems, and where
service history shows that inspections will provide an adequate level
of safety.
    b. The existence of any failure condition, not extremely
improbable, during flight, that could significantly affect the
structural capability of the airplane, and for which the associated
reduction in airworthiness can be minimized by suitable flight
limitations, must be signaled to the flightcrew. For example, failure
conditions that result in a factor of safety between the airplane
strength and the loads of part 25, subpart C below 1.25, or flutter
margins below V, must be signaled to the crew during flight.
    5. Dispatch with known failure conditions. If the airplane is to be
dispatched in a known system-failure condition that affects structural
performance, or that affects the

reliability of the remaining system to maintain structural performance,
then the provisions of these special conditions must be met, including
the provisions of special condition 2 for the dispatched condition, and
special condition 3 for subsequent failures. Expected operational
limitations may be taken into account in establishing Pj as
the probability of failure occurrence for determining the safety margin
in Figure 1. Flight limitations and expected operational limitations
may be taken into account in establishing Qj as the combined
probability of being in the dispatched failure condition and the
subsequent failure condition for the safety margins in Figures 2 and 3.
These limitations must be such that the probability of being in this
combined failure state, and then subsequently encountering limit load
conditions, is extremely improbable. No reduction in these safety
margins is allowed if the subsequent system-failure rate is greater
than 10-3 per flight hour.

    Issued in Renton, Washington.
Victor Wicklund,
Manager, Transport Standards Branch, Aircraft Certification Service.
[FR Doc. 2017-16415 Filed 8-3-17; 8:45 am]
 BILLING CODE 4910-13-P


[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Notices]
[Pages 75907-75920]
[FR Doc No: 2016-26289]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2016-0113]

Denial of Motor Vehicle Defect Petition, DP12-004

AGENCY: National Highway Traffic Safety Administration (NHTSA).

ACTION: Denial of Petition for a Defect Investigation.

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SUMMARY: This notice describes the reasons for denying a petition
(DP12-004) submitted to NHTSA under 49 U.S.C. 30162, requesting that
the agency conduct ``a defect investigation into MY 2005-2010 Nissan
Pathfinder, Frontier, and Xterra vehicles [the subject vehicles] for
automatic transmission failures related to failed transmission
coolers.''

FOR FURTHER INFORMATION CONTACT: Bob Young, Office of Defects
Investigation (ODI), NHTSA; 1200 New Jersey Ave. SE., Washington, DC
20590. Telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: In support of his petition, received on
February 29, 2012, Mr. Mathew Oliver, Director of Operations for the
North Carolina Consumers Council, Inc. (NCCC); alleged the following:
    (1) ``During the past six months, five owners of 2005 Xterra
vehicles, and one owner of a 2006 Frontier vehicle, reported that they
experienced sudden jerking of their vehicle(s) at highway speeds. They
report, in all instances, that dealers diagnosed the problem as a
failed transmission fluid cooler located in the radiator that allowed
coolant to mix with, and contaminate, the automatic transmission fluid
resulting in damaged internal transmission components and a damaged
internal transmission computer. The complaints report no warning signs
leading up to or just prior to the failures'';
    (2) ``NCCC has learned from Web site searches, and through the
NHTSA Web site, of many other similar complaints in the subject
vehicles. Web site data and NHTSA reports usually [report] the same
symptoms and lack of warning. Numerous complaints on the NHTSA Web site
note repeat oil [sic] cooler and transmission failures'';
    (3) Nissan extended its warranty coverage of subject vehicles'
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler
but not to transmissions that may have been damaged as a consequence of
cooler failures;
    (4) Nissan extended its warranty coverage of subject vehicles'
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler
but not to transmissions that may have been damaged as a consequence of
cooler failures. Additionally, Nissan failed to conduct inspections
that may have revealed a cooler failure was imminent thus helping
consumers avoid a catastrophic transmission failure; and
    (5) A class action lawsuit was filed in 2010 on behalf of clients
relating to this alleged defect.
    Mr. Oliver concluded his petition by stating, ``through our limited
investigation into the matter, all of the vehicles experiencing these
[transmission] failures are within the 8 year period specified by the
extended warranty but are often beyond the 80,000 mile limit. It also
appears that the number of reported defects is increasing, which is
concerning to say the least. Due to the nature of the reported defect,
the severity of the reported failures, the repetitive nature of the
failures and the limited or missing failure warning signs, we believe
that an investigation is warranted.''
    NHTSA has reviewed the material provided by the petitioner and
other pertinent data. The results of this review and our analysis of
the petition's merit is set forth in the DP12-004 Petition Analysis
Report, published in its entirety as an appendix to this notice.
    For the reasons presented in the petition analysis report, there is
no reasonable possibility that an order concerning the notification and
remedy of a safety-related defect would be issued as a result of
granting Mr. Oliver's petition. Therefore, in view of the need to
allocate and prioritize NHTSA's limited resources to best

accomplish the agency's safety mission, the petition is denied.

    Authority: 49 U.S.C. 30162(d); delegations of authority at CFR
1.50 and 501.8.

Jeffrey M. Giuseppe,
Acting Associate Administrator for Enforcement.

