[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]



 
             H.R. ___, THE MOTOR VEHICLE SAFETY ACT OF 2010

=======================================================================


                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON COMMERCE, TRADE,

                        AND CONSUMER PROTECTION

                                 OF THE

                    COMMITTEE ON ENERGY AND COMMERCE

                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 6, 2010

                               __________

                           Serial No. 111-120


      Printed for the use of the Committee on Energy and Commerce

                        energycommerce.house.gov



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                    COMMITTEE ON ENERGY AND COMMERCE

                 HENRY A. WAXMAN, California, Chairman
JOHN D. DINGELL, Michigan            JOE BARTON, Texas
  Chairman Emeritus                    Ranking Member
EDWARD J. MARKEY, Massachusetts      RALPH M. HALL, Texas
RICK BOUCHER, Virginia               FRED UPTON, Michigan
FRANK PALLONE, Jr., New Jersey       CLIFF STEARNS, Florida
BART GORDON, Tennessee               NATHAN DEAL, Georgia
BOBBY L. RUSH, Illinois              ED WHITFIELD, Kentucky
ANNA G. ESHOO, California            JOHN SHIMKUS, Illinois
BART STUPAK, Michigan                JOHN B. SHADEGG, Arizona
ELIOT L. ENGEL, New York             ROY BLUNT, Missouri
GENE GREEN, Texas                    STEVE BUYER, Indiana
DIANA DeGETTE, Colorado              GEORGE RADANOVICH, California
  Vice Chairman                      JOSEPH R. PITTS, Pennsylvania
LOIS CAPPS, California               MARY BONO MACK, California
MICHAEL F. DOYLE, Pennsylvania       GREG WALDEN, Oregon
JANE HARMAN, California              LEE TERRY, Nebraska
TOM ALLEN, Maine                     MIKE ROGERS, Michigan
JANICE D. SCHAKOWSKY, Illinois       SUE WILKINS MYRICK, North Carolina
CHARLES A. GONZALEZ, Texas           JOHN SULLIVAN, Oklahoma
JAY INSLEE, Washington               TIM MURPHY, Pennsylvania
TAMMY BALDWIN, Wisconsin             MICHAEL C. BURGESS, Texas
MIKE ROSS, Arkansas                  MARSHA BLACKBURN, Tennessee
ANTHONY D. WEINER, New York          PHIL GINGREY, Georgia
JIM MATHESON, Utah                   STEVE SCALISE, Louisiana
G.K. BUTTERFIELD, North Carolina
CHARLIE MELANCON, Louisiana
JOHN BARROW, Georgia
BARON P. HILL, Indiana
DORIS O. MATSUI, California
DONNA M. CHRISTENSEN, Virgin 
    Islands
KATHY CASTOR, Florida
JOHN P. SARBANES, Maryland
CHRISTOPHER S. MURPHY, Connecticut
ZACHARY T. SPACE, Ohio
JERRY McNERNEY, California
BETTY SUTTON, Ohio
BRUCE L. BRALEY, Iowa
PETER WELCH, Vermont
        Subcommittee on Commerce, Trade, and Consumer Protection

                        BOBBY L. RUSH, Illinois
                                  Chairman
JANICE D. SCHAKOWSKY, Illinois       CLIFF STEARNS, Florida
    Vice Chair                            Ranking Member
JOHN SARBANES, Maryland              RALPH M. HALL, Texas
BETTY SUTTON, Ohio                   ED WHITFIELD, Kentucky
FRANK PALLONE, Jr., New Jersey       GEORGE RADANOVICH, California
BART GORDON, Tennessee               JOSEPH R. PITTS, Pennsylvania
BART STUPAK, Michigan                MARY BONO MACK, California
GENE GREEN, Texas                    LEE TERRY, Nebraska
CHARLES A. GONZALEZ, Texas           MIKE ROGERS, Michigan
ANTHONY D. WEINER, New York          SUE WILKINS MYRICK, North Carolina
JIM MATHESON, Utah                   MICHAEL C. BURGESS, Texas
G.K. BUTTERFIELD, North Carolina
JOHN BARROW, Georgia
DORIS O. MATSUI, California
KATHY CASTOR, Florida
ZACHARY T. SPACE, Ohio
BRUCE L. BRALEY, Iowa
DIANA DeGETTE, Colorado
JOHN D. DINGELL, Michigan (ex 
    officio)


                             C O N T E N T S

                              ----------                              
                                                                   Page
Hon. Bobby L. Rush, a Representative in Congress from the State 
  of Illinois, opening statement.................................     1
Hon. Ed Whitfield, a Representative in Congress from the 
  Commonwealth of Kentucky, opening statement....................    29
    Prepared statement...........................................    30
Hon. John P. Sarbanes, a Representative in Congress from the 
  State of Maryland, opening statement...........................    34
Hon. Joe Barton, a Representative in Congress from the State of 
  Texas, opening statement.......................................    34
    Prepared statement...........................................    37
Hon. Henry A. Waxman, a Representative in Congress from the State 
  of California, opening statement...............................    41
Hon. Cliff Stearns, a Representative in Congress from the State 
  of Florida, opening statement..................................    42
Hon. Betty Sutton, a Representative in Congress from the State of 
  Ohio, opening statement........................................    43
Hon. Robert E. Latta, a Representative in Congress from the State 
  of Ohio, opening statement.....................................    44
Hon. Bart Stupak, a Representative in Congress from the State of 
  Michigan, opening statement....................................    44
Hon. Steve Scalise, a Representative in Congress from the State 
  of Louisiana, opening statement................................    45
Hon. Gene Green, a Representative in Congress from the State of 
  Texas, prepared statement......................................    47

                               Witnesses

David Strickland, Administrator, National Highway Traffic Safety 
  Administration.................................................    50
    Prepared statement...........................................    51
    Answers to submitted questions...............................   144
Dave McCurdy, President and CEO, Alliance of Automobile 
  Manufacturers..................................................    69
    Prepared statement...........................................    72
Michael J. Stanton, President and CEO, Association of 
  International Automobile Manufacturers.........................    88
    Prepared statement...........................................    90
    Answers to submitted questions...............................   153
Joan Claybrook, Former Administrator, National Highway Traffic 
  Safety Administration..........................................    98
    Prepared statement...........................................   100
Clarence Ditlow, Executive Director, Center for Auto Safety......   111
    Prepared statement...........................................   113
Jim Harper, Director of Information Policy Studies, Cato 
  Institute......................................................   119
    Prepared statement...........................................   121
    Answers to submitted questions...............................   157

                   Submitted Materials for the Record

Discussion draft.................................................     3
Letter of May 12, 2010, from American Honda Motor Company, Inc. 
  to the Subcommittee............................................   141


             H.R.____, THE MOTOR VEHICLE SAFETY ACT OF 2010

                              ----------                              


                         THURSDAY, MAY 6, 2010

              House of Representatives,    
           Subcommittee on Commerce, Trade,
                           and Consumer Protection,
                          Committee on Energy and Commerce,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 11:07 a.m., in 
Room 2322 of the Rayburn House Office Building, Hon. Bobby Rush 
[Chairman of the Subcommittee] presiding.
    Members present: Representatives Rush, Sarbanes, Sutton, 
Stupak, Green, Barrow, Space, Braley, Dingell, Waxman (ex 
officio), Whitfield, Stearns, Gingrey, Scalise, Latta, and 
Barton (ex officio).
    Staff present: Michelle Ash, Chief Counsel; Anna Laitin, 
Professional Staff; Angelle Kwemo, Counsel; Timothy Robinson, 
Counsel; Bruce Wolpe, Senior Adviser; Karen Lightfoot, 
Communications Director; David Kohn, Press Secretary; Elizabeth 
Letter, Special Assistant; Will Cusey, Special Assistant; 
Daniel Hekier, Intern; Althea Gregory, Intern; Brian 
McCullough, Minority Senior Professional Staff; Shannon 
Weinberg, Minority Counsel; Robert Frisby, Minority FTC 
Detailee; and Sam Justice Costello, Legislative Analyst.

 OPENING STATEMENT OF HON. BOBBY L. RUSH, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF ILLINOIS

    Mr. Rush. The Subcommittee on Commerce, Trade, and Consumer 
Protection will now come to order. This chair recognizes 
himself for 5 minutes for the purposes of opening statement but 
before my 5 minutes begin, I just want to take a moment to 
welcome all those who are witnesses today and those who are 
viewing this from the position of the gallery or those who are 
sitting in the audience today. Now the chair recognizes himself 
for 5 minutes for the purposes of opening statement. The focus 
of today's hearing is the Motor Vehicle Safety Act of 2010 
draft legislation. Two months ago we assessed the National 
Highway Traffic Safety Administration's functionality and 
effectiveness. The unfortunate accident resulting from 
unintended acceleration revealed to us the need to modernize 
NHTSA. The laws were written in the 1960s and 1970s. They do 
not reflect today's global marketplace.
    And I want to take a moment to comment Chairman Waxman for 
his leadership in drafting this important piece of legislation. 
There are five suggestions that this legislation will attempt 
to address. It energizes the agency and with the expertise and 
technology that is so in need to achieve its primary goal while 
responding to today's rapidly advancing electronic technology 
that is really at the heart of all the new vehicles on 
America's highways. Secondly, it promotes safety and innovation 
by establishing tougher baseline of standards that better 
protect consumers. Certainly, it enhances the enforcement 
mechanism by increasing the agency's authority to remove 
vehicles from the road if these vehicles pose a serious, 
imminent hazard and if the manufacturers do not on their own 
take appropriate action.
    Next is it increases transparency and accountability. The 
concept of transparency and accountability are pre-requisites 
for any effective policy regulation. And, lastly, we reform the 
safety standards for consumers with this piece of legislation. 
We also protect our industries and the American worker by 
helping to save jobs and by allowing the industry and the 
American workers to continue to regain consumer confidence in 
their brand as they continue to build and sell cars and to 
generally help America's auto industry stay competitive in the 
global economy. This is what the proposed Motor Vehicle Safety 
Act of 2010 is attempting to do. We will get it done. Some of 
the public will question the need for new legislation to 
improve the safety and quality of vehicles. I for one, and I am 
sure that other members of this subcommittee join me, strongly, 
strongly, strongly disagree with those who take that kind of 
position.
    Despite the fact that I am sure that automakers are 
attempting to do all they can to win back consumers and improve 
the safety standards and equipment that is located and found in 
their vehicles, I think it is more reasonable to say that 
perhaps the horrific unintended acceleration incidents that 
have been well-documented before this subcommittee and others 
might not have happened if we had had the appropriate 
regulations already on the books. It is my firm belief that 
this legislation and the reforms that it mandates are long 
overdue. Simply put, it is time to act, and the time to act is 
now.
    Before I yield back the balance of my time, I want to thank 
the witnesses again for taking the time out of their schedule 
to advise members of this subcommittee. The draft legislation 
that we are examining today is the result of a series of 
consultations with stakeholders from the consumer groups and 
also from manufacturers and also from the Administration. We 
all have the same objective, which is to save lives, prevent 
injuries, and reduce risk through technology, education, 
improved safety standards, and through vigorous, robust 
enforcement. It has been a selective and constructive effort, 
and I am looking forward to hearing from our witnesses again. 
Thank you, and with that I yield back the balance of my time. 
And I recognize now the ranking member, Mr. Whitfield, for 5 
minutes for the purposes of an opening statement.
    [The discussion draft follows:]
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  OPENING STATEMENT OF HON. ED WHITFIELD, A REPRESENTATIVE IN 
           CONGRESS FROM THE COMMONWEALTH OF KENTUCKY

