Category: Regulation

Time to Close the Silver Book

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For a report that’s a quarter of a century-old, testing old technology and resting on questionable assumptions, An Examination of Sudden Acceleration (also known as the Silver Book) has exerted an out-sized influence over the search for root causes in unintended acceleration events. Manufacturers have loved the document, for its emphasis on driver error as the cause of any event that cannot be readily reproduced. In the absence of any expertise, the National Highway Traffic Safety Administration has used it as a crutch whilst hobbling around a UA defect investigation it cannot resolve.

Antony Anderson, the U.K.-based electronics engineering consultant, says it’s time to consign its conclusions to the dung heap of discredited scientific lore with the likes of alchemy and spontaneous generation. His newest technical paper Intermittent Electrical Contact Resistance as a Contributory Factor in the Loss of Automobile Speed Control Functional Integrity published online by the Institute of Electrical and Electronics Engineers (IEEE) debunks one of The Silver Book’s central tenets, documents the real gaps the automotive industry’s fail-safe systems and makes suggestions for a course correction going forward.

Anderson’s observations are particularly astute in light of a rulemaking on functional safety in automotive electronics. In October, the agency published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments satisfies a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles.” Comments are due on Monday.

Anderson devotes a couple of sections to taking apart An Examination of Sudden Acceleration and its flawed diagnostic approach:

A major obstacle to the discussion of electrical intermittency in relation to SA incidents is the claim, often repeated by the automobile industry and by NHTSA, that the 1989 NHTSA Sudden Acceleration Report proves beyond all doubt that SA incidents were most probably the result of driver error. This collective mind-set appears to brook no argument and tends to kill stone-dead all reasoned discussion on the subject of electrical intermittency.

It’s most important and destructive assumption, he argues, has no scientific foundation, although it “remains the basis of diagnostic testing for `intermittent electronic failures’ that might cause an SA to this day: ‘If the cause of an SAI is an intermittent electronic failure, physical evidence may be difficult to find, but the failure mode should be reproducible either through in-vehicle or laboratory bench tests.”

This assumption belies the findings of electronics experts who agree that intermittent faults are extremely difficult to find, and that their random, intermittent nature can escape the notice of a vehicle’s diagnostic system. No Fault Found in a field return is a field failure, and should be used in the quest to identify the cause. Further, “the arbitrary introduction of ‘reproducibility’ by NHTSA as the proof for intermittency defines most suspected electronic intermittencies out of existence,” Anderson says.

Any Sudden Acceleration Incident that cannot be replicated leads to the “inescapable” conclusion that the event was the result of driver error. In the driver-error scenario, the Silver Book posits that some vehicle malfunction causes the engine to surge, startling the driver and causing him to depress the accelerator on the mistaken belief that it is the brake. Here, Anderson observes that the root cause is actually the malfunction that caused the driver to startle in the first place and that two of the hypothetical culprits – an idle stabilizer malfunction or a cruise control malfunction – were intermittent electronic malfunctions. (In the case of Unintended Accelerations in Audi, which prompted the report in the first place: Between 1982 and 1987, Audi issued six recalls to address Sudden Unintended Acceleration in its vehicles. Three of them replaced worn idle stabilizer units.) 

Anderson then sets about challenging that premise by using a reed relay to simulate a mechanically-induced electrical intermittency either as an open circuit or a short circuit. His experiments show that intermittent speed sensor connections can generate false speed signals that overcome the vehicle’s low speed inhibit logic. For example, a single mechanically-induced intermittency in one of the speed sensor connections or on the microcontroller PCB, plus a signal to tell the cruise control to engage makes it possible for the system to take over speed control from the driver.

And, because vehicles with electronic throttle controls are not fitted with an independent failsafe system, the driver “becomes the fail-safe for any potential malfunction of the electronic throttle,” Anderson writes. “The automobile industry is unique in this respect – in any other industry loss of speed control would be protected against and, as a last resort, there would be an emergency stop button.”

He scoffs at electronic brake over-ride systems, software patches that run on the same hardware as the electronic throttle – they wouldn’t work in a software malfunction, and therefore are only a “partial fail safe against pressing the accelerator at the same time as the brake.”

Instead, Anderson makes several suggestions for dealing with unintended accelerations: restricting the fuel supply to the engine the moment that an un-commanded wide open throttle condition is detected; suppression of half or a lower fraction of the ignition pulses to reduce engine power; opening a bypass valve in the hydraulic torque converter to reduce the transmitted power.

Anderson’s false speed signal experiments joins other research studies that show how a vehicle can go to an uncommanded wide-open throttle, with no fault found. Southern Illinois University Automotive electronics Professor David Gilbert showed that a short in the accelerator pedal position sensor could cause a wide-open throttle. Scientists from NASA’s Engineering Safety Center demonstrated tin whiskers could cause a UA with no trouble code set and embedded systems expert Michael Barr found a mountain of software errors could lead to vehicle malfunctions, including a UA, unbeknownst to the diagnostic system.

We can only hope that eventually, these more empirically based efforts will overcome the Silver Book’s unfathomable momentum.

 

Improving the Recall System for the 21st Century

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Well, here we are again. Another vehicle defect crisis, another round of Congressional hearings, this time only months after the GM and NHTSA were taken to task for allowing the ignition switch defect to spiral out of control.  This time the Senate delves into the Takata airbag inflator defect, another agency-assisted hazard that has been festering for more than a decade. Today’s Roman circus is entitled “Examining Takata Airbag Defects and the Vehicle Recall Process.” 

When cornered, NHTSA likes to lob the numbers of recalls and investigations like some flash-bang grenade at critics, but the blinding light of those stats illuminate nothing.  Safety Research & Strategies and The Safety Record have plowed through literally hundreds of recall records; we’ve spent hours reading and documenting the regulatory record that established today’s ineffective system. On the back end, we’ve dealt with the victims of failed recalls – families angry to get a notice a month after the defect killed a loved one, or bewildered by the fact that a tire service technician unknowingly put a recalled tire on the SUV that suffered a catastrophic tread separation a month later.

In our humble opinion, the “recall process” needs a process – for manufacturers one that reflects our modern age of communications. Today, people who want to sell you things dog you keystroke by keystroke on the Internet, cars can talk to you and the governments are toppled with the help of Twitter. Yet, our danger alert system relies on the mail (with apologies to the U.S. Postal Service). Now that there appears to be bi-partisan support for possible remedies, we have some suggestions.

The regulations governing the recall system were established in the mid-1970s. And, in nearly 40 years, they have been subject to small tweaks. The agency recently implemented a web-based Vehicle Identification Number look-up service for consumers to determine whether a specific vehicle has had a remedy applied.[1] But the regulatory framework for how vehicle manufacturers are required to reach out to customers when a recall is required has not changed. Despite massive technological leaps in the ways companies communicate with consumers – email, smart phone apps, QR codes – and in the case of automobile manufacturers — on-board telematics, the recall system is stuck in the past. As is required by the current regulations, vehicle manufacturers send initial and follow-up notices via first-class mail. Despite advances in consumer data-gathering, automakers rely on outdated vehicle registration information aggregated by R.L Polk & Co. to develop their notification lists.

Tire manufacturers and consumers face more daunting hurdles in achieving acceptable recall completion rates. The current system was established when recalls and government defect investigations of tires were rare, and manufacturers neither desired nor expected the consumer to be an active participant in the process. Consumers and tire professionals trying to identify a defective tire still rely on this antiquated paper-and-pencil system that rarely averages more than a 20 percent return rate. The system fails because there is no way to identify and track individual tires once they leave the manufacturer.

For its part, NHTSA has done little to enhance its own enforcement capabilities.

The agency has no bright-line benchmarks for recall completion rates. It often does not notice when a manufacturer does not appear to remedying many vehicles. It has used its powers to investigate unsuccessful recalls infrequently. Nor does the agency visit the recall completion data to examine trends with the aim of improving rates.

The recall system must step into the 21st century. Manufacturers spend enormous amounts of money and use sophisticated communication techniques in selling their products, but when it comes to informing their customers of a safety problem that needs correction, there is less enthusiasm in devoting company resources. NHTSA refrains from requiring manufacturers to use specific technologies. Rather, it issues performance standards which allow automakers flexibility in reaching a safety goal. We suggest that setting a goal for manufacturers with penalties for failure to achieve them and engaging NHTSA more directly in the enforcement process would lead both to work harder at ensuring that recalls are successful.

The Safety Recall Improvement Act 2015?

The Safety Recall Improvement Act would institute several improvements to the recall system for vehicles, equipment and tires:

  • Require NHTSA to analyze recall completion rates, identify the factors the make a recall a success and report its findings to Congress. This information could be critical to establishing other policies to improve the recall requirements.
  • Institute benchmarks for acceptable recall completion rates. Manufacturers would be required to repair 85 percent of the vehicles in the fleet within 18 months, excluding those that were exported, stolen, destroyed or otherwise removed from the recall target population.
  • Require Recall or Audit Queries for recalls that fall below 85 percent. NHTSA would be free to launch investigation into recall effectiveness before the six quarters ended, but would be required to investigate manufacturers that fail to meet the 85 percent repair rate after 18 months
  • NHTSA would be empowered to level civil penalties specifically for failure to achieve the minimum benchmark.
  • Require that tires have a non-coded date of manufacture visible on both sides of the sidewall.
  • Require manufacturers to automate the identification of recalled tires to assist tire retailers, tire service center, consumers and others in quickly and efficiently determining the recall status
  • Require the National Highway Traffic Safety Administration to add a TIN look-up to its public vehicle safety database that is searchable by tire make and model and tire identification number; can be aggregated and downloaded.

 

Current Regulations

The responsibilities of manufacturers in launching a recall and notifying the National Highway Traffic Safety Administration, dealers and consumers are proscribed in CFR 49 Parts 573 and 577.

 

Part 573 Defect and Noncompliance Responsibility and Reports

This section sets forth manufacturers’ responsibilities in informing NHTSA and the proper procedure they are required to follow in announcing recalls. The regulation outlines when manufacturers must report a defect to NHTSA – within five working days of determining a defect or non-compliance exists – and the specific information required in a Part 573 Notice of Defect and Noncompliance, such as the recall population, a chronology of the defect’s discovery, the consequence of the defect and the remedy.

In terms of codified responsibilities that relate to recall notification, Part 573 specifies that manufacturers must maintain lists of owners, purchasers, dealers, and distributors to be notified of the recall and that manufacturers must file with the agency 18 months’ worth of recall remedy data in the form of quarterly reports.[2]

§ 573.8 Lists of purchasers, owners, dealers, distributors, lessors, and lessees.

(a) Each manufacturer of motor vehicles shall maintain, in a form suitable for inspection such as computer information storage devices or card files, a list of the names and addresses of registered owners, as determined through State motor vehicle registration records or other sources or the most recent purchasers where the registered owners are unknown, for all vehicles involved in a defect or noncompliance notification campaign initiated after the effective date of this part. The list shall include the vehicle identification number for each vehicle and the status 49 CFR Ch. V (10-1-11 Edition) of remedy with respect to each vehicle, updated as of the end of each quarterly reporting period specified In § 573.7. Each vehicle manufacturer shall also maintain such a list of the names and addresses of all dealers and distributors to which a defect or noncompliance notification was sent. Each list shall be retained for 5 years, beginning with the date on which the defect or noncompliance information report required by § 573.6 is initially submitted to NHTSA.