APPENDIX--Petition ANALYSIS--DP12-004

1.0 INTRODUCTION

    On February 29, 2012 the National Highway Traffic Safety
Administration (NHTSA) received a letter from Mr. Mathew Oliver,
Director of Operations for the North Carolina Consumers Council, Inc.
(NCCC); petitioning the agency to conduct ``a defect investigation into
MY 2005-2010 Nissan Pathfinder, Frontier, and Xterra vehicles [the
subject vehicles] for automatic transmission failures related to failed
transmission coolers.''
    Mr. Oliver's letter included the following information:
    (1) ``During the past six months, five owners of 2005 Xterra
vehicles, and one owner of a 2006 Frontier vehicle, reported that they
experienced sudden jerking of their vehicle(s) at highway speeds. They
report, in all instances, that dealers diagnosed the problem as a
failed transmission fluid cooler located in the radiator that allowed
coolant to mix with, and contaminate, the automatic transmission fluid
resulting in damaged internal transmission components and a damaged
internal transmission computer. The complaints report no warning signs
leading up to or just prior to the failures'';
    (2) ``NCCC has learned from Web site searches, and through the
NHTSA Web site, of many other similar complaints in the subject
vehicles. Web site data and NHTSA reports usually [report] the same
symptoms and lack of warning. Numerous complaints on the NHTSA Web site
note repeat oil [sic] cooler and transmission failures'';
    (3) Nissan extended its warranty coverage of subject vehicles'
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler
but not to transmissions that may have been damaged as a consequence of
cooler failures;
    (4) Nissan extended its warranty coverage of subject vehicles'
radiator/transmission fluid coolers from 3yrs/36,000 miles to 8yrs/
80,000 miles and that this coverage applied only to the radiator/cooler
but not to transmissions that may have been damaged as a consequence of
cooler failures. Additionally, Nissan failed to conduct inspections
that may have revealed a cooler failure was imminent thus allowing
consumers avoid a catastrophic transmission failure; and
    (5) A class action lawsuit was filed in 2010 on behalf of clients
relating to this alleged defect.
    Mr. Oliver concluded his petition by stating, ``Through our limited
investigation into the matter, all of the vehicles experiencing these
[transmission] failures are within the 8 year period specified by the
extended warranty but are often beyond the 80,000 mile limit. It also
appears that the number of reported defects is increasing, which is
concerning to say the least. Due to the nature of the reported defect,
the severity of the reported failures, the repetitive nature of the
failures and the limited or missing failure warning signs, we believe
that an investigation is warranted.'' \1\
---------------------------------------------------------------------------

    \1\ Mathew Oliver, to Administrator, National Highway Traffic
Safety Administration, Washington, DC, 29 February 2012, page 2.
---------------------------------------------------------------------------

    In analyzing the petitioner's allegations and preparing a response,
we:
     Reviewed the petitioner's letter, received on February 29,
2012.
     Reviewed the NCCC Web site for additional information.
     Reviewed 2,505 individual complaints filed in our consumer
complaint database through September 13, 2016.
     Reviewed individual vehicle Carfax information to
determine ownership and service histories.
     Reviewed vehicle manufacturer information concerning
relevant extended warranty programs.
     Reviewed vehicle manufacturer technical information
concerning transmission operation.
     Reviewed vehicle manufacturer technical information
concerning transmission control module (TCM) and engine control unit
(ECU) functional relationship, including transmission related fault
codes triggering an illuminated ``malfunction indicator lamp.''
     Reviewed various ODI safety defect investigations related
to engine stalling and loss of motive power (LOMP).
     Gathered and reviewed information related to the class
action lawsuit cited by the petitioner.
     Reviewed vehicle production quantity information from
Nissan.
     Interviewed owners, in person and by telephone, about
their experience with related transmission failures.
     Test drove subject vehicles where transmission fluid and
engine coolant were co-mingled and transmission problems were evident
and unresolved.
     Interviewed Nissan dealer service staff about the subject
issue.
     Interviewed independent transmission repair shop staff
about the subject issue.
     In an effort to learn more about the transmission coolant
tank failures, ODI secured the services of NHTSA's Vehicle Research and
Test Center (VRTC). VRTC did the following:
    A. Interviewed subject vehicle owners and test drove their
vehicles; and
    B. Conducted a root cause analysis to determine why subject fluid
cooler tanks were failing.
    Based on our analysis of the information gathered during this
comprehensive effort, it does not appear there is a reasonable
possibility that an order concerning the notification and remedy of a
safety-related defect would be issued as a result of granting Mr.
Oliver's petition. Therefore, in view of the need to allocate and
prioritize NHTSA's limited resources to best accomplish the agency's
safety mission, the petition is denied.

2.0 SUBJECT VEHICLES

    The subject vehicles are all MY 2005-10 Nissan Pathfinder,
Frontier, and Xterra vehicles equipped with a RE5R05A 5-spd,
electronically controlled, automatic transmission. Nissan produced
857,432 subject vehicles for sale in the United States.

3.0 SUBJECT TRANSMISSION COOLING SYSTEM

    The subject vehicles are equipped with a transmission fluid cooler.
The cooler, a cylindrical tank located within the radiator and
submerged in engine coolant, acts as a heat exchanger. Hot transmission
fluid flows from the transmission to, and through, the tank where it is
``cooled'' before returning to the transmission. The tank is not
visible unless the radiator is disassembled.

[GRAPHIC] [TIFF OMITTED] TN01NO16.129

4.0 THE ALLEGED DEFECT

    The petitioner alleges that consumers are experiencing a subject
transmission performance issue due to co-mingling of engine coolant and
automatic transmission fluid (ATF) occurring when the ATF cooling tank
fails.

