December 31, 2014
1. GM Ignition Switches, the Big Opener for 2014
Who knew on Jan. 1 that just a few weeks later, we’d be watching one of the biggest safety defect scandals unfold when the world learned that GM had been sitting hiding an ignition-switch defect it had known about since before the vehicles went on the market. (Of course, Takata followed soon after – more on that later.) Obviously, GM is ultimately to blame for the hundreds of deaths and injuries that followed. But The Safety Record thinks NHTSA is the real star of the show. If 2014 was the Year of the Recall, it was also the Year NHTSA’s Epic Failures Were Exposed. And what better way to mark the momentous occasion – or, actually, repeated occasion because we’ve been here before – than to highlight its new level of ridiculousness after the GM tragedies came to light? Rather than own up to seven years of ignoring the ignition switch defect, NHTSA’s spin machine went into overdrive in its rush to blame GM for not reporting and providing information. Acting Administrator Friedman even went before Congress to plead agency ignorance. Nevermind that by 2007, the Office of Defects Investigation had two Special Crash Investigations in fatal incidents that tied the airbag non-deployment to a 2005 GM Technical Service Bulletin telling dealers that ignition switches could unexpected shift, shutting down the engine. Or that in 2007, NHTSA’s Defects Assessment Division recommended that the agency conduct an immediate investigation into “a pattern of non-deployments,” citing 15 consumer complaints and 28 field reports where the airbag didn’t deploy in frontal crashes, resulting in 27 injuries and four fatalities – the investigation never happened. Or that it ignored at least one other Special Crash Investigation that noted a 2009 Cobalt was in the “accessory” mode when a fatal collision occurred, in part because NHTSA staff didn’t understand how newer airbags worked. Or that some NHTSA staff were concerned enough to monitor Cobalt crashes and recommend investigations until 2011 – when the agency suddenly forgot all about GM, allowing more injuries and deaths to pile up.
2. We Don’t Need No Stinkin’ EWR
The Safety Record was less than shocked that Honda failed to report half its death and injury claims. In February 2013, we noted two manufacturers – Tireco and Harmony, a child-seat manufacturer – had not filed EWRs in three serious injuries in litigation. SRS asked NHTSA for its EWR policies and the agency’s follow-up with those manufacturers. We eventually had to sue NHTSA to find out that they pursued Harmony to file a quarterly report, but had no record of doing anything with Tireco. Tireco has never filed an EWR claim; Harmony filed that one quarter and never again. The only policy document we received was a draft with page 6 missing. (see EWR – Elective Warning Reports) This year, U.S. Sens. Ed Markey (D-Mass.) and Richard Blumenthal (D-Conn.) sought more information from NHTSA about its use of EWR data. Acting Director David Friedman gave them some jive about how thoroughly the data is assessed and how the agency keeps track of manufacturers’ reports, sophisticated mining techniques, stern letters, civil fines, “as appropriate,” blah, blah. But the good Senators noted that Ferrari had never submitted a report since 2003. We noticed that Mercedes has rarely filed a property damage EWR – 17 in a decade – and what reports they were filing indicated that their seats were burning people’s tushies. Ferrari eventually got fined $3.5 million for embarrassing NHTSA. The Safety Record Blog doesn’t pack the same punch as Congress, so Mercedes escaped the hot seat, as it were. We think that NHTSA’s Chief Counsel responded more honestly, when he told a bunch of defense lawyers at a legal conference: “Frankly [EWR]’s not early and it’s sometimes really not a great warning, because you have to dig down into the data.” (Analyses conducted by Quality Control Systems Corp. have shown that EWR is functioning more as a finder of failed recalls. Yet, in its last rulemaking, NHTSA chose to add some more very broad categories related to emerging technologies, instead of adding component sub-categories that would make it much easier for the agency to spot defects causing some of the most common safety malfunctions.) Sens. Markey and Blumenthal have submitted an EWR improvement bill, but will it have any life in an all-Republican congress? So, NHTSA, manufacturers, as you were!
