Category: Regulation

NHTSA Denies Toyota Unintended Acceleration Defect Petition

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Eight months after a Bristol, RI Toyota Corolla owner petitioned the National Highway Traffic Safety Administration to investigate low-speed surges into Toyota Corollas, the agency has denied the petition, concluding:

In our view, a defects investigation is unlikely to result in a finding that a defect related to motor vehicle safety exists or a NHTSA order for the notification and remedy of a safety-related defect as alleged by the petitioner at the conclusion of the requested investigation. Therefore, given a thorough analysis of the potential for finding a safety related defect in the vehicle and in view of the need to allocate and prioritize NHTSA's limited resources to best accomplish the agency's safety mission and mitigate risk, the petition is respectfully denied.

The Safety Record shares this view. NHTSA’s Office of Defects Investigation (ODI) is unlikely to find a defect. For one, they lack the resources to find an intermittent electronic defect that produced unintended acceleration (UA). Two, ODI does not want to find an electronic defect. After 12 years of investigations – including six petitions filed by consumers (Six! Has any one defect ever prompted that many petitions for investigations? Toyota – another record. Yay, you!), NHTSA has never been able to determine why so many Toyota drivers continue to complain about unintended acceleration. The endless dead-ends and denials have amounted to a deep hole that the agency will never climb out of.

Bob and Kathy Ruginis sought NHTSA’s help after Kathy experienced a UA while parking her 2010 Corolla last June. The vehicle surged forward while her foot was on the brake and crashed into an unoccupied parked Jeep in front of it. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually 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.

Bob Ruginis was not surprised that NHTSA failed to find an electronic source for the malfunction and advance his petition. For one, after the electronics engineer turned the errant Corolla over to NHTSA for testing and asked for the agency’s test protocol, he never received anything from the agency.

“I knew it most likely wouldn’t help me,” he said. “But I hoped it would help some other people.”

 Neither NHTSA, nor Toyota has ever believed a driver’s report about what occurred in a crash. In general, narratives are given no weight if ODI investigators don’t have a pretty good handle on the technical issue already. In addition to Kathy Ruginis’s report, and the affirmation of her passenger in the front seat, she had another witness – the Event Data Recorder (EDR), which showed at the time of the crash that the brake was on, the accelerator was off, but somehow the speed increased and the engine rpms doubled. A Toyota EDR read-out that actually reflects the driver’s and passenger’s account of the crash pretty well is not so common.  

But, for ODI, the EDR is a Rorschach – it means whatever the engineers want it to mean and it always means driver error. However, the agency really had to work to make this reading count against the driver, and for this they turned to the asynchronous nature of the various data points. ODI argued that just because the readout shows the brake on and the accelerator off and the speed increasing at the same time, does not mean that all of those events occurred at the same time. Nonetheless the logic employed to make this a case of pedal misapplication plus late braking is contradictory and tortured.  

 

NHTSA argued that her brake was on at the final data-point read out “proves” that she braked after the crash. However, according to NHTSA, the three data-points showing the accelerator off during the last three of five seconds of the EDR readout shows that Kathy Ruginis rapidly punched the accelerator in the milliseconds between recorded data points. The denial states:

ODI does not believe that the brake switch data recorded by the EDR is consistent with the petitioner's statement that the vehicle accelerated with the brake applied and vehicle testing demonstrated that acceleration would not occur if the brake pedal had been applied with any meaningful force. In addition, although the EDR does not show any increase in accelerator pedal voltage in the final 2.8 seconds prior to impact, this does not mean that the accelerator pedal was not depressed during that time period.

Got that? The brake data is gospel, but the accelerator data is suspect. In short, they called Kathy Ruginis a liar. Chris Caruso, an EDR expert who examined Toyota EDRs as a consultant for the multidistrict litigation economic loss case against Toyota  agreed that NHTSA could not logically or credibly use the data’s asynchronicity to conclude that the driver only engaged the brake after the crash, but that she definitely depressed the accelerator sometime before it.

“We could make the same plausible argument that she was pumping the brakes for the entire five seconds, in between the one-second intervals.” Caruso said.

What is harder to explain, says Caruso, is the absence of a corresponding rise in engine RPMs as the speed of the vehicle doubled in the last two seconds. NHTSA did not address the RPM readings, which showed the RPMs remaining constant at 800 until the last data-point, in which they doubled 1,600. Caruso said that it is impossible for the vehicle speed to increase by 50 percent in 2 seconds leading to the trigger point, while the engine rpms remain at idle. And even if the driver punched the accelerator in-between the 1-second intervals of data collection sometime in the last two seconds, the engine rpms would rise and stay elevated afterwards, because they take time to decrease.

NHTSA’s EDR analysis is “deceiving,” he added.

“She would have to floor it to get that 50 percent increase in throttle. Why don’t the rpms go up?” Caruso said. “If you look at the last two seconds, even if she blipped the accelerator to increase the speed from 3.7 to 5 in one second, the engine rpms cannot recover to idle in that same amount of time. To me, it’s a smoking gun that doesn’t jibe with anything else.”

ODI also pooh-poohed the suggestion that Michael Barr’s analysis of Toyota’s faulty software could provide them some clues of how software could faults could cause UA events not recorded by the engine control module. Barr’s theories were unproven, and applied to a different vehicle with a different electronic system, NHTSA said. Never mind that Barr, a well-known embedded software expert, did something ODI did not – examine Toyota software for the Camry line by line for the plaintiffs in Bookout v. Toyota, a UA case involving a 2007 crash that seriously injured the driver and killed her passenger. Never mind that his detailed explanation of Toyota’s horrible software persuaded an Oklahoma jury in October 2013 to rule against Toyota, awarding the plaintiffs $3 million, before assessing punitive damages and persuaded Toyota hence forth to settle somewhere north of 250 death and injury UA cases since. Just, never mind.

Barr says that shortly after the Ruginis petition became public, he “attempted to contact NHSTA’s Office of Defects Investigation, to ensure they were aware of my relevant work and conclusions.  However, no one from ODI ever reached out to me.”

He also defended the relevance of his work to the task of determining why so many Toyotas run away from their drivers:

"Barr Group's analysis of Toyota’s ETCS-i software was more extensive, both in breadth and in depth, than the software analysis by NASA.  We had access to more software source code than NASA did, and also information about many more vehicle models and model years.  My team of software experts spent over a year pushing the review of Toyota’s engines considerably deeper, he said. “Ultimately, we identified a set of defects in Toyota’s ETCS-i software that NASA specifically worried about in its report but didn’t have sufficient time to find.  We used fault injection testing in a pair of production Toyota vehicles to trigger the defects we found and these tests confirmed that software malfunctions can explain at least some of the reported incidents of sudden acceleration.”

"The evidence supporting my conclusions was documented in full detail in my expert report, which contains more than 500 pages of facts and analysis.  It is my understanding that no one from NHTSA or NASA has ever read this report,” he said. “As I testified in the Bookout trial in Oklahoma in October 2013, the defects in Toyota’s ETCS-i software can be deadly.  As far as I know, these defects have never been remedied by any recall."

ODI did throw the Ruginises a bone. It agreed that: “uncontrolled vehicle accelerations in parking lot environments represent a clear safety hazard to surrounding traffic, pedestrians and even building occupants, as vehicles often accelerate inside of businesses with facing parking spaces where they have caused serious and sometimes fatal injuries.”

But, the good folk at ODI concluded that any possible technical cause would remain a mystery. 

Let’s face it: Jesus, Mary or Joseph McClelland could come to the agency and show ODI investigators unintended acceleration as it happened in real time, and ODI would find a way to dismiss it. In May 2012, two ODI engineers witnessed a 2004 Prius, owned by Joseph McClelland, an electrical engineer and high-ranking government official with the Federal Energy Regulatory Commission, 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, untouched, 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 was an end-of-life issue for 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.”

For all intents and purposes, the Ruginis’s Corolla has been parked ever since the crash. Kathleen Ruginis refused to drive the vehicle ever again. Bob Ruginis took it out a few times to be inspected in preparation for selling the Corolla.

“I’ve taken it to a couple of car dealers, and told them about the incident and that this car was investigation and none of them cared. They would all take it from me, and they all gave me pretty much what the car is worth.”

To the Ruginis family, that 2010 Corolla was worthless as a mode of transportation. To NHTSA, the vehicle could have been the start point for an honest examination of electronic malfunction. But NHTSA’s always much more focused on the task of proving everyone and anyone other than themselves wrong. In that way, they are much like Toyota electronics – infallible.

But one day, NHTSA will understand today’s automotive electronics – probably around the time that cars move from self-driving to flying.

NHTSA to Tire Consumers: Google It

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On Tuesday, the National Highway Traffic Safety Administration amended the Tire Identification Number, the alpha-numeric code used to identify specific tires in a recall. This time, the agency expanded the first portion of the TIN, known as the manufacturer identifier, from two symbols to three for manufacturers of new tires, because the agency is quickly running out of unique two-digit combinations. It also standardized the length of the tire identification number to 13 symbols for new tires and seven symbols for re-treaded tires to eliminate confusion that could arise from the variable length of tire identification numbers, to make it easier to identify a TIN from which a symbol is missing.

These changes will compel tire mold changes – dreaded and to be resisted at all costs by the tire industry. And, NHTSA accommodated tiremakers’ antipathy for changing the molds by setting the lead-time to 10 years into the future. The new rule will take root when today’s molds wear out and need to be changed anyway. With the pervasive mold problem addressed, the agency might have taken this occasion to make some significant changes to the TIN – such as requiring a non-dated code of manufacture, and placing the complete TIN on both sides of the tire – so that consumers could use the TIN to identify a tire that had been recalled.

After all, as the agency pronounced in the Federal Register, the TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances.”

