The Amazing Shrinking 114

Federal Motor Vehicle Safety Standard (FMVSS) 114 Theft Protection and Rollaway Prevention began its life in 1969 as solely a theft protection standard in response to a wave of amateur car thieves and the attendant mayhem on the road. By the late 1980s, that rule began to tackle the problem of rollaways caused by the ability to inadvertently shift the gear selector into non-Park positions with the key removed from the ignition. In the mid-2000s, the agency began another round of rulemaking to address the advent of keyless ignitions. But the standard has not been amended in 17 years, and during that time it has drifted far from its historic intent, providing the public with little theft protection or rollaway prevention. Whether the issue is deadly rollaways in keyless ignition vehicles or a tsunami of auto thefts, NHTSA has found no recourse in FMVSS 114 – the standard it wrote to address these hazards. Be it rulemaking, compliance, or enforcement NHTSA has consistently reacted to issues that underscore the standard’s weakness by declining to use its authority to uphold the standard’s intent. That is especially true if identified safety hazards can be blamed on drivers, rather than designs which encourage human errors without adequate countermeasures.

In 2021, Congress broke a decade-long impasse to update the standard with the passage of the Infrastructure and Jobs Act. The law compels NHTSA to pass a Final Rule requiring vehicles with keyless ignitions to install an automatic engine idle shutdown to prevent carbon monoxide poisonings. Ford and GM have been doing this beginning in 2012. Chrysler had one vehicle in 2018. Toyota followed suit in the last few years. According to the Fall Unified Agenda, in which various federal agencies publish their schedules of rulemaking activities, NHTSA expects to publish a new FMVSS 114 Notice of Proposed Rulemaking in June.

Last week, in response to the surge in amateurs stealing Hyundai and Kia vehicles with inadequate theft protection, Safety Research & Strategies submitted a petition for further rulemaking, to strengthen the anti-theft compliance test provision, which is virtually un-fail-able. The petition outlines the current Kia Boyz continuing mayhem, history of the standard, the basic and vague requirements of the current anti-theft test, and compares them to the specific and more rigorous requirements of the tests for immobilizers – which are optional for manufacturers.

We can’t say why NHTSA has abandoned FMVSS 114, but we can chronicle its descent into near-irrelevancy.

Theft Protection?

In the late 1960s, many amateur car thefts never had to break a window or jimmy a lock – they simply slipped into the driver’s seat of a vehicle with the keys dangling in the ignition and took off. Yet, joyriding posed a significant safety hazard, because thieves were not only stealing cars, they were getting into crashes and causing injuries to themselves and others — and at a disproportionately higher rate than vehicles that were not stolen. According to an April 1968 Federal Register Notice proposing FMVSS 114:

The evidence shows that cars operated by unauthorized persons are far more likely to cause unreasonable risk of accident, personal injury, and death than those which are driven by authorized individuals. Further, the incidence of theft, and hence the risk of accidents attributable thereto is increasing. According to a recent study by the Department of Justice there were an estimated 94,000 stolen cars involved in accidents in 1966, and more than 18,000 of these accidents resulted in injury to one or more people. On a proportionate basis, 18.2 percent of the stolen cars became involved in accidents, and 19.6 percent of the stolen-car accidents resulted in personal injury. The same study predicted that automobile thefts in 1967 total about 650,000; about 100,000 of these stolen cars could be expected to become involved in highway accidents. Comparing these figures with statistics for vehicles which are not stolen, the approximate rate for stolen cars would be some 200 times the normal accident rate for other vehicles. Thus, a reduction in the incidence of auto theft would make a substantial contribution to motor vehicle safety. It would not only reduce the number of injuries and deaths among those who steal cars, it would also protect the many innocent members of the public who are killed and injured by stolen cars each year

In response, NHTSA proposed to establish a theft protection rule. From the beginning, the agency’s goal was to remind drivers, via an audible warning, that they had left the key in the ignition and to make it difficult for thieves to activate the engine “within a short period of time.”

Some automakers questioned whether NHTSA was properly using its authority, or had a solid factual basis for its proposal.  Others supported the idea, but found NHTSA’s execution to be totally wrong. Nonetheless, there was consensus for the objective of thwarting the casual thief from nicking a car, and manufacturers were quite firm that they didn’t want to be forced to use a specific anti-theft technology to do so. They argued, persuasively, that technology was always evolving, and that it was necessary to stay nimble to keep one step ahead of criminals who can eventually figure out how to overcome a system.

The agency agreed that it would be best to keep the language of the technology neutral, and allow automakers to use, develop and innovate any strategy that satisfied the regulatory language. The Final Rule simply requires:

Each vehicle must have a starting system which, whenever the key is removed from the starting system prevents:

(a) The normal activation of the vehicle’s engine or motor; and

(b) Either steering, or forward self-mobility, of the vehicle, or both.

Although the final rule was not technically prescriptive, there were nine years of discussions about the best ways to accomplish this. And, even back then, the agency understood that insufficient shielding of ignition wires was a factor in the speed at which a thief could breach the ignition system. In May 1979, a constituent of then Sen. Ernest Hollings noted that cars were easier to steal due to manufacturers’ change from “a heavy metal casting steering-column (at a weight savings of only 1 ½ pounds) to a molded-plastic housing which no longer adequately protects the ignition lock.” In a 1971 docket, NHTSA wrote:

After a review of the state of the art in lock design and the difficulty of articulating performance standards for stronger locks, the NHTSA has tentatively concluded that it would be more effective to approach the problem of the susceptibility of locks to tampering by limiting the utility of removing the lock. Consequently, a new requirement is being proposed which requires the ignition systems to be inoperative if any part of the ignition lock is removed. To further protect the ignition system, the agency proposes also that the wires which activate this system shall be shielded so that they cannot be directly contacted from within the passenger compartment. The shielding could be provided by the vehicle structure or by other means. The agency is considering establishing a requirement that would necessitate the use of metal or other similar strong shielding materials which would have to be cut by special cutting tools before access to the ignition wires could be gained.

At the time, the idea that the ignition lock should be designed to resist removal was supported by major automakers such as GM, Ford, Mercedes and VW. And NHTSA noted that it was evaluating a study by the National Bureau of Standards of tensile, torque and extraction testing on current ignition lock systems to determine if it would propose specific lock retention and system operations performance standards in the future. The agency never did propose an ignition shielding requirement, and theft protection rulemaking never advanced any further.

NHTSA’s Office of Vehicle Safety Compliance (OVSC) lays out the procedures for its contracted testing labs performing FMVSS 114 compliance tests, the primary tests associated with the theft prevention aspects of rule state:

“With the key removed from the starting system, attempt to start the vehicle engine or motor. If the vehicle is equipped with an advanced key system, it may be necessary to move the electronic key device outside the minimum effective range for loading the electronic key into the vehicle starting system.”

“Determine if the steering wheel locks as a result of removing the key from the starting system by rotating the wheel in both directions.”

“Determine if forward self-mobility is prevented whenever the key is removed from the starting system. If the vehicle is equipped with an advanced key system, it may be necessary to move the electronic key device outside the minimum effective range for loading the electronic key into the vehicle starting system.”

So, test labs have to try to start a keyed vehicle without placing the metal key in the ignition slot, or, in the case of a keyless ignition vehicle, move the key fob out of vehicle range and attempt to start the vehicle by depressing the Start/Stop button, then try to  move the steering wheel and determine if vehicle can move forward under its own power.  No tools or methods for accomplishing this are prescribed. How any automaker could actually fail to comply is beyond The Safety Record’s comprehension. The procedure only partially addresses the second part of the requirement, that a FMVSS 114 compliant vehicle must also prevent “either steering, or forward self-mobility, of the vehicle, or both.”

While OVSC’s lab test procedures states they aren’t intended to limit or restrain its contractors from devising and using any techniques or equipment to obtain the required compliance test data,  and the document isn’t an endorsement or recommendation for using a particular test method, the practical reality is the opposite. Is a contracting test lab really going to devise a different test method based on an historical review of the intent of the standard? Not likely.

But maybe they should review a legal interpretation from 2004 from then-NHTSA Chief Counsel Jacqueline Glassman who recognized the intersectionality of the two-part requirement in a response to an unidentified automaker, who requested agency guidance on its engine control immobilizer module and the requirements of FMVSS 114. Glassman agreed that the system the automaker described would be compliant with FMVSS 114 because if an attempt was made to circumvent the ignition lock, including through “hot-wiring,” the immobilizer prevented engine starting without the key.

Immobilizers, defined by NHTSA as “an anti-theft device that combines microchip and transponder technology with engine and fuel immobilizer components that can prevent vehicles from starting unless a verified code is received by the transponder,” are not required, but most automakers use them.  They showed up in the 1980s and today, according to the Highway Loss Data Institute, 97 percent of MY 2021 model cars have immobilizers, compared to 26 percent of MY 2021 Hyundai/Kia models. In contrast to FMVSS 114’s meaningless compliance test, if a manufacturer chooses to use an engine immobilizer anti-theft technology, there is specific criteria that the immobilization system must be designed to meet so that it cannot easily be defeated to allow forward self-mobility by either disrupting the voltage or by using tools. These criteria enumerate 18 common tools auto thieves are known to rely on: Scissors, wire strippers, wire cutters and electrical wires, a hammer, a slide hammer, a chisel, a punch, a wrench, a screwdriver, pliers, steel rods and spikes, a hacksaw, a battery operated drill, a battery operated angle grinder; and a battery operated jigsaw

Enter the Kia Boyz. With one viral 2021 TikTok video, every issue associated with the safety hazard of quick and easy car thefts identified and debated more than 40 years ago has been borne out in the ongoing crime wave involving MY 2010-2021 Hyundai and Kia vehicles with traditional metal keys. Thieves can just rip off the steering column shroud, pull out the ignition cylinder, and using the end of a USB cable, grip the ignition cylinder to twist it, starting the engine. The whole deal can go down in about 30 seconds.

In the span of approximately a year, Hyundai/Kia’s decision to forego basic anti-theft features resulted in 14 crashes and eight deaths, according to a NHTSA press release in February. But surely, these are undercounts, because in March and April alone, the news media reported another 24 such crashes, resulting in four more deaths (including a six-month-old boy), 28 injuries, nine of which were said to be serious injuries, and one house fire, in addition to structure damage and other vehicle damage, including two police cruisers, caused by drivers of stolen Hyundai/Kia vehicles.

Hyundai/Kia now facing a demand from 17 state and Washington, D.C. attorneys general to launch a recall, and lawsuits from many municipalities, including Buffalo, Milwaukee, Rochester, Columbus, Madison, St. Louis, New York City, Cleveland, Seattle and San Diego, auto insurers, and multiple class actions. One entity not holding Hyundai/Kia to account is NHTSA. NHTSA didn’t open a defect investigation or press Hyundai/Kia to launch a formal recall with its notification and accountability requirements. NHTSA took no enforcement action at all, because it didn’t believe that the theft protection safety standard was actually enforceable. In response to inquiries from Safety Research & Strategies, a NHTSA media representative stated that the agency could not act more forcefully, because “the standard does not define normal activation.”

If that’s the case, it’s high time the agency either define normal activation or re-fashion a meaningful compliance test that addresses FMVSS 114’s historic intent.

Rollaway Prevention?

FMVSS 114 pivoted to the rollaway problem in 1988, in response to reports of crashes and injuries caused by steering wheel lock-up when the key is inadvertently removed, and rollaways caused – primarily – by children moving the gear selector from Park to Neutral. By 1990, the agency published a Final Rule requiring vehicles with automatic transmissions that have a Park position to have a key-locking system that prevents removal of the key unless the transmission is locked in Park or becomes locked in Park as the direct result of removing the key. The agency noted that this amendment accomplished several goals at once – it didn’t diminish the theft prevention aspect of the rule, it prevented steering wheel lock up if the key was inadvertently removed from the ignition, and it prevented inadvertent shifting of the gear selector, because the key’s status was now linked to the Park transmission position.

The final rule addressed the safety need for transmission shift locks, with the agency calculated that there are “roughly 400 to 800 relevant injury producing transmission lever shifting accidents each year.” NHTSA also emphasized that being able to move the gear selector out of Park without the key in the ignition posed a significant safety risk and that the agency has a “special obligation to reduce injuries involving children.”

Nothing much changed on the rulemaking front for the next 15 years. But ignition systems began to undergo a significant transformation, as automakers introduced keyless ignition vehicles into the fleet. No longer did the driver need a metal key to lock and unlock the doors, or even to start the vehicle. The key was now an invisible electric code stored in or removed from the ignition module, delivered by a plastic key fob. In a 2002 interpretation letter, NHTSA Chief Counsel Glassman warned an unnamed automaker that this new system would disrupt a driver’s relationship with the key:

We observe that if the ‘Smart Key’ device remained in the car. e.g. in the pocket of a jacket laying on the seat, a person would need only turn the ignition switch knob to start the engine. It appears to us that, with systems of this kind, there would be, in the absence of some kind of a warning, a greater likelihood of drivers inadvertently leaving a ‘Smart Key’ device in the car than with a traditional key. This is because the driver must physically touch a traditional key, unlike the “Smart Key” device, as part of turning off the engine. You and/or the vehicle manufacturer may wish to consider whether there are any practicable means of reducing the possibility of drivers inadvertently leaving their ‘Smart Key’ devices in the car.”

Glassman got it partly right – but didn’t address other serious problems that emerged with keyless ignition vehicles – which facilitated the omission of critical steps in the vehicle exit behavior sequence: driver’s exiting vehicles with the key fob, vehicle in Park, but without shutting engine off, creating a carbon monoxide hazard or shutting the engine off and exiting without placing the gear selector into Park, creating a rollaway hazard. Both hazards were largely addressed with mechanical key designs that prevented the removal of the ignition key unless the engine was off and the gear selector in Park.

The year 2005 was a FMVSS 114 watershed for a couple of reasons. First, although NHTSA still had not promulgated a rule to prevent rollaways by requiring a brake to shift interlock (BTSI), then-New York Sen. Hillary Clinton filed the Cameron Gulbransen Kids and Cars Safety Act, which would force the agency to do so. (In 2006, 19 major automakers scrambled to head off a regulation by announcing a voluntary agreement to install brake to shift interlock. That was swell of them, but in 2008, the Clinton’s bill passed, and the Final Rule was published in March 2010.)

Second, in 2005, NHTSA attempted to amend FMVSS 114 to address the advent of keyless ignition, by revising the definition of the key to include an invisible electronic code. This seemingly created an FMVSS 114 compliance problem, because these new systems allowed the driver to shut the engine off in a drive gear, and walk away with the fob. In a keyed vehicle, that metal key cannot be released from the ignition slot unless the transmission is in Park or automatically moves into Park when you remove the key. Not to worry though, NHTSA told automakers how to get around the rule in a Federal Register Notice: “We also explained that systems using an electronic code instead of conventional key would satisfy the rollaway prevention provisions if the code remained in the vehicle until the transmission gear is locked in the “‘park’ position.’”

This “cheat” immediately made FMVSS 114’s rollaway prevention provisions less effective.

Most manufacturers designed their vehicle electrical architectures so that if the driver turned off the engine without placing the transmission in “Park,” the ignition state would quietly move to the Accessory position to keep the electrical power on and the electronic “key” was maintained in the ignition module. These designs typically included a dashboard text message and/or indistinguishable chime that was allegedly intended to alert the driver to put the transmission into Park. In many cases, drivers exiting with the fob with the gear selector not in Park and the engine off, never saw the message as they turned their bodies toward the door, or failed to hear the chime or if they did, had no way to discern its meaning, and exited without knowing their vehicle was unsecured and the power was still enabled, draining the battery, to boot. Automakers resolved the dead battery complaints by installing battery saver features that would eventually turn off the power, but did little to protect the departing driver or nearby pedestrians from rollaways.

In 2009, NHTSA asked the industry to convene a SAE sub-committee to write a voluntary standard to address the human factors issues created by keyless ignitions. But the result was pathetic: it blamed drivers for manufacturers poor design choices and didn’t offer much guidance on countermeasures beyond than vague recommendations for warnings.

