Autonomous Vehicles – The Beta Test Coming to a Roadway Near You

The National Highway Traffic Safety Administration’s Automated Vehicles web page breathlessly forecasts: “Vehicle safety technologies signal the next revolution in roadway safety. We see great potential in these technologies to save lives—more than 30,000 people die on our roads every year and we can tie 94 percent of crashes to human choice—transform personal mobility and open doors to communities that today have limited mobility options.”

Sounds like an amazing marvel of tomorrow – and none too soon in the wake of recent news that traffic fatalities may have risen 6 percent over 2015. The National Safety Council estimated last month that 40,200 people died in motor vehicle crashes in 2016– the highest annual death toll since 2007. The increase comes on the heels of an 8 percent rise in traffic deaths in 2015. The two-year jump would be the largest in 53 years, according to the safety group.

But will autonomous vehicles – already driving among us with little to no oversight, regulation, or data collection – really deliver on its promise?

Already, two Tesla drivers have died in crashes that occurred while the vehicle was in Autopilot mode. In January 2016, a 23-year-old Chinese man died when his Tesla Model S crashed into a road-sweeper on a highway south of Beijing, according to a report on a Chinese government news channel. Five months later, Joshua Brown, a 40-year-old Tesla enthusiast died when his Tesla Model S crashed into a semi-trailer that had made a left-hand turn in front of it. NHTSA later said that the Tesla’s sensing system failed to distinguish the white tractor trailer against the sky and did not apply the brakes.  

By September, Tesla Motors Chief Executive Elon Musk announced that Tesla would impose limits on the vehicle’s semi-autonomous Autopilot function that would have potentially prevented Mr. Brown’s demise. According to news reports, the improvements were delayed by fears of the system over-reacting to information in the driving environment.

Musk said he had wanted to improve Autopilot’s capabilities last year but was told it was impossible to do so without incurring more “false positives.”  Two months after the Brown crash, Musk tweeted publicly that supplier Bosch had given him encouraging news about   improvements to its radar.

“I wish we could have done it earlier,” Musk said in an interview. “The perfect is the enemy of the good.”

Feds Bypass Regulation

The federal government, for the most part, has responded to the advent of automotive autonomy by vigorously shaking its pom-poms, consistently declaring its intention to “speed the deployment of lifesaving technology”

From The Federal Automated Vehicle Policy: “At each level, the safety potential grows as does the opportunity to improve mobility, reduce energy consumption and improve the livability of cities. To realize these tremendous benefits, NHTSA believes it should encourage the adoption of these technologies and support their safe introduction.”

From the preamble of NHTSA Enforcement Guidance Bulletin 2016–02: Safety-Related Defects and Emerging Automotive Technologies: “As the world moves toward autonomous vehicles and innovative mobility solutions, NHTSA is interested in facilitating the rapid advance of technologies that will promote safety.”

From NHTSA’s Automated Vehicles website: “The DOT Federal Automated Vehicles Policy sets the framework for the safe and rapid deployment of these advanced technologies.”

To hurry things along, NHTSA has issued two guidance bulletins, accompanied by requests for comments and held two public meetings, billed as an exploration of related topics, such as adapting the Federal Aviation Administration’s pre-market approval approach as a replacement for self-certification.

Enforcement Bulletin

First, NHTSA re-asserted its powers under The Safety Act to regulate autonomous vehicles. In April, the agency published in the Federal Register Enforcement Guidance Document 2016-02, a brief declaration of the agency’s “broad enforcement authority, under existing statutes and regulations, to address existing and emerging automotive technologies. technologies—including its view that when vulnerabilities of such technology or equipment pose an unreasonable risk to safety, those vulnerabilities constitute a safety-related defect—and suggests guiding principles and best practices for motor vehicle and equipment manufacturers in this context.”

The five-page Federal Register Notice walked readers through some of the seminal court cases of the 1970s that established enforcement standards: The 1975 “Wheels” decision, involving broken wheels in GM pickup trucks, which defined a safety defect; and the 1977 Pitman Arms Case, involving the failure of the steering mechanism in GM Cadillacs, which defined the concept of “unreasonable risk to safety.”

Then, the agency defined automated vehicle technologies, systems, and equipment – including software, even code that enables devices not located in or on the vehicle – as motor vehicle equipment, whether original equipment or after-market.

The agency warned would-be violators to iron out the kinks in their systems before bringing their products to market and to promptly follow the requirements of The Safety Act. At the same time, the agency was clear that it was not establishing a binding set of rules, or implementing a one-size-fits-all enforcement policy. In fact, it rallied its all-purpose, case-by-case approach to the cause:

 “NHTSA’s statutory enforcement authority is general and flexible, which allows it to keep pace with innovation.” (To the contrary, the agency’s history has repeatedly shown that it trails innovation badly, that it will ignore deaths and injuries caused by changes in automotive technology until Congress forces it to act, or regulates after a particular technology – warts and all – is already in widespread use, and codifies bad designs. For example, the agency has yet to correct the rollaway and carbon monoxide poisoning introduced by keyless ignitions via regulations.)

And, the agency signaled that its approach would be expansive:

“NHTSA considers the likelihood of the occurrence of a harm (i.e., fire, stalling, or malicious cybersecurity attack), the potential frequency of a harm, the severity of a harm, known engineering or root cause, and other relevant factors. Where a threatened harm is substantial, low potential frequency may not carry as much weight in NHTSA’s analysis.”

In the case of an unprotected network that hackers might access, the agency said that it would weigh several factors in determining the probability of a malicious cyber-attack: the amount of time that had elapsed since the vulnerability was discovered, how hard it would be to breach the system, the level of expertise and the equipment needed; whether the public had access to information about how the system works and the window of opportunity to exploit the system.

NHTSA offered the following example of a foreseeable vulnerability that might trigger agency action, even if no incidents have occurred:

“If a cybersecurity vulnerability in any of a motor vehicle’s entry points (e.g., Wi-Fi, infotainment systems, the OBD–II port)allows remote access to a motor vehicle’s critical safety systems (i.e., systems encompassing critical control functions such as braking, steering, or acceleration), NHTSA may consider such a vulnerability to be a safety related defect compelling a recall.”

The enforcement bulletin drew 37 commenters. (Safety Research & Strategies was among them, expressing concern that the framing language in the Guidance Bulletin was contradictory and its emphasis misplaced: “More importantly, we note that the agency, is in fact, doing very little to regulate automotive software and new technology, and absent rulemaking in this area, the rapid cycle automotive defect crises will continue and potentially accelerate.”)

The Telecommunications Industry Association re-stated a position it has long held – that the agency has no jurisdiction over their products: “We are concerned that NHTSA’s proposed guidance would potentially bring a broad range of  technologies under the agency’s enforcement authority beyond what is intended by the governing statute.”

Carmakers were more alarmed by the agency’s intentions of enforcing The Safety Act as it relates to cyber security. Tesla, the Alliance of Automobile Manufacturers and the Global Automakers all pushed back against the agency’s intention to treat a cyber-vulnerability as a defect:

“The Alliance submits, however, that a defect related to motor vehicle safety does not automatically exist merely because the engineering or root cause of a cybersecurity “vulnerability” is known. As discussed in more detail below, a theoretical “vulnerability”       to potential system failures through hacking or otherwise is not the same as an actual “risk” that is currently present in an item of motor vehicle equipment.”

NHTSA responded in the Final Notice of its enforcement bulletin, published that September by backing off, saying that it would take up cyber-security issues in a future interpretations and guidance.  

The Federal Automated Vehicles Policy

In tandem, the agency published the Federal Automated Vehicles Policy. The 116-page document, also released for comment in September 2016, was “intended as a starting point that provides needed initial guidance to industry, government, and consumers.” The document outlined what the agency deems best practices in safe design, development and testing prior to sale or deployment on public roads.

NHTSA declined to undertake actual rulemaking “to speed the delivery of an initial regula­tory framework and best practices to guide manufacturers.”

Instead, the Guidance is full of fine, vague language regarding system safety, cyber security, consumer privacy and education. Automakers should “follow a robust design and validation process based on a systems-engineering approach with the goal of designing HAV systems free of unreasonable safety risks.” They should “follow guidance, best practices, design principles, and standards developed by established standards organiza­tions.” Given how automakers have introduced innovations such as keyless ignitions and drive-by-wire systems without regulations, this gives us little comfort.

The agency also noted its interest in automakers’ definitions of the Operational Design Domain (ODD) of their HAVs – meaning the vehicle’s capabilities according to roadway types, the geographic area, the speed range and the environmental conditions in which it will operate – and its Object and Event Detection and Response (OEDR) – how it detects and responds to other vehicles, pedestrians, cyclists, animals, and objects in a variety of conditions.

The Model State Policy is another aspect of the guidance document. Neither NHTSA nor automakers want a patchwork of state regulations impeding the agency’s damn-the-torpedoes strategy. In fact, it advises states to “evaluate their current laws and regulations to address unnecessary impediments to the safe testing, deployment, and operation of HAVs.” So, it has been working with the administrators of state Department of Motor Vehicles to develop the first set of ground rules for states that allow manufacturers to test their HAVs on public roads (See what California is doing below.) NHTSA wants each state to create a special bureaucracy for automated vehicles including a “jurisdictional automated safety technology committee,” to establish rules and authority for regulating autonomous cars, including registrations, and applications for testing vehicles and licenses for test drivers.

In the absence of federal regulations, the agency intends to rely on some new regulatory tools. In the short-term, the agency wants to launch a new quasi-certification report called a Safety Assessment. Safety Assessments are used by the Nuclear Regulatory Commission and the Food and Drug Administration in various forms as a way of methodically evaluating risks to food safety and the handling of nuclear waste. NHTSA is proposing that manufacturers voluntarily provide reports about how closely they are hewing to the recommendations in the guidance document. Automakers and suppliers would submit these assessments to the Chief Counsel’s Office outlining their adherence to NHTSA’s broad outlines, their timelines for testing and deployment on public roads. They would cover data recording and sharing; privacy; system safety; vehicle cybersecurity; human machine interface; crashworthiness; consumer education and training; registration and certification; post-crash behavior; federal, state and local laws; ethical considerations; operational design domain; object and event detection and response; fall back (minimal risk condition).

Automakers probably have plenty of time to prepare. NHTSA won’t publish a Federal Register notice implementing this reporting it until it clears the Paperwork Reduction Act, a 1995 law requiring that any public information request to get Office of Management and Budget approval. Given the anti-regulatory bent of the GOP Congress and the near-daily turmoil that is the Trump White House, we don’t see any disclosures happening anytime soon.

