These questions and answers have been published to assist suppliers in complying with their obligations under the compulsory Takata airbag recall notice.
When suppliers are preparing to take steps to contact consumers to commence airbag replacement they should submit a recall notification on the Product Safety Australia website. This process will generate a PRA number, the recall will be published on the Recalls page, and the previous 'future' recalls will be moved to the 'active' Takata airbag recalls list.
Where a supplier extends an existing active recall, in addition to notifying ACCC Recalls, it should also provide an updated VIN list that includes all previously recalled and additional vehicles. This information should also be provided to email@example.com specifying which vehicles from the future recalls list should now be on the active recalls list.
Under the compulsory recall, a vehicle is considered supplied or resupplied by a business when it is sold, leased or hired. This includes vehicles hired through a hire-purchase arrangement or an arrangement where a consumer purchases or obtains ownership of the vehicle at the end of a lease arrangement.
To make changes to the future Takata airbag recalls list, please contact firstname.lastname@example.org
If suppliers become aware of any vehicles included on the active Takata airbag recalls list where a recall has not yet been initiated (that is, consumers are not being contacted) please notify us at email@example.com.
The distinction between ‘active’ and ‘future’ recall is important as this status affects whether or not the vehicle can be supplied.
A vehicle is under ‘active recall’ when a supplier has taken steps to contact consumers to commence the replacement of the defective airbag.
A vehicle is no longer under ‘active recall’ when the airbag has been replaced. It may be under active recall again if further recall action is necessary in the future, for example when the vehicle is fitted with a ‘like-for-like’ replacement. When the supplier takes steps to contact consumers again to replace a ‘like-for-like’ replacement, it will again be under ‘active’ recall.
A vehicle is under ‘future recall’ when a supplier has stated that the vehicle will be recalled in the future and the supplier has not contacted consumers to organise a replacement airbag.
All vehicles that are subject to future recall should be contained in the supplier’s Recall Initiation Schedule and these details published on the Future Takata airbag recalls list.
Suppliers are required to identify and advise consumers if they have a vehicle that is fitted with an ATAI which poses a heightened safety risk of injury or death and should not be driven, and it is critical that replacement occurs immediately. The critical recall category applies to vehicles with alpha airbags and other ATAIs specified by the supplier. Suppliers should conduct risk assessments on an ongoing basis, as new information comes to light and as vehicles age. A vehicle’s status might need to be upgraded to critical to respond to an updated risk assessment.
When this occurs, suppliers’ communications and management of the recall of those vehicles must change accordingly. Owners of vehicles with a critical recall status should be advised to stop driving their vehicles and immediately organise the airbag replacement. Suppliers should offer to arrange for the vehicle to be towed to the place of replacement or for a qualified technician to travel to it (or some similar arrangement) so that the vehicle need not be driven for airbag replacement.
All vehicles with an alpha inflator must be classified as a critical recall. The critical recall status is not only for vehicles with alpha airbags. Critical recall status applies to vehicles with a heightened safety risk, which require immediate replacement of airbags and should not be driven. As the supplier you have an obligation to continuously assess and manage safety risks to consumers, and you are best placed to assess whether vehicles you have supplied have a critical recall status.
As new information comes to light and as vehicles age, you may need to update the recall status of certain vehicles to critical to reflect your ongoing risk assessment. Suppliers updating a vehicle’s recall status to be classified as a critical recall should:
- inform affected consumers directly consistent with critical alpha messaging
- ensure immediate action is taken to replace the ATAI
- update the recall status of the vehicle on your website’s recall database
- provide the relevant description of the safety risk and action required by the consumer
- provide consumers with access to towing services or a mobile technician so consumers do not have to drive the critical vehicle to have it repaired
- consider other special arrangements such as loan cars or reimbursement for alternative transportation costs
- report ‘Y’ in the VIN Status Report field — ‘Is the vehicle listed in your Recall Database identified as critical?’
- notify the ACCC by email at firstname.lastname@example.org with details of the following:
- PRA reference number
- campaign number
- vehicle makes and models
- model year range and relevant VINs, and an amended VIN list of these vehicles if the recall PRA/Campaign still includes non-critical vehicles.