Dissatisfied, the agency opened a rulemaking in December 2011 to amend FMVSS 114 to address panic stops during an unintended acceleration, and the rollaway and carbon monoxide safety problems created by keyless ignitions. The proposal to solve for the latter were very loud 85-decibel warnings, if the driver exited without placing the transmission in Park or turning off the engine. Predictably, manufacturers loathed this idea, and excoriated NHTSA for even suggesting such a thing without rigorous data to determine a safety need. When NHTSA had proposed to hire a consultant to do some human-machine-interface investigations into keyless ignitions, the industry objected again. NHTSA hasn’t touched the rulemaking for a dozen years.

In 2014, apparently having forgotten that they told manufacturers how to meet technical compliance with FMVSS 114, while leaving the vehicle able to freely roll, NHTSA OVSC began testing 34 recent model-year vehicles to determine if push-button systems allowed the vehicle to be turned off in a gear other than park, or the key fob to be removed from a running vehicle with no warning to the driver, or allowed vehicles to be restarted without the key fob present. They found that you could turn off the engine with the transmission in drive, leave with the fob, and easily push the vehicle into a roll. The agency officially launched the compliance probe in January 2014 with an Information Request seeking sought a host of details related to manufacturers’ keyless ignition systems, ranging from the electronic architecture of the system, when the electronic code is purged from the system and the audio and visual telltales used to alert the driver when he or she has exited the vehicle. NHTSA also asked for complaint data and the safety information manufacturers provide to their customers about keyless systems.

After automakers explained exactly how their vehicles met the rollaway standard using the Accessory work around, the agency closed the probe with no findings of non-compliance. For example, in her report regarding potential non-compliances in Kia vehicles, the safety compliance engineer who conducted the investigation, noted: “Each vehicle was started with the push button control and the transmission selection control was placed in Drive. The starting system was deactivated with the push button control and the key fob was removed from the vehicle. We verified that the vehicle was not in Park by pushing it.”

After conversations with Kia, NHTSA’s OVSC learns: “The information and test data provided by Kia indicates the vehicles listed above meet all requirements of FMVSS No. 114. Regarding SS .2.1, if the vehicles’ starting system is deactivated when the transmission is not in Park, the starting system will be in the accessory position, the key (electronic code) has not been removed, and the transmission control is not required to be in Park. In addition, drivers are provided audible and, for some vehicles, visual warnings about the key and transmission position.”

NHTSA eventually told automakers they needn’t bother to answer the question of how many complaints they had logged.

In 2015 and 2016, NHTSA opened three separate rollaway-related defect investigations into vehicles with novel shifters, with spotty results.

The first, PE15-030, in August 2015, investigated rollaways after intended shifts to PARK in 2014-2015 MY Jeep Grand Cherokees vehicles with monostable-style shifters. The monostable is a T-handle style shifter with a similar appearance of a traditional mechanical T-handle shift selector. But monostable designs are activated by depressing a button on the handle and moving the handle rearward or forward to achieve a transmission position; the handle always returns to the centered/neutral position. The design provided no tactile feedback, so drivers trying to achieve Park were inadvertently selecting Reverse or Neutral. In April 2016, FCA brought the investigation to a swift close by recalling Jeep Grand Cherokees, Chargers and 300s with the monostable shift levers. FCA blamed drivers for failing to respond to the vehicles’ warning strategies, but nonetheless installed Auto Park, which automatically moved the electronic monostable transmission selector into Park when the driver failed to do so, and the ignition switch was pressed to turn of the engine, or if the driver attempted to exit the vehicle without the Park engaged.

The second two defect investigations were opened on the same day in December 2016, into vehicles with rotary style electronic shifters:  one covering MY 2013-2016 Ram 1500 and MY 2014-2016 Dodge Durango, and the MY 2012 through 2014 Land Rover/Range Rover Evoque and Jaguar XF vehicles. In both cases drivers complained that the vehicles had rolled after the drivers had placed the transmission in Park – or thought they did. In August 2020, NHTSA closed the investigation into the Jaguar / Land Rover vehicles, after declining complaints and claiming it found no mechanical or electronic fault that would prevent Park from being engaged; this was likely case of driver error, the agency said. While FCA initiated a series of service campaigns to add automatic shift to Park software updates, the investigation into the FCA vehicles is still open six years and five months later.  

So there you have it, after nearly 40 years of regulatory progress, FMVSS 114 begins its descent into a theft protection and rollaway prevention safety standard that does neither. Most of the time NHTSA has an opportunity to enforce it or improve it, the agency backs off, and the public is less safe because of it.


Amazon Delivery Drivers Sprint After Rolling Delivery Vans

Editor’s Note: This blog has been updated to reflect the software update recall initiated by Mercedes-Benz and posted by NHTSA on Jan. 10, 2022.

In August, the National Highway Traffic Safety Administration (NHTSA) opened a rollaway investigation into the Mercedes Sprinter vans with e-shifters that automatically move the transmission into Park when the driver leaves the seat. Used by Amazon’s delivery service providers, these vans have been sprinting away – with the shift indicator showing Park, and sometimes with the parking brake applied, too. Just before Christmas, Mercedes delivered a temporary fix with a Grinch-y rant against drivers. But, the preliminary evidence points to a long-established mechanical source of rollaway – a defective park pawl. Blame the driver is the manufacturers’ rollaway go-to, but will it make the investigation go away?

In 2021, Amazon Logistics – the fulfillment arm of the online retail behemoth – delivered more packages than FedEx – 4.2 billion parcel shipments in 2020, according to an analysis by Pitney Bowes. And all those billions of dish racks, books, clothing, 50-lb. bags of dog food – and every other household necessity, personal obsession, and impulse purchase – reaches America’s front doors via an army of drivers manning Amazon’s fleet, consisting mostly of Mercedes Sprinter vans.

By all accounts, the life of an Amazon delivery person is short and brutish, composed of 10-hour shifts humping as many as 40 packages an hour, while an Android device called a “rabbit” maps your route and tracks your execution to ensure that you are keeping up the pace. A December 2020, first-person, day-in-the-life-of-an-Amazon-delivery-driver story published by Business Insider, reported that a driver gets in and out of that van 200 times a day. A Reddit forum for Amazon drivers paints a fairly miserable picture of the experience – low pay, zero respect and push-to-the-breaking-point level of productivity expectations – which is apparently why the position has such high turnover.

Given the number of stops a day a driver must make and the relentless pace of delivery, Amazon needed a van that would provide good protection against rollaway, the long-time safety hazard of unintended movement in a vehicle with no driver. Rollaways can occur when the engine is on, or off, and can be caused by mechanical and software failures, or by design-induced human error.

The 2019 Mercedes Sprinter van appeared to deliver – with an electronic shifter that provides one of the most comprehensive automatic shift-to-Park algorithms The Safety Record, which has pored over scores of service literature and owner’s manuals, and examined dozens of vehicles, has ever seen. (We’ll get to that in a moment) An electronic shifter replaces the mechanical connection between the gear selector and the transmission with software that sends electronic signals from the gear selector interface to an electronic control module which relays the request to the transmission. In a 2019 Mercedes Sprinter, the shifter is a steering column mounted stalk behind the steering wheel that is pressed up or down, depending on the gear. Park is a button on the end of the lever.


Mercedes Sprinter vans – particularly in the 2019 model year – were rolling away with enough regularity to catch the attention of the National Highway Traffic Safety Administration’s (NHTSA) Office of Defects Investigation (ODI).

In early August, ODI opened a Preliminary Evaluation of 19,000 2019 Mercedes Sprinter vans. The Opening Resume described the potential defect as: “MY 2019 Mercedes-Benz Sprinter 2500/3500/4500 vans, configured for use as Amazon delivery vehicles or ambulances, roll away shortly after being shifted to Park using the Auto-P function.” The investigation is based on 11 consumer complaints in NHTSA’s Vehicle Owner’s Questionnaire (VOQ) database, representing eight crashes and one injury. A broader search turns up a total of 19 such reports. They have narratives like these:

The delivery driver placed the van in park on a hill and engaged the emergency parking brake.  While the engine was still running the delivery driver took a minute or two to locate his package and proceeded to step out of the driver door while the van was still running.  Just as he was stepping out of the van the driver heard several loud clicks and the van proceeded roll away and was stopped by a large tree branch that caused damage to the roof of the van.  I have had several of these vans roll away some causing significant damage to the vans, other people’s property and 2 drivers have been hurt as a direct result of this same problem.

Here’s another, with a more serious outcome:

The contact’s client was utilizing a 2019 Mercedes- Benz Sprinter 2500 for work. The contact stated while the vehicle was in park, the driver exited the vehicle however, it rolled backward, flipped over, and crushed the driver’s legs. There were no warning lights illuminated. The driver sustained road and chemical burns and medical attention was provided.  A police report was filed. There was no report of a fire or airbag deployment. The vehicle was towed to an independent lot. The local dealer was not contacted. The vehicle was not diagnosed or repaired. The manufacturer was notified of the failure and inspected the vehicle where the black box was retrieved. The contact mentioned referenced NHTSA Action Number PE21019 (Power train). The failure mileage was 965.

Or, if you prefer, you can watch a typical incident:

Rollaway is a longstanding, and diverse problem — recalls and investigations going back to the 1970s show that the root causes range from broken parts, like pawls and rods, to the effect of new technologies, such as keyless ignitions and new electronic transmission gear shift designs, on driver behavior. In the last several years, The Safety Record has been reporting on this safety problem and the solutions – you can read about them here:  

Technology Has Made Rollaways Easier: Technology Can Prevent Them

The Persistence of Rollaway

The 2019 Sprinter, a vehicle predominantly used by delivery expeditors, is the first model year of the third generation of the van, and the first year to use the e-shifter, a design found on many other Mercedes models. In 2018, Amazon announced that it had ordered 20,000 Mercedes-Benz Sprinter vans that would be leased by its Delivery Service Partners – a program for small business owners to deliver packages ordered through Amazon. Amazon Sprinter vans have an auto-shift-to-park function that automatically moves the electronic shifter to the Park position, if the driver attempts to exit without first securing Park, regardless of whether the engine is on or off. Auto-shift-to-Park features first emerged as a safety measure on passenger vehicles with e-shifters that used non-standard shift controls – like buttons, rotary knobs, and Monostable stick selectors that always return to the center position after gear selection. These new shifter designs lack the mechanical detents and consistent PRNDL sequence that most drivers were used to. This has led to drivers misjudging the gear position and exiting the vehicle without securing it in Park, followed by NHTSA investigations and recalls to implement a failsafe, such as an automatic shift-to-park feature.

Further, if the Sprinter van is not in Park and the driver opens the door, or unbuckles the seat belt or gets out of the seat, the e-shifter moves to Park. That covers all of the components of driver exit. That last condition – driver leaves seat – is determined by a driver seat occupant detection sensor, a design feature that is atypical for in these designs. While Automatic shift-to-park features in the U.S. fleet work under a variety of conditions – some only activate if the driver has turned the engine off, some don’t work if the transmission is in Neutral. Most use the combination of seatbelt unbuckled, no brake application, and the driver’s door open as the markers for driver exit. But, the Sprinter design with its driver occupant detection sensor as the trigger seems to acknowledge the realities of an Amazon delivery driver’s day.  

The Sprinter is also available with an optional Electronic Parking Brake (EPB). EPBs are an increasingly common feature that can be configured to automatically activate under whatever conditions the automaker chooses. Again, some only activate when the engine is turned off, or when the brake hold mode is manually activated, a convenience feature that holds the vehicle at a temporary stop – like a traffic light – without requiring the brake pedal to be depressed, and then releases when the accelerator is depressed to resume travel. Other manufacturers automatically apply the EPB to prevent rollaway. For example, 2014 model year Jeep and Chrysler models added “Safehold” that will engage the EPB automatically if the transmission is not in Park, the seat belt is unbuckled, the service brake is not applied and the driver’s door is opened. The commercial version of the 2019 Ram ProMaster 2500 van, a rebadged Mercedes Sprinter – also used as Amazon delivery vans – have a mechanical shift lever and an automatically applied EPB. Others with auto-applied EPBs include Ford, GM, Volvo and Mercedes – in other models.

The Amazon-configured vans have an old-school hand-operated mechanical parking brake.

So how is this happening? Drivers are reporting that the transmission was in park, and some maintained that they pulled the mechanical parking brake lever, too. Despite Mercedes’ thoughtful approach to rollaway prevention using vehicle electronics, the problem appears to lie with its mechanical components. According to David Bizzak, a Monroeville, PA-based mechanical engineer who has examined the failure mechanism in several Sprinters, the park pawl, which locks the transmission to prevent vehicle movement doesn’t consistently maintain engagement in the ring gear. This design was intended for use on lighter vehicles, but the heavier Sprinter vans appear to put greater forces on the tapered park pawl, and that added friction can force the pawl out of engagement when under load.

“This transmission has been used in Mercedes’ car line for many years, and to our knowledge there isn’t a rollaway issue with their passenger cars,” Bizzak says. “We believe it may be possible that the heavier weight of the Sprinter van creates a situation in which this disengagement of the park pawl can occur.”

In addition, says Bizzak, the parking brake requires a lot of clicks – like 10 – before it is fully engaged.

It’s difficult to know where NHTSA’s investigation is at. The only documents in the public file are the Opening Resume, and an information request to Mercedes, asking for things like its communications with Amazon, and an explanation why FedEx, which also uses Sprinters, is not having the same problem. We do know that NHTSA was present at an inspection that Bizzak also attended in April 2021 where this park pawl problem became evident.

In the meantime, on December 15, Mercedes filed a recall Part 573 Notice of Defect and Noncompliance report in which it blamed a rare condition it calls a “park lock system error” that could only result in a rollaway if the driver does not put the vehicle transmission in Park and set the manual parking brake. (NHTSA acknowledged the recall on January 7.)  The remedy involves installing revised software in the ESP control unit on the recall population.

The defect could affect as many as 48,000 of 2019 to 2021 Mercedes and Freightliner Sprinter vans, built on Platform 907, between June 05, 2018 and November 30, 2020 with a manual parking brake and a 7-speed automatic transmission that was manufactured between May 1, 2018 and October 31, 2019 in the Hedelfingen transmission plant in Germany. How many out of the 48,000 are so afflicted? Mercedes guesses it’s at 1 percent.

Mercedes mentions two problems: A “rare and temporary park lock function error” it identified during testing, and it “a separate factor” that can contribute to the park lock function error “or enhance the related rollaway risk: the ‘Park Lock Support’ (‘PLS’) function.” The PLS is part of the ESP Control Unit, not the transmission, which “applies continued brake pressure after the vehicle is stopped and the gear selector is placed in ‘P.’” Mercedes could not isolate that cause of the failure, “despite its intensive investigation, multifaceted testing, analyses, and evaluation.”

The PLS applies brake pressure after the transmission is put into Park, so it almost functions like an automatically applied electronic parking brake. The recall notice does not explain how long the PLS is active after putting the transmission into Park, or why it is even necessary for the vehicle to apply hydraulic brake pressure after the driver or the vehicle automatically shifts into Park.    

Or maybe, the PLS is more like a brake hold or hill hold – driver convenience features found on many vehicles – which, if activated, allow the driver to take their foot off the brake while at a temporary stop, like at a traffic light or on an incline. Brake Hold / Hill Hold features apply  hydraulic brake pressure to the wheels and typically release when the driver depresses the accelerator pedal and resumes travel. Brake Hold / Hill Hold systems requires a running engine to power the hydraulic brake pressure; it is meant to be temporary, and in most vehicles with the feature, the Brake Hold mode only lasts between three and 10 minutes. In many vehicles with an electronic parking brake, the Brake Hold / Hill Hold will automatically apply the EPB after a specified time period, to hold the vehicle in place, or if the driver shuts off the engine and attempts to leave the vehicle while it is being held stationary in Brake Hold Mode.

In either case, Mercedes is doesn’t disclose how it’s resetting the PLS parameters, but the essence of the system suggests that it is creating an EPB-like system using the hydraulic brakes to ensure that the vehicle will remain stationary for some unspecified time – likely the amount of time it takes an Amazon delivery person to hop out of the van, deposit a package on the doorstep and be on the way to the next stop.

The Safety Record has questions why these specific vehicles and these specific transmissions? Had Mercedes already implemented a mechanical or software fix to prevent these rollaways in the vans after Nov. 30, 2020, without filing a Part 573 within five days of deciding that there was a problem with the 2019s?    