    Mr. Whitfield. Thank you very much, Mr. Chairman. This is 
our third hearing on NHTSA and auto safety issues including an 
oversight subcommittee hearing into the Toyota recalls. And 
today we are going to hear testimony about the discussion draft 
for the Motor Vehicle Safety Act of 2010, and we look forward 
to that testimony. During those previous hearings, we learned 
that we now are in the safest period of automobile history. 
NHTSA's report for 2009 revealed the lowest fatality rate on 
record, at one point, 1/6 fatality per 100 million vehicle 
miles traveled. Thirty years earlier, 1979, that number was 
3.34 fatalities per 100 million vehicle miles traveled. We have 
more cars and more drivers on the road now than we did then.
    Today we have more than 255 million vehicles registered, 
and they travel over 2.9 trillion miles per year. Thirty years 
ago we had 157 million vehicles registered traveling 1.5 
trillion miles per year. These are impressive statistics and it 
speaks volumes about not only the job that NHTSA has done but 
it also speaks to the innovation of automobile manufacturers. 
And we also know that 90 percent of all accidents are caused by 
human error. Now today we are looking at this draft and this 
draft requires 7 specific safety mandates on manufacturers. It 
increases penalties exponentially. It expands the reporting 
data manufacturers must turn over to NHTSA without 
confidentiality protections.
    And the thing that is most troublesome about this is that 
this is being proposed without taking into account what 
industry is already doing, what safety reviews are currently 
underway, and most significantly, whether this will result in 
any real safety benefits that saves lives. As a matter of fact, 
I don't think that we really even know the cause of the Toyota 
acceleration problem. All of us want our cars to be safer. We 
want regulators to have the appropriate tools to be an 
effective regulator. And Mr. Strickland testified in his last 
appearance before us that he had the necessary expertise to 
deal with this issue. And so I am very much concerned about the 
breadth of this bill, the width of this bill, the mandates in 
this bill.
    I am particularly concerned about the unilateral authority 
for the administrator to stop production, sale, distribution, 
or even importation with no time limits, and I also think there 
is a lack of due process for manufacturers that may be hit with 
one of these mandatory stop orders. So I look forward to the 
testimony today. We have a lot of unanswered questions. I know 
this will be a productive hearing, and I might just also say 
another part of this bill that I am pretty much concerned about 
is that it gives authority to bring fines of up to $250 million 
against corporate executives for data that they submit to 
NHTSA. So we need to explore this closely, and I am confident 
that at the end of this hearing, at the end of this process, we 
will come up with a system that will improve highway safety and 
will be productive for the American people. Thank you.
    [The prepared statement of Mr. Whitfield follows:]
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    Mr. Rush. Thank you. The chair now recognizes the chairman 
emeritus of the full committee, the dean of the house, my 
friend from Michigan, Mr. Dingell, for 5 minutes for the 
purposes of opening statement.
    Mr. Dingell. Mr. Chairman, I will waive my opening 
statement. It is an excellent one and I would urge everybody to 
read it. However, in the interest of time of the committee, I 
would ask unanimous consent that it be inserted into the 
record, and I thank you for your courtesy and commend you for 
holding this hearing.
    [The information was unavailable at the time of printing.]
    Mr. Rush. So ordered. Now the chair recognizes the 
gentleman from Maryland, Mr. Sarbanes, for 2 minutes for the 
purposes of opening statement.

OPENING STATEMENT OF HON. JOHN P. SARBANES, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Sarbanes. Thank you, Mr. Chairman, for holding the 
hearing. I appreciate it very much. I look forward to the 
testimony today on what this legislation can offer to the 
National Highway, Traffic, and Safety Administration, both in 
terms of resources and in terms of extra authority. Of course, 
you know, Americans will make reasonable assumptions that we 
are protecting them until an incident occurs and then it points 
out some of the thin places in the oversight and regulation 
that we have, and we got to make sure that the agency is 
responsible for that oversight, have the tools they need, and 
have been given the charge that they deserve in order to 
provide that protection.
    I am particularly interested in the testimony today that I 
hope will address the need or the issue of technology getting 
ahead of our oversight and how we have to keep up with that, 
and particularly the enhanced expertise when it comes to 
electronics within the department because of course that is 
where all the cutting edge technology has taken the automobile 
fleets. So I am looking forward to the testimony. I appreciate 
the hearing, and I yield back my time.
    Mr. Rush. The chair now recognizes the ranking member for 
the full committee, my friend from Texas, Mr. Barton, for 5 
minutes for the purposes of opening statement.

   OPENING STATEMENT OF HON. JOE BARTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF TEXAS

    Mr. Barton. I thank the distinguished chairman. It is good 
news that you appear to want to move in a regular order process 
on this piece of legislation. Those of us on the Republican 
side, at least myself, have just now seen it or we saw it last 
week, so it is going to take us a while to digest it, Mr. 
Chairman. But you have shown that you want to use the 
subcommittee process in terms of hearings and markup before we 
go to full committee, and I sincerely appreciate that. There 
are some provisions in the proposed legislation that make sense 
making the NHTSA consumer complaint database more user 
friendly. It is certainly something that I can support. I don't 
know that we have to have an act of Congress to make that 
happen, but I do support the concept.
    I don't have an objection to targeting resources to improve 
the agency's technical capability. It is obvious that in this 
day and age we need our regulatory authorities to have as much 
technical competence as it is possible to have. Standardizing 
the brake override function is something that we certainly 
support. There are provisions in the proposed legislation that 
are troublesome. Ranking subcommittee member Whitfield 
mentioned some of those. I echo his concerns. I also echo or at 
least state that it appears this legislation in its current 
form would increase taxes. It would give the government some 
authority that I am not sure it deserves and some of the 
penalties to me seem like overkill.
    I don't believe this is the time, Mr. Chairman, to just 
pile on the automobile industry or at least potentially pile on 
because they are facing tough times. On the issue of unintended 
acceleration, it is obvious that this is something that we 
still don't have an answer for with regards to what happened at 
Toyota. NHTSA has found, I understand, that Toyota has violated 
some of the reporting requirements of the TRED Act. They are 
not resubmitting its reports of unintended acceleration in a 
timely manner. NHTSA is a consequence of that and other Toyota 
issues, has assisted Toyota with the largest civil penalty ever 
assessed by itself, a little over $16 million. Six million 
Toyota cars have been recalled in the United States and 
adjustments have been made.
    I am not sure, Mr. Chairman, those adjustments really 
address the problem, but at least Toyota did make an attempt to 
make some of those adjustments. We still don't have a--at least 
if we do, I don't know it, a concrete explanation of what has 
actually happened and why it happened. We do have two separate 
panels that are looking into the issue. I am prepared to wait 
for those expert studies to be presented to the committee 
before we begin the process of mandating new requirements that 
almost certain will raise cost and may be of questionable 
safety benefit although if the evidence is conclusive that 
there is a real safety benefit certainly myself and the other 
Republicans are going to be supportive of that.
    We have specific concerns with the draft legislation, Mr. 
Chairman. It mandates that all vehicles be equipped with a data 
event recorder. I have a new hybrid, Tahoe hybrid, made in my 
congressional district in Arlington, Texas, and it has one of 
these recorders. I can see why you would want to have it 
especially if your vehicle is in an accident and you are 
accused of being at fault. One of the workers at the plant that 
gave a test drive in my new vehicle said that he has one on his 
and was able to point out in an accident that he was involved 
in because of the data recorder that he was not at fault and he 
had the data to back it up. So I certainly see that there is 
some value to these devices but we also have some privacy 
concerns, and we want to make sure that people know that the 
data recorder is in their vehicle and how it is going to be 
used.
    As I said, the civil penalties in the draft legislation are 
excessive. Civil penalties of $5,000 per day are capped at 
$16.4 million. The draft legislation would raise that to 
$25,000 per violation and remove the cap. We certainly need to 
investigate that, Mr. Chairman. My time has almost expired, so 
I have got a few more things to say, but I will put that in the 
record. Again, kudos to you and Chairman Waxman for agreeing to 
go through regular order. If Republicans are actually included 
in the drafting and in the witness process if there is a need 
to legislate, I am sure that Mr. Whitfield will be very 
interested in working with you and I with you and Mr. Waxman to 
try to do what is responsible. Thank you for holding this 
hearing.
    [The prepared statement of Mr. Barton follows:]
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    Mr. Sarbanes [presiding.] Thank the gentleman for his 
comments. We have been joined by the chair of the full 
committee, Chairman Waxman. The chair will yield 5 minutes to 
Chairman Waxman.

OPENING STATEMENT OF HON. HENRY A. WAXMAN, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Waxman. Thank you very much, Mr. Chairman. I want to 
thank Chairman Rush for convening the hearing on this 
discussion draft of the Motor Vehicle Safety Act of 2010, and 
for being a co-author of the bill. This may be the most 
important vehicle safety bill in a generation. The objectives 
of this bill are to improve vehicle safety and strengthen the 
National Highway Traffic Safety Administration. With new safety 
standards requirements for data recorders, expertise at NHTSA, 
we hope to restore consumers faith in the cars the drive and 
the companies that make those cars. With new resources and 
tools available, we hope NHTSA will be able to critically 
evaluate the claims auto manufacturers make about the operation 
of their vehicle, conduct more thorough defect investigations 
and bring about timely recalls when necessary.
    This legislation is what I call a win, win, win. It is a 
win for the public by protecting vehicle safety, a win for the 
auto industry by restoring confidence in their vehicles, and a 
win for the National Highway Traffic Safety Administration by 
giving the agency tasked with overseeing vehicle safety 
programs the resources to do the job. The recent Toyota recall 
severely rattled the driving public. This legislation meets the 
public's urgent concerns. The bill has four components. First, 
it improves electronics and expertise at the National Highway 
Traffic Safety Administration and calls for new safety 
standards to require brake overrides, to prevent pedal 
entrapment, and to meet performance requirements for electronic 
vehicle components.
    New vehicles would also be required to be equipped with 
robust event data recorders to assist defect investigators in 
accident reconstruction. Second, it provides NHTSA with new 
enforcement authorities including lifting the cap on civil 
penalties and granting the agency the authority to order a 
recall if the agency identifies an imminent hazard of death or 
serious injury. Third, it requires greater transparency of 
early warning data submitted by companies to help NHTSA 
identify defect trends and restores judicial oversight of 
agency decisions to deny a defect petition. And finally, the 
bill addresses NHTSA's chronic resource efficiency for vehicle 
safety programs with an increased authorization of 
appropriations and the introduction of a modest user fee.
    In addition to Chairman Rush, I want to thank Chairman 
Dingell for his contributions to this draft. I know that 
Chairman Dingell still has concerns about the bill, but he and 
his staff made many helpful and important contributions to the 
draft language, and it is my goal that when we report this bill 
from full committee Chairman Dingell and I will support the 
final product. I also hope that we will be able to earn the 
support of Ranking Member Barton and other members on his side 
of the aisle so this will be a true bipartisan effort.
    What this bill does not do, and what no legislation can do, 
is ensure that NHTSA has the willingness and leadership to use 
its authority to the fullest extent. For that, we are relying 
on you, Administrator Strickland, and I must take this 
opportunity to commend you for your leadership overseeing the 
agency's response to the Toyota situation beginning just 
moments after your confirmation. It is clear that together with 
Secretary LaHood you are committed to putting NHTSA ahead of 
the curve when it comes to safety and it is our intention to 
make sure this bill gives you the authority and the resources 
you need. Thank you, Mr. Chairman.
    Mr. Sarbanes. Thank you, Mr. Chairman. The chair now 
recognizes Representative Sutton from Ohio for 5 minutes. Sorry 
about that. We got a vote coming up so we will try to get as 
many in as we can. Representative Stearns from Florida is 
recognized for 5 minutes.