5.0 ROOT CAUSE

    NHTSA's Vehicle Research and Test Center (VRTC) in East Liberty, OH
was tasked with conducting an assessment to determine why ATF and
engine coolant were co-mingling. VRTC's final report, documenting this
work, was filed on May 30, 2013.\2\
---------------------------------------------------------------------------

    \2\ FINAL REPORT: DP12-004 ``Inspections and Tests of Engine
Coolant Radiators with Integrated ATF-Temperature-Stabilizing
Cylinders from 2005-10 Nissan Light Trucks''; Roger A. Saul,
Director, VRTC, May 30, 2013.
---------------------------------------------------------------------------

5.1 MY2005 Nissan Pathfinder, VOQ 10415028

    The owner of a 2005 Nissan Pathfinder filed VOQ #10415028,
including the following summary:
    ``TRANSMISSION STARTED SLIPPING STARTED JERKING WHILE DRIVING,
ALSOSOUNDED LIKE TIRES WERE MAKING NOISE ESPECIALLY AROUND 40 MPH. I
WAS DRIVING ON RT 62 NEAR MY HOME AND WAS VERY FORTUNATE NOT BEING T-
BONED AS A PULLED OUT,MY PATHFINDER DIDN'T GO LIKE IT WAS SUPPOSED TO,
FORTUNATELY THE ONCOMING VEHICLE STOPPED. I TOOK IT TO A NISSAN DEALER
AND THEY SAID THAT THE 2005,2006,2007 PATHFINDER WERE KNOWN TO HAVE AN
ISSUE WITH THE COOLER FAILING AND BREAKING DOWN THE TRANSMISSION AND
THAT THEY KNEW ABOUT THE FAULTY COOLER FOR ALONG TIME. NISSAN SAID THEY
INCREASED THE WARRANTY FROM 60,000 TO 80,000 BUT OTHER THAN THAT THEY
HAVE DONE NOTHING. AND DIDN'T INFORM THE PUBLIC. MY FAMILY AND I,
DIDN'T GET HURT OR HURT SOMEONE ELSE, HOWEVER THIS SCENARIO COULD BE
VERY DANGEROUS AND NISSAN SHOULD INFORM THE PUBLIC AND RECALL THE
TRANSMISSION AND FAULTY COOLER BEFORE DEATHS START HAPPENING.''
    In a follow-up phone interview, he reported the transmission and
radiator were original equipment and that he had the radiator flushed
once but was still having problems. He knew about the extended
warranty, but his vehicle mileage was beyond the mileage limit. The
owner reported that he had not been driving the vehicle for
approximately one year.
    The owner accepted VRTC's offer of a cost-free tow and free vehicle
inspection at his local Nissan dealer. If co-mingled fluid was found,
his radiator would be removed and taken to the Center's lab.
    However, on the day of the inspection (August 28, 2012), he drove
it to the dealership. The vehicle appeared to be in good condition with
126,495 miles on the odometer. At the dealership, the owner discussed
his situation. He had replaced the engine coolant and the ATF
approximately 12months/40 miles ago. He described transmission
slipping, jerking, the tires making chirping noises, and lack of
acceleration when needed, such as pulling out onto a highway. He
reiterated his concern about the $6,000.00 estimated repair cost.
    VRTC staff removed the radiator cap and found the fluids co-
mingled. The radiator was removed and replaced with a new one. Before
leaving with the subject radiator, the dealership service manager
reported that they find co-mingled fluid in subject vehicles about once
or twice per month.

5.2 VRTC root cause finding

    At VRTC, the radiator was pressurized and submerged in a tank of
water. The radiator bubbled slowly and steadily from the open ATF ports
indicating a crossover leak, as shown in Figure 2.

When the ATF cooling cylinder was removed and pressurized, a leak was
noted just inboard of the AFT ports, as shown in Figure 3. Figure 4
shows this was due to a fractured interface between the cylinder and
the disk that supports the ATF port. This fracture appears to be the
result of normal hoop stress on the cylinder in an area that was
restrained by the port disk that resulted in a stress concentration and
a fatigue fracture.
[GRAPHIC] [TIFF OMITTED] TN01NO16.130

[GRAPHIC] [TIFF OMITTED] TN01NO16.131

6.0 EFFECT OF CO-MINGLED FLUID ON VEHICLE OPERATION

    Co-mingled ATF and engine coolant may affect transmission
performance and may cause an engine stall.

6.1 Transmission performance anomalies due to co-mingled fluid

    Exposure to co-mingled ATF and engine coolant will have an adverse
effect on transmission performance and longevity. Engine coolant (e.g.,
water, anti-freeze and/or a combination of the two) will cause the
automatic transmission clutch linings to delaminate from transmission
clutch plates and bands. Once that begins to occur, transmission
performance will degrade over time with operators first noting sluggish
shifts, shift shudder, slipping in gear, and a delay when shifting from
Park into Drive or Reverse. If not remedied, ultimately the
transmission will no longer transmit engine power to the driven wheels
and the vehicle will perform as though its transmission is in neutral
(i.e., no motive power).

6.2 Engine stalling due to co-mingled fluid

    The subject transmission is electronically controlled by the
Transmission Control Module (TCM) located internally. By design, the
TCM should never come in contact with engine coolant. The TCM
communicates with the Engine Control Module through the vehicle's
Controller Area Network (CAN). The TCM is capable of diagnosing
transmission malfunctions and the ECM stores the resulting diagnostic
trouble codes (DTCs) in memory. In some instances, a TCM malfunction
(due to contamination by engine coolant, for example), can result in an
engine stall, poor shift performance, and an engine no-start condition.
Typically a TCM malfunction will trigger the illumination of a MIL
(malfunction indicator lamp), which, on the subject vehicles'
instrument cluster, is displayed as ``Service Engine Soon.''
[GRAPHIC] [TIFF OMITTED] TN01NO16.132

    Typically ``fault codes'' are stored within the ECM when the MIL is
illuminated due to a TCM anomaly. These codes are later used by
technicians to diagnose the problem. For example, a ``U1000'' code is
stored when the TCM cannot communicate with the ECM.\3\ The engine may
stall when this type of malfunction is detected.
---------------------------------------------------------------------------

    \3\ The ``U1000'' code is identified in alleged crash VOQ
10789140 discussed later in this report.
---------------------------------------------------------------------------

7.0 CONSUMER COMPLAINTS TO NHTSA

    As of September 13, 2016 we received 2,505 complaints concerning
subject vehicle transmission performance. Of these, 2,081 were
submitted since the petition was filed on February 29, 2012.
    After reviewing the complaints, they broadly fall into two
categories: Customer Satisfaction and Potential Hazard.

