Tag: keyless-ignition

Toyota Has the Most Keyless Ignition Related Deaths, But Takes no Action

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EDITOR’S NOTE:  Five days after publication of this article Toyota announced its plans to add auto shutoff and auto park features for 2020 models to prevent CO deaths and rollaways – 13 years after first death and 7 years after Ford and GM.

Last month, Dr. Sherry Hood Penney, 81, and Dr. James Livingston, 88, died of carbon monoxide poisoning. The couple had inadvertently left their keyless ignition 2017 Toyota Avalon running in the attached garage of their Sarasota condo. The car ran until it was out of gas and its battery died.

Penney and Livingston were distinguished in life – Dr. Penney’s resume included glass-ceiling shattering stints as interim president at SUNY Plattsburgh, the first woman at SUNY to serve as vice chancellor of academic programs, policy and planning at SUNY, and interim president of the UMass system. Dr. Livingston was a retired MIT professor, a research physicist at General Electric, and a global expert on magnets.

They died of indifference.

Toyota has the most keyless ignition carbon monoxide deaths. It had the first publicly acknowledged deaths and, now the most recent deaths. Yet, Toyota has done nothing to implement a simple, inexpensive software solution that some other major automakers introduced seven years ago.

No Manufacturer Knows the CO Keyless Ignition Hazard Better Than Toyota

The Penney-Livingston deaths bring the total of the known Toyota keyless ignition carbon monoxide fatalities to 17, with an additional 18 CO injuries. Deaths linked to keyless Toyota or Lexus models now account for 47 percent of the 37 known deaths.

Carbon monoxide deaths associated with keyless ignition vehicles represent the tip of the safety problem. The vast majority of keyless ignition vehicle owners have accidentally left their engines running at one time or another, but most incidents result in a metaphorical knock to the head – “I can’t believe I didn’t turn off my engine!” moment. In order for his error to cause injury and the death, the vehicle must be parked in an enclosed space, adjacent to an occupied living space, it must have a full, or nearly full, tank of gas, and there must be a stretch of time when interruptions from others outside the home are unlikely.

Since these deaths and injuries are not tracked in any methodical way, and because not all keyless ignition carbon monoxide deaths make the news, it is likely that there are more deaths and injuries than are publicly known.

The first known Toyota keyless CO deaths occurred in April 2006, David Colter, 89, and his 70-year-old wife Jeanette, of Port St. Lucie, Florida, were found dead of carbon monoxide poisoning in their home, after leaving their 2006 keyless ignition Avalon running. According to their son-in-law, Jeanette Colter had apparently already had one incident in which she left her Toyota running in a parking lot; and family members warned her about forgetting to turn off the car with the quiet-running engine.

“That car was so quiet, it was hard to tell if it was running or not,” Terry Wilson said in a news article. “You don’t even need a key to start it. You just push a button to turn it off and on.”

Three years later, Mary Rivera, a former college professor, left her Lexus ES 350 idling in a garage beneath her homes. Her 79-year-old partner, Ernest Codelia Jr., died of carbon monoxide poisoning. Rivera survived, but suffered permanent brain damage. The incident hit the news in November 2010, when the victims filed a civil lawsuit against Toyota. By then, there was another Toyota keyless ignition death and injury. In August of that year, 29 year-old Chasity Glisson of Boca Raton, Florida, parked her Lexus IS250 in garage to make room for boyfriend’s vehicle, and forgot to turn off the engine.  She later collapsed in bathroom on the 3rd floor, where her boyfriend, Timothy Maddock, found her, and passed out himself. The pair was found the next day; Glisson died of carbon monoxide poisoning. Maddock was critically injured and hospitalized for ten days.  An investigation revealed that the carbon monoxide came from the Lexus in the garage, which Glisson inadvertently left running.

In 2010, Safety Research & Strategies reached out to the National Highway Traffic Safety Administration’s chief counsel’s office and rulemaking engineers to alert the agency to the  rollaway and carbon monoxide hazards of keyless ignitions.

In 2011, NHTSA raised the profile of Toyota incidents in a Notice of Proposed Rulemaking to amend Federal Motor Vehicle Safety Standard 114, which regulates key systems. In a half-baked attempt to address the carbon monoxide hazard, the agency proposed mandating louder warnings. In explaining its rationale, the NPRM specifically made examples of the Glisson incident and a consumer complaint involving a close call from a 2007 Lexus LS460 owner, who inadvertently left his vehicle running in his garage, but was awakened at 2 a.m. by a carbon monoxide detector, and averted serious injury. The rulemaking was roundly criticized by industry and advocates alike, but for different reasons. Industry was opposed to the louder warnings solution for fear of annoying customers, chided the agency for proposing a rule based on consumer complaints, but also tried to block it from conducting some human factors research that would serve as the basis for rulemaking. Consumer advocates argued that auditory warnings were much less effective than a simple automatic engine idle shutdown mechanism and the agency had no data to support the effectiveness of the proposed audible alert.  (NHTSA has not advanced the rulemaking since.)

Since then, Toyota owners have suffered injuries and fatalities from carbon monoxide poisoning at regular intervals. In the first five months of 2019, there have been three known deaths caused by Toyota keyless ignition vehicles.

In February, Russell Fish, a 68-year retired member of the U.S. Army, and the National Security Administration from Hanover, Pennsylvania, and the family dog, Angel, died when Fish parked his wife’s 2011 keyless ignition Toyota 4Runner in their garage and inadvertently left the engine running. As Fish retired to his bedroom, the vehicle continued to run for nine hours until the temperature in the garage rose to levels high enough to explode the aerosol paint and insecticide cans on the garage shelves; the dash warped and the grill of the vehicle melted; and Fish slipped into death from carbon monoxide poisoning. He was found the next day by the family’s pastor, who they had check on Fish when he didn’t answer his phone.

