81 FR 75907 - Denial of Motor Vehicle Defect Petition, DP12-004

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration

Federal Register Volume 81, Issue 211 (November 1, 2016)

Page Range		75907-75920
FR Document		2016-26289

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.''

Federal Register, Volume 81 Issue 211 (Tuesday, November 1, 2016)

[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Notices]
[Pages 75907-75920]
From the Federal Register Online [www.thefederalregister.org]
[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: 202-366-4806.

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

[[Page 75908]]

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

[[Page 75909]]

[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\
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\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.
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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.

[[Page 75910]]

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

[[Page 75911]]

[GRAPHIC] [TIFF OMITTED] TN01NO16.131

[[Page 75912]]

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

[[Page 75913]]

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

[[Page 75914]]

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.

[[Page 75915]]

[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.

[[Page 75916]]

[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.

[[Page 75917]]

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

[[Page 75918]]

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

[[Page 75919]]

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\
---------------------------------------------------------------------------

\5\ North Carolina Consumer Council at www.ncconsumer.org/news-articles/nccc-advises-against-the-purchase-of-nissan-pathfinder-frontier-and-xterra-vehicles.

---------------------------------------------------------------------------

[[Page 75920]]

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

75908 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Notices

accomplish the agency’s safety mission, transmission fluid coolers from 3yrs/ • Gathered and reviewed information
the petition is denied. 36,000 miles to 8yrs/80,000 miles and related to the class action lawsuit cited
Authority: 49 U.S.C. 30162(d); delegations that this coverage applied only to the by the petitioner.
of authority at CFR 1.50 and 501.8. radiator/cooler but not to transmissions • Reviewed vehicle production
that may have been damaged as a quantity information from Nissan.
Jeffrey M. Giuseppe, consequence of cooler failures. • Interviewed owners, in person and
Acting Associate Administrator for Additionally, Nissan failed to conduct by telephone, about their experience
Enforcement. inspections that may have revealed a with related transmission failures.
APPENDIX—Petition ANALYSIS— cooler failure was imminent thus • Test drove subject vehicles where
DP12–004 allowing consumers avoid a transmission fluid and engine coolant
catastrophic transmission failure; and were co-mingled and transmission
1.0 INTRODUCTION (5) A class action lawsuit was filed in problems were evident and unresolved.
On February 29, 2012 the National 2010 on behalf of clients relating to this • Interviewed Nissan dealer service
Highway Traffic Safety Administration alleged defect. staff about the subject issue.
(NHTSA) received a letter from Mr. Mr. Oliver concluded his petition by • Interviewed independent
Mathew Oliver, Director of Operations stating, ‘‘Through our limited transmission repair shop staff about the
for the North Carolina Consumers investigation into the matter, all of the subject issue.
Council, Inc. (NCCC); petitioning the vehicles experiencing these • In an effort to learn more about the
agency to conduct ‘‘a defect [transmission] failures are within the 8 transmission coolant tank failures, ODI
investigation into MY 2005–2010 Nissan year period specified by the extended secured the services of NHTSA’s
Pathfinder, Frontier, and Xterra vehicles warranty but are often beyond the Vehicle Research and Test Center
[the subject vehicles] for automatic 80,000 mile limit. It also appears that (VRTC). VRTC did the following:
transmission failures related to failed the number of reported defects is A. Interviewed subject vehicle owners
transmission coolers.’’ increasing, which is concerning to say and test drove their vehicles; and
Mr. Oliver’s letter included the the least. Due to the nature of the B. Conducted a root cause analysis to
following information: reported defect, the severity of the determine why subject fluid cooler
(1) ‘‘During the past six months, five reported failures, the repetitive nature of tanks were failing.
owners of 2005 Xterra vehicles, and one the failures and the limited or missing Based on our analysis of the
owner of a 2006 Frontier vehicle, failure warning signs, we believe that an information gathered during this
reported that they experienced sudden investigation is warranted.’’ 1 comprehensive effort, it does not appear
jerking of their vehicle(s) at highway In analyzing the petitioner’s there is a reasonable possibility that an
speeds. They report, in all instances, allegations and preparing a response, order concerning the notification and
that dealers diagnosed the problem as a we: remedy of a safety-related defect would
failed transmission fluid cooler located • Reviewed the petitioner’s letter, be issued as a result of granting Mr.
in the radiator that allowed coolant to received on February 29, 2012. Oliver’s petition. Therefore, in view of
mix with, and contaminate, the • Reviewed the NCCC Web site for the need to allocate and prioritize
automatic transmission fluid resulting additional information. NHTSA’s limited resources to best
in damaged internal transmission • Reviewed 2,505 individual accomplish the agency’s safety mission,
components and a damaged internal complaints filed in our consumer the petition is denied.
transmission computer. The complaints complaint database through September
report no warning signs leading up to or 13, 2016. 2.0 SUBJECT VEHICLES
just prior to the failures’’; • Reviewed individual vehicle Carfax The subject vehicles are all MY 2005–
(2) ‘‘NCCC has learned from Web site information to determine ownership 10 Nissan Pathfinder, Frontier, and
searches, and through the NHTSA Web and service histories. Xterra vehicles equipped with a
site, of many other similar complaints in • Reviewed vehicle manufacturer RE5R05A 5-spd, electronically
the subject vehicles. Web site data and information concerning relevant controlled, automatic transmission.
NHTSA reports usually [report] the extended warranty programs. Nissan produced 857,432 subject
same symptoms and lack of warning. • Reviewed vehicle manufacturer vehicles for sale in the United States.
Numerous complaints on the NHTSA technical information concerning
Web site note repeat oil [sic] cooler and transmission operation. 3.0 SUBJECT TRANSMISSION
transmission failures’’; • Reviewed vehicle manufacturer COOLING SYSTEM
(3) Nissan extended its warranty technical information concerning The subject vehicles are equipped
coverage of subject vehicles’ radiator/ transmission control module (TCM) and with a transmission fluid cooler. The
transmission fluid coolers from 3yrs/ engine control unit (ECU) functional cooler, a cylindrical tank located within
36,000 miles to 8yrs/80,000 miles and relationship, including transmission the radiator and submerged in engine
that this coverage applied only to the related fault codes triggering an coolant, acts as a heat exchanger. Hot
radiator/cooler but not to transmissions illuminated ‘‘malfunction indicator transmission fluid flows from the
that may have been damaged as a lamp.’’ transmission to, and through, the tank
consequence of cooler failures; • Reviewed various ODI safety defect where it is ‘‘cooled’’ before returning to
(4) Nissan extended its warranty investigations related to engine stalling the transmission. The tank is not visible
asabaliauskas on DSK3SPTVN1PROD with NOTICES