Safety Research & Strategies and the National Transportation Safety Board, which has taken on tire safety as a priority recently, both made these helpful suggestions during the public comment period of the rulemaking. The NTSB pointed out that NHTSA had recognized the importance of determining the full TIN in “identifying a tire for safety recall management; enabling regulators, manufacturers, and safety advocates to process owner complaints; and tracking tire production.” It argued that standardizing the TIN to better distinguish between full and partial TINs rests on the erroneous “assumption that anyone looking for the TIN is aware that passenger tires can have both a full and a partial TIN molded on the sidewalls. It also noted that the date of manufacture code plays a significant role in identifying recalled tires. “Unless an entire tire line is the subject of a recall or investigation, the date of manufacture will often define the scope of an action. Because many tires can be mounted with either sidewall facing outward, placing the TIN on both sidewalls would ensure better access and identification, and NHTSA should consider expanding the scope of this NPRM to include this requirement.” The NTSB suggested that the economic impact could be mitigated by allowing the date code to be laser-etched into the TIN, negating the need to set the date code in the tire mold.

But, the agency said: People! We weren’t trying to fix the broken tire recall system, we just wanted some more plant codes, fer Chrissakes.

Longer version: “Given that we did not propose any changes to the date code portion of the TIN, nor did we discuss or request comment on any potential changes to the date code, such a change may be beyond the scope of this rulemaking. Even if it were in scope, however, we do not believe a change to the date code is necessary for consumers to determine when their tires were manufactured. NHTSA’s tire consumer Web site, http://www.safercar.gov/tires/index.html, explains in several places how to find and interpret the date code. Furthermore, a person should easily be able to determine the location of the date of manufacture on a tire is located either by querying an internet search engine or by asking a tire dealer.”

Shorter version: Google it.

You can tell that NHTSA truly believes that TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances,” by calculating how super effective it has been in the recall process. The last time we looked at return rates over a 10-year period of 1996 to 2006, the average historical rate for tires was about 30 percent – with wide ranges among campaigns. In contrast, vehicle recall completion rates hover in the low 70s.

And, we are compelled to note, the massive and high-profile Firestone Wilderness AT and ATX recalls of early 2000s boosted the tire recall repair average to as high as it was over that particular span. In 2000, the OEM tire failures shouldered the entire blame for the Ford Explorer rollover deaths and injuries. About 20 million P235/75R15 ATX and 15, 16 and 17-inch Wilderness AT tires were recalled. Using a fudge-y guesstimate method, Firestone claimed that it had collected 95 percent of the defective tires. But guess what? Recalled Firestone AT and ATX are still on the road, still being sold and rotated into service, and they are still killing people.

In fact, 45 years ago, when NHTSA’s predecessor, the National Highway Safety Bureau, established the tire recall system, the TIN was the linchpin: In 1970, the bureau noted : “An essential element of an effective tire defect notification system is a suitable method of identifying the tire involved.” But its suitability has always been shaped by the rubber industry, and the needs of consumers with a recalled tire they can’t readily identify has yet to rise to the level of an after-thought.

The rule’s history shows that every time the agency had an opportunity to improve the tire recall system so that consumers or tire professionals could reasonably use it, NHTSA chose to do nothing. Every. Single. Bleeping. Time.  But don’t take our word on it. The Safety Record once spent weeks assembling the rulemaking history of the tire identification number so you don’t have to.

Great Moments in TIN History

1970

The National Highway Safety Bureau begins set-up of tire recall system. Proposes requiring manufacturers to keep tire consumer records and develop a standard identification number for tires that would be molded on both sides of the sidewalls. Industry begins amassing best batting streak since Ty Cobb. Recognizes that the date of manufacture is possibly the most important part of the code, but doesn’t want the consumer to be able to read it. Firestone sez: “tires are not perishable items. Therefore, a conspicuous disclosure of tire age would unavoidably introduce into the marketplace a totally artificial measure of quality unrelated to product performance and effectiveness.”  Agency drops the TIN on both sidewalls part of the proposal, because, it reasoned, under the consumer records part of the proposal, first purchasers of tires would receive notification of defects

1971

U.S. Senator Warren Magnuson, chairman of the Commerce Committee petitions NHTSA on behalf of the independent tire dealers and distributors— to create an independent tire registry to collect the names and addresses of first purchasers and report them to manufacturers along with an agreement that indemnify the manufacturers if the registry failed to uphold the record-keeping regulations. Tiremakers go postal: We don’t want to pay for it and it will ruin the current system, which works just great.

1973

NHTSA tries to establish a universal registration form for tire manufacturers, brand name owners and tire retreaders to provide to their distributors and dealers. Manufacturers crank Government Terror Alert Level to fire-engine Red:  Time and money spent developing their own systems! Wasted forms! Computer chaos!

1974

NHTSA cops out by making the universal registration format optional. It drops the requirement to give a copy to the first purchaser, because manufacturers said that it served no purpose in facilitating recalls.

1980

In response to a petition by the Center for Auto Safety, the agency proposes requiring that the TIN to be molded on the white wall side of the passenger tire, so that consumers could read the damned thing. Industry goes nuts. Uniroyal, for example, says that bringing consumers into the recall process would actually be detrimental to them, because consumers can’t read serial numbers.

1983

NHTSA terminates rulemaking claiming it would not provide any safety benefits.

Congress prohibits NHTSA from requiring independent tire dealers and distributors from supplying manufacturers with names and addresses to first purchasers. Instead, consumers get registrations cards to send in. Tire dealers acquiesce to writing TIN on the form.

1986

Agency determines that tire registration rates suck and proposes a bunch of changes to beef them up:  requiring prepaid postage on the registration forms; requiring dealers to give Uniform Tire Quality Grading Standards information to consumers highlighting the registration process; and establishing a tire registration clearinghouse. Industry refuses to click “Like” button.

1999

NHTSA drops all proposals to require tire dealers to give consumers tire info about the Uniform Tire Quality Grading Standards at point of sale. Move all such information to the well-thumbed pages of the vehicle owner’s manual. Other proposals vanish.

2000

TREAD Act requires NHTSA to improve tire recall process the tire labeling to help consumers identify tires in the event of a recall. Once again, the agency raised the question of placing the TIN on both sides of the sidewall to make it easy for consumers to locate and read.

2001

NHTSA proposes new rule to require complete TIN be molded on both side of the tire, among other format changes. Tiremakers say “Hell no.”

2002

Agency chickens out. Decides not to force manufacturers to mold the full TIN on both sides of the tire. However, does require the TIN to appear on the “intended outboard sidewall” and either a full or partial TIN –i.e. one without a date code—appear on the inside sidewall – perpetuating confusion that the current rulemaking – 13-years later – is supposed to address..

2004

Major mold protest saves the day.  Agency eliminates the phase-in dates to put the TIN on the intended outward sidewall. Instead, manufacturers would have until September 1, 2009 – a concession to you-know-who who complained that it would cost too much to re-work all of the molds. By pushing the date ahead five years, it would give manufacturers time for current molds to wear-out, before their replacement.

2008

Only 38 years after making the TIN a key element of the tire recall identification system, agency notices that it doesn’t actually require tiremakers to list recalled tires by TIN in the mandated Part 573 Defect and Noncompliance Notice. Proposes to close that loophole. Good catch!

2009

Loophole closed.

2012

MAP-21, the Moving Ahead for Progress in the 21st Century Act, becomes law. It requires rulemaking within a year to make vehicle recall information available to the public on the Internet in a searchable database. NHTSA complies. Safety Research & Strategies submits comments requesting that the agency also consider adding a TIN search function to its public Web portal and require tire makers, as well as automakers to maintain the recall remedy status by TIN.

2013

NHTSA’s response to adding TINs to new recall database requirements: No. Congress didn’t make us do that.

In Conclusion

Here’s something you can Google. Anytime the agency says  the TIN “plays an important role in identifying which tires are subject to recall and remedy campaigns for safety defects and noncompliances,” type  “NHTSA to Tire Consumers: Google It” in the search box, and re-read the section of this blog entitled Great Moments in TIN History. This will remind you that NHTSA’s belief in the importance of the TIN has never been matched by its actions.

NHTSA Opens EQ Investigation into Hercules Tire Recall at Lawyer’s Request

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The National Highway Traffic Safety Administration has opened an Equipment Query investigation into a defective Chinese tire sold in the U.S. under different brand names that was recalled by one importer, but not another – even though they share the same distributor.

In March, the agency sent an information request to Hercules Tire and Rubber Company, a subsidiary of American Tire Distributors Inc., to determine if it should have recalled its Hercules Radial A/T in eight different sizes manufactured by the Shandong Yongsheng Rubber Co., Ltd.

Tires that were essentially the same, but sold as Capitol Precision Trac II, were recalled by importer ITG Voma in October. The recall population of 94,890 tires included seven sizes for passenger cars and light trucks.  Both tires were manufactured by Shandong Yongsheng and shared a common green designation, defined by NHTSA as: “tires that are produced to the same internal specifications but that have, or may have different external characteristics and may be sold under different tire line names.” Both were distributed by American Tire Distributors.

The probe was opened at the behest of attorney Michael Cowen of the Cowen Law Group of Brownsville, Texas. (see Texas Attorney Asks NHTSA for Tire Investigation) Cowen represented Krystal Cantu, whose right arm was crushed in a rollover caused when the left-rear tire, Capitol Precision Trac II, suffered a tread separation. The August 2013 crash was a factor in ITG Voma’s decision to recall some Capitol Precision Trac II tires that lacked a nylon cap ply, which made the tires less robust and prone to tread separations. During Cantu’s lawsuit against ATD, Voma and Shandong Yongsheng, a manufacturer’s representative testified that the Capitol Precision Trac II shared a common green tire designation with the Hercules Radial A/T.