Mercedes maintains that the driver has to follow “parking instructions” – in other words, put the transmission into park and get all 10 clicks on the parking brake lever to prevent a rollaway. Why does it matter whether the driver or the vehicle shifts the transmission into Park? According to the Mercedes service description, the Park Lock function is agnostic on the subject of how the Park position is achieved:

Park pawl control, general 

The park pawl is used as an additional safety feature for the parking brake and its purpose is to secure the vehicle to prevent it from rolling away inadvertently. 

The park pawl essentially consists of the parking lock mechanism and the electrohydraulic components located at the rear of the transmission housing. There is no mechanical connection whatsoever between the park pawl components of the automatic transmission and the DIRECT SELECT lever (S16/13) (“Park-by-Wire”).

The park pawl is engaged and disengaged purely by electrohydraulic means, either by operating the DIRECT SELECT lever or depending on various factors such as opening the driver’s door whilst the drivetrain is operational.


Is it really the application of the mechanical parking brake that would prevent the rollaways? Is it realistic to think that Amazon deliverers will take the time to set the parking brake scores of times a day with enough force to hold the vehicle and without running afoul of the rabbit on their phones? Why did Mercedes bother with such a comprehensive auto-park algorithm? If the parking brake is the primary park feature, why is this manual design used rather than an EPB that can ensure full clamp load and provide automatic application?

A week later, Mercedes issued a temporary fix and “an important safety reminder.” The former is an update to the PSM module which would sound a horn if the driver leaves the seat without the parking brake engaged. Mercedes says this was tested on some fleet vehicles and is effective.

The latter is one of the nastier blame- the-driver statements we have seen from a manufacturer – and we’ve seen a few. For example, in the late 1970s to early1980s, Ford JATCO transmissions that were experiencing Park-to-Reverse were linked to 306 deaths. In 1977, NHTSA initiated the first of several investigation into the root causes. It found two design flaws and evidence that Fords were at least 12 times more likely to experience Park-to-Reverse than GM or Chrysler vehicles. Ford denied that there was any technical or mechanical defect, and placed the blame on drivers:

…Ford has submitted data to NHTSA data, views, and arguments to establish that no such defect exists. Ford believes that these submissions demonstrate that unexpected vehicle movement is the result of drivers’ inadvertent misplacement of the gear selector lever, can and does occur, though rarely, on all manufacturers’ automatic transmission-equipped vehicles, and is not attributable to any defect in the vehicle design or construction. When unexpected vehicle movement incidents do occur, as they can on any automatic transmission-equipped vehicle, serious consequences may result. Ford believes, however, that such incidents can be avoided if before leaving the driver’s seat, all drivers observe three commonsense steps to make sure the vehicle is securely immobilized. These steps are: 1) properly engaging the transmission system in “park,” 2) setting the parking brake, and, 3) shutting off the engine.

More recently, Chrysler took a swipe at customers who bought one of its products with a Monostable e-shift design. The T-handle style shifter that was located on the center console between the driver and passenger, which looked like a traditional mechanical shift lever, but was activated by depressing a button on the handle and moving the handle rearward or forward – but the handle always returns back the centered/neutral position, which made it easy to misjudge the gear selection.

In April 2016, FCA recalled 811,146 MY 2014-2015 Jeep Grand Cherokees, and 2012-2014 Dodge Chargers and Chrysler 300s, to stave off a NHTSA investigation that was gathering steam.  NHTSA had tested the shifter and found that “the monostable gear selector is not intuitive and provides poor tactile and visual feedback to the driver, increasing the potential for unintended gear selection.” The remedy was the installation of an automatic shift to park feature. The recall notice scolded drivers for failing to heed FCA’s crappy warnings:

FCA US has determined that the existing strategies built into these vehicles to deter drivers from exiting the vehicle after failing to put the transmission into Park have not stopped some from doing so. Drivers erroneously concluding that their vehicle’s transmission is in the PARK position may be struck by the vehicle and injured if they attempt to get out of the vehicle while the engine is running and the parking brake is not engaged. FCA US has therefore determined that the absence of an additional mechanism to mitigate the effects of driver error in failing to shift the Monostable gear selector into PARK prior to exiting the vehicle constitutes a defect presenting a risk to motor vehicle safety.

Mercedes’ statement is more obnoxious by several orders of magnitude and makes the others look subtle. (Read the entire statement.) Here are some of the best parts:

We note that recently there appear to be drivers of Amazon’s Sprinter fleet who continue to refuse to follow important safety guidelines. Most importantly, each and every time an Amazon Mercedes-Benz Sprinter van is parked, the driver must properly shift the vehicle into “park,” set the parking brake per the instructions in the owner’s manual, and otherwise obey all local laws (e.g., turn the wheels to the curb when parking on an incline, etc.). These rules must be followed every time a Mercedes-Benz Sprinter van is parked — there can be no exceptions. Following these rules is critical to prevent vehicle roll-aways, and the risk of serious personal injury and/or property damage that accompanies them…. we continue to observe instances of drivers buckling their seatbelts improperly, in an effort to try to “trick” the system into thinking the driver is properly using his/her seat belt. For example, seatbelts are pulled behind seats then buckled or otherwise buckled outside of the proper normal fashion around the seat occupant. This not only is illegal under applicable local law, it also is terribly unsafe, and must never occur, as it can result in serious injury.

Mercedes went on to say that it has been begging Amazon to implement this horn honk.

Hmm, why wouldn’t Amazon want their branded delivery vehicles to be honking all the time, waking up napping babies, interrupting Netflix shows and generally annoying their customers? Will Amazon’s drivers follow those safety rules, including setting the manual parking brake every time with enough force to prevent rollaway, while under constant pressure to meet their insane schedules? Videos of these deliveries show that some drivers, racing to meet deadlines don’t close the van door as they dash out to leave a package.

The better question is: Why doesn’t Mercedes put a more robust parking pawl in these delivery vans loaded with packages?



Hyundai-Kia’s Billion Dollar Engine Problem that Broke the NHTSA Civil Penalty Barrier

A federal judge in California has put one class-action lawsuit in peril and approved a settlement in another alleging defects in Hyundai and Kia engines. The Korean automaker’s billion-dollar-plus legal liability is on top of the largest civil penalty the National Highway Traffic Safety Administration has ever levied against an automaker. The language of the consent agreement was opaque, but the public record is clear.

On May 11, U.S. District Judge Josephine L. Staton approved a $1.3 billion settlement that consolidated several 2017 and 2018 nationwide class action lawsuits, alleging that Hyundai Kia refused to recall vehicles with the Theta II GDI engine, even though the automaker knew the engine was defective. Representing 3.9 million owners of Hyundai Sonata, Santa Fe, and Tuscon vehicles, and Kia Optima, Rio Sorento, Soul and Sportage vehicles, roughly in the 2011 to 2019 model years, the plaintiffs charged that the Theta II GDI was prone to catastrophic failures and non-collision fires, which exposed vehicle owners to safety hazards and economic losses.

This ruling comes on the heels of Judge Staton’s dismissal last week, with leave to amend, of another California class alleging that Hyundai/Kia vehicles with Gamma 1.6L Gasoline Direct Injection engines were defective – different engine, same complaints: stalling, excessive oil consumption and fires. Judge Staton ruled that this complaint, filed in August 2020, failed to assign a cause to these symptoms other than poor manufacturing quality. 

And, six months earlier, NHTSA announced a whopper of a civil settlement with Hyundai Kia – $210 million – the agency’s largest penalty ever. It stands out because it’s been a minute since NHTSA has imposed any meaningful penalties on manufacturers uninterested in following safety regulations. The watershed years were 2014-2015, when the agency, with former Administrator Mark Rosekind at the helm, issued 10 consent orders totaling more than $530 million against a variety of manufacturers, including Hyundai, Honda, GM, and Fiat Chrysler, mostly for untimely recalls and failing to submit Early Warning Reports. But perhaps, with the Trump administration gone, it feels safe to regulate and enforce again.

(NHTSA kicked off 2021 with a $30 million penalty against Daimler Trucks North America following a 2018 investigation into seven recalls that were launched in 2017 and 2018. According to the Consent Order, the agency charged that, based on Daimler’s chronologies of events, it failed to launch timely recalls. In addition, the agency said, Daimler failed to produce timely information — including field reports — to NHTSA as it conducted a recall query. The agency opened Audit Query 18-002 in April of that year to examine four recalls that involved semi-trucks, school buses with wheelchair lifts, and recreational vehicles. Later, NHTSA expanded it to include three more recalls – two of which were expansions of earlier recalls.)

What did the Korean automaker do to earn such a righteous slap? The Consent Order only mentions “inaccuracies” and “omissions” in its communications with the agency and a failure to launch timely recalls involving more than 1.6 million Hyundai and Kia vehicles suffering from a manufacturing defect that allowed metal debris to cause premature wear of a bearing that could lead to an engine stall.

But the troubles of Hyundai Kia vehicles with Gasoline Direct Injection (GDI) engines are much more complex than that. Over the last five years, millions of Hyundai and Kia models have been the targets of four different investigations, class-action lawsuits, extended warranty programs, a product improvement campaign, and 10 recalls to deal with defects that cause stalls and non-crash fires attributed to a variety of causes. Even as Hyundai Kia agreed to pony-up to settle the class-action and NHTSA’s allegations of untimely recalls, it remains under agency scrutiny for non-crash fires plaguing many models in its fleet.

According to Hyundai, its troubles began in April 2011, when its Montgomery, Alabama, assembly plant changed the way it removed machining debris from the crankshaft of the new Theta II GDI engine. Hyundai had invested four years and $147 million developing the Theta II. Car and Driver described its launch as “the next step towards [Hyundai’s] bold goal of becoming the fuel-economy leader.” Unveiled in 2009, the 2.4-liter GDI’s first application was the 2011 Sonata.

But, once in the field, Hyundai saw its warranty numbers rise, as customers filed claims for excessive noise, an illuminated check engine light, and – to a lesser extent – moving stalls. Hyundai wasn’t overly concerned, it later told NHTSA, because the majority of those customers did not mention the speed of the vehicle at the time of the stall and they were also able to restart their vehicles and/or move the vehicles to the side of the road.

By June 2015, the complaints to NHTSA’s VOQ database were approaching heights that caught the agency’s attention, and it reached out to Hyundai. The automaker conveyed its lack of concern – a feeling NHTSA did not share, especially in the case of a high-speed stall.

In September 2015, Hyundai recalled 470,000 Model Year 2011-2012 Sonata vehicles equipped with 2.4L and 2.0L Theta II GDI engines. Hyundai described the defect as metal debris generated while manufacturing the engine crankshaft being left in the component’s oil passages. Over time, these metallic bits could be “forced into the connecting rod oiling passages restricting oil flow to the bearings,” reducing the flow of oil and possibly raising the temperatures. This condition could lead to premature wear of the connecting rod bearing, eventual failure, and a vehicle stall. The remedy for this defect was an engine noise inspection, which consisted of moving the vehicle to a quiet place and positioning a mobile tablet near the steering wheel to assess the engine sound. An algorithm – unexplained in the repair instructions – determined if the vehicle passed or failed the inspection. The latter got a new engine; the former got a new dip stick and an oil top-off.

At the same time, Hyundai extended the warranty for the engine short block assembly for all recalled vehicles, plus the net two model years that had been manufactured at the Montgomery plant – in other words, they launched a silent recall.

Kia also had Optima, Sorento and Sportage models equipped with 2.4L and 2.0L Theta II GDI engines, but it took no action in 2015 because it checked its Theta engine manufacturing process, which involved a separate assembly line using different procedures, and found no issues, with “extremely low” rates of warranty and field claims.  

Over the next 18 months, according to chronologies Kia and Hyundai submitted to NHTSA, they continued to monitor the issue. Kia contracted engine manufacturer Translead to conduct a detailed review of Kia warranty-returned engines. Translead identified an oil delivery issue, but the claims rate was still low, so Kia did nothing.

In May 2016 — Kia told NHTSA — it learned about Hyundai’s extended warranty program for the Sonatas (Really? It took eight months before they knew about that?) and took another look at the field data. The claims were still low, but picking up as customer satisfaction eroded under the high repair costs for out-of-warranty vehicle owners. Kia also decided to extend its warranty to all 2011-2014 Optima owners with 2.0 or 2.4-liter GDI engines to 10 years or 120,000 miles – in other words, it did a silent recall.

The field data for Theta GDI engine claims for the 2011-2014 Sportage and Sorento vehicles was also rising – although by not as much as the Optima. In August 2016, Kia decided to launch another silent recall covering those models. Kia encouraged owners who heard engine knocking sounds to bring their vehicles in for repairs, but dealers were turning away anyone who could not produce their oil change records.

That same month, Hyundai engineer and 26-year company veteran Kim Gwang-ho, flew to the U.S. to meet with NHTSA officials. Kim, a member of Hyundai’s Quality Strategy team, which makes recall decisions, alleged serious safety lapses involving the Theta GDI engines. Citing an internal quality report, Kim raised his concerns that the 2015 recall did not cover the entire population of affected vehicles in the U.S. and South Korea. He also stressed thatthe problem was also related to the engine design, not just a manufacturing defect.

Throughout the fall, Kia determined that its customer mailing list was out-of-date and the extended warranty notices were not reaching consumers, and it did a second mailing. By December, the VOQ data showed that people who complain about a stall still have enough motive power to get to the side of the road. Complaints were also dropping as its customers become aware of “remedy and free repair” offered in the silent recall.

Likewise, Hyundai continued to monitor engine-related field data during 2016 and into 2017. Despite having blamed the problem on a manufacturing process that it had long-ago corrected, Hyundai was tracking a rise in claims for engine replacement in later model years related to substantial noise or illuminated check engine or oil pressure warning lights, or stalls at higher speeds. By March 24, 2017, Hyundai decided to convert the silent recall for the remaining 2013 and 2014 Model Year Sonatas to an actual safety recall (17V-226), and to add the Santa Fe Sport vehicles manufactured at the Montgomery plant, which were having the same problems. Total recall population – 572,000 MY 2013-2014 vehicles.

Coincidentally, four days later, Kia launched its own recall (17V-224) for 443,825 MY 2011-2014 Kia Optima vehicles; 165,918 MY 2012-2014 Sorento vehicles; and 8,417 MY 2011-2013 Sportage vehicles, “based on anticipatory risk concerns.”

Also coincidentally, both described the defect in near identical language – metal debris from factory machining, leading to restricted oil flow to the main bearing, engine knock and an illuminated oil pressure warning light, and causing eventual failure and a stall. Neither explained why machining debris was still afflicting engine assembly lines even though Hyundai supposedly fixed it, and Kia never had the issue to begin with.

Given its inside intel from Kim, NHTSA was understandably suspicious of these unconvincing Part 573 Notices of Defect and Non-compliance, and in May 2017, opened a Recall Query to determine if Hyundai and Kia met its regulatory burden of issuing these recalls within five days of learning of a defect.

Something’s Burning

While NHTSA was digging into Hyundai Kia’s stall issues, the Center for Auto Safety was collecting instances of non-crash fires in an overlapping population of vehicles that shared the Theta II GDI engine. In June 2018, CAS petitioned NHTSA to open an investigation into the Hyundai MY 2011-2014 Sonata and Santa Fe vehicles and Kia MY 2011-2014 Sorento and Optima vehicles. The non-profit cited 120 consumer fire complaints filed to the agency’s VOQ database and another 229 VOQs of melted wires, smoke, and/or burning odors. 

The agency obliged, opening a Defect Petition investigation in August 2018 covering 2.2 million vehicles. The Opening Resume noted that the majority of the reported fires appeared to be related to the engine failures in the recall queries.

In October of that year, CAS publicly called on Hyundai and Kia to recall those vehicles, plus the 2010-2015 Kia Soul, charging that the incidents were ongoing and occurring with greater frequency and intensity. Since their initial request to NHTSA, CAS said, it had tallied an additional 103 fire reports, equaling almost one fire a day across those five models.

Litigators entered the fray, filing multiple multi-district class-action lawsuits. Under pressure from the regulators and the plaintiffs’ bar, Hyundai Kia began rolling out the recalls:

In December 2018, Hyundai/Kia launched a safety campaign involving more than 218,000 vehicles covered by the 2015 and 2017 recalls that received the engine replacement repair because the high-pressure fuel pipe may have been damaged or improperly installed, allowing fuel leaks that could lead to fires.

