Changes to Recall Regs: A Ray of Sunshine!

When is a safety recall not really a safety recall?  When the manufacturer submitting the Part 573 Defect and Non-Compliance Report (49 CFR Part 573) says it isn’t.

The Recall Management Division’s files are dotted with many such non-admission admissions. For example, in February, Goodyear recalled nearly 41,000 of its Silent Armor Tires in six sizes. The company conceded that these tires had high rates of warranty and property damage claims, and that the tire’s lack of robustness could result in a partial tread separation and a crash. Three months earlier, two Texas college students died in a rollover crash, after the left rear Silent Armor tire on the pick-up truck suffered a tread separation.

Goodyear, however, “found no safety issues” and deemed its recall a “customer satisfaction campaign,” to NHTSA.

If NHTSA’s proposed changes to the recall regulations are eventually adopted, the practice of manufacturers making signing statements will end. The agency is also proposing to require automakers to file defect and non-compliance reports via the Internet, including notices of foreign recalls. The agency is proposing asking manufacturers to submit the specific Vehicle Identification Number for each recalled vehicle, so that consumers can search a recall by their vehicle’s specific VIN. Unfortunately, there appears to be no such provision for the Tire Identification Number (TIN). Manufacturers will continue to submit TIN ranges only, and there will be no Web portal, which the public can use to determine if a specific tire has been recalled.

Lexus RX Floor Mat Recall: NHTSA’s House of Cards Adds a New Floor

An examination of NHTSA records surrounding a June recall for floor mat interference in 2010 Lexus RX350 vehicles shows that the National Highway Traffic Safety Administration used mischaracterized data to buttress its request that Toyota recall the floor mats. Further, NHTSA ignored obvious clues that there might be an electronic root cause for the unintended acceleration complaints consumers filed with the agency.

These documents affirm the pattern that has characterized NHTSA’s Toyota Unintended Acceleration investigations – both informal and official -- since 2004:

  1. Dismiss the consumer’s description of the event, unless it conforms to the agency’s presumption of driver error or mechanical interference.
  2. Accept the explanations of the automaker or dealership of driver error or mechanical interference as completely accurate – even in the absence of any empirical evidence to support the contention.
  3. Dismiss any evidence of an electronic cause
  4. Settle for a limited, ineffective recall.
  5. Wait for another high-profile incident, consumer petition or accumulation of complaints to repeat the process

SRS has been examining the factual underpinnings of NHTSA’s actions in Toyota Unintended Acceleration since 2009. As we have in the past, we submitted a Freedom of Information Act request for all records related to Toyota’s most recent floor mat recall. We received 58 pages of documents, some of which were redacted under FOIA exemptions for confidential business information, personal identifying information and sections deemed “deliberative process.”

As we don’t know what information lies behind the redactions, we cannot assess the totality of the evidence behind NHTSA’s decision to seek a floor mat recall. However, what the unredacted portions show is there is scant evidence of a widespread floor mat interference problem and there is even less logic in the complaints NHTSA claims support its argument that a problem with the mats exists. But, there is much more evidence in the narratives of consumer complaints suggesting electronic causes of UA in 2010 Lexus RX 350.

Toyota: The Other Numbers

This morning National Public Radio reported Toyota sold 5 million vehicles in the last six months.  These strong sales numbers mean the company may be poised to regain the number one automaker slot from GM.  This talk of Toyota numbers had us here at Safety Research & Strategies looking at some other data -- complaints involving Toyota unintended acceleration and what’s been reported publicly in the last year.

And we would be remiss if we failed to note Toyota’s latest directive to the press about how to properly address Safety Research & Strategies president Sean Kane.  But first, the numbers:  We reviewed unintended acceleration incidents involving Toyota vehicles reported to the National Highway Traffic Safety Administration (NHTSA) between June 1, 2011 and July 17, 2012.  To identify these reports, we examined the NHTSA data for all consumer complaints containing keywords related to UA that were submitted during that time period. We then reviewed each complaint record to determine if it described a UA incident. So here they are:

- 368 total incidents

- 36 involved vehicles described as having had at least one UA recall remedy performed prior to the incident.

-  95 reported injuries; none of these incidents resulted in a fatality.

So what do we make of this?  Despite the Very Important Scientists and the Secretary of Transportation LaHood’s proclamation that “The verdict is in” and “There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period,” consumers are still taking the time to report their experience to the government – and many report incidents that don’t seem to be explained by floor mats, “sticky” pedals, or driver error.  You can read them here.