“My research has uncovered this has been a known issue for some length of time and Toyota has had (and failed to take) the opportunity to do the right thing by correcting it,” says Fish’s oldest son, Nathaniel Fish of Phoenix, AZ. “They have failed to ensure that no other parent has to sit their children down as they’re getting ready for a party and tell them that the last time they saw their pappy was the last time; no pastor will need to find the body of one of his parishioners lying in bed in a stiflingly hot house filled with exhaust; no wife will need to get that call, while visiting grandkids, that her husband and life partner won’t be there to embrace her and welcome her home when she returns; no grandson will have his senior trip forever marred by the memory of receiving the startling news that his pappy had died from something that could have been prevented.”  

Older Drivers, Ingrained Habits

Drivers of every age can and do inadvertently leave keyless ignition vehicles running.

The design makes it easy to do. In a keyless ignition system, the key is no longer a physical object. It is an invisible code, transmitted via radio waves to and from the plastic fob and the ignition module in the vehicle. The fob must be in the vehicle to start the engine – much like a traditional metal key, but unlike a metal key, it plays no role in turning off the engine. Driver’s must execute series of actions – shift the vehicle’s transmission into PARK, push the START/STOP button and open the driver’s door, to fully remove the “key” from the ignition. Drivers exiting their vehicle with the keyless ignition fob – which manufacturers repeatedly call the “key” – believe that because they have the “key” the engine is not running. And because the fob is a proximity device that can only start the vehicle when it’s inside of the occupant compartment, many drivers believe the reverse is true – the car won’t continue to run – and if it did it would time out, like other features in vehicles including the radio. 

With a traditional metal key, a driv er cannot remove the key from the ignition without shifting the transmission into PARK and turning off the engine. Thus, the presence of the physical key outside of the vehicle provides drivers with the status of the vehicle – the engine is off, the transmission is locked in PARK – it’s a strong visual and tactile reminder. If your key was in your pocket or hanging from a hook in your kitchen, there is no way the engine could still be running or the transmission in a gear other than PARK. Those possibilities had been engineered out by regulation. That is not the case with a key fob. You could be miles away with the fob in your hand, and your vehicle could be idling away or in still in DRIVE.

It’s obvious that manufacturers conducted no human factors testing to see how drivers would perceive the new system, and what human errors the design itself would induce, because automakers did next to nothing to transition drivers to this radical shift in their relationship with the new-fangled “key.” Rather, manufacturers exacerbated the propensity for error by telling vehicle owners that the plastic fob was the key, branding their systems with names like “Smart Key” or “Intelligent Key” and depicting the fob in owners’ manuals and on the instrument panel as the “key.” They relied on auditory and visual warnings that were often never heard or seen by the driver, or, in the former case, using tones that were like other in-vehicle telltales that failed to distinguish the hazard and status of the key and lasted only seconds.

Combine these factors with today’s nearly silent engines and dashboards, headlights, radios and other electrical accessories that stay enabled for a short period after turning off the vehicle, and it is now super-easy to leave a vehicle running.

Now let’s suppose that you used a traditional metal key for the vast majority of your decades as a driver. Your key behaviors are pretty ingrained. Throw in some hearing loss and background noise, like a garage door going down to further mask that quiet engine and what are the odds you might make an error?  

Toyota Sure Loves the Mature Market’s Money

The Livingston/Penney vehicle was a 2017 Toyota Avalon, intentionally purchased, according to Mrs. Livingston’s son Michael, because “it was such a safe car.” Safety, along with quality has long been key to Toyota’s brand, and the Avalon, its full-sized sedan has long been a favorite of older car buyers.  

Eight of the Toyota CO deaths occurred in five incidents involving an Avalon.

In 2005, the year before the Colters died, “the median age of the Avalon buyer was just under 60, an age that used to signal that a consumer group – and the brand they were buying – had one foot in the grave,” according to a story published in Ward’s Auto.

Rather than disdain the aged buyer, Toyota embraced them. That same story quoted Don Esmond, Toyota Motor Sales senior vice president and general manager:

“That’s all changed now, says Esmond. “While the goal of most auto manufacturers these days is to lower the median age of their buyers as much as possible, we are quite content with the mature age profile of the Avalon buyer. To be honest, I don’t think I would have been comfortable with that number, when we launched Avalon, 10 years ago.”

Over the last 14 years, the average age of an Avalon buyer went up. Today’s “average Avalon buyer today is 66 years old, a few years older than the segment average,” according to a Forbes story published in April 2018. But, again, Toyota is bullish on older buyers. While many industry observers have written the obituary of the full-sized sedan, noting that younger buyers favor SUV crossovers, the April 2018 Forbes story marvels at Toyota’s counter-punch in unveiling a new 2019 Avalon: “As sales in the segment are sinking, several other automakers are discontinuing their big sedans and the average large car buyer is 64 and not getting any younger. Thanks to the huge baby boom populace, it will be some time yet before the market for big sedans disappears. Toyota is betting that with the redesigned it can keep its core Avalon audience happy and attract buyers who previously favored other models.”

And Toyota is supposed to be making its vehicles more age-friendly via the partnership between Toyota’s Collaborative Safety Research Center and the MIT AgeLab, which studies things like “understanding how drivers respond to the increasing complexity of the modern operating environment.”

Apparently, that effort doesn’t extend to preventing carbon monoxide deaths its keyless ignition system vehicles.

Nathaniel Fish says part of his disappointment in Toyota is the irony of its marketing keyless ignition systems to older consumers.  

“In fact, in show rooms they actively market this push button technology as a feature for older drivers who might struggle with inserting a key and turning it…to a demographic that is already conditioned through literally decades of driving cars that require a key to both turn their vehicle on and turn their vehicle off, a demographic that is often suffering hearing loss and cannot hear the increasingly quiet engines still running as they exit their vehicle while the noisy garage door is closing, to think of their “key fob” as just an easier key, without which they cannot start their car,” he says. “And so, reasonably, they view this fob as a key and treat it as such when they take it with them as they leave their vehicle, believing the vehicle cannot run without the ‘key fob’ nearby

It Will Take an Act of Congress

In February, U.S. Senator Richard Blumenthal (D-CT) introduced the Protecting Americans from the Risks of Keyless Ignition Technology (PARK IT) Act, which would require NHTSA to amend and finalize the 2011 proposed rulemaking a rule that vehicles automatically shut off after a period of time to prevent carbon monoxide poisoning, and a rule that sets a performance standard to prevent rollaway.