In February 2019, Kia recalled 378,967 2012-2016 Souls with 1.6-liter Gamma GDI engines for an overheating catalytic converter. Kia blamed faulty ECU logic for the Catalytic Overheating Protection, which could allow the high temperature of exhaust gases to damage the catalytic converter and cause abnormal engine combustion, leading to engine piston damage and rod breakage. Eventually, oil could escape the engine block, contact the hot exhaust surface, and start a fire.

It was, no doubt, a good effort. But not enough to deter NHTSA from bumping up the Defect Petition investigation to a Preliminary Evaluation (PE19-003) in March 2019. By that time, the agency counted — between its own VOQs and Hyundai/Kia reports — 1,341 non-crash fire complaints, with 26 injuries.

There is very little in the public file related to the search for root causes. But, suffice it to say, the inquiry sent Hyundai Kia in a lot of different directions. Between February and December 2020, the automaker launched 11 investigation-influenced recalls covering more than 2.5 million vehicles to address non-crash fires in a wide variety of models for a variety of causes — leaky fuel feed lines, short-circuiting ABS modules and ABS brake hydraulic electronic control units, and rod bearing failures. A December Kia recall for 295,000 Sorento, Forte, Koup, Optima Hybrid, Soul and Sportage vehicles made little attempt at a defect description. The Part 573 merely states that “an engine compartment fire can occur while driving for many reasons and depending on the severity of the fire, the identification of the cause can be untraceable.”

Yes, there are “many reasons” why NHTSA fined Hyundai Kia $210 million in November even if you can’t read about them in the consent agreement. Meanwhile, the NHTSA investigation into non-crash fires remains open.

As for the nearly 4 million Hyundai/Kia owners represented in the consolidated MDL, the $1.3 billion settlement includes free diagnostic Knock Sensor Detection Software, which continuously monitors engine performance for the symptoms that precede engine failure; a Lifetime Warranty covering all costs associated with inspections and repairs; reimbursements for any out-of-pocket costs borne by owners who had their vehicle repaired outside of or before the recalls; and loss of value payments.

The Theta II was intended to be the engine that rocketed Hyundai Kia’s cars to the top ranks of fuel efficiency. Instead, it broke federal civil penalty records. Theta, the eighth letter of the Greek alphabet, denotes a variety of mathematical and scientific concepts, such as a plane angle in geometry, an unknown variable in trigonometry, and a potential temperature in meteorology – to name a few of the easier-to-grasp representations. Within the engineering circles at Hyundai and Kia, it might as well represent the engine from hell. 

cobalt car crash

Cobalt Cover-Up

Brooke Melton died on her 29th birthday. It was the evening of March 10, 2010, and Melton, a pediatric nurse, had just finished work and was headed to meet up with her boyfriend for a celebration dinner, when the ignition module of her 2005 Cobalt slipped into the accessory position as she drove along Highway 92 in Paulding County, Ga. Melton’s Cobalt lost all power and skidded into another vehicle. She died of her injuries. The roads were wet from rain earlier that day, and the police attributed the crash to Melton driving too fast for the conditions.

The conclusions of the official report hardly closed the book for Melton’s parents. Her father, Ken, was particularly troubled. Just days before the fatal crash, she told him that her engine had inexplicably shut off while she was driving. A few weeks after the crash, GM sent Melton a recall notice for a power steering defect that could result in greater steering effort and, possibly, a crash. It would be a year before Ken and Beth Melton took their suspicions to Marietta lawyer Lance Cooper. Lawyers for the occupants of the other car were asking questions about Brooke’s 2005 Cobalt, and the insurance adjuster was scheduling an inspection – the Meltons needed their own representation. Would Cooper consider it?

The timing was inauspicious. Cooper’s firm had just returned to financial health after losing three large expensive auto liability cases that had mired his practice in debt. So, with some trepidation, and a hunch that something was amiss, Cooper, a seasoned litigator who had earned a reputation for his quiet but vigorous and successful advocacy pursing cases for victims of vehicle and tire defects, took the on what would become the most important case of his career.

Every lawyer has a few good war stories, but few have one with as much impact as Cooper’s battle against GM for installing a defective ignition switch in millions of its models and hiding that fact for a decade. In telling his own story in clear, unadorned prose, Cooper comes across as a deeply decent man whose work is guided as much by his religious faith as by his decades of experience going toe-to-toe with global behemoths.

Officially, at least 124 people died and 257 were injured in crashes caused by the low-torque ignition switch, which could slip from the run position to “accessory,” cutting off all power and disabling the airbags and all of the advanced safety systems. GM eventually recalled 30 million vehicles worldwide and paid out $2.5 billion in compensation and fines. GM executives and NHTSA officials were dragged up to Capitol Hill to explain themselves to an angry Congress.

Cobalt Cover- Up charts the twisted five-year path to justice, from the questions Brooke’s grieving parents first raised to Cooper in February 2011 to the whimpering end of the multi-district litigation’s effort in 2016 to hold GM accountable. Along the way, Cooper introduces the reader to himself and to those who provided key assists such as the late forensic mechanic Charlie Miller, who discovered a GM Technical Service Bulletin on the defect; engineering expert Mark Hood, who found that GM had changed a key switch part; and his uber-paralegal Doreen Lundrigan, who extracted valuable notice admissions out of GM’s paper blizzard.

Full Disclosure: Safety Research & Strategies consulted with Cooper on the Melton case, and SRS President and Founder Sean Kane appears in the narrative a few times. At one juncture, Kane gives Cooper critical evidence to challenge GM’s claims that it knew of no deaths or injuries associated with the ignition defect.

“I’ve known Cooper professionally and personally for decades,” Kane says. “This book –without any hyperbole – accurately portrays him as the skilled lawyer and the trustworthy and grounded person I know him to be.”

In hindsight, the switch ignition defect had been hiding in plain sight. Even as the first vehicles with defective ignition switches hit the showrooms, automotive reviewers had taken notice of the vehicles’ inexplicable propensity for sudden shut-offs. In 2005 and 2006, GM issued Technical Service Bulletins alerting its technicians to the defect of “Inadvertent Turning of the Key Cylinder, Loss of Electrical System and no DTCs.” NHTSA launched three separate Special Crash Investigations (SCI) in 2006 and 2007, all based on non-deployment of the airbag in a severe frontal crash. In each, the investigators found the ignition in the accessory position. In April 2007, the Indiana University Transportation Research Center’s Special Crash Investigation on an October 2006 Wisconsin fatal crash put the two together – noting the accessory position and linking it to the October 2006 TSB.

But NHTSA had focused solely on airbag non-deployments. And Cooper’s first working theory was that the power steering might be to blame. As Cobalt Cover-Up recounts, eliminating the power steering as a root cause, examining exemplars, following the clues, and pushing past GM’s attempts to obfuscate and mis-direct, took the right combination of perseverance and expertise. 

The story has its villains. General Motors, of course: Five months after the Meltons reached a confidential settlement, GM issued an ignition switch recall but limited it to a fraction of the affected vehicles. GM’s announcement to NHTSA mentioned no deaths, nor the fact that it had known of the problem for years. Once again, Cooper forced GM to disclose the full extent of the problem to NTHSA – and to ensure that NHTSA took it seriously, he notified the press.

Once the debacle broke into full public view, it became GM’s mission to place all the blame for its failures on the shoulders of switch engineer Raymond DeGiorgio – casting him as a rogue employee who managed to place a sub-standard switch in millions of GM vehicles without anyone’s knowledge, and years later, switch it out with a different part, again unbeknownst to any of the automaker’s numerous managers and supervisors. And, as Cooper writes, they largely succeeded. GM’s “independent” investigation by attorney Anton Valukas pinned the fiasco on DeGiorgio, garnering headlines in the popular and trade press such as Forbes “How one rogue employee can upend a whole company,” or The New York Times’ “A Fatally Flawed Switch, and a Burdened G.M. Engineer,” or Automotive News’ “How Ray DeGiorgio threw GM investigators off track for years.”

But Cobalt Cover-Up identifies many more who enabled the defect to go uncorrected for so long and derailed a full public accounting of GM’s bad acts. Among them NHTSA, which on two separate occasions, told GM officials they were concerned about a spate of crashes in which the airbags failed to deploy, yet failed to connect the dots.  

Cooper also takes some of his peers to task – GM lawyers who suborned perjury and abetted the cover-up and the lead attorneys in the Multi-District Litigation. The leadership’s failure to do the most basic vetting of their chosen bellwether cases, he writes, turned the effort to bring a full measure of justice to the victims into a flaming wreck.

Most of The Safety Record Blog readers likely know this story. It’s worth reading anyway. Established product liability attorneys will find in this book a validation of their own experiences fighting well-resourced corporations for complete discovery. For new lawyers, it’s a master class on the careful selection of experts and the painstaking attention to the details in putting together a successful automotive defects case. But Cobalt Cover-Up is a good read for anyone. For one, Cooper takes care to define the legal jargon for the lay reader. More importantly, it’s a reminder that the civil justice system can be a powerful force for good and that attributing crashes to “driver error” is easy – finding the real problem takes a dedicated and savvy legal advocate.

Cobalt Cover-Up on Amazon


Is NHTSA Ready to Strengthen Seat Backs?

The National Highway Traffic Safety Administration and the automotive industry have long agreed that the Federal Motor Vehicle Safety Standard for seat back strength is inadequate. And, most safety advocates argue that FMVSS 207 has nothing to do with seat performance in real world crashes.

Today, many vehicle seats are built to far exceed the demands of FMVSS 207’s 1967 static pull compliance test on an unoccupied seat, which requires that it withstand a load equal to 20 times the weight of the seat with the load applied in a forward and rearward longitudinal direction. In 2016, David C. Viano, a former General Motors scientist, now a private engineering consultant and the industry’s go-to defense expert witness, documented a steady increase in conventional seat strength and resistance to seat rotation over the past 50 years. By the 2000s, seats were significantly stronger, even though questions about their real-world performance remain.

Yet, for half a century, the battle over FMVSS 207’s effectiveness was shaped thus: Did the standard allow seat backs to collapse in rear impacts, causing serious injury to the seated occupant and any rear-seated passenger in its path, as the safety community claimed? Or did the injury data show that seat-back collapse, euphemistically dubbed “yielding” seat backs actually protect the front-seat occupant from injury, as industry maintained?

Automakers argued that “yielding seats” limited injuries in low-speed rear impacts, and that stiffer seats would result in more severe injuries – an argument based on 1950s-era seat designs with short, flexible seatbacks and ineffective head restraints. However, in real-world, higher-speed rear impacts, weak seat backs don’t yield in a controlled manner. They simply break and collapse – a result readily observed in FMVSS 301 Fuel System Integrity rear impact tests with dummies in the driver’s seat.

Industry successfully forced this false frame – much like automakers did with their claim that serious rollover injury and death was not caused by weak, collapsing roofs but by occupants “diving” into them – around the issue, effectively stymieing any solution for decades. The concept of designing a seating system that protected occupants in both low and high-speed crashes was considered a pipe dream. 

But a recent paper published by NHTSA shows that weak seats lead to serious injuries, and there are effective countermeasures. In July, NHTSA released Front Seat Modeling in Rear Impact Crashes: Development of a Detailed Finite-Element Model for Seat Back Strength Requirements, which concluded that in rear impacts, seat back dynamic rotation should be reduced to less than 35° to prevent injury to the seat occupant and occupants seated directly behind it. NHTSA commissioned the study, conducted by EDAG, Inc., to re-examine the feasibility of increasing seat back strength by using computer finite-element (FE) modelling. EDAG’s goal was to validate the FE modelling of a current vehicle front seat design that could be used with existing anthropomorphic rear-impact test dummies to study seat performance in rear impact crashes.

EDAG researchers used the 2014 Honda Accord mid-size sedan, which they had developed for other projects, to represent typical front seats. Researchers then compared their Finite Element Analysis (FEA) computer simulations to two physical tests: a more rigorous version of the FMVSS 207 test and the dynamic FMVSS 301 Fuel System Integrity high speed rear impact crash test. For the FMVSS 207 rearward seat back pull test, the researchers loaded the seat back until it collapsed, on both a manual seat and a power seat. For the FMVSS 301 test (a 55 mph moving deformable barrier with 70 percent off-set into the rear of a vehicle), researchers substituted the barrier-to-vehicle impact with a rear impact sled test, using an acceleration pulse computed from the 2014 Honda Accord model, and placed a 50th percentile male BioRID II dummy in the front and rear seats.

EDAG used the seat back strength and dynamic motion of the front seat to determine injury potential during rear impacts, finding “significant injuries on the rear seat occupant,” in the head and the knee, both of which interacted with the front seat back as it rotated rearward. For example, in the scenario in which an unbelted occupant dummy was seated behind the driver, with seat in the full down and full rear position, the front seat rotated about 40° and hit the rear seat occupant knee. “The seat back rotation observed from this study was considered high potential to cause injuries to the rear seat occupants of all types such as children and adults.”  

These results led the researchers to conclude that a 40° seat back rotation in the FMVSS 301 sled test should be considered a failure because of the injury-producing potential, ultimately recommending that dynamic rotation of the seat back be limited to 35°.

Then, EDAG researchers used computer modelling to look at injury prevention measures to the seat back, the recliner, and the seat bottom that did not add significant weight or manufacturing costs. The FEA found that modifications to the seat back parts or recliner mechanism were ineffective, because “most of the seat back dynamic rotation was caused by weakness of the seat bottom frame parts and seat mechanism. EDAG found that a gauge increase to 3.0 mm from 1.8 mm and grade change to high strength steel on the seat bottom frames yielded the performance meeting the targets.”

This research, in part, buttresses the findings of many independent researchers, such as Dr. Kenneth J. Saczalski, Carl E. Nash, and the engineers at ARRCA, who have long argued that excessive seat rotation is a serious safety hazard to the seat occupant, and those positioned behind a collapsing front seat.

“There are some excellent points in this paper,” says Saczalski. “And I’m really surprised that NHTSA said that we need to limit the amount of rearward rotation. It was nice to see after all of this time, because the [seat back standard] doesn’t address the safety of the occupant, and we’ve published many papers showing this. You’ve got to make the seat stronger, and reliable under the various levels of use.”

To understand a vehicle seat’s safety performance, it must be adjusted and its performance assessed at the low and high position, and with dummies representing the heaviest occupants –the 95th percentile male, he adds. Some seats are strong, but when challenged by crash forces with certain occupants, and with the seats in certain positions, the small linkages fail and the seat back collapses.  

Dr. Teo Forcht Dagi, a neurosurgeon and expert in brain and spine injury, notes that “the move to reconsider the seat-back standard reflects an increasing appreciation for the importance of complex dynamic factors in injury causation and prevention. Design for passenger safety must contend with the fact that the mechanisms of injury change under different circumstances, at different velocities, and under changing loads. Not only is it incumbent upon automotive designers to re-examine their assumptions as additional data become available, they must rethink their designs and their standards for adequate safety performance.”

Other support can be found in a 2009 real-world crash study by researchers from the Center for Injury Research and Prevention at the Children’s Hospital of Philadelphia, who looked at the effect of front seat back strength on the injury risk to children seated in the rear in a rear-impact crash. CHOP examined cases from 2000-2006 of 1,035 restrained child occupants under 12 years old, seated in a second-row outboard position in rear crashes, and weighted the sample to represent 10,079 children. These data came from their Partners for Child Passenger Safety Study, a collaboration with State Farm Insurance. 

The researchers analyzed the data to quantify the overall injury risk in relation to the presence of a front seat occupant and reported front seat-back deformation. Researchers found 2.3 percent of the children sustained an AIS 2+ injury; 71 percent of those crashes had a front seat occupant and 8 percent of the cases reported front seat-back deformation. For those children with reported seat-back deformation occurring directly in front of them, there was a doubling of the injury risk. The researchers, who presented the results of this survey at the 52nd AAAM Annual conference, provided the first population-based estimates of the injury risk of rear row-seated children in rear impact crash events.

At the time of its release, Kristy Arbogast, CHOP’s  Co-Scientific Director and Director of Engineering, said  “In the automotive safety community, the debate centers around mitigating injury for front seat occupants through design of the front seat, and little focus is placed on the role of seat back design on injuries to other occupants. Using two population-based samples, this study points to at least a two-fold increase in injury risk for children seated behind yielding seat backs in rear impact crashes, after adjusting for potential confounders such as crash severity.”