NHTSA’s March information request to Hercules, as the importer, manufacturer, or entity that “otherwise introduced for sale in the United States,” sought information on the similarities between the tires ITG Voma recalled and the Hercules Radial A/T, and “why Hercules has not yet made a defect decision and/or decided to conduct a recall of those tires.”  

In February 2013, Hercules recalled seven 10-ply Load Range E tires manufactured by the Shandong Yongsheng Rubber Co., but these tires were not the same size or load range as the Capitol Precision Trac. Hercules said in its defect report to NHTSA that the tires could experience in-service belt and tread separations.

In its latest probe, the agency also asked Hercules to explain why it did not include these tires in that earlier recall.

The EQ’s Opening Resume was a bit unusual, in that it acknowledged that the allegation came from Cowen:

On December 17, 2014, Attorney Michael Cowen of Cowen Law Group wrote to NHTSA alleging that certain Hercules All Trac A/T tires are substantially similar in design, construction, and performance as tires that importer (and manufacturer) ITG VOMA recalled due to a safety defect. NHTSA was requested to investigate.

This is a departure from past practice, in which the agency was loathe to acknowledge outsiders – unless it was to dismiss them in a Federal Register Notice. But, in these current and oh-so-challenging times of serving as a Congressional piñata and media whipping boy, NHTSA’s been forced to change a lot of its past practices. The agency is not letting manufacturers get away with so much blatant flouting of the regs. (Suddenly, filing the legally mandated detailed chronology of the discovery of a defect is very fashionable among automakers notifying NHTSA of a new recall.) NHTSA’s letters to errant manufacturers are getting down-right fiery; fines are bigger, and meted out more swiftly. And the agency has been signaling that the party is so over, directly to lawyers for the defense, and more recently for the plaintiffs.

And maybe, soliciting and acknowledging the cooperation from the attorneys who wrest important information about defects from manufacturers could help NHTSA fulfill its enforcement obligations. Here’s hoping.

The Wrong Fix for the Broken Recall System

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Last month, Senators Ed Markey and Richard Blumenthal proposed new legislation that would link car registrations to completing recall repairs. The Repairing Every Car to Avoid Lost Lives (RECALL) Act threatens state DMVs with the loss of five percent of its federal highway funds if they don’t add to their duties checking open recalls for every new and renewed auto registration, and adds to the responsibilities of consumers getting recall repairs done to be properly registered.

The bill requires states to exempt a motorist if the recall notice comes after registration is completed; or, if the manufacturer “has not provided the motor vehicle owner with a reasonable opportunity to complete any applicable safety recall remedy due to a shortage of a necessary part or qualified labor.” The state must also exempt a motorist who demonstrates to the state’s satisfaction that they had no “reasonable opportunity” to complete the recalls, in which case, the state can grant a 60-day temporary registration to give a consumer time to complete the repairs.

U.S. Sens. Markey and Blumenthal have been the Senate’s auto safety-tag team, and we applaud many of their efforts to raise the bar – via proposed legislation or asking pointed questions of federal agencies and manufacturers. For instance, the two have introduced a bill to improve the collection of Early Warning Reporting data. Last week, they also introduced the Used Car Safety Recall Repair Act, which closes a loophole in the current regulations by requiring “used car dealers to repair any outstanding safety recalls in used automobiles prior to selling or leasing.”  But the RECALL bill has serious flaws, and you don’t have to scratch too far below the surface to find them.

“My biggest worries are that it would penalize consumers and shift the burden onto them for the illegal activity of the manufacturers and dealers – and possibly undermine the entire auto safety recall system,” says Rosemary Shahan, president of Consumers for Auto Reliability and Safety. “The timing on this could not be worse, when there are tens of millions of recalled cars on the roads, huge long-term shortages of repair parts, and dealers have not hired nearly enough auto technicians to perform the repairs.”

The American Association of Motor Vehicle Administrators and the Governor’s Highway Safety Association have also come out in opposition to the bill. The AAMVA observed that the act “makes motor vehicle agencies responsible for rectifying the shortcomings of private industry by conditioning customers’ vehicle registration renewal on fixing defective or noncompliant automobiles. This bill shifts the burden and the costs of correcting vehicle defects from the direct responsible party, the manufacturer, to the taxpayers of the individual states, and threatens to withhold federal highway funds from states that do not implement the requirements. States would have to spend significant sums to comply, outlays that will strain already-limited transportation funding and divert highway safety funds from other priority safety programs. Furthermore, the bill assumes the existence of a national, real-time safety recall data base that states could interact with for the most current recall information. No such system exists today.”

Indeed. Complaints to NHTSA gathered on one week in March regarding one manufacturer – Toyota – gives a good snapshot of the typical problems and the high level of frustration among consumers who would like to get their vehicles remedied:

Here’s a cranky 2009 Sienna owner from Kensington, Maryland on March 13:  

Sometime around August 2014, I received a safety recall notice from Toyota.  It mentioned a new safety recall … which supersedes the prior notice ….  This involves the spare tire carrier cable which may corrode due to road salt in cold climate areas, which I understand includes Maryland where I live.  I have called Toyota dealers near me and they keep saying that Toyota has not provided them with the part to repair this.  I tried again today, March 13, 2015, but the answer is the same.  Therefore, I am registering my complaint today and would like to know how soon this safety defect might be taken care of.   (ODI 10694172)      

Or this 2004 Toyota Corolla driver from Dayton, Ohio, who complained to NHTSA on March 17 about the difficulty in completing the July airbag inflators recall:

After contacting the dealer and the manufacturer on multiple occasions, the contact was informed that the parts needed to repair the vehicle were still not available and no estimated time for receiving the parts could be provided. (ODI 10694881)
 

Now imagine you have to get your vehicle registered next week.

The U.S. is not Germany

The bill’s dictates have been compared to the German system, where the Kraftfahrt-Bundesamt, the Federal Motor Transport Authority, operates the Central Vehicle Register.  Like a state department of motor vehicles, the CVR – according to its website – “stores vehicle and owner data on vehicles with number plates. The local vehicle registration authorities and the insurers record and submit data to the Central Vehicle Register in the case of new registrations, changes of ownership, de-registrations, and (technical) modifications” of the nation’s 51.7 million motor vehicles and 6.2 million trailers. It can, and does revoke the registrations of vehicle owners who do not complete recall repairs.

Unlike Germany, the U.S. has more than 50 departments of motor vehicles registering about 254 million vehicles. And unlike Germany, our DMVs are completely separate from safety enforcement of manufacturers. The Central Vehicle Register is under the Kraftfahrt-Bundesamt – National Highway Traffic Safety Administration’s German counterpart, which counts among its recall duties:

  • provides the manufacturer with the data of the relevant vehicle holders stored in the Central Vehicle Register.
  • undertakes to inform the vehicle holders; this service has to be paid for by the manufacturer.

In Germany, vehicle registration and recall enforcement operate out of one shop with a completion target of 100 percent.  The KBA also monitors recalls if the defect presents a serious safety risk:  “The purpose of this monitoring activity is to ensure the notification of all the relevant vehicle holders and a complete elimination of the defects.”

U.S. regulations hold the manufacturer responsible for gathering the identification data, informing its customers and offering the repair – and there is no particular target for success. The notification regulations are antiquated and there are no benchmarks for acceptable repair rates and no incentive for manufacturers or the agency to improve.

 Moral Hazard

Using state DMVs to inform consumers of open recalls has value. At the end of the day, it will probably raise the recall repair rate – but the bill goes beyond mandating that consumers are informed. The result will come at great expense to consumers without placing any of the responsibility or burden where it belongs: on those who created the problem in the first place. As the AAMVA noted, it simply transfers manufacturers’ recall notification failures onto already beleaguered state Department of Motor Vehicles and consumers.

The auto industry has been tripping over itself to develop advanced safety systems, vehicle-to-vehicle communications and driverless cars. When it comes to stuffing as much shiny technology as possible under one hood, it’s all Jetsons. When it comes to telling a consumer that the product you sold them for thousands of dollars has a major safety problem, then it’s the turn of the twentieth century. Stamps, snail mail – if absolutely pushed, a phone call. Manufacturers still use outdated R.L. Polk registration data snapshots to identify consumers in a recall. A whole big data cottage industry devoted to securing current vehicle owner information has sprung in response – mostly for the use of people who want to sell you things. But it certainly could be used by entities that want to fix their mistakes.

The recall regulations only require that manufacturers conducting campaigns to contact “registered owners determined from state motor vehicle registration records, augmented with corporate records by first class mail. The regulations outline the characteristics of the envelope, noting that this is a SAFETY RECALL NOTICE. The letter itself 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.

It does not require the manufacturer to tell you that the defect has already caused deaths and injuries – if that is the case. (The U.S. Consumer Product Safety Commission routinely includes such information in recall announcements.) Further, there are no requirements involving specific efforts manufacturers must make to notify hard-to-locate owners.

Safety Research & Strategies has its own vision for a more robust recall system that requires NHTSA to institute benchmarks for acceptable recall completion rates, require Recall or Audit Queries for recalls that fall below that benchmark, and empowered the agency to level civil penalties specifically for failure to achieve the minimum benchmark. (See Improving the Recall System for the 21st Century)

Practical Matters

If drivers must take their vehicles in for annual inspections and emissions tests before renewing their registration, why not add open recalls?  We have identified a passel of practical problems.