3. NTHSA’s Data Drivel
As we all know, NHTSA is data-driven. And the agency would have you believe that every action it takes is forged in the hot steel of numbers. In fact, “data-driven” is just one of the agency’s autonomic responses to reporters and Congress in the face of safety crises and budget requests. Most NHTSA-watchers know that the agency has but a slight acquaintance with statistical analysis, but have found that the phrase forms the basis of an excellent drinking game. This year closed with a few good examples. In mid-December, our friends at Quality Control System Corp. laid waste to NHTSA’s oft-repeated factoid that light vehicle tires are performing better than ever, sporting a 50 percent reduction in fatalities using crash data from 2007-2010. Randy Whitfield presented his examination of Fatality Analysis Reporting System data at the NTSB’s tire safety symposium, finding that the number of tire-related crashes and resulting deaths has remained relatively constant since 1995, and that the study on which NHTSA relied to excuse itself from tire safety rulemaking only included a small sample of crashes involving light passenger vehicles towed for tire-related damage, rather than evaluating all tire-related crashes. (While NHTSA reluctantly conceded the point, it was too late to change its Powerpoint presentation, so the agency repeated its cherry-picked conclusion later in the day.) And The Safety Record Blog got a good chuckle out of a November quote from David Friedman, the agency’s star-crossed Acting Director, in response to Takata’s reluctance to mount a national recall for its exploding airbags: “One can be an anomaly. Two becomes a trend, and we feel we need to act.” For all of you who have been dying to know the Office of Defects Investigation’s super-secret issue-screening benchmarks, cat’s outta the bag now.
4. Good Layers/Bad Lawyers
It is a fact: corporate lawyers are noble defenders of American business. They are decent fellows and good gals, whose word’s an unbreakable bond. The kind of people you can feel at home passing your resume while sharing a cocktail or an automotive defect assessment. By contrast, trial lawyers fatten themselves on the souls of innocents. They are responsible for all of society’s ills, from childhood obesity to the Ebola virus. They cannot be trusted. Nor do upstanding government bureaucrats associate with these misshapen lumps of humanity’s dregs. At least, that’s what The Safety Record has taken away from the agency’s behavior toward lawyers in 2014. It was trial lawyers who showed how Toyota’s unbelievably crappy software could cause an Unintended Acceleration without the engine control module taking note. Has NHTSA done anything with this startling information, given the continued evidence of Toyota UA? Not that we can tell. It was a trial lawyer who revealed the General Motors knew about the now infamous ignition defect for years, before it released the afflicted vehicles into the marketplace and before the automaker announced a limited recall. Marietta, Ga. lawyer Lance Cooper, who represented Brooke Melton, a fatal victim of the defect, alerted NHTSA in February to GM’s shenanigans, and offered to share the fruits of his discovery. NHTSA responded by completely ignoring him. Couldn’t even muster a thanks-for-your-letter-we’ll-look-into-it response. Straight-up rude. Corporate lawyers? They got a presentation at a legal conference for the defense bar in Chicago by NHTSA Chief Counsel O. Kevin Vincent. It started with a feel-good “rah-rah-ree” paean to industry, before Vincent gave his audience the requisite 10 seconds to pick their jaws off the ground after he warned them that NHTSA would no longer tolerate automakers’ dissembling on defects and delaying recalls. Nothing but the Marquess of Queensbury rules for those guys.
5. Toyota UA Now, Toyota UA Tomorrow, Toyota UA Forever
With the spotlight now chasing Takata and GM, one might be forgiven for laboring under the false impression that the Toyota Unintended Acceleration problem had been resolved with floor mats, shaved pedals and the aggressive mis-direction from the automaker’s PR flacks. After all, in March Toyota paid the federal government $1.3 billion to resolve criminal fraud charges, promising to lie no more, under the watchful eye of an Independent Monitor. And Toyota, its corporate voice trembling with remorse and sincerity, declared this unfortunate chapter closed. Toyota owners, however, can’t make the same claim. Toyota UA complaints continue to accrue. Safety Research & Strategies continues to field calls from Toyota drivers experiencing UAs. Take the experience of Robert and Kathy Ruginis of Bristol, RI. In June, Kathy Ruginis was attempting to park her 2010 Toyota Corolla on a town street when the vehicle surged forward and crashed into an unoccupied parked Jeep in front of it. Kathy’s foot was on the brake at the time. The car, which had already been remedied under the floor mat entrapment and sticky accelerator recalls, had been briefly surging – usually at higher speeds – since the couple bought the vehicle new in May 2010. The inspection included a 16-mile test drive, a visual inspection and a download of the Event Data Recorder, which confirmed the account of Kathy Ruginis and her passenger: the Corolla was surging while her foot was on the brake. It showed in the five seconds of vehicle data before the system made the decision on whether to deploy the airbag: accelerator pedal untouched, brake pedal on, speed and RPMs doubled. In denying the Ruginis claim, Toyota only considered the results of the “test” drive and the physical inspection: “Based on our inspection of your vehicle it has been determined the incident was not the result of any type of manufacturing or design defect.” The Ruginises took their complaint to NHTSA and the Independent Monitor David Kelley, requesting that Kelley look into Toyota’s dishonest assessment and the latter into low speed surges in MY 2006-2011 Toyota Corollas, based on 163 reports in which the driver experienced a surge at low speed or no speed – 99 drivers mentioned that the brakes were already depressed when the surge occurred or the surge occurred when the brakes were depressed, and 83 incidents resulted in crashes. NHTSA’s Office of Defects Investigation is now evaluating the Ruginises’ claims and has taken the car for testing under no protocol that it could show the couple. Two lawyers from Cahill Gordon & Reindel LLP interviewed the Ruginises about their experience with Toyota. Hard to say what will come of these encounters, but if The Safety Record were a betting blog, we’d say: nothing.
