81 FR 11351 - Denial of Motor Vehicle Defect Petition

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration

Federal Register Volume 81, Issue 42 (March 3, 2016)

Page Range		11351-11354
FR Document		2016-04605
This notice sets forth the reasons for denying a petition (DP15-007) submitted to NHTSA under 49 U.S.C. 30162 and 49 CFR part 552, requesting that the agency ``have Toyota correct software defects in their electronic throttle control software'' and then ``issue a national recall of all effected [sic] vehicles and have Toyota replace the old faulty code with the new safer code.''
Federal Register, Volume 81 Issue 42 (Thursday, March 3, 2016)
[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11351-11354]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-04605]


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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.

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SUMMARY: This notice sets forth the reasons for denying a petition 
(DP15-007) submitted to NHTSA under 49 U.S.C. 30162 and 49 CFR part 
552, requesting that the agency ``have Toyota correct software defects 
in their electronic throttle control software'' and then ``issue a 
national recall of all effected [sic] vehicles and have Toyota replace 
the old faulty code with the new safer code.''

FOR FURTHER INFORMATION CONTACT: Mr. Stephen McHenry, Vehicle Control 
Division, Office of Defects Investigation, NHTSA, 1200 New Jersey 
Avenue SE., Washington, DC 20590. Telephone 202-366-4883. Email 
[email protected].

SUPPLEMENTARY INFORMATION:

1.0 Introduction

    Interested persons may petition NHTSA requesting that the agency 
initiate an investigation to determine

[[Page 11352]]

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 U.S.C. 30162(a)(2); 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. 49 U.S.C. 30162(c); 49 
CFR 552.6. The technical review may consist solely of a review of 
information already in the possession of the agency, or it may include 
the collection of information from the motor vehicle manufacturer and/
or other sources. After considering the technical review and taking 
into account appropriate factors, which may include, among others,, 
agency priorities, the likelihood of uncovering sufficient evidence to 
establish the existence of a defect, and the likelihood of success in 
any necessary enforcement litigation, the agency will grant or deny the 
petition. See 49 U.S.C. 30162(d); 49 CFR 552.8.

2.0 Petition Background Information

    In a letter dated September 15, 2015, Dr. James Stobie (the 
petitioner) requested that NHTSA ``have Toyota correct software defects 
in their electronic throttle control software'' and then ``issue a 
national recall of all effected [sic] vehicles and have Toyota replace 
the old faulty code with the safer code.'' Dr. Stobie references two 
previous defect petitions related to unintended acceleration in Toyota 
vehicles that NHTSA recently evaluated and denied. The petitioner 
stated that his petition contains new information affecting NHTSA's 
conclusions in the previous petition evaluations. This includes: (1) 
Information related to a crash that occurred as his wife was attempting 
to park their model year 2010 Lexus HS250H; (2) the source of EDR data 
in Toyota vehicles; (3) alleged defects in the Toyota Electronic 
Throttle Control (ETC) software; and (4) a recall conducted by Honda in 
Japan. NHTSA has reviewed the material cited by the petitioner. The 
results of this review and our evaluation of the petition are set forth 
in the DP15-007 Petition Analysis Report, published in its entirety as 
an appendix to this notice.
    After a thorough assessment of the material submitted by the 
petitioner, the information already in NHTSA's possession, and the 
potential risks to safety implicated by the petitioner's allegations, 
it is unlikely that an order concerning the notification and remedy of 
a safety-related defect would result from any proceeding initiated by 
granting Dr. Stobie's petition. After full consideration of the 
potential for finding a safety related defect in the vehicle, and in 
view of NHTSA's enforcement priorities and its previous investigations 
into this issue, the petition is denied.

Appendix--Petition Analysis--DP15-007

1.0 Introduction

    On September 23, 2015, the National Highway Traffic Safety 
Administration (NHTSA) received a September 15, 2015 letter from Dr. 
James Stobie, Ph.D. (the petitioner), petitioning the agency to 
``have Toyota correct software defects in their electronic throttle 
control software'' and then ``issue a national recall of all 
effected [sic] vehicles and have Toyota replace the old faulty code 
with the safer code.'' The petition cites a crash that occurred as 
his wife was attempting to park their model year 2010 Lexus HS250H 
in an angled parking space facing a brick building and references 
two previous Toyota unintended acceleration defect petitions that 
NHTSA evaluated and denied. Dr. Stobie's petition also alleges that 
new information not considered by the Agency in those prior 
petitions should be evaluated by NHTSA. This new information 
includes: (1) The facts and circumstances of a crash that occurred 
as his wife was attempting to park their model year 2010 Lexus 
HS250H; (2) the source of EDR data in Toyota vehicles; (3) alleged 
defects in the Toyota Electronic Throttle Control (ETC) software; 
and (4) a recall conducted by Honda in Japan.

2.0 Petition Analysis

2.1 Background

2.1.1 EDR Data Limitations

    The Toyota EDR collects pre-trigger data (vehicle speed, engine 
speed, brake switch status, and accelerator pedal position sensor #1 
voltage) from the vehicle's High Speed Controller Area Network (HS-
CAN), which is refreshed either periodically or immediately by the 
respective control modules.