Part 577 Defect and Noncompliance Notification

This section lays out the requirements for notification, including phrases and statements that must be used in the letters to vehicle owners. Recall regulations require that manufacturers notify “registered owners determined from state motor vehicle registration records, augmented with corporate records. Notifications to purchasers are by first class mail. Notifications to dealers and NHTSA are to be by certified mail.”[3]

The regulations also outline the characteristics of the envelope:

“The recalling manufacturer shall mark the outside of each envelope in which it sends an owner notification letter with a notation that includes the words "SAFETY RECALL "NOTICE" all in capital letters and in type that is larger than that used in the address section, and is also distinguishable from the other type in a manner other than size.”[4]

The owner notification letter must be headed by the phrase “IMPORTANT SAFETY RECALL” and must provide, at a minimum: a clear description of the defect; an evaluation of the risk to motor vehicle safety; a statement of the measures to be taken to obtain the remedy; a statement that the defect/noncompliance will be remedied without charge; a statement of the earliest date on which the defect/noncompliance will be remedied; and a description of the procedure to be followed by the recipient of the notification in informing NHTSA whenever a manufacturer, distributor, or dealer fails to or is unable to remedy without charge such defect or failure to comply.[5]

Beyond that, there are no requirements involving specific efforts manufacturers must make to notify hard-to-locate owners.

 

Recall Completion Rates

NHTSA calculates a recall campaign’s completion rate by dividing the total population of affected vehicles by the number of vehicles that have been remedied.[6]  

According to NHTSA, on average only about 70 percent of vehicles subject to a recall are fixed within the 18-month period during which manufacturers provide recall completion data to the agency.[7] But a 2011 analysis performed by the Government Accounting Office found wide variations among manufacturers:

However, our analysis of NHTSA’s completion rate data for passenger vehicle recalls from 2000 through 2008 found considerable underlying variation in completion rates in several areas. Overall, we found that annual recall completion rates varied substantially by year—from about 55 percent to 75 percent—for all passenger vehicles with safety defect recalls, with an average across all years of about 65 percent. In addition, our analysis revealed that within any given year, some manufacturers have safety defect recall completion rates as low as 23 percent to 53 percent per year, whereas other manufacturers have completion rates between 90 percent and 96 percent.  Furthermore, some manufacturers have consistently higher or lower rates across the 9 years we included in our analysis.[8]

The recall completion rate for tires is less solid. According to the GAO report, the average recall completion rate for tires is 65 percent. Other experts have capped it much lower. For example, Donald Karol, the National Transportation Safety Board’s chief investigator, targeted the tire recall completion rate at 20 percent.[9]

(NHTSA and manufacturers may argue that some recalls are necessarily going to be less successful due to the age and type of the vehicle and vehicle owners’ perception of the severity of a safety defect can negatively impact the completion rate.  But, the GAO’s analysis of individual manufacturers’ recall completion rates shows that some manufacturers consistently do a better job than others.)

 

NHTSA’s Recall Enforcement

While the Code of Federal Regulations lays out clear-cut actions manufacturers must take when launching a recall, providing a remedy and keeping the agency informed of its actions, NHTSA conducts enforcement under no such detailed schema.

Part 577.10 empowers the Administrator to require a manufacturer to re-notify consumers of a safety recall, if, based on quarterly reports, the agency has decided that the completion rate is not adequate,  with the timing, form, and content of  the follow-up notification to be established by the agency, in consultation with the manufacturer.[10] NHTSA’s rough floor for determining if re-notification is required is 65 percent by the sixth quarter.[11] But NHTSA officials could not tell the GAO how frequently they required follow-up notifications.[12]

In addition, GAO auditors have found that the agency has no set procedure to determine the adequacy of a recall, is slow to analyze recall data to determine if defects are being repaired, and does not analyze its data to identify recall completion trend data.

Since there are no set targets for recall completion rates, there is little incentive for manufacturers to try to remedy defects for most of the population still in the fleet and in a timely manner. In the short term, NHTSA does not track repair rates to ensure recall effectiveness. While manufacturers file quarterly reports showing the number of vehicles remedied, and occasionally opens Recall Queries (RQ) – investigations to assess recall effectiveness – there is evidence that NHTSA does not appear to employ a systematic process to catch low repair rates in a timely fashion.

One glaring example involves U.S. Bus Corporation which had filed 21 defect and non-compliance reports to the agency between 2001 and 2007 and followed up with quarterly reports that indicated a very low rate of repair.[13] It took the agency years to notice that the New York school bus manufacturer was not actually making any repairs and take action against it – even though the defects were serious, and widespread. NHTSA did not take action until 2009.[14]

The 2011 GAO report, NHTSA Has Options to Improve the Safety Recall Defect Process criticized NHTSA for not using recall repair rate data to analyze trends and institute best recall practices:

“Based on our analysis of NHTSA data, without conducting a broader aggregate level analysis to look for outliers, patterns, or trends, the agency may be missing an opportunity to identify underlying factors that affect recall campaign completion rates.”[15]

It also revealed that NHTSA has no set procedures to determine if a manufacturer has adequately met its recall obligations. The agency told the GAO that “they evaluate the effectiveness of a recall campaign by comparing a specific recall campaign’s progress to similar campaigns based on factors such as the age of vehicles recalled and the number of vehicles recalled.”[16]  The agency said that “monitoring recalls on a campaign-by-campaign basis provides them with the flexibility necessary to capture the unique aspects of each recall campaign and that by focusing on communication and discussion with manufacturers, the agency can develop solutions to improve completion rates when a campaign is achieving a completion rate that is below its expectation.”[17]

 

Improving Tire Recalls

Even after high-profile tire recalls that claimed hundreds of lives and exposed the weaknesses in the system, there are no databases accessible to consumers or service professionals that can quickly identify a recalled tire. As we approach 2015 there is still no system to identify recalled tires even for professionals.  Yet, consumers often believe that the technicians servicing their tires know about recalls and would be able to alert them if one was on their vehicles.[18] [19]

Even if a recalled tire is part of a vehicle’s original equipment, it is the tiremaker who is responsible for the campaign.  However, tire manufacturers can only identify consumers by working with the automakers and their dealerships to find the first purchasers of the vehicle, based on the Vehicle Identification Number (VIN) and tire lot records.

If the tire were purchased as a replacement, the consumer – with assistance from the tire retailer – would have had to fill out the tire registration form and send it back to the manufacturer to create a record of ownership. Neither consumers nor tire dealers consistently register tires, even though the latter are responsible under federal regulations for providing tire registration cards to their customers.  Both NHTSA and the Rubber Manufacturers Association have estimated that only 10 percent of tires are properly registered, because the manufacturer may not provide the registration cards to retailers, retailers may not give the card to the consumer, or the consumer may not fill it out.[20]

If a tire is purchased used – as an estimated 30 million are annually – there are no registration requirements.

The Tire Identification Number (TIN), often called the DOT number, is usally an 11-symbol alphanumeric code required by the National Highway Traffic Safety Administration (NHTSA) molded on the sidewall that is most frequently mounted toward the inside of the vehicle. The agency created it in 1970 to function as a tire identifier in the event of a recall. The TIN is an inefficient and difficult method of identifying tires – inconveniently located on the inside of the mounted sidewall, hard to read, long and cumbersome. The consumer who wants to check to see if their tire is the subject of a recall must lie under the vehicle with a flashlight, a pad and a pen to capture the TIN, or take it to a dealer where the car can be put on a lift.

The only public repository of tire recall information is located on the NHTSA website. It does not allow users to search tire recalls by the TIN. Rather, a consumer would have to enter the tire’s make and model to see it has been recalled. Then, users have to retrieve the documents the manufacturer filed in support of the recall and find the one that specifies which TIN lots are being recalled. This process is time-consuming and challenging. At the service shop level, it is totally impractical.  Typically, tire service shops affiliated with a manufacturer learn about recalls directly from the tire maker. Electronic Recall Service Bulletins are issued at the beginning of the campaign and service shop personnel are briefed at the onset.  But as time passes, recollections fade.  And if tire technicians service a tire that appears similar or has a similar brand name, they would need to check the TIN against the recall documents to determine if that tire was part of a recall – an impractical process in the time-sensitive service business.  

Independent tire dealers who sell and service multiple brands often don’t receive any recall notification from manufacturers. They, like their customers, learn about recalls through the media.  So, for example, if a Firestone tire is serviced at a Goodyear dealership, those tire technicians would have no recall bulletins or any practical means of determining whether that Firestone tire was part of a recall.      

 

 

 

[1] Docket NHTSA-2012-0068; 77 FR 55606; Notice of Proposed Rulemaking; Early Warning Reporting, Foreign Defect Reporting, and Motor Vehicle and Equipment Recall Regulations; September 12, 2010

[2] CFR 49 Part 573

[3] Safety Recall Compendium; Pg. 10; National Highway Traffic Safety Administration; June 2001

[4] Safety Recall Compendium; Pg. 12;  National Highway Traffic Safety Administration; June 2001

[5] CFR 49 Part 577

[6] NHTSA Has Options to Improve the Safety Recall Defect Process, General Accounting Office; Pg. 11; June 2011

[7] Auto Safety: NHTSA Has Options to Improve the Safety Defect Recall System, Pg 24; U.S. Govt. Accountability Office, Report to Congress. GAO-11-603, June 2011

[8] Auto Safety: NHTSA Has Options to Improve the Safety Defect Recall System, Pg. 25; U.S. Govt. Accountability Office, Report to Congress. GAO-11-603, June 2011

[9]

[10] CFR 49 Part 577.10 Follow-up Notification

[11] Auto Safety: NHTSA Has Options to Improve the Safety Defect Recall System, Pg 12; U.S. Govt. Accountability Office, Report to Congress. GAO-11-603, June 2011

[12] Auto Safety: NHTSA Has Options to Improve the Safety Defect Recall System, Pdf. Pg 12; U.S. Govt. Accountability Office, Report to Congress. GAO-11-603, June 2011

[13] 74 FR 48624 – Public Hearing To Determine Whether Transportation Collaborative, Inc. (TCI) Has Met Notification and Remedy Requirements; NHTSA; September 23, 2009

[14] 74 FR 48624 – Public Hearing To Determine Whether Transportation Collaborative, Inc. (TCI) Has Met Notification and Remedy Requirements; NHTSA; September 23, 2009

[15] NHTSA Has Options to Improve the Safety Recall Defect Process, General Accounting Office; pg. 27; June 2011

[16] NHTSA Has Options to Improve the Safety Recall Defect Process, General Accounting Office; pg. 27; June 2011

[17] NHTSA Has Options to Improve the Safety Recall Defect Process, General Accounting Office; pg. 27; June 2011

[18] Deposition of Jeffrey Kennedy; Carolyne Thorne v Ford Motor Company, Inc., et al. Montgomery County Circuit Court: Civil Action Number: CV-Q4-3069; October 20,2006

[19] Who’s Responsible? Letter to the Editor; Jeff Voight; Tire Business, July 16, 2007

[20] Docket 70-12; Notice 26; 51 FR 45916; December 23, 1986

FHWA Pulls a NHTSA on Guardrails

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Wednesday, the Federal Highway Administration announced some big, big news: Trinity Industries will test its ET-Plus guardrails in a way that virtually guarantees a passing grade, thereby ensuring that the agency’s past decisions are validated.