coverage of subject vehicles’ radiator/ and loss of motive power (LOMP). unless the radiator is disassembled.

1 Mathew Oliver, to Administrator, National

Highway Traffic Safety Administration,
Washington, DC, 29 February 2012, page 2.

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Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Notices 75913

8.0 ALLEGED CRASH REPORTS ‘‘I REQUEST THAT THE DOT 8.3 Alleged crash report #3—VOQ
Four crashes are alleged; two due to NHTSA INVESTIGATE 10789140—Engine Stall
loss of motive power, one due to an MANUFACTURER DEFECTS IN 2007 This VOQ was filed on November 9,
engine stall, and the fourth due to NISSAN PATHFINDERS COOLING 2015 by the owner of a MY2008 Nissan
vehicle shudder. SYSTEM AND TRANSMISSION AS Pathfinder. It contains the following
UNEXPECTED FAILURE RELATES TO summary:
8.1 Alleged crash report #1—VOQ
DRIVER SAFETY. MY 2007 ‘‘ ON NOVEMBER 6, 2015 AROUND
10555827—Loss of motive power
PATHFINDER WITH 90,000 MILES OR ABOUT 7:00PM MY V6 2008
This VOQ was filed with us on CAUSED A MAJOR COLLISION WITH NISSAN PATHFINDER SERVICE
December 12, 2013 by the second owner A DEER AS THE TRANSMISSION ENGINE LIGHT TURNED ON WHILE IN
of a MY2008 Nissan Xterra. No VIN was BEGAN TO FAIL. DRIVING HOME, AT FIRST GEAR IN MOSTION; THE SUV
provided. It includes this summary: AROUND 40MPH, UP A HILL (ENGINE ENGINE AND TRANSMISSION
‘‘WHILE DRIVING THROUGH THE TURNED OFF HAD NO BRAKES AND
UNDER LOAD @2,200–2,500 RPM) THE
INTERSECTION, MY VEHICLE HAD A FENDER BENDER WHILE IN
SUDDENLY LOST POWER CAUSING WHOLE CAR BEGAN SUDDENLY TO
‘‘SHUDDER’’- SIMILAR TO THE MOTION, HAD THE SUV TOWED
ME TO GET REAR ENDED. VERY HOME AND CHECKED THE CODE ON
MINIMAL DAMAGE TO MY VEHICLE FEELING/SOUND OF RIDING OVER
HIGHWAY RUMBLE STRIPS. THIS THE OBD AND IT READ CODE: U1000
BUT MY DAUGHTER WAS IN THE CONTROLLER AREA NETWORK (CAN)
CAR WITH ME. UPON FURTHER RESULTED IN A LOSS OF CONTROL
OVER THE SPEED OF THE VEHICLE COMMUNCATION LINE SIGAL
INSPECTION AT A SHOP IT WAS
AND A NOTICEABLE DISTRACTION MALFUNCTION.DID A VISUAL CHECK
CONCLUDED THAT THE CAUSE OF
LEAVING ME UNPREPARED AS A INSIDE RADIATOR FILLER PORT,
THE LOSS OF POWER WAS DUE TO A
ELECTRICAL FUSE (10AMP FUSE TO
FAILURE IN THE TEAMS FLUID LARGE BUCK RAN OUT FROM THE
THE TRANSMISSION BLEW WHICH
COOLER CAUSING RADIATOR FLUID TREE LINE ATTEMPTING TO CROSS
ATOMCTICLY TOLD ME A
TO ENTER THE TRANSMISSION. ‘‘ THE ROAD- THE BUCK DID NOT
In a subsequent telephone COMMUNICATION HARNESS IS OPEN
MAKE IT ACROSS. AS I HAVE FOUND OR SHORTED; OR A FAULTY ENGINE
conversation, complainant stated that he IN MY RESEARCH AFTERWARDS,
had purchased the vehicle, with 112,098 CONTROL MODULE(ECM))AND ALSO
THERE IS A WIDELY KNOWN CHECKED THE RESIVOR FILLER
miles, from a private owner on MANUFACTURER DEFECT IN WHICH
December 6, 2013. No transmission or PORT, FOUND RED TRANSMISSION