7.1 Customer Satisfaction-Related

    Of the 2,505 complaints received by ODI, 1,867 pertained to
customer satisfaction issues such as cost of repair, vehicle shudder
and shake, no engine start, engine overheat, no cabin heat, no reverse,
and check engine light on. Fully fifty percent of these complaints
(944) mention cost of repair, the single most reported concern. Vehicle
shudder and shake was identified in 798 VOQs, the most reported
vehicle-related customer satisfaction issue.

7.2 Potential Hazard

    Six hundred and thirty-eight VOQs reported the following potential
hazards: unable to maintain vehicle speed, loss of motive power, and
engine stalling. As in the customer satisfaction- related VOQs
discussed previously, cost of repair was the single most identified
issue, with fifty-four percent (344) voicing the concern. Allegations
of ``unable to maintain speed'' and ``no motive power'' were found in
573 complaints (299 and 274, respectively). Engine stalling was
identified in 65 VOQs. Average vehicle mileage when these complaints
were filed is approximately 106,482.

8.0 ALLEGED CRASH REPORTS

    Four crashes are alleged; two due to loss of motive power, one due
to an engine stall, and the fourth due to vehicle shudder.

8.1 Alleged crash report #1--VOQ 10555827--Loss of motive power

    This VOQ was filed with us on December 12, 2013 by the second owner
of a MY2008 Nissan Xterra. No VIN was provided. It includes this
summary:
    ``WHILE DRIVING THROUGH THE INTERSECTION, MY VEHICLE SUDDENLY LOST
POWER CAUSING ME TO GET REAR ENDED. VERY MINIMAL DAMAGE TO MY VEHICLE
BUT MY DAUGHTER WAS IN THE CAR WITH ME. UPON FURTHER INSPECTION AT A
SHOP IT WAS CONCLUDED THAT THE CAUSE OF THE LOSS OF POWER WAS DUE TO A
FAILURE IN THE TEAMS FLUID COOLER CAUSING RADIATOR FLUID TO ENTER THE
TRANSMISSION. ``
    In a subsequent telephone conversation, complainant stated that he
had purchased the vehicle, with 112,098 miles, from a private owner on
December 6, 2013. No transmission or radiator issues were disclosed.
However some sluggishness in transmission up- and down- shifting was
noted about a day before the crash.
    The owner reported that he was driving the Xterra, with his 12 y.o.
daughter as a passenger, on December 9, 2013 as they approached an
intersection at about 40 mph. The vehicle suddenly lost motive power,
slowed, and was rear-ended resulting in damage to the rear bumper and
no personal injury. No police report was filed. Later that day, he
drove the Xterra to his local Nissan dealer where co-mingled fluids
were found. He was given a repair estimate of $4500 to replace the
radiator and transmission. He was also told that, based on vehicle age
and mileage, he was not eligible of either Nissan's extended warranty
or the class action settlement terms (which are, in fact, identical).
So, unable to afford this repair, the vehicle has been parked near his
home since.
    We attempted to gather service and owner history information but
without a VIN have been unable to do this. The owner agreed to provide
the VIN by email. To date he has not done so.

8.2 Alleged crash report #2--VOQ 10561840--Shudder

    This VOQ was filed with ODI on January 28, 2014 by the second owner
of a MY2007 Nissan Pathfinder. The alleged crash occurred on January
10, 2014, at about 90,000 miles which he summarized as follows:
    ``I REQUEST THAT THE DOT NHTSA INVESTIGATE MANUFACTURER DEFECTS IN
2007 NISSAN PATHFINDERS COOLING SYSTEM AND TRANSMISSION AS UNEXPECTED
FAILURE RELATES TO DRIVER SAFETY. MY 2007 PATHFINDER WITH 90,000 MILES
CAUSED A MAJOR COLLISION WITH A DEER AS THE TRANSMISSION BEGAN TO FAIL.
DRIVING HOME, AT AROUND 40MPH, UP A HILL (ENGINE UNDER LOAD @2,200-
2,500 RPM) THE WHOLE CAR BEGAN SUDDENLY TO ``SHUDDER''- SIMILAR TO THE
FEELING/SOUND OF RIDING OVER HIGHWAY RUMBLE STRIPS. THIS RESULTED IN A
LOSS OF CONTROL OVER THE SPEED OF THE VEHICLE AND A NOTICEABLE
DISTRACTION LEAVING ME UNPREPARED AS A LARGE BUCK RAN OUT FROM THE TREE
LINE ATTEMPTING TO CROSS THE ROAD- THE BUCK DID NOT MAKE IT ACROSS. AS
I HAVE FOUND IN MY RESEARCH AFTERWARDS, THERE IS A WIDELY KNOWN
MANUFACTURER DEFECT IN WHICH ENGINE COOLANT MIXES WITH TRANSMISSION
FLUID. THE RESULTING ``GOOP'' SHREDS THE INTERNAL PARTS OF THE
TRANSMISSION RENDERING IT (ALONG WITH THE RADIATOR AND COMPONENTS)
COMPLETELY USELESS. THESE VEHICLES ARE UNSAFE FOR THE ROADWAYS AS THIS
PROBLEM OCCURS SUDDENLY AND UNEXPECTEDLY WITHOUT WARNING. I CONSIDER
MYSELF LUCKY FOR BEING ALIVE- NOW, BUT SINCE NISSAN NOR ANY OTHER
ORGANIZATION IS WILLING TO RECALL OR REPLACE THIS VEHICLE/AFFECTED
PARTS, I AM STUCK, FORCED [EMPHASIS ADDED] TO DRIVE ON THE ROAD BEING A
HAZARD TO OTHERS AND MYSELF.''
    Numerous attempts to contact this filer, by mail, email, and
telephone have been unsuccessful.
    According to the VOQ, the incident was not reported to police.
    A Carfax vehicle history report reveals that the subject owner, the
vehicle's second, purchased it on February 21, 2009 at 29,526 miles.
The detailed service history includes 11 service visits prior to the
alleged crash . . . none related to either the transmission or radiator
nor are any crash-related repairs identified either before or after the
alleged crash date. We recognize, however, that not all service
attempts may be documented in the report.