In the long-term, NHTSA is looking at several options to ensure that HAVs enter the marketplace safely. One is the pre-market approval authority process, modeled after that used by the Federal Aviation Administration. Another is a hybrid certification and approval process, in which manufacturers could certify compliance with FMVSS and NHTSA or a third-party expert could conduct pre-market approval for those HAV features that are not covered by an FMVSS

NHTSA has already held two meetings on this policy, gathering panels of stakeholders, which did not seem to include too many domain experts, to engage in short discussions about topics such as  Safety Assurance,  Pre-Market Approval Authority,  Imminent Hazard Authority; Expanded Exemption Authority for HAVs.

But, as the guidance documents tells us, this is just a first step. NHTSA needs to conduct more research, scout out new standards to govern the initial testing and deployment of HAVs, and the agency’s approach will evolve as the level of automation in HAVs rises. Or so the document promises.

The First HAV Investigation

If the agency’s first six-month enforcement investigation into the alleged failure of an automated vehicle is any measure, manufacturers shouldn’t fear that NHTSA is going to stray too far from its well-established habits.

On May 7, 2016, Joshua Brown, died when his Tesla Model S, in Autopilot mode, crashed into an 18-wheel tractor-trailer truck that was turning left in front of it on US 27A, west of Williston, Florida. According to the Florida Highway Patrol, the vehicle underrode the truck, tearing off its top before it proceeded east on U.S. 27A. The vehicle left the roadway and struck several fences and a power pole, before coming to rest about 100 feet south of the highway. Brown, a 40-year-old Tesla enthusiast from Ohio, died at the scene.

June 21, 2016, NHTSA sent a Special Crash Investigations team to the crash site to evaluate the vehicle and study the crash environment. It concluded that Brown had increased the cruise control speed to 74 mph two minutes before the crash, and took no evasive action, nor did he apply the brake. The tractor trailer should have been visible to the Tesla driver for at least seven seconds prior to impact.” This report has not yet been made publicly accessible.

On June 28, 2016, the Office of Defects Investigation opened Preliminary Evaluation 16-007 into the crash that killed Brown. Officially, the investigation focused on “the Automatic Emergency Braking (AEB) or Autopilot systems that “may not function as designed, increasing the risk of a crash.”

The agency’s nine-page Information Request, issued on July 8, contained very specific questions. Question 7, for example had 12 sub-parts, seeking – among other things – information about Tesla’s object recognition and classification process for rear-end collision and crossing path collisions, how the Tesla S’s system detects compromised or degraded sensor/camera signals, the kinematic models the Tesla S used to judge collision risk, and all inhibit and override/suppression conditions.

Over the course of the seven-month investigation, Tesla filed four responses that were placed in the publicly accessible file.

On January 19, the agency closed the investigation with no defect finding, saying that the system performed as designed, and blamed the Brown for the crash:

“NHTSA’s examination did not identify any defects in the design or performance of the AEB or Autopilot systems of the subject vehicles nor any incidents in which the systems did not perform as designed. AEB systems used in the automotive industry through MY 2016 are rear-end collision avoidance technologies that are not designed to reliably perform in all crash modes, including crossing path collisions. The Autopilot system is an Advanced Driver Assistance System (ADAS) that requires the continual and full attention of the driver to monitor the traffic environment and be prepared to take action to avoid crashes. Tesla’s design included a hands-on the steering wheel system for monitoring driver engagement. That system has been updated to further reinforce the need for driver engagement through a “strike out” strategy. Drivers that do not respond to  visual cues in the driver monitoring system alerts may “strike out” and lose Autopilot function for the remainder of the drive cycle.”

Yet, this investigation was full of oddities. For one, the agency played hardball in wresting information out of Tesla, and its former supplier Mobileye. Under the regime of the recently-departed Administrator Mark Rosekind, the agency did not hesitate to bring its full authority to bear on the information-gathering portion of the probe. In an unusual move, the agency actually issued a subpoena for the diagnostic log data for another apparent Autopilot failure, involving a Tesla Model X.

The agency also issued three Special Orders.

One Special Order was issued to supplier Mobileye, a technology company that makes advanced- driver assistance systems using cameras and software to scout objects in a vehicle’s path. The Order sought communications between it and Tesla regarding hands-free operation in Autopilot mode. The Order also asked for an explanation of the “proper and substantial technological restrictions and limitations” Mobileye thought should have been in place before hands-free operation was permitted; and any other safety concerns, guidance or warnings that Mobileye might have communicated to Tesla about Autopilot’s limitations, intended use and potential misuse.

The agency’s first Special Order to Tesla sought information about incidents (or alleged incidents) of Autopilot failures that Tesla was receiving – especially if Tesla wanted to make a public statement about it before reporting it to NHTSA – for the duration of the investigation. An Amended Special Order, issued in October, required Tesla to continue weekly reporting of incidents – by COB every Friday – until further notice.

These Special Orders appear to be responses, in part, to public statements by Tesla and Mobileye. It is not unheard of for a manufacturer or supplier to defend its reputation during an ongoing investigations – especially if it involves high profile deaths. However, Tesla and Mobileye were particularly determined to get out in front of the probe, and direct public attention to their own analyses.

Two days after receiving NHTSA’s Information Request, Tesla issued a public statement about the crash, attributing the Autopilot’s indifference to a large object directly in its path to a white-out conditions:

“Neither Autopilot nor the driver noticed the white side of the tractor trailer against a brightly lit sky, so the brake was not applied. The high ride height of the trailer combined with its positioning across the road and the extremely rare circumstances of the impact caused the Model S to pass under the trailer, with the bottom of the trailer impacting the windshield of the Model S. Had the Model S impacted the front or rear of the trailer, even at high speed, its advanced crash safety system would likely have prevented serious injury as it has in numerous other similar incidents.”

In September, Mobileye issued a press release, pushing back against any suggestion that it bore responsibility for the crash. The release asserted that it had warned Tesla that the Autopilot should not have been allowed to operate hands-free “without proper and substantial technological restrictions and limitations,” but that Tesla disregarded those admonitions, releasing it “hands-free” in late 2015, after assuring Mobileye that it would not do so.

“Mobileye has made substantial efforts since then to take more control on how this project can be steered to a proper functional safety system. Tesla’s response to the May 7 crash, wherein the company shifted blame to the camera, and later corrected and shifted blame to the radar, indicated to Mobileye that Mobileye’s relationship with Tesla could not continue. Failing agreement on necessary changes in the relationship, Mobileye terminated its association with Tesla. As for Tesla’s claim that Mobileye was threatened by Tesla’s internal computer vision efforts, the company has little knowledge of these efforts other than an awareness that Tesla had put together a small team.”

Finally, this investigation was notable for the amount of black on Tesla’s four responses submitted to the public file. In its August 8 and September 2 submissions to the questions in the IR, every answer is redacted, as are separate submissions to answer Question 7 and Question 10, about the automaker’s assessment of the alleged defect. A fifth response has a few bits of information available for public consumption, but most of the test is blacked-out.

In reviewing literally hundreds of investigations, The Safety Record can honestly say that we have never seen investigation responses in the public file so redacted – especially with no request for confidentiality on file. In fact, the IR specifically instructs Tesla to submit all confidential business information directly to the Office of Chief Counsel. In addition, the IR notes, “do not submit any business confidential information in the body of the letter submitted to this office [ODI].” Instead, Tesla addressed its responses to ODI, which presumably painted them black and put them in the public file. There are no requests from Tesla for confidentiality in the public file.

Also missing from the public file were any responses Mobileye filed in response to its Special Order.

In the end, we know very little about Tesla’s responses to the crash, except – Tesla’s first response was to blame it on a white-on-white interpretation error. Only later did Tesla argue that its Automatic Emergency Braking system was never designed to recognize a front-to-side crash. According to one answer that escaped the censor’s Sharpie:

“Like other manufacturers’ AEB systems, Tesla’s AEB is designed to mitigate front-to-rear collisions,” Tesla said.

If that was the case, why didn’t Tesla say that from the beginning?

State Legislation

In the absence of federal regulations, several states have passed legislation related to autonomous vehicles, and more – six in 2012 to 20 in 2016 – consider such legislation each year. Currently California, Florida, Louisiana, Michigan, Nevada, North Dakota, Tennessee, Utah and Virginia—and Washington D.C. have laws on the books, while Arizona and Massachusetts governors have issued executive orders, according to the National Council on State Legislatures related to autonomous vehicles.

California was one of the most active regulatory schemas. In 2014, the state passed regulations for the registration of autonomous vehicles with the Department of Motor Vehicles. Currently, 22 companies have registered, including Google, Bosch, Delphi, Honda, Mercedes-Benz, Tesla, Ford, Volvo, Nissan, Subaru and GM. (Transportation problem child Uber has been  testing its autonomous vehicles without seeking a permit, throwing the litigation-magnet into more conflict.)

The state is now in the process of writing regulations to cover the deployment of autonomous vehicles.

California is also the only state collecting autonomous car crash data. Manufacturers are required to report all crashes involving autonomous vehicles within 10 business days. Once a year, they must also report instances when a human test driver seizes control of the vehicle from its autonomous system for safety’s sake.

To date, the California has collected reports in 24 crashes since October 2014. The majority involve Google vehicles – not surprising, as the tech giant has the largest fleet of self-driving  vehicles – including Toyota Prius, Lexus RX450 and other prototype vehicles on the road in Mountain View since 2009 and expanded to Kirkland, WA, Austin, TX and Phoenix, AZ. This year, Google, which has spun off its autonomous car project to a company called “Waymo,” intends to add 100 new 2017 Chrysler Pacifica Hybrid minivans to the fleet.

All were minor, non-injury crashes. Oddly, more than 60 percent of the crashes involved a conventional vehicle rear-ending a Google HAV in a scenario in which the driver in the striking car, clearly thought that the vehicle in front of it ought to have been moving. For example, here’s a narrative from an October 26, 2016 incident:

“A Google prototype autonomous vehicle (“Google A V”) traveling southbound in autonomous mode on Shoreline Boulevard in Mountain View was involved in an accident. The Google AV entered a slip lane in order to tum right onto El Camino Real and came to a stop to yield to westbound traffic on El Camino Real. As the Google A V began to move forward onto El Camino Real, another vehicle immediately behind the Google AV collided with the rear of the Google AV. At the time of the collision, the        Google AV was traveling at approximately 3 mph, and the other vehicle was traveling at approximately 6 mph. The Google A V sustained minor damage to its rear hatch. The        other vehicle sustained minor damage to its front bumper. There were no injuries reported by either party at the scene.”

NHTSA has estimated that rear-end crashes make-up about 23-30 percent of all crashes, so the reason for the high number of rear-enders bears more analysis.