DOT Settles Lawsuit over Toyota UA Documents, New Congressional Inquiry Raises More Questions

The dam against electronically caused unintended acceleration in Toyotas that the National Highway Traffic Safety Administration and Toyota built, with outrage, secrecy, pedal interference recalls, and capped with the February 2011 NHTSA-NASA report springs more leaks. The question is: Can they keep it from collapsing entirely?

Safety Research & Strategies continues to examine information showing that unintended acceleration still plagues Toyota vehicles and that many incidents cannot be explained by floor mats, bad drivers and sticky pedals. Recently, the Department of Transportation settled a Freedom of Information Act (FOIA) lawsuit with SRS, agreeing to turn over investigatory documents, videos and photos related to the agency’s involvement with a 2011 recall of Toyota and Lexus models for alleged accelerator entrapment by interior trim. (The agency also agreed to pay our lawyer’s fees – this from the Most Transparent Administration Ever.)

The recall was precipitated by the Timothy Scott incident. Scott is a former 2007 Lexus RX owner who reported a frightening UA event as he headed home from the gym one morning. In short order, Toyota bought Scott’s vehicle, and pronounced it a case of trim interference. NHTSA never looked at Scott’s Lexus, but began to investigate this root cause in other vehicles. Within six weeks, Toyota recalled the vehicles and NHTSA was all done.

We were eager to see just what the agency found out about the possibility of trim interference as a root cause of UA and what it didn’t want to show us– enough, at least, to try to stash it behind Exemption 5 of the FOIA, which protects agency deliberations. Imagine our amazement when the videos – sans audio- appear to show that the Lexus RX trim does not interfere with the accelerator -- or, not without a lot of manipulation of exemplar vehicles. We are no closer to understanding why NHTSA dropped its investigation, or how trim interference can cause a UA like Tim Scott experienced, or, more importantly, why we had to sue the DOT to get this.

Toyota and the Case of the Electronic Floor Mat Entrapment

As the last work week in June slouched to a close, Toyota announced another floor mat recall – this time for 154,000 model year 2010 Lexus RX350 and RX450 H vehicles. Frankly, we were slack jawed. This is the automaker’s fifth floor mat recall since 2005 and the eleventh alleging that unintended acceleration was caused by something interfering with the accelerator pedal – all weather mats, plastic trim, condensation in the pedal’s friction lever. That’s double digits, people.

NHTSA quickly claimed credit for influencing the recall:

“NHTSA approached Toyota regarding this issue late last month after the agency observed an increase in consumer complaints and other reports regarding pedal entrapment in these vehicles. When Toyota confirmed last week that it had received a significant volume of complaints on the same issue, NHTSA asked the manufacturer to conduct a recall.”

We guess that at this point, NHTSA and Toyota are tight enough that the agency can dispense with the whole investigation thing and just pick up the phone. So, the public doesn’t know what data the agency collected, and how many complaints directly to Toyota constitutes “a significant volume.”

The agency said that it had “carefully” reviewed “the available data” and “does not currently believe the issue involves additional vehicles beyond those indicated as part of the recall.” “..NHTSA anticipates the remedy proposed by Toyota will address the problem.”

Sadly, we do not share the agency’s confidence.  We have carefully reviewed the 2010 RX350 speed control complaints and we noticed something pretty interesting. Drivers were reporting that during the unintended acceleration event, the “brake failure” telltale on the dash was lit up. Check out ODI 10445439, reported to NHTSA last October:

On Oct. 5, 2011 at 7:45 am, I was traveling on a one lane road each way in rural Connecticut (35 mph zone). I decided to pass a car that was traveling well below the speed limit when my Lexus RX350 lurched forward suddenly and then had a huge burst of accelerating speed. I applied my foot to the brakes and the car slowed very slightly, but started to buck a little and then once again felt like it kicked into a higher gear. My dashboard was flashing "brake failure." as I looked down and saw that my foot was firmly planted down on the brakes. Fortunately, there were few cars on the road and only once did I have to pass a car on a blind curve hoping no one was approaching from the other way, so as to avoid ramming a car in front of me. I had resolved in my mind that I was going to crash, and was trying to find a place to take the car off the road while trying to minimize injury to me. I stopped looking at my speed, but it was clearly in excess of 60 mph in a 35 mph zone. I was lucky that day, since there were few cars on the road and the stretch of road I was on was fairly straight. I drove this way for about 1.5 miles when it then occurred to me to shift the car into neutral. Once I did this, the car eventually reduced speed to about 5-10 mph. I threw the car into park and jumped out of the vehicle, which at this point was engulfed in smoke from the failed brakes. Lexus blamed the incident on a stuck accelerator pad, although they admitted when the car came to their shop the pad was not stuck. I know factually that the pad was not stuck, since I looked down at my feet during the episode and saw my foot on the brake, and the accelerator pad in its normal position. This was clearly an incident of sudden acceleration.