Similarly, Viano’s early research into seat back strength in the 1980s included tests showing how seat back rotation injured the front seat occupant. His paper, published in 1992, documented the results of his study of the influence of seat-back angle on occupant retention in a rear impact. The paper concluded that front seat occupant retention became difficult in rear impacts once the seat back angle rotated rearward more than 45 degrees from vertical and that, at 60 degrees, occupant retention was not possible – even if a seatbelt was worn.

Rear Seat Safety Diminished as Front Seat Safety Increased

This latest paper offers another strategy for increasing rear seat safety, which has long been ignored. NHTSA, as well as seat experts, automotive injury researchers and other agencies have all acknowledged this gap in occupant protection.

In January 2017, the National Transportation Safety Board, an independent non-regulatory agency which investigates crashes and makes policy recommendations, published the results of workshop on rear-seat safety it sponsored in 2016. The report noted:

 …with the focus on advancing the safety of front seat occupants through improvements in vehicle design, regulations, and crash testing, some recent studies have indicated that the protection offered to rear seat occupants is not advancing as quickly as protection for front seat occupants. Advances in front seat design and technologies have created an environment where, for some occupants, such as older children and older adults in certain crash situations, the front seat may be safer than the rear seat. This development is in contrast to the longstanding belief that the rear seat is always the safest position for these occupants.

The workshop brought together 50 scientists, researchers, engineers, and representatives of industry to discuss short-term and long-term solutions and challenges to the many factors contributing to the trend of rear-seat injury and death, including rear seat design and low adult seat-belt usage rates in the rear.

Ten years earlier, at a May 2006 government-industry meeting sponsored by SAE, NHTSA staffer Sashi Kuppa presented an analysis of frontal (non-rollover) crashes from the FARS, NASS and State Data System databases showing that the rear seats—often touted as the safest positions in a vehicle—offer inadequate protection to their occupants. Kuppa examined rear outboard positions in 1991 and later vehicles (equipped with lap/shoulder belts) and concluded that for rear seat occupants the belt was often the source of injury. Kuppa also found that for newer cars front seats were safer for restrained adults—especially adults who were 50 years old and above—as advanced restraints were added. Other crash data analyses presented by the agency similarly concluded that rear seat belts were the major cause of injuries to rear seat occupants in frontal crashes. The results of this study showed that rear-seating positions are not receiving the same attention by manufacturers as front seats, which have had increasing scrutiny and improved regulation.  

Petition after Petition, Still No Rulemaking

Will this study move the needle on long overdue rulemaking to improve rear seat safety? The history of regulatory inaction isn’t encouraging.

Researchers have been asking NHTSA to strengthen rear seat requirements for 45 years. In 1974, Nash of the Public Interest Research Group petitioned NHTSA to upgrade FMVSS 207 by adding a dynamic rear-end impact test requirement to the standard. And, in 1998, NHTSA officially acknowledged on its website that the 207 standard was inadequate:

There have been several valid criticisms of the current Federal Motor Vehicle Safety Standard No. 207 which addresses seating systems. Generally it is acknowledged that the current standard requires inadequate seat strength to insure that the seat does not fail when a car is subject to a severe rear impact.

Yet, it ignored or denied subsequent requests for a more effective regulation. In 1989, Saczalski petitioned NHTSA to amend FMVSS 207 to address the problem of inadequate seat strength and seatback failure, noting that “during rear impact the seat backs are loaded by the inertia of the occupants upper body and the current seat back requirements result in collapse of the seat back which allows the occupant to slide out from under the lap belt thus rendering the restraint system ineffective.”

Saczalski requested that NHTSA specify that the testing load be both 20 times the weight of the seat back and 20 times the weight of the occupant, and that the seat back torque criteria be increased to 56,000 inch-pounds. 

 A year later, occupant restraint expert Alan Cantor, of the consulting firm ARCCA, Inc., petitioned the agency to amend FMVSS 207 to prohibit occupant “ramping” up the seat back during seat deformation. These petitions prodded NHTSA to so some research. In 1992, it launched a Seat Back Strength project to gather information, acknowledging the current standard was inadequate to ensure that the seat does not fail when a car is subject to a severe rear impact. Despite periodic announcements that improved seat strength and head restraints was an agency priority, among its priorities, it has proposed no new rulemaking.

In August 2004, Cantor filed another rulemaking petition with attorney Larry E. Coben, this time for amendments to FMVSS No. 208 Occupant Protection requesting the inclusion of rear seat belted dummies in the dynamic crash testing requirements and the adoption of European ECE Regulation 17 which requires unrestrained cargo behind rear seats in frontal crashes.   

Coben and Cantor recommended that the agency select dummies of various sizes and adopting FMVSS No. 208 injury criteria for the head, neck, chest, and femurs. They also recommended adopting a new method of assessing abdominal injury risk. Coben and Cantor argued that applying the same injury criteria to rear seat as front seat dummies in frontal crashes was warranted, and would not cause any undue expense.

In early December 2006, the agency rejected the petition as “premature,” because it was actively engaged in a research program examining rear seat occupant protection, that included analytical and sled tests, and simulations with different-sized test dummies in the rear seats to determine advanced restraint system feasibility and improved restraint geometry.  

In 2015, after nearly a decade of NHTSA apathy, Cantor and four of his colleagues at ARCCA Inc., re-petitioned NHTSA to amend FMVSS 207:

Since 1989, hardly a day passes that we are not faced with an issue related to seat failure in a rear-end crash and the resultant serious injury that such a failure causes. As automotive seating and restraint experts here at ARCCA, we have been involved in hundreds of seat back failure litigation cases, the vast majority of which have settled prior to trial. As part of our work on these cases, we have had the opportunity to review seat strength data from various auto makers, and we have been involved in the conduct of a  variety of both static and dynamic tests on the failing seats as well as on seats that can withstand the types of forces typically seen in today’s passenger vehicles that are involved in rear-end crashes. In addition, we have seen both the published and non-published research and data from many others, including most vehicle manufacturers. What is clear from all of this is that automotive seats are more than just “chairs” to allow people to comfortably drive cars or for passengers to be transported in luxury: seats are also safety devices that provide restraint and, in a rear-end crash, the seatback should afford the same kind of protection to the user that a seat belt provides in a frontal impact. 

The petition pointed out that the current test – using a static load in an empty seat – ignored the laws of physics: occupants of different weights or mass will result in different loading of the seatback under the same rear-end crash conditions. ARCCA recommended that NHTSA establish a FMVSS 207 dynamic test – using the FMVSS 301 crash test as a guide – and a New Car Assessment Program (NCAP – NHTSA’s five-star rating system that manufacturers use to tout the safety of their vehicles and that consumers use in making buying decisions) rear-impact test. Or, more simply, restore paragraph S4.1 (b) of FMVSS 209, which required the lap belt portion of the seat belt to remain on the pelvis under all crash conditions.  

In 2016, The Center for Auto Safety petitioned the agency to modify its “child seating recommendations by adding the following or similar warning language and that such language be required in Owner’s Manuals under 49 CFR § 571.208 S4.5.1(f): If Possible, Children Should Be Placed In Rear Seating Positions Behind Unoccupied Front Seats. In Rear-End Crashes, the Backs of Occupied Front Seats Are Prone To Collapse Under the Weight of Their Occupants. If This Occurs, the Seat Backs and Their Occupants Can Strike Children in Rear Seats and Cause Severe or Fatal Injuries.”

These petitions are likely to meet the fate of their predecessors, dying quietly in obscurity.

Improving Rear Seat Safety through NCAP

The one action NHTSA has been willing to consider is to add a rear impact test to the NCAP, and let the universe of scarce stars scare the manufacturers into either improving their seat designs, or risking their markets. April 2013, the agency published a request for comments on possible changes to the New Car Assessment Program, and noted the need to improve rear seat safety.

In recent years, improvements that have been made to the front seat crash environment have significantly decreased the risk of injuries and fatalities for front seat occupants involved in frontal crashes. While exposure and injury rates for rear seat occupants overall are still relatively low, there is an emerging need to further understand the rear seat environment in recent model year vehicles, particularly in consideration of lighter and more compact vehicle designs. Comments are requested on the availability of any data that illustrate whether safety benefits can be realized through encouraging additional safety improvements and/or technologies including rear seat belt reminders targeted at protecting the rear seat environment.

The agency held out the possibility of dynamically testing rear seats and seat belts in the NCAP frontal crash tests, with a 5th percentile adult female Hybrid III dummy in the rear seat behind the ATD in the driver’s seat. The notice attracted nearly 60 commenters, many of whom generally supported the idea of enhancing safety for rear seat occupants and for additional NCAP tests with the 5th percentile ADT in the rear, but disagreed over the test parameters.

The agency, however, did not move forward with rear seat dynamic tests. Instead, it announced in January 2015, it planned to include NCAP ratings pertaining to automatic emergency braking systems.

In May 2016, the trade press, from Automotive News to the Insurance Institute for Highway Safety’s Status Report, reported that NHTSA planned to add a new oblique frontal crash test, simulating two mid-sized vehicles crashing at 56 mph, with a 50-percent overlap to measure how well vehicles protect people in an angled frontal crash. The test, using a stationary vehicle and a moving barrier, would feature a THOR 50th percentile male dummy in the driver seat and the modified Hybrid III 5th percentile female dummy in the right rear. The agency planned to implement this new test in time for the 2019 model year. And the impetus for this change was not to protect children, who have heretofore been frequent rear seat passengers, and vulnerable to injuries and deaths, but to protect adult passengers using ride-hailing services, such as Uber and Lyft.

This apparently did not happen, because in 2018, the agency published a notice of yet another  public meeting to gather input from stakeholders to discuss New Car Assessment Program. The October 2018 meeting, in part, “focused on crashworthiness strategies” for NCAP, including “rear seat occupant protection.” Last month, The Safety Record Blog, with no real confidence that the agency would be able to manage a “Yes” or “No” answer, asked if NHTSA ever made good on its 2016 promise. After nine days of e-mail exchanges, a NHTSA spokesman sent us a link to a press release announcing that NHTSA would publish another notice sometime in 2020, unveiling its proposed changes to the NCAP. Would these changes include a rear seat dummy in a frontal oblique crash test? Final word from the public information specialist: “The agency will determine the upgrades for the NCAP test after its careful review of the comments and feedback submitted to the 2020 Federal Register notice.” Well, that clears everything up.  

Despite this sad, long history of agency inaction, Saczalski is happy to see the agency publish a paper acknowledging the problem of weak seat backs and using Finite Element Analysis, a valuable engineering design tool, to build a better seat.

“This the paper is very good with FEA, you can find the most appropriate design, go to prototype part and run the tests. Then you know how to tweak the system. But this process has been so slow and the children who have died over all these years because of it – it’s a significant number.”

Will the Regs Catch Up to Vehicle Autonomy?

In July, the California Utilities Commission granted Waymo (formerly the Google self-driving car project) the state’s first permit to test its driverless vehicles without safety drivers on public roadways. And, by the end of this year, the company planned to launch a driverless taxi service in Phoenix. Ford has promised the public a “fully autonomous vehicle in commercial operation” by 2021. Tesla, which has led the bumpy path on semi-autonomous vehicles, has forecasted the introduction of as many as a million Tesla “robo taxis” on the road by the end of this year.

The generally accepted wisdom that driverless cars are the future and the future is now, has presaged an influx of investor dollars and ambitious plans to level up the fleet of vehicles with no driver controls. The optimism has been as unfettered as the regulatory landscape – which is to say that this Wild West has no sheriff.

In 2016, the National Highway Traffic Safety Administration announced that its approach to this technological transition would be the light hand of guidance, and issued a list of vague conceptual statements. Last October, the Department of Transportation released its third iteration, Preparing for the Future of Transportation: Automated Vehicles 3.0. This brightly-colored, substance-free piece of public relations affirms NHTSA’s Orwellian view that although it has the authority to regulate automated driving systems, it shouldn’t. Check out some examples of NHTSA Newspeak in AV 3.0:

“The right approach to achieving safety improvements begins with a focus on removing unnecessary barriers and issuing voluntary guidance, rather than regulations that could stifle innovation.” (Fewer regulations equal more safety.)

“ADS developers are encouraged to use these safety elements to publish safety self-assessments to describe to the public how they are identifying and addressing potential safety issues.” (Industry-promulgated transparency is truth.)

“Delaying or unduly hampering automated vehicle testing until all specific risks have been identified and eliminated means delaying the realization of global reductions in risk.” (You must put yourself at risk to reduce risk.)

Indeed, the document is remarkable for its lack of attention to the most basic mandatory protections for the motoring public.

This summer, the agency sought comments for a rulemaking to exempt driverless vehicles that lack traditional human-machine interfaces, such as steering wheels or brakes from the crash avoidance (100 series) of Federal Motor Vehicle Safety Standards which regulate those components. Specifically, NHTSA was seeking public comment on the near- and long-term challenges of testing and verifying the compliance of automated driving systems (ADS).

The Advance Notice of Proposed Rulemaking grew out of requests by Google and GM to reconcile safety standards written for traditional motor vehicles with driverless vehicles (DV). On February 4, 2016, NHTSA responded to several Google’s concerns about how it could certify a vehicle that does not include manual controls, such as a steering wheel, accelerator pedal, or brake pedal. The response also provided tables listing those standards that NHTSA could interpret Google’s ADS as the “driver” or “operator,” and a table listing those standards that NHTSA could interpret the human occupant seated in the left front designated seating position as the ‘‘driver.’’ The agency interpreted the term “driver” as applying to the ADS.

In January 2018, GM filed a petition seeking an exemption so it could run 2,500 Zero Emissions Automated Vehicles on some undisclosed roads, and still meet FMVSSs, despite having no driver or driver controls. GM categorized the FMVSSs as those designed to interface with a human driver, such as manual controls; those that provide human drivers with information, such a telltales and indicator lamps; and features to protect human occupants, such as air bags, and argued that “its ADS–DVs without traditional manual controls require only the third category of requirements.”

Based on the issues Google and GM raised, the agency noted in the ANPRM that it was considering four different regulatory approaches: keep an FMVSS if the control was necessary for the safety of all vehicles, even if it means redundancies on DVs; axe it if the requirement is no longer necessary for any vehicle; keep some FMVSSs required for traditional vehicles only; and write separate  different control or equipment requirements for ADS–DVs. NHTSA also asked a series of questions related to the pros and cons of these approaches and about compliance testing.

The docket attracted nearly 100 commenters, including the usual suspects – industry groups, such as the Alliance of Automobile Manufacturers and Global Automakers, individual manufacturers, such as Ford and GM; and safety advocates, such as the Center for Auto Safety. At the same time, a bi-partisan, bi-cameral Congressional group has been seeking input from various stakeholders in advance of writing autonomous vehicle legislation.

Safety Research & Strategies, with its long history of safety advocacy, has submitted comments to both groups covering three topics: the lack of functional safety standards for critical vehicle controls; the lack of updated standards on the human-machine interface (HMI) of vehicle controls; and the lack of accessible data and interpretation tools to adequately monitor and identify vehicle systems for potential malfunctions. 

You can read them here: SRS Comments to NHTSA Docket 2019-0036 and SRS Comments to the U.S. House Committee on Energy and Commerce and the U.S. Senate Commerce Committee        

We argue that the problems that more vehicle autonomy will bring can already be seen in the current vehicle electronic failures and automakers’ poor human-machine interface designs. For example, the advent of keyless ignition vehicles with push button Start/Stop is resulted in unintended consequences: carbon monoxide poisoning, rollaway crashes and easy thefts – hazard scenarios that were previously eliminated under the FMVSS 114 Theft Protection and Rollaway Prevention requirements applicable to traditional metal keys.

The lack of a functional safety standard for electronic controls results in scenarios in which a critical system intended to save lives can actually create a new hazard that can take lives. For example, in May, Fiat-Chrysler recalled 4.8 million 2014 to 2018 Chrysler, Dodge and Jeep models because of an electrical short circuit that prevents the driver from manually shutting off the cruise control or disengaging it with the brakes, resulting in the vehicle maintaining its current speed or even accelerating.

The current opacity of vehicles’ internal diagnostic and operational data is another huge problem, because it hinders outside entities’, such as NHTSA or consumers, ability to independently examine, document and identify potential vehicle-related failures.  