 OPENING STATEMENT OF HON. CLIFF STEARNS, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF FLORIDA

    Mr. Stearns. Thank you. Mr. Chairman, thank you for holding 
this hearing on a draft bill. This is a draft bill, the Motor 
Vehicle Safety Act. I understand, and I think all of us do on 
this committee, the importance of needing to improve the 
National Highway Traffic Safety Administration, NHTSA's ability 
to handle and manage automobile recalls and the need for some 
changes to its safety authorities. I think we all agree. I 
support enhanced motor vehicle safety protections for American 
consumers, but, frankly, I do have some concerns with the draft 
bill as currently written. To begin with, this bill mandates 
that all auto manufacturers equip their vehicles with an event 
data recorder, an EDR, within 2 years, and also mandates the 
collection of additional specific data.
    Most vehicles on the road today already have EDRs. This 
bill will allow the government access to all sorts of new 
information that these EDRs record in the name of ``improving 
vehicle safety.'' My colleagues, there is some serious concerns 
about privacy here. What is the information it can collect and 
how is it going to be used and will the consumer know about it? 
This bill also contains a brand new text as mentioned, an auto 
manufacturers text. It is phased in at $3 per vehicle and 
increases to $9 per vehicle within 3 years. Now this is a tax. 
This is not within the jurisdiction of this committee. We have 
no oversight of it.
    We also need to steer clear of dictating the way cars are 
designed, where parts are placed, particularly when it is 
unrelated to safety and there is no specific evidence 
demonstrating an identifiable problem. This bill contains 
overly prescriptive rulemaking authority for NHTSA to determine 
the size, location of all keyless ignition systems and a pedal 
placement standard. Manufacturers may have to redesign their 
current system. Obviously, those costs are going to be passed 
on to the consumer. This bill has serious economic 
ramifications. There is an $80 million increase for NHTSA. Many 
of us are concerned about that. I think we all agree that NHTSA 
needs some support but this $80 million, how is it going to be 
spent? Where is it going to be used? Is it going to hire more 
bureaucrats or is it actually going to make a difference?
    There are additional problems with the elimination of a cap 
on civil penalties and a broad new eminent hazard authority 
that requires no fact checking. So I hope, Mr. Chairman, we can 
move this bill forward but in a bipartisan manner because I 
think the bill needs improvement today. Thank you.
    Mr. Sarbanes. Thank you. We have got votes pending so I 
would encourage people if they could maybe keep their opening 
statements a little bit shorter, we could get to a couple more 
people before we adjourn for a short break. I recognize the 
gentlelady from Ohio, Congresswoman Sutton.

  OPENING STATEMENT OF HON. BETTY SUTTON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Ms. Sutton. Thank you, Mr. Chairman. Over the last few 
months consumers have been alarmed by the recall of millions of 
Toyota vehicles due to unintended acceleration. For consumers, 
the safety of a vehicle is a top priority which is why it was 
especially daunting to learn that for Toyota the decision of 
whether to recall vehicles on our roads was made outside of the 
U.S. Our consumers expect better and with the Motor Vehicles 
Safety Act we have the opportunity to ensure that NHTSA's 
mission to save lives, prevent injuries, and reduce economic 
costs due to traffic, to road traffic crashes is accomplished. 
It is essential that we work together to produce a good bill, a 
bill that will address the problems that have become apparent 
in recent months.
    NHTSA must be capable of conducting necessary, in-depth 
investigations into new and complex systems and lighter 
materials in vehicles. NHTSA must also be able to effectuate 
necessary, timely recalls so that U.S. officials are not left 
in the position of having to travel overseas to ask for a 
voluntary recall of unsafe vehicles on our roadways carrying 
our families, and we must find a way to address the revolving 
door issue so that the American people can be assured that 
officials are always working to ensure the safety with the 
sharp focus that it requires. The Motor Vehicle Safety Act also 
would require NHTSA to promulgate a rule that requires all 
vehicles to be equipped with an event data recorder, which I 
think is overdue. In 2004, some automakers urged NHTSA to adopt 
a federal motor vehicle safety standard that mandated the 
installation of event data recorders on passenger cars and 
light trucks.
    NHTSA did not go forward at that time with the proposed 
rulemaking for EDRs, and that was 6 years ago, so I am 
concerned that the issues with the unintended acceleration in 
recent months may also delay the agency's rulemaking of 
stability control for commercial vehicles. And I would like to 
hear about when NHTSA plans to release a Notice of Proposed 
Rulemaking for stability control systems for commercial 
vehicles. I want to stress that I appreciate your commitment to 
fulfilling NHTSA's important responsibilities, Administrator 
Strickland, and the commitment of Secretary LaHood, and I look 
forward to hearing from you and all the witnesses today about 
ways we might improve the Motor Vehicle Safety Act. Thank you.
    Mr. Sarbanes. The chair recognizes Mr. Latta from Ohio for 
2 minutes.

OPENING STATEMENT OF HON. ROBERT E. LATTA, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF OHIO

    Mr. Latta. Thank you, Mr. Chairman, and Ranking Member 
Whitfield, thank you for holding this hearing today to discuss 
the discussion draft on the Motor Vehicle Safety Act for 2010. 
I think it is very important that the United States looks at 
the recent incidents involving motor vehicle safety and ensure 
that our citizens are safe behind the wheel. With that in mind, 
I have serious concerns about this draft legislation and 
particularly with privacy concerns and user fees that will be 
passed along to consumers. Section 401 of this legislation 
requires a new per vehicle manufacturer user fee. This 
provision is not capped in the proposed legislation and will be 
passed along to the consumer. My district, the 5th of Ohio, 
currently has an average unemployment rate of 13.5 percent.
    The federal government cannot continue to hinder businesses 
and consumers with unnecessary fees and burdensome regulations. 
In addition, I have concerns with Section 107 mandating the 
EDRs in all new vehicles within 2 years. Not only will this 
mandatory requirement drive up the cost to the manufacturer 
which will, again, be passed along to the consumer but will 
with no opt out provision or ability to turn the device off 
will bring serious privacy concerns for American citizens.
    While it is my understanding that 80 percent of new cars 
sold today are equipped with EDRs there still remains 
significant privacy concerns dealing with the rights of what 
information the government has access to including information 
gathering for court orders, defect investigations, and vehicle 
safety improvement information gathering. Finally, this draft 
legislation will authorize $720 million for fiscal year 2011 to 
2013 and 2011. In 2011 until 2013 this is an $80 billion 
increase in authorized funding without an explanation on how 
these additional funds will be used by NHTSA or how it will go 
towards saving lives. This legislation is in the same theme of 
hidden costs and tax increases on hard-working Americans.
    At the time of economic hardship, this legislation looks to 
force more bureaucratic mandates on businesses. Our nation's 
economic future requires that this Congress and Administration 
exercise serious fiscal restraint and stop excessive spending 
and be held accountable and be transparent. Mr. Chairman, I 
appreciate your holding the hearing on the Motor Vehicle Safety 
Act of 2010. I look forward to working with you and Ranking 
Member Whitfield, and I yield back.
    Mr. Sarbanes. I thank the gentleman. The chair recognizes 
the gentleman from Michigan, Mr. Stupak, 2 minutes.

  OPENING STATEMENT OF HON. BART STUPAK, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MICHIGAN

    Mr. Stupak. Thank you, Mr. Chairman, and Ranking Member 
Whitfield, for holding this hearing on draft legislation to 
strengthen the National Highway Traffic Safety Administration, 
NHTSA's authority to provide the resources necessary to keep 
consumers safe on the road. On February 23 of this year, I 
chaired a hearing on the Oversight and Investigation 
Subcommittee to examine the response by Toyota and NHTSA to 
incidents of sudden unintended acceleration in Toyota vehicles. 
The subcommittee found that NHTSA lacks the personnel, 
resources, and authority to adequately address and investigate 
auto safety complaints. My subcommittee will further examine 
these issues in a May 20 hearing. As we continue to explore the 
specific failures of Toyota and the federal regulators in this 
specific incidence, it is imperative that we begin the process 
of enacting legislation to address the weaknesses we already 
know exist.
    Through the Toyota investigation, we learned a lot about 
event data recorders or EDRs and about the problems that exist 
in allowing federal regulators, law enforcement, and vehicle 
owners, consumers, access to the data they contain. The new 
requirements contained in Section 107 of the draft bill making 
EDRs mandatory setting a set standard of data they must contain 
and ensuring they are accessible with commercially available 
equipment will provide all parties the information they need to 
troubleshoot, investigate, and ultimately remedy future safety 
issues. Granting it is an eminent hazard recall authority is an 
equally necessary step to protect Americans. I am also pleased 
that committee draft requires that information submitted 
through the early warning reporting system is publicly 
disclosed. I look forward to delving into these issues more 
thoroughly and hearing from our witnesses as to whether the 
disclosure requirements in the draft legislation adequately 
provide regulators, law enforcement, and consumers access to 
the information they need.
    I look forward to a productive hearing to discuss 
meaningful improvements to the National Highway Traffic Safety 
Administration and to our additional oversight hearings. I 
appreciate the willingness of our witnesses to be here, and I 
will listen closely to any suggestions they may have to improve 
this legislation. I yield back, Mr. Chairman.
    Mr. Sarbanes. I thank the gentleman. We are going to have 
one more opening statement before we adjourn for the votes. I 
recognize the gentleman from Louisiana, Mr. Scalise.

 OPENING STATEMENT OF HON. STEVE SCALISE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Scalise. Thank you, Mr. Chairman. I appreciate you 
having this hearing on the Motor Vehicle Safety Act. I would 
like to acknowledge Chairman Rush for bringing this legislation 
forward and his hard work on behalf of consumers. The goals of 
this draft legislation strengthening NHTSA and improving 
vehicle safety are good, but I have concerns about the steps it 
takes to get there. To start with, Section 202 provides NHTSA 
with new expansive imminent hazard authority to order a 
manufacturer to stop production, sale, distribution or 
importation of vehicles. I am concerned that this provision 
would short circuit the recall process, not improve it, and it 
will give unilateral authority to the Administrator while 
taking away due process from manufacturers.
    What is more alarming is that this provision is in the 
draft while DOT Secretary LaHood and NHTSA Administrator 
Strickland both previously testified that they had existing 
authority to pursue potential violations. The draft legislation 
also places a vehicle safety user fee on manufacturers which 
is, of course, another word for a tax increase that will raise 
the cost of buying a car on families. Furthermore, this tax is 
uncapped and would continue to rise each year after it is 
enacted. Not only does the draft increase the cost of vehicles 
for consumers but it also increases the burden of American 
taxpayers by raising the authorized funding for NHTSA by $80 
million over 2 years with no explanation of where this new 
spending will come from or how the money will be used.
    While I understand that we need to examine improving 
NHTSA's capabilities, we must keep in mind the need to restore 
fiscal discipline. With a $1.5 trillion deficit there might be 
some in Washington who don't see anything wrong with increasing 
a budget by 40 percent over 2 years, but there are also those 
of us who are adamant that we must reign in the out of control 
spending that is taking place here in this Congress, and 
finally there are also 2 provisions I must mention. Section 201 
eliminates the total cap on penalties, and the second provision 
is 301 that expands the categories of data that must be made 
public as part of any early warning reporting program, which 
could include confidential business information and unwarranted 
claims.
    Removing the cap on total penalties and requiring the 
disclosure of proprietary information makes me question who we 
are trying to strengthen, NHTSA or the trial lawyers. I would 
like to close by reiterating that I am pleased we are trying to 
improve vehicle safety and support NHTSA, but I am concerned 
that this bill is driving down the wrong road. Thank you, and I 
yield back.
    Mr. Sarbanes. Thank you, Mr. Scalise. I have been promised 
by the next two that they will be 30 seconds, real quick. Mr. 
Green of Texas.
    Mr. Green. Mr. Chairman, I would like to ask unanimous 
consent for my full statement to be placed in the record and 
just make one statement. I introduced H.R. 5169, the Event Data 
Recorder Enhancement Act. The draft bill, our bill I think 
looks like the Chevy whereas what the draft is more like a 
Mercedes, and we would hope we could afford the Chevy plan on 
the EDR. But I am glad the bills--we have a draft. Obviously, 
after our hearing we heard from Toyota owners. We need 
legislation, and I would be glad to work with the chair on the 
bill.
    [The prepared statement of Mr. Green follows:]
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    Mr. Sarbanes. Mr. Gingrey is recognized for 100 
milliseconds.
    Mr. Gingrey. Mr. Chairman, you know I am from Georgia and 
not Maryland so that might be awfully difficult for me to do. 
But if you will yield unanimous consent to let me submit my 
entire testimony, I will get going quickly.
    Mr. Sarbanes. Without objection.
    Mr. Gingrey. Mr. Chairman, I want to thank you for calling 
today's hearing on the discussion draft of the Motor Vehicle 
Safety Act of 2010. In light of recent events that have 
occurred, it is very important that we use the opportunity 
today to review the way NHTSA, National Highway Traffic Safety 
Administration, operates but with the ultimate goal of keeping 
vehicular travel as safe as possible for drivers across the 
country. Mr. Chairman, while I believe it is important to 
review the actions and work of NHTSA, I think it is equally 
important that we do not move forward on legislation that would 
add mandates on the transportation industry or create more of a 
burden for the already struggling American taxpayer. So I 
certainly hope that we keep this in mind as we hear from our 
witnesses today and work to craft the proper legislation to 
reauthorize NHTSA, and I yield back.
    Mr. Sarbanes. Thank the gentleman. Mr. Braley, do you want 
to enter something into the record?
    Mr. Braley. I just want to make a very brief comment. I am 
a firm believer in the power of symbolism, and as I was coming 
back from baseball practice this morning, Mr. Chairman, I saw a 
Ford Maverick with a Ron Paul sticker on it. It reminded me 
that the Maverick was the predecessor of the Fort Pinto, which 
was introduced in 1970, the same year that NHTSA was founded, 
and as we consider the important subject matter of this hearing 
and how we go about improving safety for all auto consumers and 
passengers and operators in this country, I think it is 
important to think back over the history of this agency and the 
important mission that it has, and that is why I will yield 
back the balance of my time and rush to the floor to vote. 
Thank you.
    Mr. Sarbanes. We are going to adjourn the committee for the 
votes. When we come back, we will go straight to the first 
panel. We appreciate your patience. We are adjourned.
    [Recess.]
    Mr. Rush. The subcommittee is called back to order. The 
chair really wants to, first of all, extend my deepest and 
sincere apologies for the delay. It is just the way we have had 
to move today. I had a number of conflicting items on the 
agenda and we had to try to cover a lot of bases. And now the 
chair wants to recognize the esteemed administrator of the 
National Highway Traffic Safety Administration, the Honorable 
David Strickland. Mr. Strickland, we really appreciate the fact 
that you have taken your time to be here and that you have been 
so patient with us. And you are recognized now for 5 minutes 
for the purposes of an opening statement. And before I do 
recognize you, Mr. Strickland, I would ask that you allow me to 
swear you in. That is the practice of the subcommittee.
    [Witness sworn.]
    Mr. Rush. Let the record reflect that the witness has 
answered in the affirmative. And now you are recognized for 5 
minutes.