ENGINE COOLANT MIXES WITH FLUID AND GREEN ENGINE COOLENT
radiator issues were disclosed. However TRANSMISSION FLUID. THE
some sluggishness in transmission up- FLUID INCORPORATED IN RADIATOR
RESULTING ‘‘GOOP’’ SHREDS THE (CONTAMINATION), ALSO CHECKED
and down- shifting was noted about a
day before the crash. INTERNAL PARTS OF THE TRANSMISSION DIP STICK TO SEE IF
The owner reported that he was TRANSMISSION RENDERING IT TRANSMISSON FLUIDS LOW BUT
driving the Xterra, with his 12 y.o. (ALONG WITH THE RADIATOR AND INSTEAD FOUND RUST AT THE END
daughter as a passenger, on December 9, COMPONENTS) COMPLETELY PART OF THE DIPSTICK INSIDE THE
2013 as they approached an intersection USELESS. THESE VEHICLES ARE TRANSMISSON INDICATING ENGINE
at about 40 mph. The vehicle suddenly UNSAFE FOR THE ROADWAYS AS COOLENT CONTAMINATION
lost motive power, slowed, and was THIS PROBLEM OCCURS SUDDENLY (WATER) ALL INSIDE THE
rear-ended resulting in damage to the AND UNEXPECTEDLY WITHOUT TRANSMISSION.WHO KNOW HOW
rear bumper and no personal injury. No WARNING. I CONSIDER MYSELF MUCH RUST IS INSIDE THE
police report was filed. Later that day, LUCKY FOR BEING ALIVE- NOW, BUT TRANSMISSION UNTIL A FULL TEAR
he drove the Xterra to his local Nissan SINCE NISSAN NOR ANY OTHER DOWN AND THOROUGH INSPECTION
dealer where co-mingled fluids were ORGANIZATION IS WILLING TO IS PERFORMED.....CAR IS
found. He was given a repair estimate of RECALL OR REPLACE THIS VEHICLE/ STATIONARY AND WILL NOT
$4500 to replace the radiator and AFFECTED PARTS, I AM STUCK, START’’
transmission. He was also told that, FORCED [EMPHASIS ADDED] TO We have been unable to contact the
based on vehicle age and mileage, he owner to confirm the details related in
DRIVE ON THE ROAD BEING A
was not eligible of either Nissan’s his complaint.
HAZARD TO OTHERS AND MYSELF.’’
extended warranty or the class action This vehicle, with 105,985 miles, was
settlement terms (which are, in fact, Numerous attempts to contact this bought at auction in July, 2015 by a
identical). So, unable to afford this filer, by mail, email, and telephone have used car dealer in Texas before being
repair, the vehicle has been parked near been unsuccessful. sold, on September 9th to the current
his home since. According to the VOQ, the incident owner (and VOQ filer). Fifty-seven days
We attempted to gather service and was not reported to police. later the alleged crash occurred due to
owner history information but without a an engine stall. No police report was
A Carfax vehicle history report reveals filed. The Carfax service history shows
VIN have been unable to do this. The
that the subject owner, the vehicle’s no transmission/radiator-related repairs
owner agreed to provide the VIN by
second, purchased it on February 21, and indicates that the only service work
email. To date he has not done so.
2009 at 29,526 miles. The detailed
asabaliauskas on DSK3SPTVN1PROD with NOTICES