 

The Safety Record confesses those were not the agency’s exact words. The FHWA said:

Trinity would not be required to test the ET-Plus at a low-impact angle, which happens to be the mode in which the guardrail terminal system is failing in the field. Further, the FHWA would allow Trinity to select the end terminals and the testing would be done by the Southwest Research Institute.

Origins of the New Tests

FHWA demanded that Trinity run new tests on the ET-Plus guard rail end terminals after a federal jury in Marshall, Texas found that Trinity, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Department of Transportation and the Virginia guardrail competitor who brought the suit on behalf of the United States government $525 million. At trial, the jury viewed five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests.

Joshua Harman, the president of SPIG, a competitor, sued Trinity under qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman had charged that Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. Harman alleged that the rail jams in the narrower channel, causing it to fold in half, forming a spear that can penetrate the occupant compartment. In his suit, Harman alleged that Trinity changed the design without notifying the FHWA, as required, until seven years later, when he brought his concerns to the agency.

In response, the FHWA required Trinity to subject the ET-Plus end terminal with the 4-inch guide channel to four different tests set forth by the National Cooperative Highway Research Program (NCHRP), using three different guardrail heights. This immediately rang alarm bells for Harman’s attorneys and Dean Sicking, who designed the ET-Plus’ end terminal’s successful predecessor ET-2000 while at the Texas Transportation Institute. (He is now at the University of Alabama Birmingham School of Engineering) Both fired off letters to the FHWA urging it to test the ET-Plus in a configuration that mimics the way it has failed in the field.

Saving Face for the FHWA

Wednesday’s announcement signifies that the FHWA is incredibly determined not to rock its own boat. The TTI has already proven that the 4-inch ET-Plus end terminal cannot pass a 4-5 degree, low-impact angle test, but the FHWA is not requiring this test.

Further, allowing Trinity to select the terminals for testing means that they can simply avoid terminals with the critical dimensions that have failed in service – such as those that failed in crashes that the Missouri Department of Transportation provided to the agency. Requiring a 15-degree centered-to-nose impact is a high-angle impact test is not representative of the run off the road crashes that are most common and the way a low-impact angle test does.  The Trinity ET-Plus is likely to pass the high-angle test along with the head-on impact. 

The FHWA specifically forbade the TTI from conducting these new tests. But, the SRI is a good substitute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. SRI engineer and inventor Maurice Bronstad developed several improvements to energy-absorbing guardrail systems, including crash cushions, impact assemblies and end terminals, which were assigned to the TRN Business Trust, an arm of Trinity Industries. So Trinity has been paying the SRI to license these devices and paying patent royalties to Bronstad for years. Bronstad, now retired, and was a favored Trinity expert in civil litigation.

Pretend Safety and Science

We’ve seen this movie before. It doesn’t end well for motorists.

The National Highway Traffic Safety Administration has an epic formula on how to look like you are scaling Safety Mountain, when you are really just edging past the cliff of your reputation’s abyss. Take one part respected outside entity, one part active participation by investigation’s target and one part private entity with financial ties to investigation’s target. Mix together with inadequate test protocols and season with science-y numbers and language, bake in white-hot media glare and you get statements like this:

“Today, we can say clearly and affirmatively that NHTSA, America's traffic safety organization was right all along,” so pronounced our esteemed former Secretary of Transportation Ray LaHood on February 8, 2011“Toyota's problems were mechanical, not electrical. And that comes after one of the most exhaustive, thorough, and intensive research efforts ever taken… So let's be clear. The jury is back. The verdict is in. There is no electronic-based cause for unintended, high speed acceleration in Toyotas. Period.”

In August 2009, after California Highway Patrolman Mark Saylor crashed his loaner Lexus at high-speed on a Santee, California Highway, NHTSA was under heavy pressure to respond to the growing Toyota Unintended Acceleration crisis. The agency already had a series of brief, failed investigations into the defect. Toyota successfully argued that there was no way their vehicles could accelerate without a direct command from the driver – and even with a wide-open throttle, the vehicle remained controllable with braking. But the public release of the disturbing 911 tape, in which the panicked occupants described Saylor’s inability to stop the vehicle, meant that the same-old, same-old open investigation, close eyes, accept the manufacturer’s BS, deny the defect was not going to work this time.

In the wake of painful Congressional hearings and daily news stories, NHTSA had to look like it had gotten Serious. It hired the National Aeronautics and Space Administration’s Engineering Safety Center (NESC) to plumb the technical depths and engaged the National Academies of Science to examine the broader issues surround unintended acceleration and the agency’s response to it. The NESC and NHTSA teams came up with two reports that did not examine the problem under a clear scientific process. For example, despite the high frequency of low-speed surges and crashes, the engineers did not study UA in that scenario. The teams purported to study high-speed UAs, but never examined a vehicle that had experienced such an event. They did not examine the entirety of Toyota’s source code, just pieces of it. Nor did the teams engage independent engineers with expertise in vehicle engine management design, validation and testing to assist them. They, did however, allow Toyota and Exponent to guide the research.

Later, it turned out, NHTSA was “affirmatively and clearly” wrong all along. Embedded software expert Michael Barr and his team hacked their way through the jungle of Toyota’s spaghetti code and found a hot mess. Barr’s testimony in Bookout v. Toyota led the jury to determine that the automaker acted with “reckless disregard,” and delivered a $3 million verdict to the plaintiffs — but before the jury could determine punitive damages.

In September 2007, Jean Bookout’s 2005 Camry experienced an unintended acceleration as she exited an Oklahoma highway. Bookout could not stop her vehicle, which crashed head on into an embankment at the bottom of the exit ramp. Passenger Barbara Schwarz died of her injuries; Bookout spent two months recovering from head and back injuries.

Barr spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards. Based on his 800-page report, Barr testified that the system was plagued with “a large number of functions that are overly complex,” and was untestable. He concluded that the system’s failsafes are inadequate.

“On the whole, the safety architecture is a house of cards,” he said.

Barr’s testimony has forced the automaker to hastily settle all subsequent catastrophic damages claims. But, Toyota’s UA problems continue. Drivers are still complaining. NHTSA is currently evaluating a petition to open an investigation into low-speed surges in Corollas.

Blumenthal on the Case

Sen. Richard Blumenthal (D-Conn.) has been hammering the FHWA with letters and press releases questioning the agency’s approach to this new round of testing. He called on the FHWA to improve the testing protocol outlined yesterday to ensure the safety of potentially dangerous guardrails.

“I am very concerned that the testing protocol you’ve prescribed is woefully inadequate and far too deferential to Trinity.  It’s imperative that the testing be open, thorough and credible,” Blumenthal wrote in a November 12 letter.

The Senator also chastised the agency for foregoing the more up-to-date AASHTO Manual for Assessing Safety Hardware (MASH) protocols in favor of those of the NCHRP Report 350.

It is unacceptable that FHWA is relying on the outdated NCHRP to approve this device. The ET-Plus has never convincingly passed safety tests, so FHWA should use the latest testing standard as FHWA is essentially approving this device for the first time today, in 2014 – not 2005, when NCHRP was effective. The MASH testing framework will ensure the device is safe enough for today's roads, as it relies on testing with a sufficiently heavy vehicle and a sufficient variety of angular impacts, Moreover, MASH also has other important methodologies. MASH states that “if a significant window of vulnerability” is identified for any given design, the test matrices should be supplemented to explore the additional impact conditions." For the ET-Plus, this “window of vulnerability” would include the conditions under which the device is known to fail, i.e., at an impact angle of four degrees or greater, and MASH would ensure the device is properly tested at those angles, representative of real-world crashes, Finally, MASH requires that "[e]ach device must be tested at the impact angle that will maximize the risk of test failure," further ensuring adequate testing.

In a reply to Blumenthal, Acting Administrator Gregory Nadeau cast the whole episode as a foofaraw ginned up by Josh Harman. Nobody complained, Nadeau maintained, until Harman did. This argument is disingenuous on multiple fronts.

First, states did not complain because, in general, they don’t collect guardrail crash data. While NCHRP advises states to evaluate the field performance of highway safety hardware, it’s not a requirement and most state DOTs don’t have the budget or expertise to conduct these analyses. The FHWA, which would have the resources, doesn’t either. It’s content to rely on one set of crash test data and call it done. Nadeau’s pitiful statistical defense to Blumenthal, the FHWA’s exhaustive look at 14 crashes from the National Motor Vehicle Crash Causation Study, is not a substitute for actual fact-finding or a sound scientific study. (And where’s the industry accountability, Mr. Nadeau? Trinity Industries defrauded you and your response is to give them an easy do-over?)

Second, some people have complained – those would be the victims with the artificial legs and the families of vehicle occupants who were killed by their encounter with an ET-Plus end terminal.

Nonetheless, Nadeau wrote, the agency would give the matter its full attention:

“Please be assured that we are proceeding in a data-driven manner—our goal is to separate fact from fiction by using the best science and engineering to reach a conclusion about the performance of the ET-Plus and to take informed steps based on the data.”

Mr. Nadeau, we are not assured.

GM Airbag Non-Deployments: What the NHTSA Data Really Show

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Since the General Motors ignition switch debacle blew wide open last spring, the National Highway Traffic Safety Administration has defended its years-long failure to recall the deadly vehicles by arguing that several other vehicle models had more consumer injury-crash complaints related to airbag non-deployment (ABND) than either the 2005-2006 Cobalt or the 2003-2005 Ion. But a new analysis has shown NHTSA is hanging its hat on an unscientific analysis of data that doesn’t support its claim. The study found no statistically significant difference between the other vehicles’ crash complaints and those of the Cobalt or Ion. Combining the Cobalt and Ion complaints, which NHTSA didn’t do, shows the injury complaint rate was actually 54 percent higher for the GM vehicles than their peers. The agency could have performed a statistical analysis itself but chose instead to ignore it in favor of a quick look at the chart.

Trying to explain why it did nothing in the nine years after it first learned of a 2005 fatal accident in which a Cobalt’s front airbag inexplicably did not deploy, NHTSA  has repeatedly pointed the finger at GM, saying the automaker didn’t provide enough information to detect a trend. It has based much of this assertion on two analyses of crash-injury complaint rates, in 2007 and 2010, respectively. The 2007 analysis found that 10 non-GM vehicles had more ABND injury complaints than either the Cobalt or Ion. The 2006 Cobalt had 2.03 injury crashes per 100,000 “exposure years,” slightly less than half of the peer 2005 Toyota Echo’s 3.90 crashes per 100,000 exposure years. The 2005 Cobalt had 1.99 injury crashes, and the 2003-2005 Ion had between 1.61 and 1.68 crashes.

