NHTSA’s (Not/Can’t Be) On It: Hyundai-Kia Vehicles With Substandard Theft Protection Continue to Wreak Havoc

The Hyundai Kia theft saga greeted the new year with a bang. Among other things: deaths in crashes involving stolen vehicles, an alleged kidnapping involving a theft attempt, a new municipal lawsuit, and another bright idea from Hyundai and Kia to protect vehicles which could not be fixed with a software upgrade – that will, no doubt be executed flawlessly. In other words, everything’s still totally bonkers. And yet, NHTSA, the nation’s esteemed regulator and enforcer of automotive safety, continues to observe from the sidelines.

In the first six weeks of 2024:

There have been at least seven deaths in crashes involving stolen Hyundai and Kia vehicles with teenage drivers at the wheel. According to a story in the Indianapolis Star, on Jan. 2, a teen driver slammed into another vehicle as he fled police in a stolen Kia Sedona. The driver of the other vehicle, 34-year-old Julio Cervantes Ramirez, died at the scene. Two days later, a stolen 2013 Hyundai Accent occupied by four teens crashed in Boston, killing a 14- and 15-year-old. Six days later, a third teen died from his injuries in that rollover crash. On January 14, another 14-year-old child died when the driver crashed a stolen Kia Sportage into a private residence; two other occupants were taken to the hospital. In mid-February, Michigan saw two more deaths in separate crashes involving stolen Kia vehicles.

A woman walking her dog on the streets of Northeast Washington D.C. had to scoop up her pet and take cover to avoid being hit by the driver of a stolen Hyundai Tucson barreling down the sidewalk. A couple in Columbus Ohio were charged with kidnapping after surprising a 13-year-old boy presumably trying to break into the woman’s Kia, allegedly forcing him at gunpoint into their apartment, and demanding cash from the boy’s family to fix the damaged ignition column. In a news report, Columbus City Attorney Zach Klein cautioned residents against administering their own rough justice, but expressed some sympathy for the defendants: “I do think it is evidence and a reflection of the frustration people have. They want to be able to maintain their livelihood and they know that may not happen if their car is stolen.’”

Newark, N.J. became the latest city to direct its ire at the manufacturers, suing Hyundai/Kia in U.S. District Court. Newark is trying to recoup more than $1 million the city spent in auto theft suppression overtime hours to address a car theft surge in the first ten months of 2023. The suit alleges that the amount is “more than the yearly auto theft suppression overtime costs of 2021 and 2022 combined.”  Like other municipalities, Newark saw a huge increase in auto thefts, with Hyundai and Kia models making up a disproportionate share of the vehicles reported stolen in the first 10 months of 2023. The lawsuit alleged a more than 1000 percent increase over 2022 theft reports, with nearly twenty percent of all of Newark’s registered Hyundais and Kias reported stolen in 2023, accounting for 58 percent of all vehicles stolen in Newark. 

The City of Austin joined the chorus of frustrated municipalities, passing a resolution urging NHTSA to compel a recall of Kia and Hyundai models without engine immobilizers. The basis for the resolution is auto theft figures showing that from November 2022 to November 2023 auto thefts increased by 63 percent; Hyundai and Kia vehicles accounted for more than a third of those thefts, even though fewer than 10 percent of vehicles registered in Austin are Hyundai or Kia vehicles. Said one councilman:

“Our hope is because we have multiple cities across multiple jurisdictions that our federal government will take notice and [the NHSTA] will see the importance of taking action to demand that Kia and Hyundai immediately recall their technology.”

One can dream. NHTSA is now, and has been, a rudderless agency, with blank spots on the organizational chart for Administrator and Chief Counsel. Increasingly, it’s hard to see how an overworked agency with no leadership at the top could take the sort of decisive action needed.

In a statement to KXAN in January, the Austin news station that sought a comment from the regulator, NHTSA assured the public that everything was under control:

This particular matter involves intentional criminal conduct under the purview of law enforcement authorities. However, since 2022, NHTSA has repeatedly met with Hyundai and Kia to discuss the causes contributing to the theft vulnerability, review the scope of differing software and hardware in the affected models, and receive regular updates on the companies’ action plans. NHTSA will continue to monitor this issue, spread awareness of further updates to local authorities, and lend its expertise in efforts to strengthen motor vehicle safety.

This statement ignores the entire history and intent of safety standard FMVSS 114 Theft Protection and Rollaway Prevention, which was promulgated in 1968 to address intentional criminal conduct under the purview of law enforcement authorities. NHTSA took up the issue because “casual” car thieves presented with easy targets were stealing vehicles and creating a safety hazard on public roadways.

Nonetheless, that’s more of a response from NHTSA than Safety Research & Strategies has gotten to its petition for rulemaking. Given NHTSA’s inability to enforce the requirements or address the intent of FMVSS 114 in the wake of the continuing waves of Hyundai/Kia thefts,   SRS made a formal request nine months ago that the agency amend the regulation. We noted that NHTSA has taken no compliance action at all claiming the theft protection safety standard was actually not enforceable as the problem continues to wreak havoc for owners, municipalities, law enforcement, and – in too many instances – causing carnage for pedestrians and other motorists who are being mowed over by kids fueled by exciting videos showing how they can play Grand Theft Auto in real life.

That’s because the federal anti-theft standard doesn’t mandate the use of engine immobilizers, instead, it gives automakers the choice to use effective technology – and the compliance test procedure for NHTSA’s contract labs doesn’t specify actions that include breaking or removing parts of the vehicle in an attempt to start it and gain forward mobility to determine compliance. Instead, the test procedure describes processes that simply specify removing the key (electronic or physical) from the vehicle, followed by an attempt to start the vehicle without it. But, NHTSA’s compliance procedure, which doesn’t lay out specific theft techniques for obvious reasons, does specifically state that the agency can authorize its contractors to depart from the procedures if they are consistent with the standard. The Purpose and Application section of NHTSA’s Laboratory Test Procedure for FMVSS 114 Theft Protection and Rollaway Prevention states:

The OVSC [Office of Vehicle Safety and Compliance] test procedures include requirements that are general in scope to provide flexibility for contracted laboratories to perform compliance testing and are not intended to limit or restrain a contractor from developing or utilizing any testing techniques or equipment which will assist in procuring the required compliance test data.


In addition, the laboratory test procedures may be modified by the OVSC at any time without notice, and the COTR [Contracting Officer’s Technical Representative] may direct or authorize contractors to deviate from these procedures, as long as the tests are performed in a manner consistent with the standard itself and within the scope of the contract.

Back to our Petition for Rulemaking: By regulation, NHTSA is supposed to notify the petitioner within 120 days of its decision to grant or deny the petition. But, other than an acknowledgement that NHTSA received the petition, we’ve heard nothing.

Meanwhile, Hyundai and Kia’s ad hoc service campaigns continue, as do reports from owners that even after Hyundai and Kia software upgrades were done, their vehicles are still easy to steal quickly with little technical skill or special tools. The situation is unique to the U.S. It is not occurring in Canada or Europe, where immobilizers have been required since 2007 and 1998 respectively. So, elsewhere, the Korean automaker is fitting the same model vehicles with anti-theft engine immobilizers. But in the U.S., where its peers have long equipped their fleets with these effective features voluntarily, Hyundai-Kia decided it wasn’t necessary, because it could install any anti-theft measures it wanted. In America, Hyundai-Kia is an outlier – by choice – but wants its bad decisions to be viewed as if it’s all about everyone else’s actions.

In Omaha, a 2019 Hyundai Tucson was stolen the same way they are all stolen with a busted back window and a USB cord, despite receiving the software upgrade in August. According to a news report:

Chuck [Peters] purchased the Hyundai for his daughter and took it in after the August recall to install anti-theft software. The decals on the windows telling the world a starter inhibitor has been installed, the anti-theft technology would stop any attempt to steal the vehicle — but the car was stolen. The thieves left behind broken parts and an empty parking space. Police recovered the car, but when Chuck went to get some information from his daughter’s vehicle, he forgot to take the keys.

“What was really troubling for me was when we got the vehicle back, I had to go to the body shop to get some information for our insurance company. I was able to start the vehicle using the USB cable method as well, and that’s exactly what that update is supposed to fix,” he said.

In Louisville, 84-year-old Bobbie Sanders reported that her 2020 Kia Rio was stolen twice – once out the Kroger’s parking lot as she shopped, and a second time, just recently, out of her driveway. Each theft occurred after she took Rio to the dealer for a software upgrade in May and a second upgrade in October.

“We’ve done two upgrades with Kia and my mom still doesn’t have a car,” [her daughter Elizabeth] Madden said. “My mom’s out of all the monthly payments that she’s paid, the insurance that she’s paid, as well as the $1,000 loan she’s paying on that she had to pay to get her car out.”

In Milwaukee, Trisha Nguyen’s 2014 Kia Optima has been stolen three times – at least once after she had the software re-flash.

“I was initially told that the car could only start with a key ignition but that’s not the case because they broke the steering column again, and started it with a USB cord.” said Nguyen.  

In October, TMJ4 News spoke with a project manager for Kia’s Anti-Theft Program who explained how the upgrade is supposed to work.

‘This software update makes it so even if they try to plug that USB port and it’s not going to disable the ignition immobilizer, it’s going to keep that intact and it is going to sound the factory alarm,’ said Emily Falecki, Project Manager with Kia’s Anti-Theft Program.

On Friday, Falecki told TMJ4’s Ryan Jenkins by phone that part of this upgrade requires Kia owners to lock their cars with a key fob. If the vehicle isn’t locked with the key fob, the upgrade doesn’t work.”

And now, Hyundai and Kia have announced a new fix for vehicles that were ineligible for the software update: the installation of an “ignition cylinder protector with a locking bracket.” In a December 15 news release, Hyundai stated that protectors had been “independently tested and verified by a leading engineering and scientific consulting firm. It reinforces the ignition cylinder body and prevents its removal through the method of theft promoted across social media.” Kia followed with a similar announcement on December 29.