There are many more disengagements – incidents, as defined by the California DMV, in which “a failure of the autonomous technology is detected,” or “when the safe operation of the vehicle requires that the autonomous vehicle test driver disengage the autonomous mode and take immediate manual control of the vehicle.” In 2016, nine companies who tested autonomous vehicles reported 2,887 disengagements, for reasons including poor lane markings, weather and road surface conditions, construction, emergencies, and collisions

Ensuring the Safety of Autonomous Vehicles?

Are vehicles driven by LIDAR, cameras and algorithms safer than those driven by that passe technology, people? The federal government, Tesla and other autonomous vehicle enthusiasts are insulted that you have even posed the question.

This groups loves the numerator of crashes and the denominator of vehicle miles travelled to show that so far, the self-driving fleet should feel very proud of its record. For example, NHTSA used this simple division to acquit Tesla’s autopilot function, as it closed PE16-007, a probe into the crash that killed Brown, in January with no defect finding.

“ODI analyzed mileage and airbag deployment data supplied by Tesla for all MY 2014 through 2016 Model S and 2016 Model X vehicles equipped with the Autopilot Technology Package, either installed in the vehicle when sold or through an OTA update, to calculate crash rates by miles travelled prior to and after Autopilot installation. Figure 11 shows the rates calculated by ODI for airbag deployment crashes in the subject Tesla vehicles before and after Autosteer installation. The data show that the Tesla vehicles crash rate dropped by almost 40 percent after Autosteer installation.”

(NHTSA mis-characterizes these figures as crash data, when it is actually instances of airbag deployments. There are two problems with this: there are many more crashes than airbag deployments; and it is unlikely that Tesla knows about all airbag deployments. Both of these factors affect how we interpret the comparison.)

Tesla relies on this basic calculation, as does Waymo, which, in an uplifting video, talks about the million vehicle miles travelled without incident.

Nidhi Kalra and Susan M. Paddock, researchers from the RAND Corporation, have recently challenged these assessments, and concluded that the paucity of data make it impossible to determine whether autonomous vehicles will have a measureable effect on death and injury rates. The duo’s statistical analysis shows that “Autonomous vehicles would have to be driven hundreds of millions of miles and sometimes hundreds of billions of miles to demonstrate their reliability in terms of fatalities and injuries.” Further, “Under even aggressive testing assumptions, existing fleets would take tens and sometimes hundreds of years to drive these miles—an impossible proposition if the aim is to demonstrate their performance prior to releasing them on the roads for consumer use.”

Therefore, Kalra and Paddock note, in terms of fatalities and injuries, the entire raison d’etre for pushing vehicle autonomy ahead of their oversight and regulation, test-driving alone “cannot provide sufficient evidence for demonstrating autonomous vehicle safety.” They call for the development of new and innovative ways to demonstrate safety and reliability and most importantly for the development of “adaptive regulations that are designed from the outset to evolve with the technology so that society can better harness the benefits and manage the risks of these rapidly evolving and potentially transformative technologies.”

Big Promise, Mixed Messages

What, ultimately, do we expect from autonomous cars? That we will be passengers in our own vehicles. The informational video fronting Waymo’s website shows a couple snuggling, a grandmother and a child absorbed in an I-pad screen, and teens chatting as the landscape flies by, like back-seat passengers in a cab, wholly unconcerned about how they will get to their destination. As Waymo originally envisioned it, fully autonomous cars would have no steering wheels or foot pedals. That future raises a lot of questions: do we license vehicles instead of drivers? What do public roads look like when then large numbers of driverless vehicles mingle with equally large numbers of conventional vehicles? What are the fail safes?

The present reality is the semi-autonomous vehicle, equipped with software such as Tesla’s Autopilot, which is not reliable enough to offer a hands-free experience, let alone an attention-free experience. Some Tesla drivers have found that out the hard way. A video posted earlier this month shows a Tesla operated in the Autopilot mode clip the side of a highway barrier after the lanes suddenly shift to the right due to construction.

The official, explicit message is that that Autopilot “is an assist feature that requires you to keep your hands on the steering wheel at all times,” and that “you need to maintain control and responsibility for your vehicle” while using it. And the system is designed to warn drivers who test its limits with visual and audible alerts, gradually slowing the vehicle down until the steering wheel detects the presence of the driver’s hands.

But there is another message out there – one that promises that you can ride shot-gun while the car does all of the work. At an April conference in Norway, Musk told the Norway Transport and Communications Minister Ketil Solvik-Olsen:

“The probability of having an accident is 50 percent lower if you have Autopilot on, even with our first version. So we can see basically what’s the average number of kilometers to an accident — accident defined by airbag deployment. Even with this early version, it’s almost twice as good as a person.”

In an October 19 blog post, the company published: “We are excited to announce that, as of today, all Tesla vehicles produced in our factory – including Model 3 – will have the hardware needed for full self-driving capability at a safety level substantially greater than that of a human driver.”

YouTube is full of videos showing Tesla owners demonstrating Autopilot, including Musk’s two-time wife and ex-wife (the pair married in 2010, divorced in 2012, re-married in 2014 and divorced again in 2016.)  Talulah Riley turned to a camera, giggling with fluttering jazz hands as her car zips down a crowded highway.

And that gives the public a very different impression – one which NHTSA recognized in its automated vehicle guidance document carries some dangers:

“New complexity is introduced as HAVs take on driving functions, in part because the vehicle must be capable of accurately conveying information to the human driver regarding intentions and vehicle performance. This is particularly true of SAE Level 3 systems in which human drivers are expected to return to the task of mon­itoring and be available to take over driving responsibilities, but drivers’ ability to do so is limited by humans’ capacity for staying alert when disengaged from the driving task. Manufacturers and other entities should consider whether it is reasonable and appropri­ate to incorporate driver engagement monitoring to Level 3 HAV systems.”  

And really, what is the point of Autopilot if you have to pay constant attention – and be prepared to grab the wheel in a split second? That seems more stressful than actually driving.

After the Brown crash, Musk got roundly criticized for these contradictory messages, and updated the software to lock-out drivers from the feature who fail to heed the system’s warning to keep their hands on the wheel.  

He also back-pedaled a bit, saying that Autopilot “is by far the most advanced driver assistance system on the road, but it does not turn a Tesla into an autonomous vehicle and does not allow the driver to abdicate responsibility.”

And what about NHTSA? What is its responsibility? Musk has always been very clear that Autopilot was introduced to the marketplace as a beta test. Just to be perfectly clear, a beta test is “a trial of machinery, software, or other products, in the final stages of its development, carried out by a party unconnected with its development.” Not only is the Tesla driver participating in this beta test on public roads, but so is every vehicle, pedestrian, and cyclist that share those roads.

How is Tesla permitted to dragoon the public into testing its automotive software?

Well, there’s no law against it.

GM Stiffs Takata Recall, Petitions for Delay

Safety Research & Strategies response to this request: Deny! It’s rare for an automaker to request such a change – it’s even rarer for the agency to ask for comments. But, our focus on this issue tells us that the petition is a stunning display of chutzpah, considering that the automaker is already flouting the Consent Order it signed. GM has been selling unremedied recalled vehicles while telling its customers it isn’t replacing the airbags because there’s no problem. Everything we’ve learned about the history of this defect assures us – there ain’t no such guarantees.

Read the SRS comments below.

NHTSA Progress Slow as Safety Crises Keep Coming

On Friday, the Office of the Inspector General threw another report on the stack of official criticisms of the way the National Highway Traffic Safety Administration’s Office of Defects Investigation operates.

As its title suggests, Additional Efforts are Needed to Ensure NHTSA’s Full Implementation of OIG’s 2011 Recommendations was a look at the progress the agency didn’t make in the last five years on 10 recommendations to implement process improvements that would track consumer complaints, thoroughly document Defect Assessment Panels decisions on which risks to investigate, achieve its timeliness goals for completing investigations, create a systematic process for determining when to involve a third-party or Vehicle Research and Test Center for assistance,  train its staff, and keep identifying information out of public files, among others.

Five years later, the OIG found that NHTSA had satisfactorily completed three of the action items: it conducted a workforce assessment, it boosted its communication and coordination with foreign countries on safety defects and it reviewed and tracked consumer complaints associated with specific investigations. But it also noted that the agency was lagging in some of most important process improvements. Sure, NHTSA created a bunch of systems to address these deficiencies, but it did little to ensure that those systems were used with consistency:

Although NHTSA took actions to address all 10 of our 2011 recommendations, our review determined that ODI lacks sufficient quality control mechanisms to ensure compliance with the new policies and procedures, and lacks an adequate training program to ensure that its staff have the skills and expertise to investigate vehicle safety defects. Earlier this year, NHTSA stated that it will “aggressively implement” the 17 recommendations from our June 2015 report. The results of this review of NHTSA’s implementation of OIG’s 2011 recommendations can provide lessons learned as NHTSA makes important decisions regarding future process improvements.

In the aftermath of the first big safety crisis of the modern era – Firestone Tire tread separation failures the caused the tippy Ford Explorer to rollover – the General Accounting Office, in response to Congressional inquiries, and mostly the DOT Office of the Inspector General, began to pump out reports. But, with the successive waves of high-profile safety problems –Toyota unintended acceleration; the General Motors ignition switch failures and exploding Takata airbag inflators – the pace has accelerated. 

There have been seven censorious assessments since 2002 – with critiques on NHTSA’s data collection and analysis, its recall management practices, its lack of investigative and decision-making processes, and its enforcement and transparency. (We have been covering these reports, as well as documenting these problems: 

Inspector Agrees with SRS: NHTSA Ain’t Right

Elective Warning Reports: When Manufacturers Don’t Report Claims 

Elective Warning Reports Redux

How NHTSA and NASA Gamed the Toyota Data

What NHTSA Doesn’t Want You to Know about Auto Safety

The Pedal Error Error  )

The most recent take-down, Inadequate Data and Analysis Undermine NHTSA’s Efforts to Identify and Investigate Vehicle Safety Concerns, was released by the OIG a mere seven months ago. This report rapped the agency for ODI’s lack of process, for prioritizing probes by chances of recall success rather than threat to safety; lack of transparency; failure to audit manufacturer’s EWR reports; and the lack of enforcement. 

To determine NHTSA’ s progress on the ten action items it cited in 2011, OIG investigators pored through agency records, looking for evidence that agency staff was documenting its reasons for not meeting its deadlines to complete investigations, or its decisions to move forward with defect investigations, and found pretty spotty performance.

