NHTSA's September Scrutiny

September was a difficult month for NHTSA. During one week alone, a New York Times article blasted NHTSA for failing to investigate a number of defects that later resulted in injuries and fatalities and, ultimately, recalls; the House Energy & Commerce Committee issued a scathing report concerning NHTSA’s handling of the GM ignition switch defect; and Deputy NHTSA Administrator David Friedman was grilled by the Senate Commerce Committee over the GM ignition switch defect and NHTSA’s oversight of the automotive industry generally.

Here are the key points from Deputy Administrator Friedman’s appearance before the Senate committee:

• NHTSA will continue to be more aggressive as it implements the “new normal” (Friedman’s phrase) in addressing defects.
• NHTSA is continuing to push for legislation (the Administration’s proposed Grow America Act) that would, among other things, raise the maximum penalty for violations of the National Traffic and Motor Vehicle Safety Act to $300 million. Some senators want no limit for violations of the Act. (Various bills that would increase the civil penalty maximum, among other things, are currently pending.)
• NHTSA has been increasing its import enforcement activity, working closely with Customs to prevent defective or noncompliant products from entering the U.S.
• There were repeated questions over why NHTSA hasn’t used its subpoena power to obtain information from manufacturers. NHTSA responded that the agency regularly uses a similar power—Information Requests—with success.
• The DOT’s Office of Inspector General has been conducting an audit of NHTSA’s pre-investigation processes, including the activities of NHTSA’s Defects Assessment Division, which reviews service bulletins and customer complaints.
• NHTSA recently advised vehicle manufacturers that it “should never hide critical safety information under the cloak of attorney-client privilege.”
• NHTSA came under questioning over its regional recall policy. Some Senators (and many auto safety advocates) oppose this policy and believe all recalls should be national in scope.
• Senator Markey announced that he reached an agreement with GM on a bill that would require greater disclosure of manufacturers’ early warning data (warranty claims, customer complaints, etc.).
• NHTSA has missed a statutory deadline under the MAP-21 (the Moving Ahead for Progress in the 21st Century Act) for making technical service bulletins available online. The agency attributed some of the delay to copyright issues.
• Deputy Administrator Friedman stated that not all stalls present an unreasonable safety risk, but Senator Blumenthal and others disagreed. Those senators (and auto safety advocates) believe consumers would view any stall as an unreasonable safety risk.
• Going forward, NHTSA will demand that manufacturers provide an analysis of each fatality incident for which NHTSA sends a Death Inquiry (“DI”) letter. Previously, this question was optional, and most manufacturers opted not to provide a response, but the Senate panel (and the New York Times article cited above) criticized NHTSA for giving manufacturers the option not to respond.

An archived recording of the hearing can be viewed on the Senate Commerce Committee website, here.