done on the vehicle since September 9,
8.2 Alleged crash report #2—VOQ service history includes 11 service visits 2015 was a ‘‘maintenance inspection’’ at
10561840—Shudder prior to the alleged crash . . . none 111,916 miles.
This VOQ was filed with ODI on related to either the transmission or
January 28, 2014 by the second owner radiator nor are any crash-related 8.4 Alleged crash report #4—VOQ
of a MY2007 Nissan Pathfinder. The repairs identified either before or after 10854627—Loss of motive power
alleged crash occurred on January 10, the alleged crash date. We recognize, This VOQ was filed with us on April
2014, at about 90,000 miles which he however, that not all service attempts 10, 2016 alleging that a crash occurred
summarized as follows: may be documented in the report. on September 15, 2015 involving a

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75918 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Notices

When asked for this vehicle owner’s affected components’’ (such as the complaint was amended to include all
contact information, the service transmission). However, affected Nissan vehicles covered by Nissan’s first
manager was reluctant to provide it customers report that the company warranty extension (which are also the
without first contacting the customer. would refuse to cover replacement of ‘‘subject vehicles’’ in this petition
He said would have them call us. As of automatic transmissions damaged by analysis).
September 21, 2016 we have not heard such ‘‘internal leakage of engine On July 23, 2012, Nissan and the
from the customer. coolant’’ resulting from a ‘‘crack in the plaintiffs agreed to settlement terms and
According to a Carfax report, run on radiator assembly.’’ Here is one such formal settlement papers were executed
September 21, 2016, this vehicle has report: in August, 2012. On October 9, 2012 the
had three owners. The first sold the VOQ 10310194—‘‘I OWN A 2005 court preliminarily approved the
vehicle on December 18, 2010 with 38, NISSAN PATHFINDER AND I HAVE following settlement and granted the
353 miles. The second owner traded in BEEN HAVING PROBLEMS WITH THE plaintiff attorneys application for an
the vehicle on July 15, 2016 (16 days HEAT STAYING CONSISTENT (DOES award of attorneys’ fees in the amount
after we inspected it) with 102, 816 NOT BLOW HOT AIR WHEN IDLE) AS of $1,620,000.00.
miles. On September 5, 2016 the vehicle WELL A VIBRATION WHEN DRIVING ‘‘Nissan agrees to make repairs
was sold at auction to an unidentified AT CERTAIN SPEEDS. I ALSO BEGIN through authorized [Nis-san] Dealers, if
buyer as a ‘‘dealer vehicle.’’ The last TO NOTICE THAT TRANSMISSION and as needed, on the radiator assembly
service noted occurred on June 27, 2016 BEGAN TO SLIP. I WOULD STOP AT and other damaged components
as ‘‘recommended maintenance A RED LIGHT AND GO TO TAKE OFF (including the trans-mission) in Class
performed/Oil and filter changed.’’ No AND WOULD NOT BE ABLE TO PICK Vehicles owned or leased by Settlement
transmission or radiator-related work is UP SPEED WHICH CAN BE Class Members because of cross-
identified. DANGEROUS WHEN ENTERING THE contamination of engine coolant and
10.0 COST OF REPAIR HIGHWAY. I RESEARCHED THIS transmission fluid (and inclusive of
ONLINE AND FOUND MANY OTHERS towing costs, if any) as a result of a
The single most commonly reported HAVING THE SAME PROBLEMS. I defect in the radiator up to a maximum
concern, expressed by 1,288 of the 2,505 TOOK THE TRUCK TO A NISSAN of 10 years or 100,000 miles, which-ever