As a vehicle takes over most of the operational functions, the amount of data it must gather, assess, and store, and the speed at which it must process this information will increase exponentially. Currently, autonomous test vehicles “typically generate between 5TB and 20TB of data per day, per vehicle.” Even in current Level 2 vehicles (defined by NHTSA as “partial automation” the vehicle has combined automated functions like acceleration and steering but the driver must remain engaged in the driving task and monitor the environment at all times.”  – think Tesla’s Autosteer feature.) the amount of data that is transmitted between modules, which is stored to widely varying degrees amongst vehicles, is extraordinary, and the tools available to the public, law enforcement and diagnosticians are generally limited to OBD II diagnostic scans and Event Data Recorders.

This has already led to motorists’ being charged civilly and criminally for at-fault crashes without the ability to properly defend themselves. Despite the plethora of data circulating in a vehicle, it may not be recorded unless a preset active fault is flagged. Further, the publicly available tools used to examine the vehicle and driver behavior, which include scan tools to extract the data from the Event Data Recorder, are able to access only a fraction of what may be needed or available to the manufacturer.

For sure, NHTSA’s hands-free approach to steering the revolution has its fans. Global Automakers argued that a safety standard, such as FMVSS 103 (Windshield Defrosting and Defogging Systems), could be dropped because it “is intended to address forward visibility for the human driver, as measured from a specified eye point at the “driver’s” designated seating position. In this case, the availability of defroster/defogger systems becomes more of a customer satisfaction issue in these vehicles, which should be left to manufacturer discretion to address.” Yeah, everyone wants to ride in a vehicle where you can’t see out of the front windows. And if the ADS’s steering system fails and the vehicle is headed for a tree, who wants to see that?

But many more commenters to the NHTSA docket pointed out that the agency’s desire to forge ahead left wide gaps in implementation. There has been little to no discussions about so many aspects of this complex evolution – among them, the interconnectedness of autonomous vehicles and the roadways they traverse, raised by the American Association of State Highway and Transportation Officials (AASHTO), and state drivers’ licensure laws, raised by the American Association of Motor Vehicle Administrators (AAMVA).

They also offered pointed criticisms of the current safety assurance process of test drives. Former Lockheed Martin systems engineer Michael DeKort, who, in 2008 won IEEE’s Carl Barus Award for Outstanding Service in the Public Interest for his efforts to expose safety and security problems with the U.S. Coast Guard Deepwater Project, chimed in to “strongly urge NHTSA to look past the hype and to the aerospace, DoD and the FAA regarding proper development and testing due diligence of not only the autonomous vehicle system but the use and qualification of proper simulation. This as a tenable and safe alternative to the untenable and reckless process of public shadow and safety driving being used now by most driverless vehicle makers.”

It is impossible to drive the one trillion miles or spend over $300B to stumble and restumble on all the scenarios necessary to complete the effort. In addition, the process harms people for no reason. This occurs two ways. The first is through handover or fall back. A process that cannot be made safe for most complex scenarios, by any monitoring and notification system, because they cannot provide the time to regain proper situational awareness and do the right thing the right way, especially in time critical scenarios. The other dangerous area is training the systems to handle accident scenarios. In order do that AV makers will have to run thousands of accident scenarios thousands of times. that will cause thousands of injuries and deaths. The solution is to replace 99.9% of that public  shadow and safety driving with aerospace/DoD/FAA simulation technology and systems/safety engineering practices. (Not the gaming architecture-based systems most are using now. That technology has critical real-time, model fidelity and loading/scaling issues. These will cause improperly trained systems, false confidence and real-world   tragedies.)

Strange bedfellows Advocates for Highway and Auto Safety and the National Automobile Dealers Association challenged NHTSA’s premise that regulations are barriers, and that driverless cars shouldn’t be subject to certain safety standards because they reference actions by human drivers. From NADA:

Proposed changes to various FMVSS to accommodate ADS-DVs should preserve the safety purpose of those FMVSS. For example, while an ADS-DV with fully automated steering may not need a steering wheel to safely navigate the roads, the ADS-DV should be able to maintain at least the same level of steering performance as an experienced and  well-trained human driver operating a vehicle with a steering wheel.

Science-for-hire behemoth Exponent made a similar point: “To ensure demonstrable equivalence between any new certification approach to current performance requirements, there must be a scientific or engineering linkage to assure vehicle level performance characteristics equivalent to existing FMVSS requirements for conventional vehicles driven by a human.”

Beyond the docket, embedded systems experts have raised concerns about the rapid adoption of autonomous technology outside of any required safety protocol. For example, where is the discussion of fail-safes? When autonomous technology goes awry, will the human occupants have an intervention mechanism? Dr. Philip Koopman, co-founder and CTO of Edge Case Research, an autonomous systems safety consulting company, and a professor at Carnegie Mellon University, regularly discusses the issues and conflicts presented by vehicle autonomy, including the unrealistic expectations of human drivers in driverless cars. From his blog Safe Autonomy:

High-end driver assistance systems might be asking the impossible of human drivers.  Simply warning the driver that (s)he is responsible for vehicle safety doesn't change the well-known fact that humans struggle to supervise high-end autonomy effectively, and   that humans are prone to abusing highly automated systems.

One doesn’t have to move far beyond the happy promises of industry and its primary cheerleader, NHTSA, to see that their confidence in a carefree transition to driverless vehicles is not based on really anything. Maybe that’s why public confidence in automotive technology is low. A 2019 Ipsos/Reuters poll found that “half of U.S. adults think automated vehicles are more dangerous than traditional vehicles operated by people, while nearly two-thirds said they would not buy a fully autonomous vehicle.”


Toyota Has the Most Keyless Ignition Related Deaths, But Takes no Action

EDITOR’S NOTE:  Five days after publication of this article Toyota announced its plans to add auto shutoff and auto park features for 2020 models to prevent CO deaths and rollaways – 13 years after first death and 7 years after Ford and GM.

Last month, Dr. Sherry Hood Penney, 81, and Dr. James Livingston, 88, died of carbon monoxide poisoning. The couple had inadvertently left their keyless ignition 2017 Toyota Avalon running in the attached garage of their Sarasota condo. The car ran until it was out of gas and its battery died.

Penney and Livingston were distinguished in life – Dr. Penney’s resume included glass-ceiling shattering stints as interim president at SUNY Plattsburgh, the first woman at SUNY to serve as vice chancellor of academic programs, policy and planning at SUNY, and interim president of the UMass system. Dr. Livingston was a retired MIT professor, a research physicist at General Electric, and a global expert on magnets.

They died of indifference.

Toyota has the most keyless ignition carbon monoxide deaths. It had the first publicly acknowledged deaths and, now the most recent deaths. Yet, Toyota has done nothing to implement a simple, inexpensive software solution that some other major automakers introduced seven years ago.

No Manufacturer Knows the CO Keyless Ignition Hazard Better Than Toyota

The Penney-Livingston deaths bring the total of the known Toyota keyless ignition carbon monoxide fatalities to 17, with an additional 18 CO injuries. Deaths linked to keyless Toyota or Lexus models now account for 47 percent of the 37 known deaths.

Carbon monoxide deaths associated with keyless ignition vehicles represent the tip of the safety problem. The vast majority of keyless ignition vehicle owners have accidentally left their engines running at one time or another, but most incidents result in a metaphorical knock to the head – “I can’t believe I didn’t turn off my engine!” moment. In order for his error to cause injury and the death, the vehicle must be parked in an enclosed space, adjacent to an occupied living space, it must have a full, or nearly full, tank of gas, and there must be a stretch of time when interruptions from others outside the home are unlikely.

Since these deaths and injuries are not tracked in any methodical way, and because not all keyless ignition carbon monoxide deaths make the news, it is likely that there are more deaths and injuries than are publicly known.

The first known Toyota keyless CO deaths occurred in April 2006, David Colter, 89, and his 70-year-old wife Jeanette, of Port St. Lucie, Florida, were found dead of carbon monoxide poisoning in their home, after leaving their 2006 keyless ignition Avalon running. According to their son-in-law, Jeanette Colter had apparently already had one incident in which she left her Toyota running in a parking lot; and family members warned her about forgetting to turn off the car with the quiet-running engine.

“That car was so quiet, it was hard to tell if it was running or not,” Terry Wilson said in a news article. “You don’t even need a key to start it. You just push a button to turn it off and on.”

Three years later, Mary Rivera, a former college professor, left her Lexus ES 350 idling in a garage beneath her homes. Her 79-year-old partner, Ernest Codelia Jr., died of carbon monoxide poisoning. Rivera survived, but suffered permanent brain damage. The incident hit the news in November 2010, when the victims filed a civil lawsuit against Toyota. By then, there was another Toyota keyless ignition death and injury. In August of that year, 29 year-old Chasity Glisson of Boca Raton, Florida, parked her Lexus IS250 in garage to make room for boyfriend’s vehicle, and forgot to turn off the engine.  She later collapsed in bathroom on the 3rd floor, where her boyfriend, Timothy Maddock, found her, and passed out himself. The pair was found the next day; Glisson died of carbon monoxide poisoning. Maddock was critically injured and hospitalized for ten days.  An investigation revealed that the carbon monoxide came from the Lexus in the garage, which Glisson inadvertently left running.

In 2010, Safety Research & Strategies reached out to the National Highway Traffic Safety Administration’s chief counsel’s office and rulemaking engineers to alert the agency to the  rollaway and carbon monoxide hazards of keyless ignitions.

In 2011, NHTSA raised the profile of Toyota incidents in a Notice of Proposed Rulemaking to amend Federal Motor Vehicle Safety Standard 114, which regulates key systems. In a half-baked attempt to address the carbon monoxide hazard, the agency proposed mandating louder warnings. In explaining its rationale, the NPRM specifically made examples of the Glisson incident and a consumer complaint involving a close call from a 2007 Lexus LS460 owner, who inadvertently left his vehicle running in his garage, but was awakened at 2 a.m. by a carbon monoxide detector, and averted serious injury. The rulemaking was roundly criticized by industry and advocates alike, but for different reasons. Industry was opposed to the louder warnings solution for fear of annoying customers, chided the agency for proposing a rule based on consumer complaints, but also tried to block it from conducting some human factors research that would serve as the basis for rulemaking. Consumer advocates argued that auditory warnings were much less effective than a simple automatic engine idle shutdown mechanism and the agency had no data to support the effectiveness of the proposed audible alert.  (NHTSA has not advanced the rulemaking since.)

Since then, Toyota owners have suffered injuries and fatalities from carbon monoxide poisoning at regular intervals. In the first five months of 2019, there have been three known deaths caused by Toyota keyless ignition vehicles.

In February, Russell Fish, a 68-year retired member of the U.S. Army, and the National Security Administration from Hanover, Pennsylvania, and the family dog, Angel, died when Fish parked his wife’s 2011 keyless ignition Toyota 4Runner in their garage and inadvertently left the engine running. As Fish retired to his bedroom, the vehicle continued to run for nine hours until the temperature in the garage rose to levels high enough to explode the aerosol paint and insecticide cans on the garage shelves; the dash warped and the grill of the vehicle melted; and Fish slipped into death from carbon monoxide poisoning. He was found the next day by the family’s pastor, who they had check on Fish when he didn’t answer his phone.

“My research has uncovered this has been a known issue for some length of time and Toyota has had (and failed to take) the opportunity to do the right thing by correcting it,” says Fish’s oldest son, Nathaniel Fish of Phoenix, AZ. “They have failed to ensure that no other parent has to sit their children down as they’re getting ready for a party and tell them that the last time they saw their pappy was the last time; no pastor will need to find the body of one of his parishioners lying in bed in a stiflingly hot house filled with exhaust; no wife will need to get that call, while visiting grandkids, that her husband and life partner won’t be there to embrace her and welcome her home when she returns; no grandson will have his senior trip forever marred by the memory of receiving the startling news that his pappy had died from something that could have been prevented.”  

Older Drivers, Ingrained Habits

Drivers of every age can and do inadvertently leave keyless ignition vehicles running.

The design makes it easy to do. In a keyless ignition system, the key is no longer a physical object. It is an invisible code, transmitted via radio waves to and from the plastic fob and the ignition module in the vehicle. The fob must be in the vehicle to start the engine – much like a traditional metal key, but unlike a metal key, it plays no role in turning off the engine. Driver’s must execute series of actions – shift the vehicle’s transmission into PARK, push the START/STOP button and open the driver’s door, to fully remove the “key” from the ignition. Drivers exiting their vehicle with the keyless ignition fob – which manufacturers repeatedly call the “key” – believe that because they have the “key” the engine is not running. And because the fob is a proximity device that can only start the vehicle when it’s inside of the occupant compartment, many drivers believe the reverse is true – the car won’t continue to run – and if it did it would time out, like other features in vehicles including the radio. 

With a traditional metal key, a driv er cannot remove the key from the ignition without shifting the transmission into PARK and turning off the engine. Thus, the presence of the physical key outside of the vehicle provides drivers with the status of the vehicle – the engine is off, the transmission is locked in PARK – it’s a strong visual and tactile reminder. If your key was in your pocket or hanging from a hook in your kitchen, there is no way the engine could still be running or the transmission in a gear other than PARK. Those possibilities had been engineered out by regulation. That is not the case with a key fob. You could be miles away with the fob in your hand, and your vehicle could be idling away or in still in DRIVE.

It’s obvious that manufacturers conducted no human factors testing to see how drivers would perceive the new system, and what human errors the design itself would induce, because automakers did next to nothing to transition drivers to this radical shift in their relationship with the new-fangled “key.” Rather, manufacturers exacerbated the propensity for error by telling vehicle owners that the plastic fob was the key, branding their systems with names like “Smart Key” or “Intelligent Key” and depicting the fob in owners’ manuals and on the instrument panel as the “key.” They relied on auditory and visual warnings that were often never heard or seen by the driver, or, in the former case, using tones that were like other in-vehicle telltales that failed to distinguish the hazard and status of the key and lasted only seconds.

Combine these factors with today’s nearly silent engines and dashboards, headlights, radios and other electrical accessories that stay enabled for a short period after turning off the vehicle, and it is now super-easy to leave a vehicle running.

Now let’s suppose that you used a traditional metal key for the vast majority of your decades as a driver. Your key behaviors are pretty ingrained. Throw in some hearing loss and background noise, like a garage door going down to further mask that quiet engine and what are the odds you might make an error?  

Toyota Sure Loves the Mature Market’s Money

The Livingston/Penney vehicle was a 2017 Toyota Avalon, intentionally purchased, according to Mrs. Livingston’s son Michael, because “it was such a safe car.” Safety, along with quality has long been key to Toyota’s brand, and the Avalon, its full-sized sedan has long been a favorite of older car buyers.  

Eight of the Toyota CO deaths occurred in five incidents involving an Avalon.

In 2005, the year before the Colters died, “the median age of the Avalon buyer was just under 60, an age that used to signal that a consumer group – and the brand they were buying – had one foot in the grave,” according to a story published in Ward’s Auto.

Rather than disdain the aged buyer, Toyota embraced them. That same story quoted Don Esmond, Toyota Motor Sales senior vice president and general manager:

“That’s all changed now, says Esmond. “While the goal of most auto manufacturers these days is to lower the median age of their buyers as much as possible, we are quite content with the mature age profile of the Avalon buyer. To be honest, I don’t think I would have been comfortable with that number, when we launched Avalon, 10 years ago.”

Over the last 14 years, the average age of an Avalon buyer went up. Today’s “average Avalon buyer today is 66 years old, a few years older than the segment average,” according to a Forbes story published in April 2018. But, again, Toyota is bullish on older buyers. While many industry observers have written the obituary of the full-sized sedan, noting that younger buyers favor SUV crossovers, the April 2018 Forbes story marvels at Toyota’s counter-punch in unveiling a new 2019 Avalon: “As sales in the segment are sinking, several other automakers are discontinuing their big sedans and the average large car buyer is 64 and not getting any younger. Thanks to the huge baby boom populace, it will be some time yet before the market for big sedans disappears. Toyota is betting that with the redesigned it can keep its core Avalon audience happy and attract buyers who previously favored other models.”

And Toyota is supposed to be making its vehicles more age-friendly via the partnership between Toyota’s Collaborative Safety Research Center and the MIT AgeLab, which studies things like “understanding how drivers respond to the increasing complexity of the modern operating environment.”

Apparently, that effort doesn’t extend to preventing carbon monoxide deaths its keyless ignition system vehicles.

Nathaniel Fish says part of his disappointment in Toyota is the irony of its marketing keyless ignition systems to older consumers.  