8.3 Alleged crash report #3--VOQ 10789140--Engine Stall

    This VOQ was filed on November 9, 2015 by the owner of a MY2008
Nissan Pathfinder. It contains the following summary:
    `` ON NOVEMBER 6, 2015 AROUND OR ABOUT 7:00PM MY V6 2008 NISSAN
PATHFINDER SERVICE ENGINE LIGHT TURNED ON WHILE IN FIRST GEAR IN
MOSTION; THE SUV ENGINE AND TRANSMISSION TURNED OFF HAD NO BRAKES AND
HAD A FENDER BENDER WHILE IN MOTION, HAD THE SUV TOWED HOME AND CHECKED
THE CODE ON THE OBD AND IT READ CODE: U1000 CONTROLLER AREA NETWORK
(CAN) COMMUNCATION LINE SIGAL MALFUNCTION.DID A VISUAL CHECK INSIDE
RADIATOR FILLER PORT, ELECTRICAL FUSE (10AMP FUSE TO THE TRANSMISSION
BLEW WHICH ATOMCTICLY TOLD ME A COMMUNICATION HARNESS IS OPEN OR
SHORTED; OR A FAULTY ENGINE CONTROL MODULE(ECM))AND ALSO CHECKED THE
RESIVOR FILLER PORT, FOUND RED TRANSMISSION FLUID AND GREEN ENGINE
COOLENT FLUID INCORPORATED IN RADIATOR (CONTAMINATION), ALSO CHECKED
TRANSMISSION DIP STICK TO SEE IF TRANSMISSON FLUIDS LOW BUT INSTEAD
FOUND RUST AT THE END PART OF THE DIPSTICK INSIDE THE TRANSMISSON
INDICATING ENGINE COOLENT CONTAMINATION (WATER) ALL INSIDE THE
TRANSMISSION.WHO KNOW HOW MUCH RUST IS INSIDE THE TRANSMISSION UNTIL A
FULL TEAR DOWN AND THOROUGH INSPECTION IS PERFORMED.....CAR IS
STATIONARY AND WILL NOT START''
    We have been unable to contact the owner to confirm the details
related in his complaint.
    This vehicle, with 105,985 miles, was bought at auction in July,
2015 by a used car dealer in Texas before being sold, on September 9th
to the current owner (and VOQ filer). Fifty-seven days later the
alleged crash occurred due to an engine stall. No police report was
filed. The Carfax service history shows no transmission/radiator-
related repairs and indicates that the only service work done on the
vehicle since September 9, 2015 was a ``maintenance inspection'' at
111,916 miles.

8.4 Alleged crash report #4--VOQ 10854627--Loss of motive power

    This VOQ was filed with us on April 10, 2016 alleging that a crash
occurred on September 15, 2015 involving a

MY2006 Nissan Frontier. The Carfax Vehicle History Report shows there
have been at least 5 owners of this truck with the current owner filing
a VOQ containing this narrative:
    ``I BOUGHT MY 06 NISSAN FRONTIER WITH 95000 MILES GREAT TRUCK LOVED
IT WHEN IT GOT TO 118000 MILES THE RADIATOR MESSED UP CAUSING ME TO
REPLACE THE RAD AND TRANS FLUSH 500$ TWO WEEKS LATER NO REVERSE ONE DAY
HEADED HOME FROM WORK GOING UP LICK HILL SECOND GEAR GOS OUT CAUSING ME
TO GET REARENED THEN THERE'S 200$ FOR TOWING AND A SMASHED UP TRUCK
JUST SPENT 8000 ON THE TRUCK AND CAN NOT AFFORD TO PUT 4000 MORE IN IT
WHAT THE HELL THIS IS A JOKE MY TRUCK WILL ROT TO THE GROUND BEFORE I
SPEND 4000 MORE I HOPE THIS IS TAKEN CARE OF NOBODY SHOULD HAVE TO DEAL
WITH THIS NOW I A PIECE OF JUST THAT'S NOT WORTH 2500 NISSAN U SUCK''
    In a subsequent telephone conversation with us, the owner said,
after finding co-mingled ATF/engine coolant, he replaced the radiator
and then had an independent repair shop perform a transmission fluid
flush. The transmission still would not shift into reverse. No further
repair attempts were made. Two weeks later the September 15th crash
occurred. No police accident report was filed and the vehicle has been
parked since.

9.0 ODI VEHICLE INSPECTIONS

    ODI met with two local owners for an interview and vehicle
inspection. The second prompted the discovery, and inspection, of a
third vehicle.

9.1 VOQ 10695005

    On June 28, 2016, we met with the original owner of the MY 2007
Nissan Pathfinder at his home in the Baltimore, MD suburbs. We focused
on this owner because his vehicle was involved in a loss of motive
power incident; the dealer confirmed the fluid was co-mingled; and it
had not been repaired. His VOQ (10695005), filed on March 18, 2015,
included the following summary:
    ``PURCHASED 2007 NISSAN PATHFINDER BRAND NEW. BROUGHT TO NISSAN
DEALER DUE TO CHECK ENGINE LIGHT ON DASHBOARD. DIAGNOSIS PERFORMED AND
DETERMINED RADIATOR/TRANSMISSION FLUID/COOLANT LEAKING INTO
TRANSMISSION. ESTIMATED REPAIR $6000 TO REPLACE RADIATOR/THERMOSTAT/
TRANSMISSION. AT 140000 MILES, NISSAN STATES NO LONGER UNDER POWERTRAIN
WARRANTY. DECLINED SERVICE.''
    While meeting with the owner, he told us that about a week after
filing his VOQ, he drove the Pathfinder, with his family, to a birthday
party about 20 miles away. He noted that the vehicle seemed to shudder
when shifting and that engaging ``Drive'' occurred sluggishly when
shifting out of ``Park''. While driving home from the party, it
suddenly became difficult to keep up with traffic on the Baltimore
beltway. Soon he was driving in the far right lane with his flashers
on. They finally made it home but the vehicle was unable to negotiate
the ramp onto his driveway so he just parked it on the ramp. The
following day he was able to move the vehicle in reverse and he parked
it, on the street in front of his house, where it remained until our
visit.
[GRAPHIC] [TIFF OMITTED] TN01NO16.133