owners filing related VOQs with us, is DEALERSHIP AND THEY TOLD ME is less, subject to the following customer
repair cost. Once an automatic EXACTLY WHAT I ALREADY KNEW, co-pay:
transmission has been exposed to THE RADIATOR WAS NOW NO GOOD (a) All repairs on vehicles that exceed
engine coolant due to a radiator failure, AND LEAKING ANTIFREEZE INTO eight years or 80,000 miles, whichever
vehicle owners are faced with an THE TRANSMISSION WHICH HAS is less, but fewer than nine years or
expensive repair. With subject vehicles, CAUSED BOTH OF THEM TO BE 90,000 miles, whichever is less, are
a radiator replacement and fluid flush subject to a customer co-pay in the
RUINED AND THEY WANT TO
costs between $500.00 and $1,000.00. amount of $2500 which is the
CHARGE ME 5K TO REPLACE. I
However, fluid flushes do nothing to responsibility of the Settlement Class
ASKED IF THE DEALERSHIP HAS
reverse damage done to transmission Member.
SEEN THIS BEFORE AND IT WAS
clutch material. Thus, replacing a (b) All repairs on vehicles that exceed
CONFIRMED THAT SEVERAL OF THE
subject transmission (to effectively nine years or 90,000 miles, whichever is
SAME VEHICLES HAVE BEEN IN FOR
repair the vehicle) will cost an less, but fewer than 10 years or 100,000
THIS VERY REASON. HE ADVISED
additional $3,200.00 to $6,500.00 for a miles, whichever is less, are subject to
THAT NISSAN HAS NOT PAID FOR
total repair cost (radiator and a customer co-pay in the amount of
THESE SERVICES AS THE VEHICLES
transmission replacement) of $4,200.00- $3000 which is the responsibility of the
ARE ALWAYS OUT OF WARRANTY
$7,500.00. Since these failures occur on Settlement Class Member.
ON THE RADIATOR. I STILL HAVE
some vehicles greater than ten years old, Nissan also agreed to reimburse Class
2000 MILES LEFT ON MY
such an expense may be more than 50% Members who have paid for repairs to
POWERTRAIN AND ADVISED THAT I
of vehicle re-sale value. Finally, despite their radiators and other damaged
WOULD BE CONTACTING NISSAN
two warranty extensions by Nissan and components (including the
FOR ‘‘GOODWILL’’ ASSISTANCE.
a class action settlement, owners are transmission) because of cross-
NISSAN FINALLY CONTACTED ME
still faced with a steep repair bill to contamination of engine coolant and
AND ADVISED THAT SINCE THE
correct a manufacturing issue. transmission fluid as a result of a defect
PROBLEM WAS INITIALLY CAUSED
10.1. Nissan’s first extended warranty BY THE RADIATOR, THEY WOULD in the radiator between 8 years/80,000
NOT HONOR THE POWERTRAIN miles, whichever occurs first, and 10
In October, 2010, Nissan extended its
WARRANTY...’’ years/100,000 miles, whichever occurs
warranty coverage of subject radiators to
first, subject to the mileage-related co-
8 years/80,000 miles from the original 3 10.2 Class Action Lawsuit payments described above.
years/36,000 miles. Nissan claims it did
On September 30, 2010, shortly before Reimbursement is inclusive of towing
this to ‘‘demonstrate our commitment to
Nissan’s first extension of subject costs, if any, incurred as a result of this
stand behind our products and our
radiator warranty terms, a class action problem.’’
customers, by addressing an issue that On January 7, 2013, settlement notices
lawsuit was filed against the company
had been identified with a limited were sent to the subject vehicle owners.
alleging cross-contamination (co-
number of vehicles. Specifically, in a
asabaliauskas on DSK3SPTVN1PROD with NOTICES