6. FHWA Mounts Production of Safety Accountability Theater
When the government is trapped between the truth and its actions, CYA wins every time. The thing is: you have to look tough, and it has to be as convincing as Ralphie’s tears after he almost shoots his eye out with a Red Ryder carbine action, 200 shot range model air rifle. This is trickier than it sounds. You have to go after the manufacturer, but not the defect. This way, you show an appropriate level of outrage without looking like a doofus for not catching and correcting the defect in the first place. The only ones who lose are consumers and we know how much everyone cares about them. For two years, the Federal Highway Administration brushed off questions about the safety and efficacy of Trinity Industries’ ET-Plus Guardrails. Then, a Texas jury found that Trinity defrauded the federal government by failing to disclose key design changes in 2005, when it won approval for an energy-absorbing guardrail end terminal that featured design changes that saved the company $50,000 annually. In finding that Trinity had knowingly made a false claim to the government, the jury awarded the FHWA and the Virginia guardrail competitor who brought the suit on behalf of the United States government $175 million. Among the evidence at trial were five test videos showing the re-designed ET-Plus end terminal catastrophically failing in low-impact angle tests. After the verdict, states started dropping the ET-Plus from their lists of qualified vendors, and the FHWA had to react. But, having defended Trinity and the ET-Plus to state highway officials and the press, not to mention allowing Trinity to submit test results seven years too late that purported to show that the end terminal performed adequately, the reaction couldn’t be too extreme. So it ordered a round of tests that the hardware was likely to pass, but did not mimic the way the end terminal was failing in the field. The FHWA specifically forbade the Texas Transportation Institute, Trinity’s long-time testing and development partner from conducting these new tests. Instead, the agency allowed Trinity to choose the Southwest Research Institute. The SRI and Trinity have longstanding financial ties via seven patents going back to the late 1990s. That’s how it’s done.
7. CPSC Begins Rulemaking on 6B
The U.S. Consumer Product Safety Commission kicked off 2014 with a bold move to publish a Notice of Proposed Rulemaking to reform the irksome Section 6(b) of the Consumer Product Safety Act. This rule gives manufacturers a lot of control over what negative information the CPSC can release about them, such as trade secrets or “misleading” and “inaccurate” information. The CPSC can disclose the existence of an investigation under procedures designed to ensure the accuracy of whatever information is made public. The CPSC gives manufacturers 10 days to review any statements about their products, and typically the two entities release agreed-upon language. In execution, 6(b) can be cumbersome, time-consuming and costly. The re-notification procedure forces the commission to seek the manufacturer’s approval every time it releases the same information about a product to a different source. The NPRM makes four modifications to the regulatory language, among them: clarifying that Section 6(b) does not apply to information already publicly available or disseminated, and revising the current policy of granting firms an absolute right to have their comments withheld from any information the CPSC releases. One of the biggest changes would affirm that once a firm voluntarily agrees to undertake a corrective action plan, it would be legally bound to fulfill the terms of the agreement. Under the current regulations, the Commission is prohibited from enforcing a corrective action plan if a recalcitrant firm violates the terms of its corrective action plan. The rulemaking also proposes to re-balance the negotiations on the language of a voluntary consent agreement. Currently, the company can make an admission that it violated the Consumer Product Safety Act if it feels like it. The proposal eliminates the phrase ‘‘if desired by the subject firm,’’ and replaces it with the phrase ‘‘if agreed to by all parties.’’ The commission was down to three members when it voted 2-1 to publish the notice. It now has a new chairman and a full complement of four members. The rulemaking has not advanced since the Federal Register Notice of February 26.