Where sufficient parts are available to meet replacement schedules in accordance with priority factors, you are encouraged to bring forward repairs of affected vehicles where possible. For example, where parts become available earlier than scheduled or where a vehicle is being serviced and surplus parts are available.
You do not require permission from the ACCC to repair a vehicle prior to it being actively recalled. However, if an entire class of vehicles is being brought forward for repair, you are likely required to submit an amended Recall Initiation Schedule under the Recall Notice.
As suppliers, you are best placed to assess which vehicles in your fleet are to be prioritised over others, and are responsible for assessing and managing the safety risk to consumers. Suppliers should ensure they conduct a dynamic risk assessment, especially when assessing whether a vehicle should be designated (or reclassified) as critical and when assessing a request for special arrangements from a consumer. The Recall Notice places minimum obligations on suppliers. It does not prevent suppliers who, through conducting their risk assessment, determine that they require a quicker recall and, where it determines that the replacement should occur immediately, can do more for consumers in offering loan cars and other arrangements.
Do state and territory registration sanctions affect a supplier’s obligations under the Recall Notice?
A supplier’s obligations under the Recall Notice are not affected by any actions taken by state and territory registration authorities, including commencement of registration sanctions. The Recall Notice requires suppliers to continue to use best endeavours to identify vehicles with ATAIs and to seek to replace the ATAI whenever it identifies one. This obligation is ongoing, survives any ACCC confirmation of completion and extends beyond 31 December 2020 until a supplier can demonstrate with adequate evidence that it has achieved 100 per cent replacement.
Do I need to tell consumers what brand of airbag inflator I am using as a replacement?
The Recall Notice broadly requires that suppliers are transparent with affected consumers. The ACCC expects suppliers to provide information about the replacement parts being installed in affected vehicles when requested by the consumer, particularly if it would help ease their safety concerns.
Special circumstances include (but are not limited to) situations where the consumer is:
- elderly, infirm, or disabled
- located more than 250 kilometres from the nearest place of replacement or
- located on an island which does not have a dealer in the supplier’s dealer network or another qualified place of replacement authorised by the supplier.
When considering a request for special circumstances, you should have regard to:
- priority factors such as age and location of the vehicle
- the vehicle’s history
- the immediate location and environment it is now being driven in, regardless of where it is registered
- whether the vehicle can be safely and legally driven to a repair facility (e.g. if the vehicle is currently unregistered or undriveable)
- how the vehicle is being used and frequency of use, (e.g. whether it will impact the consumer’s work in addition to private use)
- driver capacity and circumstances that may increase the consequence of a misdeployment (e.g. consumer’s medical condition).
Suppliers’ websites must provide consumers with access to the supplier’s recall database that allows consumers to enter a VIN into a search field and obtain immediate information about their vehicle affected by the Takata recall. This information must include the vehicle’s model and year of manufacture, recall status, PRA number, and a description of the safety risk.
In advising affected consumers about their vehicle’s recall status the options are:
- under active recall for replacement now
- scheduled for future recall with the date it will be recalled in the future
- the recall and replacement is complete
- if applicable, is subject to a critical recall, which includes alpha airbags and other airbags you determine pose a heightened safety risk, require immediate replacement and should not be driven. A vehicle which is subject to a critical recall can be both critical and either active or complete.
Suppliers must ensure the status of all affected vehicles (including those under active and future recall) are accurately reflected in its recall database as consumers and businesses rely upon this information to ascertain the recall status of affected vehicles.
What does the Recall Initiation Schedule need to show?
The recall initiation schedule (which is approved by the ACCC) must specify a supplier’s recall initiation dates for vehicles or categories of vehicles and must prioritise recall initiation according to priority factors under the Recall Notice. If a supplier is not able to meet the approved recall initiation schedule, it must apply to the ACCC to vary the schedule and provide information and reasons in support of its application.
The Recall Notice does not require a supplier to replace the ATAI in a vehicle which was supplied in Australia but which has subsequently been exported.