mingling) of coolant and transmission 10.3 Nissan’s second extended
small number of vehicles equipped with
fluid in MY 2005 Nissan Pathfinders. warranty
automatic transmissions, a crack in the
Nissan asserts it was already in the
radiator assembly might occur at higher On October 12, 2012, three days after
process of extending the warranty before
mileages leading to internal leakage of the court approved the class action
the lawsuit was filed.4 Later, the lawsuit
engine coolant.’’ No direct notice of this lawsuit settlement, Nissan released the
warranty extension was sent to the 4 DECISION MEMORANDUM, United States
affected customers. Nissan later claimed District Court, S.D. New York; in re NISSAN LITIGATION; No. 10 DV 7493(VB); May 30, 2013,
such coverage extended to ‘‘other RADIATOR/TRANSMISSION COOLER page 1.

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75920 Federal Register / Vol. 81, No. 211 / Tuesday, November 1, 2016 / Notices

The United States Code for Motor 6. Three of the four alleged crashes SUPPLEMENTARY INFORMATION: In a
Vehicle Safety (Title 49, Chapter 301) involve pre-event warning Federal Register notice published on
defines motor vehicle safety as ‘‘the symptoms which were ignored and October 20, 2016, the Department of
performance of a motor vehicle or motor all involved used vehicles that had Transportation solicited nominations for
vehicle equipment in a way that recently been purchased membership to the Advisory Committee
protects the public against unreasonable presumably with a pre-existing on Automation in Transportation
risk of accidents occurring because of fluid co-mingling condition. (ACAT). The ACAT shall undertake
the design, construction, or performance information gathering activities, develop
13.0 CONCLUSION
of a motor vehicle, and against technical advice, and present
unreasonable risk of death or injury in Based on the foregoing analysis, there recommendations to the Secretary to
an accident, and includes is no reasonable possibility that an order further inform this policy, including—
nonoperational safety of a motor concerning the notification and remedy but not limited to—aviation automated
vehicle.’’ of a safety-related defect would be navigation systems technologies,
The Office of Defects Investigations issued as a result of granting Mr. unmanned aircraft systems, automated
(ODI) has opened many defect Oliver’s petition. Therefore, in view of and connected road and transit vehicle
investigations into engine stalling and/ the need to allocate and prioritize technologies, enhanced freight
or loss of motive power. The majority of NHTSA’s limited resources to best movement technologies, railroad
investigations resulting in safety recalls accomplish the agency’s safety mission, automated technologies, and advanced
involved a complete loss of motive the petition is denied. technology deployment in surface
[FR Doc. 2016–26289 Filed 10–31–16; 8:45 am] transportation environments. In
power, frequently accompanied by loss
of power-assist to steering and brake BILLING CODE 4910–59–P particular, the ACAT will perform these
systems (the latter conditions not activities as they may relate to emerging
present here). Factors that support or ‘‘not-yet-conceived’’ innovations to
DEPARTMENT OF TRANSPORTATION ensure DOT is prepared when
recalls to remedy these conditions
include a lack of warning or precursor disruptive technologies emerge and can
Office of the Secretary
symptoms to the driver; stalling during better manage long term evolution of
power-demand situations such as [Docket No.: DOT–OST–2016–0203] training and education, regulation, and
accelerating or to maintain highway safety oversight. The ACAT shall
Advisory Committee on Automation in consider these topics and areas of
speeds/uphill grades; and an inability to Transportation
immediately ‘‘restart’’ or restore application as they alleviate or
mobility to a stranded vehicle. Absent AGENCY: Office of the Secretary, U.S. exacerbate challenges to disabled and
very high failure rates in new vehicles, Department of Transportation (DOT). disadvantaged populations.
NHTSA has not successfully pursued ACTION: Notice—Correction to