The repair procedure involves the installation of a metal shield that’s installed under the plastic steering column cover that’s easily broken and allows access to the ignition cylinder. To install the shield, the plastic steering cover is removed, then the key portion of the ignition cylinder is removed (along with the illuminated key ring if equipped). The ignition cylinder is then reinstalled after it’s coated with epoxy that permanently bonds it into the ignition assembly, and a metal protective shield is inserted over the ignition cylinder with more epoxy and further secured into place with screws that have break-away heads. Once this is complete, anti-theft decals are added to the vehicle side windows. (Vehicles with illuminated key rings will no longer have that lighting function restored.)

The Kia service procedure generally mirrors the Hyundai procedure described, but Kia specifies a different brand of epoxy (Loctite versus J-B Weld). And Kia requires the driver to sign a waiver noting that if the customer vehicle has a key illumination ring, it will be permanently removed, any future replacement of the ignition switch will require complete replacement of the ignition cylinder assembly, and that reinstallation of a new theft deterrent ignition cylinder protector that is compliant with the service program “will be at no cost to you.” The language “any reinstallation of a new Theft Deterrent Ignition Cylinder Protector will be at no cost to you” appears to indicate that in the event of a second installation there will be no cost to Kia America, because the rest of the waiver addresses the signer, (i.e., the customer) as “I.”

The repair process requires technicians to use epoxies that are extremely sticky and can be quite difficult to contain when the parts are put together, potentially causing excess epoxy to contaminate the electrical and mechanical components – an issue acknowledged by Hyundai and Kia in their technical bulletins. And all of this is happening when technicians are working under time constraints of labor allotments ranging from 15 to 40 minutes for the job, depending on the model.  

The completely permanent bonding and securement of the ignition component parts will require entire ignition switch assembly replacement in the future if the lock cylinder or other related components are damaged – either from theft, attempted theft, or other failures, including wear.

Hyundai plans to install the device in 646,000 vehicles, including the 2011-2017 Accent; 2013-2014 Elantra Coupe; and the 2011-2012 Elantra Touring, Genesis Coupe, Santa Fe and Veracruz vehicles. Kia’s service campaign included Soul, Rio, Forte, Sedona, and Sportage models from various production date ranges, so it is hard to tell exactly which model years are affected.

Hyundai’s press release indicated that starting on Dec. 20, it planned to reach out to owners about the new anti-theft service campaign via mail, email, phone, social media outreach, search engine marketing and display marketing. Both automakers directed owners to use VIN look-up tools at their dedicated websites to receive instructions on how to get the repair. We tested VINs for eligible Hyundai models this week, and Hyundai’s anti-theft customer page still provides no information. (But a call to Hyundai’s customer service with specific VINs verifies eligibility for the shield.) 

Across the country, large cities are posting high triple-digit increases in their theft rates, with thefts of inadequately protected Hyundai-Kia vehicles taking up a disproportionate share. For example, in August, Chicago sued Hyundai-Kia, alleging: “In 2022, more than 8,800 Kia and Hyundai vehicles were stolen in Chicago alone. This figure represented 41% of Chicago’s car thefts, even though Kia and Hyundai vehicles made up just 7% of the vehicles. Unfortunately, that trend has continued into 2023 and does not appear to be slowing.”

In December, the Highway Loss Data Institute (HLDI), which tracks insurance claims, released its third analysis in two years regarding theft claims of Hyundai-Kia vehicles without immobilizers. It showed a 1000-percent increase in such claims from the first half of 2020 to the first half of 2023. And the rise was far above its peers: in the first half of 2020, Hyundai Kia vehicles, like those of other manufacturers, were reported stolen at a rate of 1 per 1,000. In the first half of 2023, Hyundai-Kia theft reports had skyrocketed to 11.2 per 1,000, while the rate for other vehicles remained flat.

Uncaptured by theft figures are what seem to be significant numbers of crashes, deaths, and injuries involving stolen Hyundais and Kias. While no official entity appears to be gathering this data, these incidents crop up in the news on an alarmingly regular basis.

But, don’t worry folks, NHTSA is totally on it.

The Hyundai Kia Theft Mayhem Continues; SRS Keeps NHTSA Apprised

On April 27, Safety Research & Strategies petitioned the National Highway Traffic Safety Administration for rulemaking to revise the compliance test for FMVSS 114, Theft Protection and Rollaway Prevention. The request was prompted by the rising crashes, deaths and injuries linked to Hyundai/Kia vehicles with inadequate theft protection, and by NHTSA’s reluctance to take any enforcement action.

The tsunami of thefts began in 2021, when car thieves in Milwaukee learned to take advantage of a vulnerability in MY 2010-2021 Hyundai and Kia vehicles with traditional metal keys. The numbers began to jump that July when a video posted to TikTok demonstrated how to exploit the lack of meaningful theft-prevention features in Hyundai/Kia vehicles by evading the rudimentary burglar alarm, removing the plastic steering column shroud to access the ignition cylinder and with household items and no technical skill, start the engine and drive off. The how-to video quickly went viral, with mainly teenaged thieves posting their exploits under the hashtag “Kia Boys.”

At the time, The Safety Record provided its readers with the regulatory history of FMVSS 114, from the standard’s origins and intent to the changes that were meant to address the evolution of automotive technology, but have rendered the standard so ineffective, that it no longer acts as a safeguard against theft or rollaway.  

Today, SRS amended its petition with updated crash and harm numbers, to stress the importance of revising the current compliance test from one that is nearly impossible to fail, to one that reasonably assesses whether the system in place deters casual thieves. The data also support the need for an effective recall, not simply a “customer satisfaction” campaign, because it’s increasingly clear these vehicles contain a defect that represents an unreasonable risk to motor vehicle safety.      

Citing the limitations of FMVSS 114, NHTSA has continued to resist calls from state and municipal government officials to force Hyundai and Kia to recall nearly 9 million 2011 to 2022 models with inadequate theft prevention features for failing to comply with the standard.

(Korean-based manufacturers Kia Corp. and Hyundai Motor Corp. are affiliates of Hyundai Motor Group. Both companies are involved in the joint design and development of vehicles sold globally under their respective brands. Hyundai Motor Co. owns 33.88 percent of Kia Corp., making it the largest investor in the company.)  

Hyundai and Kia have instead issued customer satisfaction campaigns that include updated software for some affected models and aftermarket steering wheel locks for others, in attempt to quell the theft epidemic that’s largely been driven by kids. The new software updates the theft alarm logic to extend the alarm sound from 30 seconds to one minute, and requires the key to be in the ignition switch to turn the vehicle on. With the new software, locking the doors with the key fob sets the factory alarm and activates an “ignition kill” feature which customers have to use the key fob to unlock their vehicles to deactivate. Hyundai/Kia also offered window stickers announcing the presence of anti-theft software. Owners of vehicles ineligible for the software fix got a reimbursement for a steering wheel lock.

Previously, in vehicles equipped with a burglar alarm, the system would only prevent an engine start if the burglar alarm was activated – a major design oversight. These updates disallow an engine start when bypassing the ignition lock cylinder, and rotating the ignition switch, but they only work when the burglar alarm is armed, meaning that the doors are locked using the key fob or the key in the driver’s door. However, if the alarm was never triggered (because entry was gained via the broken window – the way many of these thieves have operated), the vehicle could still be started, and the ignition kill feature would not be activated, even though the alarm was still armed.

Perhaps this is a reason why those “fixes” have not done nearly enough to halt the utter chaos caused by the combination of a TikTok video, showing budding car thieves just how quick and easy is it to steal a Hyundai or a Kia, with a minute and a USB cable, and two automakers who eschewed immobilizers. According to the Highway Loss Data Institute, while 96 percent of automakers had immobilizers as standard equipment in MY 2015 vehicles, only 26 percent of Hyundai/Kias were so equipped.

During the last two years, the vulnerabilities of Hyundai/Kia vehicles without immobilizers have caused an astonishing number of thefts, crashes, injuries and deaths, along with other violent crimes – carjackings, homicides, and burglaries (ramming a car into a storefront to break in), to name a few, committed in a stolen Hyundai or Kia. Some of these incidents involve drivers who are too young to get a driver’s license. For example, in July 2022, two 14-year-olds in Columbus, Ohio died, and a third was injured, when they crashed a stolen Sonata into a warehouse, ejecting two occupants and trapping a third inside the vehicle. A year later in Orlando, Florida, a 15-year-old driver ran a red light at high speed, striking an SUV and killing a 23-year-old man. The stolen Santa Fe had five passengers: ages 16, 15, 14, and 13 years.

“Unfortunately, this incident – with a very young, inexperienced driver crashing a stolen Hyundai/Kia vehicle, causing deaths and injuries – has become all too common,” says Attorney Frank Melton of the Florida firm Newsome Melton, who is preparing to file a case in the Orlando incident. “The automaker has a responsibility to ensure that kids who have no technical training and aren’t even eligible for drivers licenses can’t breach the vehicle’s anti-theft features in less than two minutes – and NHTSA should use its statutory enforcement tools to hold automakers to that obligation. In the absence of either, accountability will move to the courts, as the damage continues.”

In May, a 12-year-old and 13-year-old in Hamden, Connecticut were arrested after crashing two different stolen vehicles.

The total number of crashes, injuries and deaths, is, as yet, unknown. No single entity appears to be officially tracking them; news reports are the current source. On February 14, when NHTSA announced the launch of the campaign, it linked these thefts to at least 14 reported crashes and eight fatalities. That was already an undercount. By then, the media had written about 42 crashes, 27 injuries, and 21 deaths, from June 2021, when a 16-year-old boy from Milwaukee in a stolen Kia Sportage died after a police chase and head-on crash with an SUV, which left five occupants seriously injured, to February 12, 2023, when three 13-year-old boys were arrested after allegedly stealing a Kia and crashing into another car, killing a 71-year-old man.

Since then, the news media reported another 90 such crashes, resulting in 23 more deaths (including a six-month-old boy, a four-year-old boy, and a 14-year-old driver), 99 injuries, some of which were said to be serious injuries, and one house fire. In addition, these thefts have caused structure damage and other vehicle damage, including seven police cruisers, a fire engine and a school bus, caused by, often youthful, drivers of stolen Hyundai/Kia vehicles. In total, using new stories as the sole source, from June 2021 through October 12, we identified 132 crashes, 44 deaths and 126 injuries. Again, this is likely an incomplete accounting.

