Ford Asks for Takata Recall Pass

On July 10, 2017, Takata recalled PSDI-5 driver air bag inflators containing phase-stabilized ammonium nitrate (PSAN) as a generant and calcium sulfate as a desiccant, which were used in vehicles sold in the United States as original equipment in frontal driver airbag modules. Recall 17E034 affected 2.7 million Ford, Mazda and Nissan vehicles produced between 2005 and 2012.

Takata’s accompanying chronology in its Part 573 Notice of Defect and Noncompliance describes a field recovery program conducted with Nissan and Ford at NHTSA’s request between March 2016 and June 2017, to gather inflators and subject them to a variety of tests. These included live dissections, chemical and dimensional propellant analysis and ballistic testing. Takata reported to the agency that the field-returned inflators had zero ruptures in ballistic test deployments, but that “some within the population analyzed show a pattern of propellant density reduction over time that is understood to predict a future risk of inflator rupture.” It also allowed that “inflator design and vehicle environment differences between the Nissan and Ford inflators/vehicles may influence their aging characteristics.” (Emphasis added.)

Nonetheless, Takata determined, “out of an abundance of caution,” to recall its first-generation PSDI-5 PSAN driver air bag inflators containing calcium sulfate. In notifying NHTSA of a defect and announcing a recall, Takata acknowledged that these inflators represent an unacceptable risk.

Nissan responded by recovering 895 inflators from the field for testing, and acquiescing to the recall without complaint. Ford responded by collecting only 400 inflators from the field, and filing a petition asking NHTSA to declare the affected Takata inflators in its vehicles to be an inconsequential risk to safety. At the same time, Ford requested that NHTSA delay a decision on its petition until the automaker can conduct more testing. Got it? Ford asked NHTSA to declare the inflators in its vehicles safe, but not until Ford does more testing to prove it.

Safety Research & Strategies has submitted comments objecting to Ford’s petition and urging NHTSA to reject it. You can read them here. [Docket No. NHTSA–2017–0093; Notice 1]

Ford argued that 360 live dissections of Ford vehicle inflators demonstrated “consistent inflator output performance — specifically, measurements of ignition tablet discoloration, generate density, and moisture content of certain inflator constituents did not indicate a reduction-in-density trend.”  Ford also maintained that the inflators in its 2006-2007 Ford Rangers were in no danger of failing because it had taken unique steps to prevent  “potential” exposure to moisture: “the inflators contain only two, foil-wrapped auto-ignition tablets (instead of three that are not foil-wrapped), contain divider disk foil tape, and utilize certain EPDM generate cushion material (instead of ceramic) that “reduces generate movement over time, maintains generate integrity, and leads to consistent and predictable burn rates.”

There are so many things wrong with this ask and Ford’s argument, it’s hard to know where to begin, so we’ll start here: First, It has already been established that, with or without drying agents, PSAN is too volatile of a generant – period. PSAN must be used with extraordinary precision and care, or it is likely to over-pressurize, especially when exposed to temperature cycling and moisture. And we know from everything that has been publicly revealed so far that Takata had pretty bad manufacturing processes and lax quality control.

PSAN is the underlying root cause of the ruptures. Takata has affirmed this in a variety of patents filed over two decades. A study, conducted at the behest of Takata and Honda by researchers at Pennsylvania State University’s High Pressure Combustion Laboratory also showed, over Takata’s protests, that PSAN is susceptible to dynamic burning. That means that when the propellant is exposed to sudden pressure increases, it may burn at a much faster rate and at higher temperatures than expected, leading to over-pressurization.

Second, calcium sulfate, used extensively as a commercial desiccant in laboratory use, does not provide any guarantees that the inflator won’t eventually rupture. Manufacturers like it because it’s cheap, stable non-toxic and non-corrosive, but it only adsorbs 10 percent of its weight in water vapor.

Third, we suppose that it’s fine and dandy to reduce the ingress of moisture that can create porosity in the wafers of generant. If that was the only mechanism of failure, Ford might have made a decent argument. Only, it seems that Ford is putting as much effort into keeping up with the science of inflator ruptures as it has been in recovering inflators from the field. Technical experts that served as consultants to NHTSA and Takata agreed moisture intrusion is of lesser importance in inflator ruptures than temperature cycling.

For example, the Exponent report, Investigation of Takata Inflator Ruptures, emphasizes the role of thermal cycling in failure scenarios: “However, even in hot and dry environments like Arizona, the large daily temperature cycles in the absence of significant moisture ingress can also cause propellant degradation over a prolonged period. High moisture content alone in the absence of temperature cycling will not increase degradation.”

NHTSA consultant Fraunhofer ICT and Takata also acknowledged that variances among vehicle types are determinants in whether or how significantly an airbag inflator will deteriorate due to temperature cycling, stating:

“One of the key observations in the analysis of the field return data is that there exists a strong dependence on outcome based on the vehicle in which the inflator was installed. Limited vehicles studies conducted by Takata show variation in inflator surface temperatures between different vehicle types and models, given identical environmental exposure conditions. This temperature variation appears to have some correlation with different field performance of those models, as shown in Figure 19 below. This is not to say that the vehicle is the cause of the issue- only that the vehicle type may influence the rate that the inflator degrades.”

Finally, the death of Joel Knight is a warning about the price of recall delays.

On December 22, 2015, Knight, 52, of Kershaw County South Carolina, was fatally injured in an otherwise survivable and moderate crash when a defective airbag ruptured in his 2006 Ford Ranger.  Knight’s vehicle struck a cow that wandered into the road; the airbag inflator exploded during deployment, causing a piece of metal shrapnel to pierce his neck and spine.

Knight’s death was unwarranted and preventable – this defective Takata airbag inflator type, the Smokeless Driver Inflator or SDI, had already been recalled in 2014 in at least 61 other countries by Honda and Toyota. Those recalls were initiated following ruptures that took the life of at least one other driver – a pregnant woman in Malaysia.  

From June 2014 to May 2015, however, Ford dithered – and never actually recalled the SDI inflators in all of its vehicles.