In his written testimony before the House Committee on Energy and Commerce in April, NHTSA Acting Administrator David Friedman said that the analysis shows that there was no reason for GM to be on its radar: “The data available at the time of this evaluation did not indicate a safety defect or defect trend that would warrant the agency opening a formal investigation. In particular, the available data did not indicate that the Cobalt or Ion were overrepresented compared to other peer vehicles with respect to injury-crash incident rates.” Friedman further testified that the other vehicles were “significantly higher” in the complaint index.

But NHTSA did not present its underlying data, and the statistical research firm Quality Control Systems Corp. (QCS) got curious: What would the data show if the vehicles were compared to determine the statistical significance of their rankings? After obtaining the data through a Freedom of Information Act request, QCS analyzed it using classical statistical tests to determine if the differences NHTSA saw were, in fact, statistically significant.

QCS found that all of the comparisons fell within the range that showed there was no statistically significant difference between the Cobalts and individual peer models with higher complaint rates. According to its analysis, “the results in Table 2 do not sustain Mr. Friedman’s testimony regarding injury crash airbag non-deployment complaint rates that, ‘…there were several vehicles that were significantly higher,’ insofar as that conclusion does not rest on evidence from an appropriate test of statistical significance.”

Because the sample sizes were relatively small, QCS went a step further and combined the Cobalt and Ion complaints to compare those with all other peer vehicles combined. This result was very statistically significant: The average complaint rate for the combined GM vehicles was 54 percent higher than for the other vehicles.

“NHTSA was impressed by evidence no statistician would think was good, and the one piece of evidence that could have opened the eyes of a statistician was ignored,” said Randy Whitfield, a principle of QCS. “It’s the style of analysis NHTSA has been using for years and years. If they see something that lets them off the hook, where they don’t have to do hard work and they’re not going to have to fight with a manufacturer, if you can give them the least scrap of evidence, they jump on it.”

Even if the statistics weren’t scientifically unsound and overstated, a look at what was going on within NHTSA’s walls when it did the analysis shows that at least some people in the agency wanted an investigation into higher-than-average ABND incidents. The Energy and Commerce Committee’s staff report on the recall found that NHTSA undertook the analysis after the Early Warning Division confirmed 43 crashes—with 27 injuries and four deaths—linked to ABND. The agency had two investigation reports from crashes that mentioned that the engine was in the accessory mode. GM’s warranty claim rate for Cobalt airbags was significantly higher than that of its peer vehicles, and the Cobalt had the most airbag-related property damage claims. GM had also already issued three technical service bulletins for its airbag system.

That division referred the issue to the Defects Assessment Division (DAD), which opened an issue evaluation. DAD’s chief, Gregory Magno, eventually sent an email to the heads of several other NHTSA departments saying, “Notwithstanding GM’s indications that they see no specific problem pattern, DAD perceives a pattern of non-deployments in these vehicles that does not exist in their peers and that their circumstances are such that, in our engineering judgment, merited a deployment, and that such a deployment would have reduced injury levels or saved lives.” Magno was concerned enough to request that NHTSA open an investigation within two weeks.

The Office of Defects Investigation panel waited two months before deciding there wasn’t enough evidence of a defect, based in large part on the complaints analysis. They dismissed the earlier accidents because they were off-road, had multiple impacts, and involved unbelted occupants.

So it wasn’t just that NHTSA didn’t delve closely into what the rankings actually meant—it gave unscientifically analyzed consumer complaints rates more weight than the growing rate of accidents and deaths, the significant number of airbag warranty claims, the GM technical service bulletins, and reports connecting the dots between the ABND and the ignition switch.

Flash forward to the 2010 analysis, and it does appear the number of consumer complaints to NHTSA fell significantly. The QCS evaluation confirmed that complaint rates for the 2005 Cobalt fell by 90 percent, and for the 2006 Cobalt, they fell by 75 percent. In interviews, Friedman said it was because GM secretly changed the ignition switch design in later models. But QCS said that doesn’t explain a radical drop in complaints for older models, which weren’t repaired. It could be that people are much less likely to complain to NHTSA if their car is out of warranty or they are no longer making payments on it. Whitfield said they don’t know why the complaints dropped so much, but it’s a question that is no longer being asked despite no real answer.

“Friedman told Congress and wrote a letter to USA Today saying it was the secret ignition switch change. How could that be when nobody knew about it and it wasn’t recalled? Why should we think we’ve gotten to the bottom of this, when NHTSA’s explanation is unsupported by the evidence in the public record?”

And, again, the numbers don’t tell the whole story: According to the committee staff report, the Early Warning Division noticed that in the second quarter of 2009, GM’s data showed, as the division’s chief said in an email to DAD, “a lot of death and injury incident reported from the Chevy Cobalt and Chevy Trailblazer 360 where the primary component is air bag.” NHTSA may not have been racking up consumer complaints in its database, but it knew people were still dying. And what did it do? Nothing – until it was asked by attorney Lance Cooper to investigate GM’s initial ignition switch recall.  

Solutions for NHTSA’s systemic problems need to include more than increased funding – which the agency certainly can use – but putting more money into an agency that hides behind incomplete, unscientific data to defend itself when scandals break is not a sound investment. 

A copy of the QCS report can be found here.

Elective Warning Reports Redux

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Mercedes seat warmers are burning holes in their customers – but, really, who cares?

The Early Warning Reporting system, mandated by Congress in 2000 and officially established by the National Highway Traffic Safety Administration for the first collection of data in 2003 was supposed to use the power of data to detect defects at a distance. Death, injury, property damage claims in concert with vehicle production data would help tell the story. Over 10 years’ worth of numbers tells at least one story: Under-reporting is a problem and there is no real consequence for non-reporting – even if you do get caught.

Mercedes, that venerable manufacturer of fine German engineering, is a wonderful example of how EWR works – from the reporting issue to what the agency chooses to do with defect trend information that pops out of EWR data – like malfunctioning seat heaters that cause injuries and the manufacturer’s EWR reports to explode. But we’ll get to that in a moment. 

In early July, Senators Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) wrote to Acting Administrator David Friedman asking two questions:

  • How does NHTSA evaluate EWR reporting to ensure compliance?
  • Has NHTSA ever undertaken any enforcement action relating to a manufacturer's failure to fully or accurately report EWR claims?

The pair are sponsors of the Early Warning System Improvement Act, which would amp up the amount of data manufacturers would have to turn over to NHTSA in the case of death claims. Their letter to Friedman noted that Ferrari had never once filed a death or injury claim in EWR, and significant deviations between manufacturers’ EWR reporting. For example, from 2004-2013, GM filed an EWR death and injury report for every 1,524 vehicles sold, compared to Chrysler, death and injury claims for every 4,167 vehicles sold between 2004-2008 and one such report for 8,329 vehicles sold in 2009-2013.

EWR in Theory

In Friedman’s world, NHTSA thoroughly combs EWR for defect trends and non-reporters – the latter receiving stern communications reminding them of their obligations and of the serious consequences that await the guilty.
 
According to the Acting Administrator, the agency uses a variety of methods to ensure compliance, including information obtained during defect investigations and checking an automakers’ World Manufacturer Identification (WMI) number. “If a manufacturer has obtained a WMI number, but has not submitted early warning reporting information to NHTSA, NHTSA sends a letter to the manufacturer reminding it of its reporting obligations and the potential for civil penalties for non-compliance,” Friedman wrote. And in case there was any doubt:  NHTSA enforces EWR reporting requirements and pursues civil penalties “as appropriate” for noncompliance.

As for those wide disparities in reporting rates the Senators referenced – suggesting that some manufacturers may be under-reporting – Friedman attributes them to the “many factors” that can affect the number of reports, such as “vehicle use, owner demographics, and product mix.” Friedman also blamed manufacturers’ interpretations of what constitutes a claim: “Some manufacturers interpret ‘notice’ broadly and report incidents when the ‘notice’ consists of an article published in a newspaper describing an accident. Others are more conservative.” 

In Friedman’s world, once NHTSA gets those reports, “EWR data is thoroughly reviewed and analyzed,” using “sophisticated data mining techniques” to determine if potential defect trends exist.

EWR in Practice

In the real world, NHTSA does not notice when manufacturers do not file EWR reports. 

Senators Markey and Blumenthal, for example, noted that Ferrari had not filed one claim of any kind in 11 years – not NHTSA. Friedman said that the agency would look into it in response to that information.

Tire, component and child seat manufacturers don’t have WMIs, so the agency can’t use that number to chase EWR violators. 

In February 2013, SRS discovered three death and injury claims that had not been reported through EWR, and turned this information over to the agency. The missing claims involved one crash that occurred in in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused permanent and severe injuries to two young children. Harmony, which manufactured the child safety seat and Nankang, the Taiwanese tire manufacturer, and Tireco, the tire importer, were notified of these claims via civil lawsuits in August 2010 and November 2011, respectively. Neither were included in the manufacturer’s quarterly reports. 

To this day, Tireco is not even listed in NHTSA’s EWR database of manufacturers – meaning it has never submitted anything.

In the real world, NHTSA doesn’t care if manufacturers don’t file and, consequently, there are essentially no penalties for manufacturers who fail to file reportable claims. In May 2012, SRS disclosed those instances of non-reporting to NHTSA and tried to follow up, by requesting confirmation that these claims should have been submitted to the agency, and “what actions the agency plans to take.” After a Freedom of Information Act Request only turned up a draft copy of the agency’s EWR Data Analysis Plan from 2008, with page 6 missing, SRS appealed the response – which was denied. SRS sued the agency in federal court and received a few emails between NHTSA and Harmony. Nothing on Tireco. No written policies.

The emails we received between Michael Noah, vice-president of Harmony, and various NHTSA officials show that the agency did contact Harmony and remind company officials about their reporting obligations. At first, Noah tried to argue that he didn’t have to report the claims, because his investigation showed that they did not demonstrate that the safety seats contained a defect. (This is irrelevant to EWR reporting regulations.) In July 2013, NHTSA staff walked Noah through the process. And, after one rejected submission, Harmony correctly submitted four EWR death and injury claims for the second quarter of 2013 and Noah thanked them for their guidance and advice.

Problem solved. Harmony, having been shown the error of its ways, is sufficiently chastened and joins the community of responsible manufacturers who dutifully fulfill their EWR obligations. Well, that’s how the story ends in Friedman’s world. In the real world, Harmony has not filed a claim since. The company’s only submission ever is for the second quarter of 2013. 

Consequently, we doubt the existence of stern letters reminding manufacturers of their obligations. The “as appropriate” phrase Friedman used to describe NHTSA’s application of penalties for non-reporting is agency-speak for “there is no policy.” 