Or ODI 10445422, concerning a January 25 UA:

“I went out to grab a bite to eat for my daughter and I came to a stop light at a major intersection. I received the turn arrow so I accelerated thru the turn and then punched the gas to make it thru the next light that will turn red if you don't give it a little gas to get thru it. I make it thru the light and get in the right lane to slow down to make my turn and my brakes don't work and my car starts accelerating on its own. I have no control of the speed so I throw the car in neutral and keep slamming the brakes while the brake malfunction light appears. I’m not sure how my car slows down and I make a right turn into a parking lot and my engine is still sounding like it is accelerating and I am in neutral. My car rolled to a stop, I shut it down and called the Lexus line. The [sic] had a towing company out within an hour and the tow truck driver told me this is at least the 10th time he has hauled this type of car for the same thing.”

Better Consumer Protection in China?

China may be better known for afflicting consumers with shoddy products than protecting them from shoddy products, but if you own a newish Jeep Wrangler, apparently you’re better off if your vehicle is registered in Beijing rather than Boston.

In November 2011, the Chinese government strongly suggested that Chrysler recall its 2008 – 2010 Jeep Wrangler models because the skid plate and exhaust configuration allowed debris to collect in the undercarriage of the vehicle while off- roading, allowing the catalytic converter to ignite the dried grass. The recommendation came after consumers filed three fire complaints in the month of October alone. Chrysler tried to argue that only the 2010 MY Wrangler possessed uniquely defective underbody conditions, but the Chinese government lit a fire under the automaker to recall the 2008 and 2009 model years as well. Owners of those Jeep Wranglers got the skid plate replaced by the new skid bar, which didn’t allow debris to accumulate.

So what happens if you are Rob Pyrock of Charlotte, North Carolina, and the owner of a Jeep Wrangler Rubicon? You don’t know anything about the Chinese Wrangler recall, but two months later, your Wrangler vehicle catches fire after a trip across a meadow, according to some fine reporting by WCNC’s Bill McGinty.

The Heavy Price of a Delayed Recall

Goodyear has notified the National Highway Traffic Safety Administration that it is recalling 40,915 Wrangler Silent Armor flagship tires, more than a year after the company observed a higher rate of warranty and property damage claims, and three months after two Texas college students died in a tire failure that precipitated a rollover crash.

The August 1, 2011 incident claimed the lives of Matthew Smith and his passenger Kerrybeth Hall, as Smith drove southbound on U.S. Highway 67 in Pecos County, Texas. The left rear Wrangler Silent Armor tire on the 2008 Ford F-150 pickup de-treaded, causing the pick-up to skid and rollover. Smith was fatally ejected from the F-150. Hall, who was properly restrained, also suffered fatal injuries in the crash.

“I think Goodyear was getting lot of warranty claims, but said, ‘Let’s see what happens,” says David T. Bright, an attorney with Sico, White, Hoeschler & Braugh of Corpus Christi, TX, who represents Gerry Lynn Wilkinson, Kerrybeth’s mother, in the civil case against Goodyear. “Then Goodyear waited another 12 months, and decided:  Hang on. Let’s wait a while longer. And three months later, these two people got killed.”

According to documentation Goodyear filed with the National Highway Traffic Safety Administration (NHTSA) on February 22, the tiremaker had first noticed elevated property damage and warranty claims for the Wrangler Silent Armor tire, during its May 2010 review of Early Warning Data. Over the next 12 months, the company would continue to see high levels of warranty and property damage claims specifically for six sizes of the tires produced at its Fayetteville plant. But Goodyear still resisted a recall, passing off the uptick as isolated cases caused by “stone drilling damage and other external damage to the tires.”

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