By Jamie L. LaReau, DETROIT FREE PRESS
July 22, 2019
The nation's top vehicle safety watchdog lacks expertise to properly assess defects and must rely too much on car companies, safety advocates say.
They contend that the National Highway Traffic Safety Administration is reluctant to order recalls when it will face a legal fight because of its small staff and tight budget, and complain about the number of officials whose next job after NHTSA is in the auto industry.
But those were the “old days,” the agency’s boss told the Free Press last week. Since 2016, the agency has restructured, added staff with expertise in today’s car technology and become more proactive, she said. In fact, 2015-18 are the top four years for recalls in U.S. history.
“Automakers share information with us, but I don’t think we just hear information and hang up," said Deputy Administrator Heidi King, who awaits Senate confirmation to be NHTSA administrator. "If there’s something I’m uncomfortable with, neither I nor anyone here is hesitant to pick up the phone and call and ask more questions. We take very seriously that we get it right.”
The proof lies in the future. In some of the biggest vehicle recalls in history, such as Firestone tires on Ford Explorer SUVs, Toyota's unintended acceleration crisis, General Motors' faulty ignition switches and Takata air bags, NHTSA did not take action until after crashes killed or injured many people.
"GM told them that the ignition switches were not an issue. Right," said Janette Fennell, founder and president of safety advocacy agency KidsAndCars.org, referring to a defect ultimately linked to 124 deaths. "You don’t believe the fox when he’s in the henhouse."
Said Sean Kane, president of Safety Research & Strategies, “They’re always going to be behind the curve. The big bang for this agency is setting good standards. That would help minimize the number of problems that would end up in the enforcement side or defect side.”
The Free Press examined NHTSA's record and interviewed the agency's top administrator in the wake of our Out of Gear investigation of Ford Motor Co.'s faulty transmissions on Focus and Fiesta sedans starting with the 2011 Fiesta. In that case, federal regulators in 2014 conferred with Ford and declined to launch a formal investigation or order a recall for transmission repairs, despite thousands of consumer complaints to the agency that included accounts of 50 injuries.
Typically, NHTSA does a defect investigation in cases of a loss of motive power — the energy used to drive the car — without warning to the driver that results in the inability to control the car, said Kane.
"But the waters are very muddy and inconsistent there," said Kane, whose company has studied the Ford transmission problems.
"Ford would argue that the driver gets notice, a service light comes on," said Kane. "NHTSA might accept that, even though that’s not adequate."
Such a warning light was added to the Fiesta and Focus, but not until 2015 "to more easily satisfy NHTSA's requirements," Ford documents from the time show.
Kane said the agency would be reluctant to act because of the high cost of fixing the millions of cars with bad transmissions. Ford would likely resist, he said.
"Ultimately, NHTSA would have to litigate against a well-funded company that knows the issue inside and out. You’ve got a small agency, small staff and limited resources. Why would they want to pick that fight?" said Kane. "That’s why I say, if you’ve got a big enough defect, you’ll get away with it."
Throw money at it
NHTSA leadership says the agency has become more proactive.
Last year, the agency received 65,000 consumer vehicle questionnaires, about 29,000 of which were safety complaints, said King, who has based her career on risk-management and previously worked as an emergency medical technician who has “held the hands of car-crash victims.”
Since 2016, NHTSA has been revamping its processes to be more proactive in tackling safety problems, honing a more robust and consistent process, said King. The result has been fewer open investigations into potential safety defects because the problems get recalled and fixed, said King. NHTSA presently has 63 open investigations, she said. Last year, the agency oversaw 914 vehicle recalls of a total of 29 million vehicles. In 2017, it oversaw 810 recalls impacting 31 million cars, it said.
Under the recall system, automakers issue voluntary recalls that account for the vast majority of such actions. NHTSA can order recalls if it sees a safety risk and the automaker hasn't acted, though that can be subject to litigation.
“We’re seeing fewer things going to formal investigation because things are going to recall sooner. Once it goes to recall, it’s overseen by NHTSA," said King. "In many cases, we work closely with the manufacturer to raise consumer awareness that the fix is free and fast."