And, the agency apparently determines that a penalty is in order at a Halley’s Comet-like frequency. For example, Friedman cited the $100,000 fine imposed in 2009 on motorcycle manufacturer Piaggio for failing to report EWR claims. But, this penalty also covered the failure to launch a timely recall in 2005. If ODI hadn’t investigated fuel tank failures in the RST 1000 Futura motorcycles, it’s likely that the agency would never have noticed that Piaggio hadn’t submitted EWR reports, and even if it did notice – wouldn’t care.

EWR, Mercedes, and Seat Heaters

The Safety Record has done some simple math operations and, armed with nothing more than a calculator and NHTSA’s EWR database, we decided to follow up on a tip that Mercedes was under-reporting some claims. 

Indeed, from 2003 to 2013, Mercedes only reported 17 property damage claims. Seventeen in a decade. The automaker reported many more death and injury claims in that same time period – 520. Does that seem plausible? People who own these fine expensive products of German engineering don’t report their property damage claims?

Then, as The Safety Record tallied the claims from year to year, we noticed something odd. From 2003-2011, Mercedes death and injury claims averaged about 30 a year. Then in 2012, death and injury claims rocketed to 78, and in 2013, exploded again to 175. What was that about? It’s not easy to find out – not just from the EWR reports. They contain only the faintest outlines of information – vehicle year, make, model, the VIN, the date and location of the incident and the components involved. 

There is no detail regarding how components failed. For example, “airbags” is by far the most tagged component in EWR claims, but we don’t know from the EWR data whether this is a claim of non-deployment, as in a GM ignition problem that turns off the airbag, or an inadvertent deployment or one that sprays you with shrapnel, as in a Takata airbag that deployed in a fender-bender and took out the driver’s eye.  EWR only requires manufacturers to report component categories – and those categories aren’t granular enough to more specifically identify issues on their own.    

But some things do stand out, and when The Safety Record started reading the EWR reports, we found a sizeable number of component fields populated with the words seat, electrical and fire, or some combination thereof. In 2012 and 2013 as many as 69 death and injury claims out of 253 were somehow related to these component failures, and all 10 of the property damage claims Mercedes reported in 2012 and 2013 were fire-related – 100 percent of property damage complaints, which we know are vastly under-reported.

So we turned to NHTSA’s VOQ (complaint) database to see what drivers were telling NHTSA about seats, electrical and fire. A simple search for Mercedes model years 2005-2012 and the word “heater” found 38 complaints from Mercedes drivers, going back as far as 2008 – primarily mentioning Mercedes models from the 2006-2008 model years, but also those of more recent vintage, reporting that seat heaters were malfunctioning to the point of catching fire, with real flames and smoke, burning holes in seats, clothing and people. One driver experienced a crash in May 2008, after the passenger seat of her 2007 Mercedes ML350 caught fire as the vehicle was underway at 50 mph: “the smoke distracted her and caused her to lose control on the vehicle and crash into the median” (ODI 10228723). The most recent complaint came into the agency on October 20, 2014. The narratives go something like these:

The driver seat caught on fire due to a malfunctioning seat heater. A whole the size of a dime burned through the seat and the flame burned a hole into the coat of the vehicle's driver. (ODI 10649117)

The contact owns a 2006 Mercedes Benz ML350. The contact stated that the seat warmer overheated and caused the coils to burn through. The contact mentioned that she sustained second degree burns. The vehicle was taken to the dealer. The technician diagnosed that the seat heater had malfunctioned and the seat needed to be replaced. The manufacturer was made aware of the failure. The vehicle was not repaired. The failure and current mileage was 86,000. (ODI 10562938)

While driving turned on driver side seat heater. Less than 1 minute after I felt burning on my back, I pulled to the side and jumped out of vehicle. Smoke was filling car and jacket was on fire. Patted jacket out and found burn hole through jacket into sweater. After smoke cleared I saw driver seat was burned through. I was lucky this occurred on a side street at 20mph and not on a highway with posted speed of 65mph. Factory told me repair cost may not be covered since car is out of warranty, however local dealership made repair at no cost. I was not aware of the seat heater problem before, but now have researched and found it to be disturbing that no corrective measures have been taken to fix this seat fire. *tr (ODI 10557714)

Yes, “disturbing” is a good word to describe what has happened: Nothing. 

In April 2008, NHTSA opened a brief Preliminary Evaluation into seat heater fires affecting the 2007 Mercedes M-class, based on six crashes and four fires. But the investigation was closed after five months, because, according to the Closing Resume:

The data disclose few complaints and warranty reports concerning this issue. None of the “fire” reports involved open flame, but were thermal incidents in which the seat cushion sustained discoloration or a hole burned in the seat cover. 

As a result, Mercedes has not issued a recall to replace the seat heaters, which apparently start failing anywhere from one to seven years after the manufacture date, injuring occupants and creating dangerous driving conditions. And NHTSA, with its sophisticated data mining techniques, thorough review of EWR data, and its attention to the problem of under-reporting, complete with stern letters and civil fines:

  • Has not noticed that Mercedes isn’t reporting all property damage claims by a factor of a lot.
  • Has not sent a stern letter to Mercedes reminding it of its obligation to report all property damage claims.
  • Has not fined Mercedes for failing to report all property damage claims.
  • Did not notice during its 2008 ODI investigation of seat heater fires that Mercedes was under-reporting property damage claims. The automaker filed only one fire-related property damage claim in 2008.
  • Has not noticed the distinct and unusual seat heater-fire defect trend that not only continued, but actually got worse since it closed its investigation in September 2008.
  • Or has noticed, but decided that your seat catching on fire, filling the occupant compartment with smoke, burning the seat, your pants, and your gluteus maximus while driving is not a safety problem that requires further intervention by the regulator.

 See how EWR works in the real world?

The Real Story of EWR

Friedman began his letter to Senators Markey and Blumenthal with the agency’s boilerplate declaration of its pure intentions: “Our mission at the National Highway Traffic Safety Administration (NHTSA) is safety, and we take these issues seriously.”

NHTSA’s got a resource problem, no doubt. But, they also have a culture problem that is at least as large, if not larger, than its resource problem. The agency resents the meddling of outsiders, be it information about a GM ignition defect from a plaintiff’s lawyer – who NHTSA officials discourteously blow off, only to find themselves the subjects of many unflattering news stories; be it a safety advocate pointing out that death and injury claims are not being reported – who they force to file lawsuits in federal court to get answers to  simple questions; or be it Congress imposing an statistical tool on the agency –which it blows off by not auditing EWR regularly under some quality control procedure to ensure participation, and then ignoring both violators and the defect trends that crawl out of the swamp of broad component categories.

As far as we can discern, everything at NHTSA, is an “as appropriate” case. Piaggio –a small manufacturer of motorcycles – gets clipped $100,000 for non-reporting and an untimely recall for a fuel leak, based on 11 complaints and no injuries. (Did some DOT higher-up own a Piaggio?) But a major manufacturer like Mercedes can report virtually no property damage claims quarter after quarter, and allow its seat heaters to catch fire and burn occupants with impunity.

Bill Haddon, a physician who authored the Haddon Matrix, the pre-eminent injury prevention paradigm and NHTSA’s first administrator, is rolling over in his grave.

In our last blog, we asked: When will someone seriously address NHTSA’s staffing levels, defect surveillance and recall management processes and procedures? NHTSA, a self-proclaimed public health agency could use a seasoned epidemiologist who can lead and instill the types of practices and policies that provide real consumer protection. 

We repeat: When will someone seriously address NHTSA’s staffing levels, defect surveillance and recall management processes and procedures? NHTSA, a self-proclaimed public health agency could use a seasoned epidemiologist who can lead and instill the types of practices and policies that provide real consumer protection. 

NHTSA has to keep telling anyone who will listen how much it cares about safety – because its actions say otherwise.

Industry Experts Urge FHWA to Test Trinity Guardrails Properly

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Last Monday, a federal jury in Marshall, Texas forced the Federal Highway Administration to do what state directors of transportation could not – launch an investigation into the crashworthiness of the ET-Plus guardrail end terminal. The agency, which, two years ago accepted Trinity Industries’ old test reports and spent most of its efforts deflecting the concerns of state highway officials and the questions from journalists, ordered the Texas-based manufacturer of highway safety equipment to submit to a new testing regime.

But, the lead designer of the ET-Plus end terminal’s predecessor the ET-2000 and the attorneys for Joshua Harman, who sued Trinity on behalf of the U.S. government, have written to the FHWA urging the agency ensure that the end terminal is tested in a configuration that mimics the way it has failed in the field.

Harman, the president of SPIG, sued Trinity under qui tam provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman had charged that Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. Harman alleged that the rail jams in the narrower channel, causing it to fold in half, forming a spear that can penetrate the occupant compartment. In his suit, Harman alleged that Trinity changed the design without notifying the FHWA, as required, until seven years later, when he brought his concerns to the agency.

Among the damning evidence in the trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing and a November 9, 2004 email authored by a retired Trinity vice-president, Steven Brown.  He proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I'm feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999. Trinity President Gregg Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus, and did no evaluations of the product.

On the eve of the qui tam trial, the FHWA directed each of its field administrators to immediately gather ET-Plus crash data from state Departments of Transportation. After the jury found Trinity guilty of fraud and awarded the U.S. government trebled damages of $175 million, the agency directed Trinity to submit a plan for additional crash testing by Friday, or risk having its acceptance letter revoked. The agency specified that the testing be performed by a nationally accredited testing facility, excluding the TTI. In addition, whichever testing facility is chosen could not have ever tested the ET-Plus previously and was required to disclose any financial interests it has in roadside safety hardware. Trinity announced that it has stopped all shipments of ET-Plus end-terminals until the testing is completed.

The FHWA is requiring Trinity to subject the ET-Plus end terminal with the 4-inch guide channel to four different tests set forth by the National Cooperative Highway Research Program (NCHRP), using three different guardrail heights.

It is the omissions in the test protocol that have alarmed Dr. Dean Sicking, who designed the ET-2000 while at the Texas Transportation Institute, now at the University of Alabama at Birmingham School of Engineering. He deemed “the most egregious behavior by Trinity Industries was not their failure to adequately test the ET-Plus. Instead, the primary deception perpetrated by Trinity and TTI was hiding the failed crash test results of low angle, head-on, and offset-impacts of the very ET-Plus that was installed across the nation.”

At trial, one Trinity executive testified that the videos only showed an experimental prototype that was eventually abandoned before production. But, Sicking, an author of the test guidance document, NCHRP Report 350, noted that Trinity has an obligation under the NCHRP guidelines to test the ET-Plus end terminals “under any critical impact conditions that the developer identified any time during the life.” In other words, the field failures, plus the crash videos showing the end-terminal malfunctions, demand that Trinity must specifically re-test in that configuration in which it failed.