The theft rates have been through the roof – in many cities disproportionately higher in the Hyundai/Kias that lack immobilizers than in any other competitors’ models. In April, California Attorney General Rob Bonta and 16 of his counterparts across the nation sent a letter to Acting NHTSA Administrator Anne Carlson asking NHTSA to compel a recall of MY 2011-2022 Hyundai and Kia vehicles without immobilizers. The letter stated:

For example, in Los Angeles, thefts of Hyundais and Kias increased by approximately 85% in 2022, and made up almost three quarters of the entire increase in stolen cars of any make and model in the city. 7 Hyundais and Kias also constituted approximately 20% of stolen cars in Los Angeles in 2022, up from 13% in 2021. Similarly, in Berkeley, California, thefts of these cars have made up 38% of vehicle thefts since the end of 2022. California cities’ data is consistent with data from other states. For instance, in Minneapolis and St. Paul, Minnesota, thefts of Hyundais and Kias increased 836% and 611%, respectively, in 2022. In Columbus, Ohio, Hyundais and Kias constituted nearly 45% of stolen cars in 2022, in Milwaukee, 58%, and in Minneapolis, 33%.

Data from a July civil complaint filed by the 17 cities in seven states against Hyundai/Kia in a California federal court, contains a city-by-city account of the precipitous and continuing rise of thefts, crashes, injuries, death and crimes associated with Hyundai/Kia thefts. For example, Madison Wisconsin reported that between 2021 and 2022, thefts of Kia vehicles rose by 124 percent; in the summer of 2022, thefts of Kia and Hyundai automobiles increased by 270 percent, accounting for more than half of the auto thefts there.

Atty. General Bonta noted that the Hyundai Kia vehicles with inadequate theft protection violated the requirements of FMVSS 114:

Specifically, FMVSS Number 114, S5.1 requires vehicles to have “a starting system which, whenever the key is removed from the starting system prevents: (a) [t]he normal activation of the vehicle’s engine or motor; and (b) [e]ither steering, or forward self-mobility, of the vehicle, or both.”

The rampant theft of Hyundai and Kia vehicles makes clear that these vehicles’ starting systems do not prevent engine activation, steering, or forward self-mobility when the key is removed from the starting system. Indeed, because the vehicles have easily bypassed ignition switches, a screwdriver and USB cable are sufficient to start and drive off with the cars in a matter of seconds or minutes—no key required. Such starting systems do not meet FMVSS Number 114’s requirements. The lack of engine immobilizers in these vehicles, which could have provided a second line of defense against theft, has compounded and exacerbated this problem.

Additionally, these Hyundai and Kia vehicles’ vulnerability to theft constitutes a defect posing an unreasonable risk to safety, providing NHTSA with an independent basis to order a recall. Even young teenagers are able to access the ignition system and drive off in these vehicles

And, just as The Safety Record pointed out right after the fix was announced, Atty General Bonta noted that a customer satisfaction program allows the automakers to bypass the notice and accountability requirements of a formal recall. The Attorneys General complained that such a program would roll out too slowly and reach too few.

In a June letter, Cem Hatipoglu, NHTSA’s acting associate director for enforcement, responded to Bonta and the other AGs, saying that NHTSA wasn’t inclined to take any action other than monitoring the situation. He wrote:

At this time, NHTSA has not determined that this issue constitutes either a safety defect or noncompliance requiring a recall under the National Traffic and Motor Vehicle Safety Act, 49 U.S.C. Chapter 301. The Federal Motor Vehicle Safety Standard identified in your letter, FMVSS No. 114, does not require an engine immobilizer. See 49 C.F.R. § 571.114. Also, the test procedure specified in that standard does not contemplate actions taken by criminal actors to break open or remove part of the steering column and take out the ignition lock to start a vehicle. [Emphasis added.]See id. § 571.114, S6. Here, the safety risk arises from unsafe use of a motor vehicle by an unauthorized person after taking significant destructive actions to parts of the vehicle.

Hatipoglu’s assertion that the compliance test doesn’t address hotwiring is technically true, but NHTSA absolutely did consider that very reality in promulgating the standard, and in a 2004 interpretation letter from then-NHTSA Chief Counsel Jacqueline Glassman noted that in a response to an unidentified automaker requesting guidance on its engine immobilizer 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.

The current compliance test basically allows the tester to sit in the vehicle without the physical key or key fob, and try to start it. Pretty impossible to fail. Immobilizers are optional, but automakers that install them must pass specific and more rigorous test requirements, based on the standard in Canada, where immobilizers are required.

According to 49 CFR Part 552.8 .8 Notification of agency action on the petition, NHTSA was supposed to get back to us by the end of August:

After considering the technical review conducted under § 552.6, and taking into account appropriate factors, which may include, among others, allocation of agency resources, agency priorities and the likelihood of success in litigation which might arise from the order, the Administrator will grant or deny the petition. NHTSA will notify the petitioner of the decision to grant or deny the petition within 120 days after its receipt of the petition.

As vehicles become more complex, the need for strong NHTSA leadership and adequate resources becomes more urgent. And yet, the agency has long been stymied by the lack of a confirmed administrator with enough tenure to provide it. From April 2017 to May 2022, NHTSA has been run by a series of short-term acting administrators. The last administrator, Steven Cliff, was nominated by President Biden in January 2021, but not confirmed by the U.S. Senate until May 2022. He left in August 2022 for the California Air Resources Board. Biden nominated the current Acting Administrator Ann Carlson on February 13, but was forced to withdraw it in May, after Republicans opposed her green initiatives, such as rigorous fuel efficiency requirements.

It is difficult for a public health agency, with a safety mission as critical as NHTSA’s, to fulfill it while rudderless. The ongoing Hyundai-Kia debacle is but one result.

Congress Turns to the GAO, after NHTSA Blows Deadlines

Last Wednesday, a trio from the House Energy and Commerce Committee, including its powerful chair Frank Pallone Jr. (D-NJ) asked the Government Accountability Office (GAO) to find out why the National Highway Traffic Safety Administration has dragged its feet in completing nearly 20 Congressionally mandated rulemakings and reports in the last seven years. 

The 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21) and the 2015 Fixing America’s Surface Transportation Act (FAST Act) required NHTSA to complete 69 rulemakings, technical research projects, reports to Congress, technical studies, and grant program changes and regulations.

But many key rulemakings are still pending, leading Pallone Jr, and Congresswoman Lisa Blunt Rochester, (D-DE) and Jan Schakowsky (D-IL) to request that the GAO conduct a study of the agency’s “research and rulemaking process to identify factors contributing to delays and recommendations to ensure NHTSA completes rulemakings, reports, and research initiatives mandated by Congress by their statutory deadlines.” In an October letter to NHTSA, Blunt characterized these delays as an obstacle to public safety:

“This blatant disregard for Congressional directives not only endangers the lives of all who travel on our roads, but also suggests that NHTSA may face institutional challenges that hinder its ability to fulfill its safety-critical mission,” she wrote. “With approximately 39,000 motor vehicle deaths and 4.4 million serious injuries every year, it is imperative that NHTSA takes decisive actions to issue and improve its safety standards in a timely manner. This includes, but is not limited to, meeting Congressionally set deadlines. NHTSA must have the capacity, expertise, and resources not only to promptly and effectively carry out Congressional directives, but also to ensure the safe deployment of sophisticated transportation technologies, such as autonomous vehicles.”

On April 11, 2019 The Safety Record published a rough analysis of an agency suffering from mission malaise in the wake of the departure of NHTSA Administrator Mark Rosekind. (Read With Rosekind Gone, NHTSA Retreats) We pointed out that the number of NHTSA investigations had drastically dipped, that civil penalties had all but ceased, and that the agency had all but stopped trying to make any significant rules, and had been sued twice for failing to meet a statutory deadline.

Six days later, Pallone Jr. and Schakowsky, Chair of the Subcommittee on Consumer Protection and Commerce, sent a letter to Deputy Administrator Heidi King seeking the status of open rulemakings, petitions, applications, complaints, investigations, requests, reports and other initiatives. Specifically, the pair asked for explanations for the stalled progress on rulemakings regarding:

  • Side impact performance standards for child restraint systems
  • Frontal impact test parameters
  • Improvement of child restraint anchorage systems
  • Rear seat belt warning systems
  • Encouraging consumers to report vehicle defects
  • Electronic notice of vehicle recalls
  • Corporate responsibility for NHTSA reports
  • Measures to prevent tampering with tire pressure monitoring systems
  • Crash avoidance information on manufacturer stickers
  • Tire fuel efficiency standards
  • Registration of independent tire sellers
  • Whistleblower incentives and protections
  • Retention of motor vehicle safety records

They also sought answers about the volume and responses to FOIA requests, vacancies in each NHTSA division, diversity hires, and letters from members of Congress that went unanswered.

On June 12, Adam J. Sullivan, the DOT’s Assistant Secretary for Governmental Affairs, wrote back, submitting a 143-page response, which addressed some – but not all of their questions. For example, the Committee asked for “a list of all overdue rulemakings that are required by statute, provide an explanation for why each rule has not been completed, and projected timeline for all necessary actions necessary to achieve full compliance with the statutory provision.” They got the list, but not explanations for each individual mandate still to be completed. Rather, NHTSA declared that diligent effort had been applied – leading to the completion of 40 of them. Nine had no deadline attached (including rulemakings pertaining to unattended passenger reminders, rental car recalls, tire registration by independent tire dealers, recall vehicle age, and the creation of a tire recall database). As for the remaining 19 rulemakings, NHTSA argued that these were complex undertakings in various stages of completeness.

“NHTSA is always mindful of the potential for unintended adverse safety consequences, the responsibility to engage in robust public dialogue under the Administrative Procedure Act, and the need to promulgate rules supported by data and measurable safety benefits in accordance with law.”

Dissatisfied with that less-than complete response, Blunt Rochester, followed up with a second letter to NHTSA Acting Administrator James C. Owens, again asking for a detailed explanation for missed deadlines. This letter, signed by Rep. Bobby Rush (D-IL), Tony Cardenas  (D-CA) Jerry McNerney (D-CA) , Kathy Kastor (D-FL) and Nanette Diaz Barragan (D-CA) again asked why each rulemaking had not been completed by the statutory deadline, what NHTSA had done, what it planned to do, what was needed, and when it expected to complete the requirement. They also requested NHTSA’s methodology for prioritizing rulemakings, reports, and research initiatives and how statutory deadlines factored into that.