In 2016, for example, NHTSA launched a compliance assistance hotline to educate automakers on safety standards. More automakers are working with their suppliers on recalls now than in the past, she said. The agency has added staff and is hiring to include more engineers and consultants with expertise to "make sure we keep up with changing technology," King said.
“The way we review things now: Members of the team review one another’s work and there’s a culture of open challenge,” King said. “Then, once a week, there is a further level of challenging by looking at the things that are bubbling up in the owners’ reviews."
The agency falls under the Department of Transportation, which also oversees airlines, railroads, trucking, water transit and highway infrastructure to name a few. While the majority of transportation-related fatalities happen in cars, NHTSA gets only 1%-2% of DOT's budget. Last year, the DOT's total budget was $76 billion and NHTSA got just $899 million, according to DOT's website. By comparison, the airline industry got $16 billion.
"Put your money where your problems are," said Fennell, president of KidsAndCars.org. "This has been going on for decades.The budget goes to other agencies."
The agency's budget has been flat over the past few years, but Congress gave it more than requested, King said. It has a big enough budget to effectively do the job largely because the burden to identify a safety defect and initiate a recall lies on the automaker, said King.
“We are an aggressive safety oversight agency,” said King. “That is part of the reason why our budget is lower. We have the investigators who have the ability to bring in information from the manufacturers so we don’t have to do all the research ourselves. If I needed more money, I’d ask for it.”
Joan Claybrook would disagree. She is familiar with NHTSA's thin budget, having run the agency from 1977-81. Its budget should be three times more than it is now to be effective, she said.
"They’ve never really had the money to do the right job, and that includes personnel, equipment and skill," Claybrook told the Free Press.
It also has lacked toughness at the top, said Claybrook, who now works with the Advocates for Highway and Auto Safety, which she helped found in 1989. The NHTSA administrator has "a huge amount of authority," but, she asserted, some leaders have hoped to win a lucrative job at an automaker someday, she said.
In fact, Consumer Watchdog, a nonprofit public interest group, reported in December 2018 that at least six senior safety officials recently left a top job at the agency to work for self-driving car companies.
“You can’t trust regulations to protect our safety when the people writing them land high-paying jobs with the very companies the rules are supposed to cover,” John Simpson, Consumer Watchdog’s Privacy and Technology Project director, said in the December report.
Last year, Uber hired Nat Beuse, a senior NHTSA official. The Consumer Watchdog report noted that Ron Medford, NHTSA's former deputy director, joined Google’s self-driving car program as safety director. Former NHTSA Administrator Mark Rosekind joined self-driving startup Zoox in 2017, and NHTSA’s former Chief Counsel Paul Hemmersbaugh joined General Motors to oversee legal and policy work on automated cars. Finally, David Strickland, also a former NHTSA administrator, is counsel and spokesman for the Self-Driving Coalition for Safer Streets, composed of Waymo, Lyft, Uber, Ford and Volvo.
Jumping from NHTSA to a lucrative private sector job is not a recent development driven by technology. The watchdog group said from 1984-2010 the Department of Transportation inspector general found that 40 officials left NHTSA for jobs with automakers, their law firms or auto industry consultants.
One of the biggest auto safety crises in recent history was the Firestone tire tread separation on Ford Explorer SUVs in 2000. In that case, the tires could fail, leading to rollover accidents. The defect is linked to 271 deaths and 800 injuries in the United States.
Yet NHTSA stalled in investigating it or issuing a recall, said Kane.
"A series of gruesome high-profile crashes and resulting news stories about the safety of Ford Explorers and Firestone tires compelled NHTSA to begin investigating," Kane said in testimony before the National Academy of Science in 2011.
But the agency was alerted to the problem years earlier. In 1998, a State Farm researcher sent an email to the agency detailing 21 cases of Firestone tire failures, the Los Angeles Times reported in 2000. The article said NHTSA ignored the warning and investigators overlooked 26 similar reports that consumers had previously sent the agency.
NHTSA's investigation of the Explorer found no reasons to blame America’s then-best-selling SUV in the tire-related fatal crashes, Kane said in his 2011 testimony.
In August 2000, Bridgestone/Firestone and Ford recalled about 14.4 million tires that were original equipment on Ford vehicles, mainly the Explorer.