For example, NHTSA had agreed to start putting its defect screening meeting minutes and other pre-investigation information, such as data from insurance companies, in its Advanced Retrieval Tire, Equipment, Motor Vehicle Information System (ARTEMIS), the system originally implemented in July 2004 to analyze and identify trends in the early warning reporting data. But the OIG found that NHTSA managers hadn’t developed any processes to ensure that staff was actually putting the stuff in. Out of a sample of 42 issue evaluations opened in 2013, 42 percent had no documentation of any pre-investigative work. 

The documentation for failing to meet a timeliness goal was worse: more than 70 percent of delayed investigations the OIG reviewed did not include justifications for why ODI’s goals for timely completion of investigations were not met. 

Under policies ODI established in 2013, managers developed a checklist to ensure that all evidence associated with an investigation “such as consumer complaints and information exchanged with manufacturers was documented.” The OIG reviewed documentation for 36 preliminary evaluations and six engineering analyses opened between March 2013 and December 2013 and found that ODI used the checklist for 4 preliminary evaluations and zero engineering analyses. (This may explain why FOIAs to the agency regarding its investigatory activities often turn up next to nothing.) The OIG concluded: “As a result, ODI may not be capturing all evidence associated with an investigation, potentially hampering its ability to assess or support the adequacy of its investigations.”

Less egregious but still inconsistent was how well NHTSA’s contractor redacted files for public consumption (the OIG found nine out of 62 investigation documents were not fully redacted, containing birth dates, driver’s license numbers and e-mail addresses.) and filing meeting minute notes of defect screening meetings (out of 21 panel meetings held in 2013 and 2014, 17 percent were not appropriately documented).  

One of the most troubling observations was the lack of training for ODI staff. Back in 2011, NHTSA argued that a formal training program wasn’t necessary, but agreed to offer basic training in automotive technology, ODI policies and processes, computer skills for data analysis, and ARTEMIS. But, when ODI investigators paid a visit, they found this: 

During our audit, ODI’s pre-investigative staff told us that they received little or no training in their areas of concentration, some of which can be quite complex. For example, ODI staff charged with interpreting statistical test results for early warning reporting data told us they have no training or background in statistics. 

Since data are at the root of all NHTSA activities, allowing the people to make the first cut with no training and no understanding of statistics seems counterproductive, to say the least. (Although given NHTSA’s many numerically dubious claims, The Safety Record cannot say that it is surprised.)

In the last year, we have seen a lot of positive changes at NHTSA, and we know that jack-hammering a better agency out of decades of calcified practice will take time. But, if this 5-year progress report is any indication, it’s going to be a long time before we see the OIG’s 17 recommendations from June come to fruition. 

Takata Recall Tests the New and Improved NHTSA

Tomorrow October 22, the National Highway Traffic Safety Administration is scheduled to hold a public hearing ostensibly to explore coordinating a national recall of defective Takata airbag inflators. 

This auto safety crisis had been brewing internally at Takata since at least November 2001, when Honda received its first field report (noted as part of a recall for 2,900 Accord and Acura TL vehicles with passenger-side airbag inflators that had been improperly welded.) But the repeated Honda recalls for driver’s side airbag inflators that could explode with little to no provocation, spewing shrapnel at the vehicle occupants, did not really penetrate the public consciousness until 2013. By then, there were three known deaths and a spate of serious injuries associated with the defect, and the recalls widened to include other automakers and passenger-side inflators. Congress began to summon Takata and National Highway Traffic Safety Administration officials to the Hill for explanations.  

Today, 12 automakers have or are in the process of replacing defective Takata inflators in 19 million U.S. vehicles. Takata had resisted launching national recalls – insisting that it was only necessary to recall vehicles in states with hot and humid climates, even as explosions occurred in locations outside of the initial list. But, under the persuasive influence of a May Consent Order, Takata conceded that a safety defect existed and agreed to conduct national recalls.

This month’s hearing has been billed in the Federal Register as a notice of NHTSA’s resolve to publicize its intention of issuing administrative orders to coordinate the recall under its authority in several provisions of The Safety Act to ‘‘accelerate’’ remedy programs; to inspect and investigate; to ensure that defective vehicles and equipment are recalled and remedied; and to ensure that the remedy for the defect is adequate. The agency envisions its leadership in the recall effort as speeding up delivery of the repairs by prioritizing and organizing the air bag inflator remedy programs among multiple manufacturers; managing inflator sourcing, production, allocation, delivery, and installation; and ensuring adequacy of the remedy. 

Apparently, it’s already game on, because last month, the agency’s chief of Recall Management Division, Jennifer Timian, held a meeting in Ohio with representatives of BMW, Chrysler, Ford, Toyota, Honda, Subaru, GM, Mitsubishi and Nissan – all participants in the Takata Recallapalooza. And, in a subsequent email to the attendees, Timian praised the group:

“We accomplished more than we thought possible in the few short days we had. However, and as many of you lamented, a large portion of the work to be done involves consistent and clear messaging to the public.  To that end, our communications office plans to shortly reach out to your communications folks to arrange a call for later this week to get that coordination kicked off.” The email recommended that automakers send their contact information to NHTSA’s Communication Director Gordon Trowbridge, because, Timian wrote, “We certainly don’t want to leave any critical players out.”

The Safety Record Blog felt a bit left out, and contacted Mr. Trowbridge for comment about the agency’s plans to coordinate communications. He did not respond.

Automakers are definitely upping their communications strategies. One 2002 Honda Accord owner who had inflator recall repairs done in 2011 and 2015 for the driver’s side airbag received several dire robo-calls from the “Honda Customer Service Team,” requesting an immediate response to “this urgent safety recall.” The one minute, 42-second voice message explained in straightforward language how the defect manifested itself. And, unlike the usual recall communications, in which the risk to safety is presented as a hypothetical – even if the defect had caused injuries and deaths – this message dropped all pretense:

“In some Honda vehicles the driver’s side airbag could produce excessive internal pressure upon deployment. If a defective airbag deploys, the increased pressure may cause the inflator to rupture. In the event of a rupture, metal fragments could pass through the airbag cushion material and possibly hit you and others in the vehicle. Past ruptures like this have killed or injured vehicle drivers. Due to the severity of this defect, please call us immediately. Do not delay.”

Meanwhile, the story of who knew what, when has grown like Topsy. And yet, despite intense media attention, there were still pieces of the story that have been hiding in the public record, such as foreign recalls for passenger side frontal airbags that preceded the U.S. recalls by about three years, and a published technical paper lending more credence to at least one root-cause theory that the volatility of phase-stabilized ammonium nitrate that Takata exclusively uses is a key factor in inflator explosions.  

Lies, Lies and Damned Lies

A closer look at the public record shows that automakers have had more truthiness issues with the extent of their knowledge of the problem than previously suspected. To wit, the Part 573 Notices of Defect and Non-Compliance filed in 2013 by Honda, Toyota, and Nissan in their passenger side air bag inflator recalls, which claimed to have discovered the defect in 2011 or later. Honda, for example, told NHTSA that it had no inkling that this could be a problem until October 2011, when a passenger airbag inflator ruptured in Puerto Rico. Ditto for Toyota, which told the agency, that it, too, discovered a passenger-side airbag rupture in October 2011, but in a crash in Japan. Nissan reported to NHTSA that it didn’t know anything about passenger-side airbag inflator ruptures until February 2013, when Takata informed the automaker that it was investigating a “quality issue” with front passenger airbag inflators.

We suspect, however, that the trio already had gotten a big hint there was a problem with exploding passenger side airbags, because all three had launched recalls in the summer of 2010 for passenger inflators in vehicles sold in other countries. Turns out Takata operators had not put enough propellant wafers into the inflators, allowing the other wafers to break apart. 

In August 2010, Honda recalled 57,660 Programmable Smokeless Passenger Inflators (PSPIs) in 82 countries in Asia, Africa, Europe, Middle East, Australia, Mexico and South America, including MY 2001-2003 Civics, MY 2002 Fit vehicles and MY 2001-2003 Stream vehicles because:  “In certain vehicles, the single-stage passenger airbag inflator could produce excessive internal pressure. If an affected airbag deploys, the increased internal pressure may cause the inflator housing to rupture. Metal fragments could pass through the airbag cushion material possibly causing injury or death to vehicle occupants.”

Honda conceded that the U.S. 2001-2003 Civics were similar to the recalled vehicles—except for the inflator modules, which were “dual-stage inflator modules,”  rather than the single-stage modules used in U.S. vehicles, and “we have received no more similar reports for dual stage passenger airbag modules.”

On June 30, 2010, Toyota recalled more than 38,000 MY 2001 Toyota Corolla, Corolla Fielder, Corolla Runx, and Yaris vehicles sold in Japan, France, Malaysia, and “other countries, for: inflators “produced with an insufficient amount of gas generators. In this condition, gas generators in the inflator may become broken and powdered by vehicle vibration over time. This can create abnormal combustion and pressure in the inflator body during airbag activation, causing it to break and scatter. This increases the risk of personal injury during airbag inflation.”

Toyota, long known for its chatty Part 573s, simply said that the foreign vehicles had “different” inflators than those in U.S. vehicles and offered no explanation of the discovery of the defect.

On July 1, 2010, Nissan recalled 4,043 passenger inflators in its 2001 MY Cefiro and Pulsar/Sunny vehicles sold in Japan, Singapore, Australia, and Sri Lanka. The automaker also recalled passenger inflators in 46 U.S. vehicles ( never to be mentioned again). Nissan described the defect as “some air bag inflators may be missing a wafer. As a result, the remaining wafers in the inflator used for the deployment of the front passenger air bag may be broken up into powder due to vibration experienced while driving. This causes the combustion rate of the propellant to increase inside the inflator, which can lead to internal pressure rising suddenly during air bag deployment. In certain cases, the inflator housing may rupture.”

Nissan’s chronology marks its discovery of bad passenger airbags to October 2009, when the automaker learned that a passenger airbag had “deployed abnormally” while being scrapped at a recycling center in Japan. Nissan collected inflators and conducted duplication testing and found that vibration of driving could pulverize the propellant wafers, causing them to burn unnaturally and produce excessive internal pressure. Naturally, Takata records showed that it only happened one time and everything was all fixed up: “During a certain discreet production period, due to a manufacturing error, it was possible that one of the propellant wafers was missing from the inflator. Production records indicated that this manufacturing issue was promptly corrected at the supplier's plant.” 

Given all that had preceded these “discoveries” – multiple recalls, secret testing at Takata, myriad quality control issues at its plants – we think these explanations are one wafer short of an inflator. 