    The owner advised he had made no attempt to have the vehicle
repaired due to the estimated $6,000.00 repair cost. He was aware of
both Nissan's extended warranty and the class action settlement but
neither would cover his repair due to both age (now 11 years) and
mileage (greater than 100,000).
    During our visit, we removed the radiator cap and found co-mingled
ATF/coolant.

[GRAPHIC] [TIFF OMITTED] TN01NO16.134

    We then drove the vehicle, accompanied by the owner, around his
neighborhood. The engine started easily as the owner had charged the
battery in anticipation of our meeting. Initially, no transmission
shift anomalies were noted but the check engine light was illuminated
as described over a year earlier in the subject VOQ. However, as the
engine warmed up, we began to notice sluggish engagement whenever the
transmission would up-, and down-, shift. After about 10 minutes, we
parked in front of his house. No other transmission anomalies were
noted.
    When asked why, after being told by the dealer that he needed a new
transmission, he elected to drive to the birthday party in the
Pathfinder with his wife and three children, he told us he did not
realize that the transmission might fail in a way that would make it
impossible to maintain highway speed. He further advised that he did
not want to spend $6,000.00 to repair the vehicle and was awaiting the
outcome of this investigation before deciding whether to sell the
vehicle or have it repaired.

9.2 VOQ 10721809

    On May 27, 2015 we received a VOQ from the owner of a MY2006 Nissan
Pathfinder located in the northern Baltimore suburbs. She is the
vehicle's second owner, having purchased it on October 8, 2011. Vehicle
mileage was 53,887 at that time. The VOQ summary reads:
    ``TRANSMISSION IS SHAKY AND JERKS WHEN SHIFTING, APPARENTLY NISSAN
KNEW ABOUT RADIATOR COOLANT LEAKING INTO THE TRANSMISSION LINE!!!''
    We decided to meet with this owner because the dealer installed an
aftermarket ATF cooler in addition to replacing the radiator and
transmission. On June 30, 2016 we met at her work and inspected her
vehicle.

[GRAPHIC] [TIFF OMITTED] TN01NO16.135

    She advised that the radiator and transmission were replaced by her
local Nissan dealer on December 15, 2015 and provided a copy of the
repair order. At the time her vehicle was less than 10 years old and
had fewer than 90,000 miles (87,110), thus she was eligible for the
$3,000.00 deductible extended warranty coverage. We confirmed that an
external ATF cooler had been installed. After discussing the repair, we
removed the radiator cap and found apparent co-mingled fluid:
[GRAPHIC] [TIFF OMITTED] TN01NO16.136

    Further inspection found that the aftermarket cooler had been
installed ``in series'' so that ATF still flowed through the OE ATF
cooler. Thus, a failure of the OE cooler could still result in co-
mingled ATF and engine coolant.

We were to confirm that the source of the co-mingled fluid resulted
from an OE cooler failure, however.

9.2.3 No VOQ

    Following our visit with owner two (VOQ 10721809), we cold-called a
local Nissan dealer service department to learn about its perspective
concerning subject transmission failures due to ATF/engine coolant co-
mingling.
    The service manager advised that his department had replaced
``about 30'' subject transmissions due to ATF cooler failures. ``In
fact, he said, we have one in right now.'' He then led us out to the
lot where we found this 2005 Xterra:
[GRAPHIC] [TIFF OMITTED] TN01NO16.137

    Upon removing the radiator cap, we found evidence of fluid co-
mingling:
[GRAPHIC] [TIFF OMITTED] TN01NO16.138

    When asked for this vehicle owner's contact information, the
service manager was reluctant to provide it without first contacting
the customer. He said would have them call us. As of September 21, 2016
we have not heard from the customer.
    According to a Carfax report, run on September 21, 2016, this
vehicle has had three owners. The first sold the vehicle on December
18, 2010 with 38, 353 miles. The second owner traded in the vehicle on
July 15, 2016 (16 days after we inspected it) with 102, 816 miles. On
September 5, 2016 the vehicle was sold at auction to an unidentified
buyer as a ``dealer vehicle.'' The last service noted occurred on June
27, 2016 as ``recommended maintenance performed/Oil and filter
changed.'' No transmission or radiator-related work is identified.

10.0 COST OF REPAIR

    The single most commonly reported concern, expressed by 1,288 of
the 2,505 owners filing related VOQs with us, is repair cost. Once an
automatic transmission has been exposed to engine coolant due to a
radiator failure, vehicle owners are faced with an expensive repair.
With subject vehicles, a radiator replacement and fluid flush costs
between $500.00 and $1,000.00. However, fluid flushes do nothing to
reverse damage done to transmission clutch material. Thus, replacing a
subject transmission (to effectively repair the vehicle) will cost an
additional $3,200.00 to $6,500.00 for a total repair cost (radiator and
transmission replacement) of $4,200.00-$7,500.00. Since these failures
occur on some vehicles greater than ten years old, such an expense may
be more than 50% of vehicle re-sale value. Finally, despite two
warranty extensions by Nissan and a class action settlement, owners are
still faced with a steep repair bill to correct a manufacturing issue.