The automaker issued its first Takata-related campaign as a voluntary field service action for a select group of vehicles in certain model years, which included Ford Rangers.  After July 2014, when a rupture caused by a failed SDI inflator (the very same used in Knight’s 2006 Ranger) killed a pregnant woman in Malaysia, NHTSA requested that Ford replace driver side airbag inflators in Ranger vehicles. Ford launched another regional field service campaign in November 2014 to replace driver side frontal air bag inflators in the 2004-2005 Ford Ranger vehicles.  The action was still limited to Florida, Hawaii, Puerto Rico, and the U.S. Virgin Islands, despite other manufacturers expanding the affected regions, and still, inexplicably, did not include the 2006 Ranger.

In May 2015, Ford finally converted its regional recall for passenger inflators into a nationwide recall after Takata issued a recall requesting such an action, but never converted its recall of SDI inflators from the limited regional recall into a nationwide recall, nor did it recall the 2006 Ranger with the same SDI.

Knight’s death was partly the impetus for a Takata airbag inflator recall of about 5 million vehicles, which would have included the 2006 Ford Ranger. The family of Joel Knight has publicly stated his death would have been prevented if Ford had launched a timely recall. 

We agree.

As other manufacturers have acknowledged to their customers the dangers of defective Takata airbag inflators and have begun to move more actively to recall these components, Ford continues to demonstrate its apathy. It continues to install the same non-desiccated Takata inflators that are the subject of the massive recalls in what NHTSA has dubbed” like-for-like” inflators – which very few other manufacturers are using. In the three years since NHTSA first ordered manufacturers to treat this defect as an urgent public safety issue, almost all manufacturers have procured either desiccated inflators or inflators from other suppliers. Ford sought extensions, telling the Agency that three years was not enough for it to find a safe alternative in sufficient numbers to meet the demand. Owners of these vehicles will have to go into the shop again in early 2020 for another replacement, which could lead to reduced completion rates because owners are frustrated or feel the interim remedy is safe enough.  

Astoundingly, Ford is still telling its customers that the inflators are safe, while Honda has (finally) mounted a full-court press to capture defective inflators – including a door-to-door effort to recovery a particularly dangerous subset of airbags. In contrast, Ford’s webpage entitled, “Frequently Asked Questions regarding Takata Airbag Inflator Recalls,” puts out this bull in response to a query about whether vehicles with recalled Takata airbags are safe to drive:

"Based on currently available technical data, Ford Motor Company understands that the vehicles involved in the recent Takata recall are safe to drive while you are waiting for replacement parts. You should have the repair completed as soon as possible after you are notified that parts are available.”

Ford’s got nerve – we’ll give them that. But one thing they shouldn’t be given is permission to forego the recall. NHTSA should not let Ford play Rupture Roulette with its customers.

NHTSA, Ford and CO Poisoning: Sickening

If your local police department has a fleet of Ford Explorer Interceptors, it’s probably trying to determine if the vehicle – an Explorer modified for law enforcement use – is sickening its officers during long periods of idling or hard acceleration. But if you are the civilian owner of one of these vehicles, keep a close eye on the noises Ford or the National Highway Traffic Safety Administration makes about a recall.     

In July 2016, NHTSA’s Office of Defects Investigation opened a probe into reports of occupants smelling exhaust odors in the occupant compartments of 2011-2015 Explorers. “Complainants expressed concerns about exposure to carbon monoxide.” At the time, the agency had tallied 154 complaints. What happened in the Preliminary Evaluation was – up until two weeks ago – anyone’s guess, because other than the Opening Resume and an Information Request letter to Ford demanding a response by August 24, 2016, nothing else was ever added to the public file.

In the space of a year, the complaints piled up. Ford reported fielding 2,051, while 791 drivers complained to NHTSA’s Vehicle Owner’s Questionnaire hotline. Some of those complaints were getting mad press because they came from police departments from Auburn, Mass. to Austin, Texas. Ford owns a large share of the law enforcement vehicle market. Introduced to the fleet in 2012, the Interceptor accounted for 60 percent of Ford police vehicle sales in 2013 – more than 14,000 police SUVs. By 2015, Ford was bragging in a press release that the Interceptor “quickly became America's best-selling police vehicle – which has helped Ford capture 61 percent market share through June 2015.”

Inconveniently for public safety, and Ford’s bottom line and brand ID as the go-to automaker for law enforcement, at least five officers lost consciousness, were hospitalized for CO exposure or crashed their SUVs after huffing the cabin air of their Interceptors.  For example, in September 2015, a Newport Beach, California officer “passed out while driving his Interceptor,” swerving “across two lanes of oncoming traffic, nearly hitting another car head on, and crashed into a tree at 55 mph,” according to CNN. After an Auburn, Massachusetts officer rear-ended another vehicle in late July, he and the vehicle tested positive for carbon monoxide.  

As stories of police departments parking their Interceptors have proliferated, Ford has been dispatching investigative teams to municipalities to assess the damage and assure its customers whose vehicles are paid for by the taxpayers that it will “cover the costs in every Police Interceptor with this issue, no matter what its age, mileage or post-purchase modifications,” according to news reports. 

If you paid for an Explorer directly from your own pocket, Ford seems a lot less interested in solving your problem – although there have been civilian Explorer buy-backs, and several apparently unsuccessful Technical Service Bulletins. Nonetheless, the company has been very careful to build what is known in Ford internal circles as the “defendable fence,” a way to limit the defect to a discreet population of vehicles, protecting the company from a much bigger recall that could include more than a million vehicles. This term surfaced in a 1995 memo on ignition switch fires in 28 million 1983 to 1995 light trucks and passenger cars with the same design. Ford has used this strategy to limit recalls of Ford F-150 cruise control deactivation switch fires, thick film ignition and stuck throttles.

The Explorer’s Chief Engineer Bill Gubing has been out there pushing the idea that the carbon monoxide is entering the occupant compartment via unsealed spaces and wiring holes drilled in the course of implementing after-market features specific to police work, such as emergency lights and radios. Other Ford Explorer owners need not be concerned Gubing reportedly said:

From a carbon monoxide perspective, the police duty cycle is very different than what a retail customer drives…It creates more combustion gas at the back of the vehicle because the engine’s working harder and faster. At the same time, there are modifications done to the back of the vehicle that certainly provide leak paths when those modifications are not done properly. We don’t see the retail customers driving like that. We don’t see retail customers with those modifications.