Sicking pointed out those tests were far from irrelevant, as Trinity characterized them. They showed a critical deficiency in the performance of the guardrail head:

I suspect that neither Trinity nor Texas Transportation Institute has – to this day – informed FHWA that five full scale crash tests were unsuccessfully conducted on the ET-Plus head. These tests were ostensibly conducted in an attempt to gain approval of the ET-Plus use in a flared configuration with a 4 ft. offset over the last 50 ft. Because there was no deformation of the guardrail anywhere outside of the flared region, these tests were equivalent to testing the straight ET-Plus in an end-on, offset configuration at an angle of approximately 4.5 degrees. These are the conditions that appear to be causing the catastrophic failures that have been widely reported in the press. The unacceptable performance of the ET-Plus for these impact conditions was known to both Trinity and TIl prior to the original 2005 letter requesting approval of the ET-Plus for use with MGS guardrail. Two of the five failed tests were conducted prior to the submission of that letter. If FHWA wants to assure the motoring public that the ET-Plus will perform adequately when placed on the highway, it is important that it be tested under those conditions.

 

Attorney George Carpinello of Boies, Schiller & Flexner LLP, who represented Harman during the qui tam trial raised the same concerns. In his letter to the FHWA, Carpinello also pointed out that crash testing alone “is not enough to determine the breadth of Trinity's false representations, or more importantly, the danger posed by the ET-Plus to the motoring public. Through discovery and expert analysis in the Harman action we have learned that Trinity has placed on the highways ET-Plus end terminals with multiple and varied internal dimensions, all of which potentially impact the performance of the ET-Plus in real-world crashes. There is no question that these variations substantially impact performance.” Carpinello argued that his expert had documented differences in installations nationwide, limiting the value of crash tests. 

He also took the agency to task for giving Trinity the option of submitting its documentation confidentially: “as I am sure you are aware, both the NCHRP 350 and the [Manual for Assessing Safety Hardware] protocols make it clear that crash testing alone is insufficient to determine whether a safety device works properly in service. Specifically, NCHRP 350 at § 2.1 makes it very clear that "the evaluation process should not stop with successful completion of tests recommended herein. In-service evaluation of the feature is perhaps more important than crash test evaluation and should be pursued as recommended in Chapter 7.”

So far, at least 13 states have dropped the ET-Plus from their list of approved highway safety equipment or suspended further use until the FHWA completes its investigation: Nevada, Vermont, Colorado, New Hampshire, Missouri, Massachusetts, Hawaii, Virginia, Oregon, Connecticut, Louisiana, Mississippi and Arizona.

William Boynton, a spokesman for the New Hampshire DOT, noted that “at this time, the NHDOT has no direct evidence that the terminal is ‘flawed.’”  

On June 8, an Ohio couple was southbound on I-93 in Ashland New Hampshire, when the sedan left the roadway and struck an ET-Plus guardrail, which penetrated the Subaru Impreza at the passenger side wheel well, slicing the driver and her companion in the legs and knees. Both sustained serious injuries, requiring long hospitalizations and have undergone multiple surgeries to repair the damage.

Boynton said the NHDOT was aware of that crash.

Trinity Defenses Collapsing Faster Than an ET-Plus End Terminal

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A jury in Marshall County, Texas found that Trinity Industries, a global manufacturer of highway safety equipment, defrauded the federal government in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the Federal Highway Administration and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million.

The FHWA did not participate in the lawsuit, nor was it present in the courtroom.

Joshua Harman, the president of SPIG, sued Trinity under provisions of the False Claims Act, in which a private individual can sue federal contractors on behalf of the government, alleging fraud. Harman claims that sometime between 2002 and 2005, Trinity modified the design of its original guardrail end terminal design, the ET-Plus, causing it to fail in crashes and injure and kill occupants in striking vehicles.  The newer versions of the ET-Plus, manufactured in 2005, bear a dimensional change to the width of the guide channel, or “feeder chute,” through which the rail is extruded. With this change, critics charge, the end terminal no longer performs like those of the earlier design. Instead of bending away, the rail jams in the chute, causing it to fold in half, forming a spear that can penetrate the striking vehicle.  Harman has claimed that Trinity changed the design without notifying the FHWA, as required, until seven years later, when a patent dispute between the two companies brought this modification to light.

According to SRS staff who attended the trial, there were two keys to the plaintiffs’ success – a November 9, 2004 email and the testimony of Trinity President Gregg Mitchell.

The decade-old email, authored by a retired Trinity vice-president, Steven Brown, proposed changing the guide channel from five inches to four to make the terminal eight pounds lighter and save $2 a unit, without telling the FHWA, as it is required to do: “If [the Texas Transportation Institute] agrees, I’m feeling that we could make the change with no announcement.” TTI, an arm of Texas A & M University, invented the ET-2000 and the ET-Plus, and was responsible for conducting the testing that would be submitted to the federal government in support of its application for approval. TTI agreed to the change without telling the government, and drafted a test report that failed to reference the change to the guide channel and other changes to the original design, first approved in 1999.

Trinity President Gregg Mitchell took the stand and made the company look like incredibly sloppy engineers who deliberately concealed the changes to the government. Mitchell testified that Trinity had no meetings to discuss the dimension changes and performance issues with the ET-Plus. In fact, the company did no evaluations of the product.

A typical exchange between Mitchell and one of Harman’s lawyers, George Carpinello, went like this:

Carpinello: What studies did you consult, sir, or did TTI consult to your knowledge to determine that a change from 5- to 4-inch would improve the alignment of the extruder head, and, therefore, enhance the extrusion — extrusion during a head-on impact?

Mitchell:  I’m not aware of any studies.

Carpinello:  What field studies were done, sir?

Mitchell:  I’m not aware of any field studies.

Carpinello: What computer analysis was done, sir?

Mitchell:  I’m not aware of any computer analysis.

Carpinello: Was anyone consulted other than TTI and Trinity?

Mitchelll: Not that I’m aware of.

Carpinello: Did you go to any contractors and ask them, sir, whether they saw anything in the field that indicated that Trinity should change from a 5- to 4-inch to enhance the rail

extrusion during head-on impacts, sir?

Mitchell: I’m not aware of field studies that were done. No.

Carpinello: Did you consult any public officials, any DOT officials, state police, or outside experts to ask if there was a problem with regard to the extrusion during head-on impacts so that we should change it from 5- to 4-inch?

Mitchell: I’m not aware of any.

Click here to read the full trial transcripts.

The plaintiffs’ bar will be feasting on these admissions for some time.

Trinity executives also never re-ran the most critical test used for certification with the FHWA – a head-on collision with a pick-up truck at highway speed. Instead, Trinity ran a test with a small car to see if a different design change – raising the height of the posts to 31-inches would cause a small vehicle to underride the rail. It did not submit to the FHWA videos of tests with the newly designed four-inch end terminal that showed it failing spectacularly, because, the company argued, it was used in a different type of installation. Trinity’s Vice President of International Sales Brian Smith testified that those crash test videos represented a research project that was ultimately not put into production, and never submitted to the FHWA. Also several Trinity executives and TTI engineers testified that the real reason for the change to the channel width was to mitigate a wobble in the guardrail beam inside the guide channel. Neither could produce any evidence that this wobble existed; TTI engineer Roger Bligh testified that the wobble was something he had observed, but had not tested for.

Dean Sicking, a University of Alabama engineering professor who designed the ET-2000, testified that Mitchell threatened to harm him professionally if he testified in the qui tam trial.  Sicking said:

[Mitchell] went on to say that we plan to treat all the witnesses for — for Mr. Harman the same way.  And — and I looked at him and I was a little surprised by that and then he said, I hate to see that happen to you.

In 2012, Trinity Industries was successful in fending off federal scrutiny of the safety of its ET-Plus guardrail end terminal, after Harman brought his claims to the attention of the FHWA and several state Departments of Transportation. But Trinity’s loss yesterday follows another state giving the ET-Plus the boot. The Virginia DOT has removed the ET-Plus guardrails from the qualified products list and given Trinity until Friday to provide the state agency a laundry list of items:

  • Conduct testing of the modified (4″ channel) ET-Plus on 27.75 inch guardrail at a nationally accredited testing facility using NCHRP 350 criteria.
  • Allow VDOT and consultants to be present at the testing to verify proper protocol.
  • Provide test analysis and reports for new testing, including detailed product schematics for the system and the head, depicting all dimensions.
  • Immediately advise VDOT of any additional modifications made to the ET-Plus after 2005 and seek approval from VDOT for any such modifications

Meanwhile, Congress may be leaning in for a better look at the Federal Highway Administration’s acceptance of Trinity’s seven-years-too-late admission of changing a critical dimension, and Trinity’s actions in this debacle. 

NHTSA Seeks Input on Electronics Rule

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The National Highway Traffic Safety Administration has published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments, satisfying a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles,” would have been an excellent addition to Volume 54 of the Federal Register (published in 1989).

The notice, published in Volume 79, takes note of the sea-change in automotive systems over the last three and a half decades, enumerating the transformation with the kinds of statistics that emerged during the agency’s February 2010 assessment of Toyota Unintended Acceleration, but were ultimately deemed to have no connection to the defect:

“The first common use of automotive electronics dates back to 1970s and by 2009 a typical automobile featured over 100 microprocessors, 50 electronic control units, five miles of wiring and 100 million lines of code.”

The agency also takes note of the difficulties this presents:

“Over time, growth of electronics use has accelerated and this trend is expected to continue as the automotive industry develops and deploys even more advanced automated vehicle features. This trend results in increased complexities in the design, testing, and validation of automotive systems. Those complexities also raise general concerns in the areas of reliability, security, and safety.”

And:

“Growing system complexity and abundance of design variants even within one manufacturer over model years and across classes of vehicles pose general concerns over whether existing processes can ensure their functional safety. Further, anomalies associated with electronic systems—including those related to software programming, intermittent electronics hardware malfunctions, and effects of electromagnetic disturbances—may not leave physical evidence, and hence are difficult to investigate without a record of data from the electronic systems.”

NHTSA announced its intention of determining “whether there are emerging gaps in the functional safety assurance processes of motor vehicles.”

The Safety Record would argue that the concerns about and the gaps around the functional safety and reliability of today’s automotive electronics are present, specific and abundant. For example, NHTSA talks about the ways electronics make vehicles safer, and mentions electronic stability control. There’s no doubt that it can save a vehicle from a loss-of-control crash. In 2007, the agency published a Final Rule establishing Federal Motor Vehicle Safety Standard No. 126, requiring that passenger cars, multi-purpose passenger vehicles and trucks and buses with a Gross Vehicle Weight Rating of 10,000 pounds or less implement electronic stability control, with full fleet implementation by 2012. According to the agency’s last analysis, published in 2011, “ESC was associated with a 6-percent decrease in the likelihood that a vehicle would be involved in any police-reported crash and an 18-percent reduction in the probability that a vehicle would be involved in a fatal crash. The effects become more pronounced when you look at the effect on light trucks: 7 percent overall crash reduction; 20 percent reduction in fatal crashes. ESC reduced first-event rollover scenarios by 56 percent in passenger cars and by 74 percent in LTVs. Fatal impacts with fixed objects are reduced by 47 percent in passenger cars and 45 percent in LTVs.