Transient Burning

“Transient Burning Behavior of Phase-Stabilized Ammonium Nitrate Based Airbag Propellant.” That’s a mouthful, isn’t it? Shorter version: Researchers at Pennsylvania State University have been studying the combustion behavior of Takata inflators and how rapidly the propellant burns when there are rapid pressure changes. The technical paper authored by Jonathan T. Essel, Eric Boyer, Kenneth K. Kuo, and Baoqi Zhang of Penn State’s Department of Mechanical and Nuclear Engineering was published in the latter part of 2012. 

For those of you who are not regular subscribers of the International Journal of Energetic Materials and Chemical Propulsion (Editor-in-Chief Kenneth Kuo), this paper describes an investigation into the dynamic burning behavior of an airbag propellant as a function of pressure and pressurization rate. The burn rate of airbag propellants can increase significantly under intense pressure; that’s why they are supposed to be designed to maintain a steady burn rate during the transient combustion process. This paper said:  “It is clear from the results that the PSAN propellant does exhibit dynamic burning behavior. It is also apparent that the higher the pressurization rates, the more severe the dynamic burning effect.” It also said: “The effect of dynamic burning behavior of the propellant needs to be accounted for, when designing or analyzing systems that subject the PSAN propellant to high pressurization rates.” 

This sounds like chemistry-speak for NHTSA’s explanation of the inflator defect:

“Over time, that moisture causes changes in the structure of the chemical propellant that ignites when an air bag deploys. The degraded propellant ignites too quickly, producing excess pressure that causes the inflator to rupture and sends metal shards into the passenger cabin that can lead to serious injury or death.” 

According to a story in today’s New York Times, this investigation was not mere scholarly interest – Takata, which is a sponsor of Penn State’s High Pressure Combustion Lab, paid for this study and forbade the researchers from mentioning Takata or Honda in its published paper. It disliked the results so much that it waited for two years before sharing this information with NHTSA.

Of course, despite the absence of the words “Takata,” and “Honda,” one could infer that the researchers were testing Takata inflators – perhaps at the behest of Takata itself – from several in-the-public-record facts:

  • Of the three global manufacturers of airbag inflators, Takata is the only one to use phase-stabilized ammonium nitrate (PSAN) based propellant.
  • Co-author Eric Boyer is also assistant director of Penn State’s High Pressure Combustion Lab.
  • Takata is a sponsor of Penn State’s High Pressure Combustion Lab.
  • Before a June U.S. House Energy & Commerce Committee hearing updating Congress on the Takata recalls, Kevin Kennedy, Executive Vice President of Takata North America Testifified: “Well, the studies that we have done, and the research that we have from some of the leading experts in the world, seem to indicate that ammonium nitrate is certainly a factor in the inflator ruptures.”

Attorney Ted Leopold, who represents a Duval County, Florida, woman severely injured by a Honda airbag with a Takata inflator, believes that ammonium nitrate is also a factor in over-aggressive deployments. In June 2014, Patricia Mincey, owner of a 2001 Honda Civic, was belted in a moderate frontal crash, when, she alleges, the Honda/Takata airbag “deployed late and violently exploded due to excessive pressurization,” rendering her a quadriplegic. Honda had replaced her inflator in the 2009 recall. Four days after the crash, Honda recalled her vehicle again to replace the defective airbag.

Leopold, of Cohen Milstein Sellers & Toll PLLC in Palm Beach Gardens, Florida, is scheduled to depose Kuo on November 3 about the significance of the Penn State team’s findings.

“The published PSU study confirms that Takata’s use of phase stabilized ammonium nitrate in its inflators results in an over-pressurization that leads to inflator ruptures and aggressive deployments. This often overlooked defect – aggressive deployments – can lead to severe injuries,” he says. 

In 2011 and 2012, while Takata was characterizing the defect as a discrete manufacturing problem, researchers at Penn State were examining the role of the propellant chemistry in inflator explosions and had come to the conclusion that its propellant ignites too quickly. But Takata – three years after this research is published – apparently still isn’t sure. Even as Kevin Kennedy acknowledged that ammonium nitrate is a factor in inflator ruptures, he insisted that its propellant chemistry is safe.

At that same June hearing, Rep. Joseph Kennedy of Massachusetts asked Kevin Kennedy: Can you guarantee that as long ammonium nitrate is used in those products, that the products are safe?

Kevin Kennedy answered: “Well, we believe properly manufactured and designed ammonium nitrate, phase stabilized ammonium nitrate, can be done properly.”

Well, maybe it can, but apparently, Takata didn’t.

Protective Orders and NHTSA

The National Highway Traffic Safety Administration’s whirlwind makeover continues. Monday, the agency published two Federal Register Notices – one inviting comments on a forthcoming guidance document about the sharing of safety defect information discovered in civil litigation and a second notice proposing rulemaking to codify procedures for the assessment of civil penalties.

After years of treating trial lawyers like Kryptonite, the agency has decided that using the information attorneys toiled to extract from a recalcitrant defendant with deep pockets would not rob NHTSA of its super crime-fighting powers. We all know that there are great stinking piles of corporate malfeasance moldering under seal in courtrooms all over this great nation. Yesterday’s notice seeks to shine a little light by sharing the agency’s thinking on the value of that information. NHTSA is recommending “that all parties include a provision in any protective order or settlement agreement that – despite whatever other restrictions on confidentiality are imposed, and whether entered into by consent or judicial fiat – specifically allows for disclosure of relevant motor vehicle safety information to NHTSA and other applicable authorities.”

As the agency noted, “protective orders, settlement agreements, or other confidentiality provisions prohibit vehicle safety-related information from being transmitted to NHTSA, such limitations are contrary to established principles of public policy and law.” With no apparent sense of irony, the Federal Register Notice mentions the GM ignition switch defect as an example of “how vital early identification of motor vehicle risks or defects is for the safety and welfare of the American public.”

In February 2014, NHTSA dissed Lance Cooper, a Marietta, Georgia lawyer who represented the family of a victim of a fatal crash caused by the General Motors ignition switch defect. Based on documents obtained over 18 months of discovery, Cooper warned NHTSA that GM had known about the defect for nine years and that it was only recalling a tiny fraction of the vehicles affected by a low torque condition that could cause the ignition switch to rotate out of run and into accessory position, causing the vehicle to lose power brakes and steering and disabling the airbag. He requested NHTSA that NHTSA open a Timeliness Query, which it did – but without ever acknowledging Cooper’s contribution. Petty and stupid, to boot.

The plaintiffs’ bar, will no doubt welcome NHTSA’s change of heart and have lots to say about it. We don’t believe that automakers will be as enthusiastic. But, how will they argue for the right to keep safety problems from the public? Fortunately for them, an enforcement guidance document doesn’t compel litigants to help NHTSA, but it does encourage them. Before it issues a final Enforcement Guidance Bulletin, NHTSA wants the public to weigh in on specific best practices with attention to the practical impact, and the relative costs and benefits of implementing various practices.

The civil penalties proposal satisfies a directive of Moving Ahead for Progress in the 21st Century Act is issue a rule “providing an interpretation of these penalty factors,” and to update its regulations to reflect the new increased statutory civil penalty maximums for odometer fraud and for lying to the government. Hoo boy – you could erase the deficit by penalizing manufacturers for all of the lies they tell NHTSA.  

This provision will allow NHTSA to directly levy court-enforceable penalties. As The Safety Record has explained, in the past, the agency could reach settlement agreements with automakers and levy pretty significant fines. But to bring an automaker to court, the agency had to go through the U.S. Department of Justice (See NHTSA Consent Orders and Civil Justice). In this notice, NHTSA argues that “MAP–21 vests authority, responsibility, and discretion in the Secretary to impose civil penalties for violations of the Safety Act.” It is proposing to adopt informal procedures which will allow violators to choose between paying the money immediately, or drag it out for months in an informal hearing.  An automaker’s three choices would be: pay the demanded penalty; provide an informal response; or request a hearing. The agency envisions tasking the Assistant Chief Counsel for Litigation and Enforcement with initiating the proceedings by serving notice of the civil penalty and charging him or her with having violated one or more laws, along with the specific factual allegations and informing the violator of the options for responding.

NHTSA promises that “any assessment of civil penalties will be made only after considering the nature, circumstances, extent and gravity of the violation. As appropriate, the determination will include consideration of the nature of the defect or noncompliance; knowledge by the respondent of its obligations under 49  U.S.C. chapter 301; the severity of the risk of injury posed by the defect or non-compliance; the occurrence or absence or injury; the number of motor vehicles or items of motor vehicle equipment distributed with the defect or noncompliance; actions taken by the respondent to identify, investigate, or mitigate the condition; the appropriateness of such penalty in relation to the size of the business of the respondent, including the potential for undue adverse economic impacts; and other relevant and appropriate factors.”

The Safety Record sees in these notice more signs that playtime is over for the auto industry.

But, strictly speaking, the window for change may be short. The Obama administration and its current pick for NHTSA Administrator Mark Rosekind, have another year at the helm. The next president might not be as interested in keeping the agency’s focus on improving its performance as a public health agency, so hopefully the agency will keep moving forward.

NHTSA Consent Orders and Civil Justice

NHTSA started the week with a bang – wresting from a formerly defiant Fiat Chrysler its signature on a detailed Consent Order, admitting that it violated the Safety Act in myriad ways, agreeing to pay a $105 million fine, buy back some unremedied recalled vehicles and allow a Special Monitor to look over its shoulder.    

Since May 2014, when General Motors signed a Consent Order in the ignition switch defect now officially associated with 124 deaths and 269 injuries, the agency has wrangled 10 such agreements with manufacturers – large and small, suppliers and equipment manufacturers. That’s a Consent Order every six weeks.

And these settlements are not the namby-pamby compromises of as recent vintage as June 2013, when the agency quietly closed its inquiry into Ford’s failure to launch a timely recall. Ford agreed to pay a $17.3 million and NHTSA agreed not to publicize it to make a very embarrassing and unpleasant bit of business go away.

[Ford was fined for failing to recall 2001-2004 Ford Escape and Mazda Tribute vehicles to correct an earlier recall repair to the cruise control cable. Ford had first recalled the vehicles in December 2004 for an accelerator cable that could migrate out of position and become stuck in a wide-open position. Unfortunately, if the repair wasn’t done incorrectly, it could increase the potential for that very dangerous condition. Ford knew it had a problem because by October 2005 it issued a Technical Service Bulletin warning service techs that a failure to follow the correct repair procedures could make things worse, and admonished dealers that all vehicles in their inventory, along with recently delivered vehicles had to have the repair – the installation of a newly designed accelerator cable. Ford did file the TSB with the Recall Management Division, but did not bother to share this news with current owners. The RMD accepted the paperwork without further comment. Nothing happened until 2012 when the Center for Auto Safety filed a petition after the horrific death of 17-year-old Saige Bloom. Bloom was driving her just-purchased 2002 Escape back home when she died in an unintended acceleration crash in Payson, Arizona, with her mother following in another car.  It had only had the first recall repair. (If you want to be thoroughly depressed read NHTSA’s “Tough” Stance on Ford Recall – Eight Years Too Late.)]

