GM and NHTSA’s "Magic Formula"

Tomorrow, the heads and NHTSA and GM will head into the House committee for a three-Bromo-seltzer morning on the topic of: What Did You Know and When Did You Know It?

We, at The Safety Record, are most interested in understanding why NHTSA declined to investigate the defective ignition modules in early model year Chevy Cobalts and other models, after two Special Crash Investigations, 29 complaints, four deaths and the considered opinion of Defects Assessment Division (DAD) Chief.

According to a briefing report prepared by Majority Staff of the U.S. House Committee on Energy and Commerce’s Subcommittee on Oversight and Investigations, the decision point for the agency was the fall of 2007:

In September of that year, the DAD Chief “emailed other ODI officials and proposed an investigation of “frontal airbag nondeployment in the 2003-2006 Chevrolet Cobalt/Saturn Ion.” The Chief of the Defects Assessment Division went on to state that the “issue was promoted by a pattern of reported non-deployments in VOQ [Vehicle Owners’ Questionnaire] complaints that was first observed in early 2005. Since that time, [the Defects Assessment Division] has followed up on the complaints, enlisted the support of NCSA’s Special Crash Investigations (SCI) team, discussed the matter with GM, and received a related EWD Referral. 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.”

Two months later, an “ODI IE panel reviewed the proposal to open an investigation into non-deployment of airbags in 2003-2006 Cobalts and Ions. A PowerPoint presentation prepared by the DAD and dated November 17, 2007, states that its review was prompted by 29 Complaints, 4 fatal crashes, and 14 field reports. During a briefing with Committee staff, ODI officials explained that the panel did not identify any discernible trend and decided not to pursue a more formal investigation.”

The Safety Record has long observed that we can find no “discernible trend” in NHTSA’s investigation decisions. In a March 8, 2014 New York Times story on the GM debacle ODI Chief Frank Borris said that that calls are made by “really well-seasoned automotive engineers who leverage a lot of technology and lean on past precedent about when to open, when to close, and when to push for a recall. It’s no magic formula.”

Take out the word “magic,” and for once, we agree with Frank.

In February, Safety Research & Strategies submitted comments to NHTSA’s 2014-2018 Strategic Plan docket pointing out this perennial problem, well-documented in a series of Office of Inspector General reports going back to 2002:

- NHTSA uses an unstructured process for determining defects and inconsistent or nonexistent criteria for initiating defect investigations.

- NHTSA makes poor use of available data and refuses to consider information from sources outside the agency or the manufacturer.

- NHTSA focuses on defects that are easily and inexpensively remedied, frequently ignoring more complicated and dangerous defects.

Graco’s Perception Problem

Leiana Marie Ramirez was three days shy of her second birthday, when she was burned alive, strapped in a Graco Nautilus child safety seat.

 On August 26, 2011, her mother, Samika Ramirez had been out running errands related to Leiana’ party – delivering cupcakes to her pre-school, shopping for Lieana’s birthday present. The pair was on the way home, southbound on Arroyo Seco Parkway in South Pasadena, when Samika felt her Nissan Altima swerve, and thinking she had a flat, regained control of her vehicle, stopped in the left-most lane and put on her flashers. The divided highway had no breakdown lane, just a narrow shoulder.

 Ramirez was about to call AAA, when another driver, who hadn’t noticed the stopped Altima, plowed into its rear end. The vehicle almost immediately caught fire. According to the police reports, Samika tried frantically to unbuckle her daughter, but could not release the harness. The flames engulfing her car were too intense, and onlookers pulled Samika Ramirez out of the car, while Leianna stayed behind. She witnessed her daughter’s death.

 More than a year later, the National Highway Traffic Safety Administration would open an investigation – still pending – that would eventually result in a recall of the Graco Nautilus and 17 other models for buckles that were so difficult to unlatch that some consumers complained to NHTSA that they had to cut the belt webbing to get their children out of the seat. And, from the beginning, Graco would concede that it was “keenly aware of the issue.” Indeed, it had collected more than 6,100 complaints about it.

 But Graco insisted that the inability to extract a child from the car seat was merely “a consumer frustration and a consumer experience that Graco has been working to improve.” To this date, Graco has not acknowledged that this defect led to a horrific death – not in its responses to the agency’s investigative information requests; not in its Part 573 Defect and Noncompliance Report and not in its Early Warning Reports. The company paid a big fine to the U.S. Consumer Product Safety Commission in 2005 for a long history of failing to report injuries and deaths. Even now, with the initial recall expanded and under a Special Order to answer all questions truthfully, Graco comforts its customers on its website:

 Graco can assure you there have been no reported injuries as a result of the harness buckles used on Graco car seats. We want to stress that our car seats are safe and effective in restraining children.  And, the safest way to transport a child is always in a car seat.