But there was nothing in that Final Rule ensuring that ESC systems failed safely. So in March 2013, Honda was recalled 183,000 Honda Pilots for inadvertent braking caused by two separate malfunctions of its ESC system, called Vehicle Stability Assist. Honda blamed it on damaged capacitors on the electronic control unit (ECU) circuit board which “may be capable of applying a small amount of braking force for a fraction of a second, even if the brake pedal has not been applied by the driver.” Or, it could be caused by loose electrical ground connector fasteners, which could increase the electrical resistance in the system and send the wrong signal, leading to braking while the vehicle was underway.

Here’s how it played out in the field for Carrie Carvahlo, a Honda Pilot owner from Massachusetts. On October 10, 2010, Carvahlo was in the passenger seat of her 2005 Honda Pilot, with her friend at the wheel, when suddenly, “the car exhibited a very loud groan and the brakes engaged bringing the car to a dead stop in the middle of the road.  The vehicles behind her Pilot had to swerve to avoid hitting the car.  The driver had his foot on the accelerator the whole time but the brakes engaged on their own,” according to the complaint. A couple of minutes later, the Pilot’s brakes again engaged with no command from the driver. Carvahlo filed a Defect Petition, which eventually forced Honda to launch the recall.

NHTSA’s characterization of vague unease is belied by scores of recalls and investigations related to electronic defects. In 2011 The Safety Record examined 12 months of recalls to determine the prevalence of recalls related to electronic defects. After reviewing 722 recall campaigns, The Safety Record found that electronics recalls comprised more than a quarter; of those, 24 recall campaigns addressed software defects.

In October of that year, Nissan recalled 2004-2006 Armada, Titan, Infiniti QX56 and model year 2005-2006 Frontier, Pathfinder and Xterra vehicles, because of a compromised engine control module relay within the intelligent power distribution module. The automaker told NHTSA that a diode in the relay could allow silicon vapors to form, allowing silicon oxide to develop on the ECM relay contact, causing arcing. This, Nissan said, could lead to a sudden engine stall.

In November 2011, Volvo recalled more than 6,000 XC70, XC90 and S80 and S60vehicles within certain chassis ranges because the engine and transmission software calibration was so sensitive, the vehicle could suddenly stall after a stop, and go into a reduced power mode. Volvo had to update the software.

In the last 30 days, NHTSA listed three investigations related to electronic defects – low-speed UA in Toyota Corollas, loss of Electric Assisted Power Steering in Ford Fusion, Mercury Milan and Lincoln MKZ vehicles, and failures of the Totally Integrated Power Module (TIPM) installed in Chrysler SUVs, trucks, and vans.

In the last 30 days, there were several electronic recalls, among them:

  • General Motors recalled some 2013-2014 Cadillac XTS and MY 2013-2014 Chevrolet Impala vehicles which might have left the factory with the sensing and diagnostic module set to “manufacturing mode,” meaning that the vehicle's air bags would not deploy in the event of a crash.
  • Ford recalled MY 2013-2014 Ford C-Max and Fusion, and Lincoln MKZ vehicles because the coating on portions of the Restraint Control Module could crack, and when exposed to humidity could cause the circuits on the printed circuit board to short. It also recalled MY 2011-2013 Focus ST because insufficient compression in the engine wiring harness splices to the Manifold Absolute Pressure sensor could send incorrect signals to the powertrain control module (PCM), resulting in an engine stall.
  • Chrysler recalled some MY2013-2014 SRT Viper vehicles due to inaccurate seat position sensors, the frontal air bags may deploy with a lower velocity than designed for the actual seat position.

In response to the notice, Sean Kane, president of Safety Research & Strategies said “I would argue that NHTSA, instead of meeting the challenges posed by the difficulties in investigating intermittent electronic defects, has largely pretended that they don’t exist. In the Toyota Unintended Acceleration debacle, the agency cherry-picked data, twisted drivers’ testimony, dismissed physical evidence, and generally missed no opportunity to insist that UA was caused by mechanical interference or driver error.”

In 2007, ODI opened and quickly closed a Preliminary Evaluation into sudden unintended braking involving about 100,000 MY 2000-2001 Mercedes M-class vehicles, without taking any action. Mercedes dazzled ODI with a presentation in which the automaker simulated electrical faults in the yaw rate sensor and showed how “the ESP [Electronic Stability Program] system is programmed to diagnose electrical faults and that brake applications resulting from yaw rate sensor electrical faults are very short in duration (0.3 seconds or less) and don’t affect vehicle control or stability.” The Vehicle Research and Test Center was unable to duplicate the problem in a vehicle that had experienced multiple events, so the investigation was terminated.

Neither system had adequate fail-safes.

Two years ago, NHTSA attempted to upgrade the accelerator control standard by proposing that manufacturers be required to equip all vehicles with a brake override, which cuts throttle voltage in electronic throttle control (ETC) vehicles when the brakes and throttle are in conflict. The Notice of Proposed Rulemaking was in direct reaction to the Toyota UA crisis, but, the proposal merely codified manufacturers’ current designs, and noted that it was meant to address unintended accelerations caused by mechanical failures: component disconnections and pedal misapplication. It noted “allegations” of UAs with electronic causes, but ignored manufacturers’ own recalls for electronically-based UAs.

The agency, in posing a series of questions to the public, made (with no small irony) this admission:  “Functional safety assurance of modern automobiles requires a thorough understanding of electronic control systems’ design under a variety of scenarios.”

Among its inquiries:

  • Should the agency pursue alternative approaches to categorize and prioritize potential electronic control system hazards and impacts to support new standards?
  • What other automotive electronics should it consider in its research that could affect the electronics in the safety critical systems?
  • What performance-based tests, methods, and processes are now available for safety assurance of throttle, braking, steering, and motive power management?
  • What performance-based tests should the agency consider to ensure safe functionality of these types of automotive electronic control systems under all real-world conditions?
  • What methods are effective in identifying potential anomalous behavior associated with electronic components, systems, and communications reliably and quickly?
  • What strategies do current vehicles have for activating a ‘‘fail-safe’’ mode when critical problems are detected?
  • What types of problems are classified as ‘‘critical’’ and how does the vehicle detect these problems?
  • What state-of-the-art detection and fail-safe response methods should the agency be aware of and further assess?

 

Good questions, all. One hopes that the agency takes seriously the answers and suggestions from members of the public who are not also members of the Alliance of Automobile Manufacturers. The latter has shown no appetite for regulations.  In 1995, for the first time since FMVSS 124 was first established in 1972, the agency proposed to gather information in advance of an upgrade, to explicitly state its applicability to new types of engines and throttle controls, and to add a new test procedure to address different types of powertrain technology. According to the 2002 NPRM, manufacturers were not interested in helping:  “In general, the comments of vehicle and engine manufacturers did not address the specific questions in the notice. Instead, they voiced a preference for rescinding the standard altogether, suggesting that market forces and litigation pressure are sufficient to assure fail-safe performance without a Federal Motor Vehicle Safety Standard.”

Automakers have proven to be unreliable narrators of their own systems and ODI has proven to be all too credulous of their stories. Toyota, for example, claimed in multiple responses to UA investigations that its electronic throttle control system could not fail without the diagnostic sensing system taking note. That assertion had no basis in fact – as shown by Dr. David Gilbert of Southern Illinois University in his examinations for Safety Research & Strategies, and further detailed by software expert Michael Barr, who examined Toyota’s source code, line-by-line for Bookout v. Toyota. The case involved a September 2007 crash that seriously injured the driver, Jean Bookout, and killed her passenger, Barbara Schwarz. Bookout was exiting Interstate Highway 69 in Oklahoma in a 2005 Camry when she realized that she could not stop her car. She pulled the parking brake, leaving a 100-foot skid mark from right rear tire, and a 50-foot skid mark from the left. She could not stop the Camry, which flew across the road at the ramp’s bottom, crashing into an embankment.

Barr concluded that Toyota’s software system as defective and dangerous, riddled with bugs and gaps in its failsafes that led to the root cause of the crash. Among the many deficiencies: possible bit flips, task deaths that would disable the failsafes, memory corruption, single-point failures, inadequate stack overflow and buffer overflow, single-fault containment regions, thousands of global variables. Barr called Toyota’s safety architecture “a house of cards.”

More recently, we give you the case of Bristol, RI Corolla owner Robert Ruginis, whose wife experienced a low-speed UA while parking the vehicle that resulted in a minor crash. Ruginis, unlike hundreds of other Toyota owners who suffered crashes in similar circumstances, was lucky enough to obtain an Event Data Recorder readout which affirmed Kathy Ruginis’ account. In the five seconds before the airbag made the decision to fire, the data showed that there was no input from the accelerator, but braking, and a doubling of speed and rpms. Somehow, with nothing touching the accelerator, the Corolla experienced a surge, despite braking. The engine control module – like its manufacturer – was silent on this contradiction.

Comments are due to NHTSA Docket by December 8, 2014.  Submit here

[More on functional safety in vehicles]

What Good Can Come of Reporting Toyota UA?

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Last week, two young clean-cut and preternaturally earnest lawyers travelled from the D.C. and New York offices of Cahill Gordon & Reindel LLP to meet with Bob and Kathy Ruginis, the Bristol, RI couple who reported their Unintended Acceleration incident while parking to the Toyota Special Monitor and to NHTSA.  

To recap: On  June 10, Kathy Ruginis was attempting to park her 2010 Toyota Corolla on a town street, when the vehicle surged forward, without any input to the accelerator and crashed into an unoccupied parked Jeep in front of it. Kathy’s foot was on the brake at the time. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually when the Corolla was operating at higher speeds, since the couple bought the vehicle new in May 2010. Kathy Ruginis, a Catholic school educator, used the Corolla for commuting to her job in Massachusetts. Early in her ownership, she had taken the vehicle twice to the dealership complaining of these surges. The dealership techs drove her car in a circle around a big box store-parking lot and proclaimed that the surges were just the result of downshifting, which strangely, the mechanic never himself experienced during the test drive.

Then came the June 8 crash. A June 24 inspection, performed by a Toyota contractor, included a 16-mile test drive, a visual inspection and a download of the Event Data Recorder, which confirmed the account of Kathy Ruginis and her passenger: the Corolla was surging while her foot was on the brake. It showed in the five seconds of vehicle data before the system made the decision on whether to deploy the airbag: accelerator pedal untouched, brake pedal on, speed and RPMs doubled.  In denying the Ruginis claim, Toyota only considered the results of the “test” drive and the physical inspection: “Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.”

Bob and Kathy Ruginis decided to take their case to two higher authorities: the Toyota Independent Monitor David Kelley, a position created by the March Deferred Prosecution Agreement that closed the criminal investigation into Toyota’s lies about its Unintended Acceleration problems, and Acting NHTSA Administrator David Friedman. The Ruginises requested that the former look into Toyota’s dishonest dealing and the latter into low speed surges in MY 2006-2011 Toyota Corollas.

Past is Prologue

The Cahill lawyers, Sean P. Tonolli and Frederick “Fritz” Vaughan were professional, pleasant, and accessible, running their questions on three tracks: what happened; what the Ruginis family thought about Toyotas in general and knew about Toyota UA specifically; and, the responsiveness Toyota’s customer experience. How long did it take Toyota to return your calls? To whom did you speak?  Were they polite?