8. NHTSA Tired of Tires
In March 2002, the agency began a rulemaking to establish new tire performance requirements under a new FMVSS 139 that was to have established requirements and test procedures addressing tire dimensions, endurance, the impact of road hazards, bead unseating, low inflation pressure, and aging. Ten months later, the agency published a final rule on the tire performance requirements, but postponed action on an aging test. In 2005, the agency opened a non-rulemaking tire aging docket, into which it deposited its continuing research into tire age. This May, NHTSA quietly signaled – again – that it was not going to require a tire aging test by posting a March 2014 summary of its tire aging work. The report cited three reasons for its decision, all stemming from the 2003 FMVSS 139 Final Rule, which improved the robustness of tires. The agency cited its erroneous data analysis showing a dramatic drop in tire-related crash fatalities. (See above – NHTSA’s Data Drivel) At the same time, the agency clearly acknowledged that tire age is an undisputed factor in tire safety and that their research data has shown for years that tire aging was a continuing concern particularly in the high heat states. But the agency instead would launch “a promotional and educational initiative to raise consumer awareness about tire aging issues and how to prevent these types of failures.” NHTSA would do nothing to make it easier for consumers to determine the age of their tires, like require a non-coded date of manufacture molded on each sidewall. But that’s the kind of crazy you get when your aim is to look busy without troubling industry. Fortunately, the National Transportation Safety Board is on it. Earlier this month it held a two-day symposium to look at the continuing problems with the tire recall system and tire age, in preparation for making safety recommendations. The Rubber Manufacturers Association was just putting away the champagne glasses from its May celebrations, when it sprang into action. To deflect unwanted attention from the NTSB, it announced that it supported a mandatory registration system that requires retailers to electronically register tires at the point of sale. The Tire Industry Association, which represents the dealers, was not happy. But perhaps the civil war will be postponed. Whatever recommendations the NTSB is likely to make, NHTSA is likely to ignore until Congress forces a rulemaking after a bunch more people die unnecessarily.
9. Vehicle Electronics
In October, NHTSA published a Federal Register Notice seeking comments on the possibility of writing regulations to ensure the safety of automotive electronics. The 10-page request for comments satisfies a directive from the federal legislation known as MAP–21 to “complete an examination of the need for safety standards with regard to electronic systems in passenger motor vehicles.” NHTSA’s only a quarter of a century behind the technology curve, but better late than never. NHTSA said that it intended to determine “whether there are emerging gaps in the functional safety assurance processes of motor vehicles.” One need only examine the record to demonstrate that there’s nothing but gaps. In 2011, for example, The Safety Record examined 12 months of recalls to determine the prevalence of recalls related to electronic defects. After reviewing 722 recall campaigns, The Safety Record found that electronics recalls comprised more than a quarter; of those, 24 recall campaigns addressed software defects. But NHTSA does not like to stray too far from broken parts – its bailiwick for decades. Two years ago, NHTSA attempted to upgrade the accelerator control standard by proposing that manufacturers be required to equip all vehicles with a brake override, which cuts throttle voltage in electronic throttle control (ETC) vehicles when the brakes and throttle are in conflict. The Notice of Proposed Rulemaking was in direct reaction to the Toyota UA crisis, but the proposal merely codified manufacturers’ current equipment, and noted that it was meant to address unintended accelerations caused by mechanical failures: component disconnections. The proposal to write a functional safety standard for automotive electronics posed a series of questions to the public, among them, queries about the cyber security of automotive electronics, electromagnetic interference with such systems and the possibility of requiring performance tests to ensure the safety of critical systems such as braking, steering and accelerating. The call for comments drew 44 submissions. The Alliance of Automobile Manufacturers agreed with NHTSA that it was unsure about those gaps, and suggested that NHTSA and its "Council on Vehicle Electronics, Vehicle Software and Emerging Technologies" keep studying the question: “These forums may identify potential gaps” – a lot of conditionals in that phrase. As for the need for mandatory standards – no need at all, the AAM said. The current voluntary guide ISO 26262 is enough, thank you very much. Safety-critical electronic systems “are continually evolving at a rate that outpaces rulemaking.” Even The Safety Record agrees with that – especially since the agency usually takes 25 to 40 years to write new rules. We were certain that Toyota, with its rock-solid automotive electronics, would offer some valuable insights to the agency about functional safety, but the automaker did not submit any comments. Pity.