So the money looked serious. But, as both parties to the agreement had acted abominably, the settlement language was laden with contingencies such as:

“WHEREAS, information supplied by Ford during the Preliminary Evaluation supports a tentative conclusion that Recall 12V-353 may have been untimely.”

Eighteen months later, the agency and its new Administrator Mark Rosekind were publicly bragging that “in 2014 alone, NHTSA issued more than $126 million in civil penalties, exceeding the total amount collected by the agency during its forty-three year history.” We are just finishing the seventh month of 2015 and the agency has levied $230 million via Consent Orders alone– pushing double 2014’s total.

The 10 Consent Orders are:


May – GM fined $35 million failure to submit timely recall in ignition switch defect
Oct. – Ferrari fined $3.5 million for a failure to submit Early Warning Reports 
Aug. — Hyundai-Kia fined $17.3 million failure to submit timely recall in a brake defect


Jan. Honda — $70 million for failure to submit Early Warning Reports
Feb. Ricon — $1.7 million for continuing to sell defective wheelchair lifts, while recalling the lifts to remedy a  fire hazard
March – Graco fine $10 million for failure to submit timely recall in child seat buckle defect
May –Takata civil penalties held in abeyance. The supplier failed to launch nationwide recalls in airbag inflator defect.
July 10 Forest River $35 million for failure to submit Early Warning Reports and failure to submit timely recall in two cases
July 10 Spartan Motors $9 million for failure to submit Early Warning Reports and failure to provide timely remedies in three recalls.
July 20 Fiat Chrysler Fiat $105 million for a variety of failures in 23 recalls

Consent Orders vs. Settlement Agreements

Consent orders are a relatively new enforcement strategy for the agency. The National Highway Traffic Safety Administration administers the Safety Act, and is authorized to levy civil penalties for its violations, but it cannot compel an automaker to pay them unless the agency goes to court. And, to take that route, the transportation department must do so through the U.S. Attorney General and the Department of Justice.  

In the past, NHTSA eschewed litigation and settled for a compromise – civil penalties in the interest of expediency. Settlement agreements allowed the automaker to deny any wrongdoing, pay the money and go about its business.

Take, for example, in the December 2010 $16 million settlement agreement with Toyota over its decision to wait year recall U.S. pick-up trucks of defective tie rods. In October 2004, the automaker disclosed to NHTSA that it had recalled Hilux and Hilux Surf vehicles sold in Japan for defective relay rods – but not its U.S. counterparts, Toyota 4Runner, the Toyota Truck and Toyota T100. The rods had a tendency to snap, leaving the driver with no steering controls. But Toyota blamed it on driving conditions unique to the Japanese market and said it had no U.S. reports. On September 6, 2005, Toyota finally recalled the defective steering relay rods on its U.S. Toyota pick-ups. Litigation, however, revealed that Toyota had actually received at least 44 reports in the U.S. since as early as 2000, including crashes involving rollovers and injuries, as well as lots of warranty repairs for broken relay rods.

NHTSA had Toyota dead to rights. The automaker clearly lied and straight-up violated the timeliness provisions of the recall regulations, but it was allowed to formally assert its innocence on the record– as it was in its April 2010 $16.4 million settlement with NHTSA for failing to recall sticky accelerator pedals in the U.S., when it had done so in Ireland and the UK and its December 2010 $16.4 million settlement for failing to launch a timely pedal entrapment recall.

NHTSA’s half-a-loaf solution got it a few headlines, but industry still had the upper hand. Settlement agreements appeared to have no deterrence effects – they were bad for safety; and actively injurious to civil litigation victims who suffered great harm from defects that were remedied at industry’s leisure.

Consent orders are very different in substance, tone and legal muscle. For one, they are court-enforceable. Second: denials of wrongdoing are out. Third: fines are only one aspect of the penalty. In these Consent Orders, NHTSA extracted agreements from automakers to perform all kinds of actions from buybacks to the installation of Special Monitors, reports outlining plans and procedures for the “aggressive assessment of defect trends.”

Child seat maker Graco, for example, was given a long list of remedial actions it is required to take, including the development of improved safety messaging, a scientifically tested program to increase the effectiveness of consumer product registration, and increased consumer participation in recalls and to sponsor an annual industry meeting with safety advocates on defect trends in child safety seats.

Allan J. Kam, a retired agency senior enforcement attorney, observed that NHTSA’s use of a Special Monitor in the case of Chrysler Fiat may be the agency “trying to leverage its investigative activities given its limited manpower and resources.”

“This technique puts an obligation for a lot of the legwork to be done by someone other than the Office of Defects Investigation,” he says. “The staff of ODI is overworked and understaffed, and is about the same size as when I came to work for agency in 1975. In the intervening 40-plus years, the size of fleet and the complexity of the vehicles has increased exponentially.”

The Beginning and the Beginning of the End

The last fire-breathing NHTSA administrator was Joan Claybook, who took an aggressive enforcement stance from 1977 to 1981.  Where the Reagan administration tried to pull every last tooth from government regulators and regulations without any anesthetic, the Clinton administration applied marketing. In 1993, President Bill Clinton and Vice President Al Gore launched the Re-Inventing Government Initiative. Regulatory heads were ordered to cut obsolete regulations, reward results, get out of Washington to the grassroots and “negotiate, don’t dictate.”

Gore not only authored the initial report, the National Performance Review, he led the subsequent effort, the National Partnership for Reinventing Government. Agencies were to apply customer service principles to their work and form “regulatory partnerships.” The intent of promoting government-industry cooperation over conflict in service to providing citizens with clean air and water, untainted food and safe products was good. In practice, however, Gore’s the-wolf-shall-dwell-with-the-lamb vision of government-industry relations seemed only to sharpen industry’s appetite for mutton—at least in the auto world.

In the two decades that followed, NHTSA rarely issued a civil penalty. NHTSA forbore all manner of disrespect and flouting of regulations – Part 573 Notice of Defect and Noncompliance submissions in which manufacturers claimed there was no safety defect, and its recall remedies were actually customer satisfaction campaigns. Missing discovery-of-the-defect chronologies were the norm. When NHTSA proposed to disallow automakers’ blatant attempts to use the (49 CFR) Part 573 to draw a cloak of immunity around themselves in litigation, they screamed that it wouldn’t do recalls at all, kicked and held their collective breath until NHTSA obligingly dropped it.

Manufacturers grew relaxed about their mandated Early Warning Reporting obligations. In the face of industry resistance, the agency resorted to cutting bad safety deals – like the ornamental trailer hitch Chrysler Fiat agreed to add to its Jeep Grand Cherokee and Liberty vehicles that in no way will keep their exposed fuel tanks from exploding in rear impacts – when it did anything at all.

But the increasingly rapid cycle of safety crises – Toyota Unintended Acceleration in 2009, the GM ignition switch scandal in 2014; Takata airbag inflators in 2015 was battering the hell out of NHTSA in Congress and in the press. It looked incompetent, apathetic, weak. And it couldn’t go to the Hill and make a case for more resources without flipping that narrative.

It’s hard to pinpoint the exact moment that the agency had tired of its role as industry concierge, but The Safety Record Blog first smelled smoke in January 2014, when the agency took the rare step of demanding that Graco recall more than 5.6 million rear facing infant, convertible and booster seats for buckles that refused to unlatch. On January 14, 2014, the agency it sent a recall request letter, pushing hard against Graco’s assertions that there was no safety problem, and it was their customers’ fault for letting the kiddos drink juice in car seat, gumming up the works. It threatened to go to an even rarer Initial Decision.

Graco, only inclined to recall some of the affected models, submitted a Part 573 with all the caveats manufacturers had been routinely adding. Recall Management Division Chief Jennifer Timian went after Graco, hammer and tong. She called its Part 573 “seriously deficient in numerous respects;” its language and content “incomplete and misleading, to both the agency and consumers,” and told Graco to try again.

Graco’s continued defiance earned it a Timeliness Query and Special Order in March in which it was compelled to explain why it had failed to recall infant seats with the same harness buckle. By July 2014, Graco threw in the towel and added another 1.9 million seats to the March recall. Graco’s resistance earned it its very own $10 million Consent Order. (see Graco’s Perception Problem)  

While The Safety Record Blog has been among the agency’s most vociferous critics, we are heartened to see this new enthusiasm for enforcement. The use of Consent Orders with provisions that call upon violators to take corrective actions is a very positive step. The challenge will be for NHTSA to ensure that violators fulfill the terms of the these orders, even as it will, no doubt, issue more in the future. 

Thirty four years is a long time to wait for the pendulum to swing, but, for now, the momentum is going in the right direction.

Former NHTSA Administrator Strickland Gets Part 9 Spanking

When David Strickland went directly from representing industry’s interests as the Administrator of the National Highway Traffic Safety Administration to representing industry’s interests as a member of the Washington D.C. lobbying firm Venable, LLC, he was part of a proud agency tradition of lending the dignity of their public offices to private commercial interests.

The list of former NHTSA officials advising manufacturers or testifying on their behalf is long. (See Strickland Takes Express to Lobbytown) The list of those who have been barred by federal rules and a long-established practice is much shorter, but David Strickland got on that list, too, when an agency lawyer barred him from offering expert testimony in Sachs v. Toyota, a consumer economic loss class action lawsuit in a California Superior Court “alleging that Toyota’s design and sale of its keyless ignition system do not contain sufficiently robust safeguards to prevent drivers from forgetting to turn off the engine before exiting the vehicle.”

Toyota retained Strickland, who was officially designated as an expert in mid-May, to testify on the agency’s efforts regarding FMVSS 114 Anti-Theft and Rollaway Standard – the regulatory and enforcement efforts of NHTSA generally, and Toyota’s efforts to ensure compliance, specifically. Toyota is not the only automaker with a keyless ignition design that allows rollaways and does little to mitigate the carbon monoxide hazard. But it is certainly leading the pack in known deaths – six out of 15 – attributed to CO poisoning that occurred when owners of vehicles with keyless ignitions left their vehicles running.

In a scathing decision letter, Tim Goodman, Assistant Chief Counsel for Litigation and Enforcement, dismantles Strickland, limb by limb.