Section 5(4)(d) of the Recall Notice provides that a supplier is considered to have complied with its obligation under the Recall Notice to replace an ATAI in the vehicle, if the vehicle was exported.
Regardless, a supplier with less than 100 per cent actual replacement of ATAIs must use its best endeavours to identify vehicles with ATAIs presented to its dealer network and must seek to replace the ATAI whenever it identifies one. This obligation is ongoing, survives any ACCC confirmation of completion and extends beyond 31 December 2020 until such time as a supplier can demonstrate with adequate evidence to the ACCC that it has achieved 100 per cent actual replacement.
Where a vehicle with an ATAI has been supplied in Australia and the supplier learns that it has subsequently been exported, the ACCC encourages the supplier to contact the OEM’s agent in that country and the person to whom the vehicle was supplied (where known). If the supplier is aware of the location of the vehicle, the ACCC considers that, given the serious safety risk to persons, the supplier should be doing anything they can to remove and replace the ATAI.
A supplier is taken to have complied with its obligations to replace all Affected Takata Airbag Inflators (ATAIs) under the Recall Notice when all ATAIs have been replaced or the supplier applies to the ACCC for a compliance assessment and the ACCC advises that it is satisfied that that the supplier has complied with its replacement obligations.
The Recall Notice recognises that in specified circumstances suppliers will not be able to replace 100 per cent of ATAIs. In these circumstances, a supplier may submit an application to the ACCC for a compliance assessment of its replacement obligations under the Recall Notice (section 5(3)(b)). A supplier may make an application at any time and may make more than one application.
What is ‘adequate evidence’ to satisfy the ACCC that a supplier has complied with its obligations in accordance with section 5(3)(b) of the Recall Notice?
The Recall Notice requires that the ACCC must be satisfied of the matters set out in section 5(4), subparagraphs (a) to (d) of the Recall Notice. To be satisfied, the ACCC must be provided with ‘adequate evidence’.
The term ‘adequate evidence’ is not defined in the Recall Notice. What is considered ‘adequate evidence’ will depend on the circumstances, which may vary from case to case.
Accordingly, the ACCC does not intend to provide an exhaustive list of what would be ‘adequate evidence.’ The table below lists types of evidence that would be likely considered adequate under each of the four situations.
The ACCC is open to considering alternative evidence on a case by case basis.
Consumer did not present the vehicle for replacement of the affected airbag despite multiple notifications (Section 1).
The consumer could not be notified in circumstances where a supplier properly implemented an approved Communication and Engagement Plan (Section 2)
The vehicle was not registered for at least two consecutive years with any State or Territory registration authority (Section 3)
The vehicle was scrapped (Section 4)
The vehicle was exported (Section 4)
The vehicle was stolen (Section 4)
What about other forms of evidence?
Other types of evidence that may satisfy the ACCC may be available. For example, there may be insurance records regarding written-off vehicles, evidence from auto-recyclers or auto-wreckers concerning a vehicle or a Spare Part currently in their possession or other State and Territory registration authority records regarding affected vehicles.
If the ATAI has been destroyed or used in testing, please see below for examples of evidence that may be used to demonstrate this.
The Recall Notice provides that a supplier may meet some of its obligations under the Recall Notice through service providers authorised by the supplier (authorised representatives). The ACCC is aware of service providers that offer to locate and retrieve ATAIs in auto recycling and auto wrecker yards for a fee. The ACCC does not have a role in approving or endorsing these services. Suppliers may engage whatever ‘authorised representative' they consider appropriate and reliable to meet their obligations under the Recall Notice (see section 5(9) of the Recall Notice in this regard). In using an authorised representative, suppliers should ensure that they will be able to produce adequate evidence to account for ATAIs as part of any application to the ACCC under section 5(3) of the Recall Notice.
The ACCC is also aware of authorised representatives that issue certificates of destruction or export. In addition to a certificate, 'adequate evidence' might include:
- evidence of sale of a vehicle to be shredded (in the form of an actual sales document, or some other reliable form of evidence)
- a signed written statement with factual information and documentation.