  TESTIMONY OF THE HONORABLE DAVID STRICKLAND, ADMINISTRATOR, 
         NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

    Mr. Strickland. Mr. Chairman, thank you so much for this 
opportunity, Mr. Whitfield and other members of the committee. 
Again, the men and women of NHTSA thank you for the chance 
today to discuss the proposals to strengthen the authority of 
the National Highway Traffic Safety Administration. I applaud 
the committee members and their staff for working so hard to 
understand these issues and for reflecting that understanding 
in the committee draft of the Motor Vehicle Safety Act of 2010. 
Time has not permitted full review of all the draft 
legislation's provisions throughout the executive branch, so my 
remarks will be confined to some of the major provisions.
    Today's hearing is an opportunity to work together to 
improve the safety of our Nation's roadways. We very much 
appreciate the provisions in the committee draft that would 
enhance NHTSA's vehicle safety authority. NHTSA is a strong 
agency. The bill's authorities would make us stronger. If 
enacted, these measures would significantly increase the 
agency's leverage in dealing with manufacturers. The addition 
of imminent hazard authority would bring NHTSA's authority into 
line with many of its other sister safety and health agencies. 
This provision gives NHTSA an important avenue through which to 
deliver on its consumer protection mission, a mission that I 
strongly believe in.
    As part of that safety mission, NHTSA collects a wealth of 
information in its various databases. We share in President 
Obama's assessment that information maintained by the federal 
government is a national asset. This proposed bill would 
require NHTSA to improve the accessibility of the information 
on its publicly available databases. We will be very happy to 
do so in looking at several ideas on how to make our recall and 
our investigations data more user friendly. Even in the current 
state, NHTSA's information stores are among the most 
outstanding consumer safety databases in government. Improving 
them would promote transparency. Transparency promotes 
accountability and provides information for citizens about what 
their government is doing.
    I will work with the Secretary and the Congress to 
strengthen and improve NHTSA so that it can continue to achieve 
its mission in saving lives, preventing injuries, and reducing 
economic costs due to road traffic crashes. We will be 
accountable to the President, to Secretary LaHood, and to the 
American Public, for whom we at NHTSA proudly serve. Thank you 
very much, Mr. Chairman, and I look forward to answering the 
questions of the committee.
    [The prepared statement of Mr. Strickland follows:]
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    Mr. Rush. The chair thanks the witness. Now the chair 
recognizes himself for 5 minutes for questioning of the 
witness. Mr. Strickland, I have a lot of respect for you. I 
know you, and I have known you and your family for quite some 
time and have nothing--I am very proud of what you have 
accomplished and am proud of the things that you have done in 
terms of your public service work. But I am a little 
disappointed, I must say, in your opening statement. I have to 
be very honest with you. This legislation--first of all, I know 
there is a process for developing testimony in the executive 
branch, and I am very cognizant of the fact that you only have 
a short turnaround time in terms of developing your testimony 
here. With that said, there is really a gaping hole that exists 
in your testimony in the complete lack of detail that I was 
expecting, and I know that you are capable of and I have seen 
you do this in the past.
    There is a lack of detail in your testimony that leaves us 
kind of wanting as a subcommittee. This legislation that is 
before us aims to overhaul your agency providing you with new 
enforcement authorities and additional resources. And we are 
glad to do this. We are proud to do this. We are giddy about 
doing this for NHTSA and giving it new authorities and 
resources. And it also mandates several new safety standards 
and creates new transparencies in auto safety. And I know you 
got more to say in regards to whether it is in this bill or 
not. What do you see as the most important new authority 
Congress could grant NHTSA that would strengthen the agency and 
improve auto safety? What is the most important new authority 
that you need?
    Mr. Strickland. Well, Mr. Rush, I definitely do not want to 
disappoint you or the rest of the committee with the breadth of 
my statement. As you are aware, we at the Department of 
Transportation and also with the executive branch do have a 
process by which we evaluate both discussion and introduce 
legislation, and that is in process. I apologize profusely that 
we were not able to give you more granulated and detailed 
assessment of the work. That will be coming. I will be more 
than happy to provide that more detailed recitation when it has 
completed the review. I am happy to appear before the committee 
if that is your wish to do so at that time, but I will do my 
best to try to fill in some of the issues that you wish to 
discuss.
    The bill, to give an overview, anything that provides NHTSA 
the authority to be able to expedite the recall process, 
whether it is in negotiating with the manufacturers of trying 
to get them to issue a voluntary recall or an ability for the 
agency to be able to move forward in a fashion--to do so in a 
mandatory fashion such as with the imminent hazard authority. 
Those are the core, I think, of what we will want to achieve 
here at NHTSA, which is to be an agency that can take risks off 
the road as quickly as we can, and anything in this legislation 
that helps us achieve that is something that I believe that 
NHTSA would wholly embrace. There is lots of details in part of 
those new authorities and process that we stand at the ready to 
discuss.
    Anything that helps us achieve that goal, which is 
including the increase in penalty authority, I think the 
opportunity for us to really have a penalty that creates a real 
deterrent for manufacturers and equipment manufacturers as well 
to not violate the Act, I think helps in that leverage in the 
negotiation process and also helps those manufacturers make 
quicker decisions in terms of safety.
    Mr. Rush. My time is running down, but the other question 
that I have, what is missing from this bill in your opinion? 
What is missing? What can we do additionally?
    Mr. Strickland. In our evaluation, our preliminary 
evaluation and discussions with your staff and other staff 
members, this does capture the universe of what, I think, would 
be helpful to NHTSA. There are clearly other things that could 
be of assistance, but in terms of what we would anticipate as 
being helpful to strengthen the authority, the bill does give a 
fantastic foundation for the first steps in helping us be a 
stronger and more transparent agency.
    Mr. Rush. The chair yields back the balance of his time. I 
recognize the gentleman from Kentucky, Mr. Whitfield, for 5 
minutes.
    Mr. Whitfield. Thank you, Chairman Rush, and, Mr. 
Strickland, for your testimony. I for one am pleased that you 
all are reviewing this legislation carefully because it would 
bring about significant changes, not only to NHTSA but 
certainly to a lot of manufacturers around the country, as well 
as to consumers, and I do think it is imperative that you all 
take the necessary time to look at this closely. You testified 
before our committee not too long ago, and if I were the 
administrator of a federal agency, I would be thrilled if some 
legislation came along giving me new authority, giving me new 
money, and so I can understand how you all would not be opposed 
to this legislation. But when you testified before--I mean the 
important thing is that you be able to do your job, which I 
think NHTSA is doing.
    But you testified before that you have engineers at NHTSA, 
you have electrical engineers at NHTSA, you have software 
engineers, you have engineers in East Liberty, Ohio. You can 
hire consultants for additional expertise, and you said there 
is not a notion that we don't have the proper expertise to 
handle today's automobiles. And then Mr. Dingell asked you a 
question, and I know that President Obama has given you 
additional money in his budget for this year, and you said when 
the President's budget is passed, we will have the resources we 
need.
    And, you know, this is all we can expect from people who 
have the responsibility for these agencies in our government is 
to give us an honest, candid view of whether or not they have 
adequate resources. And you said very clearly that you had 
adequate resources, so many of us feel like this bill is too 
broad. But I want to ask you this question. The center that 
this bill establishes, the Center for Vehicle Electronics and 
Emerging Technologies, is there such a center similar to that 
at the Department of Transportation for railroads or for 
airlines or for any other type of transportation?
    Mr. Strickland. I am not familiar if there is a similar 
center that focuses on that particular area. I will have to get 
back to you on the record with some specificity. I may be 
incorrect on that, but from my recollection I don't believe 
there is one.
    Mr. Whitfield. Was your opinion solicited on whether or not 
this center should be placed in this legislation before the 
draft was written?
    Mr. Strickland. We were not asked in terms of to give a 
particular comment when the discussion draft was transmitted to 
the Department of Transportation. We put it in for internal 
review and also sent it over to the White House also for their 
review, so we have not issued an opinion about that particular 
concept at this time but when we have finished our review, we 
will definitely transmit that opinion.
    Mr. Whitfield. But it sounds like you were not really 
involved in drafting this legislation in your agency and 
providing information to draft this legislation.
    Mr. Strickland. No, sir. We were asked--we were consulted 
in terms of concepts but the actual technical assistance and 
drafting was handled by the committee staff.
    Mr. Dingell. Will the gentleman yield?
    Mr. Whitfield. Yes, sir.
    Mr. Dingell. I thank you. Would you make that review 
available to this committee as soon as you can, please?
    Mr. Strickland. Yes, sir. Absolutely, Mr. Dingell.
    Mr. Dingell. I thank the gentleman.
    Mr. Whitfield. I wish that they had talked to you in some 
detail before this legislation was written because it is your 
agency's responsibility to carry out the role and the 
responsibility, and if there was any group that would have a 
clear understanding of this, it would be your agency. One other 
question I would just like to ask. Toyota was fined, I think, 
$16 million which I guess was the maximized----
    Mr. Strickland. Yes, sir, that is correct.
    Mr. Whitfield. --fine that could be levied. How was it 
actually determined what that dollar value should be for that 
fine?
    Mr. Strickland. That is actually a straight calculus of the 
actual violation times the number of cars that were in 
violation. If I am not mistaken, I believe that there was not a 
cap that limited us to $16.375 million. I believe the fine 
could have been well over $13 billion for the entire population 
of cars that were subject to the violation of the timeliness 
query.
    Mr. Whitfield. It could be how much?
    Mr. Strickland. $13 billion.
    Mr. Whitfield. Billion?
    Mr. Srickland. Yes.
    Mr. Whitfield. You have that authority?
    Mr. Strickland. That would be the maximum per violation but 
we are limited to $16 million. I believe our recitation of 
breakdown of the possible maximum fine without the gap was 
included in our demand letter to Toyota.
    Mr. Whitfield. OK. Thank you.
    Mr. Rush. The chair now recognizes the chairman emeritus of 
the full committee who graciously relinquished his time for an 
opening statement to be used now during the time of 
questioning, so the chair recognizes the chairman emeritus for 
10 minutes for the purpose of questioning the witness.
    Mr. Dingell. Mr. Chairman, I thank you for your courtesy. I 
commend you for the hearings. My questions, Mr. Administrator, 
will be answerable yes or no. The first question, Title I of 
the discussion draft under question mandates that DOT prescribe 
new federal motor vehicle safety standards for passenger cars 
without any preliminary study by NHTSA or DOT or any of them. 
Is DOT or NHTSA sufficiently prepared to undertake such 
rulemakings for each of these proposals without any preliminary 
study of the need, practicality and appropriateness of each 
such rule for all manufacturers and their models, yes or no?
    Mr. Strickland. NHTSA at this time is beginning its 
preliminary research----
    Mr. Dingell. No, no. I want a yes or no. I have limited 
time. Yes or no.
    Mr. Strickland. At this particular time, Mr. Dingell, we 
are preparing to undertake possible rulemaking----
    Mr. Dingell. So you are not at this time prepared--you are 
not prepared to answer the question or you are not prepared to 
perform the rulemaking without the necessary study switch?
    Mr. Strickland. We have work underway for all of those 
things right now.
    Mr. Dingell. I don't want to filibuster. I just want a yes 
or no answer. I know that is going to be fairly easy once we 
get to working together.
    Mr. Strickland. Yes, sir, Mr. Dingell.
    Mr. Dingell. Yes or no.
    Mr. Strickland. At this time, no, we would not be prepared 
to go to immediate rulemaking on those issues.
    Mr. Dingell. Thank you. It is really easier than we 
thought, isn't it. My reading of Title I of the discussion 
draft shows that it does not amend the existing safety act of 
Title 49 of U.S. Code, and thus does not require any new 
federal motor vehicle safety standard to be prescribed in 