For the state:

  • If the consumer is off the hook if he or she receives the recall notice after the registration notice, how will the DMV know? Recalls are always announced long before consumers get notices – sometimes its weeks or even six to eight months before a consumer gets the actual letter. How will the DMV know what the manufacturer mailed out and when a consumer received it?
  • Who is in charge of defining the motorists “reasonable efforts” to get the recall done? Is it incumbent now for state DMVs to write these definitions? Who will write the rules for what constitutes “demonstration” of these “reasonable efforts?” Will it vary from state to state?
  • If the flow of registrations, and even more importantly for state coffers, the flow of registration fee collection is interrupted by a motorist’s inability to complete a recall, what does that do the department of transportation budgets?
  • What happens if the repair parts take more than two months to become available? Does the DMV write rules and institute procedures for issuing multiple temporary registrations?
  • Where is the federal money to support this mandate that will force already under-funded and over-worked DMVs to add new responsibilities, new tasks, and integrate a new computer system?

No carrot in this bill, just sticks.

For the motorist:

  • How does the motorist “demonstrate” that he or she did not get a notice? This is a very common problem. How do you prove a negative?
  • How will the motorist “demonstrate” that the parts are not available? Will the manufacturers or dealers have to put their availability problems in writing to give the consumer something to take to the DMV? Will manufacturers and dealers inform the DMV directly? Will the motorist have to take time to get this proof from the dealer and stand in a bunch of lines to convey it to the DMV?
  • Repair parts are not simultaneously shipped to every dealer in a state. Will the motorist be forced to call multiple dealers in search of recall repair parts to complete his vehicle registration?
  • What happens if the repair parts aren’t available for six months – as is the case with Takata airbag inflators – or you can’t get a timely appointment? Will the motorist have to go back to the DMV for more temporary registrations?

 

Collateral Consequences:

Driving an unregistered vehicle in some cases, in some states, is actually a crime. The penalty in the most benign scenario is a fine.

  • What if you can’t get your vehicle repaired, can’t convince the DMV that it’s not your fault and can’t get your vehicle registered? What if you have to use your car to get to work and you get pulled over?
  • Is a recall now an occasion to impose a criminal record or fines?
  • Will this disproportionately affect motorists who are also poor and members of minority groups?
  • Will it raise your insurance rates?
  • Will it increase your liability in a crash caused by the defect?
  •  Will it hamper you in civil action against a manufacturer?

 

Limitations

This bill is also beset by some limitations:

In some states, you renew your registration every two years—or have an option to renew every four years. If the recall notice comes after registration, this method would not pick up an open recall until multiple years later. How does this improve the system?

DMV’s are supposed to use NHTSA’s VIN look-up tool to identify if a particular vehicle has an open recall. What if the recall is for an after-market component or a tire? That VIN look-up does not contain information for those recalls. Is it okay to get your vehicle registered with recalled tires?

We can all agree that drivers are responsible for taking care of the wear and tear on their vehicles that results from normal and foreseeable use. Manufacturers are responsible for selling you a defect-free vehicle. Manufacturers are responsible for launching a recall within five days of discovering a vehicle defect. Manufacturers are responsible for notifying consumers about those defects and making those repairs available.

Let’s not confuse these issues.

 

FHWA Grades Guardrail on a Curve

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Last Friday the 13th was a very unlucky day for taxpayers – that was the day the Federal Highway Administration announced that we, the people, would continue to reimburse states that choose to install an energy-absorbing guardrail end terminal that has been maiming and killing us. That announcement was bundled in a package of technical papers designed to explain away the last of eight tests on the safety of the ET-Plus energy-absorbing guardrail.

On January 27, an assemblage of distinguished persons from Trinity Industries, the manufacturer of the ET-Plus, the FHWA, and the fourth estate gathered at the Southwest Research Institute test track in old San Antone to bear witness to exactly how the end-terminal has been failing in the field. The Geo Metro, with a dummy in the driver’s seat, thundered toward a guardrail end-terminal and struck it at a frontal offset. The rail began to ribbon out through the chute, until it got jammed and folded in half. The Metro rotated and was speared by the folded rail.  (Watch the video)

But what are you going to believe – a bunch of technical papers with tables, photos, charts, percentages and words like “occupant impact velocity values” or your own lyin’ eyes?

 Obviously, Trinity’s BFF prefers that you bury your head in its reports. So we did. And there, The Safety Record Blog found something even more amazing than the stark video record of a weaponized guardrail. The Safety Institute has written a long letter to FHWA Acting Administrator Gregory Nadeau outlining the technical trickery employed to pass an obvious FAIL.  

For those of you with no time to spare for a detailed takedown, here’s the Reader’s Digest version:

The mission of the FHWA was to somehow conclude that an ET-Plus energy-absorbing end terminal folding in half and spearing the vehicle really did pass the NCHRP Report 350 occupant risk criteria and that driving the door inward like the point of fang, which directly struck the dummy’s femur wouldn’t have seriously hurt anyone.

Seriously.

The NCHRP Report 350 Occupant Risk criterion states: “Detached elements, fragments, or other debris from the test article should not penetrate or show potential for penetrating the occupant compartment or present an undue hazard to other traffic, pedestrians, or personnel in a work zone. Deformations of, or intrusions into, the occupant compartment that could cause serious injuries should not be permitted.”

First order of business was finessing the English language. In English, “penetration” means: “the action or process of making a way through or into something.” In the FHWA lexicon, however, “penetration” only occurs if the process makes its way through something. In other words, a prostate examination doesn’t involve any penetration if the doctor wears latex gloves.  The photos, however, showed that the driver’s side door was pockmarked with holes on the exterior and interior, which the report called tears. In other words, the iceberg didn’t penetrate the Titantic – it just caused a little tearing.

The idea of potential penetration was not addressed.

The second order of business was to attack the serious injury issue. For this, the FHWA had to finesse the science. Since they didn’t instrument the dummy to truly measure the injury potential, they had to work it backwards, post-crash. With the aid of Dr. H. Clay Gabler, a respected scientist from Virginia Polytechnic Institute and State University, the FHWA used existing crash data sets and static intrusion measurements to show that a driver exposed to the crash conditions this test would have been unlikely to have been at risk of serious injury from the folded rail impact to the driver door.

Occupant compartment intrusion is at its greatest at the moment a vehicle strikes a narrow object. This is called dynamic intrusion. After the crash, the vehicle structure partially bounces back, so the amount of intrusion post-crash, called static intrusion, is significantly less. The video shows the door being driven inward so far that it pushed the steering wheel into the right side of the dash. This is a much bigger intrusion than the 6.75 inches the testers, the Southwest Research Institute, measured afterwards. By the way, according to the photos, the static intrusion appears to have been measured with the door open – another way to minimize the intrusion measurement. 

With its 6.75 inches in hand, the FHWA turned to the National Automotive Sampling System- Crashworthiness Data System (NASS-CDS) databases in an attempt to quantify the risk of a serious injury. Instead of sorting the data to consider injuries in similar type crashes – narrow object crashes – they diluted the population by looking broadly at a subsample of crashes with the same amount of intrusion, such as rollovers or vehicle-to-vehicle crashes. But narrow object crashes have a much higher potential for serious injury, because the crash force is concentrated at a focal point, instead of being broadly distributed.

One person who understands this very well is Dr. H. Clay Gabler. Dr. Gabler co-authored a wonderful 2013 technical paper, in which he used NASS-CDS data to specifically examine guardrail end-terminal side impact crashes. Yes, one can, if one cares to, sift NASS-CDS data for specific crash-types – including guardrail strikes. (That paper looked at crashes in which the side was the first impact, rather than the second impact, like that in the recent ET-Plus test failure.) When you look for what you are looking for, you may find something very different. For example, in Injury Risk Posed by Side Impact of Nontracking Vehicles into Guardrails, Dr. Gabler found:

Intrusion appears to be a major risk factor in guardrail-side crashes, particularly terminal crashes. Crashes directly involving the occupant compartment (SHL of passenger compartment) were far and away the most dangerous, accounting for only 3% of all nontracking guardrail-side crashes yet almost 40% of total injuries.

 And:

For terminal-side crashes, driver-side impacts had significantly greater risk of injury compared with passenger-side impacts. Side crashes involving an end terminal were substantially over represented in driver injuries. End terminal contact occurred in about 25% of all guardrail-side crashes but represented almost 70% of driver injuries.

As for where the occupant might have sustained injury, the FHWA took the opposite tack. Instead of looking broadly for potential injury to the head, torso, arm or upper leg, the analyzers only looked at possible injury to the lower leg. They went looking below the knee, even though Dr. Gabler noted that the dummy took a direct hit to the upper leg. In fact, in burst of candor, Dr. Gabler conceded in his analysis:

My conclusion is that the risk of serious injury cannot be discounted simply because the impact is to the legs.  An AIS 3 femur fracture could occur as a result of an impact to the upper legs and would be considered a serious injury.

That’s the formula – look for the wrong things in the wrong places, the wrong way – and Voila! You didn’t see what you saw. PASS!!!

The federal agency had long treated l’affaire Trinity as a nuisance. In 2012, when competitor Josh Harman made allegations of an undisclosed design change to the ET-Plus that caused it to fail in the field injuring and killing motorists, the FHWA took pains to soothe nervous state highway engineers. When Trinity finally admitted to the agency that it had in fact altered the design in 2005, but just forgot to mention it, the agency said: “That’s okay. Just give us your seven-year-old tests and we’ll call it even.” When the American Association of State Highway and Transportation Officials asked the FHWA to study ET-Plus field failures, the agency sternly reminded the group that it hadn’t made this a priority, so that would just have to wait.  When journalists asked questions, the FHWA passed off the kerfuffle as a dispute between business competitors.

The agency has had to exert itself a bit more forcefully in the wake of an October federal jury verdict which found that Trinity defrauded the government when it decided not to tell the FHWA about that design change, as required by federal regulations. But neither a finding of fraud, nor the revelations that Trinity failed to disclose the design change deliberately, as memorialized in emails in which company principals talk about it, nor a crash test in which the energy-absorbing end terminal did exactly what it is doing in the field, can deter the agency from ensuring no harm comes to itself or Trinity Industries.

Another branch of the U.S. Department of Transportation tried this. It didn’t end well.