 NHTSA declined to comment on Graco’s stance, via a statement to The Safety Record:

 “Although Graco has submitted a defect notice in response to NHTSA’s recall request, our investigation remains open.  As such, the agency cannot discuss or comment at this time.”

 Attorney Christine Spagnoli, who represents the Ramirez family, says that Graco’s failure to acknowledge Leiana’s death will negatively affect the efficacy of the recall”

 “To me the issue is this: by putting on their website that there are no reported claims and by telling that to NHTSA, They are trying to dissuade people from getting new buckles,” says Spagnoli of Greene, Broillet & Wheeler, LLP. “This is a safety issue, and by saying something false to the public, they’re trying to save money, at the expense of kids getting hurt.”

 The Investigation

 The Preliminary Evaluation into Graco buckles opened in October 2012 with 25 complaints reported to NHTSA via their Vehicle Owners Questionnaire database, containing hypotheticals that echoed the Ramirez incident, like this one, filed with the agency in September 2012:

Toyota’s Billion Dollar Web

Back in 2010, after Toyota announced that a federal grand jury in New York had subpoenaed the company on June 29 for documents regarding relay rod failures in Toyota truck models, we asked if the automaker would be the first to be prosecuted under the Transportation Recall Enhanced Accountability and Documentation Act (TREAD).

Well, right question, wrong defect.

Under the settlement with the Department of Justice announced today, Toyota is banged for $1.2 billion, and prosecution for committing one count of wire fraud is deferred for three years, for the lies it told about the floor mat entrapment and sticky pedal recalls. According to Toyota’s Statement of Facts, the automaker sought to limit its floor mat recalls, even though the entrapment hazard affected other models, and resisted the sticky pedal recall, even though Toyota had addressed the problem in Europe.

“This sends a mixed message,” says Sean Kane, president of Safety Research & Strategies. “On the one hand, a $1.2 billion fine is a very significant hit. But the government’s focus is only on the narrow areas of the floor mats and sticky pedals. The bulk of Toyota vehicles experiencing Unintended Acceleration problems were never recalled.  That billion dollars doesn’t do a thing for Toyota owners stuck with defective vehicles.”

The skeleton of this particular set of lies have been in the public domain for several years. In April 2010, when former Secretary of Transportation Ray LaHood announced that the agency had imposed a $16.4 million fine on Toyota for failing to recall 2.3 million vehicles with defective accelerator pedals – then the largest civil penalty NHTSA had levied against an automaker – the Secretary failed to make public the documents laying out his rationale. In May 2011, NHTSA quietly posted the sternly worded demand letter that explained why Toyota got slapped.

To remind our readers, Toyota recalled the CTS supplied pedal in Europe in September 2009, but waited until January 2010 to recall the pedals in the U.S. However, on October 7, 2009, “a staff member of the Toyota Motor Corporation Product Planning and Management Division sent a copy of an Engineering Design Instruction describing the pedal remedy that was already implemented in Europe to someone at Toyota Motor Engineering and Manufacturing North America, Inc. for the accelerator pedal of a RAV 4 manufactured in Canada. Two weeks later “a member of the TMC PPM inexplicably instructed a member of the TEMA PPM not to implement this Engineering Change Instruction. Furthermore, in November 2009, Toyota provided NHTSA with FTRs regarding sticking accelerator pedals on vehicles in the United States but not with information regarding Toyota’s extensive testing and determinations regarding the cause of the sticking accelerator pedals or an explanation of the significance of the FTRs, the demand letter said.

That GM Loaner May Not be Safer

Last week, General Motors attempted to pour oil on its troubled waters with an offer of free loaner cars for consumers awaiting a fix for the wandering ignition defect that is linked to at least 13 deaths. But, Consumers for Auto Reliability and Safety (CARS) says that a loaner may be no safer – as long as automobile dealers are permitted to put customers in vehicles that may be under recall, but unremedied.

“We are very concerned for customers who go to GM dealers expecting a safer loaner car and that might not be what they get,” says Rosemary Shahan, CARS president.