accordance with Section 3011 of the Safety Act. Do you agree?
    Mr. Strickland. As drafted, that is correct. Yes, Mr. 
Dingell.
    Mr. Dingell. Thank you. Now, Mr. Strickland, further to my 
knowledge there is nothing in Title I of the discussion draft 
that would make these new standards subject to the provisions 
of the existing safety statute and thus enforceable. Is this 
observation correct, yes or no?
    Mr. Strickland. That is a correct observation, Mr. Dingell.
    Mr. Dingell. Now, Mr. Administrator, as you know, the 
Safety Act generally applies to new motor vehicles because 
Title I of the discussion draft does not amend the Safety Act 
and thus is not subject to the Act's definition. Is it 
conceivable that the term passenger vehicles as used in the 
discussion draft would include new cars and cars also that are 
already on the road, yes or no?
    Mr. Strickland. It is not conceivable, sir. I believe it 
would only apply to new cars because the definition is cross 
applied throughout Title 49 but we will definitely be happy to 
give technical assistance to----
    Mr. Dingell. Is the answer yes or no?
    Mr. Strickland. Is it conceivable? No, it is not. It will 
only apply to new cars.
    Mr. Dingell. It will not?
    Mr. Strickland. It will not be retroactive.
    Mr. Dingell. I would like to have you submit further 
information as to why you make that statement.
    Mr. Strickland. Yes, sir.
    Mr. Dingell. The rule proposes in Title I of the discussion 
draft each provide lead time requirements of one or two model 
years, and in one case 60 days after enactment for all makes 
and all models of passenger cars without any determination by 
the Secretary as to the reasonableness and practicability of 
those deadlines or applicable rule. Does DOT today know that 
such lead times are realistic and practical taking into 
consideration energy, needed technology, impacts on models, as 
well as costs of compliance? Yes or no.
    Mr. Strickland. Past practice and rulemaking, those are 
very aggressive deadlines----
    Mr. Dingell. Just yes or no if you please.
    Mr. Strickland. No, sir. I believe that those deadlines are 
impractical at this point.
    Mr. Dingell. You believe what?
    Mr. Strickland. I believe that those deadlines are very 
tight and possibly impractical until we can actually work with 
the manufacturers in terms of meeting lead time needs.
    Mr. Dingell. Thank you very much, Mr. Administrator. Now, 
Mr. Administrator, my understanding of the federal motor 
vehicle safety standards is that they are almost universally 
performance standards, yet only one proposal, Section 104 on 
electronic systems, calls for a performance standard while 
event data recorder and brake override proposals are quite 
prescriptive. Is DOT now ready to develop such prescriptive 
rules and know definitively that they will provide ``motor 
vehicle safety'' as the term is defined in the Safety Act? Yes 
or no.
    Mr. Strickland. Research is under way. NHTSA is not 
prepared to do that at this time.
    Mr. Dingell. OK. Now, Mr. Administrator, with respect to 
Section 201, the discussion draft related to civil penalties, I 
note it contains no provision for judicial review or penalty 
assessment criteria such as the size of the business, economic 
impact, history, duration of the violation, seriousness, and 
willfulness. EPA must take into account these factors when 
assessing civil penalties under the Clean Air Act and under 
your administration or other provisions requiring similar 
actions. Should the Safety Act be amended to include possible 
judicial reviews of penalties and require DOT to take into 
account penalty assessment criteria such as EPA must? Yes or 
no.
    Mr. Strickland. May I get back to you on the record for 
that specifically, Mr. Dingell?
    Mr. Dingell. Mr. Administrator, the discussion draft 
strikes the maximum penalty for related series of violations. 
Do you believe that this is justified especially in view of the 
fact that the Safety Act contains no provision for judicial 
review of penalties or requires the Secretary to take into 
account any penalty assessment criteria? Yes or no.
    Mr. Strickland. There are factors that we currently 
consider for the evaluation of a penalty right now for current 
authorities. That would cross apply to this situation so as 
drafted the NHTSA would take those under consideration----
    Mr. Dingell. How could you do it if you are not required by 
law?
    Mr. Strickland. It is by our current administration 
practice in assessing penalties.
    Mr. Dingell. That is just policy which would change with 
the wind. Mr. Administrator, Section 202 of the discussion 
draft allows the Secretary to issue an imminent hazard order 
against vehicle manufacturers. Does DOT have a definition for 
the term ``imminent hazard'' either in the regulation or the 
statute? If you have such, will you submit it for the record?
    Mr. Strickland. Yes, sir, I will.
    Mr. Dingell. Now, Mr. Administrator, likewise, Section 202 
permits the Secretary to issue such imminent hazard orders 
absent prior judicial review and consent. Should DOT have to 
show by suit in federal court that hazard is imminent just as 
EPA must do under Section 303 of the Clean Air Act and CPSC 
must do under Section 11 of the Consumer Product Safety Act as 
opposed to forcing the aggrieved person to seek judicial review 
at the Circuit Court level where there is no trial of facts? 
Yes or no.
    Mr. Strickland. I would like to get back to you for the 
record on that, Mr. Dingell, but to let you know that our 
sister model agencies such as the Federal Rail Administration 
and others have similar imminent hazard authority as seen in 
the committee draft.
    Mr. Dingell. This is not, remember, Mr. Administrator, tied 
to the Automotive Safety Act nor to the Administrative 
Procedure Act. Now Section 301 of the discussion draft requires 
DOT to conduct rulemaking on disclosure of information about 
vehicle defects, repairs, et cetera, with a presumption 
favoring maximum public disclosure. Given that DOT has existing 
regulations on public disclosure and must comply with the 
Freedom of Information Act, is such a disclosure rulemaking as 
the discussion draft mandates? Yes or no.
    Mr. Strickland. I would like to get back to you on the 
record with that, Mr. Dingell.
    Mr. Dingell. Mr. Administrator, Section 401 of the 
discussion draft requires vehicle manufacturers to pay an 
annual fee on a per vehicle basis. Such fees shall be used 
according to the discussion draft to meet the obligations of 
the United States to carry out the vehicle safety programs of 
the National Highway Traffic Administration. To the best of my 
knowledge, these obligations are not defined in the discussion 
draft. Do you agree? Yes or no.
    Mr. Strickland. The obligations are not defined. We will be 
happy to get back for the record on the question.
    Mr. Dingell. Now, Mr. Administrator, the discussion draft 
sets out per vehicle fees to meet NHTSA's obligations. Absent a 
clear definition of these obligations, do you believe that the 
level of these fees as defined in the discussion draft are 
arbitrary? Yes or no.
    Mr. Strickland. I will have to get back for the record, Mr. 
Dingell.
    Mr. Dingell. Mr. Administrator, similarly, is DOT in 
possession of any information that would verify the level of 
these fees is appropriate to meet its obligations, whatever 
they might be? Yes or no.
    Mr. Strickland. I will respond to you for the record, Mr. 
Dingell.
    Mr. Dingell. You don't know?
    Mr. Strickland. At this point, we have the 2011 budget that 
the President has issued to the Congress----
    Mr. Dingell. The answer is though, Mr. Secretary, you don't 
know--or, rather, Mr. Administrator, you don't know?
    Mr. Strickland. At this point, sir, we have allocated our 
budget for the 2011 budget. The levels that are produced in 
this bill, we are happy to review.
    Mr. Dingell. The question is you still don't know. Mr. 
Chairman, you have been most gracious on your gift of time to 
me. I express to you my thanks and also to my good friend from 
Kentucky my gratitude for this kindness in yielding to me 
earlier. Thank you.
    Mr. Rush. The chair thanks the chairman emeritus. And now 
the chair recognizes the gentleman from Ohio, Mr. Space, for 5 
minutes.
    Mr. Space. Thank you, Mr. Chairman. Thank you, Mr. 
Administrator, for your testimony today. I want to shift gears 
and talk a little bit about the testing center in East Liberty, 
Ohio that NHTSA has. And there is no suggestion in this bill 
that that facility be abandoned, but there have been some 
suggestions externally about the prospect of moving it. And the 
impetus behind those suggestions has been that because the 
facility is technically owned by Honda of America Manufacturing 
Corporation that that would represent some kind of a conflict 
of interest. I guess my question to you is are you familiar 
with the facility I am talking about?
    Mr. Strickland. I am very familiar with the facility.
    Mr. Space. And you are familiar with the fact that the 
facility itself that is owned by Honda is actually operated 
pursuant to a management agreement by a not-for-profit 
corporation that was founded by Ohio State University?
    Mr. Strickland. That is correct.
    Mr. Space. And in your experience have you in the past been 
alerted to any problems associated with the ownership 
specifically that may have arisen as the result of a conflict 
of interest?
    Mr. Strickland. Mr. Space, my job before I was sworn in as 
administrator of NHTSA, I was an oversight counsel and part of 
my duty was oversight of National Highway Traffic Safety 
Administration for over 8 years. I was very familiar with the 
ownership structure of the VRTC with TRC in Ohio State. I never 
had any knowledge of any conflict of interest during my time as 
a staffer. I took a look at this issue very specifically when 
this was brought to my attention. I have seen no indication 
whatsoever of there being an improper relationship. It is a 
firewall relationship between TRC, the Ohio State University 
for whom we pay, and Honda of America, which actually owns the 
land.
    Mr. Space. Thank you, Mr. Administrator. Are you aware of 
any other manufacturers apart from Honda that may have 
registered complaints about the ownership structure of the 
facility?
    Mr. Strickland. There have been no complaints from any 
manufacturer.
    Mr. Space. And, finally, has the weather been a problem, 
the Ohio weather been a problem. I know we don't have the claim 
to snow apocalypse, but I am curious as to whether that has 
been a problem for the facility.
    Mr. Strickland. Our staffs have been able to use the pad 
and the other facilities. That has never been an impediment to 
our work in terms of the availability of the actual test track 
itself or the buildings that we use.
    Mr. Space. OK. Thank you, Mr. Administrator. I yield back 
my time.
    Mr. Rush. The chair thanks the gentleman. The chair now 
recognizes the gentleman from Iowa, Mr. Braley, for 5 minutes.
    Mr. Braley. Thank you, Mr. Chairman. Mr. Strickland, thank 
you for joining us again.
    Mr. Strickland. Thank you, Mr. Braley.
    Mr. Braley. And I want to start with a follow-up question 
to Mr. Dingell's question to you about the scope of 
administrative judicial review. And I want to make sure that I 
understood your response as it relates to NHTSA because my 
understanding is that as a general rule any federal agency that 
falls within the Federal Administrative Procedure Act, in order 
to overturn the action of the agency you have to demonstrate in 
that judicial review process that the action of the agency was 
arbitrary and capricious. That is the baseline definition of 
judicial review for any federal agency action. Is that your 
understanding?
    Mr. Strickland. That is correct, Mr. Braley.
    Mr. Braley. But that Congress may, if it chooses to, also 
include in the organic law that gives rise to that agency 
action more limitations on judicial review if it chooses to do 
so?
    Mr. Strickland. Yes, Mr. Braley, that is correct.
    Mr. Braley. So the mere fact that there is not specific 
language giving further direction on what should be considered 
as part of that judicial review of NHTSA's act does not mean 
that there is not a formal process for judicial review subject 
to the baseline arbitrary and capricious standard?
    Mr. Strickland. Mr. Braley, you are correct in that 
analysis.
    Mr. Braley. All right. Now one of the concerns that I had 
and many people had during the period of the Bush 
Administration and its operation of NHTSA was that the agency 
during that period, specifically from 2005 to 2008, seemed to 
many of us to usurp its own regulatory authority and take on 
the role of Congress by including in many of its preambles 
issued in response to regulations language pre-empting state 
law claims. Are you familiar with that practice?
    Mr. Strickland. Yes, sir, I am.
    Mr. Braley. And I know that the President himself at the 
beginning of his Administration took a strong position rolling 
back some of those statements made by agency representatives in 
those preambles and in the regulations themselves. Are you able 
here today as a representative of the Administration in your 
capacity able to assure us that those practices will not 
continue while you are Administrator?
    Mr. Strickland. I can make that obligation, absolutely. 
There is a notion that states' rights are incredibly important 
and those preambles that were placed not only in NHTSA's rules 
but there were several rules throughout executive branch 
agencies and safety agencies which undermine safety, and I know 
the Obama Administration felt very strongly that those should 
not be used to undercut the notion of safety whether by the 
federal government or in the states.
    Mr. Braley. Thank you. One of the things that this Motor 
Vehicle Safety Act calls on your agency to do is to improve 