In a March 11, 2020 letter, Sullivan responded with the kind of fact-less, anodyne statement The Safety Record has come to know and love. In other words, Sullivan made no attempt to address the specifics. His two-page response simply said that NHTSA will make rules when it is ready to do so, legislative deadlines be damned.

Thus, the frustrated members of the House E&C committee turned to the GAO to get the answers.

Their letter comes of the heels of an August 11 announcement by the U.S. Department of Transportation’s Office of the Inspector General, that it planned to audit how well NHTSA is enforcing the Federal Motor Vehicle Safety Standards.

So, presumably, sometime in 2021, we’ll all get to know how NHTSA’s been spending its time.

Polaris Issues Stop Sale/Stop Rides, Where’s the CPSC?

Between June and December, Polaris issued five Stop Sale/Stop Ride notices for some 92,000 off-road vehicles. These vehicles are the newest model years of vehicles that have been continually recalled since 2013. Not one announcement could be found on the CPSC website – in fact, the CPSC itself was nowhere to be found in this process of alerting consumers.

Four of these Stop Sale/Stop Ride notices involved fire-related defects. And given the manufacturer’s longstanding and persistent problems with thermal-related hazards and fires that have resulted in massive property damage, severe injuries and deaths – and in a 2018 settlement with the CPSC featuring the biggest fine in the agency’s history for failing to report fires – you might think that a joint, coordinated recall announcement between the manufacturer and the commission would be in order.

Polaris issued a fifth Stop Sale/Stop Ride on Oct. 23rd for 12,845 model year 2020 Ranger models for defective seat belts.

Informing the public of products hazards is kinda the Consumer Product Safety Commission’s jam. The 1972 Consumer Product Safety Act notes that the law’s very purpose is to “to protect the public against unreasonable risks of injury associated with consumer products” and “to assist consumers in evaluating the comparative safety of consumer products.” The Who We Are What We Do section of the CPSC’s website notes: “CPSC works to reduce the risk of injuries and deaths from consumer products by: informing and educating consumers through the media, state and local governments, private organizations, and by responding to consumer inquiries.”

But perhaps Polaris is now so practiced at launching recalls for fire-related hazards it doesn’t need any assists from the CPSC. And perhaps the CPSC, having spent so much quality time with Polaris officials, just trusts them to do the right thing.

The Consumer Federation of America, however, is pretty concerned.

“These are not recalls, these are unilateral actions by the company, and this is problematic. It’s important for the CPSC to be engaged in voluntary recalls as they are on many products under their jurisdiction. We have a lot of challenges in terms of consumer response to recalls and when recalls aren’t called by that name, it creates further impediments to consumers taking the necessary actions to protect them and their families,” says Rachel Weintraub, CFA’s legislative director and general counsel. “We hope it doesn’t become a trend.”

Weintraub is further troubled that these notices have been put out by this particular manufacturer and these particular defects.

“I do find it curious – the CPSC and Polaris have been working on recalls for these products for a long time,” she says. “It’s unclear why all of a sudden, certain actions are not being coordinated with the commission, especially since the CPSC put out a statement with Polaris in December 2017 about these hazards. It’s still an open question whether all of the issues raised in that have been effectively addressed.”

Your One Word Answer™: No

Yesterday, the CFA published its own analysis of off highway vehicle (OHV) recalls (including the Polaris Stop Sale/Stop Ride notices) over the past decade. Polaris was a standout. CFA identified 19 brands responsible for 110 OHV recalls, and Polaris had, by far, the most, with 40. Fire-related hazards topped the list of causes, accounting for 50 recalls – Polaris had nearly a third of that subset. In addition, the CPSC reports tallied at least 70 injuries and two deaths linked to recalled OHVs – one was the July 2015 death of 15-year-old Baylee Hoaldridge in Utah. (The injuries and deaths noted in the CPSC recalls do not reflect the total number. There have been at least four deaths and dozens of known injuries related to the Polaris fire-hazards alone.)

CFA's Analysis: An Analysis of OHV Recalls: Increasing Number of OHVs Pulled from Market due to Safety Concerns.

Four Fire-Related Stop Sale/Stop Ride Notices

Since the CPSC didn’t think it important to spread the word, we’ve conveniently assembled the latest four Polaris fire-related notices here:

June 7, 2019: Stop Ride for 2,900 2019 RZR XP Turbo Vehicles for a clutch inlet duct cover used as an “aid during manufacturing” that was not removed before shipping, creating a fire hazard. Polaris claimed five reported fires. This clutch inlet duct cover is likely preventing airflow needed for cooling – particularly in Polaris vehicles, which by design have very little air dissipating the excessive engine heat.

This indicates a lack of quality control at the Polaris plants. Some prior fire claims point to obstructed or damaged clutch outlet ducts as possible fire causes.

Polaris has previously recalled the 2016-2018 RZR XP Turbo vehicles for other fire-related problems.


Oct. 11, 2019: Stop Sale/Stop Ride Notice for 70,000 2018-2020 Ranger XP 1000 Models and 2019 Pro XD Vehicles for potential to damage to the fuel line in the event a drive belt “breaks or fails during operation.” The fix for the Ranger XP 1000 is an “updated clutch cover outlet duct mount to protect the fuel line,” while the 2019 Pro XD gets the same fix plus “an update in the fuel line routing.” Polaris claims four fires and no injuries.

Drive belt failures are a perennial problem for Polaris – in part because of heat degradation –which is why Polaris “reimagined” the design for the 2018 Ranger XP 1000, adding a new clutch cover designed to increase airflow and keep the drive belt cool for a longer-lasting life. Clearly that didn’t work.

As for the fuel line routing update, we’ve heard that one before – this was the subject in Recall 16-146, the single largest of 13 official Polaris fire-related recalls, covering some 133,000 model years 2013-2016 RZR 900 and RZR 1000 recreational off-highway vehicles. Guess the “fixes” they created for those model years didn’t fix things after all.


Oct. 22, 2019: Stop Sale/Stop Ride Notice for 8 2019 Ranger XP 1000 Models that were assembled with fuel rail mounting fasteners that were improperly torqued. Polaris says there are no reported incidents.

Really – only eight? A company as plagued with quality problems as Polaris should provide an explanation as to how they were able to precisely identify these models.


Dec. 20, 2019: Stop Sale/Stop Ride Notice for 6,600 2019-2020 Ranger XP 1000 Models built with incorrectly routed fuel line that could cause a fuel leak if a drive belt breaks or fails during operation. Polaris claims no reported incidents.

Once again – fuel line problems plus drive belt failures equal fires. Some of the same vehicles as the October 2019 Stop Sale/Stop Ride, same failed drive belts. Now the fix for the XP 1000 isn’t just a new clutch cover, it’s a re-routed fuel line, too. Did Polaris discover another problem?

The Ranger XP 1000 debuted in 2017, so the two Stop Sale/Stop Ride notices for the 2018-2020 model years mean many of the vehicles in its entire run have been recalled for fire risks.


How Recalls Are Supposed to Work

The law is pretty clear about what is required when a manufacturer determines that a substantial product hazard exists. Under Section 15 of the Consumer Product Safety Act, the company must “immediately inform” (as in, within 24 hours-immediate) the Commission upon obtaining information which “reasonably supports the conclusion” that a product does not comply with a mandated or voluntary safety standard or contains “a defect which could create a substantial product hazard, or creates an unreasonable risk of serious injury or death.”

According to 16 CFR Part 1115, Step One for the manufacturer is to determine whether the product has a defect in the product’s manufacturing, design, packaging or in the consumer warnings. A substantial product hazard would exist if the public is exposed to significant numbers of defective products or if the possible injury is serious or is likely to occur. Step Two is to figure out if the defect is “a substantial product hazard.” If a product is not already subject to some existing safety standard, the questions become: Is there a pattern? Are lots of these defective products out in the marketplace? Does the defect create a substantial risk of injury to the public?

Once the CPSC receives a Section 15 report, it springs into action and, using all of its engineering and human factors experts, makes its own determination if the defect should result in a recall. The agency basically weighs the same factors as the manufacturer – pattern, number of products and severity of risk.

If the CPSC concludes that a recall is warranted, the manufacturer is obligated to submit a correction action plan outlining the fixes and periodic reports noting its progress.

Hypothetical: Would a highly combustible product that had an exposure to the public of, say 70,000 units, plagued with drive belt failures that led to fuel line leaks that had already caused four fires be considered a defect that posed a substantial risk of injury to the public?

Hypothetical: Would such a circumstance trigger Section 15 reporting obligations?

CPSC spokesman Joe Martyak says that manufacturers can and do launch unilateral actions like stop sale/stop use notices. Not every product defect results in a remedy that involves a repair. For example, consumers might simply throw away a defective, low-value item like a little toy ball or a sand pail, the manufacturer may change its processes going forward, and that might be considered an acceptable response, without a literal product recall.

Unless the CPSC does its own investigation or otherwise involves itself in the process, a manufacturer can recall a product and offer a repair without filing a Corrective Action Plan or monthly progress reports with the agency. A recall is a negotiation between the CPSC and manufacturer, that includes an agreement on the remedy, which the agency will monitor, he says.

“Section 15 of our statute defines the circumstances when a manufacturer must report — it depends on the circumstances – and the CPSC holds them accountable to that provision,” Martyak says. “If the agency conducts an investigation and believes a recall is warranted, it will pursue a recall with the company involved.”  

Hypothetical: Is there a universe in which a regulatory agency founded to protect consumers from product hazards might consider these facts and decide that no recall was necessary?

Is that what happened with Polaris’s October 11, 2019 Stop Sale/Stop Ride?

Martyak would only say generally: “We don’t comment on our investigations.”   


Neither Recalls nor Stop Sale/Stop Rides Stop Fires

As disturbing as these under-the-radar recalls and the CPSC’s hands-off attitude are, the continuing Polaris fires are scarier.