A certificate issued on the basis of an unsupported assertion is unlikely to be adequate evidence of destruction.
For guidance as to what constitutes 'adequate evidence' please refer to the question above.
What will the ACCC accept as evidence of consumer notification?
Where a supplier intends to rely on notification from a consumer to support a claim, the ACCC’s preference is for this to be evidenced in writing. This includes a returned form with handwriting on it, a letter or email communication from a consumer or information to a supplier via a web form or similar.
Will the ACCC accept evidence of oral communication from a consumer?
Where a supplier does not have evidence of some type of written notification from a consumer, if it can show records of oral communication with the consumer, the ACCC expects this may be adequate to satisfy the obligations of the Recall Notice, absent any other evidence or conflicting information. The records would preferably be kept as part of normal business records and would include information identifying the person(s) on behalf of the supplier involved in such communication. The ACCC also expects that such person(s) would be available for verification if required.
What sort of complaints should I include in the Quarterly Completion Report?
Section 11(1)(e) of the Recall Notice provides that a supplier must track and keep records of complaints from consumers in respect of
- an ATAI in a vehicle supplied by the supplier or
- the supplier’s recall campaign.
The complaint must be identified by issue, location and include information on how the supplier has managed each issue. We note that complaints may come from a range of different sources. These include:
- call centres
- formal dispute resolution mechanisms
- web forms
- staff members
- media and online forums
- referrals from industry associations and
- government agencies.
General enquiries in relation to an ATAI or the supplier’s Takata recall campaign are not required and should not be included as a complaint. For example, you do not need to include general enquiries about whether a vehicle is affected, the timing of a recall initiation (however, a complaint about any delay in replacement where the recall has been initiated would need to be included) or arranging a replacement airbag where the consumer has been appropriately advised in accordance with the Recall Notice.
To complete each template:
- Use the quarterly completion report template and refer to examples available here.
- Submit to the ACCC as an Excel spreadsheet.
- Use a consistent naming convention (for example, if you have referred to ‘Company Pty Ltd’ in one quarterly completion report, please use the same reference for other quarterly completion reports).
- Complete all the fields in the template. For example, if you have included ‘how you learned of the complaint’ in the ‘briefly summarise the content of the complaint’ column, please include details in the column relating to how you learned of the complaint rather than leaving it blank.
Entries should contain sufficient detail to enable the ACCC to understand the nature of the complaint and how it has been resolved or is being resolved. Suppliers should avoid providing one or two word summaries. The ‘Category of complaint’ column’ allows suppliers to provide a high-level summary of the complaint (see below for details on how to complete this column).
Please ensure that any description makes it clear that it is a complaint about specific supplier conduct and not consumer requests, queries and/or general expressions of dissatisfaction about the recall (for instance, the timing of a particular recall initiation or a supplier’s decision to use ATAIs).
The template contains a drop down list under ‘Category of complaint’. This includes:
- alpha inflators
- transport (hire/loan car, transport costs, other transport)
- special circumstances (for example, any towing, hire/loan car, transport costs, technician)
- communications or information (including communication or information that is incorrect, incomplete or inconsistent with the requirements of the Recall Notice)
- costs of replacement
- damage associated with the replacement
- replacement airbag inflators (for example, for grey importers/RAWS participants, private importers, orphan vehicles)
- purchased vehicles (consumer not provided with information in accordance with the Recall Notice when purchasing a vehicle subject to recall)
- consumer guarantee complaints
- injury or death
- other aspects of recall or replacement process.
If you do not think the complaint is captured by the defined categories please select ‘other’, noting in appropriate detail the nature of the complaint. Examples are available in the consumer complaints demonstration spreadsheet.
Suppliers must include all complaints received during the quarter including those that were received and completed in the quarter. Please do not include complaints that were reported and completed in previous quarters unless:
- they were described as ongoing in the previous quarter and were completed in the current quarter or
- remain ongoing (unresolved) in the current quarter.
The quarterly completion report template has been amended to enable suppliers to clearly indicate the status of complaints (i.e., completed or ongoing).
