These questions and answers have been published to assist suppliers in complying with their obligations under the compulsory Takata airbag recall notice.
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.
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.
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 firstname.lastname@example.org specifying which vehicles from the future recalls list should now be on the active recalls list.
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).
Suppliers in category (a) or (b) under the Recall Notice must establish a Recall Database on their website by 1 July 2018. The database must allow Consumers to enter a VIN into a search field and obtain immediate information about the Takata recall status of the vehicle, including (amongst other matters) whether the status is complete, active, future or critical (includes alpha).
Suppliers should ensure the status of all affected vehicles (including those under active and future recall) are accurately reflected in its Recall Database. Further details are set out in section 8 of the Recall Notice.
Under the compulsory recall, a vehicle is considered supplied or re-supplied 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.
No, a business must not supply a new or second-hand vehicle fitted with a defective Takata airbag inflator under active recall to a consumer under any circumstances. Businesses that supply such a vehicle may face penalties for non-compliance with the compulsory recall. Only after the defective Takata airbag inflator has been replaced in the vehicle can the vehicle be hired (including hire-purchase), leased or sold to a consumer.
Can I hire or lease an affected vehicle with defective Takata airbags under future recall to a consumer?
Yes, under certain conditions. Before supplying the vehicle, businesses must notify the consumer, verbally and in writing, of certain matters. How old the vehicle is and whether it is a short or long term hire/lease arrangement will determine whether the consumer needs to be notified, and if so, what businesses must inform the consumer about the recall and possible safety risk prior to supply.
Short term arrangement (no more than 90 days):
- There is no notification requirement to the consumer for vehicles that are under 6 years old at the time of supply and that remain under 6 years old for the duration of the arrangement.
- For vehicles under 6 years old at the time of supply but will turn 6 years old during the arrangement, the consumer must be notified verbally and in writing that the vehicle has a defective Takata airbag inflator and is under future recall, and be advised of the possible safety risks associated with the airbag prior to supply (as set out in section 9(4)(d)(1) of the Recall Notice).
- For vehicles over 6 years old at the time of supply, the consumer must be notified verbally and in writing that the vehicle has a defective Takata airbag inflator and is under future recall, and be advised of the possible safety risks associated with the airbag prior to supply (as set out in section 9(4)(d)(1) of the Recall Notice).
Long term arrangement (more than 90 days):
- If the proposed hire, lease or hire purchase is for a period of more than 90 days, then, regardless of the vehicle’s age, the consumer must be notified verbally and in writing that the vehicle has a defective Takata airbag inflator and is under future recall, advise of the safety risks associated with the airbag and ask for the consumer’s consent to provide their contact details to the vehicle manufacturer so that the vehicle manufacturer can send any recall communications to the consumer if the vehicle comes under active recall.
Guidance for supplying written-off vehicles is available at: Takata guidance on writen-off vehicles
Note: Where an ATAI is not verified as deployed but has otherwise been removed (i.e not present in the vehicle), it is not an affected vehicle under the Recall Notice and the seller can supply it. However, because all affected vehicles must still be accounted for, the supplier should make a record of the vehicle prior to supply. The supplier should advise the ACCC and the manufacturer of the vehicle’s VIN, describe the circumstance (for example, the vehicle has no driver [or passenger] airbag present and this was observed by X on X date) and the details of disposition of the vehicle.
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 percent 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.
Assessment of compliance with replacement obligations
The ACCC has published a form to assist suppliers with making their application. The application form has four sections, each of which corresponds to one of the identified situations where a supplier will be considered to have complied with its obligations under the Recall Notice even if an ATAI has not been replaced (as set out in section 5(4), subparagraphs (a) to (d) of the Recall Notice).
- The supplier notified the consumer in accordance with its Communication and Engagement Plan and relevant escalation strategy and the consumer still has not presented their vehicle for replacement (s. 5(4)(a)).
- The supplier could not notify the consumer despite multiple attempts in accordance with its Communication and Engagement Plan and relevant escalation strategy (s. 5(4)(b)).
- The vehicle has not been registered for at least two consecutive years with a State or Territory registration authority (s. 5(4)(c)).
- The vehicle has been scrapped, stolen or exported (s. 5(4)(d)).
For each section of the application, the supplier must state the basis for each claim. Where relevant, this may include attaching any supporting evidence. This could include the supplier’s internal records relating to any communications with the consumer or information gathered from various sources. For examples of the types of records, please refer to the table below.
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.’ However, the table below lists types of evidence that would be likely considered adequate under each of the four situations:
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.
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.
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 re-use 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.
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 re-use. This includes re-use 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.