In January 2019, Jason Henke was traveling on Highway 93 in Golden Valley, Arizona, in a 2015 Polaris RZR XP 1000, when it suddenly burst into flames. Henke had only a few seconds to escape the fire, and suffered burns to his hand, wrist, arm, and face. The RZR itself was completely destroyed by fire within a few minutes. This was Henke’s second 2015 RZR XP 1000 to burn to a crisp. In March 2015, his new RZR XP 1000 burst into flames. Henke, who also suffered burns in that incident, demanded a refund from Polaris. The company refused, but sent him a replacement. The incidents were traumatic for Henke, a combat veteran who suffers from post-traumatic stress disorder.

Henke’s 2015 Polaris RZR XP 1000 was actually recalled and remedied 8 times in four years for various fire-causing defects– including an ECU calibration, a voltage regulator replacement, and a fuse box seal replacement. In April 2016, it was recalled for an improperly routed fuel tank vent line that may have insufficient clearance to the exhaust head pipe, posing a fire hazard (the same problem plaguing the new Ranger XP 1000 vehicles). And in January 2018, it was recalled to replace “a heat shield that may not adequcately shield exhaust gasses in the event of an exhaust silencer crack, which could lead to melting of nearby components and pose a fire hazard.” Henke had all of these “fixes” completed.

In February 2019, Chad Reis and Thomas Lamb were riding in a 2019 RZR Turbo, near

Thousand Palms, California, when the vehicle caught fire. Both were able to exit the RZR, but not without sustaining severe burns. A few 2019 RZR Turbos were covered by the June 7 Stop Ride notice – was Reis’s RZR included? How can anyone know? Should it have been? Again, how can anyone know?

In May 2019, Steven Groves, 23, died of his burns after a 2017 Polaris RZR Turbo burst into flames, as he and the owner and driver, James Bingham, rode the Weiser Sand Dunes in Idaho. Bingham’s vehicle had been recalled and repaired in 2018.

Every fire hazard cited in a Polaris notice is a stand-in for the real problem: a high-powered engine, with the exhaust header directed forward and inches from occupants, crammed into engine compartment that can’t seem to get enough ventilation. We know, the public knows, and the CPSC surely knows that each one of these remedies is just a Band Aid. Yet, the commission apply lets Polaris apply another – and another – and now it permits the Medina, Minnesota, manufacturer to do so outside of the recall system.

Safety Research & Strategies founder and President Sean Kane said the Polaris situation harkens back to a Nissan Van problem he investigated in the early 1990s. The minivan was brought to the U.S., based on a Japanese market urban delivery vehicle. Fitted with a larger engine, and stuffed into an engine compartment that was inches from the occupants, the vehicle couldn’t get adequate cooling. 

“After Nissan did three recalls for engine compartment fires that only replaced discrete part failing from thermal degradation, the fires continued,” Kane said. The fourth recall was a bolder attempt to bring the engine compartment temperatures down that involved extensive parts replacement and reconfigured cooling system components. Fires continued because the complexity of the fix led to repair errors and it was a demonstration of challenges presented by post market repairs for problems rooted in the design and architecture of the vehicle.”

Is the Nissan Van a prescient tale of what’s to come for Polaris? Different regulatory agency (NHTSA), different rules, but maybe. Nissan, facing growing pressure from media, organized and angry mothers, Congress, NHTSA and class action attorneys, exercised the nuclear option codified in NHTSA’s recall requirements, if you can’t remedy or replace with a like vehicle, you buy ‘em back. Nissan’s buyback of the ill-fated Van was a remedy that stopped the fires.

So far, the only pressure on Polaris to do the right thing is coming from the media and litigation.


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.”


Who Does the CPSC Protect?

This spring saw the reign of a popular infant sleeping device unravel. The Fisher Price Rock ‘N Play Sleeper was a type of infant hammock, consisting of a fabric and padding-covered plastic shell, suspended on a foldable metal frame. The Rock ‘N Play was the brainchild of Fisher Price industrial designer Linda Chapman, whose first-born had suffered colic years earlier. At the time, she testified, there was no good way to elevate an infant’s head, neck and torso, to relieve its gastric discomfort.

Fisher Price’s product development team started work on this idea in 2008 and began to sell it in October 2009, marketed as a safe way to put your baby to sleep, unattended, for prolonged periods, even though the company had no research to back that claim. Nearly a decade later, Fisher Price, which had sold 4.7 million units, recalled the product – but not because of efforts by the federal agency charged with protecting consumers from dangerous products – but by a reporter at Consumer Reports.

On April 8, the magazine published a story that tied the Rock ‘N Play to 32 infant deaths. Consumer Reports Special Projects editor Rachel Rabkin Peachman had investigated the safety record of the sleeper over three months, obtaining, through a commission error, unredacted incident reports.

(Last month, the CPSC notified numerous companies that their information had been disclosed in violation of Section 6B of the Consumer Product Safety Act, which gives manufacturers a lot of control over what negative information the CPSC can disclose about them. Since 2017, CPSC apparently released information to 29 recipients, affecting more than 11,000 firms. The CPSC requested that the recipients destroy or return the documents and refrain from publishing the information. Consumer Reports refused.)

Peachman found that there were more than three times as many deaths as the CPSC and Fisher Price disclosed in a vague April 5th warning to consumers. And with 32 fatalities associated with the Rock ‘N Play in the news, the dam broke. A coalition of consumer safety advocates and the American Academy of Pediatrics, which had repeatedly expressed concerns about the safety of inclined sleep products clamored for a recall. One week later, Fisher Price announced a limited recall. On April 11th, Consumer Reports called for the recall of Kids II’s inclined sleep product, Rocking Sleepers, after it found four infant deaths associated with that product. On April 26th, Kids II recalled 694,000 units.

“I cannot think of a single product that we worked on – not a class of products, but where an individual product led to that many deaths from the one company,” says Nancy Cowles, executive director of Kids in Danger, a member of the coalition. “Thirty-two deaths seem like an intolerable number. Clearly, action should have happened well before it got to that point. Who knew what about those deaths other than Fisher Price?”

The number of infant fatalities attributed to the Rock ‘N Play is likely to increase as some previously unaccounted deaths are reexamined for connections to the product.

What the public record does show, is an agency at odds with itself, safety advocates, pediatricians and regulators in other countries. Despite a long record of accord between the CPSC and the American Academy of Pediatrics, which has been for 27 years, issuing safe infant sleep recommendations for supine placement on a firm mattress in a crib devoid of soft sleeping materials, the agency began to shift its stance in the wake of demands from juvenile products manufacturers. It did so, even as the safety records for such products grew worse.

Only five months after the Rock ‘N Play hit the store shelves, the U.S. Consumer Product Safety Commission, under the mandates of the Consumer Product Safety Improvement Act, began to propose rulemaking for bassinets and cradles. The regulation, as first published in April 2010, would have eliminated bassinets and cradles with a rest angle of greater than 5º, based on a 1995 Australian study that videotaped the behavior of 11healthy infants sleeping in all commercial sleep products at the time. The study was conducted to assist the Adelaide State Coroner with an inquest into the death of two infants, and the Department of Public and Consumer Affairs to develop Australian Standards for rocking cradles. The study concluded that infants should never be left unattended in freely rocking cradles, and that Australian Standards should recommend that cradles cannot tilt to greater than 5 degrees. As part of the rulemaking, the CPSC outlined the need to establish a safe rest angle: “When a bassinet or cradle is not in a swinging or rocking mode, it needs to be level to facilitate a safe sleeping environment for infants. There was one death and several close calls associated with non-level bassinets/cradles.”

Fisher Price and Kids II, which manufactured inclined sleep products, and its trade representative, the Juvenile Products Manufacturing Association immediately protested. According to deposition testimony from Kitty Pilarz, Mattel’s senior director of  product safety, Fisher Price submitted comments composed by its outside counsel, Jones Day, asserting that the Rock ‘N Play filled an important, CPSC-recognized “niche market” for “products intended to calm colicky babies.” The JPMA had certified it as compliant with the ASTM standard (even though the standard did not address the Rock ‘N Play’s unique design), allowing Fisher Price to advertise it as "the only infant seat that meets industry safety standards for bassinets." There had been no injury incidents, so if the CPSC persisted in prohibiting the Rock ‘N Play, it might make matters worse, as “parents deprived of any appropriate product for calming their tired, colicky infants will look elsewhere and substitute products dangerous for that purpose.”

In the next nine years, the events involving the Rock ‘N Play would run on two tracks. On one, the CPSC and industry would come together to codify the safety of inclined sleep products via voluntary and mandatory standards. On the other, the AAP, the child safety advocacy community, and regulators in other countries would publicly reject inclined sleepers as safe for newborns, while the infant death toll involving the Rock ‘N Play and other inclined sleep products would rise.

Infant Deaths in Inclined Sleepers

In July 2010, Baby Matters, of Berwyn, Pa. recalled 30,000 Nap Nanny portable baby recliners, after  a 4-month-old girl from Royal Oak, Mich. died in one. The Nap Nanny was a wedge-style inclined sleep product with a harness, invented by a Philadelphia sportscaster Leslie Kemm Gudel, who had no product design experience or expertise in infant sleep. At the time, the CPSC and the firm had received 22 reports of infants, primarily younger than 5-months-old, hanging or falling out over the side of the product. Other Nap Nanny models continued to be sold, until three years later when the CPSC forced Baby Matters to recall all 165,000 units. The commission had received at least 92 incident reports, including five of infant deaths. Baby Matters closed up shop in November 2012. As of 2014, a total of six infants died in the product.

In September 2010, the CPSC posted a blog warning parents against using any type of sleep positioner: “CPSC and the U.S. Food and Drug Administration (FDA) are warning parents and caregivers to stop using sleep positioners. Over the past 13 years CPSC and FDA have received 12 reports of infants between the ages of 1 month and 4 months who have died when they suffocated in these positioners or when they became trapped between a sleep positioner and the side of a crib or bassinet. Both types of sleep positioners claim to help reduce the risk of Sudden Infant Death Syndrome (SIDS) by keeping babies on their backs, help with food digestion and reflux, ease colic, and prevent flat head syndrome.” The FDA and CPSC staffs have stated that there is currently no scientific evidence supporting these medical claims. The American Academy of Pediatrics (AAP) already tells parents to avoid “commercial devices marketed to reduce the risk of SIDS.”