Blumenthal’s bill (S.543) now idles in the Commerce, Science and Transportation Committee, awaiting a Republican sponsor before Chairman Roger Wicker (R-Miss.) will advance it. Meanwhile, U.S. Representatives Jan Schakowsky (D-Ill.), Darren Soto (R-Fla.), Seth Moulton (D-Mass.) and Joseph Kennedy (D-Mass.) introduced a House version (HR.3145) of the PARK IT Act yesterday.

Specifically, to prevent rollaway the PARK IT Act would require the Secretary of Transportation, within two years of enactment,  to issue a final rule requiring manufacturers to install technology in motor vehicles equipped with keyless ignition devices and automatic transmissions to prevent movement of the motor vehicle if  the transmission of the motor vehicle is not in the park setting; the motor vehicle speed is low enough to establish that it is stationary; the driver’s door is open and driver’s seat belt is unbuckled; and the service brake of the motor vehicle is not engaged. This is the same algorithm Fiat-Chrysler Automotive employed when it recalled Jeeps and other Chrysler vehicles to add updated software to prevent rollaway.

“Basic safety standards and technology can protect owners of keyless ignition cars from the threat posed by carbon monoxide poisoning and rollaways. NHTSA’s failure to act is indefensible and has tragic and fatal consequences. Congress must move swiftly to pass the PARK IT Act and compel NHTSA to do its job,” said Senator Blumenthal.

Accompanying Blumenthal at his April announcement in Hartford, was Suzanne Zitser.  In January 2013, Zitser, a Connecticut attorney, wrote a heartfelt letter about the carbon monoxide death of her 86-year-old father, Gerald Zitser, who owned a 2006 Avalon, to any entity she thought might be interested – the U.S. Department of Justice, the U.S. Consumer Product Safety, and Toyota.

Gerald Zitser, she wrote, still rode his bicycle around town. He loved his Yankees and his Toyota. He took meticulous care of the car, and never missed an opportunity to follow his favorite baseball team. On June 28, 2012, Gerald Zitser did his shopping at the local Publix, parked his Avalon in his garage, and took his groceries into the house. He closed the garage door, but inadvertently failed to shut off his engine. Later that evening, Zitser settled into his recliner to listen to the Yankees take on the Chicago White Sox. He never woke up. (The key fob was found in his pocket.)

“Had there just been an automatic shut off system that kicked in after a preset time when their [sic] was no weight in the driver’s seat, much like the airbags in the passenger side, then this senseless, tragedy would have never occurred,” she wrote.

His youngest daughter received replies from the DOJ, the CPSC and Toyota. The latter response included a form letter assuring her “It is through correspondence such as yours that we are able to continue to improve our services.” She got a case number, and a second round of correspondence from Toyota in which the company expressed its willingness to conduct a vehicle inspection, “However, the danger of carbon monoxide poisoning from an internal combustion engine left running in an enclosed space has been well recognized for years in the automotive industry and by the public at large,” wrote Toyota Motor Sales’ Curtis Hamilton. “Unfortunate incidents such as the one that you describe in your letter, while rare, have also occurred with mechanical key systems and are not dependent on whether the vehicle involved uses a keyless ignition system.”

In March 2013, Zitser wrote back, observing that Toyota had missed her point entirely – an engine shutdown device could be implemented in any vehicle regardless of ignition type – and she encouraged Toyota to stand with safety:

“Again, I thought by sharing this tragedy with Toyota, it might take the opportunity to come up with a very simple solution that would prevent another accidental death – by installing an automatic shut off or kill switch. I hope you will reconsider this letter and not only be a leader in the automotive industry but equally important be in the forefront as far as the safety of the consumers of your product,” Zitser wrote.

By then, it was too late for Toyota to be the safety leader in using an automatic engine shutoff mechanism to prevent carbon monoxide deaths. In calendar 2012, both Ford and GM released MY 2013 keyless vehicles with automatic shut-off systems. And in 2017, Chrysler has added a similar feature to its 2018 Pacifica hybrid mini-van,

Zitser remains baffled that Toyota has refused to address the issue, given its long history of knowledge about the problem and the deadly consequences.

“I would never, ever, ever buy a Toyota,” she says. “The number of Toyota deaths in just this past year is staggering, and I just can’t believe they are not aware of what the other automakers have done to address this problem. I just don’t understand, first, why that the PARK IT bill hasn’t passed and second of all why Toyota has done nothing.”

General Motors Quietly Installs Keyless Engine Shutoff

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In 2011, when the National Highway Traffic Safety Administration was considering countermeasures to the carbon monoxide hazard introduced by keyless ignition systems, it flat out rejected the idea of an automatic engine shut-off.  The agency argued that there was no good way to come up with a rule that would include a set time for the engine to shut itself off if the driver exited with the fob and inadvertently left the engine running.

“There are scenarios, such as leaving pets in the vehicle with the air conditioning or heating system on while the driver shops or is at a restaurant, where an automatic shut off of the propulsion system would have adverse results. It is our understanding that some drivers may stay in their vehicles for hours, for example, to sleep, with the air conditioning or heating system on. For the pet owner or the person staying in the vehicle for an extended period, it would be inconvenient if the propulsion system had to be restarted every 15 minutes or so,” the agency wrote in the NPRM.

Of course, the agency could have come up with a performance standard in which an idling vehicle in an enclosed space could only generate so many ppm of CO – whatever could lead to dangerous levels seeping into an adjoining structure – or some variant. But never mind – that’s not the news here. By Jove, now two major automakers have figured it out, over-heated puppies and car-nappers notwithstanding. And one of them – General Motors – kept this information from its customers for four years!

Both Ford and GM first implemented automatic engine shut down features in some of their MY 2013 vehicles.