           Table 1--EDR Pre-Crash Parameters, by Refresh Rate
------------------------------------------------------------------------
            Parameter                Refresh rate         Resolution
------------------------------------------------------------------------
Brake Switch....................  Immediately.......  On/Off.
Engine RPM......................  24 ms.............  400 RPM.\1\
Vehicle Speed...................  500 ms............  2 km/h.\2\
Accelerator Rate................  512 ms............  0.039 volts.
------------------------------------------------------------------------

    The EDR continuously performs 1 Hz sampling of HS-CAN pre-
trigger data and stores the data in a temporary buffer. The EDR only 
saves this data, along with the trigger data, when it detects a 
triggering event such as a crash.\2\ Table 1 shows the refresh rates 
and resolutions for the pre-crash data signals. Any analysis of EDR 
data for Toyota vehicles should apply these data time tolerances and 
resolutions at each of the pre-crash data points.
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    \1\ EDR recorded data are rounded down in the indicated 
resolution increments.
    \2\ An event is triggered by detection of a deceleration of 
approximately 2 g's.
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    In 2010, NHTSA's Vehicle Research and Test Center (VRTC) 
conducted testing to validate the EDR pre-crash data used in NHTSA 
field investigations.\3\ The testing found that the pre-crash data 
recorded by the Toyota EDR were accurate within the known 
limitations resulting from the data resolution and sampling rates. 
The testing also demonstrated that the EDR does not necessarily 
capture all accelerator pedal applications during an event and the 
accelerator pedal voltage recorded at each EDR time interval may not 
be the actual accelerator pedal voltage at that interval. Subsequent 
studies have confirmed the limitations of stored EDR pre-crash data 
in capturing the entire crash event due to the data refresh rates, 
data resolutions and EDR sampling rates.^{4 5 6}
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    \3\ ``Event Data Recorder--Pre Crash Data Validation of Toyota 
Products,'' NHTSA-NVS-20ll-ETC-SR07, February 2011.
    \4\ Brown, R., White, S., ``Evaluation of Camry HS-CAN Pre-Crash 
Data,'' SAE Technical Paper 2012-01-0996, 2012, doi: 10.4271/2012-
01-0996.
    \5\ Brown, R., Lewis, L., Hare, B., Jakstis, M. et al., 
``Confirmation of Toyota EDR Pre-crash Data,'' SAE Technical Paper 
2012-01-0998, 2012, doi: 10.4271/2012-01-0998.
    \6\ Ruth, R., Bartlett, W., Daily, J., ``Accuracy of Event Data 
in the 2010 and 2011 Toyota Camry During Steady State and Braking 
Conditions,'' SAE Technical Paper 2012-01-0999, 2012, doi: 10.4271/
2012-01-0999.
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    The EDR download report clearly notes these issues in the first 
two items of Data Limitations section on page one of the report:
     Due to limitations of the data recorded by the airbag 
ECU, such as the resolution, data range, sampling interval, time 
period of the recording, and the items recorded, the information 
provided by this data may not be sufficient to capture the entire 
crash.
     Pre-Crash data is recorded in discrete intervals. Due 
to different refresh rates within the vehicle's electronics, the 
data recorded may not be synchronous to each other.

2.1.2 National Research Council Report

    In 2012, the National Research Council released a report that 
included a review of NHTSA's processes for investigating allegations 
of sudden unintended acceleration in Toyota and other vehicles.\7\ 
As noted in the agency's denial of DP14-003, the report concluded 
that NHTSA's decision to close its investigations of Toyota's ETC 
were justified based on the initial investigations, complaint 
analyses, field investigations using EDR data and NASA's examination 
of the Toyota ETC. With regard to allegations of low-speed surging 
with ineffective brakes, the report stated:
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    \7\ NRC. 2011. TRB Special Report 308: The Safety Challenge and 
Promise of Automotive Electronics: Insights from Unintended 
Acceleration. Washington, DC: National Academies Press, (164).

    Reports of braking ineffectiveness in controlling a vehicle 
experiencing the onset of unintended acceleration from a stopped 
position or when moving slowly requires an explanation for the 
ineffectiveness, such as

[[Page 11353]]

physical evidence of damage to the brake system. Under these 
circumstances, investigating for phenomena other than pedal 
misapplication absent an explanation for the ineffectiveness of the 
brakes, which are independent of the throttle control system and are 
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designed to dominate engine torque, is not likely to be useful.

2.2 Crash Incident

    The crash identified by the petitioner involved a sudden 
acceleration incident experienced by his wife as she attempted to 
park the family's 2010 Lexus HS250H on June 20, 2015, while on the 
grounds of the United States Naval Academy.

2.2.1 Driver's Statement

    Mrs. Stobie described the sudden unintended acceleration 
incident in several complaints submitted to ODI from June 21, 2015 
to August 17, 2015 (VOQ's 10726415, 10726781, and 10749195). She 
provided the following statement in the most recent complaint (VOQ 
10749195):

    My accident was caused by unintended acceleration. As I was 
slowly turning right into a parking place, the car suddenly 
accelerated and crashed into a brick building. The force of the 
crash caused the air bags to deploy. There was so much damage to the 
car that it was a total loss. After the crash I obtained the event 
data recorder (EDR) reading from a contractor hired by Toyota. It 
showed that for the last 5 seconds before the crash, I was applying 
very light pressure to the gas pedal up until the last .8 seconds. 
For the last .8 second the EDR shows that my foot was on the brake 
and the throttle was at nearly maximum value. During the last .8 
seconds the car went from 5 mph to 9.9 mph and the engine rpm went 
from 1200 to 2800. I did not apply pressure to the gas pedal at this 
time. I was applying pressure to the brake pedal . . .