In 2011, according to reporting by Consumer Reports, the first known death incidents in a Rock ‘N Play surfaced.

In 2012, The CPSC and the FDA  issued warnings to parents against using inclined sleep products, after the Centers for Disease Control published a weekly morbidity report on infant deaths that included inclined sleep products. “We urge parents and caregivers to take our warning seriously and stop using these sleep positioners,” Inez Tenenbaum, CPSC chairwoman said in a statement. “The sleep positioner devices come primarily in two forms. One is a flat mat with soft bolsters on each side. The other, known as a wedge-style positioner, looks very similar but has an incline, keeping a child in a very slight upright position.”

A June 2013 internal email from Fisher Price to the CPSC, which was produced in litigation, mentioned that the company was investigating a possible death in a Rock ‘N Play. In October of that year, the death of two-month-old Dayana Torres in Hildalgo County, Texas, was also linked to a Rock ‘N Play sleeper.

In November 2015, the CPSC published a report of injuries and deaths associated with nursery products, finding that in a three-year period covering 2010-2012, there were 17 deaths were associated with infant sleep products. They included seven deaths in an inclined sleeper, most in a foam-style sleeper which was being used inside a crib.

In May 2018, the CPSC issued a vague warning to parents urging them to always use restraints with inclined sleep products and to stop using them as soon as the baby can roll over. The alert acknowledged that the CPSC was aware of infant deaths associated with inclined sleep products: “Babies have died after rolling over in these sleep products.” No particular product, manufacturer, or death tally was named. Safety advocates today surmise that the alert was prompted by deaths in a Rock ‘N Play, but that Fisher Price hid behind Section 6 (b). Without the crucial identifying information, the warning was useless, because most parents would have no idea what an “inclined sleep product” was.

Nearly a year later, on April 5, the CPSC issued another warning – this time with Fisher Price acknowledging 10 deaths in a Rock ‘N Play sleeper since 2015. On April 8, Consumer Reports published its story revealing 32 deaths linked to the product. On April 11th, the magazine published n update linking four infant deaths to inclined sleep products manufactured by Kids II. 

Opposition to Rock ‘N Play

While the injuries, deaths, and close calls remained largely hidden, Fisher Price went looking for new markets for the Rock ‘N Play. It did not get the same concessions from regulatory agencies in other countries. In 2011, officials in Canada and Australia rejected the Rock ‘N Play as a sleep product. The company withdrew it from the Australian marketplace rather than change its marketing. In Canada, it was sold as a “soothing seat.” In the UK, where it is sold as a sleeper, the influential Royal College of Midwives refused to endorse the Rock ‘N Play for anything other than a playtime accessory of short duration: “It was agreed that: this would not be suitable for a new born infant as babies cannot be placed in a semi-prone position; This should not to be used for infants under six weeks; The lying surface is not suitable as an infant cot – and must not be used as infant cot to sleep next to mother's bed because babies must always sleep flat on their backs;  Unreservedly – this product must only be used for no more than two hours in a day and for the purpose of play/interaction with parents/siblings etc,” they wrote.

Pediatricians in the U.S. also raised the alarm. In 2012, Dr. Natasha Burgert, a Kansas City, Mo. Pediatrician published open letter to Fisher Price calling it “irresponsible to promote the Rock n’ Play™ Sleeper as an safe, overnight sleeping option for infants. By continuing to do so, you are putting babies at risk.  The Rock n’ Play™ Sleeper should not be used for extended, unobserved infant sleep for the following reasons. First, design features of this product are known to increase the risk of sudden infant death syndrome (SIDS). Second, I have personally seen infants with brachycephaly/plagiocephaly [flat head] and torticollis [twisted neck] as a direct result of using this product. Finally, infants are often left with poor sleep habits that continue long beyond the product’s use.”

Another blogging pediatrician, Dr. Roy Benaroch, published a similar opinion, and reached out to Fisher Price directly to express his concerns in great detail. He received a form reply: “Thank you for your inquiry and comments. We did receive your email on February 7. 2013.  We have provided these comments to the appropriate people within Fisher-Price. The Rock ‘n Play Sleeper complies with all applicable standards. We encourage consumers who have questions or concerns about providing a safe sleeping environment for their babies to discuss these issues with their doctors or pediatricians.”

The AAP, which had been issuing sleep recommendations to reduce the incident rate of SIDS since 1992, continued periodically to sharpen its advice to caregivers. In 2011, it issued specific safe sleep guidelines, which inclined sleep products could not meet, such as: “Infants should be placed for sleep in a supine position (wholly on the back) for every sleep by every caregiver until 1 year of life; Use a firm sleep surface—A firm crib mattress, covered by a fitted sheet; Sitting devices, such as car safety seats, strollers, swings, infant carriers, and infant slings, are not recommended for routine sleep in the hospital or at home; If an infant falls asleep in a sitting device, he or she should be removed from the product and moved to a crib or other appropriate flat surface as soon as is practical.”

The AAP also directly addressed the claims made by manufacturers in 2010, that their products were a godsend for babies with intestinal problems:

“The supine sleep position does not increase the risk of choking and aspiration in infants, even those with gastroesophageal reflux, because they have protective airway mechanisms. Infants with gastroesophageal reflux should be placed for sleep in the supine position for every sleep, with the rare exception of infants for whom the risk of death from complications of gastroesophageal reflux is greater than the risk of SIDS (ie, those with upper airway disorders, for whom airway protective mechanisms are impaired)”

Giving Inclined Sleep Products a Safety Stamp

Nonetheless, the CPSC and inclined sleeper manufacturers proceeded to develop safety standards. An ASTM sub-committee was formed, headed by Michael Steinwachs, a retired Fisher Price Product Integrity Engineer who worked on the development of the Rock ‘N Play.

In October 2012, the CPSC made official its regulatory approach to exclude inclined sleep products from the bassinet and cradles rulemaking that was underway. In a Supplemental Notice of Proposed Rulemaking the Commission wrote: [The] Commission believes that a separate standard targeted specifically to these products will more effectively address any hazards associated with them. Due to the significant progress in the development of a separate voluntary standard to address hammocks and inclined sleeping products, the Commission is not including them within the scope of this proposed rule.”

The ASTM released the first voluntary standard for inclined sleep products in May 2015 and a revision in 2017. And in April 2017, the CPSC published a Notice of Proposed Rulemaking specifically for inclined sleep products, in which it noted 14 fatalities between 2005 and 2016, with eight in rocker-like inclined sleep products. The CPSC pronounced itself satisfied that the current voluntary ASTM standard would address “the primary hazard patterns identified in the incident data.” All that was needed was “more stringent requirements” relating to the standard’s definition of accessory—which meant removing the term ‘‘rigid frame’’ from the definition, because, the CPSC said, not all inclined sleep products have a rigid frame. In fact, the CPSC was aware of a new inclined sleep product had entered the market without such a frame.

The child safety community was visibly dismayed. A coalition of groups, including Kids In Danger, Consumer Federation of America, Consumers Union, Consumer Reports, Public Citizen, and U.S. PIRG, submitted comments pointing out that there had been no studies showing that babies sleep better on an incline, nor any studies on the impact of continuous restraining sleeping infants on their development or safety. They urged the CPSC to promulgate a standard that ensure the same safe sleep as a full-sized crib.

The AAP  expressed “concerns about all inclined sleep products and the hazards they may pose to infants, and we are concerned that a safety standard could give parents and caregivers the mistaken impression that these products have been proven safe…The AAP continues to recommend that infants with gastroesophageal reflux should be placed for sleep in the supine position for every sleep, with the rare exception of infants for whom the risk of death from complications of gastroesophageal reflux is greater than the risk of SIDS (i.e., those with upper airway disorders, for whom airway protective mechanisms are impaired), including infants with anatomic abnormalities such as type 3 or 4 laryngeal clefts who have not undergone antireflux surgery. Elevating the head of the infant’s crib while the infant is supine is not recommended. It is ineffective in reducing gastroesophageal reflux; in addition, it might result in the infant sliding to the foot of the crib into a position that might compromise respiration.”

Controversy and Contradictions

Back in 2008, when Fisher Price was developing the Rock ‘N Play, there was no research to support the safety of inclined sleepers, because the products didn’t really exist. As documents produced in litigation show, Fisher Price couldn’t rely on data, so it called in a San Antonio family physician, named Gary Deegear, who aslo worked as an injury forensics consultant, to provide guidance.

“I'm not sure that we did specific research at this time about incline angles other than talk to Dr. Deegear,” Pilarz said in a deposition.

The decision to incline the rocker at 30 ° was an educated guess, somewhere between the 45° angle of infant car seat and a flat surface. In February 2009 email, Pilarz described the justification for this design decision:

“Dr. Deegear stated pediatricians recommend babies with reflux sleep at 30 degrees, this is just fine, or sleep in a car seat overnight for months or even a year The Back to Sleep campaign places children on their backs, and elevated positions of the head is fine. He is not aware of research on this. He will do a quick search. I explained that we are also researching this issue. I also have a call in to a local group of pedestrians to see if they are willing to offer an opinion.”

In that email exchange, Dr Deegear also sent Fisher Price the AAP’s safe sleep guidelines, which say nothing of the sort.

Similarly, the CPSC had no research to support a rulemaking decision to codify the safety of inclined sleep products in a way that would prevent infant deaths in these contrpations with any real confidence. What they did have on the one hand, was a major juvenile products manufacturer servicing a thriving market of parents desperate for sleep and on the other, the longstanding safe sleep recommendations of the AAP, which the commission has repeatedly endorsed.

“This idea they are giving the consumer something that will help them is not at all true,” Cowles says. “Fisher Price produced 5 million of these sleepers. There has been no reduction in sleep-related deaths. You would think that you would have seen some reduction, if these things were so effective. They convinced parents it would help their babies sleep, because we are all looking for a way to help babies sleep. And parents assume that if it’s for sale, someone made sure it was safe. That’s clearly not true with this product.”