According to owner’s manuals, Ford’s Automatic Engine Shutdown system automatically “shuts down the engine if it has been idling for an extended period. The ignition also turns off in order to save battery power. Before the engine shuts down, a message appears in the information display showing a timer counting down from 30 seconds. If you do not intervene within 30 seconds, the engine shuts down. Another message appears in the information display to inform you that the engine has shut down in order to save fuel.”

GM’s Extended Parking feature works this way in the 2015 Chevy Tahoe:

“Extended Parking It is better not to park with the vehicle running. If the vehicle is left while running, follow the proper steps to be sure the vehicle will not move and there is adequate ventilation. See Shifting Into Park 0 259 and Engine Exhaust 0 261. If the vehicle is left in P (Park) while running and the Remote Keyless Entry (RKE) transmitter is outside the vehicle, the vehicle will turn off after one hour. If the vehicle is left in P (Park) while running and the RKE transmitter is inside, the vehicle will run for two hours. At the end of the second hour, the vehicle will turn off. The timer will reset if the vehicle is taken out of P (Park) while it is running.”

Based on GM technical service descriptions the earlier versions of Extended Parking allowed the vehicle to run in two 2.5 hour cycles, for a total run-time of five hours – if the fob was still in the vehicle while the engine was left running. The automaker eventually reduced it to two one-hour cycles in some models and two 1.5 hour cycles in others.

Ford didn’t exactly make a public relations splash when it added the automatic engine shut-off in the 2013 Ford Edge, Ford Fusion Titanium and Titanium Hybrid and the Lincoln MKZ, but at least it included a description of the safety measure in the owner’s manuals.

GM, according to service descriptions, implemented an engine shutdown feature in the 2013 Buick LaCrosse, Verano and Regal, the Chevy Cruze and Malibu and the Cadillac ATS, SRX, and XTS, without so much as a whisper to drivers. GM continued to expand the application of what it eventually branded the “Extended Parking Feature,” until all of its vehicles had it in 2017. Then, GM included a description in its owner’s manuals. 

Why the big secret?

Curiouser and Curiouser

Let’s push some timelines together.

In February 2009, Mary Rivera, a former college professor, suffered permanent brain damage when she unknowingly left her Lexus ES 350 idling in the garage beneath her home.  Her partner, Ernest Cordelia, died of CO poisoning.

(SRS began researching this issue in 2009. In August 2010 we met with the agency to express our concerns, and have submitted comments to the 2011 FMVSS 114 docket. SRS repeatedly emphasized to NHTSA that “the introduction of electronic keys in combination with push-button ignition systems has introduced new scenarios under which a driver can exit the vehicle, key fob in hand with the motor running, or with the engine off but the vehicle in a gear other than park. With today’s quiet engines, drivers can leave a vehicle, travel great distances from the vehicle with the key in their pockets while the engine is running or the transmission in neutral – all without being aware that they have done so. As we are seeing from owner complaints and litigation, the marriage of electronics with ignitions and locks have resulted in unintended consequences: carbon monoxide poisoning, rollaway crashes and easy thefts allowing manufacturers an erroneous – and as far as the consumer is aware – secret definition of the key that allows drivers to mistakenly believe that when they exit the vehicle with the fob, the engine is off and the vehicle transmission locked in the Park position – is antithetical to the spirit and letter of FMVSS 114.” You can read them here.)

In early 2009, SAE formed the Keyless Ignition Subcommittee in response to safety concerns and “concern regarding the myriad different ways manufacturers are implementing keyless ignition features,” as described in NHTSA’s Notice of Proposed Rulemaking to fix the hazards introduced by keyless ignition systems. “The committee consisted of experts in the study of how humans interact with machines (human factors experts) and designers of keyless ignition systems from auto manufacturers and suppliers,” according to the NPRM. Ford and GM each had a representative on this committee.

As we’ve said many times, the great downside to electronic key systems is the transition of the key from a physical object to an invisible electronic code – 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, unlike a traditional key, the fob plays no role in turning off the vehicle. When a driver is standing in his kitchen with a traditional car key in his hand, it is certain that the engine is off and his vehicle transmission is in Park, because you can’t remove the key otherwise. A driver holding a key fob in his hand has no such assurances. In many models, you can turn the engine off with the transmission in any position, and in all keyless vehicles you can take the fob with you, leave the motor running, and it will not turn off, just because the key fob is out of range – contrary to what many believe. No, for that you need an engineered software solution.

In the fall of 2010, stories about carbon monoxide deaths begin to circulate in the mainstream press, first, the September 2010 death of Chastity Glisson in a keyless Lexus IS250 and in November, the New York Daily News broke the Rivera story.

In January 2011, SAE issued its recommended practice J2948 for keyless ignition controls “based on the subcommittee members' experience with their company's vehicles and systems, knowledge of consumers' comments about the operation of the systems, knowledge of human factors engineering and, in some cases, knowledge of proprietary studies done during the development of their products (actual data was not shared with the group),” according the NPRM.

SAE J2948 noted four “errors” drivers might make: the inability to start and stop the vehicle propulsion system; exiting the vehicle with the automatic transmission in a non-parking gear; exiting the vehicle while the vehicle propulsion system is enabled; and exiting the vehicle while the vehicle propulsion system is disabled, but the accessory or electrical systems are active.”

The intent of the standard is stated as: “to help minimize these errors.”

In December 2011, NHTSA published its NPRM and the Alliance of Automobile Manufacturers, which represents Ford and GM, immediately starts clutching its pearls over the very idea that NHTSA would try to make a rule to address these same conditions that the industry decided to address in early 2009.  

The Alliance proceeded to take a strip off the agency’s hide for attempting rulemaking on “anecdotal evidence,” provided by Vehicle Owner Questionnaires (VOQs) in which consumers reported rollaways or deaths from carbon monoxide poisoning when they mistakenly left their vehicles running. And the Alliance admonished NHTSA to do some human factors testing – even though it’s pretty clear that the automakers themselves didn’t do any before they installed keyless systems.

At the time there are only those two publicly known deaths – both in Toyotas. (Since then, the tally of reported carbon monoxide deaths has risen to 26 – including a couple who died in 2006 carbon monoxide deaths involving a Toyota Avalon.) Notice again that public knowledge follows industry efforts already underway that acknowledged the need to address the hazards of keyless ignitions.