10. Will NHTSA Ever Get a Decent Administrator?
We had such high hopes when President Obama appointed David Strickland to be the agency’s administrator in 2009. A former Democratic Commerce Committee staffer, Strickland got the kid-glove treatment during his confirmation hearings and sailed through the approval process. Strickland had worked for the Senate Commerce, Science and Transportation Committee since 2001, and before that, served the Association of Trial Lawyers of America as the associate director and a lobbyist. Safety and consumer advocates praised his nomination, describing Strickland and a savvy negotiator devoted to consumer protection. He left to cash-in as a lobbyist for Venable LLP, a “top defense” firm in D.C. that boasts about its ability to help clients clear regulatory hurdles and defend its clients in product liability cases involving asbestos, tobacco, automobiles and industrial chemicals. Who wouldn’t want to defend asbestos and tobacco? The big defect crises under his watch were Toyota UA and Jeep’s rear-of-axle fuel tanks that explode on impact, burning occupants to death in otherwise survivable crashes. Safety advocates gave him an “F” in both; he failed consumers miserably when it counted. Deputy Administrator David J. Friedman – just seven months into his new job – stepped into the breach, and our hopes rose again. Friedman worked for 12 years at the Union of Concerned Scientists (UCS) as a senior engineer and research director. His specialty was fuel economy, but we thought, hey, a scientist – that’s good, right? Friedman was immediately swamped by the next tsunami of defect crises – Takata airbags and GM ignition switches that migrate from the run to accessory position cutting off the engine, power brakes and steering, and the airbags. The agency’s newly appointed administrator is Mark Rosekind, a member of the National Transportation Safety Board and a psychologist with a background in human fatigue. During his confirmation hearings, he declared “my first focus will be on the recall defect and reporting process.” NHTSA and its “regulatory partners” are never so happy as when they put the onus of drivers instead of defects. We hope Rosekind will shepherd in a new era.
11. And, in a nod to Spinal Tap, We’re Up to Eleven… Takata – A Defect Enforcement Mash-up
If there is a safety defect story of the year, The Safety Record Blog would have to go with Takata’s exploding airbags that spray shrapnel into occupants which we've been writing about since 2013. We like it because it rolls all of NHTSA’s enforcement and surveillance problems into one big ball o’ mud. Since 2008, this single defect has produced 21 recalls, affecting 10 Manufacturers, 53 models and more than 15 million vehicles in the U.S. It has also caused five known deaths and 139 injuries. The cover-ups have provided the media and Congress ample opportunity for contest entries and grandstanding. Behind the numbers, this defect illustrates all the deficiencies of the current system: rolling and regional recalls – manufacturers’ time-worn strategies for limiting their liabilities; five different root cause reasons for the defect – incentive to investigate if we’ve ever seen one – and a Recall Management Division that fumbles enforcement, demanding answers in 2009 after the second recall, but losing interest during the next three. Honda was caught failing to submit an Early Warning Report for one of the Takata airbag deaths, and was forced to admit that it had neglected to file some 1,700 EWR death and injury claims. Bonus points go to BMW, which used the crisis to recall Takata-made passenger-side airbags in 3-Series vehicles when it really was concerned about a design flaw – aggressivity. BMW was asked to recall the vehicles in 2008 by an attorney following a lawsuit in which an aggressively deploying airbag caused eye and facial injuries to an occupant. At a December 3 congressional hearing, BMW admitted that the passenger bags were being replaced for a concern not related to the other inflator recalls.
Why should manufacturers ever change their ways and hurt their bottom line when the agency tasked to police them is out at the donut shop? The Safety Record would like to believe 2014 is the last Year of the Recall, but “fool me once” happened decades ago.