Even former CPSC Chairman Inez Tenenbaum, on whose watch the CPSC took their peculiar stance, testified as an expert witness for Fisher Price in a personal injury lawsuit. Tenenbaum, now a lawyer in private practice with the Wyche Law Firm firm in South Carolina, testified in February 2018 that “the AAP has not come out against the incline[d] sleepers… The AAP has never said not to use an incline[d] sleeper.” You’d think the for the $1,000 an hour she charged Fisher Price for her expert opinion she might have read the AAP’s April 2017 comments to the docket in which they criticized the commission for giving parents the impression that theses products were safe when there was no evidence to support it.

But for the CPSC’s error and Consumer Reports persistent reporting, the public would never have known just how flimsy the foundation for these consequential decisions is.

Fisher Price’s walk-the-plank recall only reimburses parents who purchased a Rock ‘N Play in the last six months, pretty much ensuring that many units will remain uncaptured and many infants will be exposed to the risk of injury and death. That troubles Rachel Weintraub, the Consumer Federation of America’s executive director.

“This recall, while better than no recall has numerous problems. I am concerned, because from what we know about recall effectiveness, that this recall is not a recipe for success – much more needs to be done,” she said.

The Rock ‘N Play and other inclined sleepers have gotten so toxic, that earlier this month, the CPSC told Consumer Reports that it planned to “reevaluate” the entire product category. Steinwachs stepped down from the ASTM inclined sleep products standards sub-committee. Last week, its member rejected a call from safety advocates and the AAP to withdraw the product category, but intended to look into it further when it re-convenes in October.  

“We plan to keep pushing,” Weintraub says.


What does the Mueller Report have to do with auto safety?

On March 24, newly minted Attorney General William Barr released a four-page summary of the Office of Special Counsel’s 448-page report of a two-year investigation into President Donald Trumps ties to and cultivation and acceptance of Russia’s help in defeating Democratic opponent Hillary Clinton via the use of stolen emails, and of Trump’s efforts to stop an investigation into his actions.

In delivering his much truncated and highly curated version, Barr put this partisan thumb on the scale, opining that Special Counsel Robert Mueller did not find criminal wrong-doing. President Trump used the occasion to stand on an airport tarmac and proclaim in his trademark sing-song: “It was just announced – no collusion with Russia. The most ridiculous thing I ever heard. There was no collusion. No obstruction and it was a complete and total exoneration!”

It would be two weeks before Barr would release a redacted version, in which Congress and any member of the public who so desired could sit down in a wing chair with two fingers of scotch and actually read most of it, to more fully understand the context of Special Counsel Robert Mueller’s prosecutorial conclusions, or feast on dozens of damning details about the Trump presidency that had not already been reported.

Barr’s rollout garnered headlines like these:

  • “Barr's summary of Mueller report sparks GOP celebration, fresh Dem calls for full release”
  • “Trump did not collude with Russia, says Mueller, and is cleared of obstruction by the attorney general” and
  • “Mueller finds no Trump-Russia conspiracy”

Of course, the Mueller report did not vindicate Trump. Special Counsel Mueller explained:

[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Over at The Safety Record, the collective hairs on the backs of our collective necks rose in concert. We’ve heard it before.

On August 29, 2009 California Highway Patrol Officer Mark Saylor, his wife, young daughter and brother-in-law died in a horrific crash, when the loaner 2009 Lexus ES 350 Saylor had been driving experienced an Unintended Acceleration (UA) event. Before the Saylor crash, Toyota UA was the subject of eight National Highway Traffic Safety Administration investigations and two agency-influenced, limited recalls. After the Saylor crash, more investigations were launched – among them, one from Congress. Toyota admitted no wrongdoing and embarked on an aggressive public relations campaign to quiet critics and to re-gain its reputation.

In April 2010, the Department of Transportation hired the NASA National Engineering and Safety Center (NESC) to examine Toyota’s electronics to determine if they were to blame for the many incidents of unintended acceleration that began to occur when Toyota transitioned to its Electronic Throttle Control System – Intelligent (ETCS-i) in 2002.  After 10 months of investigation, it issued two reports.

In February 2011, Secretary of Transportation Ray LaHood stood before the cameras to declare:

“The jury is back …he said,  "The verdict is in. There is no electronic-based cause for unintended high-speed acceleration in Toyotas. Period.”

The dense, 177-page highly technical report was released to reporters only one hour before LaHood’s victory lap, so his bold declaration grabbed headlines like these:

  • "Toyota's electronics exonerated in unintended acceleration claims"
  • "Electronic Flaws Did Not Cause Toyota Problems, U.S. Says"
  • "DOT: No Electronic Sudden Acceleration in Toyotas"

Of course, the NESC report did not vindicate Toyota’s electronics; instead, it said

Due to system complexity which will be described and the many possible electronic hardware and software systems interactions, it is not realistic to attempt to "prove" that the ETCS-i cannot cause UAs. Today's vehicles are sufficiently complex that no reasonable amount of analysis or testing can prove electronics and software have no errors. Therefore, absence of proof that the ETCS-I  has caused a UA does not vindicate the system.   

The first report entitled, Technical Support to the National Highway Traffic Safety Administration (NHTSA) on the Reported Toyota Motor Corporation (TMC) Unintended Acceleration (UA) Investigation, clearly delineated the difficulties in isolating the causes of such a complex multi-root cause problem, and yet it found:

  • Toyota’s main defense in previous unintended acceleration investigations is false. The NESC team found scenarios in which engine speed can be increased, RPMs can surge, and the throttle can be opened to various degrees in contradiction to the driver’s command and not set a Diagnostic Trouble Code (DTC).
  • One way that Toyota’s electronic throttle control system could cause a UA event was tin whiskers in the Accelerator Pedal Position Sensor (APPS) of potentiometer-type pedals. Tin whiskers are hair-like structures which can cause electrical shorts. The team found the presence of this well-known electronics phenomenon in virtually every potentiometer accelerator pedal assembly inspected. They linked it to a real-world complaint of a UA event. This suggests that the presence of tin whiskers is widespread and deserved further study.
  • Numerous design inadequacies exist in Toyota’s electronic architecture, but the report failed to probe them any further to discern how these deficiencies fit into the problem of unintended acceleration. 

The Unreliable Narrator’s Playbook

Both instances involve a powerful entity trying to get out in front of the bad news by deliberately mischaracterizing its contents to an audience that did not have the advantage of the facts. It’s called “controlling the narrative,” and, as a Forbes editorial notes: “Few phrases in common usage are more pervasive than ‘controlling the narrative.’ Regardless of your walk of life, having control over every aspect of your “story” should be a priority, personally and professionally.”

Indeed, the concept is used several times in the Mueller report to describe attempts by Trump and his minions to spread lies, as in:

Also on May 10, 2017, Sessions and Rosenstein each spoke to McGahn and expressed concern that the White House was creating a narrative that Rosenstein had initiated the decision to fire Comey. The White House Counsel's Office agreed that it was factually wrong to say that the Department of Justice had initiated Comey's termination, and McGahn asked attorneys in the White House Counsel's Office to work with the press office to correct the narrative.

We would not argue that the parallels are exact. The actions of a lawless President to encourage and use the intervention of a hostile foreign power to gain advantage in a U.S. election, and his attempts to obstruct justice, are likely to garner more and sustained public interest and news coverage than an automotive safety problem. And the story – complex as it is due to Trump’s many questionable and illegal activities in his decades as a businessman and as a politician – is more readily graspable than a highly technical problem that is invisible and difficult to find, but each narrative traces a similar path:

  • Use the bad acts of the report’s sources to further the narrative of the preferred outcome
  • Close the investigation before all facts are in
  • Set the narrative before the people see the detailed facts
  • Count on the public’s short attention span to accept the government’s word and move on
  • Count on the misimpression that the government is diligently protecting the public’s interest through rigorous regulations and laws and through enforcement.  

Prosecutors in the Special Counsel’s investigation had to rely on unreliable narrators –  individuals implicated in wrongdoing – and had an incentive to minimize or hide their own actions:

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office's judgment, appropriate candidates for grants of immunity…Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above….Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated – including some associated with the Trump Campaign – deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records.

Similarly, the NASA investigators had to rely on the representations of the target, and they did not have access to Toyota’s complete source code or vehicles that had experienced high-speed UA events. NHTSA relied on Exponent, a science-defense firm specifically retained by Toyota’s counsel for the purpose of defending the company against a class-action lawsuit, to perform an analysis of warranty claims without identifying Exponent as the source of the analysis. This analysis was used by NHTSA and NESC investigators to rule out electronic causes of UA and dismiss the significance of tin whiskers – the physical evidence they discovered in potentiometer-type pedals. (Tin whiskers are crystalline structures that emanate from tin and other alloys used as solder on printed circuit boards. These nearly microscopic metal hairs can bridge circuits, leading to electrical shorts and significant malfunctions.)

After the Huffington Post published a well-researched article about the significance of the tin whiskers findings, Mike Michels, Vice President for External Communications of Toyota Motor Sales, U.S.A., responded with an editorial trying to herd the narrative back to Toyota’s preferred “no electronic causes” story that consisted of easily refuted falsehoods. (You can read them here)

Neither the Office of the Special Counsel, nor the NASA scientists were given enough time to fully follow their investigative threads before the record was written.

And the Toyota Unintended Acceleration fiasco is but one example. We have seen a version of these events play out in other safety crises.

Ford Explorers and Firestone Tires

In 2000, the bad combination of Bridgestone-Firestone's Wilderness ATX tires on Ford Explorers, America’s best-selling brand of SUV, had resulted in at least 173 tire-failure rollover deaths. In May 2000, NHTSA had opened an investigation into Firestone ATX and Wilderness tire tread separations in the U.S. based on 90 reported incidents that caused 27 injuries and four fatalities. The agency did not know that Ford had already acknowledged the safety defect in overseas recalls. The fiasco exploded into view that August, after Strategic Safety (predecessor to SRS) announced to safety officials and the press that Ford had surreptitiously recalled Firestone Wilderness AT tires in Venezuela.