In calendar 2012, both Ford and GM released MY 2013 keyless vehicles with automatic shut-off systems. Ford quietly put the information in the owner’s manuals; GM was completely silent on the issue.

Think about this timing. Given what we know about automaker’s development cycles, a Ford or GM plan to develop and implement an automatic engine cut-off feature was likely already well in the works somewhere between the time the SAE keyless ignition subcommittee convenes and the agency publishes its NPRM – yet its trade representative excoriates the agency for attempting regulations designed to prevent drivers from exiting their keyless vehicles with the fob and the engine running, by mandating what industry considers audible warnings that are too loud. Why? Because buzzers and beeps will annoy customers – a cardinal automotive design sin? Or, because at least two of their major members were quietly installing a much better solution?

And what does NHTSA know? In 2014, the agency launched a compliance evaluation of 2013-2014 keyless ignition vehicles from Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia, to test how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated. Among the population tested: two Fords and all of the GM vehicles had the engine idle shut-off feature. Specifically, the 2013 Lincoln MKZ and the 2013 Buick Verano and LaCrosse and the 2014 Ford Edge and the Buick Regal, Cadillac SRX and XTS. 

In the Information Request sent to each manufacturer, the agency asked: Describe in detail how the Subject Vehicles' engine/motor is stopped or turned off. Include in your response, how hard and long the driver must press the start/stop button, to which device the code or other electrical signal is sent (i.e., immobilizer or engine control unit ("ECU")), and which devices are turned off or deactivated by the ECU (i.e., starter, fuel pump, fuel injection system, etc.). Specify when exactly those devices are turned off or deactivated (i.e. after the engine/motor stop control is pressed to turn off the engine/motor, after the driver's door is opened, etc.)

Did Ford or General Motors include an explanation of the feature in their answers? We’ll venture a guess: No.

Why Does GM Keep It Quiet?

It is odd that GM chose not to tell customers or even dealership techs about this feature, until long after it was implemented in its vehicles.

In 2015, the public learns that GM had an engine idle shutoff feature in the 2014 Volt, as a result of a recall. GM launched campaign 15V145 to retrofit 2011-2013 Chevrolet Volts with software that would automatically shut off the engine after a set time of idling, to prevent carbon monoxide poisoning. The recall states:

“If a driver exits his/her vehicle and inadvertently leaves the vehicle “on” (because the driver fails to react to the cues and warning chimes emitted by the vehicle to alert the driver that the vehicle has not been turned off), after a period of time, the vehicle’s battery will drain and the vehicle’s gas engine will begin to run. If the gas engine runs for long periods of time within an enclosed space, such as a garage, carbon monoxide could build up in the enclosed space and potentially cause injury.”

The automaker’s Part 573 submission to NHTSA noted that it had initiated an investigation in August 2014, allegedly after a single customer complaint about the build-up of carbon monoxide in a garage caused by the engine inadvertently left running. (GM told Automotive News that it was aware of two carbon monoxide injuries.)

And here’s where it gets weird. In GM’s defect chronology, which accompanies all Part 573 submissions, the automaker wrote: “it was determined that the 2014 model year and beyond Volts contain software that automatically shuts down the vehicle after being left idle in a run state for a specific amount of time.”

Now, by MY 2014, Buicks, Cadillacs and all of the Chevrolets had an automatic engine shutdown feature – a significant subset had had it since calendar 2012 (MY 2013)! Yet, GM talks about a disembodied discovery, like it had no idea that it had been systematically installing an engine shutdown system through its carlines since 2012.

Its defect chronology continues:

“GM’s Safety and Field Action Decision Authority (SFADA) concluded that, because the investigation revealed customer error in leaving the vehicle in a run state was the primary factor contributing to the condition, and considering the warnings provided to the driver that the vehicle was left running and the low number of complaints relating to this issue, the appropriate remedy would be a customer satisfaction program to update the vehicle software to power down the vehicle if the vehicle was left running for an extended period of time.”

Super weird that they only want to do a customer satisfaction campaign because of bad, bad drivers, since, clearly, GM had long ago decided that this was a hazard, and had engineered a solution that had been implemented more than two years earlier in non-hybrid vehicles, where there isn’t even the possibility that the quiet electric powered motor will revert to the gasoline engine, if left running long enough.

According to the GM defect chronology, they only decided to move to a recall, at NHTSA’s suggestion. Did NHTSA know that GM already had a cut-off feature in so many of its models?

The next time GM publicly reveals the existence of this feature in other vehicles is to its dealers and their technicians in a series of technical service bulletins that appear to begin in 2015. Did the absence of an explanation for this feature lead to customer complaints about the engine shutting down? An examination of consumer complaints to NHTSA shows that drivers with models that employed the 2.5 to 5 hour run strategy in the earlier versions of the Extended Parking feature complained that their vehicle did not shut down. This driver of a 2014 Buick Verano was so frustrated, he filed two different complaints with NHTSA:

“This is my second complaint. My wife forgot to press the stop engine button again because of a distraction.  As a result she burned a quarter tank of gas while she was gone from the vehicle. Why is there not a safety shut off like the ten minute shut off in remote start mode? If this was in my integral garage I could be dead from carbon monoxide. Is this another shove it under the rug like the GM key scandal. Since so many vehicles are going to this technology why hasn't this been looked at? My wife is only 61 and in good health. What of the older folks with problems to do?”

The Preliminary Information technical bulletins to GM service technicians inform them that “Some customers may comment that the engine stops running after extended idle with shifter in Park.” No repair is required, the bulletin states – just educate the customer about the existence of the extended parking feature.

So, customers didn’t know, the dealership techs didn’t know, GM’s Safety and Field Action Decision Authority apparently didn’t know.

And what does NHTSA know about this? If they’ve been paying attention, they know from the TSBs that GM filed with the agency

How many other automakers have secretly added this countermeasure? 

 

Read The Safety Record Blog prior coverage on Keyless Ignition here

 

 

NHTSA, Ford and CO Poisoning: Sickening

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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

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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.”