The National Highway Traffic Safety Administration aggressively shilled for Toyota, hired experts and contorted science to show that Toyota Unintended Acceleration could only be caused by a confused old lady, a jammed floor mat or a sticky accelerator pedal. Toyota’s still profitable, but it became notorious as the first automaker to plead guilty to a criminal fraud charge and the plaintiff’s lawyers – not NHTSA — finally ripped the cover off the technical problem. Toyota is now settling death and injury cases. NHTSA’s reputation has been shattered and agency principals have taken regular beatings on the Hill and elsewhere, forcing them to finally make automakers do things. 

We are watching the FHWA hurtling to the same destination.  

 

FHWA Breaks Out Rulers, Still No Idea Why Guardrails Fail

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One of the most important lessons for federal agencies caught asleep at the wheel in a safety crisis is: do everything you can to validate your earlier, poor decisions that led to the crisis. Spare no expense at proving yourself right, while appearing to take a stern stance against industry. By no means should you ever focus on the field failures.

Thus we get yesterday’s Federal Highway Administration report on the controversial ET-Plus energy-absorbing guardrail end terminal, purporting to show that its most recent tests of the highway device are valid, and that there is only one version of the ET-Plus. The report, Task Force on ET-Plus 4” Dimensions, should be viewed as a precursor to the FHWA declaring there is nothing wrong with the ET-Plus, and that it was right all along to ignore the manufacturer’s failure to disclose important dimensional changes to the device, in violation of federal regulations.  

It elides the central question: What is causing the ET-Plus to fail in the field, leading to injury and deaths? When a vehicle strikes a guardrail, the rail is supposed to be extruded through this type of energy absorbing end terminal into a flat metal ribbon that curls away from the vehicle. Some versions of the ET-Plus fold into a spear that penetrates the vehicle and causes severe harm to vehicle occupants.

For those who have not been following the Trinity saga: In 2012, Joshua Harman, the owner of a competitor company, alleged that Trinity Industries, a Dallas-based manufacturer of roadside safety equipment, had altered the critical dimensions of its ET-Plus energy-absorbing end terminal. Trinity officials made the change in 2005, as revealed in internal company memos, to save money on labor and materials, and deliberately did not inform the FHWA, which certifies that highway safety equipment has been properly tested and has not been altered in design or manufacture. Harman sued Trinity on behalf of the federal government under the qui tam provisions of the False Claims Act. In October, a federal jury found Trinity had defrauded the government and awarded trebled damages of $175 million. 

The conclusion of the trial forced the FHWA – which previously responded to the allegations as insignificant fallout from a business dispute – to take action. It ordered Trinity to re-run the high-speed crash tests, and a couple of months ago the Southwest Research Institute (SwRI) conducted eight such tests. All went well until the last run, where the guardrail jammed in the feeder chute and folded in half, almost penetrating the GEO Prism. This is what the FHWA has to make go away. Some had already criticized the tests because they did not include a low-angled impact condition that mimicked the field failures. They have also alleged that Trinity – in recognition of the problem – made further undisclosed changes to the ET-Plus around 2012 to improve its performance. 

Yesterday’s Task Force on ET-Plus 4” Dimensions is a survey of the dimensions of 1,048 guardrails measured in five states. The 15-page report answered four questions:

  • Are there multiple versions of the ET-Plus 4” guardrail end terminals on the roadways? 
  • Were the crash-tested devices representative of the ET-Plus devices installed on the roadways? 
  • Do dimensional variations affect the performance of the ET-Plus device? 
  • Did the crash tests apply worst-case test conditions? 

The FHWA answers are: yes, they are representative; yes, the right size guardrail systems were tested; no, we don’t know if changing the dimensions affects the field performance; and we don’t have to test the worst-case scenario, so there.

Here are the reality-based answers: 

The sample, described as “for all practical purposes, a random sample,” is not a random sample. In statistics, your sample is random or it is not. There is no “for all practical purposes” category of randomness. Also, the survey could not control for date of manufacture – since only one state, South Carolina, kept records. And apparently those records weren’t all that good, because the measurers were out looking for “shiny” guardrails as a date-of-manufacture measure.

Surely, the guardrails tested by SwRI were representative of some installed in the field, but that doesn’t exactly get to the first and only important question: Do the dimensions affect performance?

And for that answer, we’ll quote the task force: “The task force could not determine, based on the data or material it reviewed, whether or not dimensional variances beyond the design tolerances, either individually or in combination, would affect the performance of the ET-Plus device.” 

Really? Then why the frig were you spending so much time on our nation’s highways measuring guardrails with rulers?

Finally, what are manufacturers required to test for? According to an authority no less than the FHWA itself:  

“The developer should also carefully choose which version of the device to be tested. If a number of different sizes are proposed for use, then the “worst case” conditions, if predictable, should be tested. It may be that “worst case” conditions are not obvious and more than one version of a device will need to be tested. The FHWA Office of Engineering is will to review a proposed test program to assist in determining an adequate number of tests to fully qualify a device and its variants.”

The FHWA has been issuing and re-issuing this guidance since 1997. It would be nice if agency officials followed their own advice.

We have dead bodies and severed limbs from close encounters with ET-Plus energy-absorbing end terminals. No amount of measuring how many angels can dance in the exit gap is going get the agency or Trinity around that rather graphic evidence.

U.S. Senator Richard Blumenthal (D-Conn.), who has done his best to keep the heat on the agency, issued a brief statement that nicely sums it up. So we’ll give him the last word:

“As demonstrated again today, FHWA’s guardrail testing has been consistently dumbfounding and deficient. FHWA repeatedly relies on guesswork, unsupported assumptions, and arbitrary choices. The agency neglected key measurements, rejected critical manufacturer information and completely ignored devices used in New England and the Northeast. FHWA’s lack of transparency and persistently-flawed methodology leaves the fundamental question: Are the 200,000 ET-Plus devices on our roads safe? After years of delay from FHWA, months of insufficient and outdated testing, failure to analyze real-world data, and lack of transparency, we need answers from DOT and we need them now.”

Taking on Takata

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Lately, the National Highway Traffic Safety Administration has come in like a wrecking ball, knocking aside manufacturers’ excuses for delaying recalls and other sundry sins with multi-million dollar fines – and now aggressive legal action.

Wednesday, the agency filed – apparently – its first-ever Preservation Order “requiring Takata to preserve all air bag inflators removed through the recall process as evidence for both NHTSA’s investigation and private litigation cases. The order also ensures NHTSA’s access to all data from the testing of those removed inflators,” according to an agency news release.

The move represents an about-face for NHTSA. Last month, it filed statements of opposition to two South Carolina plaintiffs’ emergency motions to preserve evidence in civil liability cases, Angelina Sujata v. Takata and Robert E. Lyon v. Takata. The Sujata case alleges that an exploding Takata airbag inflator sprayed metal shards in the 18-year-old driver. The Lyon case alleges that a Takata inflator caused the airbag to deploy too aggressively. Both plaintiffs are represented by Kevin R. Dean, of Motley Rice, in Mt. Pleasant, South Carolina.

On February 15, 2008, Mary Lyon Wolfe, 57, was at the wheel of her 2002 Honda Accord, when she veered off the right side of the roadway and it a culvert, a mailbox and a tree before coming to rest in the yard of a home on Griffith Drive in Orangeburg. The suit alleges that the vehicle’s frontal airbags delayed deployment and then burst forward with sufficient force to cause serious head, neck and chest injuries. Wolfe was airlifted to Palmetto Richland Memorial Hospital, where she died of her injuries 17 days later.

Sujata was seriously injured on March 2, 2012, when her 2002 Honda Civic rear-ended another driver who came to an abrupt stop on the highway. The driver’s air bag deployed and the inflator exploded, spraying shrapnel into her chest and face.

“I’m very pleased by NHTSA’s preservation order,” Dean said. “It has accomplished the underlying basic request that we were making which was primarily to preserve 10 percent of the returned inflators in each state for testing and analysis by our experts.”

Preservation orders are garden variety motions in products liability cases, but the issue took on an urgency in early January. Dean discovered that LKQ, which bills itself as North America’s largest online provider of recycled original equipment auto parts for cars and light-duty trucks, could not sell him any inflators, because Takata had an agreement to purchase LKQ’s entire inventory. The supplier is gathering some 12,000 inflators a day from recalled vehicles nationwide, and subjecting most of them to destructive testing.  Dean feared that Takata could destroy all of the Florida inventory during testing, leaving none or few for civil litigants to test independently.

Alarmed, Dean, filed an emergency motion for a preservation order on January 9. Honda, Takata and NHTSA immediately objected. The defendants argued that there was no real emergency or threat that evidence would be destroyed. Further, they argued, it would interfere with the multi-district litigation, which is currently in its initial stages.

NHTSA argued that Dean’s effort to preserve some inflators for testing and analysis would interfere with its ongoing investigation into the root cause or causes of Takata airbag inflators malfunctions. The problem appears to be multi-faceted, caused by some combination of manufacturing errors, including improper airbag seam welds on the inflator assembly; the use of ammonium nitrate, a volatile chemical compound which can degrade over time; and potentially defective design of the assembly that does not fail in a controlled manner when it’s over-pressurized. 

In its January 20 statement in the Lyon case, NHTSA said that a preservation order “would put an abrupt halt to Takata’s ongoing testing efforts essential to NHTSA’s safety investigation. Moreover, this order would require the delivery and preservation of hundreds of thousands of recalled Takata inflators at a single location, and thereby would prohibit any transfer of inflators to other entities for further testing, whether carried out by vehicle manufacturers or NHTSA itself. Without readily available access to inflators, including the ability to oversee destructive testing, NHTSA is unable to conduct an effective investigation….This testing will, NHTSA believes, enable the agency to identify the scope of affected vehicles and the root cause of Takata inflator ruptures and to ensure that the recall remedy is robust and effective. This testing is thus a critical element of the agency’s overall mission to protect public safety.”