public accessibility of information posted to its web site, and 
that includes a requirement that you make sure that all data is 
searchable and can be aggregated and downloaded. As it exists 
now, does NHTSA have the capability to ensure that this 
information is posted in an easily accessible and searchable 
fashion that any member of the general public can use?
    Mr. Strickland. At this point we--I have sort of two things 
to say about that, Mr. Braley. Even in the current state of 
NHTSA's database, it is clearly one of the most usable and 
transparent databases in government. We found that consumers 
and the press and members of Congress to be able to go through 
all work, been able to analyze it independently of what we have 
done, so I think that speaks to the level of transparency. So 
we do recognize that it could be more user friendly and more 
accessible, and we have efforts underway right now to deal with 
some of those issues including creating a VIN-based identifier 
system to ensure uniformity in usage of vehicle configuration 
details. The vehicle owners questionnaire, the VOQ, is very 
difficult. I know our goal is to make sure that we can make it 
simpler and that drivers and consumers use less time in filling 
out the VOQs so that we can get more information from more 
consumers.
    We have a significant abandonment rate. We get over 30,000 
complaints a year, but there is a lot of people that begin the 
process that give up because it is such a difficult form to 
fill out. We need to be better. There are lots of other things 
that we are currently undertaking. I know the draft legislation 
makes mandates and suggestions for us to undertake that 
opportunity. We will continue our own work independent of 
legislation. If this legislation becomes law, we will happily 
work on making the database more consumer friendly and more 
usable.
    Mr. Braley. Well, I am very glad to hear that. I am 
shuttling back and forth between two hearings, one on 
transparency in pricing in health care, and this hearing, which 
also has placed a huge emphasis on transparency, and 
transparency is great, but unless you are communicating with 
your intended users in language they can understand all that 
you do is create more frustration and you keep people from 
getting access to the information they need to rely upon to 
make informed decisions. That is why I am proud in both the 
110th and 111th Congress we in the House have passed my Plain 
Language in Government Communications Act requiring all federal 
agencies to communicate in their publications and their web-
based services with constituents in the language that they can 
understand, and I would be happy to work with you and your 
agency as they try to adopt some of those best practices.
    Mr. Strickland. Mr. Braley, that will be a great 
opportunity for us, and also I would like to take this 
opportunity to promote the new NHTSA web site at nhtsa.gov. We 
have simplified the web site, made it much more user friendly, 
and I would hope that you and the other members of the staff 
would take an opportunity to go on nhtsa.gov and to please give 
comments on what we have done. We are very proud of the work in 
terms of making it better for the American consumer.
    Mr. Braley. Thank you. I yield back the balance of my time.
    Mr. Rush. The chair thanks the gentleman. The gentleman 
from Michigan, Mr. Stupak, is recognized for 5 minutes.
    Mr. Stupak. Thank you, Mr. Chairman. Mr. Strickland, when a 
consumer buys a car and it has an EDR in it should the consumer 
or the owner of that vehicle have access to that information?
    Mr. Strickland. At this point, we are reviewing several 
issues about EDRs and we will have to get back to you on the 
record, Mr. Stupak, but in terms of the privacy issues there 
are several considerations that should be undertaken and NHTSA 
and the Administration are looking at those things very 
closely.
    Mr. Stupak. Was there anything like proprietary information 
that would be revealed if the consumer had an opportunity to 
look at what was happening with their vehicle at the time?
    Mr. Strickland. I wouldn't be familiar in terms of the 
accessibility of a consumer and what data may be--what may be 
considered proprietary. At this point right now, EDRs only 
track acceleration and braking. I know that there are other 
considerations in the discussion draft which may include more 
information on the EDRs. I will have to get back to you on the 
record for that consideration as well.
    Mr. Dingell. Would the gentleman yield?
    Mr. Stupak. Yes.
    Mr. Dingell. Could you cite any provisions of the 
discussion draft that protect either proprietary information, 
trade secrets or data which is important to the company as a 
competitive matter?
    Mr. Strickland. There is no language in the draft that does 
any of that, Mr. Dingell.
    Mr. Dingell. Thank you, and I thank the gentleman for 
yielding.
    Mr. Stupak. If you go these EDRs, what is the difference if 
I turn on my Sirius radio and I listen to certain music, and 
that is mine, right? I can put in any station I want on my 
Sirius radio and listen to it, so my EDR, if I want to know how 
fast I was going or accelerating or things like that, why 
wouldn't I be entitled to that information being the consumer, 
the owner of the vehicle, if you will?
    Mr. Strickland. The owner of the vehicle should have access 
to all aspects of the vehicle in terms of information provided. 
I think that in terms of transparency and clarity, I think that 
for a consumer to have that ability to access actually the 
consumer does have the right to access that information. They 
may not have the tools to get the information, but I believe 
the consumer always has that right at this point if I am not 
mistaken.
    Mr. Stupak. So if there is an accident like sudden 
unintended acceleration, what right does Toyota have to come in 
and remove that information or withhold that information from a 
consumer?
    Mr. Strickland. Well, in terms with how that interplays, I 
know the manufacturer has access to data. I know that NHTSA has 
the ability to access the data once we get an OK from the 
consumer. But in terms of preventing a consumer from getting 
the data him or herself or Toyota preventing or any 
manufacturer limiting access to that data, I am not as familiar 
with that process so I will have to get back to you on the 
record.
    Mr. Stupak. Have you demanded the information from these 
recorders on the accidents of a sudden unintended acceleration 
from Toyota?
    Mr. Strickland. Yes, we have.
    Mr. Stupak. Have you received it?
    Mr. Strickland. Yes, we have received it and actually in 
addition to getting that information Toyota has also provided 
several readers. One of the issues that we are facing, Mr. 
Stupak, and I believe those were explained to you in the 
hearing that you held a few weeks back, that there was an issue 
where NHTSA did not have the ability to independently read a 
Toyota EDR. Toyota has since supplied us several of their 
readers so that we can access the data on site, and they have 
been much more proactive in that area.
    Mr. Stupak. Have you shared this information with the 
victims' families of these sudden unintended acceleration of 
these vehicles? I am thinking especially of the one up in New 
York, the case up in New York.
    Mr. Strickland. The Harrison, New York case, sir?
    Mr. Stupak. Right.
    Mr. Strickland. At this point right now, my understanding 
is that we have that data. We are analyzing it for our own 
investigations. I don't know if there has been a request made 
to NHSTA to release that information. I will get back to you, 
sir. I will ask the question of the staff.
    Mr. Stupak. All right. These new EDR standards, do you 
believe they are sufficient in the proposed bill Section 107?
    Mr. Strickland. We are actually taking our own independent 
research on EDR systems, sir. The staff will be producing a 
white paper that hopefully should be available by June of this 
year, which will take a look at several issues regarding the 
sufficiency of the data, the robustness of the EDR, and several 
other considerations, and we will be happy to share that with 
you and the rest of the members of the committee, but at this 
time we are not prepared to make an evaluation of the 
discussion draft mandates regarding----
    Mr. Stupak. Will you be looking at what other data may be 
useful to you like torquing and arcing on braking in vehicles 
on the roadway?
    Mr. Strickland. It is a comprehensive review and this white 
paper will take those other considerations into account.
    Mr. Stupak. So on the Toyota, how many pieces of data do 
you receive? You said two, speed and----
    Mr. Strickland. Speed and braking is whether the 
acceleration was depressed and when the brake was depressed, 
that is correct. There is other information available in the 
vehicle as well, Mr. Stupak. The electronic control mechanism, 
ECM, which is independent of the EDR, which can also be a very 
rich trove of information which Toyota has shared with us as 
well, but the actual EDR itself, it is only braking and 
acceleration.
    Mr. Stupak. Doesn't that seem inadequate? I mean these 
standards were put out some time ago. There were more than just 
two standards in the proposed EDRs that we wanted. What, 2013 
they were supposed to take effect or, I am sorry, 2011 and it 
was pushed back to 2013, is that correct?
    Mr. Strickland. Actually I think 2012 is actually when the 
voluntary--if you do have an EDR you have certain, you know, 
certain information you have to provide and make sure that 
NHSTA makes it readable.
    Mr. Stupak. But in that 2012 reader it had to be more than 
just speed and braking?
    Mr. Strickland. Yes, sir, that is correct.
    Mr. Stupak. So we should make sure that there are more 
aspects that would be helpful to you and to the consumer in 
these EDRs?
    Mr. Strickland. We are looking forward to working with you 
and the rest of the committee on this issue, Mr. Stupak.
    Mr. Stupak. Thanks.
    Mr. Strickland. Thank you, sir.
    Mr. Rush. That concludes the testimony of the 
Administrator. The ranking member has requested some additional 
time so if the Administrator would agree, we will have a second 
round of questioning for 1 minute, and the ranking member is 
recognized for 1 minute for an additional question.
    Mr. Whitfield. Mr. Strickland, would you please tell us 
when you expect you would be able to give us a section by 
section analysis of this bill?
    Mr. Strickland. At this point, I know it is currently in 
process within the department and with the Administration. My 
expectation is that hopefully--I will be away on travel, I 
would hope that I would a more specific time frame and answer 
when I return from Asia, so I will be more than happy to 
communicate when we expect to have that review to you, but at 
this time I don't have a specific date when we will have the 
review done.
    Mr. Whitfield. Well, I urge you all to speed it up and 
provide us with it as soon as possible.
    Mr. Strickland. Understood, Mr. Whitfield.
    Mr. Whitfield. One other question. I know that you can 
evaluate each rulemaking and calculate the cost of that 
rulemaking or that estimated cost and lives saved. Would you be 
able to do that with this legislation?
    Mr. Strickland. In terms of doing our normal cost benefit 
analysis of the rule, one thing that we would have to make sure 
that we go through regular order and process in any of these 
rulemakings and find the proper amount of time to execute all 
of the things we need to do for a rule, we are evaluating the 
time frames that are present in the discussion draft along with 
our current rulemaking load. We have other rulemakings that are 
in the queue from other pieces of legislation and work we 
already have done independently so, yes, we will need to be 
able to do that work in order for us to justify the rule and we 
will definitely do so in that fashion.
    Mr. Whitfield. Thank you.
    Mr. Rush. Are there any other--Mr. Space, do you have any 
additional questions? Mr. Braley, do you have--that concludes 
your time. You have been most gracious with your time.
    Mr. Strickland. Mr. Rush, it is my pleasure and the men and 
women in NHTSA really do thank you for this effort.
    Mr. Rush. Thank you so much. And the chair now will ask the 
second panel please be seated at the table. The chair wants to 
thank each and every one of you for your gracious sacrifice of 
your time. You have been very patient with us, and the chair 
wants to recognize you and thank you for it. I want to 
introduce the panel right now. Beginning from my left, a former 
member of the House of Representatives the esteemed Honorable 
David McCurdy, who now serves as the President and CEO for the 
Alliance of Automobile Manufacturers. David, it is good to see 
you, and welcome back to the subcommittee. Next to Mr. McCurdy 
is Mr. Michael J. Stanton. He is the President and CEO of the 
Association of International Automobile Manufacturers. Welcome, 
Mr. Stanton. Seated next to Mr. Stanton is our friend who was 
here before this subcommittee on many occasions, the Honorable 
Joan Claybrook. She is the former administrator for the 
National Highway Traffic Safety Administration. Welcome back, 
Ms. Claybrook. And then seated next to Ms. Claybrook is Mr. 
Clarence Ditlow. He is the Executive Director of the Center for 
Auto Safety. And seated next to Mr. Ditlow is Mr. Jim Harper. 
He is the Director of Information Policy Studies for the Cato 
Institute. Again, welcome to each and every one of you. And it 
is the practice of this subcommittee to swear in the witnesses. 
Will you please rise and raise your right hand?
    [Witnesses sworn.]
    Mr. Rush. Please let the record reflect that the witnesses 
have all responded in the affirmative. And now we will 
recognize Mr. McCurdy for 5 minutes for the purposes of opening 
statement.