2.2.2 Event Data Recorder Data

    The petitioner provided a copy of the EDR download data (Table 
2).

                                                        Table 2--Pre-Crash Data for VOQ 10749195
--------------------------------------------------------------------------------------------------------------------------------------------------------
           Time (sec)                    -4.8                -3.8                -2.8                -1.8                -0.8               0 (TRG)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Vehicle Speed (MPH [km/h])......  2.5 [4]...........  1.2 [2]...........  2.5 [4]...........  3.7 [6]...........  5 [8].............  9.9 [16].
Brake Switch....................  OFF...............  OFF...............  OFF...............  OFF...............  OFF...............  ON.
Accelerator Rate (V [% full       0.78 [0]..........  0.98 [8]..........  1.45 [27].........  1.41 [26].........  1.33 [22].........  3.32 [106].
 apply]).
Engine RPM (RPM)................  800...............  800...............  800...............  1,200.............  1,200.............  2,800.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The EDR data shows that at the most recent EDR sample prior to 
impact (t = -0.8 s), the vehicle is nominally within 10 ft. of the 
building, travelling approximately 7 ft./s, the accelerator is at 
approximately 22 percent of full apply and the brake is not applied. 
The recorded data at the airbag trigger point (t = 0 s), shows that 
the accelerator pedal was fully applied \8\ at sometime within 0.512 
seconds prior to the trigger point (see Section 2.1.1 EDR Data 
Limitations for the source and refresh rate of Accelerator Rate) and 
the brake switch is ``On.''
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    \8\ According to Toyota, an Accelerator Rate of 3.188 volts 
corresponds with a 100% accelerator pedal application resulting in 
wide-open throttle. Any further application of the pedal may produce 
higher voltage, but will not result in any additional throttle 
opening.
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    In support of his allegation that data provided to the EDR was 
corrupted by an undefined software error, the petitioner notes that 
the EDR erroneously states that the brake pedal and accelerator were 
both being pressed at the same time. Other vehicle data shows that 
they were not: This information does not validate the conclusion 
adopted in the petition. Separate data downloaded from the Hybrid 
Control Unit (HCU) for the petitioner's vehicle indicates that the 
brake pedal and the accelerator pedal were not applied 
simultaneously at any time during the key cycle in which the 
petitioner's accident occurred.\9\ As noted above, the EDR reads the 
position of the brake light switch instantaneously while there can 
be a time lag as long as 0.512 seconds in writing accelerator 
position to the EDR. Since the brake light switch was in the ON 
state at the air bag trigger point, this indicates that the brake 
was not applied until after the accelerator pedal was released, 
which must have occurred in the final half second of travel.
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    \9\ The HCU receives data directly from the Accelerator Pedal 
Position Sensor and Brake Stop Lamp Switch and records any instance 
in which the pedals are applied at the same time in a particular 
drive cycle. Hybrid motor protection logic will override accelerator 
pedal signals that occur when the brake is applied.
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    In addition, as noted by the petitioner, brake testing conducted 
by Toyota field inspectors after the incident found that the system 
performed normally and was capable of stopping a vehicle at full 
throttle:

    During the test drive they floored the accelerator and then 
quickly slammed on the brakes. The car behaved as expected. Nowhere 
did they find a safety defect.

    Based on the recorded vehicle speeds, the vehicle was inside the 
parking space when the most significant acceleration occurred. At 
this time and distance from impact, a driver would normally be 
applying the brake or coasting and not applying the accelerator to 
full throttle. Although the driver alleged that the brakes were not 
effective during the incident, the brakes had no prior history of 
malfunction and the post-incident inspection did not identify any 
issues with the brake system. Review of the EDR and HCU data 
indicate very late activation of the Brake Stop Lamp Switch after 
full application of the accelerator pedal. These data do not support 
the driver's statement that the brake was applied when the 
acceleration occurred. Based on the foregoing information, this 
incident appears to be a case of pedal misapplication.

2.3 Source of EDR Data

    The petitioner correctly notes that the EDR receives the 
Accelerator Rate voltage from the engine computer and not directly 
from the pedal and asserts that this is ``new critical information 
about EDR data.'' In the petitioner's view, the analog to digital 
conversion of the accelerator pedal signal and subsequent processing 
by the engine computer creates a potential pathway for an unknown 
software error to create erroneous accelerator position data. 
However, this is not ``new'' information about the source of the 
accelerator pedal position data sampled and recorded by the EDR. All 
prior work by the agency related to Toyota EDR data dating back to 
the joint NHTSA/NASA study, including the two previous petitions and 
other studies referenced in that work, recognized and reported that 
the EDR samples Accelerator Rate voltage data from the HS-CAN bus. 
Further, as discussed below, the engine computer software has been 
exhaustively examined, including analysis in the NHTSA/NASA study, 
and no one, even consultants who have offered testimony asserting 
the software is defective, has identified a specific and 
reproducible mechanism or set of conditions that produces unintended 
acceleration or the ``false'' data phenomenon put forward in the 
petition. As noted in the prior work and in Section 2.1.1 of this 
report, the HS-CAN bus receives the Accelerator Rate data from the 
engine control module, which refreshes the data every 512 ms (see 
Table 1).
    The EDR continuously samples the HS-CAN data once per second and 
stores the data in a temporary buffer. The EDR only saves this data, 
along with the trigger data, when it detects a triggering event such 
as a crash. Because of the manner in which the ECM updates/refreshes 
the data to the HS-CAN, the ``recorded'' Accelerator Rate data saved 
by the EDR is not necessarily the ``actual'' data at the precise 
time intervals captured by the EDR. For example, the Accelerator 
Rate recorded by the EDR for the petitioner's crash at the trigger 
point (t = 0 s) is not necessarily the actual data at the trigger 
point, but the most recent value refreshed to the HS-CAN over the 
prior 512 ms. This explains why it is possible for the EDR data to 
show that the accelerator appeared to be applied fully at the same 
time the brake switch was in the ON position when the HCU data shows 
that the brake and the accelerator were not applied simultaneously.