10.1. Nissan's first extended warranty

    In October, 2010, Nissan extended its warranty coverage of subject
radiators to 8 years/80,000 miles from the original 3 years/36,000
miles. Nissan claims it did this to ``demonstrate our commitment to
stand behind our products and our customers, by addressing an issue
that had been identified with a limited number of vehicles.
Specifically, in a small number of vehicles equipped with automatic
transmissions, a crack in the radiator assembly might occur at higher
mileages leading to internal leakage of engine coolant.'' No direct
notice of this warranty extension was sent to the affected customers.
Nissan later claimed such coverage extended to ``other affected
components'' (such as the transmission). However, affected Nissan
customers report that the company would refuse to cover replacement of
automatic transmissions damaged by such ``internal leakage of engine
coolant'' resulting from a ``crack in the radiator assembly.'' Here is
one such report:
    VOQ 10310194--``I OWN A 2005 NISSAN PATHFINDER AND I HAVE BEEN
HAVING PROBLEMS WITH THE HEAT STAYING CONSISTENT (DOES NOT BLOW HOT AIR
WHEN IDLE) AS WELL A VIBRATION WHEN DRIVING AT CERTAIN SPEEDS. I ALSO
BEGIN TO NOTICE THAT TRANSMISSION BEGAN TO SLIP. I WOULD STOP AT A RED
LIGHT AND GO TO TAKE OFF AND WOULD NOT BE ABLE TO PICK UP SPEED WHICH
CAN BE DANGEROUS WHEN ENTERING THE HIGHWAY. I RESEARCHED THIS ONLINE
AND FOUND MANY OTHERS HAVING THE SAME PROBLEMS. I TOOK THE TRUCK TO A
NISSAN DEALERSHIP AND THEY TOLD ME EXACTLY WHAT I ALREADY KNEW, THE
RADIATOR WAS NOW NO GOOD AND LEAKING ANTIFREEZE INTO THE TRANSMISSION
WHICH HAS CAUSED BOTH OF THEM TO BE RUINED AND THEY WANT TO CHARGE ME
5K TO REPLACE. I ASKED IF THE DEALERSHIP HAS SEEN THIS BEFORE AND IT
WAS CONFIRMED THAT SEVERAL OF THE SAME VEHICLES HAVE BEEN IN FOR THIS
VERY REASON. HE ADVISED THAT NISSAN HAS NOT PAID FOR THESE SERVICES AS
THE VEHICLES ARE ALWAYS OUT OF WARRANTY ON THE RADIATOR. I STILL HAVE
2000 MILES LEFT ON MY POWERTRAIN AND ADVISED THAT I WOULD BE CONTACTING
NISSAN FOR ``GOODWILL'' ASSISTANCE. NISSAN FINALLY CONTACTED ME AND
ADVISED THAT SINCE THE PROBLEM WAS INITIALLY CAUSED BY THE RADIATOR,
THEY WOULD NOT HONOR THE POWERTRAIN WARRANTY...''

10.2 Class Action Lawsuit

    On September 30, 2010, shortly before Nissan's first extension of
subject radiator warranty terms, a class action lawsuit was filed
against the company alleging cross-contamination (co-mingling) of
coolant and transmission fluid in MY 2005 Nissan Pathfinders. Nissan
asserts it was already in the process of extending the warranty before
the lawsuit was filed.\4\ Later, the lawsuit complaint was amended to
include all vehicles covered by Nissan's first warranty extension
(which are also the ``subject vehicles'' in this petition analysis).
---------------------------------------------------------------------------

    \4\ DECISION MEMORANDUM, United States District Court, S.D. New
York; in re NISSAN RADIATOR/TRANSMISSION COOLER LITIGATION; No. 10
DV 7493(VB); May 30, 2013, page 1.
---------------------------------------------------------------------------

    On July 23, 2012, Nissan and the plaintiffs agreed to settlement
terms and formal settlement papers were executed in August, 2012. On
October 9, 2012 the court preliminarily approved the following
settlement and granted the plaintiff attorneys application for an award
of attorneys' fees in the amount of $1,620,000.00.
    ``Nissan agrees to make repairs through authorized [Nis-san]
Dealers, if and as needed, on the radiator assembly and other damaged
components (including the trans-mission) in Class Vehicles owned or
leased by Settlement Class Members because of cross-contamination of
engine coolant and transmission fluid (and inclusive of towing costs,
if any) as a result of a defect in the radiator up to a maximum of 10
years or 100,000 miles, which-ever is less, subject to the following
customer co-pay:
    (a) All repairs on vehicles that exceed eight years or 80,000
miles, whichever is less, but fewer than nine years or 90,000 miles,
whichever is less, are subject to a customer co-pay in the amount of
$2500 which is the responsibility of the Settlement Class Member.
    (b) All repairs on vehicles that exceed nine years or 90,000 miles,
whichever is less, but fewer than 10 years or 100,000 miles, whichever
is less, are subject to a customer co-pay in the amount of $3000 which
is the responsibility of the Settlement Class Member.
    Nissan also agreed to reimburse Class Members who have paid for
repairs to their radiators and other damaged components (including the
transmission) because of cross-contamination of engine coolant and
transmission fluid as a result of a defect in the radiator between 8
years/80,000 miles, whichever occurs first, and 10 years/100,000 miles,
whichever occurs first, subject to the mileage-related co-payments
described above. Reimbursement is inclusive of towing costs, if any,
incurred as a result of this problem.''
    On January 7, 2013, settlement notices were sent to the subject
vehicle owners.