Bang!

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

 

 

 

Keyed up With Anticipation: Smart Key Hazards Still Unresolved

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Five and a half years ago, the National Highway Traffic Safety Administration vowed that it was going to get on top of the keyless ignition safety issue, publishing a Notice of Proposed Rulemaking. The NPRM acknowledged that keyless ignitions, for all of their purported convenience, had introduced several safety hazards not associated with mechanical key systems – among them, rollaways, when drivers shut off the engine and exit without locking the shift lever in the “Park” position and carbon monoxide poisonings from drivers who inadvertently leave the engine running.

The NPRM only acknowledged two deaths – Ernest Codelia, who died in 2009, and Chastity Glisson, who died in August 2010. By December 11, 2011, when the NPRM appeared in the Federal Register, at least four individuals had also perished in keyless ignition carbon monoxide incidents. In September 2011, child protective service investigator Rebecca Hawk died in her New Tampa condo after a neighbor left his 2011 Mazda 3 running in an adjacent garage.  On Dec. 3, 2011 Harry Pitt, the former Montgomery County Maryland schools superintendent, died in his home after unintentionally leaving his Infiniti running in his attached garage and going to bed.

Since then, at least 16 more people have died in carbon monoxide poisoning incidents tied to keyless ignition. And what has NHTSA or the auto industry done about it? As far as The Safety Record can tell: Nothing.

To recap: when automakers introduced keyless ignition systems in the 1990s, engineers under-estimated the consequences of disrupting the well-established driver behaviors regarding traditional keys. Instead of the key being a physical object, it became an invisible code. The fob is necessary to turn on the vehicle, but it plays no role in turning off the vehicle. As automakers sought guidance from NHTSA regarding the compliance of these new systems with Federal Motor Vehicle Safety Standard 114, the agency and industry agreed to correlate the “key” to the unique electronic code, without explaining it to driver and without fully appreciating the consequences of doing away the tactile, auditory and visual cues that helped drivers recognize when they had made a mistake.

In 2002, National Highway Traffic Safety Administration’s then-Chief Counsel Jacqueline Glassman alluded to the coming problems in an interpretation letter to an unnamed automaker,  Glassman affirmed that a similar system complied with FMVSS 114 – even though, “the removal of the "Smart Key" from the running vehicle would have no effect on the vehicle's operation until the engine is stopped.”

She also noted the human factors issues:

“We observe that if the ‘Smart Key’ device remained in the car. e.g. in the  pocket of a jacket laying on the seat, a person would need only turn the ignition switch knob to start the engine. It appears to us that, with systems of this kind, there would be, in the absence of some kind of a warning, a greater likelihood of drivers inadvertently leaving a ‘Smart Key’ device in the car than with a traditional key. This is because the driver must physically touch a traditional key, unlike the "Smart Key" device, as part of turning off the engine. You and/or the vehicle manufacturer may wish to consider whether there are any practicable means of reducing the possibility of drivers inadvertently leaving their ‘Smart Key’ devices in the car.”

Unfortunately, the agency did not heed its own predictions. In August 2010, Sean Kane, president of Safety Research & Strategies, raised safety concerns and the probability of consumer confusion at a meeting with NHTSA officials. Kane’s presentation noted that “the introduction of electronic keys in combination with push-button ignition systems has introduced new scenarios under which a driver can exit the vehicle, key fob in hand with the motor running, or with the engine off but the vehicle in a gear other than park. With today’s quiet engines, drivers can leave a vehicle, travel great distances from the vehicle with the key in their pockets while the engine is running or the transmission in neutral – all without being aware that they have done so.  As we are seeing from owner complaints and litigation, the marriage of electronics with ignitions and locks has resulted in unintended consequences: carbon monoxide poisoning, rollaway crashes and easy thefts.”  

Nearly 18 months later, 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 issuance of a Final Rule has been pushed off at least three times. The agency’s last planned date for publishing a Final Rule was February 2016. However, the last two editions of the Unified Agenda and Regulatory Plan only note that the agency’s next actions are “to be determined,” even though NHTSA said that Final Rule itself was no biggie:

“We anticipate that these new requirements would have little or no anticipated cost as they are based on a new Society of Automotive Engineers Recommended Practice J2948-20110. We believe that manufacturers already intend to follow that Practice voluntarily. The benefits for these new provisions would be reduced consumer confusion with these new controls and reduced potential risk of death or injury. However, because these systems are not widespread in current vehicles, their benefits cannot yet be readily quantified.”

Why, there’s practically no need for anything so stodgy as a rule!

Nonetheless, in 2012, the agency was preparing to do some human factors research on its proposal to follow the J-standard, given that it took heavy criticism from industry for promulgating a rule based on consumer complaints. (The whole thing was rather rich. Industry argued that the agency had not established the need for a rule, even though industry got together to write its own – apparently unnecessary – standard. The industry scorched NHTSA for failing to do any human factors research to support its proposed countermeasures, even though it failed to produce any of its own human factors research to demonstrate that its systems worked fine as is.) NHTSA posted a Federal Register Notice seeking public comment for a proposal to contract with the John L. Volpe Center and the MIT AgeLab to conduct human factors research into keyless ignition systems. The Alliance of Automobile Manufacturers, of course, vigorously protested this effort, and urged OMB to reject this request.

The proposal was last heard from publicly in October 2012. On June 6, The Safety Record contacted the agency with some simple questions:

What has happened to this effort to conduct human factors research in support of the FMVSS 114 NPRM?

  • Was NHTSA's request approved by OMB?
  • Has any research been conducted?
  • What entity conducted it?
  • If so, what were the results?
  • When will this research be published?

We received this response:

“NHTSA is still in rulemaking on FMVSS No. 114 (Theft protection and rollaway prevention).  NHTSA did not initiate the specific research that you are inquiring about, but is taking a hard look at these systems to determine the best way forward in improving them.” 