2.4 Alleged Software Defects

    The petitioner states that software defect theories posited by 
plaintiff experts in

[[Page 11354]]

unintended acceleration litigation against Toyota is new evidence 
since the joint NHTSA/NASA study. However, ODI has previously 
reviewed this information during its evaluation of DP14-003. The 
petitioner does not provide any new information about the theories 
or his allegations of defects in the Toyota ETC software. As noted 
in ODI's denial report for DP14-003, the software defect theories 
failed to identify a precise cause for sudden acceleration, the 
software experts did not reproduce the alleged software defects in 
testing, and the theorized conditions did not result in sudden 
acceleration when artificially simulated. We find no basis for 
concluding that the software defect theories constitute 
scientifically valid evidence or could explain the incident alleged 
by the petitioner.
    ODI's assessment of the software defect theories is not 
substantially different from that of one of the plaintiff attorneys 
who hired the software experts. These plaintiff attorneys provided 
the following characterization of the software experts' work and 
findings in a document related to the Toyota SUA property loss 
settlement in 2013:

    While Plaintiffs' software experts raised certain software 
design and architecture issues, they have not been able to identify 
a defect that is responsible for the vast array of SUAs reported to 
Toyota and NHTSA by vehicle owners. More specifically, Plaintiffs 
have been unable to reproduce a UA in a Subject vehicle under 
driving conditions.\10\
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    \10\ Berman, S., Seltzer, M., and Pitre,. F. (2013, April 23). 
Plaintiff's Memorandum in Support of Plaintiffs' Motion for an Award 
of Attorneys' Fees, Reimbursement of Expenses, and Compensation to 
Named Plaintiffs, page 12. In Re: Toyota Motor Corp. Unintended 
Acceleration Marketing, Sales Practices, and Products Liability 
Litigation. United States District Court, Central District of 
California. Case No. 8:10ML2151. Retrieved from https://www.toyotaelsettlement.com/Home/CaseDocs.

    In addition, an October 2013 order from the presiding judge in 
the Toyota ETC multi-district litigation provided the following 
characterization of the software defect theories cited by the 
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petitioner when issuing a ruling in a sudden acceleration case:

    Toyota's Motion for Summary Judgment is premised on the 
uncontroverted fact that Plaintiff has been unable to identify a 
precise software design or manufacturing defect and point to 
physical or otherwise traceable evidence that the defect actually 
caused the Camry throttle to open from an idle position to a much 
wider angle without analog input from the driver via the accelerator 
pedal. To a lesser extent, it is also premised upon the fact that 
Plaintiff cannot prove the actual failure of Toyota's fail-safe 
mechanisms in the Camry on the day of the collision.

2.5 The Honda Example

    The petitioner references a 2014 recall of 175,000 Honda Fit 
vehicles in Japan as an example of a software defect causing 
unintended acceleration accidents (Honda Foreign Campaign Number 
14F-057). The Honda recall addressed programming flaws that may 
result in unintended acceleration during specific operating 
conditions. Honda's Foreign Recall Report to NHTSA described the 
programming flaws and operating conditions:

    The vehicle may lurch forward due to excessive driving force 
generated by the motor if the accelerator pedal is pressed strongly 
when the vehicle is in Engine mode and shifted into Drive or 
Reverse, or the vehicle is in EV mode and being operated on a slope. 
The vehicle may also lurch forward momentarily due to excessive 
driving force generated by the motor when switching from EV mode to 
Engine mode after being in stop and go traffic.

    Honda was able to reproduce the conditions described in the 
recall and develop a software update to address the ``lurching'' 
concerns. The conditions addressed by the Honda recall are 
associated with brief surges that occur when the accelerator pedal 
is being applied under specific operating conditions and, thus, are 
not related to the petitioner's incident or allegations (which claim 
sustained acceleration during brake application), nor have they been 
observed in the general population of Toyota ETC vehicles. Finally, 
ODI is not aware of any vehicle defect theories, from the software 
experts cited by the petitioner or anyone else, that have similarly 
documented and reproduced a sudden unintended acceleration condition 
in the Toyota vehicles that would be attributable to the electronic 
throttle control software in those vehicles.

3.0 Conclusion

    The petitioner does not provide any new evidence in support of 
his petition. In our view, a defects investigation is unlikely to 
result in a finding that a defect related to motor vehicle safety 
exists, or a NHTSA order for the notification and remedy of a safety 
related defect as alleged by the petitioner, at the conclusion of 
the requested investigation. Therefore, given a thorough analysis of 
the potential for finding a safety related defect in the vehicle, 
and in view of NHTSA's enforcement priorities and its previous 
investigations into this issue, 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 49 
CFR 1.50 and 501.8.