As Dean pointed out in his reply, NHTSA itself had expressed its doubts about Takata’s honesty and organizational skills. In his November 20 testimony before the Senate Commerce Science and Technology Committee Hearings, Deputy Administrator David J. Friedman conceded:

“[I]t’s been made clear to us they do not have good quality control and do not have good record keeping because further down the road, they had to update indicating they had not provided us with that information. That is one of the key reasons we are demanding under oath they provide us answers about all of these recalls. All of the tests they’ve done on air bags.”

And:

“Senator, I’m not a lawyer, so I don’t know the exact meaning of probable cause. But I will say I don’t trust that they [the Honda and Takata Defendants] have provided us with [everything] . . . with—we know that they have not always provided the auto industry with accurate information of all the loss involved. We haven’t gotten the information we need. We’re looking into this. I have serious concerns and will hold them accountable based on the findings”

Dean’s emergency motion was denied, rendered moot by the MDL, still without a leadership team. But, he believes that the issue for civil litigants has not yet been totally resolved.

“I brought this to NHTSA’s attention because this was an important issue,” Dean says. “They began to understand and to ask questions, NHTSA took an unprecedented step, which should be applauded and is necessary, to make sure there is a preservation agreement and protocol. While NHTSA’s order addresses the important issue of collecting, organizing and cataloguing the inflators in a systematic manner, from a civil litigation perspective, I don’t believe the order addresses everything.”

Meanwhile, a consortium of 10 automakers that used Takata airbag inflators in their vehicles has hired Orbital ATK to conduct independent testing on Takata airbag inflators, under the supervision of former NHTSA Acting Administrator David Kelly, they announced today. According Orbital ATK’s website: “ATK expanded into the aerospace market with the acquisitions of Hercules Aerospace Company in 1995 and Thiokol Propulsion in 2001.” Morton Thiokol, readers will remember, was the NASA engineering contractor for the Space Shuttle Challenger that exploded in 1986, 73 seconds after the launch, killing all seven aboard. The explosion was traced to a failure of the O-ring seals for the solid rocket boosters. Although Thiokol engineers knew that the rings could fail at low temperatures, management, along with NASA made the decision to launch the space shuttle on Jan, 28, 1986, on a morning with unusually low temperature.

Last week, Chief Counsel O. Kevin Vincent informed Takata, which, up until recently had avoided the civil penalties, that it would be charged $14,000 a day – that’s the maximum $7,000 times two for separate Special Orders sent in October and November — for each day that it fails to provide an adequate explanation for some 2.4 million documents it has filed with the agency so far.

In looking at Takata’s EWR submissions, we notice that it looks as though there’s something else Takata forgot to give NHTSA. Honda’s already ponied up $70 million for failing to fulfill its EWR obligations.  But, under Transportation Recall Enhancement Accountability and Documentation Act regulations, component manufacturers are also required to submit death and injury claims. We know from Honda’s Part 573 submissions that it was informing the supplier of injuries as earlier as 2004. We know that Takata was named in some lawsuits. Takata has filed some EWR claims, but we see no EWR submissions that match up to any known deaths or injuries. In fact, there is but one airbag claim for a 2003 incident involving a Honda side airbag. The last time Takata submitted anything to the agency was in 2010.

Takata knew of no inflator claims? More fines to come?

Mandatory Window Blind Rule Advances

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After two decades of fruitless interaction between the U.S. Consumer Product Safety Commission and the window covering industry, the commission voted last Friday afternoon to officially put one step forward toward a mandatory standard.

The vote was unanimous to publish an Advance Notice of Proposed Rulemaking.

“It speaks to the new tenure of Chairman [Elliot] Kaye to make this a priority,” says Kaye’s spokesman Scott Wolfson. “From the chairman’s perspective, the status quo has been broken and we are on a different path than that of the past few years. Chairman Kaye believes in what the law calls for — a robust voluntary standard. But, there is evidence the voluntary standards process is not working to the benefit of the consumer. He is ready to lead and the staff is ready to act.”

This is all a nice way of saying that the commission finally wearied of going to meetings of the Window Coverings Manufacturers Association and suggesting standard changes to prevent children from being strangled by window blind cords, only to be patted on the head and ignored.

According to the injury and death data analysis prepared by the CPSC staff, and outlined in the briefing package, 11 children are strangled each year from window blind cords – an average that has remained unchanged for many years.  The CPSC’s emergency department-treated injury data (National Electronic Injury Surveillance System or NEISS) found an estimated 1,590 children received treatment for injuries resulting from entanglements on window covering cords from 1996 through 2012.

In May 2013, a consortium of safety advocates had had enough. Citing the availability of alternative designs, the consistent death rate and the failure of the voluntary standards-setting process, the group, including Parents for Window Blind Safety, Consumer Federation of America, Consumers Union, Kids in Danger, Public Citizen, U.S.PIRG, Independent Safety Consulting, Safety Behavior Analysis, Inc., and Onder, Shelton, O'Leary & Peterson, petitioned the CPSC to promulgate a mandatory rule to protect children from the preventable strangulation hazard.

“It’s wonderful to see the commissioners banding together and stepping up to the plate, but it’s been a long time coming,” says Linda Kaiser, founder of Parents for Window Blind Safety. The Kaisers’ one-year daughter Cheyenne Rose died in 2002 after she was strangled by a window-blind cord.  “This should have been dealt with a long time ago. Now the technology’s there, but the industry is still dragging their feet. This sends a message to industry that the CPSC is serious.” (See Parents for Window Blind Safety produced video "In an Instant")

On October 8, the Commission unanimously voted to grant it and allow the staff to prepare a briefing package in advance of a second vote to publish an ANPRM. At the time, GOP appointee Ann Marie Buerkle expressed “significant reservations about whether a mandatory standard for window coverings could be justified under the Consumer Product Safety Act.” In a statement issued after the October vote, Buerkle gave the standard Republican response to all things regulatory – no need for rules:

All of us at the Commission are keenly aware of the tragic deaths of young children that continue to occur all too often as a result of corded window coverings.  According to the staff’s preliminary analysis, however, the annual risk of a fatal strangulation from the corded window coverings sold from 1996 to 2010 barely exceeds one in a hundred million units.  Moreover, that risk is already declining as older products are gradually being replaced with the better products that are available now, and it will continue to decline as even better products become available in the future and safer alternatives become more affordable.   

Translation: Not that many children die, what’s the rush? We’ll just wait for everyone to re-decorate!

A Long History of Neglect

The purpose of this ANPR is to collect information related to a potential mandatory rule – although at this point, it is difficult to determine anything the commission doesn’t know about this issue. Strangulation by window cords has been captured in the technical and medical literature since at least the 1945. Other medical journal articles in the 1980s recognized his hazard. Asphyxia by rope or cord strangulation – including those of toys and mobiles, for example – accounted for 25 percent of all pediatric deaths prior to the 1980s.

In 1997, the Journal of the American Medical Association published the first epidemiological study specifically on window cord strangulation death. Using data from the National Electronic Injury Surveillance system, the study estimated that 359 children were strangled by window cords in the U.S. and that nearly half – 49 percent – were not being reported to the CPSC. By this count, nearly one child was strangling in window cords every two weeks, with the vast majority of the deaths occurring in children three years old and under. The CPSC thought that this study was significant enough to issue as a separate press release in June 1997 to alert parents to the danger, and re-issue it in 2011.

The CPSC itself has been gathering data on this problem since 1981. A 1981 Commission staff report about accidental strangulation of children under five years of age, noted 41 deaths from window blind cord strangulation and identified window covering cords as one of the products most frequently associated with child strangulation. In a 1994 effort to re-examine this hazard, the commission counted 175 fatal window cord hangings since 1973, with 45 deaths in the previous three years. In 2004, the CPSC, working with the Window Covering Manufacturers Association, analyzed fatality data from 1996 to 2002 and found 79 fatal incidents associated with window covering products for which in-depth investigations could be completed.

Data cited in the December 31 briefing package tallied 184 reported fatal strangulations and 101 reported nonfatal strangulations from 1996 through 2012 involving window covering cords among children 8 years and younger. On average, at least 11 fatal strangulations related to window covering cords occurred per year in the United States from 1999 through 2010, among children under 5 years old; there were another six non-fatal injuries.

Twenty Years of Warnings

The CPSC has been warning the window coverings industry to get it together at least since March 1994, when it expressed its concerns to the Window Covering Manufacturers Association (WCMA). CPSC representatives declared that “remedial action must be taken immediately,” and warned that it would not “limit its options,” if no voluntary standard was forthcoming.” The WCMA agreed to work with the CPSC to develop a voluntary standard under the American National Standard Institute (ANSI) process.  The main result of this collaboration was, in October 1994, to “encourage consumers to eliminate or tie down loops in their window blinds.” Manufacturers agreed to redesign pull cords to eliminate single tassel loops, with implementation to be effective by January 1995.

But this agreement failed to eliminate the hazards. In November 2000, the industry went back to revise the voluntary to include provisions to address inner cord accessibility. The revised standard, ANSI/WCMA A100.1-2002, was published in 2002. That revision also failed to stem the tide of fatalities. In 2004 the CPSC published another analysis of window blind cords, and, as part of that incidence analysis, made further recommendations. The agency made it plain that the goal of the voluntary standard was: “to remove any potential for these foreseeable circumstances to occur,” and criticized the current voluntary standards as inadequate.  Again, the CPSC made it clear that the industry should focus on solving this problem once and for all: “However, staff believes that the window covering industry should develop cost effective products that eliminate the strangulation hazard.”