So that’s how carbon monoxide is getting into police Explorers. How is it getting into many, many, many more Explorers owned by regular folk? According to several Technical Service Bulletins Ford issued in 2012, 2014 and 2016, this problem surfaces when “the auxiliary climate control system is on,” and “may be worsened when the climate control system is in recirculate mode and the vehicle is heavily accelerated for an extended period.” The fixes concerned replacing vents, checking drain valves and reprogramming the heating ventilation air conditioning module to the latest calibration. 

In late July, ODI bumped up the investigation to an Engineering Analysis. By then the agency had collected 791 complaints and identified 41 injuries such as headaches, nausea and light-headedness in 25 incidents. Only 11 complaints involved police Interceptors. 

NHTSA’s first take on the Interceptor problem is cracks in the exhaust manifold, not deliberate, aftermarket perforations. Its tests at the Vehicle Research and Test Center (VRTC) in East Liberty, Ohio, along with field inspections, has led it to theorize that “CO levels may be elevated in certain driving scenarios, although the significance and effect of those levels remains under evaluation as part of the EA.” But it has also suggested that NHTSA may well respect Ford’s fence: “To date, no substantive data or actual evidence (such as a carboxyhemoglobin measurement) has been obtained supporting a claim that any of the alleged injury or crash allegations were the result of carbon monoxide poisoning, the alleged hazard.” 

The consumer-reported Vehicle Owner’s Questionnaires certainly support the notion that CO levels can become elevated during acceleration. Civilians, who also need to accelerate their vehicles – even if not engaging in a high-speed chase – have been reporting that the fumes engulf them when they hit the gas hard.

An owner from Strabane, Pennsylvania told NHTSA in June 2016:

Several times when driving two of my children ages 2 and 10 complained of a bad smell coming from the third row seating. They both became strangely ill, but only my 2 year old began vomiting. My 10 year old complained of being light headed during several long trips. I noticed on many occasions that during high acceleration anyone that sits in the third row complains of stomach aches after a lengthy time in the vehicle. I chalked it up to car sickness, but remembered this only became relevant when leasing this ford. Please help us. I have three kids and no other vehicle.

An Explorer owner in Canyon County, California told NHTSA in February 2017:

While driving the car on the freeway and under acceleration there is a horrible exhaust smell that makes my kids and myself nauseous. It also gives me constant headaches. I didn't realize what was happening until my husband got in the car for the first time and noticed the exhaust smell.

An owner from Brandon, Missouri reported in January 2017:

The smell is very harsh smells like burnt hair or sulfur. On long trips my wife has had severe headaches. This Explorer is the vehicle my wife and kids (ages 14, 5, & 2) use to get to work and school; I need to get this vehicle repaired or replaced. Please help!!!

From the owner of a 2015 Explorer in Juno Beach, Florida:

After heavy acceleration, the cabin has a strong foul sulfur odor that is unbearable. We have had it in to a Ford dealership to have both TSBs performed – the second took 5 days! And it still has not changed. Disgusting smell. This happens when we accelerate as on to the highway or to pass in challenging situations. I only have to press the gas pedal about half way down for 4-5 seconds and the smell is overwhelming. Activating the turbo chargers for any length of time brings this smell into the cabin. Then all of the windows have to go down to clear the smell. My mother can't take this anymore and my wife complains of headaches. This has been an ongoing for a year and a half!

Despite this defect’s high profile, the public information has only dribbled out of the National Highway Traffic Safety Administration’s Office of Defects Investigation. Neither Ford’s response to the Preliminary Evaluations or any work the agency has done has been shared with the public. As it opened the Engineering Analysis, ODI summarized parts of Ford’s response and testing it was doing out in East Liberty. The files themselves are not accessible, despite the agency’s regular transparency proclamations. 

For example, in 2012, the agency requested a $10,611,000 appropriation for Safety Defects Investigation activities, $782,000 above the FY 2010 funding level, to, among other things, “ensure that all public information related to investigations, recalls, and complaints is current.” In June 2015, NHTSA released a Workforce Assessment report in which one of its purported goals for ODI was: “Assure that information relating to investigations and recalls is readily available to the public.” On its website, NHTSA states that “NHTSA is committed to providing the most accurate and complete information available to its customers, the American traveling public, in a helpful and courteous fashion.”

Unfortunately, help and courtesy does not come cheap. In June, Safety Research & Strategies submitted a Freedom of Information Request for the non-confidential documents in the investigative file, and the agency told us that they’d be happy to oblige for about $780 dollars. 

First, these materials shouldn’t require a FOIA request – at least according to NHTSA. By law, all federal agencies are required to publish records that because of “the nature of their subject matter, the agency  determines have become or are likely to become the subject of subsequent requests for substantially the same records; or that have been requested 3 or more times.” In addition, agencies are required to publish a general index of those frequently-requested records. NHTSA’s Electronic Reading Room webpage listing those categories of records that “are available without the need for a FOIA request:” includes such “frequently requested records and information” such as downloads of defect investigation records. 

We’ve argued that these documents should be released at no charge because the information is squarely in the public interest, and because NHTSA by custom and by regulation is supposed to put non-confidential investigative material in the public files. We’ve requested that the fee be waived. Stay tuned.

And Now, the Rest of the Story on Keyless Ignition

For more than two years, The Safety Record had sought to report the results of a 2014 National Highway Traffic Safety Administration keyless ignition compliance investigation that involved seven major automakers, and to have our Freedom of Information Act request to the agency be awarded media status.

It has taken dogged persistence – and a lawsuit – but as 2016 drew to a shuddering close, we got our answers. And now (for those of you old enough to remember Paul Harvey’s famous radio show) the rest of the story: the agency closed the keyless ignition investigation after five months, with no findings of non-compliance. And, in the eyes of U.S. District Judge Ketanji Brown Jackson of the D.C. Circuit, The Safety Record is most definitely a legitimate news entity that pursued a legitimate journalistic objective in trying to report to our readers the conclusion of an agency action. (Judge Jackson spared the agency no quarter in her 35-page decision. The Safety Record found it delightful reading.)

Of course, there is much more to the plot, which we will recount in greater detail below.