“In fact, in show rooms they actively market this push button technology as a feature for older drivers who might struggle with inserting a key and turning it…to a demographic that is already conditioned through literally decades of driving cars that require a key to both turn their vehicle on and turn their vehicle off, a demographic that is often suffering hearing loss and cannot hear the increasingly quiet engines still running as they exit their vehicle while the noisy garage door is closing, to think of their “key fob” as just an easier key, without which they cannot start their car,” he says. “And so, reasonably, they view this fob as a key and treat it as such when they take it with them as they leave their vehicle, believing the vehicle cannot run without the ‘key fob’ nearby

It Will Take an Act of Congress

In February, U.S. Senator Richard Blumenthal (D-CT) introduced the Protecting Americans from the Risks of Keyless Ignition Technology (PARK IT) Act, which would require NHTSA to amend and finalize the 2011 proposed rulemaking a rule that vehicles automatically shut off after a period of time to prevent carbon monoxide poisoning, and a rule that sets a performance standard to prevent rollaway.

Blumenthal’s bill (S.543) now idles in the Commerce, Science and Transportation Committee, awaiting a Republican sponsor before Chairman Roger Wicker (R-Miss.) will advance it. Meanwhile, U.S. Representatives Jan Schakowsky (D-Ill.), Darren Soto (R-Fla.), Seth Moulton (D-Mass.) and Joseph Kennedy (D-Mass.) introduced a House version (HR.3145) of the PARK IT Act yesterday.

Specifically, to prevent rollaway the PARK IT Act would require the Secretary of Transportation, within two years of enactment,  to issue a final rule requiring manufacturers to install technology in motor vehicles equipped with keyless ignition devices and automatic transmissions to prevent movement of the motor vehicle if  the transmission of the motor vehicle is not in the park setting; the motor vehicle speed is low enough to establish that it is stationary; the driver’s door is open and driver’s seat belt is unbuckled; and the service brake of the motor vehicle is not engaged. This is the same algorithm Fiat-Chrysler Automotive employed when it recalled Jeeps and other Chrysler vehicles to add updated software to prevent rollaway.

“Basic safety standards and technology can protect owners of keyless ignition cars from the threat posed by carbon monoxide poisoning and rollaways. NHTSA’s failure to act is indefensible and has tragic and fatal consequences. Congress must move swiftly to pass the PARK IT Act and compel NHTSA to do its job,” said Senator Blumenthal.

Accompanying Blumenthal at his April announcement in Hartford, was Suzanne Zitser.  In January 2013, Zitser, a Connecticut attorney, wrote a heartfelt letter about the carbon monoxide death of her 86-year-old father, Gerald Zitser, who owned a 2006 Avalon, to any entity she thought might be interested – the U.S. Department of Justice, the U.S. Consumer Product Safety, and Toyota.

Gerald Zitser, she wrote, still rode his bicycle around town. He loved his Yankees and his Toyota. He took meticulous care of the car, and never missed an opportunity to follow his favorite baseball team. On June 28, 2012, Gerald Zitser did his shopping at the local Publix, parked his Avalon in his garage, and took his groceries into the house. He closed the garage door, but inadvertently failed to shut off his engine. Later that evening, Zitser settled into his recliner to listen to the Yankees take on the Chicago White Sox. He never woke up. (The key fob was found in his pocket.)

“Had there just been an automatic shut off system that kicked in after a preset time when their [sic] was no weight in the driver’s seat, much like the airbags in the passenger side, then this senseless, tragedy would have never occurred,” she wrote.

His youngest daughter received replies from the DOJ, the CPSC and Toyota. The latter response included a form letter assuring her “It is through correspondence such as yours that we are able to continue to improve our services.” She got a case number, and a second round of correspondence from Toyota in which the company expressed its willingness to conduct a vehicle inspection, “However, the danger of carbon monoxide poisoning from an internal combustion engine left running in an enclosed space has been well recognized for years in the automotive industry and by the public at large,” wrote Toyota Motor Sales’ Curtis Hamilton. “Unfortunate incidents such as the one that you describe in your letter, while rare, have also occurred with mechanical key systems and are not dependent on whether the vehicle involved uses a keyless ignition system.”

In March 2013, Zitser wrote back, observing that Toyota had missed her point entirely – an engine shutdown device could be implemented in any vehicle regardless of ignition type – and she encouraged Toyota to stand with safety:

“Again, I thought by sharing this tragedy with Toyota, it might take the opportunity to come up with a very simple solution that would prevent another accidental death – by installing an automatic shut off or kill switch. I hope you will reconsider this letter and not only be a leader in the automotive industry but equally important be in the forefront as far as the safety of the consumers of your product,” Zitser wrote.

By then, it was too late for Toyota to be the safety leader in using an automatic engine shutoff mechanism to prevent carbon monoxide deaths. In calendar 2012, both Ford and GM released MY 2013 keyless vehicles with automatic shut-off systems. And in 2017, Chrysler has added a similar feature to its 2018 Pacifica hybrid mini-van,

Zitser remains baffled that Toyota has refused to address the issue, given its long history of knowledge about the problem and the deadly consequences.

“I would never, ever, ever buy a Toyota,” she says. “The number of Toyota deaths in just this past year is staggering, and I just can’t believe they are not aware of what the other automakers have done to address this problem. I just don’t understand, first, why that the PARK IT bill hasn’t passed and second of all why Toyota has done nothing.”

GAO Concludes Underride is Underreported, Duh

The General Accounting Office added some weight to the arguments safety advocates have been making for decades about the need for the government to more vigorously tackle the truck underride problem. This week, the GAO released the results of a study to support the consideration of the STOP Underrides Act (S. 666 / H.R. 1511), which would, among other things, require the trucking industry increase its installation of these protective guards. The title, Truck Underride Guards- Improved Data Collection, Inspections, and Research Needed, summed up the report’s central conclusions.

Underride activists Marianne Karth and Lois Durso were less than impressed. These recommendations, they said, can be tossed on a stack of similar suggestions made by the Insurance Institute for Highway Safety (IIHS) and the National Transportation Safety Board (NTSB) going back as far as 1992.

“The report basically sums up everything we’ve been telling Congress for the last few years,” says Karth, who took up the cause of requiring trucks to be outfitted with effective underride guards after a May 2013 underride crash that killed two of her nine children, 17-year-old AnnaLeah and 13-year-old Mary. Karth’s vehicle was propelled under the rear of a tractor trailer by another semi trying to switch lanes. “It’s too easy for those who don’t want to be in the position of taking action on the bill to say ‘Oh, we need more data,’ and use it for an excuse for further inaction. Yes, they made some good recommendations, but these are things we already knew and NHTSA already knew, and there are no timelines, no teeth in it, nothing to hold them accountable.”

From January 2018 to March 2019, the GAO reviewed the literature and interviewed a wide range of stakeholders, including representatives of the trucking industry, underride guard developers, law enforcement officials, and transportation safety officials from the European Union, Canada, NHTSA, Federal Motor Carrier Safety Administration (FMCSA), the NTSB and the IIHS.

U.S. Senator Roger Wicker (R-Miss.) Chairman of the Committee on Commerce, Science, and Transportation, along with colleagues Richard Burr (R-NC); Kirsten Gillibrand (D-NY), Marco Rubio (R-FL) and John Thune (R-SD) asked for the assessment to provide context for the STOP Underrides Act, originally introduced in December 2017 and re-introduced last month. The legislation, sponsored by Gillibrand, Rubio and Congressman Stephen Cohen (D-TN) would require the Department of Transportation to issue a final rule to require an upgrade to the rear underride standard and add a requirement for front and side underride guards that meet a performance standard on all trailers, semi-trailers, and single unit trucks with a gross vehicle weight rating of more than 10,000 pounds. The bill also includes retrofit provisions and maintenance requirements, and compels the DOT to finish its research on front underride guard for commercial trucks.

Much of the report concentrated on the lack of accurate data. The GAO analyzed underride crash data and fatalities from 2008 through 2017, finding in the Fatality Analysis Reporting System (FARS) figures a range, per year, of 189 to 253 truck underride fatalities, an annual average of about 219 fatalities – less than one percent of total annual death toll and 5.5 percent of all fatalities related to large truck crashes during this time frame. At the same time, the report acknowledged that underride crashes are among those types of crashes that have the most severe consequences for passenger vehicle occupants, because of the intrusion. It also recognized that the fatality figures are a likely under-count, because there is no uniform collection of underride data among the nation’s different crash reporters, especially police departments, which may not have a place on their accident reporting forms to note an underride crash. Researchers at the IIHS and the University of Michigan Transportation Research Institute (UMTRI) told the GAO that even the FARS data missed underride crashes.

The report explored the advances in underride guard technology and systems that make it possible for trucks to reduce their incompatibility with passenger vehicles. It documented the development of crashworthy side underride guards, including one IIHS-crash-tested aftermarket manufacturer of side underride guards, which has sold about 100 sets of side underride guards, at about $2,500 per trailer. Additionally, some trailer manufacturers reported that they were in the process of developing side underride guards.

The GAO also noted that a 2015 Notice of Proposed Rulemaking to align the two U.S. underride standards, FMVSS 223 and FMVSS 224 with the 2007 Canadian standard for rear impact guards, has not yet been completed. (See NHTSA Proposes to Affirm Canadian Underride Standard)  This would be the first major upgrade to the rear impact protection standards for trucks in 21 years, and would merely codify what 95 percent of the industry is already doing. In 2014, Marianne and Jerry Karth, and the Truck Safety Coalition petitioned the Secretary of Transportation to raise the minimum level of insurance for truck drivers, for a final rule on electronic logging devices to reduce truck driver fatigue; and to improve the rear underride guard rules. NHTSA granted the Karth petition in July 2014 and a year later, the agency published an ANPRM to consider conspicuity and rear impact guard standards for single unit trucks. In October, NHTSA withdrew the ANPRM, saying that based on its analysis of the costs, it could not justify taking further action.

The GAO also examined the FMCSA regulatory role in ensuring that the rear impact guards currently required were actually safe, by requiring annual inspections. The current rules do not specifically include an inspection of the rear guard, even though trucking industry representatives told  the GAO that the guard may be damaged during normal use, such as  backing into loading docks, but would escape notice unless pulled out for a random road inspection: “Stakeholders we interviewed told us that a trailer could go its entire lifecycle—estimated as typically 10 to 15 years—without ever being selected for a roadside inspection,” the report said. 

GAO made several recommendations. First, it suggested that the NHTSA Administrator improve data collection by recommending that the expert panel of the Model Minimum Uniform Crash Criteria update it to standardize the definition of underride crashes and to include underride as a recommended data field. The Model Minimum Uniform Crash Criteria, developed in 1998, identifies motor vehicle crash data elements and their definitions that states should consider collecting. The report also recommended that NHTSA educate state and local police departments on the identification and documentation of underride crashes. The GAO recommended that the FMCSA chief revise regulations to require the inspection of rear guards during commercial vehicles’ annual inspections. Finally, it recommended that NHTSA further research on side underride guards to better understand the overall effectiveness and cost associated with these guards and, if warranted, develop standards for their implementation.

The Owner-Operator Independent Drivers Association reacted to the report by commenting that the data did not support taking any further action to prevent underrides. Durso says the message is actually the opposite.

“We’ve heard this same litany of excuses for 10, 20 years. We know that underride fatalities are grossly under-counted,” said Durso, who lost her 26-year old daughter Roya Sadigh in a side underride crash in Indiana on November 26, 2004.  “And when you do a cost-benefit analysis based on underreported numbers, the results are skewed.” Nonetheless, she added, “we think 2-300 people dying is enough to do something about it. We know you can’t prevent crashes, but you can prevent the fatality with underride protection and that’s what the main point of the bill. Everything in the GAO report is already addressed in STOP Underrides Act.”

The report follows a crash-test demonstration in Washington D.C. less than three weeks ago hosted by Karth and Durso to demonstrate the efficacy of side underride guards. The tests used Chevy Malibus as the bullet car, striking the side of a tractor trailer at about 30 mph, with and without side underride guards. Industry representatives, and staff members from the Department of Transportation, the Senate commerce committee, and the House Transportation and Infrastructure committee watched as the side underride guards engaged the Malibu, crushing the front end, but leaving the windshield and roof intact.

Karth says that their experiences as underride activists taught them that the inertia was due to “the total lack of collaboration and communication between industry, government, engineers, and safety advocates,” she said in a long email. “It really bothered me that that situation stood in the way of effective progress in solving the underride problem. Out of that birthed the idea of holding an Underride Roundtable and we proceeded to spearhead organizing two of them. At first I tried to get NHTSA to host it but they said that they could not but would attend and encouraged me to go ahead with plans to do so. The Roundtables were beneficial and brought people together to talk and listen and observe. And it contributed to putting public pressure on the trailer manufacturers to step up to the plate. But it didn’t lead to any action on NHTSA’s part (although they had people present at the events). Because IIHS was gracious to host them, we were able to have crash tests as part of both Roundtables. Who can argue with the evidence before your very eyes? But what I learned was that no one could hold NHTSA accountable. They were not transparent. They did not foster collaborative discussions or actions.”

Karth says that one of the most important lessons of working on the bill was the need to overcome the obstacle created by the lack of transparency and communication. The activists are promoting the creation of a Committee on Underride Protection, with a representative from every stakeholder group participating to foster effective communication and engineering and logistical problem-solving.

“We are at a fork in the road, a decision point,” Karth added. “This GAO report confirms what we already know and yet we are continuing to let people die, when we know we could do something about it. Congress, the ball is in your court.”

NHTSA Says Electronic Tire Registration Feasible

A new National Highway Traffic Safety Administration report says requiring tiremakers to electronically identify tires is feasible, but the main technologies to achieve it – Radio Frequency Identification tags or two-dimensional bar-codes – come with plusses and minuses that would need sorting out to achieve a standard format across manufacturers.

The report was mandated by the 2015 Fixing America’s Surface Transportation Act, and requested by the Tire Industry Association, which represents tire retailers. In this preliminary study, NHTSA reviewed past research, journal publications, press releases, applicable standards, and government regulations, and met with safety advocates, including Safety Research & Strategies, electronic identification technology companies, tiremakers, tire techs and tire sellers. The agency also conducted its own time/task study to determine how long it takes for someone to hand-record the four TINs on tires mounted on a vehicle.

The report’s conclusions are less startling than a long overdue catch-up on yesterday’s news. Tire manufacturers have been developing RFID technology in tires since 1994. The first tire and wheel tracking standard – B-11 – which included a protocol for RFID, and promulgated by the Automotive Industry Action Group – was unveiled in 2002. In 2006, Michelin was embedding RFID tags into truck tires; Goodyear put them in NASCAR race tires. 

The idea of using electronic tire identification to improve the tire registration and recall system is, similarly, an old idea. In 2007, SRS, long an advocate for tire registration reform, published a white paper titled “Tire Recalls and Tire Safety: The RFID Solution,” pointing out that the tire registration and recall system was broken because it continued to depend on a 50-year-old pencil-and-paper system. The Tire Identification Number (TIN) – the alphanumeric linchpin of the system, used to determine tire age and tire recall population – was not well understood by the average consumer and often inaccessible, if mounted on the inner sidewall. And despite the technological advances, there was still no way to identify and track individual tires once they left the manufacturer.

As part of the study, NHTSA demonstrated to its own satisfaction something SRS has been arguing for years – hand-recording Tire Identification Number takes too long to be practical in the fast-paced retail and service environment. NHTSA testers, recording TINS on 33 vehicles, took anywhere from nearly three minutes to nearly 6 minutes to write down the TINs. The most time was spent on vehicles in which the full TINs (with the date codes) were mounted inwards on all four tires. 

For the study’s purposes, electronic tire identification was defined as an electronically-readable marking or tag within or on the sidewall of a tire that could be captured and transmitted electronically with a hand-held scanning tool. NHTSA found that RFID and 2D barcode technologies – either separately or used in concert – appear to be suitable for implementation and for a standard data format. But each has advantages and disadvantages. 