What do I need to obtain owner contact details from NEVDIS?
Where a supplier wants to obtain contact details for registered vehicle owners from the National Exchange of Vehicle Driver Information System (NEVDIS), but the recall is not yet active, the supplier should email email@example.com to request a Supplier Project Number.
Suppliers can obtain access from NEVDIS for contact details by submitting a VIN list and the ACCC’s PRA Number (for an active recall) or the Supplier Project Number (for a future recall).
What if NEVDIS data is incomplete or incorrect?
Sometimes, sources such as NEVDIS may be incomplete or incorrect. In these circumstances, the ACCC expects suppliers will use additional methods to gather accurate consumer contact information. This may include third party data validation, auction houses and car sales (among others).
The ACCC expects that a supplier would present evidence of attempts to identify alternative contact details where the NEVDIS data is incorrect or incomplete and complete the application fully, setting out details of the multiple efforts and using the escalation strategy required.
How must a supplier treat an ATAI in its possession, power or control?
Where a supplier removes an ATAI or the ATAI comes into the supplier’s possession or control, the Recall Notice requires that the supplier must ensure that it is immediately quarantined, labelled and handled in a manner to prevent reuse for anything other than testing by or on behalf of the supplier. A supplier must ensure that all such ATAIs are ultimately destroyed or used in testing and must provide evidence of this to the ACCC on request. For further information on the meaning of ‘ultimately destroyed’ and examples of evidence that may be used to demonstrate this, please see below.
Are there any circumstances in which a supplier can possess ATAIs for use other than in testing?
The Recall Notice permits a supplier to use a new ATAI in its possession to replace another ATAI. This may only be done in accordance with the requirements of the Recall Notice. Under no circumstances may a new ATAI be used as a replacement after 31 December 2019.
Are there any requirements on suppliers in relation to ATAIs in the possession, power or control of Dealers?
A supplier must provide instructions to its Dealers or other authorised representatives regarding quarantine, labelling and handling of ATAIs, and the supplier must provide evidence of these instructions to the ACCC on request.
Are there specific requirements for destruction of an ATAI?
The Recall Notice requires that a supplier must ensure that all ATAIs in its possession are ‘ultimately destroyed’ or used in testing.
The Recall Notice does not define ‘destroyed’ and therefore the term should be given its ordinary, natural meaning, which is to make ineffective or put an end to.
In other words, the ATAI should be destroyed in such a way so as to prevent reuse. This includes reuse as a replacement part.
The Recall Notice leaves the means of destruction open to each supplier and the ACCC recognises that this will vary from supplier to supplier (for example, detonation or disassembly). The supplier may choose to safely destroy the ATAIs itself or contract with a third party for the safe destruction of the ATAIs.
As ATAIs pose a risk to safety, it is important that suppliers and their representatives or contractors ensure that ATAIs under their control are disposed of safely and in accordance with legislative and regulatory requirements. This includes safe transportation.
What reporting requirements are there for destruction?
A supplier must be able to provide evidence to the ACCC, on request, to demonstrate the affected airbag has been destroyed or used in testing.
The Recall Notice does not provide a list of the types of evidence a supplier must keep and the type of evidence will vary. However, evidence might include:
- written/photographic evidence of the time and date the ATAIs were removed from the vehicle
- the number of ATAIs removed from a vehicle including photos of the vehicle’s VIN and the serial numbers of the affected airbags removed
- invoices for the safe transport of the ATAI
- invoices for the destruction of the ATAI
- evidence of detonation or disassembly of the ATAI
- certificates confirming that the ATAI has been destroyed or used in testing, including the procedure(s) taken to destroy the ATAI
- evidence that the ATAI has been destroyed with a vehicle which was scrapped or destroyed
- evidence that the ATAI was destroyed by deployment.
Depending on the circumstances and the evidence sought to be relied on, it may be necessary to provide more than one type or item of evidence, as some types of evidence may not be sufficient on their own.
Information for businesses that sell, hire or lease vehicles or vehicle parts is available at: Selling, hiring and leasing vehicles FAQs.