This tough stance on recall timeliness is welcome – but does not resolve the larger issues raised by Toyota unintended acceleration – namely how defects are defined in the era of automotive electronics and how such defects are investigated when they are rare, multi-root-cause, and potentially deadly?

The dribble of documents released by the Multi-District Litigation and Congress so far show that UA has been duplicated by Toyota technicians and, contrary to attempts by Toyota advocates and agency investigators to pass off all incidents as driver error, sticky pedals, big shoes and floor mats, there are instances when reliable technical personnel take the vehicle for a test spin and experience UA with no pedal involvement. In fact, we have discovered that Toyota techs were able to duplicate UA in one of very public and widely debated case – but lied to the consumer about it. (We’ll feature that story in a future post.)

The root cause – or causes – of such instances remain obscured, for the moment. There are multiple possibilities. (We suspect that Toyota execs and technical staff in Japan have a much better idea of why these instances occur.) We know that Toyota has bought back vehicles that have experienced a UA event in front of dealership personnel for further testing. Independent testing and vehicle inspections continue to show Toyota’s fault detection software has some serious flaws – flaws that allow unwanted events to occur undetected and without activation of the failsafe features.  There are no regulations that govern the layers of safety need in today’s sophisticated vehicle electronics.  While some manufacturers follow strict multi-tiered safety strategies that catch inevitable (and sometimes rare) occurrences, Toyota appears to be missing some core layers.  How and whether this gets addressed will set the foundation for the future of motor vehicle defect investigations and recalls.

Eventually, this knot will be untangled – but by whom? The National Academy of Sciences is still working on its report. But the panelists aren’t experts in vehicle electronics and have an incredibly broad mandate to review everything from electronic controls design and reliability to environmental factors to cyber-security of automotive electronic control systems.  We don’t expect any revelations there. The Inspector General is looking at NHTSA’s investigatory process, and this work may yield some insight and suggested improvements. The joint NASA-NHTSA effort is scheduled to conclude in 2011.  NHTSA still has an open Recall Query, RQ10-003, to determine if Toyota too narrowly defined the defect in its two UA-related recalls.

And that takes us back to our first question. ODI investigators have traditionally been broken parts guys and gals. What happens if the defect is a line of code or a faulty detection strategy made of digital Swiss cheese? The agency itself may have to broaden the concept of defect to address the evolution of vehicle computer systems and electronics and whether rare events with serious consequences are safety-related defects under their mandate.

To our second question about investigations into a rare, random, and yet potentially deadly defects – the agency isn’t going to get anywhere until it catches up to today’s engine systems. Some of the agency’s public efforts to date, such as the “study” of SUA events using Event Data Recorders, showed how far NHTSA has to go. The agency mischaracterized the data and failed to address the many discrepancies in the readouts. Further, it omitted any context about the questionable reliability of Toyota’s EDRs and about the incidents it included.  The “results” didn’t add much of anything to the discussion other than blaring headlines that alleged NHTSA exonerated Toyota of electronic defects.

Toyota SUA has also exposed more regulatory fissures. Federal Motor Vehicle Safety Standard 124 Accelerator Controls has pretty much lost its relevance. Its purpose is: “to reduce deaths and injuries resulting from engine overspeed caused by malfunctions in the accelerator control system.” In 2005, NHTSA proposed amending it. But, the industry sought to rescind the standard, arguing that market forces and litigation pressure were sufficient to assure fail-safe performance without a safety standard. The agency terminated the rulemaking.

And, while these broad questions beg for answers, automakers are experimenting with even more sophisticated and integrated electronics.

The day-long meeting was meant to be a kick-off to the NTSB’s 2011 focus on child safety in airplanes and automobiles, with a special focus on increasing child restraint and seat belt use rates. Note to NTSB: you might want to allocate more time to this project – the lag in child safety regulation and industry practices has been the sad state of affairs for decades. Decades.

First up was the Federal Aviation Administration. The agency defended its practice of allowing children to fly without child safety restraints. Without a hint of irony, the FAA said that such a requirement would result in more people driving rather than flying, putting children at higher risk because the injury and fatality rates for children in motor vehicle crashes far surpasses that those in an airplane.