Frank S. Borris II,
Acting Associate Administrator for Enforcement.

[FR Doc. 2016-04605 Filed 3-2-16; 8:45 am]
BILLING CODE 4910-59-P
Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices 11351

current circular. Additionally, this Proposed subsection 2.2.7, determine the frequency and scope of
section discusses a new MOU between ‘‘Monitoring and Reporting,’’ updates the reviews at its discretion and on a
EEOC and FTA which allows FTA to the description of the purposes of the case-by-case basis.
obtain the agency’s EEO–4 utilization monitoring and reporting system. The Proposed section 3.1.3 removes the
numbers. As a result, the transit agency proposed section adds a requirement for explanation of Remedial Action Plans.
or grantee will be able to access their agencies to describe the complaint Proposed section 3.2, ‘‘Complaints,’’
current utilization numbers and process and maintain a log of is reorganized and proposes to add
complete the required utilization in complains. The proposed section also significantly more detail to the
FTA’s electronic database under the requires agencies to maintain records on complaint process. In proposed
proposed language. For agencies under applicants, hires, transfers, promotions, subsection 3.2.6, FTA proposes to add
100 employees that do not submit training and termination. Finally, the an Administrative Closure option.
reports to EEOC, this proposed section proposed section adds a list of Required FTA seeks comment on the content of
also includes links to a Microsoft Excel EEOP Attachments. Chapter 3.
spreadsheet template (with instructions) FTA seeks comment on the content of
D. Appendix A—References
for use in completing the utilization and Chapter 2. With regards to the EEOP
availability analysis. The proposed process, FTA seeks comment on the Proposed Appendix A adds a list of
language adds requirements for paperwork burdens for carrying out the references to the proposed circular. A
Availability Analysis, including requirements set forth in the proposed similar list is contained on the cover
explanation of and requirements for circular. Specifically FTA seeks page of the existing circular. The
explaining why agencies selected comment on how long it will take to proposed list of references in Appendix
particular areas for the analysis and develop an EEO Program with the A updates and adds references based on
quantifying plans when underutilization requirements set out in Chapter 2 of the the current state of the law and
is identified. proposed Circular. FTA also seeks guidance.
suggestions from grantees regarding how FTA seeks comment on the content of
Proposed subsection 2.2.5, ‘‘Goals and Appendix A.
Timetables,’’ proposes to require to use information technology to
agencies to set long term and short term decrease the amount of time it takes to Issued in Washington, DC.
numerical goals and timetables for each develop an EEO Program. Therese W. McMillan,
individual minority group, broken down C. Chapter 3—EEO Compliance Acting Administrator.
by specific racial/ethnic subcategories Oversight, Complaints, and [FR Doc. 2016–04648 Filed 3–2–16; 8:45 am]
for men and women. This section Enforcement BILLING CODE 4910–57–P
includes changes to the guidelines for Chapter 3 of the proposed circular
goal setting, including a guideline to set combines topics covered in chapters IV,
goals that are realistic and measurable. V, and VI of the existing circular. It DEPARTMENT OF TRANSPORTATION
The proposed requirements reduce the explains how FTA carries out its EEO
long term goal period from 4–5 years to National Highway Traffic Safety
oversight and enforcement Administration
2 or more years. FTA also proposes to responsibilities. This includes a
add a requirement that agencies collect discussion of factors that lead to FTA Denial of Motor Vehicle Defect Petition
reports from unit managers on a conducting a compliance review such as
scheduled basis to determine what goals lawsuits, complaints, or investigations AGENCY: National Highway Traffic
are being met and to review these conducted by organizations other than Safety Administration, (NHTSA),
reports with all levels of management. FTA, insufficient EEO program Department of Transportation.
Proposed subsection 2.2.6, submissions, EEO findings, or ACTION: Denial of a petition for a defect
‘‘Assessment of Employment Practices,’’ recommendations from prior triennial, investigation.
removes reference to ‘‘Affirmative state management reviews that are
Action’’ in the heading. It also proposes deficient. The chapter explains the EEO SUMMARY: This notice sets forth the
to move discussion of self-analysis from compliance review process and the reasons for denying a petition (DP15–
the Goals and Timetables section of the required steps for implementing 007) submitted to NHTSA under 49
current circular to proposed subsection corrective actions for any deficiencies U.S.C. 30162 and 49 CFR part 552,
2.2.6. We propose to add a requirement found during the review. The chapter requesting that the agency ‘‘have Toyota
that statistical data show any potential also covers the complaint process and correct software defects in their
impact of an agency’s employment how grantees can file a complaint. electronic throttle control software’’ and
practices on persons with disabilities Proposed section 3.1, ‘‘Compliance then ‘‘issue a national recall of all
and veterans. This includes the number Oversight,’’ updates the description of effected [sic] vehicles and have Toyota
of applicants for employment, the types of oversight reviews and replace the old faulty code with the new
number hired, and the number authorities for such reviews. FTA safer code.’’
promoted, cross-references by sex and proposes to change the description of FOR FURTHER INFORMATION CONTACT: Mr.
race. Having this data will assist in compliance reviews to encompass all Stephen McHenry, Vehicle Control
measuring the effectiveness of outreach reviews and remove the distinction Division, Office of Defects Investigation,
and recruitment efforts for persons with between ‘‘Application Reviews’’ and NHTSA, 1200 New Jersey Avenue SE.,
disabilities and veterans. The proposed ‘‘Post-Approval Reviews’’ in the existing Washington, DC 20590. Telephone 202–
366–4883. Email stephen.mchenry@
mstockstill on DSK4VPTVN1PROD with NOTICES