NHTSA did offer some helpful advice to watch their safety video  on keyless ignition systems for basic safety tips and to check their driver’s manual for detailed instructions on their specific vehicle. (A. People don’t read owner’s manuals, research shows. B. Most manufacturers’ owner’s manuals are spectacularly unclear about the operations of their keyless ignitions systems – specifically on the matter of engine shutdown.)

The Safety Record wanted to ask a follow-up, like: Why didn’t NHTSA proceed with the research? But, if our last attempt to follow up on a NHTSA action is any measure, actuarial tables indicate that we might not survive the wait for an answer. On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia regarding 2012 and 2013 model-year vehicles, based on tests of how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated. The agency said that the probe was initiated by a Ford recall (13V-475), for 23,000 vehicles, which have keyless starting systems that did not have an audible warning when the driver exited the vehicle.  NHTSA inspected other vehicles with keyless systems at dealerships, for audible warnings. The agency sent out information requests, asking manufacturers about the electronic architecture of their keyless ignition systems, 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 that 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 data NHTSA collected from multiple models showed that there was absolutely no consistency in types of warnings or the decibel level of auditory warnings – even within a particular automaker’s models. Many allowed the driver to exit the vehicle with the engine off and the transmission in a gear other than PARK.  

The Safety Record Blog has been covering this issue for the last five years (Not So Smart Key Standard; The Keyless Ignition Litigation Solution; A Funny Thing Happened on the Way to My Car; Stupid Tricks with Smart Keys; Another CO Death…What Happens When Smart Keys Collide?; NHTSA Opens Smart Key Compliance Probe.)

Naturally, we were curious to learn the conclusion of that probe. In July 2012, The Safety Record Blog submitted a Freedom of Information request seeking the documents that would help us write a follow-up on NHTSA’s investigation. As of today, we are at 711 days and counting, without any documents produced.

So, no one has done much – if any – human factors research. Not one manufacturer, nor NHTSA has produced a scintilla of empirical evidence regarding effective countermeasures to the rollaway and carbon monoxide hazard. Can drivers hear auditory alerts over the sound of a closing garage door? Are they distinguishable from other chimes? What about drivers with hearing impairment? Do drivers understand that the fob turns the vehicle on, but it does not turn the vehicle off? Do drivers even know what the frickin’ key is? Sloppy all the way around.

Automatic Shut Off

Not to worry – there’s another technology available for automakers who don’t want to annoy their customers with a loud warning buzzer, or are too lazy to do figure how best to warn a driver who doesn’t shut down the engine, or are actually interested in preventing keyless ignitions from injuring and killing their customers. It’s available right now! And nearly all automakers use a form of it: an automatic engine shut-off.

Vehicles with remote start features have software that times the idling engine, and turns it off when too much time has passed – usually after 10 or 20 minutes. Toyota, for example, offered this feature in 2005 as an accessory that could be integrated right into the existing key fob. Imagine that! At least six years before the first publicly known carbon monoxide death (Ernest Codelia, caused by a Lexus), and before Toyota began to climb the leader board for keyless ignition-related CO deaths. And check out the language in the brochure to sell the VIP Remote Starter, which promises to “take keyless ignition to the next level”:

“Sudden change of plans? Not a problem. You can remotely shut off your engine any time after you’ve activated the remote start. In fact, just to be safe, the engine will automatically shut off if you don’t put the vehicle in gear within 10 minutes of starting it.”

It’s as though Toyota anticipated that drivers might inadvertently leave their vehicles running, and that such a circumstance might be unsafe!

So far, Ford Motor Company is the sole automaker to take keyless ignitions to the next level. It made automatic engine cut-off feature standard in its 2014 models with keyless ignition.

Nor have automakers done much more to sharpen their communications with customers regarding the hazards of keyless ignitions. In May, the Palm Beach Sheriff’s Office, which has investigated more keyless-ignition related carbon monoxide deaths than any single law enforcement agency in the U.S. launched a public service campaign to warn drivers about the possibility of carbon monoxide poisoning. The department shot a public service announcement.

You can watch it here. The department also created nifty refrigerator magnets emblazoned with the reminder: Did you turn your car off? 

Magnets and a PSA in one Florida community is a start – and its more than the automakers have done – but they are no substitute for regulations or a technological fix – only the government and industry can do that.

The Keyless Ignition Litigation Solution

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On Tuesday, the New York firm of Labaton Sucharow LLP filed a nationwide consumer class action in a Los Angeles federal court against 10 automakers who produce and market keyless ignition vehicles to force the implementation of an automatic cut-off feature.

The lawsuit is in response to a longstanding, widespread design defect that leads drivers to inadvertently leaving their keyless ignition vehicles running in the mistaken belief that the fob in their possession means that the engine is off. At least 13 carbon monoxide poisoning deaths have been attributed to the defect.

The Safety Record is quite sure that the manufacturers, including GM, Ford Toyota, Nissan, Honda, and Volkswagen, will welcome the suit with open arms. As they told the National Highway Traffic Safety Administration about a decade ago in response to a proposed upgrade to the accelerator controls standard (FMVSS 124), it is their steadfast belief that “market forces and litigation pressure are sufficient to assure fail-safe performance without a Federal motor vehicle safety standard.” And, as the agency has yet to act on a 2011 Notice of Proposed Rulemaking on FMVSS 114 that purports to address the carbon monoxide and rollaway hazards caused by these systems, litigation, it is!

Safety Research & Strategies has been studying the hazards of keyless ignition systems and advocating for a safety solution since 2009. Our work has included gathering the regulatory history, testing keyless ignition vehicles to assess their compliance with FMVSS 114, sifting NHTSA consumer complaints, keeping track of confirmed injuries and deaths, examining manufacturers’ customer communications regarding keyless ignition systems, and filing Freedom of Information Requests to determine what NHTSA has actually done to address this issue.

