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NHTSA overly reliant on carmakers' accounts during complaint reviews, critics say

By Peter Whoriskey
Washington Post Staff Writer
Friday, February 5, 2010; A01

The deluge of complaints about Toyota cars, first over floor mats, then over sticky pedals and recently over Prius brakes, has aroused criticism that federal regulators compromised vehicle safety by too often trusting carmakers' explanations.

The National Highway Traffic Safety Administration, which is charged with protecting the nation's drivers, has long relied on automakers to help identify perils posed by the cars they make.

The reliance on automakers' cooperation, however, might have diminished drivers' say in the safety review process. During agency reviews, officials have at times minimized or simply rejected consumer accounts of what happened in favor of the manufacturers' assessments, records show.

Persistent but unresolved consumer complaints led to Toyota's current troubles, critics say, forcing the company to recall millions of cars around the world. On Thursday, the NHTSA announced that it had launched an investigation of the brakes on the company's popular Prius hybrid.

The questions about safety have highlighted long-standing criticism of the agency.

"Unfortunately, if the manufacturer says it's OK, then it's OK with them," said Jeffery A. Pepski, 54, a Minnesota driver who unsuccessfully petitioned the NHTSA with a complaint that his Lexus ES 350 accelerated unexpectedly on his way home from work last year. "The agency follows that logic all the way through their investigations. They're not really investigating with an open mind."

NHTSA officials said Thursday that the agency does not rely solely on the manufacturers during investigations. The officials said the NHTSA has a staff of professional investigators who hear from drivers and companies. They take the cars in question on road tests, interview police and ensure that "all avenues are explored," the officials said. Moreover, even critics concede that human memory is fallible.

In examining consumer complaints, the regulators routinely seek out the automaker's engineering analysis, ask that the company inform them of any similar accusations, and require that the manufacturer pass on the details of any injuries, deaths or lawsuits that the alleged defect might have caused.

The company's responses are critical in the agency's determination of whether a defect actually exists, and automakers that fail to respond can be fined as much as $16 million, NHTSA officials said.

The agency and the manufacturers know each other well. Two top officials in Toyota's Washington office, which deals with the NHTSA, are former agency employees.

It is a relationship "built on trust," said Nicole Nason, who was the agency's administrator from 2006 to 2008.

Clarence Ditlow, director of the Center for Auto Safety, says the agency appears to have been too willing to accept Toyota's version of events.

"It's difficult to believe that Toyota doesn't have information on what's causing the failures," he said. "When you have a recalcitrant manufacturer like Toyota, they should use their subpoena authority to get answers."

Regulators are required to referee disputes between drivers who say their car malfunctioned and the auto manufacturer, which often maintains that the car is fine and that if there is a problem, it might be the driver's fault.

Complaints from drivers who said their Toyota Lexus suddenly accelerated illustrate the issues that confront investigators.

The NHTSA recounted one driver's experience: "The vehicle suddenly accelerated and . . . she applied the brakes but the vehicle did not slow down. She also tried the emergency brake but that did not slow the vehicle either. She then hit another vehicle and that stopped her vehicle."

Another driver complained: "I traveled almost 6 miles at 110+ mph . . . before the brakes took hold. Toyota Motor Co. denies this can happen, but this car needs to be recalled. I will never drive this car again and am thankful to be alive."

Agency officials and Toyota had taken the position that such accounts conflicted with basic engineering.

"As with any vehicle in production today, the [Lexus] ES350 service brakes are more than adequate in stopping vehicle with a stuck throttle pedal," Chris Tinto, a Toyota vice president and former NHTSA employee, wrote to the agency in June 2007. In other words, it couldn't have happened that way.

It wasn't until later in 2007 that the agency seemed to have discovered that if a Lexus ES 350's throttle is stuck open, it can be very difficult to stop the car using the brakes, as drivers had said.

"During trapped throttle acceleration testing . . . significant brake pedal force in excess of 150 pounds [of pressure] was required to stop the vehicle," NHTSA investigators wrote after testing a vehicle.

Complaints cited in Pepski's petition show several instances in which the NHTSA accepted Toyota's description of events, which were in direct conflict with the driver's account. A key dispute between the automaker and the drivers is over what caused the episodes of unintended acceleration. Toyota says incorrectly placed floor mats jammed the accelerator. Drivers say that is not possible.

One owner of a 2007 Lexus ES 350 gave this account: "On 9/11/07, the vehicle accelerated at speeds up to 80-90 mph. We are aware of the Lexus notification of floor mat interference, so we removed the mats after the first two times, but the last and most frightening, occurrence happened without the mat in the vehicle."

The NHTSA sided with Toyota, concluding: "All-weather accessory floor mat improperly 'stacked' on top of carpet mat."

The questions about unintended acceleration and the agency's efforts to determine its causes have arisen more recently as Toyota, in seeking to explain the episodes, has shifted from one explanation to another. In the fall, the company blamed the acceleration on improper or wrongly placed floor mats. In recent weeks, it has said that in some cars, the problem may arise from sticky gas pedals.

Pepski can't understand why the NHTSA would listen to Toyota rather than drivers.

"I don't know how they can conclude from talking to Toyota that it was a floor mat issue -- unless the Toyota people were in the car at the time," he said. His petition was dismissed. He never drove his Lexus again.

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