[Federal Register Volume 74, Number 210 (Monday, November 2, 2009)]
[Notices]
[Pages 56686-56691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26265]


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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 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
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    \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
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                                              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\
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    \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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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