In 2009, the CPSC launched one of the largest remedial actions in its history, recalling 50 million Roman shades and roll-up blinds. In November 2010, then CPSC Chairman Tenenbaum followed up with the creation of a 30-member taskforce composed of representatives of industry, the CPSC and the safety advocacy groups, to invigorate the process and draw up new guidelines to be completed within a year.  In June 2011, Tenenbaum reiterated that the purpose of a revised voluntary standard was to eliminate the strangulation hazard, and she urged the WCMA “to facilitate, rather than resist, the strengthening of some of the proposals currently being considered in the technical working groups. Although the voluntary standard is not yet complete, I remain very concerned that some of the revisions to the voluntary standard will fall short of eliminating the risk factors causing death and injuries, especially among toddlers and young children, from exposed cords on window coverings.”

They ignored her, too, prompting the consumer advocates on the committee to quit in September 2011, complaining that industry was only working to reduce, rather than eliminate the standard, and that their input had not been seriously considered.

The industry’s approach has been to tinker at the margins of the voluntary window blind designs standard and gussy-up its warnings to customers – but only going so far as to declare its intention to reduce the hazard, but not eliminate it. The first version of the voluntary standard was published in 1996 and is designated as ANSI/WCMA A100.1-1996 American National Standard for Safety of Corded Window Covering Products. The original voluntary standard required the elimination of cord loops and restriction of continuous loops and chains as a tension device. The industry redesigned the pull cords to eliminate single tassel loops, which became effective in January 1995.  Since then, almost all horizontal blinds have been manufactured with individual cords that terminate in separate tassels. Revised versions were published in 2002, 2007, 2010, and 2014.  The 2010 version was amended in response to the 2009 Roman shade recalls. The voluntary standard states: “The objective of this Standard is to provide requirements for covered products in 1.3 that reduce the possibility of injury, including strangulation, to young children from the bead chain, cord, or any type of flexible loop device used to operate the product.”

Despite regular trips to the voluntary standards committee conference room, pull cords and continuous loops continue to strangle children.

The CPSC staff reviewed 249 In-Depth Investigation files concerning window cord strangulation incidents against the most recent version of the voluntary standard and found that it would have addressed the hazards in 25.7 percent of these cases. In the vast majority – 57 percent – the new standard would have been ineffective. (There was insufficient information to draw any conclusions for the remaining 17.7 percent.)

Meanwhile, there have been numerous alternative designs available for years – break-away operating cords, manual and motorized cordless window coverings, cordless shades; wand operators; cord retractors, and cord shrouds. Nearly all manufacturers offer cordless product lines.

The industry has balked at making designs safer for the same reason they balk at everything – cost. The CPSC found that manually operated cordless window coverings may cost about $15 to $130 more than similar corded window coverings; motor-operated window coverings were even pricier, at more than $100-$300 higher than the prices of corded window covering. Some wand-operated vertical blinds cost about the same as corded versions; others appear to cost about $10 more than corded vertical blinds.

Averting the Severe Decree

The industry still has time to pull itself up by the continuous cord, and atone for two decades of foot-dragging. The CPSC rulemaking process is required to begin with an Advance Notice of Proposed Rulemaking, rather than a Notice of Proposed Rulemaking, which considerably lengthens the time from proposal to rule.

Wolfson, speaking for Kaye, held out hope that the window covering industry could roll out a robust voluntary standard and make the whole bad business go away. Toy makers were able to pull this off with the ASTM standard for loose magnets – a robust voluntary standard that drove down the death and injury incidence rate and became the industry go-to.

“There is still time to re-open their standard and seriously take into account the concerns we have with pulls cords and continuous loops,” Wolfson said. “We will continue to work on the two tracks. It worked with the magnets. A robust standard that clearly provides a technical solution – that’s the end-goal. The reality is that a good voluntary standard can be done faster than a good mandatory standard.”

Rachael Weintraub, Legislative Director and General Counsel for the Consumer Federation of America thinks it unlikely that the window-coverings industry will establish a stronger standard – although it is possible. The voluntary standard for baby walkers – issued in 1997 after a lot of pressure by safety groups — completely eliminated the hazard. (The CPSC final mandatory rule, established in 2010, adopted the voluntary standard.)

“But that is one case amongst many others that have not,” Weintraub said. “The history of this industry and this standard is an unwillingness to address the underyling issues. We think a mandatory standard is ripe. The industry has had decades to address these issues and they have not.”

The Run Down on the NTSB Tire Symposium

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Last week, the National Transportation Safety Board (NTSB) brought together tire industry players, federal regulators, and consumer advocates for a tire safety symposium to evaluate the tire recall system, new technologies, tire age and service life, and consumer awareness in preparation for a tire safety report and recommendations scheduled for release next year.  The intervention by the NTSB, which provides formal safety recommendations independent from NHTSA, signifies an important step in pressing for industry and regulators to address these unresolved safety issues.

But turning around the leaky super-dreadnaught that is our tire recall system isn’t going to be easy. Forty years after the Tire Identification Number (TIN) system was created, techs and consumers are still forced to rely on pen and paper and a lot of searching to figure out whether a tire has been recalled.  While most vehicle and tire manufacturers have issued recommendations and warnings on tire age (i.e., maximum service life), these practices are still little known and rely on consumers and service providers to decode the date of manufacture hidden in the alphanumeric TIN. While most other industries have installed automated systems to individually track goods, but the tire industry has no such mechanism – despite its important role on a vehicle. And TIN numbers are not machine readable; thus, when they move through the distribution chain, retailers and servicers cannot easily determine the tires’ age and recall history in their inventory or for customers who rely on them. The result is that recalled and over-aged tires (that look like perfectly serviceable tires) slip through the cracks undetected. 

Symposium Highlights

By far, the best moment in the two-day confab was symposium chair Earl Weener’s rebuke of the Rubber Manufacturers Association’s assertion that it just can’t change anything about the way it does anything. For example, Tracey Norberg, the RMA’s Senior Vice President of Regulatory Affairs and General Counsel argued that it would be too difficult to radio-frequency identification (RFID) chips into tires. (RFID chips could store the tire’s age and recall information allowing dealers and service techs to scan the tires every time they inspect a vehicle.) Such technology would be challenging, she said, because it could change the structural integrity of the tire – not to mention all the complicated questions about what information to put on the chip, how it’s used, and who will read it and how.

Weener wasn’t buying it:

“That’s interesting because I think an awful lot of people in this audience have an iPhone. That iPhone can read QR codes, can read barcodes, can read UBS codes. But somehow that is too much technology for the tire manufacturers and for the tire distribution process. You know, you go to the airport and about every third person checks in with their iPhone, with a barcode on them,” he said. “So it seems to me that maybe some imagination is required.”

Imagination? Tire manufacturers have been developing RFID technology in tires since 1994. Michelin, Goodyear and others have been embedding RFID tags into commercial and racing tires for years.

Weener noted that despite the TREAD Act, in place for 14 years, NHTSA’s revisions to the tire endurance and resistance standards, and the tire pressure monitoring systems (TPMS) requirements, “…we are still seeing accidents—accidents these measures were intended to address. By holding this symposium, our goals are to explore the effectiveness of these various initiatives in improving highway safety, and identify what additional work needs to be done.”

Much of the symposium was littered with the same arguments we’ve come to expect: NHTSA and the manufacturers continued to point the finger at consumers—tire-related crashes would be minimal if only consumers would perform weekly tire inspections, constantly monitor air pressure and tread depth, have service stations regularly rotate and inspect their tires, do extensive research before purchasing a tire, know better than to buy a used tire, and promptly send in the registration card dealers always helpfully provide so that diligent manufacturers can inform them as soon as there is a recall. As the RMA’s Dan Zielinski said, “there certainly are a number of people talking about [the importance of tire maintenance] and in very a consistent way, and it’s easy for consumers to find, but we’re still facing a significant population that’s not always paying attention to it.”

Other noteworthy moments:

  • NHTSA cites faulty data. Randy Whitfield, of the data-analysis firm Quality Control Systems Corp., dropped a bomb during his presentation on tire safety data, showing that the data that NHTSA has relied on to show that tires are safer is not accurate. Whitfield performed a detailed analysis of the NHTSA’s Fatality Analysis Reporting System (FARS) database—which records all tire-related fatalities. Whitfield’s assessment, sponsored by non-profit The Safety Institute, indicates that the number of tire-related crashes and resulting deaths has remained relatively constant since 1995. Despite acknowledging that Whitfield is right about the FARS data, NHTSA pointed to a study showing that tire-related deaths and injuries have decreased by half since Federal Motor Vehicle Safety Standard 139 made tires more robust. But Whitfield told the NTSB “that’s just not true” because the agency is looking at a survey with a small sample size of crashes involving light passenger vehicles towed for tire-related damage, rather than evaluating all tire-related crashes. Whitfield’s science-based conclusions failed to stop the data-driven NHTSA from quoting the same incorrect figures later in the day. 

“It was stunning to me that a speaker following my talk and following even NHTSA’s statistician’s talk, which confirmed my numbers, was making statements that tire-related casualties have come down,” Whitfield said. “That means we live in a fact-free zone, and that’s dangerous.”

  • Infighting in the industry. There was also dissention in the industry ranks. The RMA, whose members include eight tire manufacturers, and the Tire Industry Association (TIA), made up predominantly of tire dealers, have always held fast to the voluntary system that requires retailers to hand consumers the manufacturers’ registration cards. But now the RMA wants to put the burden solely on the retailers. At the symposium, RMA’s Norberg announced that the group wants a mandatory registration system requiring retailers to electronically register the tire at the time of the sale.

That drew ire from the TIA’s Kevin Rohlwing, who said it’s already too big of a burden for retailers to have to stock registration cards from several manufacturers—instead, retailers should just have to give the customer the TIN and tell them what website they can use to register the vehicles. For too long, the industry has put the entire burden for the registry system on the dealers without providing them with the tools they need to easily do the job, and it looks like the dealers have had enough. (The same can be said about the tire age recommendations.)