  TESTIMONY OF THE HONORABLE DAVE McCURDY, PRESIDENT AND CEO, 
   ALLIANCE OF AUTOMOBILE MANUFACTURERS; MICHAEL J. STANTON, 
  PRESIDENT AND CEO, ASSOCIATION OF INTERNATIONAL AUTOMOBILE 
      MANUFACTURERS; THE HONORABLE JOAN CLAYBROOK, FORMER 
ADMINISTRATOR, NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION; 
 CLARENCE DITLOW, EXECUTIVE DIRECTOR, CENTER FOR AUTO SAFETY; 
 AND JIM HARPER, DIRECTOR OF INFORMATION POLICY STUDIES, CATO 
                           INSTITUTE

                   TESTIMONY OF DAVE McCURDY

    Mr. McCurdy. Thank you, Mr. Chairman, and Ranking Member 
Whitfield, and members of the subcommittee for inviting me back 
to discuss this draft of the Motor Vehicle Safety Act of 2010. 
In the interest of time, I am going to request my full 
statement be admitted in the record, and I am going to briefly 
go through some highlights, if I may. And since this is a 
discussion draft, I hope that this can also be a frank 
discussion because I think we need to get to the root of some 
of these issues. There has been a lot of discussion on auto 
recalls in recent months, so let me start by reassuring the 
American consumer that we are in a historic period of auto 
safety in the U.S., and I think Mr. Whitfield mentioned some of 
the statistics about the declining rate of traffic fatalities 
and that our roads are safer today, lowest level since 1949.
    Consumers are benefitting from many innovative life-saving 
technologies that assist the driver, including the electronic 
stability control, lane department warning system, blind spot 
monitors, and adaptive cruise control. We also, if you look at 
safety in another way, today we see more frequent recalls but 
fewer vehicles are recalled compared to a decade ago. That fact 
suggests that both NHTSA and automakers are effectively 
spotting early warning signs and taking faster action. If 
Congress wants to reassure consumers quickly about auto safety, 
lawmakers should focus on three or four of these measures that 
enhance safety the most, and if I may, I will make some 
recommendations.
    First, the Alliance supports a vehicle brake override 
standard that will ensure consumers that they can count on 
their automobiles. Brake override technology is a comprehensive 
solution to unintended acceleration whether it is caused by 
faulty electronics or pedal getting caught in a floor mat. 
Therefore, a pedal placement rulemaking, however, would not 
provide additional safety benefits so brake override, yes, 
pedal safety, redundant. The Alliance supports the intent of 
the keyless ignition system standard to ensure a consistent 
means of shutting off an engine during an emergency. However, 
brake override is a preferable solution to unintended 
acceleration. If rulemaking is necessary, it should focus on 
standardizing engine shut off procedures and not on design 
features like the appearance or location of the button.
    The Alliance supports requiring event data recorders in new 
vehicles, but we are concerned about provisions that suggest 
they should be like black boxes in airplanes. The typical 
airplane black box costs roughly $22,000, which is close to the 
average price of a new car. In my opinion, Representative 
Green's legislation, H.R. 5169, a member of this subcommittee, 
is a better approach. A proposed transmission configuration 
standard is not necessary because such a standard already 
exists, FMVSS No. 102. The Alliance urges Congress to adopt 
legislation that enhances our knowledge and expertise. We 
support a center for vehicle electronics and emerging 
technologies with NHTSA. Even in this partisan environment, 
this is something we can all agree on.
    We urge Congress to fund the National Automobile Sampling 
System or NASS, which has shrunk to a third of its intended 
size, important data collection. We also urge Congress to fund 
the Driver Alcohol Detection System for Safety or DADSS to help 
identify vehicle technologies that can stop drunks from turning 
on a car and hopefully saving many thousands of lives each 
year. There are always trade-offs and competing demands when 
you are writing legislation. Congress will need to balance some 
of the proposals with consumer concerns and marketplace 
concerns. For example, Congress will need to balance the desire 
for more data with privacy protection for consumers. NHTSA 
spent many years assessing the data to be collected by EDRs and 
we are in the middle of a phase-in period for that standard, so 
we need time to assess the impact of the first rule before we 
start writing the next rule.
    Congress must also balance the desire for public 
information with valuable product information. The purpose of 
early warning data is to enable NHTSA to identify trends and 
take action sooner, not to create an eBay or Amazon.com where 
competitors can surf for company trade secrets or lawyers can 
shop for clients. Citizens are better served when safety 
legislation empowers engineers, not trial lawyers. Congress 
will need to avoid the possibility of creating a system of 
regulation by litigation. Congress should not enact measures 
that will have the unintended effect of slowing and not 
accelerating action on safety matters. If every petition denial 
is subject to judicial review, NHTSA will be forced to spend 
substantial resources and time responding to every petition 
regardless of its merit in anticipation of judicial review. 
This will not serve the agency, the industry or the public 
well.
    Finally, Congress will need to preserve basic fairness and 
due process under the law. The Alliance does not oppose an 
increase in civil penalties but penalties must be capped at 
some reasonable level. The proposed 5-fold increase is 
surprising since 2 years ago this committee set a cap at $15 
million per offense on penalties that could be assessed to 
manufacturers of other types of consumer products. Regarding 
granting NHTSA imminent hazard authority, all I can say is, Mr. 
Chairman, the proposed provisions need further work. They are 
so lacking in standards, and the opportunity to be heard before 
a neutral decision maker as in our opinion to violate the due 
process clause of the U.S. Constitution.
    Furthermore, if Congress in my experience has a stick it 
will always want a club. Regarding corporate responsibility for 
NHTSA reports, the proposed personal liability for auto 
executives would be $250 million. That is 50 times higher than 
for executives under Sarbanes-Oxley, which resulted from the 
Enron scandal where executives went to prison. In closing, I 
know the challenge of getting a consensus. I have chaired 
several subcommittees and a full committee. This bill can be 
made stronger by focusing on what is most important, and we 
look forward to working with you to identify the key provisions 
that will actually improve safety and benefit consumers. Thank 
you.
    [The prepared statement of Mr. McCurdy follows:]
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    Mr. Rush. Thank you very much. The chair now recognizes Mr. 
Stanton for 5 minutes.

                TESTIMONY OF MICHAEL J. STANTON

    Mr. Stanton. Thank you, Mr. Chairman, and thank you, Mr. 
Whitfield. I am Mike Stanton, President and CEO of the 
Association of International Automobile Manufacturers. AIAM and 
its member companies appreciate the subcommittee's efforts to 
improve motor vehicle safety and understand the intended 
benefits of the bill. We also fully support the subcommittee's 
proposal to provide additional engineering and related 
resources to NHSTA including improving the agency's vehicle 
safety database to provide greater public accessibility. 
However, AIAM believes that NHTSA must be given the necessary 
time and flexibility in its rulemakings so it can make good 
decisions. Similarly, manufacturers require sufficient lead 
time to engineer tests and produce v vehicles that will meet 
the new standards.
    We are concerned that the rulemaking mandates in the draft 
bill pre-determine conclusions as to matters currently under 
the investigation and not yet fully analyzed by NHTSA. As a 
general matter, it would be more appropriate to direct NHTSA to 
complete its investigations as soon as possible and issue rules 
based upon a full and comprehensive analysis of these important 
safety issues. Regarding the nine mandated rulemakings in the 
draft, we defer to NHTSA's judgment as to the feasibility of 
the deadlines for issuing the numerous final rules as specified 
in the bill. However, we note that the deadline for many 
rulemaking mandates appear to be unreasonably short and provide 
insufficient lead time.
    Short deadlines can adversely affect the quality of the 
final rule and prior to issuance of a final rule, NHTSA often 
finds it necessary to conduct research to address issues that 
first arise during the rulemaking process. From our 
perspective, if the short deadlines adversely affect the 
quality of the final rules, we all lose. With regard to the 
effective date specified in the bill, we note that while some 
of our members already equip their vehicles with several 
technologies contemplated by this legislation, for example, 
brake override and EDRs, others do not. For those manufacturers 
who do not currently employ these technologies, especially some 
of the small volume manufacturers the effective dates specified 
in the bill are simply not feasible.
    Even those companies that currently have these technologies 
also need sufficient lead time because there are no assurances 
that these current technologies will be consistent with the 
mandates in the final rule. In addition, the draft bill does 
not provide for the new requirements to be phased in nor does 
it provide for phase-in incentive to promote early deployment 
where feasible. It is generally more efficient for 
manufacturers to implement new technologies at the time of 
model changes so that the new items can be better integrated 
than would be the case with the purely add-on approach.
    With respect to the proposed corporate responsibility 
requirement in Section 305, we have concerns that this 
requirement could significantly chill the speed of the safety 
investigation practices used by some AIAM members and introduce 
non-safety experts into the process. The current practice used 
by some AIAM members separate safety-related decisions from 
financial considerations and intentionally excludes these 
executives. We are concerned that the proposal might have the 
unintended consequence of introducing financial considerations 
inherent when highest ranking executives are involved into that 
safety decision making process. We also note that under 
existing law manufacturers are already legally responsible and 
accountable for submitting accurate information to NHTSA. 
Providing false or misleading statements to the federal 
government is strictly prohibited.
    AIAM does not believe that requiring a senior official to 
certify responses to safety investigations and other 
submissions to NHTSA is necessary or practicable. However, if 
the committee insists on some sort of senior officer 
certification consideration should be given to limiting the 
scope of the certification to formal responses to NHTSA's 
defect determinations. Additional considerations should be 
given to allowing the corporate officers specifically charged 
with safety matters to certify submissions. Mr. Chairman, my 
written testimony provides AIAM comments on most of the 
sections of the bill. I would be more than happy to answer 
questions at the appropriate time.
    [The prepared statement of Mr. Stanton follows:]
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    Mr. Rush. The chair recognizes the Honorable Joan 
Claybrook. Ms. Claybrook, you are recognized for 5 minutes.