But, we pause here to reflect on the real story: the failure of the agency to anticipate the consequences of a technological shift and to deal with them post-design and production, the utter failure of FOIA to serve as a tool to help citizens and journalists understand the innerworkings of their government, and the failure of NHTSA to put aside its petty antagonisms to answer some simple questions on a safety issue of genuine public interest.     

Compliance Probe Closes with a Whimper

In August 2013, with a 2011 proposal to upgrade Federal Motor Vehicle Safety Standard 114 to address the rollaway and carbon monoxide poisoning hazards caused by keyless ignitions on the table, NHTSA began testing 34 recent model-year vehicles to determine if these new push-button systems allowed the vehicle to be turned off in a gear other than park, or the key fob to be removed from a running vehicle with no warning to the driver, or allowed vehicles to be restarted without the key fob present.

This probe grew out of a compliance investigation involving rollaways in Ford vehicles. On February 25, 2013, a 2013 Ford Focus EV failed the agency’s FMVSS 114 compliance test, because “When the vehicle is started, shifted out of “park”, turned off, and the Driver’s door is opened no audible alert is given.” This violated a provision in the regulation requiring the vehicle to issue an audible alert when the driver exits and leaves the key in the ignition. (Manufacturers self-certify that their vehicles are compliant with all federal motor vehicle safety standards. Each year, the agency submits a small sampling of the fleet to test their compliance with various FMVSSs.)

In late June 2013, the agency contacted Ford to convey the following observations:

“When the vehicle is turned off using the push-button while not in “park” and the key fob is out of range of the vehicle:

1. It does not appear that the electronic key code remains present in the vehicle because it cannot be restarted. Section S5.2 of the Regulation states that if the key is able to be removed from the vehicle while the transmission is not locked in “park”, the vehicle’s transmission should become locked in “park” as a direct result of key removal. Like the Focus, the C-MAX was able to roll in this circumstance showing that the transmission had not locked itself in ‘park’.

2. If, like in the Focus, Ford states that the electronic key is still in the vehicle though not authorized to start the vehicle, the issue becomes that there is no door chime when the driver’s door is opened. Section 55.1.3 of the Regulation states that if the key is present in the vehicle and the driver’s door is opened, an audible warning to the vehicle operator must be activated.”


The agency asked Ford in an email to provide information regarding the 2013 Ford C-MAX’s certification to FMVSS 114, including test reports or video documentation of the door chime upon opening the driver’s door with the invisible electronic key still present in the vehicle.

This led the agency to expand the scope of its inquiry to look at other keyless ignition vehicles’ compliance with FMVSS 114, running a series of unofficial field tests on models manufactured by Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia in late summer of 2013. (The Safety Record obtained documents associated with the opening of this compliance investigation via a FOIA request and reported this story in March 2014.)

NHTSA’s field survey showed that many of the vehicles could be turned off, with the fob outside of the vehicle without automatically locking the transmission into Park, and could be rolled out of position. It also showed that there was no consistency among manufacturers, or even among models produced by the same manufacturer in terms of the types of visual warnings to drivers, the decibel level of audible warnings, or the scenarios under which a driver was warned that the key was not present or that the transmission was not in the Park position.

By September 30, Ford decided to recall 23,000 2012-2013 Ford Focus and 2013 Ford C-Max keyless vehicles to add an audible warning when the driver exited the vehicle.

The agency officially launched the larger compliance probe in January 2014. The agency’s Information Requests sought a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the system, when the electronic code that now constitutes NHTSA’s two-part key schema is purged from the system and the audio and visual telltales used to alert the driver when he or she has exited the vehicle. NHTSA also asked for complaint data and the safety information manufacturers provide to their customers about keyless systems.

The agency actually sent two IR letters. The first, sent on January 15, 2014 contained this sentence: “During testing it was determined that there may have been a non-conformance based on 49 CFR § 571.114 Section 5.1, and possibly Section 5.2, detailed below:”

A second version of the IR letter went out on January 28. The sentence alleging a non-compliance was removed.

In early June, the Office of Vehicle Compliance closed the probes with no findings of noncompliance. For example, in its closing report regarding potential non-compliances in Kia vehicles, Amina Fisher, the safety compliance engineer who conducted the investigation, notes:

“Each vehicle was started with the push button control and the transmission selection control was placed in Drive. The starting system was deactivated with the push button control and the key fob was removed from the vehicle. We verified that the vehicle was not in Park by pushing it.”

After conversations with Kia, NHTSA’s Office of Vehicle Compliance learns:

“The information and test data provided by Kia indicates the vehicles listed above meet all requirements of FMVSS No. 114. Regarding SS .2.1, if the vehicles’ starting system is deactivated when the transmission is not in Park, the starting system will be in the accessory position, the key (electronic code) has not been removed, and the transmission control is not required to be in Park. In addition, drivers are provided audible and, for some vehicles, visual warnings about the key and transmission position.”


And just like that – it’s over.


Where’s the @#&)+! Key?

Let’s unpack this.

One of the great downsides to electronic key systems is the transition of the key from a physical object to an invisible electronic code. We have complained to anyone who will listen that the average consumer doesn’t really understand this, and conflates the fob with the key, because you need the former to start the vehicle, and because manufacturers brand the fob with names like Smart Key, or the visual alerts in the vehicle say “Key not Detected” in reference to the fob. However, as we have noted many times, unlike a traditional key, the fob plays no role in turning off the vehicle.

The consumer doesn’t always realize where the “key” is, and it turns out neither did NHTSA or experienced compliance testers. In email exchanges, NHTSA officials discuss their inability to determine exactly where the “key” is, and Ford’s inability to demonstrate its location. In fact, Ford had to create a special tool to show when the key was actually still in the vehicle.

From a March 27 email from NHTSA to Ford:

“Patrick Culkeen from Ford called. He said that since our last conversation with them Ford has been working with their engineers in Germany to create a tool to determine if the key code is present within the vehicle. Ford is currently validating the tool to make sure it is functioning correctly. Per his understanding this tool plugs into the diagnostic port of the vehicle and gives readouts (to a computer with the software installed) saying whether or not the key code is present in the vehicle.”


From a May 23 email from NHTSA to Ford:

“A question came up regarding the electronic key code. Where in the vehicle’s system is this code housed after pressing the start button with the key fob inside the vehicle? Is there anything else you can tell me about how long the key code remains in the vehicle and/or under what circumstances?”