section also adds requirements for a circular. Further, FTA proposes to
description of the agency’s training change the frequency requirement for dot.gov.
programs, review of wage and salary compliance reviews outside of the SUPPLEMENTARY INFORMATION:
structure, establishment of privacy Triennial Review or State Management
protocols, and collection of reports from Review cycle. The current circular 1.0 Introduction
unit managers on a scheduled basis in requires these reviews ‘‘at least once Interested persons may petition
a manner similar to Goals and every 3 years.’’ FTA proposes to change NHTSA requesting that the agency
Timetables requirements. the frequency to allow FTA to initiate an investigation to determine

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Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices 11353

physical evidence of damage to the brake 2.2.1 Driver’s Statement recorder (EDR) reading from a contractor
system. Under these circumstances, Mrs. Stobie described the sudden hired by Toyota. It showed that for the last
investigating for phenomena other than unintended acceleration incident in several 5 seconds before the crash, I was applying
pedal misapplication absent an explanation complaints submitted to ODI from June 21, very light pressure to the gas pedal up until
for the ineffectiveness of the brakes, which 2015 to August 17, 2015 (VOQ’s 10726415, the last .8 seconds. For the last .8 second the
are independent of the throttle control system 10726781, and 10749195). She provided the EDR shows that my foot was on the brake
and are designed to dominate engine torque, following statement in the most recent and the throttle was at nearly maximum
is not likely to be useful. complaint (VOQ 10749195): value. During the last .8 seconds the car went
My accident was caused by unintended from 5 mph to 9.9 mph and the engine rpm
2.2 Crash Incident went from 1200 to 2800. I did not apply
acceleration. As I was slowly turning right
The crash identified by the petitioner into a parking place, the car suddenly pressure to the gas pedal at this time. I was
involved a sudden acceleration incident accelerated and crashed into a brick applying pressure to the brake pedal . . .
experienced by his wife as she attempted to building. The force of the crash caused the
park the family’s 2010 Lexus HS250H on air bags to deploy. There was so much 2.2.2 Event Data Recorder Data
June 20, 2015, while on the grounds of the damage to the car that it was a total loss. The petitioner provided a copy of the EDR
United States Naval Academy. After the crash I obtained the event data download data (Table 2).

TABLE 2—PRE-CRASH DATA FOR VOQ 10749195
Time (sec) ¥4.8 ¥3.8 ¥2.8 ¥1.8 ¥0.8 0 (TRG)

Vehicle Speed (MPH [km/h]) ............................... 2.5 [4] .......... 1.2 [2] .......... 2.5 [4] .......... 3.7 [6] .......... 5 [8] ............. 9.9 [16].
Brake Switch ....................................................... OFF ............. OFF ............. OFF ............. OFF ............. OFF ............. ON.
Accelerator Rate (V [% full apply]) ...................... 0.78 [0] ........ 0.98 [8] ........ 1.45 [27] ...... 1.41 [26] ...... 1.33 [22] ...... 3.32 [106].
Engine RPM (RPM) ............................................. 800 .............. 800 .............. 800 .............. 1,200 ........... 1,200 ........... 2,800.