The Ford Explorer was part of that new generation of station wagon with a high center of gravity, built on a truck platform. At the time, there were no federal standards for occupant protection in rollovers, nor a minimum stability standard for SUVs. Industry fought off any regulations, even as the rollover death tolls in light trucks rose to epidemic levels. Ford knew that Explorer was prone to rollovers – its internal data showed this – and the company had developed an electronic stability control system, which it offered to its customers as a high-cost option that was invisible to drivers. But after those overseas tire recalls came to light, the automaker launched a series of campaigns to replace the Firestone tires and began to sell the story that the tires bore all the blame.

In testimony to Congress, Ford's then-CEO, Mr. Jacques Nasser asserted: “The data tell us that the problem is with the tires and not the vehicle.”

The broken parts narrative served both parties well – NHTSA eschews going after automakers for design defects that are prohibitively expensive to fix and in areas the agency has failed to set regulations for. Compelling the replacement of tires is a lot easier for the agency than demanding post-market design fixes to improve handling and stability or vehicle buybacks. And in 2002, NHTSA denied a request by Bridgestone-Firestone to open a safety defect investigation into the Explorer's oversteer characteristics following a tread separation of a rear tire.

“The data does not support Firestone's contention that Explorers stand out from other SUVs with respect to its handling characteristics following a tread separation,” said then-NHTSA Administrator Dr. Jeffrey Runge in a news release.

It was one of the largest tire recalls in automotive history – 13 million Firestone tires. But even after all the tires were replaced, Explorer tire-related rollover deaths and injuries did not abate. In fact, a 2008 independent analyses of crash data showed that years post-recall, the Explorer was very much a standout among peer SUVs for tire-related fatal crashes. By 2008, the number of Explorer rollover deaths involving tire failures had risen to significantly higher levels than before the tires were recalled.

Ford Explorers in Fatal, Tire-related Crashes: Before and After the Firestone Recall, written by statisticians Randy and Alice Whitfield of Quality Control Systems Corporation, concluded that:

The recalls and replacement campaigns by Ford and Firestone have not achieved long-term effectiveness in eliminating tire-related deaths in the Ford Explorer fleet. Additional efforts must be made to avoid the placement of problematic tires on these vehicles. Also, it is imperative to investigate effective countermeasures addressed to the vehicles' performance on higher speed roadways to avoid loss of control when a tire failure does occur.

ET-Plus Guardrails

In 2015 the Federal Highway Administration twisted crash test data beyond recognition to maintain the fiction that Texas-based Trinity Industries’ ET-Plus energy-absorbing end terminal was safe for states’ use. In 2005, Trinity secretly altered the design of the ET-Plus as a cost-savings measure, without notifying the FHWA, as required. The change caused the guardrail component to jam in the chute and fold in half, spearing the striking vehicles. This design change caused severe injuries and deaths, but the FHWA didn’t penalize Trinity for violating federal regulations, or even order it to conduct new tests when a whistleblower complained to the agency in 2012. It just accepted seven-year old data and permitted Trinity to retain its FHWA approved status, which allows states to be reimbursed by the federal government for their purchase.

In October 2014, a federal jury found that Trinity defrauded the government when it decided not to tell the FHWA about that design change. Although the verdict was overturned by a federal appeals court in September 2017, the FHWA initially responded to the verdict by ordering Trinity to conduct a series of crash tests. In one, the ET-Plus energy-absorbing end terminal caused the guardrail component to jam in the chute and fold in half, spearing the striking Geo Metro at the driver’s side door – and the occupant dummy – just as it did in real-world incidents. The FHWA then issued reports twisting the data to reach a conclusion that the test failure was really a pass, and that the dummy occupant – which was not instrumented – wouldn’t have been hurt too badly.

The Safety Institute's detailed analysis of the crash test data showed that the ET-Plus did not perform as intended even in a very controlled environment, and that the guardrail terminal failed in a similar fashion to the real-world incidents that raised controversy about the safety and efficacy of this device. In order to call the test failure a pass, the FHWA and its contractors ignored the industry standard (NCHRP Report 350) criteria for occupant risk; failed to properly measure the intrusion; used the wrong set of crashes as a basis of comparison; confined its injury inquiry to the lower leg, even though the door directly struck the upper leg; and did not examine the potential for injury to the torso, head or arm

On the issue of potential occupant injury, the FHWA ignored its own independent expert, Clay Gabler, who found: “My conclusion is that the risk of serious injury cannot be discounted simply because the impact is to the legs. An AIS 3 femur fracture could occur as a result of an impact to the upper legs and would be considered a serious injury.”

Instead of using the information conveyed by the test data to address the problem, the FHWA devoted its energy to promoting the narrative that ET-Plus passed muster. The report was an audacious counter-narrative to what the video of the test clearly showed.

Takata Airbag Inflators

In January 2017, the U.S. Department of Justice indicted three Takata executives for wire fraud and conspiracy and accepted a guilty plea and a $1 billion settlement fine from Takata Corporation, then one of the world’s largest component suppliers, for selling defective airbag inflators using volatile chemicals that, over time, could explode, expelling metal shards into the occupant compartment.

As the DOJ told the story:

*For more than a decade, Takata repeatedly and systematically falsified critical test data related to the safety of its products, putting profits and production schedules ahead of safety,” said Fraud Section Chief Weissmann. “This announcement is the latest in the automotive industry enforcement actions the Fraud Section has taken to protect U.S. consumers against fraud.

Conspicuously missing in this accounting was the role of one of Takata’s biggest customers – Honda. Globally, some 60 million vehicles were recalled; 16 deaths were linked to the defective airbags. The OEMs were happy to cast themselves as unwitting dupes, when it’s clear that Honda, with its much lauded and documented supplier quality control process had the ability to throw the brakes on this runaway freight train of disaster much earlier. Myriad management studies on Honda’s corporate philosophy and practices make the case that Honda knew – or should have known – about Takata’s chronic inflator manufacturing problems. Had it only followed its own rules, it would have detected Takata’s systemic problems long ago and taken an active role in quality control and prevention.

Instead, Honda did nothing until 2008, after five field ruptures, a lawsuit, and a presentation from Takata about the inflator problem. Honda launched the first limited recall in November 2008, and for 10 years accepted Takata’s ever-evolving root cause explanations. It continued to issue limited “rolling recalls,” adding new model years and new models each time. Even in 2009, after two fatal inflator explosions, Honda continued to ignore the big picture. When NHTSA and Congress sought an explanation from Honda, it blamed Takata. Only pressure from Congress at the December 2014 hearings finally forced Honda to do a large-scale recall.

How to Read a Government Report

So how should you read a government report? The government has an absolute right and duty to use its authority to probe everything, from powerful figures to consumer products, to ensure the integrity of everything from the rule of law to the safety of vehicle electronics. But don’t take the first soundbite as the last word. Read the report. If possible, get the source material, and read that. Think of the report, as a report – some information that might be useful, another data point. Think about how its claims fit with everything else you see and know.

President Trump has trailed criminal and dubious behavior his entire adult life. More than 30 years ago, Australian officials rejected his bid to build the first casino in Sydney because of his Mafia ties. In December, a New York judge approved a deal to shutter the President’s personal charity, the Trump Foundation, for a “shocking pattern of illegality.” His cheating the sub-contractors who worked on his failed Atlantic City casino was legendary. In February 2018, a $25 million settlement ended the scam known as Trump University. And those are just a few examples. Does anyone really think that the office of the presidency has transformed 72-year-old  Trump into a different person? Does the narrative of “complete and total exoneration” really ring true?

In the case of Toyota, neither the recalls nor Ray LaHood’s assurances stopped UA events from occurring, even though the issue’s high profile slowly dropped. The automaker added a brake-override system to 2011 models, with the alleged ability to allow a driver to counter an unintended acceleration event. In March 2014, the U.S. Department of Justice fined it $1.2 billion for misleading its customers about unintended acceleration caused by floor mat entrapment or sticking accelerator pedals.

Some of the most important answers the public sought as to the root causes of Toyota UA were delivered – not by the government, but by litigation. In October 2014, an Oklahoma jury determined that Toyota acted with “reckless disregard,” awarding $3 million in damages to the victims of a 2007 crash that seriously injured the driver Jean Bookout and killed her passenger Barbara Schwarz. But before the trial could move to the punitive damages stage, Toyota quickly settled the case.

The case turned, in part, on the testimony of two plaintiff’s experts in software design and the design process, who reviewed Toyota’s software engineering process and the source code for the 2005 Toyota Camry and concluded that the system was defective and dangerous, riddled with bugs and gaps in its failsafes, which led to the root cause of the crash.

Michael Barr, a well-respected embedded software specialist, spent nearly 20 months reviewing Toyota’s source code at one of five cubicles in a hotel-sized room, staffed by security guards, who ensured that entrants brought no paper in or out and wore no belts or watches. Barr testified about the specifics of Toyota’s source code, based on his 800-page report. Phillip Koopman, a Carnegie Mellon University professor in computer engineering, a safety critical embedded systems specialist, authored a textbook, Better Embedded System Software, and performs private industry embedded software design reviews – including in the automotive industry – testified about Toyota’s engineering safety process. Both used a programmer’s derisive term for what they saw: spaghetti code – badly written and badly structured source code.

After the Bookout verdict, Toyota began to quietly and aggressively settle UA death and injury cases in confidential settlements. And the NASA scientists who discovered the tin whiskers in Toyota accelerator pedal potentiometers continued their research into the phenomenon, publishing a series of technical papers on their methods and discoveries.

But narratives are powerful.

The myth that Toyota UA events are exclusively the result of mechanical problems or driver error continues to be peddled – by NHTSA and others who lack a sophisticated understanding of the evidence. Celebrity pseudo-journalist Malcolm Gladwell was just the latest to spin this fable.

The ability to create and spread narratives is uniquely human, says Israeli Historian Yuval Noah Harari. And in his book Sapiens: A Brief History of Humankind he posits that this ability to use “stories to unify and organize groups and ensure cooperation,” is the reason Homo Sapiens came to dominate all other species.

We could be harnessing this evolutionary advantage and telling stories that help us tackle climate change, racism, income inequality, safety problems and any number of complex and thorny issues critical to our survival. Instead, its most ardent practitioners are powerful entities trying to preserve their dominant status and shield their mistakes, their crimes and their amorality from greater view.

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.