And maybe most importantly, some at NHTSA didn’t believe that these systems satisfied the intent of FMVSS 114. From an April 25 email:

“Eric [Britton of Ford] sent me their 114 reports. For SS.2.1 [in the Test Report 2] it specifies that in when the vehicle is turned off (and door opened) in all positions other than Park the status remained “Key Approved” as required. As I mentioned before, when they brought the device that determines the status of the key code to GTL, it also said the key was still in the vehicle when turned off (and door opened) in all positions other than Park. The instrument cluster always read “No key detected” during those tests. Christie lanetta [sic] [then senior trial attorney for Litigation and Enforcement at NHTSA, now at  King & Spaulding representing manufacturers] said that she wanted to discuss our Compliance Test results with Lloyd [Guerci, an attorney in NHTSA office of Chief Counsel], because though this vehicle may meet each individual requirement, it does not meet the intent of the standard (to prevent accidental rollaway).”

The Question of Question 9

One of the things we were most eager to learn in asking for the documents related to the investigation, was: How often are consumers reporting rollaways, carbon monoxide near-misses or injuries, or simply complaining that they forgot to turn off the vehicle, but the engine kept running, even though they had the fob?

Vehicle owners have been lodging such complaints (Vehicle Owners Questionnaires – VOQs) with NHTSA, which we know is a tiny sub-set of the customer contacts that manufacturers are getting directly.

Still capable of wide-eyed innocence as The Safety Record is, we thought that NHTSA would want to know, too. Question 9 in NHTSA’s January Information Request to the seven manufacturers asked for each vehicle model the number of consumer complaints about the starting system, including those from fleet operators; field reports, property damage and warranty claims, injuries, fatalities crashes and third-party claims.

This information would have been particularly helpful to the agency’s rulemaking efforts. Six years ago, the agency published a Notice of Proposed Rulemaking that would standardize engine termination procedures during panic stops (a legacy of the Toyota Unintended Acceleration crisis), and mandate loud auditory alerts to mitigate the rollaways and the carbon monoxide hazard. The Final Rule has been pushed off at least three times, and is still pending.

Among the many complaints the Alliance of Automobile Manufacturers had about the proposal was its basis. Manufacturers complained that it was illegal for the agency to use Vehicle Owner Questionnaires (VOQs) to promulgate a rule. Its objections ranged from the lack of information about each consumer complaint, the small numbers of VOQs, the difficulty in locating the VOQs mentioned in the Federal Register Notice, to the use of VOQs as a violation of the DOT’s data quality guidelines. A sample of the disdain dripping from AAM’s multiple submissions to the NPRM docket:

“In the case of keyless ignitions and the risks of carbon monoxide poisoning and rollaway from leaving the engine running when the vehicle is exited, the Alliance contends that the anecdotal reports referenced in the NPRM do not show that any new hazard is emerging, and thus cannot provide the safety justification for an FMVSS that is legally required under the statute.”


By February, NHTSA was revising Question 9, as it was deemed to be too broadly written. But by April 1, the agency lost all interest in the answer. Each manufacturer got an email like this: “This email is to inform you that we are no longer requesting a response to Question 9 of the FMVSS 114 IR letter dated January 28, 2014.”

In conclusion:

  • Neither consumers nor the agency can tell where the key is.
  • Ford has to invent a special tool to show where it is.
  • The invisible key may still be in the ignition unbeknownst to the driver, leaving the vehicle vulnerable to a rollaway.
  • At least one lawyer at NHTSA noticed that this violates the intent of FMVSS 114.
  • But, it’s all technically within the regulations, so never mind.
  • Consumers, it sucks to be you.


The Safety Record’s FOIA Journey

It took The Safety Record 831 days – two years, three months, and eight days – to get a response to our inquiry about the conclusion to the compliance probe. Running in the background was a dispute with the agency over whether The Safety Record would be considered a member of the news media for the purpose of assessing fees. Under the FOIA laws, commercial requesters can be charged for the number of hours a government agency spends gathering and reviewing the documents and for reproducing documents. Media requesters are only responsible for paying copying fees. NHTSA wanted to charge The Safety Record $2,070 to get the materials that served as the basis for this story.

The Safety Record actually started to examine what NHTSA had learned about the rollaway or carbon monoxide poisoning problems introduced by keyless ignition systems on October 30, 2013, when we submitted a FOIA request for any investigations the agency might have conducted into this issue. (Safety Research & Strategies had been studying the safety hazards associated with keyless ignitions since 2009 and had met with the agency in August 2010 to raise its concerns). So, it’s taken us basically about three years to report a simple story about a five-month investigation.

Our organization, Safety Research & Strategies, files many, many FOIA requests with a number of government agencies.

While we get adequate responses to some of our queries within a reasonable time frame, our FOIA requests to NHTSA are rarely promptly, simply or straightforwardly satisfied. Much of the delays are the result of the lack of FOIA staff at NHTSA. It’s a small handful of people trying to satisfy nearly 300 FOIA requests in a year. In its latest FOIA report to Congress, NHTSA reported starting the fiscal year with 77 pending requests, and received another 262 during that fiscal year. It finished with 249 responses and 90 pending.

Nonetheless, we usually find the first production wanting. After combing the documents, we find lots missing, such as documents referenced in emails or other documents, but not produced, or a suspicious dearth of communications with a manufacturer. We regularly file appeals. When we aren’t satisfied with the response, we take litigate, and that has proven to be a great motivator.

Since 2010, we have launched seven FOIA lawsuits – six against the Department of Transportation and one against the State of Florida seeking public records on a variety of safety issues – child safety seats, guardrails, unintended acceleration and keyless ignitions. All of these cases have been settled to our satisfaction. The four against NHTSA have ended with the agency agreeing to turn over more records and paying our fees, before a court judgement was rendered. (You can read about some of them HERE.)

The Safety Record, seeking information for stories to post on our blog, makes far fewer requests. Our newsletter and blog have been recognized as a news entity for FOIA purposes by other government agencies, such as the U.S. Consumer Product Safety Commission, and we have been credentialed as media by other entities such as the Society of Automotive Engineers. And while we have unsuccessfully sought media status from NHTSA in the past, this time, we took the DOT to court over it.

