[Federal Register Volume 81, Number 42 (Thursday, March 3, 2016)]
[Notices]
[Pages 11351-11354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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]
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