After all the recalls for defective tires were announced, Explorer tire-related rollover deaths abated temporarily, then they spiked again, Kane testified. Yet, he said, "A secret investigation of the additional deaths did not result in any further action by the agency."
Kane said the Explorer at the time had an inherent design flaw that increased the risk of the driver losing control of the vehicle at highway speeds. That’s the kind of problem that is expensive to fix, therefore it "tends to be overlooked," said Kane. "So with the recall, the tires were replaced, but did it solve the problem? No."
Compounding the problem was the fact that NHTSA had not updated the standards for stability and handling since 1972 despite the growing popularity of SUVs, he said.
"The roof-crush standard remained in place until 2012," said Kane. "People were being killed because the Explorer roof caved in."
Toyota unintended acceleration
On Aug. 28, 2009, California Highway Patrol Officer Mark Saylor was driving a 2009 Lexus ES350 sedan when he, his wife, daughter and brother-in-law were all killed when the car's accelerator stuck and it crashed into an embankment in San Diego.
The crash was captured on a 911 call made by Mrs. Saylor. At the time of the crash, NHTSA did not have an open investigation of Toyota sudden acceleration, said the Center for Auto Safety, a consumer group.
But beginning in 2001, with the introduction of electronic throttle control in 2002 Toyota Camry and Lexus ES300 cars, consumer complaints had increased by "fourfold" in Toyota and Lexus models, the Center for Auto Safety wrote. NHTSA received five defect petitions, denied four and did not order a vehicle safety recall, according to the Center for Auto Safety.
"The investigations as a whole show significant weakness in the NHTSA enforcement program which Toyota exploited to avoid recalls until the tragic crash in San Diego in August 2009," the Center for Auto Safety wrote in a report.
Toyota ultimately recalled nearly 8 million vehicles in the United States for two mechanical defects. NHTSA has estimated that 89 deaths may be attributable to unintended acceleration in Toyota vehicles in the United States from 2000-09.
For Kane, the crisis arose in part because NHTSA investigators "don’t understand the technology they’re investigating and what they accepted as truth from Toyota in unintended acceleration was grossly incompetent."
NHTSA had not set standards for electronic acceleration control systems, he said.
"Almost every other day, we still get a call from a consumer who’s experienced a Toyota unintended acceleration event," said Kane. "Fortunately, most are occurring at low speeds."
GM ignition switch
On Feb. 6, 2014, General Motors started a recall of 800,000 of its small cars, such as the Saturn Ion and Chevrolet Cobalt, that had faulty ignition switches that could shut off the engine during driving, locking the steering and brakes, ultimately preventing the air bags from inflating in a crash.
GM continued to recall more of its cars over the subsequent months, resulting in nearly 30 million cars worldwide recalled.
But GM knew about the ignition switch defect as early as 2001, while the Saturn Ion compact car was still in development, said the Center for Auto Safety.
Even after receiving reports of deaths and injuries caused by the defect, "GM canceled plans to conduct a broad remedy, instead issuing Technical Service Bulletins in 2005 and 2006 that instructed dealers to respond to owner complaints by advising owners to remove heavy items from their key chains," the Center for Auto Safety wrote in a report.
The public and NHTSA learned about the faulty switches from a lawyer in Marietta, Georgia, named Lance Cooper who had sued GM on behalf of the family of a woman who had died in a crash.
Through depositions of several GM engineers and obtaining reams of documents, Cooper set the stage for the recall, said Kane.
"He did yeoman's work," said Kane. "His work really boxed GM in and GM knew it had to do something. Then, Lance went to NHTSA."
In the end, the faulty switches led to 124 deaths and GM paid $900 million to the U.S. government as part of deferred criminal prosecution agreement.
The Center for Auto Safety wrote, "GM bears full responsibility for not recalling these vehicles in 2005 and changing the design for future models, but NHTSA also bears responsibility for not investigating and ordering a recall by 2007 when it discovered the defect and failed to influence a recall by GM."
When GM CEO Mary Barra testified before the Congress in April 2014, NHTSA's acting Administrator David Friedman was also there. Friedman's written testimony blames GM for not conveying "critical information" to regulators which could have led to recalls years earlier.