Next came the National Highway Traffic Safety Administration and auto and child safety seat manufacturers, toting the same load of excuses for not improving rear seat and child safety they’ve carried for years. Instead of talking about better rear seat and rear seat belt design, or perhaps, say, coordinating child safety seat manufacturers with automakers to design products that specifically fit a particular seat geometry, presenters turned to their favorite scapegoat: parents.  Though many of the presentations noted the decrease in child fatalities and injuries because more parents are placing their children in proper restraints, they also discussed methods address the stubbornly high misuse rate of current child restraints.

The Juvenile Products Manufacturers Association, which loves parents’ money, but parents, not so much, blamed its customers for denying the dangers of motor vehicle crashes. David Campbell, a former Graco executive who now works as a safety consultant, represented the JPMA at the meeting. He argued that parents don’t take the time to install the seats correctly and don’t spend enough on the expensive seats that are easier to manage. This, of course, presumes that all parents can afford the pricier restraints. It also presumes that parents know enough to make these distinctions. Contradictory safety recommendations, no guidance from actual manufacturers on which seats best fit which cars; a dearth of regulation; confusing public policy, a lack of government leadership – an entire employment specialty, Child Restraint Specialist has sprung from this mess – but, hey let’s blame parents!

The NTSB attempted to point some of this out as it steered the conversation toward the lack of effectiveness of current rear seat belt design.

NHTSA has long maintained that occupants under 80 pounds or less than 4′ 9″ tall do not properly fit in a standard rear seat lap/shoulder belt. That rear seat compartments are not designed to protect children has been well documented. The seat pans are typically too long, causing the child to sit forward on the seat. This, in combination with poor anchorage locations, positions the lap belt across a child’s abdomen. In crashes, this results in seat belt syndrome, in which children sustain severe internal and spinal injuries caused by the belt squeezing their organs and providing a flexion fulcrum for their spines. The shoulder belts, typically designed for taller occupants, often wind up with the belt webbing positioned across the child’s neck instead of the chest, which can result in serious or fatal neck injuries.

On the issue of testing, NHTSA, Ford and Insurance Institute for Highway Safety (IIHS) conceded that none of their testing or rating systems address children in the rear seat. Children and young adults continue to be seriously injured in the rear seat compartment, because that area of the vehicle remains essentially unregulated.  Neither FMVSS 213 nor NCAP include dynamic crash testing requirements for children in the rear seat compartment, masking the dangers and limitations of current rear seat restraint designs.  FMVSS 213 tests child restraints on a single bench seat that is mounted on a sled buck with no vehicle structure in front of it, and therefore does not test for real-world head contact risk in the rear seat compartment.  This method of testing cannot address the effects of vehicle seat design, vehicle restraint design, the effect of the potential impact areas for the child dummies, or compatibility issues.

In fact, analysis of child dummy head excursions in FMVSS 213 compliance tests and the excursion distance of rear seat compartments indicate that head contact with the back of the front seatback is likely.  Head injuries from impacts with the vehicle interior to neck and torso injuries from poor belt geometry are still prevalent, though preventable. Rear seat restraint systems need to be dynamically tested in vehicles with restrained child dummies and dummies in child restraints and assessed using the injury criteria and excursion limitations from FMVSS 213 and 208.  Euro NCAP and Australian NCAP have tested child restraints dynamically in vehicles before 1999 in both frontal and side impacts.

In response to the TREAD Act, the agency implemented a pilot program designed to investigate the feasibility of rating child restraints based on dynamic performance. The tests subjected child restraints to a 48 km/h (30 mph) crash test under the same test conditions as the FMVSS No. 213, in various configurations with dummies of various sizes. The pilot program was conducted under the New Car Assessment Program (NCAP). Results showed little variance between different child restraints tested in the same configuration; however, a more substantial, statistically significant, difference in HIC performance was observed between different configurations of the same child restraint. These results indicate that the agency cannot assume similar results for different configurations of the same child restraint. Most of the dummy injury values fell well under the current injury assessment reference values published in FMVSS No. 213.

The TREAD Act also required the Secretary of Transportation to develop a child restraint safety rating system that was “practicable and understandable” to help consumers to make informed decisions when purchasing child restraints. In 2002, NHTSA published a final rule announcing its intent to establish a consumer information program for add-on child restraints based on ease of use. But when the final rule was published a year later, the agency announced that the results of the pilot testing program would be made available only as research. Today, no ratings are assigned to any of the child restraint systems tested.

The IIHS’s Anne McCartt said that the Institute cannot test for the safety of children under 10 because there is so much variation child restraints and rear seat compartment design that it would be too logistically challenging. Hmm, safety experts can’t figure it out, but let’s blame the parents!