The suit was filed in July 2015, after the agency denied our administrative appeal to be considered a news entity. Two months later, the lawsuit was on hold. The agency said it would re-consider its decision, in light of another lawsuit, Cause of Action v. FTC, which made it pretty clear that The Safety Record would be considered a news entity for FOIA purposes. But, the agency denied our request a second time, and everybody got busy on their briefs.

We argued in U.S. District Court that The Safety Record satisfied FOIA’s five-part standard to be considered news media, and that we intended to use the information as the basis of a news story. The Department of Transportation argued that SRS and The Safety Record are virtually indistinguishable, and that the blog only served as a marketing tool for the business, so any FOIA request The Safety Record might make would necessarily be considered commercial use. 

Over 35 well-reasoned and somewhat pointed pages, Judge Jackson told the government that they had nothing. There were only two questions at issue: Did The Safety Record qualify under the terms set by FOIA as a news entity, and did The Safety Record intend to use the information for a journalistic purpose? The government, she noted, wisely tried to avoid the first question, since Cause of Action v. FTC made it pretty clear it was an argument they couldn’t win. And she called the government’s efforts to persuade her otherwise “utterly misguided.”

For example, here’s Judge Jackson’s take on the issue of whether The Safety Record uses “its editorial skills to turn raw materials into a distinct work”—The Safety Record again easily passes muster. “The Safety Record blog and newsletter are replete with opinionated articles that report on and editorialize about information relating to regulatory developments at NHTSA and other agencies.” (Opinionated – that’s definitely us.)

She rapped government lawyers for characterizing everything in The Safety Record published as “commercial speech,” and dismissed their evidence – an article talking about a FOIA request SRS submitted and another announcing a new staff member – as outliers.

“This Court also rejects DOT’s contention that Liberman’s publication of FOIA information in The Safety Record is necessarily a “commercial use” because the content of The Safety Record expressly promotes SRS’s services. (See Def.’s Mem. at 19–20.) This line of attack is substantively indistinguishable from DOT’s argument that The Safety Record is an advertising vehicle for SRS rather than a news media entity (see id. at 23–26; Def.’s Reply at 13–16), and thus, once again, DOT has veered away from the evaluation of “use” that is the proper focus of the “commercial use” analysis and wandered back into the thicket of its misguided concerns about the status of this records requester.” (Thicket of misguided concerns – we love that.)

Finally Judge Jackson chastised the government for failing to offer any evidence that The Safety Record sought this information for commercial use. In fact, she noted that the DOT said in oral arguments: “I have no reason to think it is not in good faith what they say they plan to do with it,”

“Third, and finally, to the extent that DOT’s requester-burden argument is actually a veiled attack on Liberman’s veracity (Tr. of Oral Arg. at 22 (counsel stating that Plaintiff “purport[s] they’re going to” publish the requested information on The Safety Record blog)), DOT has done little to demonstrate that such doubt is warranted. The Safety Record has a long history of requesting documents under the FOIA and then disseminating them to the public through its articles, and this Court sees no basis in the record for drawing an inference that Liberman did not, in fact, intend to do the same when she made the request at issue here.”


Our longtime FOIA attorney, David Sobel, noted the painstaking nature of Judge Jackson’s opinion:

“Judge Jackson’s careful and thorough decision makes clear that the agency had no basis for its refusal to recognize The Safety Record as an established news entity,” he said.

This memorandum opinion – filed on the last day of 2016 — does not end the matter. The government has 60 days – but, really, no basis – to appeal the judge’s decision.


To read more of our coverage on keyless ignition:

Keyed up With Anticipation: Smart Key Hazards Still Unresolved

The Keyless Ignition Litigation Solution

Another CO Smart Key Death… and what Happens when Smart Keys Collide?

A Funny Thing Happened on the Way to My Car…

Stupid Tricks with Smart Keys




Preventable Ford Airbag Death Touches off Latest Recalls

Another day, another episode of the long-running soap opera, All My Airbags. Last week, on the heels of the tenth death and the eve of an historic blizzard, the National Highway Traffic Safety Administration announced that another five million vehicles with defective Takata airbag inflators will be recalled. This recall will include driver’s side SDI-type airbag inflators in Ford vehicles.

We are now moving into the eighth year of recalls for a defect that first asserted itself to the Japanese supplier and its OEM customers in 2003. If you have become lost in the maze of inflator acronyms, Congressional hearings, rolling recalls and a Chinese menu of 13 root cause explanations, The Safety Record will draw you a map.

Takata combined a chemically volatile propellant with crappy manufacturing processes and little quality control to build a slow-release IED. Takata made many versions of its inflators, single stage, dual-stage, and side inflators, each with its own acronym and recall variations.  But they all have enough commonalities to be dangerous.

NHTSA, Safety-Crisis-Enabler-In-Chief, first investigated the problem in 2009, with a Recall Query probing Honda’s decision to radically expand its first, limited recall. But, the agency took Takata’s first explanation, and probed no further, despite Honda’s decision to launch second, third, and fourth Takata airbag recalls. It only took five more years before NHTSA officially declared itself unsatisfied with Takata’s root cause analyses. In 2014, the agency opened a Preliminary Evaluation and eventually began conducting its own tests. Meanwhile, the cancer has spread to 14 manufacturers and affected about 24 million vehicles, a number that is about to rise. In 2015, NHTSA decided this fiasco was too big to let the OEMs handle individually, and took over the whole show.

And that brings us to today. Despite the mind-numbing volume of replacement campaigns and an unprecedented regulatory intervention, the death of Joel Knight, a 52-year-old South Carolina man, demonstrated that all of the defective airbag inflators have not been added to the recall roster (let alone actually replaced) – yet. Knight died on December 22, at the wheel of a 2006 Ford Ranger, when he struck a cow in the roadway. The minor crash deployed the airbag, which ruptured with such force that a large metal shard severed his spinal cord. Knight should have walked away from that crash with nothing more than a story to tell at Christmas dinner.