“We find that there is no basis upon which the Agency should grant an exception to its general prohibition on expert witness testimony to allow Mr. Strickland to testify in this matter. The Agency does not find that granting a deviation from the general prohibition would not potentially interfere with matters of operational necessity.  Likewise, it is impossible to maintain the appearance of impartiality of the Agency among private litigants – one of the three objectives specifically identified by the Kaplan Memo as relevant here – when one of those litigants has the former NHTSA Administrator testifying on its behalf."

And, although no such words were used, the decision fairly seethed with “The nerve of this guy!” 

Former NHTSA employees cannot actually raise their right hands and swear to tell the truth, the whole, truth and nothing but the truth about agency actions. For the last two decades, Part 9 of the Code Of Federal Regulations, which outlines the procedures governing the testimony of federal employees in legal proceedings, along with a 1994 memo authored by former NHTSA counsel Stephen H. Kaplan make the parameters pretty clear – one can talk generally about the agency’s policies or specifically about issues in which you weren’t personally involved without seeking the agency’s permission. But opining on matters directly related to your actions while on the job with the agency is a big no-no, unless you can clear a very high bar.

The reasons for this caution are obvious to most. As Part 9 says: the rules intend to “minimize the possibility of involving the Department in controversial issues not related to its mission; maintain the impartiality of the Department among private litigants; avoid spending the time and money of the United States for private purposes; and to protect confidential, sensitive information and the deliberative processes of the Department.

The Kaplan memo was written in the wake of a lawsuit brought by former Administrator Joan Claybrook and public interest lawyers Ben Kelley, who worked for NHTSA in its earliest days, and David Biss, a former NHTSA scientist who managed research programs to support rulemaking. The suit challenged a new beefed up version of Part 9, which brought former NHTSA employees under its authority and essentially precluded any testimony about NHTSA by its former employees. As Biss recalls, the amendments were at the behest of then-Administrator Diane Steed, who wanted to shut down any former NHTSA employees challenging automakers’ preferred prima facie argument that if NHTSA approved something, or closed an investigation with no defect finding, or if a vehicle met the federal safety standard, a vehicle was therefore safe. The plaintiffs sought a declaratory judgment against the sweeping and Draconian amendments, but the case was settled and the plaintiff accepted the Kaplan memo as a clarification. It has been used as a codicil to the regulation ever since.  

The many NHTSA senior employees now working in the auto sector have understood pretty well the rules surrounding and the limits of their expert testimony. (Even, presumably, Ms. Steed, who made a living post-NHTSA supporting industry.) Sadly, not David Strickland.

Employees who want to testify about “information acquired in the course of an employee performing official duties or because of the employee’s official status must seek a waiver from the agency in advance,” Goodman wrote. Strickland thought he’d just wave the Kaplan memo and dispense with the formalities. Instead of seeking authorization, Strickland called to seek assurances from John Donaldson, the agency’s Assistant Chief Counsel for Legislation and General Law, and it was all good until about a month before the trial, when the plaintiffs in Sachs objected to Strickland as an expert witness.

Goodman’s decision shut that one right down: Donaldson does not handle Part 9, the Assistant Chief Counsel for Litigation and Enforcement does; a phone call doesn’t cut it, and by the way, Donaldson doesn’t remember talking to you.

Toyota needed a hurry-up, quick-quick decision, and Goodman gave them one that said: No. No. and No. Strickland has withdrawn from the case. (But not without delivering an expert report, at no doubt, premium prices.) The last Administrator ushered out of the lucrative expert testimony business by Part 9 concerns was Jerry Curry. In 1997, agency lawyers informed Curry, another train-wreck of an administrator, that regulations prohibited him from testifying in Bronco II cases because he shut down the agency’s investigation into Ford Bronco II rollovers. He was quoted in an LA Times story saying he would no longer testify because he didn’t need “the grief.” We imagine that the family and friends of Bronco II rollover fatalities felt the same way.

Strickland argued that during his tenure as NHTSA Administrator he “did not participate in any testing, testing decisions, compliance reviews or any Agency actions regarding the Toyota Smart Key System,” nor was he “briefed on any Agency activities regarding FMVSS compliance actions concerning keyless ignitions.” He knew nothing about the issues raised in Sachs until Toyota came calling. Strickland allowed that he did have “general involvement regarding FMVSS 114, including the issuance of two NPRMs that partially involved FMVSS 114. . . However, Mr. Strickland opined that his anticipated testimony would not implicate his participation in the review process for those NPRMs.”

But Goodman looked at the same facts and came to the opposite conclusion: Strickland was directly involved and personally involved in aspects pertaining to FMVSS 114, from rulemaking to compliance, and that he planned to testify specifically on matters that lay at the heart of Sachs.

"Mr. Strickland does not propose to rely on his general expertise or knowledge acquired during his employment with the Agency. Instead, he intends to utilize specific information obtained through his direct participation in events related to the rulemaking process and policy considerations for FMVSS 114. Mr. Strickland’s June 8, 2015 expert report and deposition testimony make clear that Toyota offers him not as a "former employee who may rely on some general expertise, or knowledge acquired while that individual worked for the Department," as explained in the Kaplan Memo, but for the precise opposite purpose – to provide specific testimony regarding specific rules promulgated during his tenure as Administrator and their specific application to Toyota products. In fact, Mr. Strickland is specifically designated to testify regarding NHTSA’s evaluation of, and Toyota’s interactions with NHTSA regarding, the Toyota Smart Key” System.

As Goodman noted, the combination of Strickland and Toyota is particularly toxic, given the past history:

“As you are well aware, the Agency has been roundly criticized for its relationship with Toyota in terms of recent enforcement actions, particularly regarding unintended acceleration. Given this history, Mr. Strickland’s testimony, as a former NHTSA Administrator, describing Toyota’s actions or conduct in this matter with approval, will likely diminish the Agency’s ability to pursue a vigorous enforcement review of Toyota moving forward.”

That relationship includes:

Allowing two former ODI staffers, Chris Tinto, Toyota’s Vice President of Regulatory and Technical Affairs, and his assistant manager Chris Santucci, to use their institutional experience to minimize the effect of any Office of Defects Investigations’ past probes of Toyota UA. Always remember and never forget the famous May 2009 email Santucci sent to a colleague about his progress in the negotiations with the agency to close a defect petition into UA Lexus events: “I have discussed our rebuttal with them, and they are welcoming of such a letter, They are struggling with sending an IR letter, because they shouldn’t ask us about floormat issues because the petitioner contends that NHTSA did not investigate throttle issues other than floor mat-related. So they should ask us for non-floor mat related reports, right? But they are concerned that if they ask for these other reports, they will have many reports that just cannot be explained, and since they do not think that they can explain them, they don’t really want them. Does that make sense? I think it is good news for Toyota.”

Partnering with Toyota in the 2010 joint NHTSA-NASA Engineering Safety Center investigation of Toyota UA, during which Toyota failed to provide key parts of its software code and Toyota’s science-for-hire firm Exponent provided a warranty analysis used to dismiss physical evidence of a potential root cause for unintended acceleration. Taking Toyota’s word for it that if its diagnostic system failed to detect an electronic anomaly, there could be no vehicle misbehavior.

And the cherry on the sundae: Toyota’s $1.2 billion fine and a guilty criminal plea on one count of wire fraud for all the lies it told NHTSA about the floor mat entrapment and sticky pedal recalls.

All under the David Strickland’s and former DOT Secretary Ray LaHood’s watch. We’re sorry, Toyota, we know that you’ve spread around an awful lot of cash to make important people pretend that there is nothing wrong with your cars. But, Ray’s currently carrying water for the clients of DLA Piper, a vampire-squid of a law firm with 3,500 lawyers across the globe, which mostly contributes to Democrats. And, Strickland? He’s busy reading up on Part 9.

Dawn of a New NHTSA Era?

Flexing its new tough-on-automakers muscle, the National Highway Traffic Safety Administration held a rare public hearing last week to highlight Fiat Chrysler’s dismal recall record. The hearing was short, statements were read into the record, and that a large fine will be levied against Fiat Chrysler (FCA) seems a foregone conclusion. It’s another signal that NHTSA wants to prove it’s going to ramp up enforcement activities after years of neglect and ongoing recall crises that have left the agency’s credibility in tatters.

The evidence NHTSA presented at the hearing, culled from its own investigation and FCA’s responses to its special order request, is damning: In 23 recalls issued between 2013 and May of this year, FCA failed to notify owners about a recall, took months or even years to supply the parts, provided defective replacement parts, lied to NHTSA about the extent of the recall – and sometimes all of the above.

In a series of recalls (13V527, 13V528, and 13V529), FCA recalled about one million Dodge Ram trucks for tie rod ends that could break unexpectedly, causing loss of steering. FCA filed its recall notices with NHTSA on November 6, 2013, and notified owners sometime in January (NHTSA pointed out that FCA gave differing dates in its communications). But after that, NHTSA began receiving complaints of unavailable parts. It turns out that the replacement parts were also defective, and FCA had quietly told the dealers to return them – without telling NHTSA. Although the defect has allegedly been resolved, with limited parts availability many owners are still waiting for a fix. In the meantime, FCA documents confirm that as of March 2015, it had received reports of 32 crashes, with 20 injuries and one death. At least one FCA customer service rep told worried owners there had been no crashes related to tie rod failures.

In one of the tie rod recalls, FCA instructed dealers to immediately replace the tie rod end if they saw a misaligned steering linkage, but if no misalignment was found, owners were told they could come in for a replacement when they received a follow-up letter (apparently as a way to manage parts shortages). That might have worked out okay if FCA had a system that could distinguish between vehicles that had been repaired and vehicles that had only been inspected. But it didn’t – any vehicle that was examined was marked as having received the recall repair; thus they had no way of knowing which trucks were fixed. So FCA was forced to send new letters in May 2015, telling all owners to bring their vehicles in to have the recall completed.

In another example, FCA initiated an October 2012 recall (12V474) of 48,000 Dodge Ram trucks for a pinion gear retaining nut that could come loose, allowing the driveshaft to fall off, causing axle lock up and loss of vehicle control. It subsequently expanded the recall in 2013 (13V038) and 2014 (14V796) after NHTSA found that other model years were experiencing the problem.

FCA didn’t have replacement parts when it initiated the recall, but it announced nine months later that parts were available. NHTSA says that during that time, internal FCA documents show the automaker learned of three crashes, including two with injuries. Two years after FCA launched the recall, the agency says it is still receiving complaints from owners who have been unable to obtain the part.