This issue has been simmering on the Congressional back-burner since last May, after a California jury awarded $15 million to the parents of two sisters who died in an Enterprise Rent-A-Car 2004 PT Cruiser on October 7, 2004. The driver of the truck they hit testified that he could see smoke pouring from the PT Cruiser’s engine compartment just before it veered into the southbound lanes of Highway 101 in Monterey County, crashing into his 18-wheeled Freightliner tractor trailer. A month earlier, Chrysler had recalled 439,000 2001-2004 PT Cruiser and the 2005 PT Cruiser Convertible for a power steering hose that could rub against the transaxle differential cover, eventually resulting in a steering fluid leak and an underhood fire. Despite the recall notice, Enterprise had rented the PT Cruiser that crashed to three other customers before the Houcks. On the day of the crash, the PT Cruiser was the only vehicle available and Enterprise employees offered it to Raechel and Jacqueline Houck as a free upgrade.

Automobile dealers are prohibited from selling a new recalled vehicle that has not yet had the remedy implemented, but there is no such prohibition against renting or loaning out a recalled vehicle that has not had the fix, or selling a used unremedied vehicle.

The Raechel and Jacqueline Houck Safe Rental Car Act of 2013 was sponsored by Democratic Sens. Charles E. Schumer (D-NY), Barbara Boxer (D-CA), and Claire McCaskill (D-MO) and Republican Sen. Lisa Murkowski (R-AK), and supported by the car rental companies. The bill, S921, was filed in May and was unanimously passed by the Senate Committee on Commerce, Science and Transportation, but it has advanced no further. CARS is lobbying for the bill and a similar one in the California legislature. SB 686 prohibits dealers from loaning, renting, leasing or otherwise transferring ownership of recalled used vehicles to consumers. But in both cases, the auto dealers have demanded a carve-out for loaners, because, as lobbyists testified they “have no way to know” if a vehicle has been recalled.

“The dealers and the manufacturers are blocking it and can’t even get out of the Senate,” Shahan said. “They’ve testified that they don’t want to pay for the down time, because a recalled vehicle could be out for weeks. They don’t want to lose the revenue, they’d rather put their customers at risk.”

NHTSA Opens Smart Key Compliance Probe

With a 2011 rulemaking on standards governing electronic key systems still pending, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicles that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present – all conditions that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. And, incidentally, all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

SRS obtained these documents after submitting a Freedom of Information Request for agency documents related to keyless ignition investigations.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia regarding 2012 and 2013 model-year vehicles, based on tests of how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

The agency said that the probe was initiated by a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. But actually, the compliance investigation had its origins in a routine FMVSS 114 compliance test of a 2013 Ford Focus. After discovering that the vehicle did not meet the warning aspect of the regulation, NHTSA’s Office of Vehicle Safety Compliance (OVSC) contacted Ford in March 2013. The two met to   discuss how its Intelligent Access key system worked. And OVSC asked Ford if it could use its MyCANIC tool. Used with Ford software, the MyCANIC is plugged into the OBD-II diagnostics port to read specific data channels from the vehicle’s computer, namely to access how the “Power Mode” communicated either a “Key Out” or “Key In” reading.

Over the spring, and stretching into the fall the OVSC and Ford jointly reviewed the vehicle. NHTSA asked for more information; Ford provided it. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. And just in case the agency was wondering what Ford really thought of FMVSS 114, it added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford's consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a  ‘key in ignition’ door chime to address the agency's question with respect to the requirements of FMVSS 114 Section 5.1.3 (Theft Prevention).”

Don’t Settle, NHTSA

Yesterday, the agency sent General Motors an extraordinary 27-page Special Order compelling the automaker to answer 107 questions about an ignition defect in the 2005-2007 Chevy Cobalt and six other models that claimed at least 13 lives and injured at least 31.

Retired NHTSA senior enforcement lawyer Alan Kam said that he’d never seen anything like it.

We are encouraged by NHTSA’s aggressive and swift action, and we are hoping and wishing and praying for actual enforcement follow-through that benefits and protects consumers, rather than merely burnishes the agency’s image.

We all know – including GM – that a big, fat fine is in their future for failing to launch a recall within five days of discovering a defect, as Marietta, Ga. attorney Lance Cooper found out. Cooper obtained internal documents during the discovery phase of a lawsuit on behalf of the family of the late Brooke Melton, showing that GM engineers discovered in 2004 that the ignition of the 2005 Cobalt could wander from the run to off or accessory position while the vehicle is underway. 

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