Would it be possible, NTSB Chairman Deborah Hersman asked, to optimize the vehicle rear seat restraint system to better fit children?

That would be too hard. Steve Rouhana, Ford’s senior technical leader for safety in Passive Safety Research and Advanced Engineering, argued that if you make the rear seat safe for children, then the safety of adult occupants is compromised. Rear seats are very different than front seats, he explained, because they have more than one function – access to the rear compartment, cargo retention, etc. etc.  In other words, Ford needs to make sure that back seat is designed to hold the box containing the big-screen television, so it really can’t be expected to place a premium on child occupants.

(Manufacturers, of course, have been aware of the incompatibility between rear seat lap/shoulder belts and older children for decades.  In 1987, when NHTSA began rulemaking to require lap/shoulder belts in the rear seat, Ford and Honda argued for revisions based on the presence of children in the rear seat. Both noted the serious fit issues with children in adult belts.)

As for integrated child seats – Ford has no intention of adding them, Rouhana said. They were a market bust. (Parents didn’t buy them.)

In sum, the child restraints manufacturers blamed the automakers for not working with them to marry aftermarket seats to vehicles, the automakers blamed the child seat manufacturers for bad designs; advocates blamed both for making the entire enterprise so complicated it is difficult to determine which rear seats and which child safety restraints are safe; the FAA blamed NHTSA. Somehow, it was still all the parents’ fault.

“Booster seats are a band aid approach,” Rouhana said. “We need a holistic approach.”

Indeed. Now, who will make that happen? The NTSB, with no enforcement powers but a decent bully pulpit, does a good job pointing out the massive gaps in safety policy. The rulemaking agencies and their partners in industry tend to ignore the stream of recommendations, until Congress gets a burr under its saddle and passes a law compelling a regulation. DOT Secretary Ray LaHood has ordered NHTSA to develop a program focused on identifying specific seats that fit well in certain vehicles. We’ll see how that goes.

This may be the first time Chairman Hersman has heard any of this, but it’s old news to us. We have read the rulemaking histories of child safety and rear seat regulations, heard industry’s arguments, plumbed the recall and testing documents on child safety seats and followed the research on child injury and death in motor vehicle crashes. If our readers perceive a cranky tone in this post, it’s because not one of the major stakeholders has shown any leadership on this issue and the job remains undone. Simply, child safety is not a priority.

Tell us, what other product can be marketed to families, but not be safe for the entire family to use without the addition of a third-party piece of equipment? Why do the experts look at a 75 percent misuse rate for child safety seats and blame the users instead of the product designers?  Why have automakers abdicated their responsibilities to child occupants? Why has NHTSA allowed them to do it? Vehicle manufacturers have the data, the engineering and the research capabilities to develop a solution. What they lack is the will. Instead, they ask parents to find the appropriate third-party restraint that will best protect their children in their vehicle.  What’s needed is a shake-up in the entire approach to this problem.

In the meantime, auto manufacturers will keep trying to push the public’s buy-button with images of irresistible kids snug in the rear, while the mom smiles sagely at the wheel. Just remember: the company that produced this vehicle doesn’t really care if that cute kid is safe in the rear seat. And the smiling mom? They blame her, and she has no clue.

The vote was 3-2, with Commission Chairman Inez Tenenbaum, and Commissioners Robert Adler and Thomas Moore approving the final rule. Commissioner Nancy  Nord and Ann Northup opposed it.

“Today’s vote represents a major victory for consumers and supporters of open government because it will provide the public access to critical product safety information that, due to statutory restrictions on the open flow of information, the CPSC was previously required to keep behind closed doors until it had been cleared with manufacturers,” the majority wrote in a joint statement.

The database will contain reports of harm; manufacturer comments on those reports; recall information and any additional information the commission feels is in the public interest.

The reporting mechanism is open to just about any member of the public who would have knowledge of an alleged product-based injury or death – including health professionals, lawyers, public safety officials and child care providers. A mock-up of the reporting scenario, which the CPSC has presented in the past, asks the submitter for information about the harm, the product and the victim. It also asks for contact information, a description and date of the incident, the category of submitter and the type of incident.

Incomplete incident reports will not make it into the public database, including those that do not contain an identifiable consumer product, manufacturer or private labeler, a description of the harm; intrusive photographs; medical records without consent; and reports by minors without a parent or guardian’s consent.