  • Tire aging got some of the spotlight. The industry leaders stuck to the same old story that tire age isn’t nearly as important to preventing a crash as keeping the tires properly inflated, without explaining how air pressure is going to keep a 13-year-old spare tire from detreading on a hot highway when it’s put into service. The RMA also offered its age-old argument that there is no “one date” when a tire becomes too old, so a tire expiration date of six or 10 years would force consumers to spend money on a tire that could still be serviceable for several more years. (The RMA continues to ignore the 10 year recommendations of many of its members.)  Sean Kane of Safety Research & Strategies, who presented at the symposium, countered by comparing it to blood alcohol content, saying “we have recommendations for blood alcohol. The states have adopted a .08. And there’s a reason for that. Does that mean that everybody at .08 is going to crash their car on the way home? I don’t think so. I think we understand that there’s an increased risk at that point, and it’s a good point at which we want to cut that off and draw a line in the sand.”

Norberg also mentioned offhand that if tire makers were only interested in money, they would want a tire-aging standard because then they could sell more tires. What she and the manufacturers forgot to mention is that rubber manufacturers have an antiquated logistics and supply chain that doesn’t individually track tires.  The result is that, especially with the proliferation of sizes, tires in the retail stream can be in excess of a year old. When a customer knows that the product has an expiration he or she will likely insist on newer tires or a discount on the older ones. Someone has to pay for that. The only way to avoid those costs is to implement an individual tracking and automated system.

 

The NTSB’s Tire Safety Report

The NTSB’s 2015 report that will include detailed examinations of at least two fatal tire-related crashes that occurred in February 2014. On February 15, the left rear tire on a 2004 Kia Sorrento detreaded, causing the driver to lose control, spin out through an interstate median, and crash into a school bus carrying 34 members of a Louisiana high school baseball team in Centerville, La. Four of the Kia occupants died, and the fifth was severely injured. Thirty of the bus passengers suffered injuries. The Michelin Cross Terrain tire was 11 years old when it failed. 

A week later, on February 21, the left rear tire on a 2002 Ford 350 XLT 15-passenger van experienced a complete tread separation while driving on an interstate in Lake City, Fla. The driver lost control, and the van swerved onto an embankment and rolled over. Two adults died, and all of the other occupants, including several children, suffered injuries. The tire had been recalled shortly after Sam’s Club put it on the vehicle in 2012 because it had a potential for tread loss or rapid air loss from a tread-belt separation. Sam’s Club mechanics inspected the tire in November 2013 but failed to identify and remove the recalled tire.  Neither retailers nor the tire manufacturers have a recall system that allows consumers or service professionals to determine whether a specific tire is recalled. 

The two crashes highlight the dangers of the outdated tire identification and recall system.

Tire recall notification relies on retailers providing consumers with registration cards that need to be completed with the TIN and sent to the manufacturers.  In some cases tire dealers register tires at the point of sale – but that still requires a manual process of transcribing 11 alpha-numeric characters off each tire (accurately) into a system that is then transmitted to the manufacturers.  It’s a slow arduous process that is not conducive to high registration rates and remediation which is in part why tire recall return rates average less than 30 percent. 

Assuming consumers do learn of a recall, there is no database that allows them to search for recalls by TIN number.  (Date codes on tires are found in the last four digits and are coded by the week and year.  For example 4313 equates to the 43rd week of 2013. Tires prior to 2000 relied on three digits and confounding this system are the NHTSA requirements which mandate a complete TIN with the date code only on one side of the tire.  TINs also contain codes associated with the plant of manufacture, size and model and are not unique identifiers, thus thousands of tires can have the same TIN number. 

So to determine if the tire has been recalled, servicers and consumers must still find the full TIN—sometimes requiring that they lie down under the vehicle with a flashlight, if only the partial TIN is showing—then search through NHTSA’s database by make and size and pour over the lists to see if the TIN number is included. It’s a confusing and laborious process retailers and servicers do not have time to undertake and consumers often don’t understand.

On the tire age/service life front, most of the industry has acknowledged in the last decade that tires degrade over time regardless of use and should be removed after about six to 10 years.  Spare tires, tires on little used vehicles and used tires with adequate tread often exceed these recommendations and still appear serviceable (See “Aged” Tire Case Numbers Grow) 

NHTSA has been researching the issue of tire aging since 2003 and has confirmed that age plays a role in tire safety but has declined to do anything other than advise consumers to follow recommendations from automakers and tire manufacturers.  Nearly every automaker recommends removing tires after six years, and many tire manufacturers recommend removal at 10, but those recommendations are buried in owner’s manuals and technical bulletins, and—despite all the talk about increasing consumer awareness and education—the industry players have consistently failed to tell even their own dealers and servicers that aging is a safety concern. And if consumers were better informed about the dangers of tire aging, the only way to find out a tire’s age is to decipher the odd date code in the TIN.

These problems could be fixed by utilizing scanning technology that’s been available for years that can include RFID or QR codes for example (see Tire Recalls and Tire Safety: The RFID Solution) that could automate the information needed.  But efforts to seriously consider these changes have been repeatedly stymied by the tire manufacturers, led by the RMA, which is intent on passing the responsibility to everyone else – NHTSA, dealers, and consumers. 

The general take: the NTSB is really paying attention and may issue recommendations urging NHTSA and the industry to finally implement some common-sense tire safety regulations and practices. The NTSB is best known for its investigations of aircraft crashes, but the board has played an important role in advancing motor vehicle on issues ranging from the inclusion of rear-seat lap and shoulder belts in the 1980s to recent improvements in highway and rail grade crossings.  More than 80 percent of NTSB recommendations have been adopted.  Typically, NHTSA’s first reaction to the NTSB’s advice is to ignore it, but maybe for reasons we cannot fathom, this time will be different. The Safety Record can dream anyway.

A webcast of the symposium and the panelist presentations is available here.

Texas Attorney Asks NHTSA for Tire Investigation

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National Highway Traffic Safety Administration Chief Counsel O. Kevin Vincent’s message to the defense bar a few months ago at a legal conference was pretty clear – keep us in the loop, or risk the consequences. NHTSA’s message to the plaintiffs’ bar has been more like radio silence, so it will be interesting to see what the Recall Management Division does with a request to investigate the failure of a tire distributor to recall a defective Chinese tire already recalled by a different distributor, marketing the same tire under a different brand name. 

Michael Cowen, of the Cowen Law Group in Brownsville, Texas wrote to the agency today asking for an Equipment Query regarding Hercules A/T radial tires sold by the Hercules Rubber & Tire Company.

Cowen represents Krystal Cantu, 25, who lost half of her right arm in an August 2, 2013 crash caused by a catastrophic tread separation. Cantu was a front-seat, belted passenger in a 2004 Ford Explorer Sport Trac, when the left-rear tire – a Capitol Precision Trac II – failed as the vehicle traveled southbound on Interstate 37 in Atascosa County, Texas. The driver lost control when the vehicle skidded; Ms. Cantu’s right arm was crushed in the subsequent rollover.

ITG Voma cited this crash in its October Part 573 Notice of Defect and Noncompliance to recall 94,890 Capitol Precision Trac II tires manufactured between December 2008 and May 2010. The defective tires, actually manufactured by Shandong Yongsheng Rubber Co., Ltd., lacked a nylon cap ply, which made the tires less robust and prone to tread separations.

“Selling essentially the same tire and under a different brand that isn’t covered under the recall needs to be thoroughly investigated by NHTSA.  Our request and the information submitted to the agency should assist them in obtaining a complete accounting of all the tires that need to be taken off the roads” Cowen said in a press release. 

On April 2, 2014, Cantu filed a lawsuit against Voma and the Shandong Yongsheng Rubber Co., Ltd., among other defendants. During the discovery phase of the case, a manufacturer’s representative revealed that the Capitol Precision Trac II shared a common green tire designation with another tire branded as the Hercules Radial A/T in eight different sizes. NHTSA defines a common green tire as “tires that are produced to the same internal specifications but that have, or may have, different external characteristics and may be sold under different tire line names.”  This means that the Hercules A/T and Capitol tires are essentially the same.

Under federal recall regulations, the company that brands the tire is considered the manufacturer, and is responsible for reporting defects to NHTSA and launching a recall. In a December 17 letter, Cowen asked the agency to open a defect investigation called an Equipment Query to pursue the Hercules Rubber & Tire Company, a marketer of replacement tires, headquartered in Findlay, Ohio and a partner of the Cooper Rubber & Tire Company, to launch a recall.

In 2007, Foreign Tire Sales (FTS), a tire importer based Union, New Jersey launched a recall after discovering that tires manufactured by the Hangzhou Zhongce Rubber Co. Ltd for FTS had been built without or with inadequate .6mm c-shaped gum strips used to prevent the separation of belts. The recall followed a legal claim alleging that a catastrophic tread separation of a Telluride 245175R16 tire manufactured by Hangzhou and sold by FTS caused a fatal rollover crash. FTS had claimed to NHTSA that Hangzhou sold similar tires via other importers. The agency’s Recall Management Division responded by sending letters to 17 tire importers/distributors of Hangzhou tires.

The EQ was eventually closed with no further action – all 17 distributors claimed that they had none of the defective tires.

“This underscores the important role litigation plays in identifying safety defects” says SRS President Sean Kane. “It will be interesting to see how many of these defective tires actually come out of service in this campaign given the failed recall system.”

The weaknesses of the current tire recall system were among the topics discussed at length last week at a tire safety symposium hosted by the National Transportation Safety Board. The NTSB held the meeting in advance of a tire safety report and formal recommendations, expected to be issued next year.