The driver’s side airbag in Knight’s 2006 Ford Ranger was an SDI – a single-stage Smokeless Driver Inflator. This iteration had already ruptured with deadly force on July 27, 2014, killing a pregnant woman in Malaysia in her 2003 Honda City vehicle. That event caused Honda, and then Toyota, to recall in November 2014 more than 200,000 vehicles with SDI inflators in at least 61 countries.  Ford was the only OEM in the U.S. that had SDI inflators in a limited number of vehicles that included the 2004-2006 MY Rangers. But Ford did not join Honda and Toyota in recalling all of its SDI-inflator equipped vehicles, and the record shows an OEM with a distinct lack of urgency.

June 2014 – Ford launched a voluntary parts collection at NHTSA’s behest for inflator inspections and testing in four high humidity areas. Only four models – the 2004 Ranger (passenger-only); 2005-2007 Mustang (driver only); and 2005-2006 GT (passenger and driver) – originally sold in four locations – Florida, Hawaii, Puerto Rico, and the U.S. Virgin Islands — were included.

November 2014 – Again at NHTSA’s request, Ford added the SDI driver’s side inflators in 2004-2005 Rangers made in certain date ranges and originally sold in Florida, Hawaii, Puerto Rico, and the U.S. Virgin Islands.

December 2014 – Ford expanded its campaign for passenger inflators to include vehicles in Guam, Saipan, American Samoa, and parts of Alabama, Mississippi, Louisiana, Texas, and Georgia. They also launched a national recall for the PSDI-4 driver’s side inflators for the GT and Mustang vehicles which share some components with the SDI.

May 2015 – Ford expanded the Mustang driver recall to 2005-2014 model years, because Takata said all PSDI-4 inflators with batwing shaped propellant wafers could be dangerous.

June 2015 – Ford expanded its regional recall of 2004-2006 Ranger passenger inflators into a nationwide recall.

The sharp-eyed reader will notice: Ford never recalled the 2004-2005 MY Ranger with the SDI inflator – the same inflator type that ruptured in July 2014 with fatal consequences in Malaysia – beyond Florida, Hawaii, Puerto Rico and the U.S. Virgin Islands. The 2006 Ford Ranger with the same SDI inflator was never recalled at all.

And if that wasn’t bad enough, consider this: Honda and Toyota told NHTSA in November 2014 that the root cause of SDI inflator ruptures was Takata’s failure to control the propellant’s exposure to moisture during the manufacturing process. In fact in 2013, five manufacturers – including Toyota and Honda – named moisture exposure during manufacture as a root cause in  passenger inflator recalls. Meanwhile NHTSA, and Ford in numerous recall submissions and amendments, linked the problem to high absolute humidity in certain regions, and a scenario in which the defect presents itself after years of exposure to humidity that degrades the propellant, making it more vulnerable to over-pressurization when ignited.  

On the one hand, you’re saying: Why didn’t Ford recall all of its vehicles with these inflators? It wasn’t that many. On the other hand, Ford’s saying: Why bother? It’s not that many vehicles. What are the odds? Unfortunately, Joel Knight found out.

Many want to claim that the Takata crises was precipitated by a rogue supplier that hid information and altered data on its product problem. But this scenario, which now has become the largest recall in history, could not have unfolded for more than a decade without the OEMs enabling it and without a federal agency failing to question and investigate the many red flags set by years of rolling recalls and shifting explanations.   


NHTSA’s “Tough” Stance on Ford Recall – Eight Years Too Late

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Well, the agency’s done it again. No longer can reporters call a $17.3 million civil penalty against a manufacturer the “largest fine in agency history.” Nope, now it’s the new normal. This time it was Ford who got rapped with NHTSA’s multi-million dollar automaker swatter, over failing to recall 2001-2004 Ford Escape and Mazda Tribute vehicles to correct an earlier recall repair to the accelerator cable that actually exacerbated the original problem.

Did you follow that? If, not, don’t worry. We’re gonna lay it out in all of its glorious detail.

Like just about everything NHTSA does these days, the path to the fine follows a long roundabout route that reaches its crescendo in a high-profile death. In this case it was Saige Bloom, the 17-year-old driver of a 2002 Escape who died in an unintended acceleration crash in Payson, Arizona on January 27, 2012. Bloom was driving her new used car home, with her mother following in another car, after they purchased the Escape. Bloom lost control of the vehicle, which rolled over. Bloom died of her injuries in the hospital.

Clarence Ditlow, executive director of the Center for Auto Safety, which petitioned the agency to open a Recall Query after Bloom’s death, says that the monetary penalty didn’t go far enough.

“To me, if there was ever a case for a criminal penalty this was it. It meets the requirements of the TREAD act – there was a death,” Ditlow said “In fact, there have been at least three deaths. Who knows how many there are, in reality? There’s an 8-year gap between the first recall and the fine.”

But, as these things tend to go, there won’t be anything as shocking as a criminal prosecution, just a blip on the bottom line. Ford denied any responsibility in the settlement agreement. To quote: Continue reading

Ford Unintended Acceleration Hopping that Class Action Train

It’s Ford’s turn to take a ride down the Unintended Acceleration (UA) class action track. The civil lawsuit, filed in the southern district of West Virginia, with plaintiffs from 14 states, seeks economic damages from any Ford vehicle manufactured between 2002 and 2010 equipped with an electronic throttle control system but not a brake override system. This civil lawsuit seeks economic damages only on behalf of Ford owners and lessors who relied on Ford’s representations of vehicle safety in choosing their products.

As in the recently settled Toyota MDL, the remedy is a brake override system. Hopefully Ford will design one that works in most UA scenarios – unlike Toyota’s version, which does not override the command to accelerate if the brake is already depressed when the UA occurs or at low speeds. (Sorry, all you plate-glass-breaking, drive –through, curb-hopping Toyota parkers who have the misfortune of experiencing a UA event while riding the brakes into a parking spot.)

While Toyota has gotten most of the ink on UA, it is hardly the only automaker grappling with electronic malfunctions in its vehicles. A casual survey of some of pending or recently retired National Highway Traffic Safety Administration investigations and news stories about wild terrifying trips on our nation’s highways shows that Hyundai, Mercedes Benz, Honda, Ford and others have been associated with Unintended Acceleration and Unintended Braking.