Tonolli, a former federal prosecutor, described their charge thus: We want to make sure that there isn’t a repeat of 2009 and 2010 – the height of Toyota’s crisis.

Safety Research & Strategies President Sean Kane, who attended the meeting, told Tonolli he was too late. The Toyota Unintended Acceleration problem continues to unfold exactly as it has since the first Camry with Electronic Throttle Control rolled off the assembly line. Drivers experience a UA; Toyota and NHTSA dismiss their accounts as unreliable and cobble together a driver error or pedal entrapment explanation with whatever is at hand –  no matter how unlikely, illogical or belied by the evidence. Driver gets stuck with a vehicle they are too scared to drive and are reluctant to foist upon someone else.  

The interview elicited more interesting details about the Corolla’s behavior. Kathy Ruginis told the investigators that she experienced these surges, two to four times a month. A conservative driver, she was able to keep control of her Corolla, in part, because by all accounts, it is her habit to leave plenty of space between her vehicle and that in front of it. Over the last four years, she shrugged it off and compensated. They had offered the Corolla to their oldest daughter, who needed a car, but she refused, because, she, too had experienced one of those surges and was unnerved by it.

As Bob and Kathy Ruginis told it, the Toyota customer experience is as crappy as ever. Getting answers was an arduous process that produced no real results. Phone call after phone call, message upon message. The person you needed to speak with was never immediately available to talk to you; you got passed around like a bottle of whiskey at a hobo camp; direct email addresses, verboten. Ruginis, familiar with corporate email address structures, played around until he figured out how to send an email directly to the employee he wished to contact. All in vain. Toyota not only dismissed the EDR readout, they refused to tell Bob Ruginis, an embedded software expert with 35 years’ experience, what they thought his EDR readout showed. In fact, told him that they were not allowed to say what the EDR readout purported to show.

That did not stop Toyota spokesman Mike Michels from telling journalists from The Wall Street Journal, USAToday and Providence Rhode Island news station WPRI who reported on the Ruginises’ petitions, that the EDR showed a case of late braking. A. It doesn’t. B. As Bob Ruginis pointed out: Toyota couldn’t tell us, but Toyota could tell the media?

The Safety Record didn’t know what to make of these customer service questions. Toyota pled guilty to a fraud charge. As part of that plea, the automaker admitted that it committed fraud upon NHTSA, Congress and consumers. Toyota continues to defraud consumers who have had a UA incident unless it resulted in a serious injury or death. (Those cases that charge electronic defects are getting settled faster than you can say Michael Barr.)

Toyota takes a customer’s money in exchange for a defective vehicle. When the defect surfaces, it ignores all evidence of the defect, stonewalls and blames the customer and bids them Good Day. While the Independent Monitor does not and cannot assess Toyota’s technical defects – how exactly will Mr. Kelley write his report to the U.S. Department of Justice on the matter at the heart of the government’s case if he doesn’t address the defects?

Enter NHTSA

Meanwhile NHTSA, an acronym which so often seems to stand for: Not Having The Sense to Ask, has not made a formal response to Bob and Kathy Ruginis’ petition – although a spokesman did publicly opine to the news media that his EDR probably showed a dual-pedal application.

Offline, various representatives of the Office of Defects Investigation have asked Ruginis whether he would be willing to lease his Corolla to the agency for “testing” and could he please give them his list of 163 Vehicle Owners Questionnaire complaints from Toyota Corolla owners who have complained of low-speed surges?

The Safety Record recalls the history of NHTSA’s Unintended Acceleration investigation history and advises: Be skeptical.

We won’t go all the way back to the 1989 Silver Book – we’ll start with Toyota.

When it comes to Toyota UA, ODI investigators don’t believe drivers – or their witnesses.

  • ODI investigators tried to persuade Jeffery Pepski, the Lexus ES350 owner who petitioned for a defect investigation in April 2009 after a very frightening high-speed UA, that his event was a case of floor mat entrapment. Pepski’s vehicle did not have a stacked all-weather mat – the type that NHTSA linked to pedal interference. They showed him how a carpet floor mat could entrap a pedal. Then, Pepski showed them how easy it was to release the pedal by manipulating it with his foot – as he did during the event. Toyota claimed there were witness marks on the carpet. Pepski countered that their inspection came five months after the event, so the notion that witness marks remained in the carpet were ludicrous.
  • ODI suggested to the Las Vegas Metropolitan Police Department that the January 2004 Yago incident could be a case of pedal misapplication. George and Maureen Yago rocketed off a fourth-floor parking garage in their 2002 Camry XLE. Two witnesses following the Yagos into the garage said that they saw the vehicle pull slowly into a space and come to a stop, (observing that the Camry’s brake lights were lit) when the vehicle suddenly took off.
  • ODI told William Kronholm, who experienced two UA in his 2008 Tacoma that his was a case of dual-pedal application caused by his ski boots. Kronholm actually tried to hit both pedals at once and said that he would have to angle his foot into a memorably unnatural position to achieve that.
  • In 2010 ODI postulated that the four UA events experienced by Andrew Shultz in his 2009 Tacoma was a dual pedal application incident, caused by military-style boots. Shultz works for the military as a civilian and did not own a pair of military-style boots.

 

NHTSA misuses VOQ data to support their institutional bias against causes of UA that are anything but mechanical or driver related:

  • In denying Pepski’s petition, the agency deliberately mischaracterized the narratives of VOQs he had gathered to bolster his petition. The agency deemed some of the incidents floor mat-related, even when the driver said things such as: “On two prior occasions the vehicle accelerated from speeds between 20-30 mph, to speeds up to 50-60 mph. On 9/11/07, the vehicle accelerated at speeds up to 80-90 mph. We are aware of the Lexus notification of floor mat interference, so we removed the mats after the first two times, but the last and most frightening, occurrence happened without the mat in the vehicle.”
  • In 2011, the agency used VOQs to dismiss the only physical evidence found in the joint NHTSA-NASA investigation into electronic causes of high-speed UA events in Toyota – the presence of tin whiskers in the acceleration pedal position sensor that could cause a short circuit and a wide-open throttle. NHTSA employed some bizarre methodology that counted the number of warranty claims for an accelerator pedal-related problem against the number of VOQs. NHTSA believed that if the number of warranty claims was greater than the number of complaints, this would mean that electronics was a root cause. But if more consumers complained to NHTSA about Toyota UA than received a warranty repair, then that would be proof that electronics was not a cause. Too many people complained to NHTSA, so the agency concluded cause wasn’t electronic.
  • Or, too many people complained to NHTSA, so it wasn’t the result of people having actual problems, it was all due to the media hype effect – another NHTSA statistics fail. Read What NHTSA’s Data Can Tell Us about Unintended Acceleration and Electronic Throttle Control Systems  http://onlinepubs.trb.org/onlinepubs/UA/101011Whitfield.pdf  – we’re too tired to explain.

 

Even when ODI witnesses Unintended Acceleration with no input from the driver with their very own eyes, they dismiss it.

  • In May 2012, two ODI engineers witnessed a 2004 Prius, owned by Joseph McClelland, high-ranking government official, accelerate on its own several times while on a test drive with the owner, without interference from the floor mat, without a stuck accelerator pedal or the driver’s foot on any pedal. They videotaped these incidents and downloaded data from the vehicle during at least one incident when the engine raced uncommanded in the owner’s garage and admonished the owner to preserve his vehicle for further research. “They said: Did you see that?” McClelland recalled in a sworn statement.  “This vehicle is not safe, and this could be a real safety problem.” Three months later, the agency dumped the investigation. Investigators told McClelland that they weren’t interested because it thought that it was an end-of-life issue for the hydrogen-fuel cell of the battery and told The New York Times that it wasn’t a safety issue: [NHTSA] also noted that the vehicle “could easily be controlled by the brakes” and “displayed ample warning lights” indicating engine trouble.” (seeGovernment Officials Video Electronic Unintended Acceleration in Toyota: NHTSA Hides Information, SRS Sues Agency for Records)

 

NHTSA really has no clue how to test for these problems.

  • In 2010, Southern Illinois University automotive electronics professor David Gilbert visited NHTSA’s Vehicle Research and Test Center in East Liberty, Ohio to see how they were testing vehicles for unintended acceleration problems. He found that NHTSA did not have sophisticated diagnostic equipment, was not looking at the right vehicles and  had not done enough in-depth electronics research, investigation, or testing to determine how electronics can affect vehicle performance. “Simply plugging in scan tools and reviewing data is not going to be enough to truly investigate the SUA issue,” he wrote in a letter to NHTSA.  

 

What Good Can Come of Reporting Toyota UA?

If NHTSA, People Blaming People™, can’t really figure it out because it lacks the expertise and the will to do so, and the Independent Monitor wants to know if Toyota bought you dinner before it screwed you, why report Toyota UA all?

The Safety Record says just do it because, the problems have not been fixed. Drivers continue to experience UA events that cannot be attributed to pedal entrapment or driver error. Do it to create the record of the reality, not the fairy tales the agency and its regulatory partner, Toyota, want to peddle.

Eventually, the pretzel logic the authorities have attempted to apply to this frustrating, intermittent, and dangerous electronic problem will crumble into a pile of salty crumbs. 

Here’s where you can report your Toyota UA to Independent Monitor David Kelley:

 

Toyota Independent Monitor

c/o Cahill Gordon & Reindel LLP

80 Pine Street

New York, NY 10005-1702

ToyotaMonitor@Cahill.com

 

Senate Holds Hearings on NHTSA and House Releases Staff Report on GM Ignition Switch

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Another big day for NHTSA as the Senate Committee on Commerce, Science, and Transportation’s Subcommittee on Consumer Protection, Product Safety, and Insurance will hold a hearings today at 2:30 pm titled “Oversight of and Policy Considerations for the National Highway Traffic Safety Administration,” chaired by Subcommittee Chairman Claire McCaskill (D-MO).  Earlier today House Committee on Energy and Commerce released its Staff Report on the GM ignition switch crises. 

The Safety Record hasn’t unpacked all of the details of the House report, but we thought a quick comparison was in order: 

Safety Research & Strategies June 13, 2011 presentation to the National Academy of Sciences:

"Absent regulation and investigators with detailed and independent understanding of current technology, the crises will continue to occur…" (slide 26, “Toyota Unintended Acceleration: Learning From Crises and Moving Forward Sean Kane Safety Research & Strategies, Inc)

 

House Staff report on GM Ignition Switch and NHTSA:

"As manufacturers began implementing new advanced air bag systems, NHTSA’s safety defect investigators’ understanding of the systems failed to keep pace with the evolution of the technology. Critically, NHTSA investigators were completely unaware of the link between power mode and the air bag system until the GM recall in 2014."

(U.S. HOUSE OF REPRESENTATIVES COMMITTEE ON ENERGY AND COMMERCE Staff Report on the GM Ignition Switch Recall: Review of NHTSA September 16, 2014, Page 34)

 

Watch today’s Senate hearing at 2:30 pm EDT here.