And we have shared that information in the form of news stories. And, in 2010, SRS President Sean Kane met with NHTSA officials to present our research. We specifically outlined the many ways keyless ignition vehicles changed the fundamental relationship between the driver and the key, while manufacturers misled their customers about how these systems actually worked. Early on, we concluded:

  • Keyless ignitions – as currently designed – introduced a hazard – carbon monoxide poisoning — that had heretofore not existed
  • Keyless ignitions are antithetical to the letter and intent of FMVSS 114
  • Keyless ignition systems have re-introduced the rollaway hazard – a problem that was ostensibly solved in 1992, after the agency published a Final Rule requiring vehicles with automatic transmissions that have a Park position to have a key-locking system that prevented removal of the key unless the transmission was locked in Park or became locked in Park as the direct result of removing the key.

In a series of interpretation letters, the agency allowed the evolution of the current systems. For regulatory purposes, the agency permitted an invisible electronic code to be considered the “key.” Unfortunately, customers thought the fob was the key – because manufacturers called it the key. Automakers forgot to tell their customers: yes, you need the fob to turn the vehicle on, but it plays no role in turning the vehicle off. So you can leave your vehicle running with the fob in your pocket and go far, far, far out of range, and that engine will keep running. Only some manufacturers have implemented an automatic engine cut-off feature which shuts the engine down after 30 minutes, if the driver’s side door has been opened and closed.

As NHTSA neglected to think the whole thing through from the get-go, it has been stuck trying to rectify its mistake without causing Sturm und Drang in the industry. It hasn’t gone well. The 2011 NPRM clearly acknowledged the carbon monoxide and rollaway hazards. But the best solution it could offer was louder warnings, based on a platform lift standard that was not based in any human factors testing. (In fact, nobody did any human factors testing.)  

To date, the agency has collected some 105 keyless ignition complaints related to carbon monoxide poisoning or drivers mistakenly leaving their vehicles running (46) or rollaways (59); but we know that this happens much more frequently. 

We like this class action. It seeks injunctive relief to eliminate the carbon monoxide standard by compelling automakers to implement a software patch that will cut off the engine, as well as the recovery of drivers’ economic losses. It’s do-able and will prevent these deaths. And as NHTSA said in 1967, when it first compelled automakers to design key systems that did not allow drivers to leave their keys in the ignition: “This is an instance in which engineering of vehicles is more likely to have an immediate beneficial impact than a long-range process of mass education.” (Or warnings, in this case.)

In the meantime, journalist Mark Greenblatt of Scripps Howard has provided some excellent coverage. You can access it here:

Keyless ignition deaths mount as regulators and auto manufacturers slow to act

Class action lawsuit targets automakers for keyless ignition dangers

To read our previous coverage of this issue:

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

Not So “Smart Key” Standard

NHTSA Opens Smart Key Compliance Probe

Stupid Tricks with Smart Keys

A Funny Thing Happened on the Way to My Car…

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

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Tell us again why electronic keys are an automotive technology advance?  Apparently, they’re so great that our National Highway Traffic Safety Administration has to re-write the Federal Motor Vehicle Safety Standard 114 (in a ham-handed way) to accommodate them.  And so super-duper that these new electronic ignition system vehicles are introducing new hazards that are killing and injuring consumers.

The Palm Beach County Sheriff’s office is investigating last week’s carbon monoxide poisoning deaths of Adele Ridless and Mort Victor. The couple is suspected to have succumbed to a build-up of carbon monoxide emanating from their Mercedes with a keyless ignition, parked in an attached garage. The sheriff’s office declined comment pending the outcome of their investigation.

Toyota – whose clever keyless ignition system has been implicated in at least two other carbon monoxide deaths – last month issued a Technical Service Bulletin noting that two “Smart Keys” from different vehicles in close proximity can knock the system for a loop. The February 24 notice covers some 2011 and 2012 Lexus models:

“Some 2011 and 2012 Lexus models may exhibit a condition where the Smart Key system is inoperative when another vehicle’s Smart key is in or near the vehicle. The following functions may also be affected: wireless remote operation, Smart access, and Smart start. The combination meter multi-information display may show the message: “Key not detected” when attempting to start vehicle and when driving.”

What are they talking about? NHTSA and the automakers have told us that the key in an electronic system is an invisible code inside the vehicle’s ignition module. So does that mean if you park next to another Toyota or some other manufacturer with an electronic ignition, your shiny new Lexus won’t start? Wow, that’s going to make parking in public lots a whole lot tougher. Continue reading →

A Funny Thing Happened on the Way to My Car…

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Has Paula Poundstone been reading our memos to NHTSA about the serious safety problems created by keyless ignition systems? This weekend, the comedienne broke into a spontaneous and funny rant about them during her weekly gig with the NPR news quiz show “Wait, Wait, Don’t Tell Me!”

“You know what my car has that is the worst feature I’ve ever had in a car? Is this damn thing where you don’t put the key in!” she fumes about the systems which allow a driver to exit the vehicle with the key fob and the engine running. “And it’s so frustrating! I can’t tell you how many times I’ve gotten back to the car – oh, Geez, I left it running again! You have no way of knowing that the car’s running!”

(Listen to Paula Poundstone on keyless ignition — Poundstone’s comments begin at about the eight-minute mark.)

Timing is everything in comedy, and as it happens, Ms. Poundstone offered her observational bit just a week after NHTSA posted a Notice of Proposed Rulemaking to “fix” the problems introduced by keyless ignition systems: rollaways and carbon monoxide poisonings. Unfortunately, some people who took their key fobs with them, while inadvertently leaving their vehicles running in an attached garage, died from carbon monoxide poisonings. Rollaways have produced their share of injuries and property damage. These incidents are not so funny.

Many people victimized by poor designs blame themselves for their forgetfulness. But we think Ms. Poundstone hit the mark when she called it “the worst feature” she’s ever had in a car. We similarly think that NHTSA solution is a work-around and doesn’t serve the intent of FMVSS 114 or consumers, who have to pay – not to mention risk their safety – for industry’s and regulators’ bad decisions.

Stay tuned. We’ll be submitting our comments to the docket. In the meantime, if you, like Paula Poundstone, have left your keyless ignition car running, but aren’t a regular radio-show panelist, tell NHTSA by submitting a Vehicle Owner Questionnaire.  Or comment directly to the proposal in Docket NHTSA-2011-0174.

(For more on keyless ignition hazards see Stupid Tricks with Smart Keys)