Click on the image below to see a larger version of a mock-up of the reporting form.

Manufacturers still have some recourse to correct and respond to reports or shield certain information from public view. Manufacturers may request and the commission may grant confidential treatment for portions of a report. The commission is also obligated to pull or correct materially inaccurate and delete duplicative reports within 7 business days of determining an inaccuracy.

Nord and Northup had tried and failed to amend the final rule at the eleventh hour to narrow who could report and to enforce more controls on accuracy. Upon passage, Nord expressed her disappointment:

“I voted against the final rule on the public database because it is so flawed that it is both contrary to the statute and to good public policy. Congress directed that the database be established but, presumably, expected that we would use both good sense and practicality in carrying out its mandate. We have used neither. Further, the rule adopted today is another example of poorly conceived and excessive regulation that, sadly, has become the norm at the CPSC over the past months.”

Manufacturers likewise have been railing against the database, painting it as an apocalyptic event in the lives of their businesses. In public hearings, various industry representatives described it as a breeding ground for lawsuits, based on wild inaccuracies. Much of the hand-wringing is, no doubt, rooted in inexperience. The National Highway Traffic Safety Administration fields between 30,000-50,000 complaints from consumers each year, which are entered into a public database. To date, no automobile manufacturer has been brought down by consumer access to product complaints.

Their predictions don’t seem to take into account that any number of consumer products-rating websites and opportunities to read unfiltered customer reviews on a wide range of products sold through many Internet retailers already exist. The CPSC  searchable database will likely provide another piece of information on a product for that fraction of consumers who educate themselves before buying. For safety advocates and public health officials, it will be a valuable surveillance tool to detect design and manufacturing flaws that result in harm. The transparency will hold both the commission and manufacturers accountable for ensuring that their products can be safely used and taking action when they cannot.

In the coming months, the CPSC will begin its outreach to the public and manufacturers, holding workshops and training webinars for the latter on the business portal registration and other features. The commission will also enable the comments section, the new incident form, and the new internal technology for processing incident reports.

The database is scheduled to debut March 11.

Decades passed, and so did the mechanical systems, into automotive history. The car makers began to seek the wise counsel of the National Highway Traffic Safety Administration: did FMVSS 124 apply to electronic systems? Yes it did, NHTSA said.

In 1995, after seven years of issuing interpretations relating electronic systems to the mechanically-based standard, NHTSA began the process of upgrading the standard to address the needs of the modern automobile. The agency asked many questions about electronic systems failsafes and redundancies, such as “Are there other predictable points of failure of an electronic control system?”

But the Great and Powerful Car Companies did not want a new regulation. They said:  We do not need any new rules – we don’t even need the current rule. Nay, market forces and litigation pressure are sufficient to assure fail-safe performance without a federal motor vehicle safety standard.

Despite the resistance, NHTSA published a Notice of Proposed Rulemaking in July 2002, explicitly stating its applicability to new types of engines and throttle controls; and adding new test procedures to address different types of powertrain technology, including one to the measurement of engine speed under realistic powertrain load conditions on a chassis dynamometer. The agency considered this test ‘‘technology neutral.”  The new standard would not expand in scope, nor become more stringent.

But the Great and Powerful Car Companies did not like this. They fought against the agency’s attempt to establish fail-safe criteria.  Leading the charge were the Alliance of Automobile Manufacturers and . . .  Toyota Motor Corporation. The proposed rule had too many problems they said, and the agency lost heart. In November 2004, NHTSA withdrew the rulemaking, saying it would do further research on issues relating to chassis dynamometer-based test procedures for accelerator controls.

More years went by, and people began to complain in great numbers that the accelerator controls in Toyota vehicles did not work right. And, lo! There were deaths and injuries “resulting from engine overspeed caused by malfunctions in the accelerator control system.” The lawsuits against Toyota began to pour into all the courts in the land. There were so many of them, that a judge had to combine them into one gigantic case, in which many lawyers would do battle. Many car buyers read the news about these problems with accelerator controls and decided that they really would rather have a Buick, or a Ford, or a Honda. Anything but a Toyota. And, the U.S. Congress took a sudden interest in the ancient accelerator regulation, and began to clamor for a law that would force NHTSA to update the standard.

And so, the wish uttered 15 years earlier by the Great and Powerful Car Companies came true. Toyota became the target of multi-district litigation, its customers fled and a new regulation was on the horizon.

The End.

Now, wasn’t that a nice story, boys and girls?