NHTSA noted FCA frequently failed to file defect notices within the required five-day timeframe. For instance, in October 2014, a supplier notified FCA of a production process issue that had been linked to transmission shift failures, but FCA did not initiate the recall (15V090) until February.  Similarly, in January 2015, FCA learned that some trucks with a maximum speed of 106 mph had tires that could safely be driven only up to 87 mph – it didn’t initiate a recall until May 12. FCA offered no explanation for the delays.

In another instance, FCA failed to properly identify the recall population. FCA missed 65,000 vehicles that should have been included in Recall (15V041), and only added them 14 weeks later after NHTSA realized they were missing.

The information FCA did send to the agency was frequently incomplete, sometimes omitting a schedule for when notices have been or will be sent or including an incomplete chronology.  The company also repeatedly failed to send NHTSA its communications with dealers – at least 32 dealer communications in 12 recalls – preventing the agency from making sure dealers are receiving complete information. The agency also rapped FCA for failing to send recall notices to consumers within the 60-day period after filing its Part 573 defect notices.

Ironically, NHTSA framed its actions in the Jeep Grand Cherokee/Jeep Liberty recall debacle as an example of its new enforcement rigor in the face of industry intransigence.  But, the moral of that story is actually something altogether different.

Readers may recall the looming showdown over the vehicles’ rear-mounted fuel tank that left them vulnerable to explosion in rear impact crashes.  The defect has been linked to more than 250 deaths, including that of 4-year-old Remington Walden, whose family was recently awarded $150 million by a Georgia jury.

The Center for Auto Safety had been pushing NHTSA to address the safety hazard since 2009, and after several years of investigation, NHTSA formally requested that Chrysler conduct a recall. The automaker denied there was a problem and publicly refused to launch one. Instead of a confrontation, then-NHTSA administrator David Strickland, DOT Secretary Ray LaHood and Fiat CEO Sergio Marcchione (see Crazy Ray’s Giveaway!) met in Chicago and cut a deal. FCA got off with a “voluntary campaign” to add a trailer hitch – rather than relocating or shielding the tank.  

In its presentations, NHTSA noted that it “took the unusual step” of performing its own crash tests after FCA refused to prove the hitch would be effective. NHTSA found the hitch provided safety benefits in low and moderate speed crashes despite FCA’s own description of the “fix” as “an opportunity to incrementally improve the performance of certain of the Subject Vehicles in certain types of low-speed impacts.” 

The agency touted its July 2014 Special Order request to FCA pressing the company for explanations on hitch availability. But NHTSA actually learned in January 2014 that FCA had only just started ordering the hitches. The agency didn’t get around to demanding an explanation until six months later.  

The campaign itself wasn’t actually launched until August 2014, four months before Kayla White, a 23-year-old who was eight months pregnant, died in a fiery crash weeks after trying to have the hitch installed only to be told the part wasn’t available. NHTSA revealed at the hearing that the completion rate for the recall is 6 percent for the Grand Cherokee and 32 percent for the Liberty. 

But, it’s a new era, with new players. Fiat asked NHTSA to cancel the hearing, citing its newfound cooperation. NHTSA said no. Instead of several days in 2013 of media fireworks over NHTSA’s demands and Chrysler’s refusals, this hearing lasted for a dry two hours. FCA provided no defenses.

NHTSA made great use of an opportunity to reinforce a new enforcement reality. Holding automakers accountable is step one and a strong signal that NHTSA may be dumping its old “regulatory partners” – industry – for the ones it was supposed to have had all along – the public.



Inspector Agrees with SRS: NHTSA Ain’t Right

Inspector Agrees with SRS: NHTSA Ain’t Right

Today, we salute the good men and women of the Department of Transportation’s Office of Inspector General (OIG) for putting their official imprimatur on concerns that The Safety Record has been raising for years. The report, released to selected press on Friday, and to the rest of us slobs on Monday, was entitled: “Inadequate Data and Analysis Undermine NHTSA’s Efforts to Identify and Investigate Vehicle Safety Concerns.”

While the OIG said it in a much nicer way than we ever did – the 42-page report was a laundry list of issues we have long complained about: ODI’s lack of process, the prioritizing by chances of recall success rather than threat to safety; the agency’s penchant for shrouding everything in secrecy; the missing audits on manufacturer’s EWR audits and the lack of enforcement against the scofflaws.

The framework for the report was the GM ignition switch defect, which rapidly grew from a small recall in February 2014 with little information about how the automaker discovered the defect to a Greek tragedy in which the myriad institutional failing of twin protagonists NHTSA and GM took center stage at various hearings. After Deputy Administrator David Friedman testified in an April 2014 U.S. House hearing that an internal review of ODI’s policies and practices was underway, DOT Secretary Anthony Foxx ordered an external review.

EWR data was immediately flagged as a problem – only 24 component categories for 15,000 components, with no coding guidance for manufacturers, “resulting in inconsistent reporting and data that ODI investigative chiefs and vehicle safety advocates consider to be of little use.” Hmm. That sounds familiar.

In October 2012, The Safety Record published Further Tinkering with EWR Unlikely to Make it More Useful, decrying the agency’s proposal to make to add new EWR reporting categories relating to emerging technologies. We highlighted the observations of Alice and Randy Whitfield, who use EWR data extensively, have published their methodology in a peer-reviewed journal and have sued NHTSA successfully for access to EWR data.

"We suggest the implementation of a coding system for light vehicle deaths and injuries claims which links the category of the allegedly failing component with a separate code denoting the type of failure that is alleged. Such a system would take careful planning to propose and to put into practice. But it would be better to begin this planning now than to continue another nine years with an early warning system so lacking in necessary detail that NHTSA’s own analysts don’t rely on it for anything more than performance in a supporting role.”

Then the OIG rapped ODI for failing to have EWR audit procedures in place to verify that manufacturers submit complete and accurate early warning reporting data. We’ve been reporting the manufacturers are not submitting mandated EWR data since we discovered in February 2013 two manufacturers had neglected to file some death and injury claims. We had to sue the agency to find out what action, if any, that officials took to enforce the law. Hint: pretty much nothing. Here are some of the markers The Safety Record began laying down for the agency’s path forward nearly two years ago. You’re welcome:

November 2013 Safety Research & Strategies Sues U.S. DOT in (Another) FOIA Dispute

April 2014 Elective Warning Reports: When Manufacturers Don’t Report Claims

October 2014 October 2014 Elective Warning Reports Redux

The OIG criticized NHTSA for failing to follow “standard statistical practices when analyzing early warning reporting data, such as establishing a base case for what statistical test results would look like in the absence of safety defects.” Actually, NHTSA has been turning its nose up to standard statistical practices in a whole lot of contexts, and we’ve been pointing this out for a while. You can read about it these stories:

July 2011 How NHTSA and NASA Gamed the Toyota Data

September 2011 NHTSAball: How the Agency Plays the Game

And non-profit, The Safety Institute, (founded by Safety Research & Strategies president, Sean Kane), established The Safety Vehicle Watch List for the sole purpose of using peer-reviewed analytic methods to bring a sane process to the task of identifying potential motor vehicle defects that merit further review, using EWR  and the Fatality Analysis Reporting System.  

The report also mentioned two of our longstanding bete noirs: lack of transparency:

April 2012 What NHTSA Doesn’t Want You to Know about Auto Safety

 And lack of process:

September 2012 The Pedal Error Error  

We’ve got more links, docket comments, and lawsuits, but enough about our prescience. The report starred in the first panel of today’s U.S. Senate Commerce Committee hearing updating the members on the Takata recall efforts and NHTSA improvements. Sen. Claire McCaskill (D-MO) – ever so direct – distilled the picture painted by the OIG as “blatant, incompetent, mismanagement…if NHTSA isn’t clear about when to open an investigation we might as well shut it down.”  NHTSA watchdogs Senators Edward Markey (D-MA) and Richard Blumenthal (D-CT) used the occasion to promote their NHTSA EWR and recall improvement bills. Markey also pressed Administrator Mark Rosekind to support a rulemaking to ensure EWR transparency.  

What does the OIG report really tell us? Things may have gotten bad enough to constitute a tipping point.

Industry has had its way with NHTSA for a long time, telling it in various ways to stick it: outright lying about defects, failing to meet reporting requirements, taking a tone in their Part 573 Notices of Defect and Non-Compliance. You name it – any way they could disrespect the agency, they did it. And the major players found willing partners in the last NHTSA Administrator David Strickland, who suffered whiplash during his hasty and circular exit from government to industry, and DOT Secretary and technical illiterate Ray “Nobody-Cares-More-About-Safety-Than-Ray-LaHood” LaHood, who solved defect disasters with political deals that had zero impact on safety.

But back-to-back GM and Takata crises, so soon after Admiral LaHood (un)successfully steered the agency past the shoals of Toyota Unintended Acceleration, have necessitated a severe course correction. Administrator Rosekind appears to be well-suited to clean up their messes. He assured the senators that NHTSA had identified more than twice the number of process improvements as the OIG – a score of NHTSA 44 to the inspector’s 17. The agency accepted Inspector General Calvin L. Scovill III’s suggestions and had already knocked some of them off the list.

Rosekind said today that NHTSA needed to question its assumptions about the information automakers supplied it and “We need to question our assumptions.”

We dare not hope that such a radical notion, for example, might result in the chucking of the agency Bible of assumptions on unintended acceleration, the so-called Silver Book. But the OIG’s break-down of the breakdown in ODI’s operations is a good place to start.


Response to NHTSA’s “Path Forward”

NHTSA’s Path Forward has some refreshing acknowledgements of the agency’s problems. But it still soft-pedals why they have gone from one defect crisis to another.  It is notable what is missing: Any mention of the importance of transparency and acknowledgement of the real depth of the culture that has kept the agency from objectively investigating defects.

For example:

In clinging to preconceived notions, NHTSA investigators routinely reject the findings and analyses from outside of the agency or industry.  While the report mentions the Wisconsin trooper, it again ignores the uncomfortable fact that a plaintiff’s lawyer requested the Timeliness Query that plainly informed them that GM had covered up the defect for years and that it had not recalled all affected vehicles. 

The agency’s lack of transparency continues to undermine public confidence in its competence.  The data and documents often used by the agency to reach its conclusions are unavailable to the public preventing validation of their findings.  Of concern – the report states: 

“NHTSA will reach out to the relevant OEM through a pre-investigative notification of interest, promoting OEM accountability by creating a record that NHTSA has informed the OEM of the issue and reiterating the OEM’s responsibility to provide relevant and timely information about the issue to the agency, including information critical to the potential safety system interactions of the issue.”

NHTSA has previously withheld materials it deems “pre-investigative” from the public while creating substantial records of problems that remain out of view. Will this continue?  

It’s encouraging to see that NHTSA is holding the industry accountable to a higher standard.  The bar was set too low for too long.