In the prior notice, the Department of
hesitation, reduced engine power Establishment of the Advisory Transportation stated that individuals
modes, or stalling outside the Committee on Automation in already serving on a Federal advisory
conditions listed above, primarily Transportation (ACAT) and Solicitation committee will be ineligible for
because these conditions have not been of Nominations for Membership. nomination. After further consideration,
found to demonstrate an unreasonable the Department finds it appropriate to
risk to motor vehicle safety. Experience SUMMARY: This notice corrects an consider applicants already serving on a
of harsh shifting and transmission October 20, 2016, Federal Register Federal advisory committee. As a result,
degradation over time would typically notice that announced the establishment interested parties may self-nominate or
fall into this category, even if it leads to of, and solicited nominations to serve submit a nomination for a candidate
an eventual loss of motive power on, the DOT’s Advisory Committee on who already serves on another Federal
condition. Automation in Transportation. It also advisory committee.
extends the deadline for nominations to Process and Deadline for Submitting
12.0 FINDINGS serve on the Committee. Nominations: Qualified individuals can
1. Of the 2,505 complaints received DATES: The deadline for nominations for self-nominate or be nominated by any
through September 13, 2016, 1,288 Committee members must be received individual or organization. To be
(51%) mention repair cost . . . the on or before November 16, 2016. considered for the ACAT, nominators
single most cited issue ADDRESSES: All nomination materials should submit the following
2. The high repair cost motivates many should be emailed to automation@ information:
dot.gov or faxed to the attention of John (1) Name, title, and relevant contact
owners to delay repair if one is
Augustine at (202) 366–0263, or mailed information (including phone, fax, and
done at all. The extended warranty/
to John Augustine, U.S. Department of email address) of the individual
CA settlement terms contribute to
Transportation, Office of the Secretary, requesting consideration;
this. (2) A letter of support from a
3. Cost of repair motivates some owners Office of Policy, Room W84–306, 1200
New Jersey Avenue SE., Washington, company, union, trade association,
to sell un-repaired vehicles w/o academic or non-profit organization on
disclosing co-mingling problem DC 20590. Any person needing
accessibility accommodations should letterhead containing a brief description
4. Transmission failures resulting in why the nominee should be considered
LOMP, due to co-mingled fluid, are contact John Augustine at (202) 366–
asabaliauskas on DSK3SPTVN1PROD with NOTICES

0353. for membership;
slowly progressive . . . vibration, (3) Short biography of nominee
shift degradation, slipping, then FOR FURTHER INFORMATION CONTACT: John including professional and academic
loss of motive power. Augustine, U.S. Department of credentials;
5. While many owners acknowledge Transportation, Office of the Secretary, (4) An affirmative statement that the
noticing shift quality degradation, Office of Policy, Room W84–306, 1200 nominee meets all Committee eligibility
they did not understand that, if left New Jersey Avenue SE., Washington, requirements.
untended, it could result in loss of DC 20590; phone (202) 366–0353; email: Please do not send company, trade
motive force. automation@dot.gov. association, or organization brochures or

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Document Created: 2016-11-01 02:35:46
Document Modified: 2016-11-01 02:35:46

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Denial of Petition for a Defect Investigation.
Contact		Bob Young, Office of Defects Investigation (ODI), NHTSA; 1200 New Jersey Ave. SE., Washington, DC 20590. Telephone: 202-366-4806.
FR Citation		81 FR 75907

81 FR 75907 - Denial of Motor Vehicle Defect Petition, DP12-004

DEPARTMENT OF TRANSPORTATIONNational Highway Traffic Safety Administration

Federal Register Volume 81, Issue 211 (November 1, 2016)

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration