Denial of Motor Vehicle Defect Petition, 56686-56691 [E9-26265]
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Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Notices
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[FR Doc. E9–26210 Filed 10–30–09; 8:45 am]
BILLING CODE 4915–01–P
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
Denial of Motor Vehicle Defect Petition
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AGENCY: National Highway Traffic
Safety Administration, (NHTSA),
Department of Transportation.
ACTION: Denial of a petition for a defect
investigation.
SUMMARY: This notice sets forth the
reasons for the denial of a petition
(Defect Petition DP09–001) submitted by
Mr. Jeffrey A. Pepski (petitioner) to the
Administrator of NHTSA by a letter
dated March 13, 2009, under 49 CFR
part 552. The petitioner requests
additional investigations of: (1) The
unwanted and unintended acceleration
of model year 2007 Lexus ES350
vehicles and (2) model years 2002–2003
Lexus ES300 for long duration incidents
involving uncontrolled acceleration
where brake pedal application had no
effect.
After conducting a technical review of
the material cited and provided by the
petitioner, material contained within
investigations cited by petitioner,
information relevant to material cited by
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17:03 Oct 30, 2009
Jkt 220001
petitioner, and conducting interviews
with complainants and manufacturer
representatives, and taking into account
several considerations, including,
among others, a recent safety recall by
Toyota (NHTSA Recall 09V–388),
allocation of agency resources, agency
priorities, and the likelihood that
additional investigations would result
in a finding that a defect related to
motor vehicle safety exists, NHTSA has
concluded that further investigation of
the issues raised by the petition is not
warranted. The agency accordingly has
denied the petition.
FOR FURTHER INFORMATION CONTACT: Mr.
Stephen McHenry, Vehicle Control
Division, Office of Defects Investigation,
NHTSA, 1200 New Jersey Avenue, SE.,
Washington, DC 20590. Telephone 202–
366–0139. E-mail
stephen.mchenry@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
Interested persons may petition
NHTSA requesting that the agency
initiate an investigation to determine
whether a motor vehicle or item of
replacement equipment does not
comply with an applicable motor
vehicle safety standard or contains a
defect that relates to motor vehicle
safety. 49 CFR 552.1. Upon receipt of a
properly filed petition the agency
conducts a technical review of the
petition, material submitted with the
petition, and any additional
information. § 552.6. After considering
the technical review and taking into
account appropriate factors, which may
include, among others, allocation of
agency resources, agency priorities, and
the likelihood of success in litigation
that might arise from a determination of
a noncompliance or a defect related to
motor vehicle safety, the agency will
grant or deny the petition. § 552.8.
II. Defect Petition Background
Information
The petitioner, Mr. Jeffrey Pepski of
Plymouth, Minnesota, owns a model
year (MY) 2007 Lexus ES350 (VIN
JTHBJ46G072131671). On March 12,
2009, Mr. Pepski filed a complaint with
NHTSA (ODI No. 10261660) alleging a
‘‘sudden and uncontrollable surge in
acceleration’’ while driving home from
work on February 3, 2009:
Driving home from work, I experienced a
sudden uncontrollable surge in acceleration
causing my speed to increase from about 60
mph to 80+ mph. Immediately I began to
brake hard as I was rapidly approaching
traffic just ahead of me. Fortunately the
inside left lane was unoccupied and I was
able to make an immediate lane change.
Initially I depressed the brake pedal as hard
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as I could using both feet but only managed
to slow the vehicle to 40–45 mph. With my
speed reduced, I alternated between pumping
the accelerator pedal and pulling up on it
from the underside with my right foot as it
became clear that the throttle was stuck in an
open position. The vehicle continued to
speed back up to over 65 mph with less
pressure on the brake pedal.
With traffic just ahead of me, I moved over
to the left shoulder next to the center barrier
and continued to try to release the open
throttle. There were clouds of smoke around
the vehicle and the smell of burning
materials from the overheating brakes. After
finally getting the vehicle slowed down to
about 25–30 mph, I shifted into ‘‘Neutral’’
and depressed the start/stop push button a
number of times hoping to stop the engine
but nothing happened. Instead the RPMs
moved up into the redline range on the
tachometer. I quickly shifted back into
‘‘Drive’’; the vehicle jolted and rapidly
accelerated to 60+ mph.
As the brakes were fading quickly, I was
certain that I would need to shift back into
‘‘Neutral’’ and let the engine blow up to stop
the vehicle. Suddenly the acceleration surge
stopped and I was able to bring the vehicle
to a stop about 1c to 2 miles from where it
had started. I quickly shifted into ‘‘Park’’ and
depressed the start/stop push button to turn
off the engine. The vehicle seemed to shutter
as I did so. Upon restarting the car, I drove
cautiously to Lexus of Wayzata a short
distance away fully prepared to shift into
‘‘Neutral’’ if the acceleration repeated. The
car remains there over 5 weeks later.
Following the incident, Mr. Pepski
submitted a complaint to Toyota and a
claim to the Lexus Customer
Satisfaction Department, requesting that
Lexus repurchase his vehicle. According
to Toyota, the Lexus dealer service
technician who inspected Mr. Pepski’s
vehicle after the incident observed that
the driver’s side floor mat retaining
clips were not properly secured and
‘‘the floor mat was in a position where
it could interfere with the operation and
travel of the accelerator pedal.’’ 1 Toyota
denied Mr. Pepski’s claim on March 10,
2009, concluding that the event was
caused by an out-of-position floor
mat: 2 3
The inspection of your vehicle revealed no
evidence of any vehicle defects or
malfunction. The throttle assembly and
accelerator pedal were operating as designed,
with no binding or sticking of any of the
components. The brakes showed signs of
excessive wear which is consistent with what
you described happened to you.
1 Chris Tinto, Toyota Motor North America, Inc.,
letter to Kathleen DeMeter, ODI, May 14, 2009,
Response to the Petition for a Defect Investigation
Submitted by Jeffrey Pepski (see public file for
DP09–001).
2 Troy Higa, Toyota Motor Sales, U.S.A., Inc.,
letter to Jeff Pepski, March 10, 2009 (see public file
for DP09–001).
3 The issue of accelerator pedal entrapment by an
unsecured floor mat in the subject vehicles is
addressed by Recall 09V–388.
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The inspection also revealed that the floor
mat was in a position where it could interfere
with the operation and travel of the
accelerator pedal. When the vehicle was
taken in to the dealership, the floor mat
retaining clips were not properly secured
which allowed the floor mat to move out of
position. While we understand that you feel
the floor mat was not the problem, the
evidence revealed during our inspection
showed otherwise.
On March 12, 2009, Mr. Pepski
reported his initial complaint to NHTSA
and on March 13, 2009, he sent a defect
petition to NHTSA that was received by
the Office of Defects Investigation (ODI)
on March 19, 2009 (ODI No. 10263408).
On May 1, 2009, ODI investigator
Stephen McHenry and Vehicle Research
Test Center engineer Mr. William
Collins met with the petitioner at Lexus
of Wayzata in Wayzata, Minnesota. Also
in attendance was Mr. Mike Zarnecki,
Field Technical Specialist from the
Lexus Central Area Office in Naperville,
Illinois. The petitioner was interviewed
and the petitioner’s vehicle was test
driven. No functional abnormalities
were noted during the test drive.
According to Mr. Zarnecki and notes
from the dealership’s work order, no
fault codes were found in the vehicle’s
powertrain computer system. Toyota
concluded that the incident was caused
by an improperly installed floor mat.
The petition requests additional
investigations of (1) unwanted and
unintended acceleration in MY 2007
Lexus ES350 vehicles, previously
investigated by ODI in PE07–016 and
EA07–010; and (2) longer duration
incidents of unintended acceleration
where brake pedal application allegedly
was ineffective in MY 2002 and 2003
Lexus ES300 vehicles, previously
investigated by ODI in PE04–021.
The petitioner cites seven issues in
support of the petition to investigate the
MY 2007 Lexus ES350:
Issue #1. Proper Party to Preliminary
Evaluation PE07–016;
Issue #2. Toyota’s Response—Causes of
Alleged Defect;
Issue #3. Narrow Scope of Preliminary
Evaluation PE07–016;
Issue #4. Vehicle Certification Label—
Compliance with Federal Safety
Standard No. 124;
Issue #5. Adequacy of Service Brakes;
Issue #6. Ignition/Engine Switch; and
Issue #7. ECM and ECUs—Lack of
Inputs and Receipt of Contradictory
Inputs.
The petitioner contends that
expanding the investigation to include
MY 2002 and 2003 Lexus ES300
vehicles is necessary because
‘‘reviewing all pertinent data across
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17:03 Oct 30, 2009
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model years will better indicate the
existence of any pattern.’’
III. ODI Analysis of the Petition Request
for Additional Investigation of MY 2007
Lexus ES350 Vehicles
Background
On March 29, 2007, ODI opened
Preliminary Evaluation PE07–016 to
investigate the potential for accessory
all-weather floor mats sold by Toyota to
interfere with the accelerator pedal in
MY 2007 Lexus ES350 vehicles. The
investigation was based on a thorough
review of complaints involving
unintended acceleration that identified
five incidents that likely were caused by
interference between Toyota’s accessory
all-weather floor mat and the accelerator
pedal. ODI upgraded the investigation to
Engineering Analysis EA07–010 on
August 8, 2007, and expanded the
population to include MY 2007 and
2008 Lexus ES, ES350, and Toyota
Camry vehicles. At that time, ODI had
identified 17 complaints related to floor
mat interference with the accelerator
pedal in the subject vehicles.
ODI closed the investigation on
October 11, 2007, after Toyota decided
to conduct a recall of the accessory allweather floor mats. Toyota’s recall
provided for the replacement of the
accessory all-weather floor mats with
mats that were redesigned to reduce the
potential for pedal interference in the
event that they were installed
incorrectly. When EA07–010 was
closed, ODI was aware of 26 Vehicle
Owner Questionnaires (‘‘VOQs’’ or
‘‘complaints’’) concerning incidents of
unwanted acceleration involving
accessory all-weather floor mat
interference in MY 2007 and 2008 Lexus
ES, ES350, and Toyota Camry vehicles,
including seven crashes. Twenty of the
complaints involved MY 2007 Lexus
ES350 vehicles.
The following summarizes the issues
cited by the petitioner as the bases for
opening the requested investigations
and ODI’s assessment of each issue.
Issue #1: Toyota’s response to ODI’s
April 5, 2007, information request (IR)
letter in PE07–016 ‘‘may have been
limited in some manner’’ by the
definition of ‘‘Toyota’’ used in the IR
The petitioner contends that since
ODI’s April 7, 2007, letter to Toyota
requesting information in support of
PE07–016 defined ‘‘Toyota’’ as ‘‘Toyota
Motor North America, Inc.’’ rather than
‘‘Toyota Motor Corporation,’’ Toyota’s
responses ‘‘may have been limited in
some manner by the failure to properly
address the appropriate parties to the
investigation.’’
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The petitioner’s concern is
unfounded. In a May 14, 2009, letter
responding to Mr. Pepski’s petition,
Toyota confirmed that it ‘‘construed the
request to apply to all Toyota entities,
including the entities identified by Mr.
Pepski, and that its earlier responses
included all non-privileged responsive
information and documents in the
possession of all of those Toyota
entities.’’
Issue #2 and Issue #3: The Agency failed
to investigate allegations of unwanted
acceleration that were not related to
improper installation of the accessory
all-weather floor mats
In Issue #2, the petitioner contends
that NHTSA should have investigated
incidents of unintended acceleration
that it determined were unrelated to
improper installation of the accessory
all-weather floor mat. In Issue #3, the
petitioner contends that the scope of
PE07–016 should have been ‘‘broadened
or increased for additional causes
beyond the all-weather floor mats’’
based on (1) information submitted by
Toyota in its June 11, 2007, letter
responding to ODI’s information
request, (2) additional complaints
received by ODI after PE07–016 was
opened; and (3) the results of a survey
conducted for ODI by NHTSA’s Vehicle
Research and Test Center (VRTC) which
‘‘identified vehicles without all-weather
car mats experiencing unintended
acceleration.’’ ODI interprets these
issues as one in the same—an allegation
that the Agency failed to investigate
complaints by subject vehicle owners
that petitioner claims are unrelated to
the recalled accessory all-weather floor
mats.
ODI reviewed each complaint
submitted by Toyota in its response to
the PE07–016 IR and identified a safety
defect trend related to interference
between the accessory all-weather floor
mat and the accelerator pedal that could
trap the pedal near the floor during
certain accelerator pedal applications
(e.g., hard pedal applications while
passing slower traffic, accelerating into
traffic, and/or accelerating up grades).
ODI carefully analyzed that data during
the prior investigation and again during
the review of this petition, including
detailed interviews of drivers and, in
some cases, field investigations to
inspect vehicles and incident scenes.
ODI determined that floor mat
interference was the condition
warranting investigation based on
frequency of occurrence and nature of
the events.
The petitioner identified ten
complaints as evidence that ‘‘not all
these incidents are related to an
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accessory all weather floor mat
entrapping the throttle pedal.’’ These
complaints are presented in Table 1.
The petitioner contends that the
complaints that have a number marked
with an asterisk are ‘‘five other VOQs
where floor mats were not involved in
the unwanted acceleration.’’
Contrary to the petitioner’s
contention, six of the VOQs were related
to floor mat interference (four of the five
that petitioner singled out as unrelated
to floor mats were related to floor mats).
Three of the remaining four complaints
involved incidents occurring during
low-speed close-quarter driving
maneuvers—circumstances that are not
similar to those complained of by
petitioner; the other complaint does not
indicate an unintended acceleration
event.
TABLE 1—TEN VOQS IDENTIFIED IN THE PETITION AS EVIDENCE OF UNINTENDED ACCELERATION EXPERIENCE NOT
RELATED TO FLOOR MATS
Evidence of Floor Mat
Interference
Yes ...................................
ODI File
Number
*10199857
*10203221
10218118
10223792
*10230560
No ....................................
*10230929
10192384
10218961
10219328
*10226564
Description
Unsecured floor mat discovered and corrected during dealer inspection.
All-weather accessory floor mat improperly ‘‘stacked’’ on top of carpet mat.
Unsecured floor mat slid forward and interfered with accelerator pedal return.
Passenger side floor mats improperly placed on driver side, resulting in accelerator pedal interference.
Floor mats were not returned to proper position after oil change, resulting in accelerator pedal interference.
All-weather accessory floor mat improperly ‘‘stacked’’ on top of carpet mat.
Single incident of alleged engine surge while parking in garage. No trouble found by dealer.
Driver concerned that vehicle accelerated more quickly than expected when the accelerator pedal
was depressed.
Single incident of alleged engine surge while parking vehicle. No trouble found by dealer.
Alleged idle flare when idling. Dealer reprogrammed transmission control unit.
In addition to the analyses of the
complaint and survey data, ODI and
VRTC also conducted design reviews
and testing to evaluate the possibility of
other potential causes of unintended
acceleration in the subject vehicles.
Some of this work is summarized in the
following excerpt from the VRTC test
report: 4
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The Vehicle Research and Test Center
obtained a Lexus ES350 for testing. The
vehicle was fully instrumented to monitor
and acquire data relating to yaw rate, speed,
acceleration, deceleration, brake pedal effort,
brake line hydraulic pressure, brake pad
temperature, engine vacuum, brake booster
vacuum, throttle plate position, and
accelerator pedal position. Multiple electrical
signals were introduced into the electrical
system to test the robustness of the
electronics against single point failures due
to electrical interference. The system proved
to have multiple redundancies and showed
no vulnerabilities to electrical signal
activities. Magnetic fields were introduced in
proximity to the throttle body and accelerator
pedal potentiometers and did result in an
increase in engine revolutions per minute
(RPM) of up to approximately 1,000 RPM,
similar to a cold-idle engine RPM level.
Mechanical interferences at the throttle body
caused the engine to shut down.
Petitioner’s assertion that the Agency
failed to investigate other causes of
unintended acceleration and, as a result,
may have failed to identify other causes
of unintended acceleration is
unsupported. Several complaints
4 VRTC Memorandum Report EA07–010, VRTC–
DCD–7113, 2007 Lexus ES–350 Unintended
Acceleration, Section 3.1 Dynamic Vehicle Testing,
April 30, 2008.
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identified by the petitioner as unrelated
to interference between the floor mat
and accelerator pedal, in fact, involved
this problem. We note that Toyota has
initiated a safety recall program to
address the potential for unwanted
acceleration due to accelerator pedal
entrapment by floor mats in
approximately 3.8 million vehicles,
including the subject vehicles. Analysis
of the remaining complaints identified
by the petitioner failed to identify a
defect trend unrelated to this issue.
Issue #4: The subject vehicles do not
comply with FMVSS No. 124
The petitioner contends that the
subject vehicles do not satisfy
requirements of Federal Motor Vehicle
Safety Standard (FMVSS) 124,
Accelerator control systems.
Specifically, the petitioner contends
that the subject vehicles do not comply
with paragraph S5.3, which requires the
throttle to return to the idle position
within one second, and paragraph S5.1,
which requires at least two independent
sources of energy capable of returning
the throttle to the idle position within
the time requirements of paragraph
S5.3. The petitioner’s concerns with the
subject vehicles’ compliance with
FMVSS 124 are apparently based upon
his belief that the rule requires a vehicle
equipped with a throttle position or
accelerator pedal position sensor that
measures ‘‘any force/pressure to the
driver-operated control or any release of
the actuating force to the driver-
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operated control (i.e., accelerator
pedal).’’
As an initial matter, FMVSS 124 does
not require a particular design to meet
its requirements; it is a performance
standard. It is the responsibility of a
manufacturer of vehicles and/or items of
motor vehicle equipment to
manufacture and sell vehicles that
comply with applicable motor vehicle
safety standards and to certify that each
motor vehicle and/or equipment item is
in compliance with applicable FMVSSs.
This is a self-certification process. This
usually means testing by the
manufacturer in accordance with the
FMVSS to ensure that its vehicles and
equipment comply with the FMVSS.
Petitioner’s basis for this issue is
unsupported as there is no indication
that the subject vehicles are not fully
compliant with FMVSS 124.5 Paragraph
S5.3 does not mandate compliance with
any specific design feature, including a
throttle position or accelerator pedal
position sensor. In its May 14, 2009,
letter responding to Mr. Pepski’s
petition, Toyota states, ‘‘the throttle
control system in the subject vehicles
5 The petitioner maintains that, because of the
alleged non-compliance with FMVSS 124 and
Toyota’s knowledge thereof, the Vehicle
Certification label on all MY 2007 Lexus ES350
vehicles does not comply with sections 30112(a)(1)
and 30115(a) of Title 49 of the U.S. Code. As Toyota
states in its May 14, 2009, letter, ‘‘[b]ecause the
vehicles fully comply with the standard, * * *
there is no merit to Mr. Pepski’s allegations that
Toyota violated 49 U.S.C. 30112(a) when it sold
those vehicles, or that it violated 49 U.S.C. 30115(a)
when it certified them as complying with all
applicable FMVSSs.’’
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fully complies with the requirements of
FMVSS No. 124, as demonstrated by
tests conducted in the manner specified
in the laboratory test procedure issued
by NHTSA’s Office of Vehicle Safety
Compliance, TP–124–06 (April 20,
2000).’’ Regarding paragraph S5.1, the
pedal assembly on the subject vehicles
is biased to the ‘‘up,’’ or idle, position
by two independent springs.6
Issue #5: The subject vehicles do not
comply with FMVSS No. 135
The petitioner questions whether the
service brakes of the subject vehicles are
capable of meeting the performance
requirements of FMVSS 135, Lightvehicle brake systems, with a throttle
that has been stuck in an open position.
The petitioner interprets complaints
received by ODI of instances where a
subject vehicle operator was unable to
prevent a vehicle with a stuck
accelerator pedal from traveling a
‘‘significant distance’’ as a functional
failure as defined in paragraph S4 of
FMVSS 135. Petitioner contends that,
due to the significant distances travelled
by subject vehicles with stuck
accelerator pedals, compliance with the
stopping distance requirement under
paragraph S7.11.4 of FMVSS 135 is
‘‘unlikely’’.
Petitioner’s contentions regarding
compliance with FMVSS 135 are
without merit and there is no indication
that the subject vehicles are not fully
compliant with FMVSS 135. The
stopping distance of a subject vehicle
with a throttle stuck in an open position
is irrelevant with respect to whether the
vehicle is compliant with paragraph
S7.11.4 of FMVSS 135. Pursuant to
paragraph S7.11.2(b), the stopping
distances required under paragraph
S7.11.4 must be met by a vehicle with
its transmission position in neutral. The
complaints referenced by the petitioner
stem from incidents occurring on
subject vehicles with a transmission
position in drive.
Testing conducted by VRTC
determined that the brake pedal force
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6 ODI
notes that the petitioner’s description of his
attempts to ‘‘dislodge the throttle by alternatively
pumping the accelerator pedal and pulling up on
it from the underside’’ strongly suggest an
accelerator pedal that is being physically ‘‘trapped’’
by some foreign object, such as the floor mat (in his
case the original equipment carpet).
When ODI and VRTC investigators met with the
petitioner and inspected his vehicle the accelerator
pedal assembly was functioning properly and there
were no anomalies noted in the return springs.
Wear marks were noted at the leading edge of the
front right edge of the carpet mat, which may have
been an indication of contact between the mat and
the bottom edge of the accelerator pedal. ODI
confirmed that the pedal is such that it can be held
down by the mat. Once trapped, the pedal can
remain trapped after repeated efforts to ‘‘pump’’ the
pedal.
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17:03 Oct 30, 2009
Jkt 220001
required to stop a subject vehicle with
a wide open throttle was significantly
greater than when the vehicle is
operating with a closed throttle.
Significant brake pedal force in excess of
150 pounds was required to stop the vehicle,
compared to 30 pounds required when the
vehicle is operating normally. Stopping
distances increased from less than 200 feet to
more than 1,000 feet. 7
Many of the incident drivers
interviewed by ODI have stated that
application of the brakes reduced
acceleration but did not stop the
vehicle. In assessing these complaints
ODI notes that brake effectiveness in
controlling a stuck open throttle event is
significantly reduced once the vacuum
reserve of the vacuum boosted power
assist system is depleted.8 The friction
generated from brake application with
the wheels driven by full engine power
results in significant heating of the
brake components. Continued operation
in this mode causes degradation of the
brake friction materials, further
reducing brake effectiveness and the
ability of the driver to control vehicle
speed.
ODI notes that the petitioner confuses
the Brake Assist system referenced in
the Owner’s Manual with the brake
power assist system. Brake Assist is a
computer controlled automobile braking
technology that increases braking
pressure in an emergency situation (e.g.,
crash avoidance braking). The Brake
Assist technology used by Toyota in the
subject vehicles detects an emergency
situation by monitoring the rate of
change of brake hydraulic pressure from
the master cylinder. Based on the
information gathered by ODI in
interviews of incident drivers, there is
no reason to believe that Brake Assist
was activated during the unwanted
acceleration events.9 While virtually all
of the drivers indicated that they
applied a great deal of force to the brake
pedal in an effort to slow and stop the
vehicle, it is possible that the manner
7 VRTC Memorandum Report EA07–010, VRTC–
DCD–7113, 2007 Lexus ES–350 Unintended
Acceleration, Section 3.3.1 Application of the
brake, April 30, 2008.
8 The petitioner also incorrectly interprets the
loss of vacuum during operation at wide-open
throttle as a ‘‘Functional Failure’’ of the brake
power assist unit as defined in S4 of FMVSS 135.
VRTC’s testing demonstrates that the braking
performance described by drivers of incident
vehicles is consistent with open throttle braking
with depleted vacuum in the vacuum boosted
power assist system. Consequently, the petitioner’s
concerns with the adequacy of the service braking
in the subject vehicles do not provide any basis for
further investigation.
9 It is not possible to determine whether Brake
Assist was activated for any length of time during
any of the unwanted acceleration incidents ODI
investigated in the subject vehicle population.
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56689
(i.e., rate) in which the force was
applied, or the absence of the
amplifying vacuum boost, did not
produce a brake system pressure pulse
that is necessary to activate the Brake
Assist system.
Issue #6: Operation of the subject
vehicles’ Ignition/Engine Switch poses a
safety issue
Petitioner contends that, according to
the description of operation in the
subject vehicle Owner’s Manual, the
engine cannot be switched off during an
unintended acceleration event as the
vehicle is not in Park.10 Petitioner
contends further that if the engine can
be switched off during an unintended
acceleration event, doing so would lock
the steering wheel and move it up and
away from the driver.11 The petitioner
concludes that ‘‘the inability to turn off
the engine in a safe manner is a
significant safety issue with this ‘push
button’ ignition issue.’’
The petitioner is incorrect in his
description of the function of the
ignition switch and steering column
safety features. The engine can be
turned off while in motion by pressing
and holding the ignition push-button
start/stop switch for at least three
seconds. The press and hold function is
meant to avoid inadvertent engine shutoff while in motion. Turning off the
engine in this manner puts the vehicle
electrical system in Accessory (‘‘ACC’’)
mode, in which the steering wheel does
not lock or retract (as opposed to putting
the vehicle in ‘‘OFF’’ mode, which can
only occur when the vehicle is in
Park).12
Issue #7: Contradictory sensor data logic
should resolve on the side of safety
The petitioner posits that
‘‘contradictory sensor data (e.g., open
throttle and sustained extreme brake
pressure) should error on the side of
caution and safety.’’ The petitioner
correctly notes that the subject vehicle’s
throttle control logic does not change
with brake application. However, while
in certain circumstances it may be
10 Petitioner cites the following language to
support this claim: ‘‘The engine cannot be switched
to OFF unless the shift lever is in P.’’ Toyota has
indicated that this should be changed to the vehicle
cannot be switched OFF until the shift lever is in
Park.’’
11 Petitioner references the following language:
‘‘When the engine switch is turned OFF, the
steering wheel returns to its stowed position by
moving up and away to enable easier driver entry
and exit. Switching to ACC or IG–ON mode will
return the steering wheel to the original position.’’
12 In its May 14, 2009, letter, Toyota admits that
its description of the function of these features,
even though ‘‘technically correct,’’ is confusing.
Toyota states that it plans to revise this portion of
the manual to address any confusion.
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56690
Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Notices
desirable for the vehicle throttle control
system to respond to simultaneous
applications of brake and accelerator
pedals by prioritizing the braking
command and limiting throttle opening,
the absence of this function in the
Toyota designs does not render the
vehicles noncompliant with any
applicable FMVSS and further
investigation at this time is not likely to
result in identification of a defect trend.
Current VOQ Status. The petitioner
states that at the time the petition was
sent there were ‘‘at least 45 VOQs on
record with respect to vehicle speed
control involving unwanted acceleration
in MY 2007 Lexus ES350.’’ Table 2
provides a breakdown of complaints to
ODI relating to unintended acceleration
in MY 2007 Lexus ES350 vehicles by
category and date of receipt relative to
completion of the prior investigation.
Analysis of the VOQs cited by the
petitioner do not indicate a defect trend
other than that involving the accelerator
pedal as held down by a floor mat. The
complaints ODI deemed related to floor
mat interference outnumbered all other
reports of alleged sudden and
uncontrollable surge in acceleration
reported during and subsequent to the
ODI investigation. As previously noted,
Toyota has initiated a safety recall to
address the potential for unwanted
acceleration due to accelerator pedal
entrapment by floor mats in
approximately 3.8 million vehicles,
including the subject vehicles.
TABLE 2—VEHICLE OWNER QUESTIONNAIRES TO ODI RELATED TO UNINTENDED ACCELERATION INCIDENTS IN MY 2007
LEXUS ES350 VEHICLES
Prior to
EA07–010
closing
Unintended acceleration category
Floor mat interference:
—Recalled accessory all-weather mats ...........................................................................................
—Other floor mats ............................................................................................................................
—Consistent with mat interference (mat unknown) .........................................................................
Since
EA07–010
closing
Total
22
3
1
11
9
4
33
12
5
Subtotal, floor mat interference .................................................................................................
Other:
—Transmission shift quality .............................................................................................................
—Parking lot type maneuvers ..........................................................................................................
—Throttle response ..........................................................................................................................
—Cruise control sensitivity ...............................................................................................................
—Other .............................................................................................................................................
26
24
50
—
2
—
1
—
3
6
1
—
1
3
8
1
1
1
Subtotal, other ...........................................................................................................................
3
11
14
Total ...................................................................................................................................
29
35
64
srobinson on DSKHWCL6B1PROD with NOTICES
IV. ODI Analysis of the Petition Request
for an Investigation of MY 2002
Through 2003 Lexus ES300 Vehicles
Petitioner requests that ODI
investigate MY 2002 through 2003
Lexus ES300 vehicles for complaints
related to the petition for MY 2007
Lexus ES350 vehicles. Petitioner cites
an earlier ODI investigation, PE04–021,
during which 26 complaints initially
considered by the Agency as part of that
investigation later were determined to
be outside the scope of that
investigation. Petitioner states,
‘‘Reviewing all pertinent data across
model years will better indicate the
existence of any pattern.’’
On March 3, 2004, ODI opened
Preliminary Evaluation PE04–021 to
investigate allegations of vehicle surge
during low speed driving maneuvers
(such as parking) in MY 2002 through
2003 Toyota Camry, Camry Solara, and
Lexus ES300 vehicles (approximately
980,000 vehicles). ODI opened PE04–
021 based on owner reports alleging
either an engine speed increase
occurring without pressing on the
accelerator pedal or the engine speed
failing to decrease when the accelerator
pedal was released. When PE04–021
VerDate Nov<24>2008
17:03 Oct 30, 2009
Jkt 220001
was opened, ODI counted 37
complaints, including 30 reported
crashes and 5 alleged injuries,
potentially related to the alleged defect.
Upon further investigation, ODI
determined that 26 of the 37 complaints
fell outside the scope of PE04–021. ODI
determined that these complaints
related to longer duration incidents
involving uncontrollable acceleration
where brake pedal application allegedly
had no effect and thus were not within
the scope of the investigation. The
investigation focused on incidents
where the subject vehicle throttle
control system opened the throttle valve
without driver intent. ODI believed that
the resultant vehicle surge could result
in a momentary loss of vehicle control,
often resulting in crashes of varying
severity as the drivers were unable to
react in time to apply the brakes
effectively.
None of the complaints identified by
the petitioner and received by ODI
would fall within the scope of the
investigation requested by the
petitioner, nor do they indicate a defect
trend unrelated to the accelerator pedal.
In consideration of Mr. Pepski’s
petition, ODI conducted a review of the
26 VOQs it determined outside the
PO 00000
Frm 00121
Fmt 4703
Sfmt 4703
scope of PE04–021 as well as any other
MY 2002–2003 Lexus ES300 VOQ
received by ODI from the time of the
opening of PE04–021 to the receipt of
Mr. Pepski’s petition. Of the 26 VOQs
outside the scope of PE04–021, only 2
involved MY 2002–2003 ES300 vehicles
(VOQ 10032815 and 8017143).13
Neither of these VOQs involved longer
duration incidents of unintended
acceleration where brake pedal
application allegedly was ineffective in
MY 2002 and 2003 Lexus ES300
vehicles. Likewise, none of the
remaining VOQs reviewed by ODI in
response to Mr. Pepski’s petition fit into
that classification.
V. Conclusion
Toyota has initiated a safety recall
(Recall 09V–388) to address concerns
with potential accelerator pedal
entrapment by floor mats in
13 VOQ 10032815 states that a MY 2002 ES300
was pulling into a parking space at less than 10
miles per hour when the car suddenly accelerated.
VOQ 8017143 states that a MY 2002 ES300 was
pulling into a parking space with the driver’s foot
on the brake when it suddenly accelerated and hit
a tree. It also noted that while driving with the
cruise control on the driver tapped the brakes to
disengage the cruise control and the vehicle
suddenly accelerated.
E:\FR\FM\02NON1.SGM
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Federal Register / Vol. 74, No. 210 / Monday, November 2, 2009 / Notices
approximately 3.8 million vehicles,
including the subject vehicles. Except
insofar as the petitioner’s contentions
relate to that recall, the factual bases of
the petitioner’s contentions that any
further investigation is necessary are
unsupported. In our view, additional
investigation is unlikely to result in a
finding that a defect related to motor
vehicle safety exists or a NHTSA order
for the notification and remedy of a
safety-related defect as alleged by the
petitioner at the conclusion of the
requested investigation. Therefore, in
view of the need to allocate and
prioritize NHTSA’s limited resources to
best accomplish the agency’s safety
mission, the petition is denied. This
action does not constitute a finding by
NHTSA that a safety-related defect does
not exist. The agency will take further
action if warranted by future
circumstances.
Authority: 49 U.S.C. 30162(d); delegations
of authority at CFR 1.50 and 501.8.
Issued on: October 20, 2009.
Kathleen C. DeMeter,
Director, Office of Defects Investigation.
[FR Doc. E9–26265 Filed 10–28–09; 11:15
am]
BILLING CODE 4910–59–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
Notice of Intent To Rule on Passenger
Facility Charge (PFC) Application 10–
15–C–00–OAK, To Impose a PFC at
Metropolitan Oakland International
Airport, Oakland, CA
srobinson on DSKHWCL6B1PROD with NOTICES
AGENCY: Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of intent to rule on
application.
SUMMARY: The FAA proposes to rule and
invites public comment on the
application to impose a PFC at
Metropolitan Oakland International
Airport, under the provisions of the
Aviation Safety and Capacity Expansion
Act of 1990 (Title IX of the Omnibus
Budget Reconciliation Act of 1990)
(Pub. L. 101–508) and Part 158 of the
Federal Aviation Regulations (14 CFR
Part 158).
DATES: Comments must be received on
or before December 2, 2009.
ADDRESSES: Comments on this
application may be mailed or delivered
in triplicate to the FAA at the following
address: Federal Aviation
Administration, Airports Division,
15000 Aviation Blvd., Room 3012,
Lawndale, CA 90261. In addition, one
copy of any comments submitted to the
VerDate Nov<24>2008
18:58 Oct 30, 2009
Jkt 220001
FAA must be mailed or delivered to Ms.
Deborah Ale-Flint, Acting Director of
Aviation, Oakland International Airport,
at the following address: Port of
Oakland, 530 Water Street, Oakland,
California 94607. Air carriers and
foreign air carriers may submit copies of
written comments previously provided
to the Port of Oakland under section
158.23 of Part 158.
FOR FURTHER INFORMATION CONTACT:
Arlene Draper, Acting Manager, San
Francisco Airports District Office, 831
Mitten Road, Room 210, Burlingame,
CA 94010–1303, Telephone: (650) 876–
2778, extension 601. The application
may be reviewed in person at this same
location.
SUPPLEMENTARY INFORMATION: The FAA
proposes to rule and invites public
comment on the application to impose
a PFC at Metropolitan Oakland
International Airport under the
provisions of the 49 U.S.C. 40117 and
Part 158 of the Federal Aviation
Regulations (14 CFR Part 158).
On October 21, 2009, the FAA
determined that the application to
impose PFC submitted by the Port of
Oakland was substantially complete
within the requirements of section
158.25 of Part 158. The FAA will
approve or disapprove the application,
in whole or in part, no later than
February 17, 2010.
The following is a brief overview of
the impose application No. 10–15–C–
00–OAK:
Proposed charge effective date: June
1, 2021.
Proposed charge expiration date:
August 1, 2023.
Level of the proposed PFC: $4.50.
Total estimated PFC revenue:
$70,259,000.
Description of proposed project:
Impose only: San Francisco Bay Area
Rapid Transit District (BART) Airport
Connector—The project will provide a
direct people mover connection
between the Coliseum BART station and
Metropolitan Oakland International
Airport.
Class or classes of air carriers which
the public agency has requested not be
required to collect PFCs: Nonscheduled/
On-demand Air Carriers filing FAA
Form 1800–31.
Any person may inspect the
application in person at the FAA office
listed above under FOR FURTHER
INFORMATION CONTACT and at the FAA
Regional Airports Division located at:
Federal Aviation Administration,
Airports Division, 15000 Aviation Blvd.,
Room 3012, Lawndale, CA 90261. In
addition, any person may, upon request,
inspect the application, notice and other
PO 00000
Frm 00122
Fmt 4703
Sfmt 4703
56691
documents germane to the application
in person at the Port of Oakland.
Issued in Lawndale, California, on October
21, 2009.
Debbie Roth,
Acting Manager, Airports Division, WesternPacific Region.
[FR Doc. E9–26405 Filed 10–29–09; 4:15 pm]
BILLING CODE 4910–13–P
DEPARTMENT OF THE TREASURY
Internal Revenue Service
Proposed Collection; Comment
Request for Form 8816
AGENCY: Internal Revenue Service (IRS),
Treasury.
ACTION: Notice and request for
comments.
SUMMARY: The Department of the
Treasury, as part of its continuing effort
to reduce paperwork and respondent
burden, invites the general public and
other Federal agencies to take this
opportunity to comment on proposed
and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995,
Public Law 104–13 (44 U.S.C.
3506(c)(2)(A)). Currently, the IRS is
soliciting comments concerning Form
8816, Special Loss Discount Account
and Special Estimated Tax Payments for
Insurance Companies.
DATES: Written comments should be
received on or before January 4, 2010 to
be assured of consideration.
ADDRESSES: Direct all written comments
to Glenn Kirkland, Internal Revenue
Service, room 6242, 1111 Constitution
Avenue, NW., Washington, DC 20224.
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the form and instructions
should be directed to R. Joseph Durbala,
at Internal Revenue Service, room 6129,
1111 Constitution Avenue, NW.,
Washington, DC 20224, or at (202) 622–
3634, or through the Internet at
RJoseph.Durbala@irs.gov.
SUPPLEMENTARY INFORMATION:
Title: Special Loss Discount Account
and Special Estimated Tax Payments for
Insurance Companies.
OMB Number: 1545–1130.
Form Number: 8816.
Abstract: Form 8816 is used by
insurance companies claiming an
additional deduction under Internal
Revenue Code section 847 to reconcile
estimated tax payments and to
determine their tax benefit associated
with the deduction. The information is
needed by the IRS to determine that the
E:\FR\FM\02NON1.SGM
02NON1
]]>Agencies
[Federal Register Volume 74, Number 210 (Monday, November 2, 2009)]
[Notices]
[Pages 56686-56691]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26265]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
Denial of Motor Vehicle Defect Petition
AGENCY: National Highway Traffic Safety Administration, (NHTSA),
Department of Transportation.
ACTION: Denial of a petition for a defect investigation.
-----------------------------------------------------------------------
SUMMARY: This notice sets forth the reasons for the denial of a
petition (Defect Petition DP09-001) submitted by Mr. Jeffrey A. Pepski
(petitioner) to the Administrator of NHTSA by a letter dated March 13,
2009, under 49 CFR part 552. The petitioner requests additional
investigations of: (1) The unwanted and unintended acceleration of
model year 2007 Lexus ES350 vehicles and (2) model years 2002-2003
Lexus ES300 for long duration incidents involving uncontrolled
acceleration where brake pedal application had no effect.
After conducting a technical review of the material cited and
provided by the petitioner, material contained within investigations
cited by petitioner, information relevant to material cited by
petitioner, and conducting interviews with complainants and
manufacturer representatives, and taking into account several
considerations, including, among others, a recent safety recall by
Toyota (NHTSA Recall 09V-388), allocation of agency resources, agency
priorities, and the likelihood that additional investigations would
result in a finding that a defect related to motor vehicle safety
exists, NHTSA has concluded that further investigation of the issues
raised by the petition is not warranted. The agency accordingly has
denied the petition.
FOR FURTHER INFORMATION CONTACT: Mr. Stephen McHenry, Vehicle Control
Division, Office of Defects Investigation, NHTSA, 1200 New Jersey
Avenue, SE., Washington, DC 20590. Telephone 202-366-0139. E-mail
stephen.mchenry@dot.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
Interested persons may petition NHTSA requesting that the agency
initiate an investigation to determine whether a motor vehicle or item
of replacement equipment does not comply with an applicable motor
vehicle safety standard or contains a defect that relates to motor
vehicle safety. 49 CFR 552.1. Upon receipt of a properly filed petition
the agency conducts a technical review of the petition, material
submitted with the petition, and any additional information. Sec.
552.6. After considering the technical review and taking into account
appropriate factors, which may include, among others, allocation of
agency resources, agency priorities, and the likelihood of success in
litigation that might arise from a determination of a noncompliance or
a defect related to motor vehicle safety, the agency will grant or deny
the petition. Sec. 552.8.
II. Defect Petition Background Information
The petitioner, Mr. Jeffrey Pepski of Plymouth, Minnesota, owns a
model year (MY) 2007 Lexus ES350 (VIN JTHBJ46G072131671). On March 12,
2009, Mr. Pepski filed a complaint with NHTSA (ODI No. 10261660)
alleging a ``sudden and uncontrollable surge in acceleration'' while
driving home from work on February 3, 2009:
Driving home from work, I experienced a sudden uncontrollable
surge in acceleration causing my speed to increase from about 60 mph
to 80+ mph. Immediately I began to brake hard as I was rapidly
approaching traffic just ahead of me. Fortunately the inside left
lane was unoccupied and I was able to make an immediate lane change.
Initially I depressed the brake pedal as hard as I could using both
feet but only managed to slow the vehicle to 40-45 mph. With my
speed reduced, I alternated between pumping the accelerator pedal
and pulling up on it from the underside with my right foot as it
became clear that the throttle was stuck in an open position. The
vehicle continued to speed back up to over 65 mph with less pressure
on the brake pedal.
With traffic just ahead of me, I moved over to the left shoulder
next to the center barrier and continued to try to release the open
throttle. There were clouds of smoke around the vehicle and the
smell of burning materials from the overheating brakes. After
finally getting the vehicle slowed down to about 25-30 mph, I
shifted into ``Neutral'' and depressed the start/stop push button a
number of times hoping to stop the engine but nothing happened.
Instead the RPMs moved up into the redline range on the tachometer.
I quickly shifted back into ``Drive''; the vehicle jolted and
rapidly accelerated to 60+ mph.
As the brakes were fading quickly, I was certain that I would
need to shift back into ``Neutral'' and let the engine blow up to
stop the vehicle. Suddenly the acceleration surge stopped and I was
able to bring the vehicle to a stop about 1[frac12] to 2 miles from
where it had started. I quickly shifted into ``Park'' and depressed
the start/stop push button to turn off the engine. The vehicle
seemed to shutter as I did so. Upon restarting the car, I drove
cautiously to Lexus of Wayzata a short distance away fully prepared
to shift into ``Neutral'' if the acceleration repeated. The car
remains there over 5 weeks later.
Following the incident, Mr. Pepski submitted a complaint to Toyota
and a claim to the Lexus Customer Satisfaction Department, requesting
that Lexus repurchase his vehicle. According to Toyota, the Lexus
dealer service technician who inspected Mr. Pepski's vehicle after the
incident observed that the driver's side floor mat retaining clips were
not properly secured and ``the floor mat was in a position where it
could interfere with the operation and travel of the accelerator
pedal.'' \1\ Toyota denied Mr. Pepski's claim on March 10, 2009,
concluding that the event was caused by an out-of-position floor mat:
2 3
---------------------------------------------------------------------------
\1\ Chris Tinto, Toyota Motor North America, Inc., letter to
Kathleen DeMeter, ODI, May 14, 2009, Response to the Petition for a
Defect Investigation Submitted by Jeffrey Pepski (see public file
for DP09-001).
\2\ Troy Higa, Toyota Motor Sales, U.S.A., Inc., letter to Jeff
Pepski, March 10, 2009 (see public file for DP09-001).
\3\ The issue of accelerator pedal entrapment by an unsecured
floor mat in the subject vehicles is addressed by Recall 09V-388.
The inspection of your vehicle revealed no evidence of any
vehicle defects or malfunction. The throttle assembly and
accelerator pedal were operating as designed, with no binding or
sticking of any of the components. The brakes showed signs of
excessive wear which is consistent with what you described happened
to you.
[[Page 56687]]
The inspection also revealed that the floor mat was in a
position where it could interfere with the operation and travel of
the accelerator pedal. When the vehicle was taken in to the
dealership, the floor mat retaining clips were not properly secured
which allowed the floor mat to move out of position. While we
understand that you feel the floor mat was not the problem, the
evidence revealed during our inspection showed otherwise.
On March 12, 2009, Mr. Pepski reported his initial complaint to
NHTSA and on March 13, 2009, he sent a defect petition to NHTSA that
was received by the Office of Defects Investigation (ODI) on March 19,
2009 (ODI No. 10263408). On May 1, 2009, ODI investigator Stephen
McHenry and Vehicle Research Test Center engineer Mr. William Collins
met with the petitioner at Lexus of Wayzata in Wayzata, Minnesota. Also
in attendance was Mr. Mike Zarnecki, Field Technical Specialist from
the Lexus Central Area Office in Naperville, Illinois. The petitioner
was interviewed and the petitioner's vehicle was test driven. No
functional abnormalities were noted during the test drive. According to
Mr. Zarnecki and notes from the dealership's work order, no fault codes
were found in the vehicle's powertrain computer system. Toyota
concluded that the incident was caused by an improperly installed floor
mat.
The petition requests additional investigations of (1) unwanted and
unintended acceleration in MY 2007 Lexus ES350 vehicles, previously
investigated by ODI in PE07-016 and EA07-010; and (2) longer duration
incidents of unintended acceleration where brake pedal application
allegedly was ineffective in MY 2002 and 2003 Lexus ES300 vehicles,
previously investigated by ODI in PE04-021.
The petitioner cites seven issues in support of the petition to
investigate the MY 2007 Lexus ES350:
Issue 1. Proper Party to Preliminary Evaluation PE07-016;
Issue 2. Toyota's Response--Causes of Alleged Defect;
Issue 3. Narrow Scope of Preliminary Evaluation PE07-016;
Issue 4. Vehicle Certification Label--Compliance with Federal
Safety Standard No. 124;
Issue 5. Adequacy of Service Brakes;
Issue 6. Ignition/Engine Switch; and
Issue 7. ECM and ECUs--Lack of Inputs and Receipt of
Contradictory Inputs.
The petitioner contends that expanding the investigation to include
MY 2002 and 2003 Lexus ES300 vehicles is necessary because ``reviewing
all pertinent data across model years will better indicate the
existence of any pattern.''
III. ODI Analysis of the Petition Request for Additional Investigation
of MY 2007 Lexus ES350 Vehicles
Background
On March 29, 2007, ODI opened Preliminary Evaluation PE07-016 to
investigate the potential for accessory all-weather floor mats sold by
Toyota to interfere with the accelerator pedal in MY 2007 Lexus ES350
vehicles. The investigation was based on a thorough review of
complaints involving unintended acceleration that identified five
incidents that likely were caused by interference between Toyota's
accessory all-weather floor mat and the accelerator pedal. ODI upgraded
the investigation to Engineering Analysis EA07-010 on August 8, 2007,
and expanded the population to include MY 2007 and 2008 Lexus ES,
ES350, and Toyota Camry vehicles. At that time, ODI had identified 17
complaints related to floor mat interference with the accelerator pedal
in the subject vehicles.
ODI closed the investigation on October 11, 2007, after Toyota
decided to conduct a recall of the accessory all-weather floor mats.
Toyota's recall provided for the replacement of the accessory all-
weather floor mats with mats that were redesigned to reduce the
potential for pedal interference in the event that they were installed
incorrectly. When EA07-010 was closed, ODI was aware of 26 Vehicle
Owner Questionnaires (``VOQs'' or ``complaints'') concerning incidents
of unwanted acceleration involving accessory all-weather floor mat
interference in MY 2007 and 2008 Lexus ES, ES350, and Toyota Camry
vehicles, including seven crashes. Twenty of the complaints involved MY
2007 Lexus ES350 vehicles.
The following summarizes the issues cited by the petitioner as the
bases for opening the requested investigations and ODI's assessment of
each issue.
Issue 1: Toyota's response to ODI's April 5, 2007, information
request (IR) letter in PE07-016 ``may have been limited in some
manner'' by the definition of ``Toyota'' used in the IR
The petitioner contends that since ODI's April 7, 2007, letter to
Toyota requesting information in support of PE07-016 defined ``Toyota''
as ``Toyota Motor North America, Inc.'' rather than ``Toyota Motor
Corporation,'' Toyota's responses ``may have been limited in some
manner by the failure to properly address the appropriate parties to
the investigation.''
The petitioner's concern is unfounded. In a May 14, 2009, letter
responding to Mr. Pepski's petition, Toyota confirmed that it
``construed the request to apply to all Toyota entities, including the
entities identified by Mr. Pepski, and that its earlier responses
included all non-privileged responsive information and documents in the
possession of all of those Toyota entities.''
Issue 2 and Issue 3: The Agency failed to investigate
allegations of unwanted acceleration that were not related to improper
installation of the accessory all-weather floor mats
In Issue 2, the petitioner contends that NHTSA should have
investigated incidents of unintended acceleration that it determined
were unrelated to improper installation of the accessory all-weather
floor mat. In Issue 3, the petitioner contends that the scope
of PE07-016 should have been ``broadened or increased for additional
causes beyond the all-weather floor mats'' based on (1) information
submitted by Toyota in its June 11, 2007, letter responding to ODI's
information request, (2) additional complaints received by ODI after
PE07-016 was opened; and (3) the results of a survey conducted for ODI
by NHTSA's Vehicle Research and Test Center (VRTC) which ``identified
vehicles without all-weather car mats experiencing unintended
acceleration.'' ODI interprets these issues as one in the same--an
allegation that the Agency failed to investigate complaints by subject
vehicle owners that petitioner claims are unrelated to the recalled
accessory all-weather floor mats.
ODI reviewed each complaint submitted by Toyota in its response to
the PE07-016 IR and identified a safety defect trend related to
interference between the accessory all-weather floor mat and the
accelerator pedal that could trap the pedal near the floor during
certain accelerator pedal applications (e.g., hard pedal applications
while passing slower traffic, accelerating into traffic, and/or
accelerating up grades). ODI carefully analyzed that data during the
prior investigation and again during the review of this petition,
including detailed interviews of drivers and, in some cases, field
investigations to inspect vehicles and incident scenes. ODI determined
that floor mat interference was the condition warranting investigation
based on frequency of occurrence and nature of the events.
The petitioner identified ten complaints as evidence that ``not all
these incidents are related to an
[[Page 56688]]
accessory all weather floor mat entrapping the throttle pedal.'' These
complaints are presented in Table 1. The petitioner contends that the
complaints that have a number marked with an asterisk are ``five other
VOQs where floor mats were not involved in the unwanted acceleration.''
Contrary to the petitioner's contention, six of the VOQs were
related to floor mat interference (four of the five that petitioner
singled out as unrelated to floor mats were related to floor mats).
Three of the remaining four complaints involved incidents occurring
during low-speed close-quarter driving maneuvers--circumstances that
are not similar to those complained of by petitioner; the other
complaint does not indicate an unintended acceleration event.
Table 1--Ten VOQs Identified in the Petition as Evidence of Unintended Acceleration Experience Not Related to
Floor Mats
----------------------------------------------------------------------------------------------------------------
ODI File
Evidence of Floor Mat Interference Number Description
----------------------------------------------------------------------------------------------------------------
Yes....................................... *10199857 Unsecured floor mat discovered and corrected during
dealer inspection.
*10203221 All-weather accessory floor mat improperly ``stacked''
on top of carpet mat.
10218118 Unsecured floor mat slid forward and interfered with
accelerator pedal return.
10223792 Passenger side floor mats improperly placed on driver
side, resulting in accelerator pedal interference.
*10230560 Floor mats were not returned to proper position after
oil change, resulting in accelerator pedal
interference.
*10230929 All-weather accessory floor mat improperly ``stacked''
on top of carpet mat.
No........................................ 10192384 Single incident of alleged engine surge while parking
in garage. No trouble found by dealer.
10218961 Driver concerned that vehicle accelerated more quickly
than expected when the accelerator pedal was
depressed.
10219328 Single incident of alleged engine surge while parking
vehicle. No trouble found by dealer.
*10226564 Alleged idle flare when idling. Dealer reprogrammed
transmission control unit.
----------------------------------------------------------------------------------------------------------------
In addition to the analyses of the complaint and survey data, ODI
and VRTC also conducted design reviews and testing to evaluate the
possibility of other potential causes of unintended acceleration in the
subject vehicles. Some of this work is summarized in the following
excerpt from the VRTC test report: \4\
---------------------------------------------------------------------------
\4\ VRTC Memorandum Report EA07-010, VRTC-DCD-7113, 2007 Lexus
ES-350 Unintended Acceleration, Section 3.1 Dynamic Vehicle Testing,
April 30, 2008.
The Vehicle Research and Test Center obtained a Lexus ES350 for
testing. The vehicle was fully instrumented to monitor and acquire
data relating to yaw rate, speed, acceleration, deceleration, brake
pedal effort, brake line hydraulic pressure, brake pad temperature,
engine vacuum, brake booster vacuum, throttle plate position, and
accelerator pedal position. Multiple electrical signals were
introduced into the electrical system to test the robustness of the
electronics against single point failures due to electrical
interference. The system proved to have multiple redundancies and
showed no vulnerabilities to electrical signal activities. Magnetic
fields were introduced in proximity to the throttle body and
accelerator pedal potentiometers and did result in an increase in
engine revolutions per minute (RPM) of up to approximately 1,000
RPM, similar to a cold-idle engine RPM level. Mechanical
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interferences at the throttle body caused the engine to shut down.
Petitioner's assertion that the Agency failed to investigate other
causes of unintended acceleration and, as a result, may have failed to
identify other causes of unintended acceleration is unsupported.
Several complaints identified by the petitioner as unrelated to
interference between the floor mat and accelerator pedal, in fact,
involved this problem. We note that Toyota has initiated a safety
recall program to address the potential for unwanted acceleration due
to accelerator pedal entrapment by floor mats in approximately 3.8
million vehicles, including the subject vehicles. Analysis of the
remaining complaints identified by the petitioner failed to identify a
defect trend unrelated to this issue.
Issue 4: The subject vehicles do not comply with FMVSS No. 124
The petitioner contends that the subject vehicles do not satisfy
requirements of Federal Motor Vehicle Safety Standard (FMVSS) 124,
Accelerator control systems. Specifically, the petitioner contends that
the subject vehicles do not comply with paragraph S5.3, which requires
the throttle to return to the idle position within one second, and
paragraph S5.1, which requires at least two independent sources of
energy capable of returning the throttle to the idle position within
the time requirements of paragraph S5.3. The petitioner's concerns with
the subject vehicles' compliance with FMVSS 124 are apparently based
upon his belief that the rule requires a vehicle equipped with a
throttle position or accelerator pedal position sensor that measures
``any force/pressure to the driver-operated control or any release of
the actuating force to the driver-operated control (i.e., accelerator
pedal).''
As an initial matter, FMVSS 124 does not require a particular
design to meet its requirements; it is a performance standard. It is
the responsibility of a manufacturer of vehicles and/or items of motor
vehicle equipment to manufacture and sell vehicles that comply with
applicable motor vehicle safety standards and to certify that each
motor vehicle and/or equipment item is in compliance with applicable
FMVSSs. This is a self-certification process. This usually means
testing by the manufacturer in accordance with the FMVSS to ensure that
its vehicles and equipment comply with the FMVSS.
Petitioner's basis for this issue is unsupported as there is no
indication that the subject vehicles are not fully compliant with FMVSS
124.\5\ Paragraph S5.3 does not mandate compliance with any specific
design feature, including a throttle position or accelerator pedal
position sensor. In its May 14, 2009, letter responding to Mr. Pepski's
petition, Toyota states, ``the throttle control system in the subject
vehicles
[[Page 56689]]
fully complies with the requirements of FMVSS No. 124, as demonstrated
by tests conducted in the manner specified in the laboratory test
procedure issued by NHTSA's Office of Vehicle Safety Compliance, TP-
124-06 (April 20, 2000).'' Regarding paragraph S5.1, the pedal assembly
on the subject vehicles is biased to the ``up,'' or idle, position by
two independent springs.\6\
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\5\ The petitioner maintains that, because of the alleged non-
compliance with FMVSS 124 and Toyota's knowledge thereof, the
Vehicle Certification label on all MY 2007 Lexus ES350 vehicles does
not comply with sections 30112(a)(1) and 30115(a) of Title 49 of the
U.S. Code. As Toyota states in its May 14, 2009, letter, ``[b]ecause
the vehicles fully comply with the standard, * * * there is no merit
to Mr. Pepski's allegations that Toyota violated 49 U.S.C. 30112(a)
when it sold those vehicles, or that it violated 49 U.S.C. 30115(a)
when it certified them as complying with all applicable FMVSSs.''
\6\ ODI notes that the petitioner's description of his attempts
to ``dislodge the throttle by alternatively pumping the accelerator
pedal and pulling up on it from the underside'' strongly suggest an
accelerator pedal that is being physically ``trapped'' by some
foreign object, such as the floor mat (in his case the original
equipment carpet).
When ODI and VRTC investigators met with the petitioner and
inspected his vehicle the accelerator pedal assembly was functioning
properly and there were no anomalies noted in the return springs.
Wear marks were noted at the leading edge of the front right edge of
the carpet mat, which may have been an indication of contact between
the mat and the bottom edge of the accelerator pedal. ODI confirmed
that the pedal is such that it can be held down by the mat. Once
trapped, the pedal can remain trapped after repeated efforts to
``pump'' the pedal.
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Issue 5: The subject vehicles do not comply with FMVSS No. 135
The petitioner questions whether the service brakes of the subject
vehicles are capable of meeting the performance requirements of FMVSS
135, Light-vehicle brake systems, with a throttle that has been stuck
in an open position. The petitioner interprets complaints received by
ODI of instances where a subject vehicle operator was unable to prevent
a vehicle with a stuck accelerator pedal from traveling a ``significant
distance'' as a functional failure as defined in paragraph S4 of FMVSS
135. Petitioner contends that, due to the significant distances
travelled by subject vehicles with stuck accelerator pedals, compliance
with the stopping distance requirement under paragraph S7.11.4 of FMVSS
135 is ``unlikely''.
Petitioner's contentions regarding compliance with FMVSS 135 are
without merit and there is no indication that the subject vehicles are
not fully compliant with FMVSS 135. The stopping distance of a subject
vehicle with a throttle stuck in an open position is irrelevant with
respect to whether the vehicle is compliant with paragraph S7.11.4 of
FMVSS 135. Pursuant to paragraph S7.11.2(b), the stopping distances
required under paragraph S7.11.4 must be met by a vehicle with its
transmission position in neutral. The complaints referenced by the
petitioner stem from incidents occurring on subject vehicles with a
transmission position in drive.
Testing conducted by VRTC determined that the brake pedal force
required to stop a subject vehicle with a wide open throttle was
significantly greater than when the vehicle is operating with a closed
throttle.
Significant brake pedal force in excess of 150 pounds was
required to stop the vehicle, compared to 30 pounds required when
the vehicle is operating normally. Stopping distances increased from
less than 200 feet to more than 1,000 feet. \7\
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\7\ VRTC Memorandum Report EA07-010, VRTC-DCD-7113, 2007 Lexus
ES-350 Unintended Acceleration, Section 3.3.1 Application of the
brake, April 30, 2008.
Many of the incident drivers interviewed by ODI have stated that
application of the brakes reduced acceleration but did not stop the
vehicle. In assessing these complaints ODI notes that brake
effectiveness in controlling a stuck open throttle event is
significantly reduced once the vacuum reserve of the vacuum boosted
power assist system is depleted.\8\ The friction generated from brake
application with the wheels driven by full engine power results in
significant heating of the brake components. Continued operation in
this mode causes degradation of the brake friction materials, further
reducing brake effectiveness and the ability of the driver to control
vehicle speed.
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\8\ The petitioner also incorrectly interprets the loss of
vacuum during operation at wide-open throttle as a ``Functional
Failure'' of the brake power assist unit as defined in S4 of FMVSS
135. VRTC's testing demonstrates that the braking performance
described by drivers of incident vehicles is consistent with open
throttle braking with depleted vacuum in the vacuum boosted power
assist system. Consequently, the petitioner's concerns with the
adequacy of the service braking in the subject vehicles do not
provide any basis for further investigation.
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ODI notes that the petitioner confuses the Brake Assist system
referenced in the Owner's Manual with the brake power assist system.
Brake Assist is a computer controlled automobile braking technology
that increases braking pressure in an emergency situation (e.g., crash
avoidance braking). The Brake Assist technology used by Toyota in the
subject vehicles detects an emergency situation by monitoring the rate
of change of brake hydraulic pressure from the master cylinder. Based
on the information gathered by ODI in interviews of incident drivers,
there is no reason to believe that Brake Assist was activated during
the unwanted acceleration events.\9\ While virtually all of the drivers
indicated that they applied a great deal of force to the brake pedal in
an effort to slow and stop the vehicle, it is possible that the manner
(i.e., rate) in which the force was applied, or the absence of the
amplifying vacuum boost, did not produce a brake system pressure pulse
that is necessary to activate the Brake Assist system.
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\9\ It is not possible to determine whether Brake Assist was
activated for any length of time during any of the unwanted
acceleration incidents ODI investigated in the subject vehicle
population.
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Issue 6: Operation of the subject vehicles' Ignition/Engine
Switch poses a safety issue
Petitioner contends that, according to the description of operation
in the subject vehicle Owner's Manual, the engine cannot be switched
off during an unintended acceleration event as the vehicle is not in
Park.\10\ Petitioner contends further that if the engine can be
switched off during an unintended acceleration event, doing so would
lock the steering wheel and move it up and away from the driver.\11\
The petitioner concludes that ``the inability to turn off the engine in
a safe manner is a significant safety issue with this `push button'
ignition issue.''
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\10\ Petitioner cites the following language to support this
claim: ``The engine cannot be switched to OFF unless the shift lever
is in P.'' Toyota has indicated that this should be changed to the
vehicle cannot be switched OFF until the shift lever is in Park.''
\11\ Petitioner references the following language: ``When the
engine switch is turned OFF, the steering wheel returns to its
stowed position by moving up and away to enable easier driver entry
and exit. Switching to ACC or IG-ON mode will return the steering
wheel to the original position.''
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The petitioner is incorrect in his description of the function of
the ignition switch and steering column safety features. The engine can
be turned off while in motion by pressing and holding the ignition
push-button start/stop switch for at least three seconds. The press and
hold function is meant to avoid inadvertent engine shut-off while in
motion. Turning off the engine in this manner puts the vehicle
electrical system in Accessory (``ACC'') mode, in which the steering
wheel does not lock or retract (as opposed to putting the vehicle in
``OFF'' mode, which can only occur when the vehicle is in Park).\12\
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\12\ In its May 14, 2009, letter, Toyota admits that its
description of the function of these features, even though
``technically correct,'' is confusing. Toyota states that it plans
to revise this portion of the manual to address any confusion.
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Issue 7: Contradictory sensor data logic should resolve on the
side of safety
The petitioner posits that ``contradictory sensor data (e.g., open
throttle and sustained extreme brake pressure) should error on the side
of caution and safety.'' The petitioner correctly notes that the
subject vehicle's throttle control logic does not change with brake
application. However, while in certain circumstances it may be
[[Page 56690]]
desirable for the vehicle throttle control system to respond to
simultaneous applications of brake and accelerator pedals by
prioritizing the braking command and limiting throttle opening, the
absence of this function in the Toyota designs does not render the
vehicles noncompliant with any applicable FMVSS and further
investigation at this time is not likely to result in identification of
a defect trend.
Current VOQ Status. The petitioner states that at the time the
petition was sent there were ``at least 45 VOQs on record with respect
to vehicle speed control involving unwanted acceleration in MY 2007
Lexus ES350.'' Table 2 provides a breakdown of complaints to ODI
relating to unintended acceleration in MY 2007 Lexus ES350 vehicles by
category and date of receipt relative to completion of the prior
investigation.
Analysis of the VOQs cited by the petitioner do not indicate a
defect trend other than that involving the accelerator pedal as held
down by a floor mat. The complaints ODI deemed related to floor mat
interference outnumbered all other reports of alleged sudden and
uncontrollable surge in acceleration reported during and subsequent to
the ODI investigation. As previously noted, Toyota has initiated a
safety recall to address the potential for unwanted acceleration due to
accelerator pedal entrapment by floor mats in approximately 3.8 million
vehicles, including the subject vehicles.
Table 2--Vehicle Owner Questionnaires to ODI Related to Unintended
Acceleration Incidents in MY 2007 Lexus ES350 Vehicles
------------------------------------------------------------------------
Prior to Since EA07-
Unintended acceleration category EA07-010 010 closing Total
closing
------------------------------------------------------------------------
Floor mat interference:
--Recalled accessory all- 22 11 33
weather mats................
--Other floor mats........... 3 9 12
--Consistent with mat 1 4 5
interference (mat unknown)..
--------------------------------------
Subtotal, floor mat 26 24 50
interference............
Other:
--Transmission shift quality. -- 3 3
--Parking lot type maneuvers. 2 6 8
--Throttle response.......... -- 1 1
--Cruise control sensitivity. 1 -- 1
--Other...................... -- 1 1
--------------------------------------
Subtotal, other.......... 3 11 14
--------------------------------------
Total................ 29 35 64
------------------------------------------------------------------------
IV. ODI Analysis of the Petition Request for an Investigation of MY
2002 Through 2003 Lexus ES300 Vehicles
Petitioner requests that ODI investigate MY 2002 through 2003 Lexus
ES300 vehicles for complaints related to the petition for MY 2007 Lexus
ES350 vehicles. Petitioner cites an earlier ODI investigation, PE04-
021, during which 26 complaints initially considered by the Agency as
part of that investigation later were determined to be outside the
scope of that investigation. Petitioner states, ``Reviewing all
pertinent data across model years will better indicate the existence of
any pattern.''
On March 3, 2004, ODI opened Preliminary Evaluation PE04-021 to
investigate allegations of vehicle surge during low speed driving
maneuvers (such as parking) in MY 2002 through 2003 Toyota Camry, Camry
Solara, and Lexus ES300 vehicles (approximately 980,000 vehicles). ODI
opened PE04-021 based on owner reports alleging either an engine speed
increase occurring without pressing on the accelerator pedal or the
engine speed failing to decrease when the accelerator pedal was
released. When PE04-021 was opened, ODI counted 37 complaints,
including 30 reported crashes and 5 alleged injuries, potentially
related to the alleged defect.
Upon further investigation, ODI determined that 26 of the 37
complaints fell outside the scope of PE04-021. ODI determined that
these complaints related to longer duration incidents involving
uncontrollable acceleration where brake pedal application allegedly had
no effect and thus were not within the scope of the investigation. The
investigation focused on incidents where the subject vehicle throttle
control system opened the throttle valve without driver intent. ODI
believed that the resultant vehicle surge could result in a momentary
loss of vehicle control, often resulting in crashes of varying severity
as the drivers were unable to react in time to apply the brakes
effectively.
None of the complaints identified by the petitioner and received by
ODI would fall within the scope of the investigation requested by the
petitioner, nor do they indicate a defect trend unrelated to the
accelerator pedal. In consideration of Mr. Pepski's petition, ODI
conducted a review of the 26 VOQs it determined outside the scope of
PE04-021 as well as any other MY 2002-2003 Lexus ES300 VOQ received by
ODI from the time of the opening of PE04-021 to the receipt of Mr.
Pepski's petition. Of the 26 VOQs outside the scope of PE04-021, only 2
involved MY 2002-2003 ES300 vehicles (VOQ 10032815 and 8017143).\13\
Neither of these VOQs involved longer duration incidents of unintended
acceleration where brake pedal application allegedly was ineffective in
MY 2002 and 2003 Lexus ES300 vehicles. Likewise, none of the remaining
VOQs reviewed by ODI in response to Mr. Pepski's petition fit into that
classification.
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\13\ VOQ 10032815 states that a MY 2002 ES300 was pulling into a
parking space at less than 10 miles per hour when the car suddenly
accelerated. VOQ 8017143 states that a MY 2002 ES300 was pulling
into a parking space with the driver's foot on the brake when it
suddenly accelerated and hit a tree. It also noted that while
driving with the cruise control on the driver tapped the brakes to
disengage the cruise control and the vehicle suddenly accelerated.
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V. Conclusion
Toyota has initiated a safety recall (Recall 09V-388) to address
concerns with potential accelerator pedal entrapment by floor mats in
[[Page 56691]]
approximately 3.8 million vehicles, including the subject vehicles.
Except insofar as the petitioner's contentions relate to that recall,
the factual bases of the petitioner's contentions that any further
investigation is necessary are unsupported. In our view, additional
investigation is unlikely to result in a finding that a defect related
to motor vehicle safety exists or a NHTSA order for the notification
and remedy of a safety-related defect as alleged by the petitioner at
the conclusion of the requested investigation. Therefore, in view of
the need to allocate and prioritize NHTSA's limited resources to best
accomplish the agency's safety mission, the petition is denied. This
action does not constitute a finding by NHTSA that a safety-related
defect does not exist. The agency will take further action if warranted
by future circumstances.
Authority: 49 U.S.C. 30162(d); delegations of authority at CFR
1.50 and 501.8.
Issued on: October 20, 2009.
Kathleen C. DeMeter,
Director, Office of Defects Investigation.
[FR Doc. E9-26265 Filed 10-28-09; 11:15 am]
BILLING CODE 4910-59-P