But the Center for Auto Safety said it discovered internal NHTSA records that showed the agency learned of the defect through Special Crash Investigations into the advanced air bag systems in 2005 Chevrolet Cobalt compact cars. Then, in 2007, NHTSA talked to GM about the defect and opened an initial evaluation to determine whether a defect investigation was warranted. No formal investigation was conducted, the center wrote in a report.
The report said the agency conducted another evaluation in 2010 with the same result. NHTSA also obtained records of 17 lawsuits and claims from GM on Chevrolet Cobalt and Saturn Ion cars through its Early Warning Reporting System, but it kept the records from the public.
In 2015, the Transportation Department identified a series of failings by NHTSA that allowed millions of defective GM cars to go unrepaired for more than a decade, The New York Times reported at the time.
The department put the blame for the defect on GM, but had "an unusually blunt assessment of mistakes made by regulators," The Times said. For example, the agency admitted it dismissed some clues of the defect and acknowledged that it failed to use its full authority to hold GM accountable.
The audit said NHTSA's Office of Defects Investigation did not ask enough detailed questions to gather information that could lead to detecting defect or failure trends. For instance, it said there are only 15 broad defect codes even though modern vehicles have more than 15,000 parts.
When consumers reported potential defects, NHTSA didn't thoroughly screen the complaints, the audit found. Of the 330 complaints that might come in on an average day, 90% of them are "set aside."
King last week said that's no longer the case.
Thin staffing and inadequate training have been blamed over the years for NHTSA's shortfalls. Fixes have been tried.
- After the Firestone debacle, a new auto safety law was implemented in 2000 that included more money for NHTSA to hire more investigators, the Los Angeles Times reported in 2000.
- The agency made some personnel changes in its investigations office and planned improvements in its data collection too.
- After the 2015 Transportation Department report, NHTSA said it was revising its investigative procedures, stepping up efforts to obtain safety data from automakers and creating an oversight team of outside experts to help instigate changes.
But in July of last year, the U.S. DOT inspector general released a report on NHTSA's management of vehicle recalls that outlined numerous shortfalls.
- NHTSA's process for monitoring for vehicle recalls lacks documentation and management controls.
- It does not ensure that remedies are reported completely and in a timely manner.
- The agency also does not verify recall completion rates.
- It lacks sufficient management to ensure staff assesses risk when deciding whether to use oversight tools to improve recall completion rates.
- Finally, the report addressed how the agency handled the 2014 recall of 42 million vehicles worldwide for potentially lethal inflators in Takata air bags. It said, "while NHTSA expanded its oversight of the Takata recalls in 2015, by increasing the reporting requirements for manufacturers, it did not follow its own procedures to address low recall completion rates for earlier Takata recalls."
NHTSA's lack of consistent procedures not only fails to address defects, but to prevent further damage, said safety advocates.
For example, in 2012, Congress passed a law that required NHTSA to write a regulation by October 2015 that carmakers must put seat belt reminders in for every seat in a vehicle, not just the driver and passenger seats.
NHTSA failed to meet that deadline, said KidsAndCars.org's Fennell. So last year, her group and the Center for Auto Safety sued the DOT. The court made it clear that it expected DOT to publish a proposed rule by Oct. 31, 2018. NHTSA failed again and the date was extended to May 31, 2019.
"And to no one’s surprise, they haven't done that either. I don't know what they're doing," said Fennell. "In that time, thousands of people have died from not being buckled-up in the back seat."
By having strong regulations and operational standards in place, consumers would be safer, said Kane.
"It’s not going to head off a broken part or something that goes wrong in the manufacturing, but if you look at the big crises — the Ford Explorer, GM ignition switches … all of these things, use up a lot of money and time for the agency to handle," said Kane. "If they weren’t handling those crises, the could better handle other defects, but the enforcement side gets snowed under by these crises.”
NHTSA's boss King said the changes it set in motion continue to be tweaked.
“The engineers who do this work have embraced it and challenge one another and if they see a way to improve the system, they own and it and they drive it," said King. "I see a pivot in the culture toward ownership and constant assessment.”
Correction:A previous version of this story included Debbie Hershman as once having served with NHTSA. That information was based on a Consumer Watchdog report and was incorrect. Hershman as chair of the National Transportation Safety Board before going to Waymo.