Ford, you may recall, was the target in 2011 of Judge William T. Swigert’s ire for lying to the court, the National Highway Traffic Safety Administration, as well as its own expert witnesses on its knowledge of UA. Swigert, Senior Judge of the Florida’s Fifth Judicial Circuit, set aside a jury verdict in favor of Ford in Stimpson v. Ford, because the automaker defrauded the court by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles. Continue reading

Fixated on Floor Mats

Last month, NHTSA kicked a two-year-old investigation into unintended acceleration in Ford Fusion and Mercury Milan vehicles up to an Engineering Analysis. The suspected defect – floor mats that can entrap the accelerator pedal. According to the National Highway Traffic Safety Administration’s Office of Defects Analysis:

“A heel blocker in the floor pan provides a platform that may lift an unsecured mat into contact with the pedal. Ford introduced new pedals as a running change early in model year (MY) 2010 vehicles. Analysis of complaints received by ODI and Ford show elevated rates of pedal entrapment incidents in MY 2008 through early 2010 production vehicles. Incidents typically occur following hard pedal applications to pass slower traffic or when merging into faster traffic. Drivers allege continued high engine power after releasing the accelerator pedal and difficulty braking, including reports that the incident was controlled by shifting to neutral or turning the engine off. Drivers and service technicians reference observing evidence of mat interference or note unsecured Ford or aftermarket all weather floor mats in post-incident inspections.”

This action was followed by a high-profile $17.4 million civil penalty that the agency levied against Toyota for failing to launch a timely recall for floor mat interference involving Lexus RX350 and RX450h vehicles. This was a NHTSA-influenced recall of mysterious origins since the Vehicle Owner’s Questionnaire complaints didn’t seem to support a floor mat interference defect trend (see A Defect Remedy Delayed) – although the Lexus RX has certainly been plagued with all manner of sudden acceleration complaints.

These two events sent us digging through the recall and investigation archives to get a better handle on the greater context. There seems to have been an awful lot of floor mat-related brouhahas in the last few years. It seemed odd that floor mats – which exist solely to provide a barrier between muddy shoes and the carpeted floor pan – should suddenly be so troublesome. In the old days, rubber floor mats were rarely secured with retention clips, as they are now. In one of its responses to the 2010 Ford Fusion Preliminary Evaluation, the automaker reminded NHTSA: Continue reading

Ford Steering Problems Come into Focus

Headed to the top of the Early Warning Reporting charts with a bullet: 2012 Ford Focus steering failures. In the last four quarters, which includes the first half of 2012, there have been about 13 injury claims. Randy Whitfield of Quality Control Systems Corp., who regularly trawls this data, says that it is unusual to see so many steering-related claims in the 2012 model year, given the total for this very large fleet – one of the top-sellers for 2012 – so far.

The 2012 Ford Focus, is an all-new redesign, with – you guessed it: Electronic Power-Assisted Steering (EPAS). Electronic Power Steering (EPS) is one of our favorite automotive technology advancements plagued with failures when introduced – just ask Honda, GM and Toyota. All three have battled EPS malfunctions. The latter two prompted defect investigations which prompted one Technical Service Bulletin and one recall. The EPS issue is yet another example of automotive technology advancing without functional safety standards and beyond the National Highway Traffic Safety Administration’s ability to regulate or enforce.

A Ford video on the Focus EPAS purrs about how the sensors achieve steering “that feels just right” and “helps keep you firmly planted and in control.” (Watch

Perhaps Ford’s EPAS keeps drivers planted a little too firmly – once the steering goes, it’s pretty hard to turn the wheel, according to owner reports. Consumer complaints show that the problem is a right-out-of-the-box phenomenon, with drivers generally reporting that within a few minutes of starting operation, power steering fails and Steering Assist Fault displays on the dash. (There’s another category of high-speed wander-type complaints, too.) Some had their first loss-of-steering-control incident within the first week of ownership, and many have had multiple occurrences. The failure usually occurs at low speed, and yet, there are situations in which losing steering is mighty dangerous, like when turning into traffic. About 20 owners of 2012 Focus vehicles have lodged complaints with the National Highway Traffic Safety Administrations. One West Virginia owner reported: “While backing out of a driveway the steering system failed. I rolled down a hill and into a wooded area. The system gave an indicator light of steering system failure and also the braking system did not engage. I lost complete control of the vehicle.” Continue reading

Ford Offers “False” Testimony; Alliance Swears to It

From the annals of chutzpah: On March 12, the Alliance of Automobile Manufacturers filed a friend of the court brief to head off a potentially disastrous breach in the auto industry’s carefully constructed dam around the causes of unintended acceleration (UA). To wit, there are no electronic causes of unintended acceleration. This phenomenon, as the industry and the National Highway Traffic Safety Administration would have it, is solely caused by drivers hitting the wrong pedal and mechanical causes, such as pedal entrapment and bound Bowden cables. Electronic systems cannot have electronic malfunctions that can go undetected or cause UA, got that?

William T. Swigert, the Senior Judge of the Florida’s Fifth Judicial Circuit, however, had no respect for industry/government mythology. He set aside a jury verdict in favor of Ford Motor Company, after deciding that Ford’s victory in Stimpson v. Ford was won with “false and misleading” testimony and defrauded the federal government to boot, by claiming that it knew of no other cause of unintended acceleration than driver error and concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles. (See How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today) Continue reading

Judge Finds Ford Fraudulently Concealed Electronic Causes of Unintended Acceleration

The Senior Judge of the Florida’s Fifth Judicial Circuit has set aside a jury verdict in favor of Ford Motor Company, blasting the automaker for defrauding the court and the National Highway Traffic Safety Administration by claiming that it knew of no other cause of unintended acceleration than driver error and for concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles.

In his withering decision, Senior Judge William T. Swigert of the Fifth Judicial Circuit in Sumter County, Florida ordered a new trial in which the jury would only consider compensatory and punitive damages in Stimpson v. Ford. The post-trial order is a victory for Attorney Thomas J. Murray, of Murray & Murray based in Sandusky, Ohio, who represented the Stimpson family.

The case concerned an October 28, 2003 crash which left Peggy Stimpson permanently paralyzed. Her husband alleged that he was unable to stop the couple’s 1991 Ford Aerostar, when it suddenly accelerated from their carport as he put the van into gear. The Aerostar hurtled more than 100 feet, and crashed into a utility pole. Continue reading