RFID tags only require the scanner to be within two feet of the tag to be read, so they are readable regardless of which sidewall is facing outward. But current RFID tags don’t have enough memory to store the TIN, so higher-cost tags with additional memory would be necessary. In 2013, Korean tire maker Kumho began including RFID tags in its tires and currently installs them in passenger and light truck tires made at all of its plants except for those made in China, claiming it as an inventory management tool. In 2017, Michelin announced that it would be adding RFID tags to all its commercial truck tires and retreads. A June 2018 opinion piece in Rubber and Plastics News, authored by Jos Uijlenbroek, a founder of Firm RFID Solutions, claimed that the industry was “rapidly adopting” RFID “in a growing number of tire industry processes.”  

According to the report, 2D barcodes are  “two-dimensional optical arrays that represent data using many small, contrasting geometric shapes, such as squares and circles,” used to identify and track items. 2D barcodes had only a 1-foot range and required a clear line-of-sight to be read, but they have greater capacity to present the TIN. They also have a higher up-front machine cost, but are cheaper per-tire than RFID tags. 

Some tiremakers currently etch 2D barcodes into tire sidewalls post-manufacturing, the report said. Officials from 4Jet, a German-based tire laser engraving technology company who met with NHTSA researchers, characterized laser etching as “a mature, well established, and widely used process in the tire industry,” used for serial numbers and TIN date codes.  4Jet reported, for example, that last year, some European vehicle manufacturers were requiring the Data Matrix Codes on both sidewalls of OE tires, and that two major tire manufacturers had “run successful pilot projects and are planning to implement QR codes for use in their truck tires starting in 2018.” 

NHTSA’s conclusions echo those of the National Transportation Safety Board, which identified electronic tire identification as a way to increase tire registration. Its 2015 Special Investigation Report noted that the process can break down at multiple points. For example, registration forms are routed from the manufacturer to wholesalers and importers that might not pass them along to tire retailers. The time it takes to hand-record paper forms can be a strain on large-volume tire dealers. Digital registration, it concluded was quick, easy and would increase the accuracy of the TIN records and tire registration itself: 

Scanning technologies that allow dealers to electronically read barcodes or radio- frequency identification (RFID) tags permanently affixed on a tire offer an alternative that could expedite the registration process. Using this technology, a tire’s TIN could be quickly scanned, recorded, and electronically uploaded to a computerized registration system. Such a system would reduce the time needed for a dealer to register a tire, thereby increasing the probability that tire registration would take place. Use of scanning technologies could also reduce transcription errors. Although resources would be required to create an industry standard for software that takes full advantage of this technology, such an innovation would also simplify the tracking, storage, and distribution of tires, resulting in significant cost savings for both manufacturers and dealers. 

Over the years, the U.S. Tire Manufacturers Association (USTMA)  and the Tire Industry Association (TIA) have competed for the title of “Tire Organization Most Indifferent to Tire Registration and Recalls.” The TIA was the winner for decades, having, in the early 1980s, persuaded Congress to remove tire dealers from the tire recall system – the regulations only required dealers to hand their customers a registration card to be filled out and returned to the manufacturer. Then, the USTMA surged ahead with some legislative jujitsu by lobbying for a FAST Act provision that compelled the agency to write regulations requiring independent dealers to maintain customer tire purchase information and electronically transmit those records to tire manufacturers. 

But at last year’s Clemson Tire Conference, an annual industry confab, the old rivals in apathy stood together declaring their allegiance to one another, to the idea that the tire registration system could stand some improving, and to the recognition that any solution would involve the introduction of modern technology. There was no discussion of how this would be achieved.

So, when – and if – the process gets down to the nitty-gritty of costs and implementation, we’ll see how committed the players really are.

With Rosekind Gone, NHTSA Retreats

In November 2016, trade publication Automotive News published a rosy headline on the eve of National Highway Traffic Safety Administration chief Mark Rosekind’s departure: NHTSA positioned to continue Rosekind's work after inauguration.

The article went on to repeat Rosekind’s predictions that the agency’s aggressive enforcement stance would continue because “the agency has taken steps to keep its momentum on issues such as autonomous vehicles and cementing a “proactive” safety culture in the new presidential administration.”

[Transportation] Secretary Foxx supported us by allowing us to take an associate administrator and make her the acting deputy administrator. So, when we leave, instead of two-thirds of the leadership leaving, two-thirds will stay,” Rosekind said. “That’s another way we’ll have senior career people making sure that things go on.”

An examination of NHTSA rulemaking, investigations, and civil penalties in the last two years shows that the momentum has died; the agency appears to be doing less than ever before. It’s so pronounced that even Rosekind could see it from his new perch on the industry side, as chief safety innovation officer by Zoox, a driverless car startup. There could be a variety of reasons for this, so we’ll keep the speculation to a minimum, but the trendlines point to a decline in agency enforcement and rulemaking activities. 

Civil Penalties

One of Rosekind’s signature enforcement moves was the use of civil settlements and Special Orders to focus automakers’ attention on timely reporting and ramp up enthusiasm for offering recall remedies. From 2014 to 2015, the agency levied more than $530 million against major automakers, such as Honda, Fiat Chrysler, Hyundai-Kia, BMW and GM, for failure to submit Early Warning Reports, failure to make timely defect reports to the agency, and failure to remedy recalled vehicles and components. These were big fines levied against big players—indeed, the entire industry earned a nuclear response for decades of treating the regulator with open disdain. By the end of 2016, the Golden Age of Enforcement was over. From imposing 10 civil penalties in 2015, totaling more than $404 million, NHTSA fined four entities in 2016 – three of which were auto dealers who sold unremedied, recalled vehicles. 

That year, Ride the Ducks International, then-owned by Herschend Family Entertainment, earned the largest fine – $1 million for a slew of violations stemming from a September 2015 crash, in which a stretch duck boat vehicle crashed with a motor coach in Seattle, killing five and injuring 69 others. The vehicle had an unrepaired axle defect covered by a Technical Service Bulletin. The immediate civil penalty was $500,000, with a second $500,000 payment held in abeyance unless the company committed new violation. A couple of years later, a Ride the Ducks boat sank in Table Rock Lake, in the Missouri Ozarks, and killed 17. The victims’ families have sued the new owner, Ripley Entertainment Inc. Did NHTSA investigate to determine if it was time to collect the other $500,000?

In 2017, the civil penalty tally dropped to $130,000, with fines against Michelin Tires, and C&M Trailers of Ennis, Texas. The latter was penalized $110,000 for basically flouting the regulations in any way that it could: skipping EWR reports, manufacturing and certifying vehicles that did not comply with federal motor vehicle safety standards, failing to submit identifying information, failing to comply with VIN requirements, failing to maintain information on first retail purchasers, failing to maintain records of tire purchasers, and launching untimely recalls.  This penalty covered four recalls for jet ski, boat and utility trailers.

In 2018, NHTSA only fined Champion Ford, of Edinboro, Indiana $20,000 for selling unremedied recalled vehicles.

One theory is that Rosekind’s shock and awe campaign permanently cowed the industry into following all the rules, promptly reporting defects and submitting all EWR claims, so no need for the further dispensation of civil penalties. Civil settlements going back to 1999 show that for most of the years prior to 2014, the agency was regularly nabbing auto dealers or small manufacturers and zapping at least one or two major automakers each year. Enforcement seems more closely correlated to the party in power, with Republicans rarely finding many violations worth pursuing, and Democrats exercising the regulator’s authority. For example, during the Bush Administration, in 2007, no fines were imposed or collected. With a Republican president at the helm, NHTSA enforcement has apparently re-entered a hibernation phase.


The number of investigations the agency has opened in the last two years has similarly dropped like a stone. In 1988, the agency opened as many 186 Defect Petitions, Equipment, Recall and Audit Queries, Preliminary Evaluations and Engineering Analyses. As our regular readers know, an EA is not a new, separate investigation; it represents an upgrade of an existing investigation – most typically a PE. In the time period examined, there are about four times more PEs than EAs, because either the manufacturer is persuaded to conduct a recall, or the agency decides it doesn’t have enough to pursue the matter further. The figures below represent any investigation opened in a particular calendar year.

In 2008, NHTSA’s Office of Defects Investigations decreased to 123, and in 2018, the number is down to 34. In the first three months of 2019, the agency has opened a grand total of one investigation. 

Year Number of Investigations
2008 123
2009 94
2010 78
2011 63
2012 66
2013 56
2014 68
2015 65
2016 28
2017 33
2018 34
2019 1

We suspect this could be due to NHTSA turning to a more informal screening process that doesn’t rise to the PE level. These pre-investigation investigations don’t make it into the public record. The Safety Record has long noted NHTSA’s aversion to transparency. 


In 2016, a record 53 million vehicles were recalled – mostly due to the expansion of the Takata airbag recall for over-pressurized bags that could deploy inadvertently, spewing metal shards into occupants. According to the agency’s latest annual recall report, in 2017, there were 822 recalls involving 30.7 million vehicles, just above 2013 levels. In 2018, there were a total of 722 recalls affecting over 29 million vehicles in the United States. The number of NHTSA-influenced recalls specifically for vehicle defects has dropped more dramatically. In 2008, there were 191 NHTSA-influenced recalls, and over the last nine years, that number has fluctuated, but declined, with just 41 NHTSA-influenced recalls for vehicle defects in 2017. That was the lowest number in two decades.   

But, perhaps the quantity of vehicles recalled is less important than the quality of NHTSA’s oversight. In July 2018, the Office of the Inspector General (OIG) released NHTSA’s Management of Light Passenger Vehicle Recalls Lacks Adequate Processes and Oversight, an audit mandated by the 2015 Fixing America’s Surface Transportation (FAST) Act, in the wake of the Takata recalls. This report concluded:

NHTSA’s process for monitoring for light passenger vehicle recalls lacks documentation and management controls, and does not ensure that remedies are reported completely and in a timely manner. The Agency also does not verify recall completion rates, although it has the authority to do so, and it lacks sufficient management controls to ensure staff assess risk when deciding whether to use oversight tools to improve recall completion rates. Finally, while NHTSA expanded its oversight of the Takata recalls in 2015, by increasing the reporting requirements for manufacturers, it did not follow its own procedures to address low recall completion rates for earlier Takata recalls. Overall, inadequate controls and processes for verifying and collecting manufacturer-reported information have hindered NHTSA’s ability to oversee safety recall implementation.

A chart entitled Monitoring of Recall Scope Reporting was fairly damning – showing that despite significant percentages of initial Part 573 Notices of Defect and Noncompliance with mandated information missing, the Recall Management Division noticed these gaps zero percent of the time – or the sample was too small to say. For example, the RMD did not notice that 46 percent of defect notices contained no description of the manufacturer's basis for its determination of the recall population.

In 2011, GAO auditors also found NHTSA’s recall oversight wanting. This report called out the agency for having no set procedures to determine the adequacy of a recall, being slow to analyze recall data to determine if defects are being repaired, and failing to analyze its data to identify recall completion trend data. Since there are no set targets for recall completion rates, there was little incentive for manufacturers to try to remedy defects for most of the population still in the fleet and in a timely manner. In the short term, NHTSA did not track repair rates to ensure recall effectiveness, the report noted. And, while manufacturers file quarterly reports showing the number of vehicles remedied, and NHTSA occasionally opens Recall Queries (RQ) – investigations to assess recall effectiveness – there was evidence that NHTSA did not appear to employ a systematic process to quickly catch low repair rates. 


Save the agency’s early years, NHTSA has never been a torrent of rulemaking. NHTSA largely likes to wait until Congress mandates a new rule, or the entire industry complies, allowing the codification of a widespread practice. But over the last four years, NHTSA’s number of proposed and final rules has wound down to little.

From 2014 through 2016, the agency moved forward with a number of significant regulatory initiatives, mostly buoyed by 10 Congressionally mandated rulemakings on issues ranging from motorcoach safety to side impact tests for children’s car seats. In those years it published:  

  • An NPRM to improve the rollover structural integrity of certain types of large buses to ensure sufficient survival space for restrained occupants, that seats and overhead luggage racks remain secured and window glazing remained attached to its mounting during and after a rollover crash and that emergency exits remain closed during the rollover crash and operable after the crash.
  • An NPRM to amend the tire identification number to expand the two-symbol codes to identify new tire plants to three, and to standardize the length of the tire identification number to 13 alphanumeric characters for new tires and seven characters for retreaded tires, making it easier to identify a TIN from which a character is missing.
  • An NPRM to adopt side-impact performance requirements for FMVSS No. 213, ‘‘Child restraint systems,’’ to adopt side impact performance requirements for all child restraint systems (CRSs) designed to seat children in a weight range that includes weights up to 40 lbs.
  • An NPRM to upgrade the rear underride protection FMVSSs in crashes into trailers and semitrailers. NHTSA is proposing to adopt requirements of Transport Canada's standard for underride guards, which require rear impact guards to provide sufficient strength and energy absorption to protect occupants of compact and subcompact passenger cars impacting the rear of trailers at 56 kilometers per hour (km/h) (35 miles per hour (mph)). 
  • An NPRM to amend its motorcycle helmet standard, FMVSS No. 218, to add a definition of “motorcycle helmet,” and to modify the existing performance requirements of the standard by adding a set of dimensional and compression requirements. 
  • An NPRM to amend FMVSS No. 225, Child restraint anchorage systems, to improve the ease of use of the lower anchorages of child restraint anchorage systems and the ease of use of tether anchorages.
  • An ANPRM and an NPRM to amend the means of recall notification to owners and purchasers required under the Safety Act to be in an electronic manner, in addition to first class mail.
  • An NPRM to establish a new Federal Motor Vehicle Safety Standard (FMVSS) No. 217a, “Anti-ejection glazing for bus portals,” to drive the installation of advanced glazing in high-occupancy buses (generally, over-the-road buses (of any weight) and non-over-the-road buses with a gross vehicle weight rating greater than 11,793 kilograms (26,000 pounds)). 
  • A Final Rule on the rear visibility standard 
  • A Final Rule establishing a new Federal Motor Vehicle Safety Standard No. 136 to require electronic stability control (ESC) systems on truck tractors and certain buses with a gross vehicle weight rating of greater than 11,793 kilograms (26,000 pounds). 
  • A Final Rule establishing a new Federal Motor Vehicle Safety Standard (FMVSS) to set minimum sound requirements for hybrid and electric vehicles. 

In 2017, the agency published a Notice of Proposed Rulemaking to establish a new standard, FMVSS 150, to mandate the standardization of vehicle-to-vehicle (V2V) communications for new light vehicles. In 2018, NHTSA’s most significant rulemaking was to withdraw a 2010 Notice of Proposed Rulemaking to test the impact of brake fluids on the type of rubber the industry now uses. The agency kicked off 2019 by withdrawing two 2012 NPRMs – one that mandates installation of an Event Data Recorder (EDR) that meets NHTSA's current EDR standard in most light vehicles and a second that revises FMVSS 205, Glazing materials, to harmonize it with the corresponding Global Technical Regulation used internationally.

NHTSA’s failure to execute rulemaking has earned it two lawsuits in the last three years. In November 2016, Consumer Watchdog, the Center for Auto Safety and former NHTSA Administrator Joan Claybrook, sued the agency for failing to respond to their petition to establish an automatic braking regulation. The group had petitioned the agency in January to require the feature. And then in March, without responding to the petition in the required 120 day-period, NHTSA announced it had reached an historic agreement with 22 automakers to voluntarily make automatic emergency braking standard by 2022.

In August 2017, the Center for Auto Safety and sued the DOT for missing a deadline to require automakers to install rear-seat warning technology in all future vehicles. The plaintiffs have argued that the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21), signed into law by President Obama on July 6, 2012, required NHTSA to issue a final rule by October 2015 mandating the rear-seat reminder system. The agency has argued that the Department initiated a rulemaking in 2013, when it asked for public comments on a proposed study on the effectiveness of existing rear seat belt reminder systems. That study began in 2014. The agency further argued that MAP-21 specifically authorized the DOT to extend the initial three-year deadline for issuing a final rule, and the agency has repeatedly announced these extensions. Currently NHTSA estimates it will publish an NPRM in May.

The DOT has often been a Cabinet-level backwater, and NHTSA the ugly step-child of the federal family – even though it regulates a consumer commodity found in virtually every American home. The Trump Administration, in concert with a Republican majority in both houses from 2016 to 2018, generally disdained governance unless it was focused on re-distributing wealth to the top, taking healthcare away from the public, or suppressing brown people. So, we didn’t expect too much from NHTSA during these years. But we’ve never seen NHTSA minimize itself so thoroughly. And the contrast with the activity under Rosekind’s two-year reign is stark.