The EDR data shows that at the most recent accelerator pedal was released, which must the agency related to Toyota EDR data dating
EDR sample prior to impact (t = ¥0.8 s), the have occurred in the final half second of back to the joint NHTSA/NASA study,
vehicle is nominally within 10 ft. of the travel. including the two previous petitions and
building, travelling approximately 7 ft./s, the In addition, as noted by the petitioner, other studies referenced in that work,
accelerator is at approximately 22 percent of brake testing conducted by Toyota field recognized and reported that the EDR
full apply and the brake is not applied. The inspectors after the incident found that the samples Accelerator Rate voltage data from
recorded data at the airbag trigger point (t = system performed normally and was capable the HS–CAN bus. Further, as discussed
0 s), shows that the accelerator pedal was of stopping a vehicle at full throttle: below, the engine computer software has
fully applied 8 at sometime within 0.512 During the test drive they floored the been exhaustively examined, including
seconds prior to the trigger point (see Section accelerator and then quickly slammed on the analysis in the NHTSA/NASA study, and no
2.1.1 EDR Data Limitations for the source and brakes. The car behaved as expected. one, even consultants who have offered
refresh rate of Accelerator Rate) and the brake Nowhere did they find a safety defect. testimony asserting the software is defective,
switch is ‘‘On.’’ Based on the recorded vehicle speeds, the has identified a specific and reproducible
In support of his allegation that data vehicle was inside the parking space when mechanism or set of conditions that produces
provided to the EDR was corrupted by an the most significant acceleration occurred. At unintended acceleration or the ‘‘false’’ data
undefined software error, the petitioner notes this time and distance from impact, a driver phenomenon put forward in the petition. As
that the EDR erroneously states that the brake would normally be applying the brake or noted in the prior work and in Section 2.1.1
pedal and accelerator were both being coasting and not applying the accelerator to of this report, the HS–CAN bus receives the
pressed at the same time. Other vehicle data full throttle. Although the driver alleged that Accelerator Rate data from the engine control
shows that they were not: This information the brakes were not effective during the module, which refreshes the data every 512
does not validate the conclusion adopted in incident, the brakes had no prior history of ms (see Table 1).
the petition. Separate data downloaded from malfunction and the post-incident inspection The EDR continuously samples the HS–
the Hybrid Control Unit (HCU) for the did not identify any issues with the brake CAN data once per second and stores the
petitioner’s vehicle indicates that the brake system. Review of the EDR and HCU data data in a temporary buffer. The EDR only
pedal and the accelerator pedal were not indicate very late activation of the Brake Stop saves this data, along with the trigger data,
applied simultaneously at any time during Lamp Switch after full application of the when it detects a triggering event such as a
the key cycle in which the petitioner’s accelerator pedal. These data do not support crash. Because of the manner in which the
accident occurred.9 As noted above, the EDR the driver’s statement that the brake was ECM updates/refreshes the data to the HS–
reads the position of the brake light switch applied when the acceleration occurred. CAN, the ‘‘recorded’’ Accelerator Rate data
instantaneously while there can be a time lag Based on the foregoing information, this saved by the EDR is not necessarily the
as long as 0.512 seconds in writing incident appears to be a case of pedal ‘‘actual’’ data at the precise time intervals
accelerator position to the EDR. Since the misapplication. captured by the EDR. For example, the
brake light switch was in the ON state at the Accelerator Rate recorded by the EDR for the
air bag trigger point, this indicates that the 2.3 Source of EDR Data petitioner’s crash at the trigger point (t = 0
brake was not applied until after the The petitioner correctly notes that the EDR s) is not necessarily the actual data at the
receives the Accelerator Rate voltage from the trigger point, but the most recent value
8 According to Toyota, an Accelerator Rate of engine computer and not directly from the refreshed to the HS–CAN over the prior 512
3.188 volts corresponds with a 100% accelerator pedal and asserts that this is ‘‘new critical ms. This explains why it is possible for the
pedal application resulting in wide-open throttle. information about EDR data.’’ In the EDR data to show that the accelerator
Any further application of the pedal may produce petitioner’s view, the analog to digital
mstockstill on DSK4VPTVN1PROD with NOTICES

appeared to be applied fully at the same time
higher voltage, but will not result in any additional conversion of the accelerator pedal signal the brake switch was in the ON position
throttle opening. and subsequent processing by the engine
9 The HCU receives data directly from the
when the HCU data shows that the brake and
computer creates a potential pathway for an the accelerator were not applied
Accelerator Pedal Position Sensor and Brake Stop
Lamp Switch and records any instance in which the
unknown software error to create erroneous simultaneously.
pedals are applied at the same time in a particular accelerator position data. However, this is
not ‘‘new’’ information about the source of 2.4 Alleged Software Defects
drive cycle. Hybrid motor protection logic will
override accelerator pedal signals that occur when the accelerator pedal position data sampled The petitioner states that software defect
the brake is applied. and recorded by the EDR. All prior work by theories posited by plaintiff experts in

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11354 Federal Register / Vol. 81, No. 42 / Thursday, March 3, 2016 / Notices