10.3 Nissan's second extended warranty

    On October 12, 2012, three days after the court approved the class
action lawsuit settlement, Nissan released the

following bulletin notifying its dealers that it was further extending
warranty coverage of subject radiators.
[GRAPHIC] [TIFF OMITTED] TN01NO16.139

    The terms described in this bulletin are identical to those found
in the lawsuit settlement, including the specific reference to coverage
of transmissions damaged as a result of radiator failure and the
reimbursement provision. And, as in the class settlement, there would
be no assistance for owners of subject vehicles older than 10 years or
with more than 100,000 miles.

11.0 NHTSA ANALYSIS

    Automatic transmission failures as a result of clutch degradation
(which, in this case occurs due to contamination by engine coolant) are
progressive. Prior to a complete breakdown, vehicle performance will
exhibit hesitation when shifting from Park to D/R, harsh shifting,
intermittent slippage and/or vehicle shudder before a loss of motive
force occurs. In many instances drivers report they had no idea that
vehicle shift shudder would ultimately result in a loss of motive power
and leave them stranded if they ignored an apparent problem with their
vehicle's transmission. Those that do have the vehicle inspected for
``shift shudder,'' for example, many times refuse the service due to
cost and continue driving it instead. Others, faced with the expense of
replacing the transmission and radiator (frequently without the benefit
of the extended warranty or class action settlement since their vehicle
is either too old or has too many miles), simply sell it to an
unsuspecting buyer. Indeed, the four crashes alleged to have occurred
due to the subject issue involved vehicles that had been purchased,
used, less than two months earlier at an average of 109,000 miles. The
petitioner (NCCC) recognized this latter scenario in a May 18, 2016
consumer advisory against purchasing a subject vehicle.\5\
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    \5\ North Carolina Consumer Council at www.ncconsumer.org/news-articles/nccc-advises-against-the-purchase-of-nissan-pathfinder-frontier-and-xterra-vehicles.

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    The United States Code for Motor Vehicle Safety (Title 49, Chapter
301) defines motor vehicle safety as ``the performance of a motor
vehicle or motor vehicle equipment in a way that protects the public
against unreasonable risk of accidents occurring because of the design,
construction, or performance of a motor vehicle, and against
unreasonable risk of death or injury in an accident, and includes
nonoperational safety of a motor vehicle.''
    The Office of Defects Investigations (ODI) has opened many defect
investigations into engine stalling and/or loss of motive power. The
majority of investigations resulting in safety recalls involved a
complete loss of motive power, frequently accompanied by loss of power-
assist to steering and brake systems (the latter conditions not present
here). Factors that support recalls to remedy these conditions include
a lack of warning or precursor symptoms to the driver; stalling during
power-demand situations such as accelerating or to maintain highway
speeds/uphill grades; and an inability to immediately ``restart'' or
restore mobility to a stranded vehicle. Absent very high failure rates
in new vehicles, NHTSA has not successfully pursued hesitation, reduced
engine power modes, or stalling outside the conditions listed above,
primarily because these conditions have not been found to demonstrate
an unreasonable risk to motor vehicle safety. Experience of harsh
shifting and transmission degradation over time would typically fall
into this category, even if it leads to an eventual loss of motive
power condition.

12.0 FINDINGS

1. Of the 2,505 complaints received through September 13, 2016, 1,288
(51%) mention repair cost . . . the single most cited issue
2. The high repair cost motivates many owners to delay repair if one is
done at all. The extended warranty/CA settlement terms contribute to
this.
3. Cost of repair motivates some owners to sell un-repaired vehicles w/
o disclosing co-mingling problem
4. Transmission failures resulting in LOMP, due to co-mingled fluid,
are slowly progressive . . . vibration, shift degradation, slipping,
then loss of motive power.
5. While many owners acknowledge noticing shift quality degradation,
they did not understand that, if left untended, it could result in loss
of motive force.
6. Three of the four alleged crashes involve pre-event warning symptoms
which were ignored and all involved used vehicles that had recently
been purchased presumably with a pre-existing fluid co-mingling
condition.

13.0 CONCLUSION

    Based on the foregoing analysis, there is no reasonable possibility
that an order concerning the notification and remedy of a safety-
related defect would be issued as a result of granting Mr. Oliver's
petition. Therefore, in view of the need to allocate and prioritize
NHTSA's limited resources to best accomplish the agency's safety
mission, the petition is denied.
[FR Doc. 2016-26289 Filed 10-31-16; 8:45 am]
 BILLING CODE 4910-59-P


[Federal Register Volume 80, Number 63 (Thursday, April 2, 2015)]
[Notices]
[Page 17742]
[FR Doc No: 2015-07537]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL15-53-000]

California Independent System Operator Corporation; Notice
Setting Due Date for Interevention in Section 206 Proceeding

    On March 16, 2015, the Commission issued an order in Docket Nos.
EL15-53-000, and ER15-861-000 pursuant to section 206 of the Federal
Power Act, 16 U.S.C. 824e (2012), instituting an investigation to
determine the justness and reasonableness of the Energy Imbalance
Market provisions in the California Independent System Operator
Corporation's existing tariff related to the imbalance energy price
spikes in PacifiCorp's balancing authority areas. California
Independent System Operator Corporation, 150 FERC ] 61,191 (2015). On
March 17, 2015, the Commission issued a notice establishing a refund
effective date.
    Any interested persons desiring to be heard in Docket No. EL15-53-
000 should file a notice of intervention or motion to intervene, as
appropriate, in accordance with Rule 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.214) by 5 p.m. ET on April 15, 2015.
The Commission encourages electronic submission of interventions in
lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
Persons unable to file electronically should submit an original hard
copy of the intervention to the Federal Energy Regulatory Commission,
888 First Street NE., Washington, DC 20426.

    Dated: March 26, 2015.
Kimberly D. Bose,
Secretary.
[FR Doc. 2015-07537 Filed 4-1-15; 8:45 am]
BILLING CODE CODE 6717-01-P