unintended acceleration litigation against the programming flaws and operating DEPARTMENT OF TRANSPORTATION
Toyota is new evidence since the joint conditions:
NHTSA/NASA study. However, ODI has The vehicle may lurch forward due to National Highway Traffic Safety
previously reviewed this information during Administration
excessive driving force generated by the
its evaluation of DP14–003. The petitioner
does not provide any new information about motor if the accelerator pedal is pressed [Docket No. NHTSA–2013–0109, Notice 2]
the theories or his allegations of defects in strongly when the vehicle is in Engine mode
the Toyota ETC software. As noted in ODI’s and shifted into Drive or Reverse, or the Decision That Certain Nonconforming
denial report for DP14–003, the software vehicle is in EV mode and being operated on Model Year 2006–2007 European
defect theories failed to identify a precise a slope. The vehicle may also lurch forward Market Ferrari 599 GTB Passenger
cause for sudden acceleration, the software momentarily due to excessive driving force Cars Manufactured Prior to September
experts did not reproduce the alleged generated by the motor when switching from 2007 Are Eligible for Importation
software defects in testing, and the theorized EV mode to Engine mode after being in stop
conditions did not result in sudden and go traffic. AGENCY: National Highway Traffic
acceleration when artificially simulated. We Safety Administration (NHTSA),
find no basis for concluding that the software Honda was able to reproduce the
conditions described in the recall and Department of Transportation (DOT).
defect theories constitute scientifically valid
evidence or could explain the incident develop a software update to address the ACTION: Grant of petition.
alleged by the petitioner. ‘‘lurching’’ concerns. The conditions
ODI’s assessment of the software defect addressed by the Honda recall are associated SUMMARY: This document announces a
theories is not substantially different from with brief surges that occur when the decision by the National Highway
that of one of the plaintiff attorneys who accelerator pedal is being applied under Traffic Safety Administration (NHTSA)
hired the software experts. These plaintiff specific operating conditions and, thus, are that certain model year (MY) 2006–2007
attorneys provided the following not related to the petitioner’s incident or European market Ferrari 599 GTB
characterization of the software experts’ work allegations (which claim sustained passenger cars (PCs) manufactured prior
and findings in a document related to the to September 2007 that were not
acceleration during brake application), nor
Toyota SUA property loss settlement in 2013: originally manufactured to comply with
have they been observed in the general
While Plaintiffs’ software experts raised population of Toyota ETC vehicles. Finally, all applicable Federal motor vehicle
certain software design and architecture safety standards (FMVSS), are eligible
ODI is not aware of any vehicle defect
issues, they have not been able to identify a for importation into the United States
defect that is responsible for the vast array theories, from the software experts cited by
of SUAs reported to Toyota and NHTSA by the petitioner or anyone else, that have because they are substantially similar to
vehicle owners. More specifically, Plaintiffs similarly documented and reproduced a vehicles originally manufactured for
have been unable to reproduce a UA in a sudden unintended acceleration condition in importation into and sale in the United
Subject vehicle under driving conditions.10 the Toyota vehicles that would be States that were certified by their
In addition, an October 2013 order from attributable to the electronic throttle control manufacturer as complying with the
the presiding judge in the Toyota ETC multi- software in those vehicles. safety standards (the U.S. certified
district litigation provided the following version of the MY 2007 Ferrari 599 GTB
characterization of the software defect 3.0 Conclusion
PC), and they are capable of being
theories cited by the petitioner when issuing The petitioner does not provide any new readily altered to conform to the
a ruling in a sudden acceleration case: evidence in support of his petition. In our standards.
Toyota’s Motion for Summary Judgment is view, a defects investigation is unlikely to
premised on the uncontroverted fact that result in a finding that a defect related to DATES: This decision became effective
Plaintiff has been unable to identify a precise motor vehicle safety exists, or a NHTSA on February 26, 2016.
software design or manufacturing defect and order for the notification and remedy of a ADDRESSES: For further information
point to physical or otherwise traceable safety related defect as alleged by the contact George Stevens, Office of
evidence that the defect actually caused the petitioner, at the conclusion of the requested Vehicle Safety Compliance, NHTSA
Camry throttle to open from an idle position (202–366–5308).
investigation. Therefore, given a thorough
to a much wider angle without analog input
from the driver via the accelerator pedal. To analysis of the potential for finding a safety SUPPLEMENTARY INFORMATION:
a lesser extent, it is also premised upon the related defect in the vehicle, and in view of
NHTSA’s enforcement priorities and its Background
fact that Plaintiff cannot prove the actual
failure of Toyota’s fail-safe mechanisms in previous investigations into this issue, the Under 49 U.S.C. 30141(a)(1)(A), a
the Camry on the day of the collision. petition is denied. This action does not motor vehicle that was not originally
constitute a finding by NHTSA that a safety manufactured to conform to all
2.5 The Honda Example
related defect does not exist. The agency will applicable FMVSS shall be refused
The petitioner references a 2014 recall of take further action if warranted by future admission into the United States unless
175,000 Honda Fit vehicles in Japan as an circumstances.
example of a software defect causing NHTSA has decided that the motor
unintended acceleration accidents (Honda Authority: 49 U.S.C. 30162(d); delegations vehicle is substantially similar to a
Foreign Campaign Number 14F–057). The of authority at 49 CFR 1.50 and 501.8. motor vehicle originally manufactured
Honda recall addressed programming flaws Frank S. Borris II, for importation into and sale in the
that may result in unintended acceleration United States, certified as required
during specific operating conditions. Honda’s Acting Associate Administrator for
under 49 U.S.C. 30115, and of the same
Foreign Recall Report to NHTSA described Enforcement.
model year as the model of the motor
[FR Doc. 2016–04605 Filed 3–2–16; 8:45 am] vehicle to be compared, and is capable
10 Berman, S., Seltzer, M., and Pitre,. F. (2013,
mstockstill on DSK4VPTVN1PROD with NOTICES

BILLING CODE 4910–59–P of being readily altered to conform to all
April 23). Plaintiff’s Memorandum in Support of
Plaintiffs’ Motion for an Award of Attorneys’ Fees,
applicable FMVSS.
Reimbursement of Expenses, and Compensation to Petitions for eligibility decisions may
Named Plaintiffs, page 12. In Re: Toyota Motor be submitted by either manufacturers or
Corp. Unintended Acceleration Marketing, Sales importers who have registered with
Practices, and Products Liability Litigation. United
States District Court, Central District of California.
NHTSA pursuant to 49 CFR part 592. As
Case No. 8:10ML2151. Retrieved from https:// specified in 49 CFR 593.7, NHTSA
www.toyotaelsettlement.com/Home/CaseDocs. publishes notice in the Federal Register

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Document Created: 2016-03-03 03:51:41
Document Modified: 2016-03-03 03:51:41
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Notices
Action		Denial of a petition for a defect investigation.
Contact		Mr. Stephen McHenry, Vehicle Control Division, Office of Defects Investigation, NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone 202-366-4883. Email [email protected]
FR Citation		81 FR 11351
81 FR 11351 - Denial of Motor Vehicle Defect Petition

DEPARTMENT OF TRANSPORTATIONNational Highway Traffic Safety Administration

Federal Register Volume 81, Issue 42 (March 3, 2016)

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