                  TESTIMONY OF JOAN CLAYBROOK

    Ms. Claybrook. Thank you so much, Chairman Rush, and thank 
you for your work on this bill. I am Joan Claybrook, and I am 
President Emeritus of Public Citizen, and a former 
Administrator of NHTSA. And since I left office in 1981, a 
million people have died in auto crashes and many, many more 
have suffered horrible injuries, many millions more, and a cost 
to the nation of about $6 trillion. So this is a huge issue. In 
the last 18 months, we have seen some huge regulatory failures 
in this country, whether it has been in the massive failure of 
regulation in the financial sector, whether it has been in the 
case of the Toyota Motor Company, whether it has been in the 
case of the 29 miners who have died because of violations in 
the mining industry, whether it has been because of the 
horrific oil leak explosion and the lack of regulation there, 
and the cost to the nation to individual families, to small 
businesses, have been unending and will continue for many years 
to come for all of these families that have been involved.
    I say these because of these regulatory failures, this 
corporate malfeasance, this attitude of profits before safety 
and extraordinary loss of life in auto crashes set the back 
drop, it seems to me, for the discussion about the need for 
this bill. With strong regulation and enforcement regulated 
companies take fewer risks with the public safety environment 
and money, and I strongly endorse your bill because I think 
that it will help to deal and address some of these issues. I 
do ask that my entire statement be included for the record, but 
I will summarize our particular concerns.
    First, I would like to mention in Section 107 the event 
data recorders, which we believe need to be vastly improved 
from those now in practice, and there needs particularly to be 
a single uniform access tool for downloading them. Even, you 
know, there is an issue whether the location should be 
recorded. If you call 911 on your cell phone, they have your 
location, so I don't see why that is an exception. And I 
believe that there needs to be an automatic transmission of the 
data that is collected in the EDR to a NHTSA database with 
privacy protections obviously taken into account. NHTSA has 
been excellent at having privacy protections for all the data 
that is ever used. This feature is important for the essential 
NHTSA data gathering which is expensive and totally inadequate 
to date. The industry and we agree completely on improving the 
NASS system but NHTSA needs real time access to on the road 
information to conduct its research, rulemaking and 
enforcement.
    It needs robust and statistically valuable data and this 
can be accomplished as a part of the new EDR requirements. As 
to enforcement authority, I strongly support the new penalty 
provisions and the imminent hazard authority, but I urge the 
inclusion of criminal penalties in this legislation. I know 
there has been some objection and resistance to having criminal 
penalties, but I would just like to point out that statutes 
covering motor carriers, hazardous materials, aircraft, oil 
pipeline, waterfront safety, railroad safety, clean water, 
food, drugs, cosmetics, solid waste, clean air, mine safety, 
occupational safety and health, consumer product safety and 
consumer product hazardous substances, securities, antitrust 
and vehicular homicide all have criminal provisions in them, 
and I don't understand why anyone suggests that NHTSA should 
not as well.
    These prosecutions would have to go through the Justice 
Department, which has a very high standard for intent and there 
would have to be knowing and willful, so I think it ought to be 
included in this legislation. We support the transparency 
provisions in the legislation because the encourage and assist 
the public in reporting safety problems, and we support the 
judicial review for a public petition for recall. The industry 
talks about wanting due process for itself. We want due process 
for consumers. Without the opportunity for oversight, the 
agency can ignore its obligations and it indeed has in the 
past. It is unlikely that this provision would be used often 
because it is expensive to bring such suits, but it is 
important.
    And I do endorse adjustments to this section in addition 
clarifying that lawsuits--in the transparency section that 
lawsuits should be separately reported from vague claims of 
letters under early warning, that categories of defective 
elements of a vehicle should be vastly enlarged so the public 
knows what we are talking about, that we should make public 
reports that manufacturers have of deaths under early warning, 
and that collecting the names and addresses of after market 
tire purchasers should be included that they can be notified 
about recalls which they cannot be now, and to require NHTSA to 
fully document meetings with interested parties when they have 
them, which they haven't been doing. As to funding, we think 
the agency is starving to death. The whole budget is $132 
million. It needs to be vastly increased, and it should be $500 
million a year, and so we hope that that will happen under your 
jurisdiction.
    And, finally, I do have in my statement, I won't mention 
them specifically, but I think there are three things that are 
included for the integrity of the agency, and that is not 
having a facility that is owned by an auto manufacturer having 
whistleblower protection and having revolving door protection. 
Thank you very much, Mr. Chairman.
    [The prepared statement of Ms. Claybrook follows:]
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    Mr. Rush. Thank you very much. The chair now recognizes Mr. 
Ditlow for 5 minutes.

                  TESTIMONY OF CLARENCE DITLOW

    Mr. Ditlow. Thank you, Mr. Chairman, and members of the 
committee. I am Clarence Ditlow, Executive Director of the 
Center for Auto Safety, a small group that has watch dogged the 
National Highway Traffic Safety Administration for 40 years 
now. We deeply appreciate the effort that went into drafting 
the proposed Motor Vehicle Safety Act of 2010 and both 
consumers and auto companies alike will benefit from 
fundamental reforms to the National Traffic and Motor Vehicle 
Safety Act. Indeed, when you look at NHTSA it is a wonderful 
agency. It has a vital mission but it is woefully underfunded, 
woefully understaffed, and outgunned by the industry it 
regulates. To expect today's NHTSA to adequately regulate the 
trillion dollar auto industry is like asking a high school 
basketball team to beat the LA Lakers.
    Unlike other public health and safety agencies NHTSA 
doesn't even have its own research facility. Instead, it must 
rent space at a facility owned by Honda. Now when we go back 
and look at the original agency, it was much better equipped to 
handle regulating the auto industry than today's agency. Today, 
there are twice as many vehicles. There are twice as many 
vehicle manufacturers. And the motor vehicles themselves are 
probably four times as complex as the motor vehicles that were 
on the roads in the 1960s and 1970s when the agency was formed.
    The original agency had a research program that did things 
like research on advanced air bags, a research safety vehicle. 
It did more research on electronic controls in vehicles in the 
'70s than it did in the '80s or '90s. That budget, those 
resources, they led to advanced safety standards like the air 
bag standard. The auto industry went from a company that 
couldn't dislike air bags more than--an industry that today 
they want to sell as many cars as they can with air bags and 
use those air bags to promote the sale of motor vehicles. It is 
an example safety does sell. What has happened though is that 
the safety system at the agency has significantly broken down, 
if we look just at the defects and recalls division, it used to 
be that the whole process was open. You could go in and look at 
citizen complaints. You could go in and look at warranty data. 
You could look at the files and rebut what the manufacturers 
were saying. Recalls and investigations took place in a much 
shorter period of time.
    We had the General Motors sudden acceleration problem due 
to failing engine mounts. From the time the investigation was 
open to 6.7 million vehicles were recalled was less than a 
year. GM didn't suffer in sales like Toyota did. And today what 
we have is investigations that go forward go on forever almost, 
and we have multiple recalls. The consumer is dismayed, the 
manufacturer loses sales. And when we look at the early warning 
system, the early warning system has actually made the 
investigatory process worse. Things that used to be public are 
not public anymore. You can't tell how many deaths and injuries 
that there are on Toyotas. There were 301 death and injury 
summary reports filed to NHTSA but only 15 were requested. All 
death reports should be made public.
    I have concentrated primarily on some of the openness and 
transparency. I want to say to Mr. McCurdy in the history of 
the agency we have 23 years when there was judicial review of 
agency decisions on defects, and in 23 years there were only 
two court challenges, scarcely a burden, and what you will find 
is a check and balance that is needed. When we go forward with 
rulemakings under this, we are going to have a situation where 
we are correcting the catch-up. The agency is behind. The 
agency needs more research, more funds. Just looking at the 
accident investigations alone, there is only $15 million. We 
need $60 million for accident investigations in this country, 
and they can catch defects like Toyota.
    So when I look forward to the future, this legislation 
provides a unique opportunity to not only reduce the 
unacceptable tolls of deaths and injuries on the nation roads 
but also to provide stability to the auto industry which 
suffers from lack of public confidence and sales when 
preventable defects such as Toyota's sudden acceleration occur. 
The federal government through NHTSA should lead the way to 
vehicle safety, not come on after the fact and try to clean up 
on this. So I thank you for your time.
    [The prepared statement of Mr. Ditlow follows:]
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    Mr. Rush. The chair now recognizes Mr. Harper. Mr. Harper, 
you are recognized for 5 minutes.

                    TESTIMONY OF JIM HARPER

    Mr. Harper. Thank you, Mr. Chairman, Ranking Member 
Whitfield, and members of the committee, I am very pleased to 
be here. My name is Jim Harper. I am Director of Information 
Policy Studies at the Cato Institute. I am delighted for the 
opportunity to testify about the Motor Vehicle Safety Act 
draft, and particularly Section 107. Until a decade ago when I 
left the Hill, I was a Judiciary Committee guy. I hope you 
won't hold that against me. I do believe maybe the substance of 
my testimony will be what you hold against me. Before I turn--
--
    Mr. Rush. We will try not to hold that against you.
    Mr. Harper. I appreciate that. Before we turn to the 
privacy issues at play with EDRs, I will make two observations 
that are really straight out of the skunk at the garden party 
file. Across the country today, Americans are re-reading the 
Constitution and they are trying to square what it says with 
the activities of Congress. I fully acknowledge the good 
intentions, of course, of everybody involved in auto safety 
issues, but I have a hard time finding that to be a federal 
government responsibility. The Constitution's grant of 
authority in the commerce clause was aimed at making commerce 
among states regular, ending the trade wars that had broken out 
among the states in the Articles of Confederation.
    Framers did not intend for the Congress to regulate the 
quality and caliber of goods and services traded in the United 
States. My quick study, necessarily quick study, of the 
economics of Section 107 dealing with EDRs draws me to doubt 
whether installing event data recorders in all cars sold in the 
United States is a cost effective auto safety measure. Driving 
the cost of new cars higher raises the cost of used cars 
because it limits the market of used cars as people don't trade 
up. Under the, I think, entirely plausible assumption that 
newer cars are safer than older ones raising the prices of cars 
with EDR technology keeps poorer people in older, less safe 
cars. Now, of course, that is not to say that analyzing data is 
a mistake. Good data will improve auto safety but almost 
certainly sampling auto crash data using EDRs in a cross 
section of cars would provide safety benefits without the cost 
of mandating EDRs for all cars sold in the United States.
    My analysis of the economics is worth the money you are 
paying for it, of course, but I want to highlight that there 
are trade-offs here and it would be regrettable if large 
societal investments in EDRs and EDR data drove up costs and 
kept the company's poorer drivers from trading up endangering 
their lives for the benefit of the wealthy drivers who buy new 
cars. I will turn to privacy, and there is no issue more 
complicated than privacy, of course. Privacy in its strongest 
sense, the word privacy means the ability to control 
information about one's self. I believe the protections for EDR 
data stated in Section 107 may help clarify the privacy issues 
around EDR data and still provide a small benefit in terms of 
privacy protection, but control also comes from having a say in 
the information infrastructure around you and what data 
collection happens in your car, in your home when you use your 
computer, and so on.
    Consumers today have no control and little awareness of 
EDRs in their cars. They can't control the presence of EDRs or 
their functioning. There are shades, unfortunately, in Section 
107 of too little, too late in terms of protecting consumer 
privacy. Consumers should have a say in the first instance of 
whether data is collected. Society wide data collection and use 
will continue to grow. In our society down the road the 
capacity of EDRs will grow undoubtedly. EDR data will integrate 
with other data collected and used by the automobile, and EDR 
data will regularly be used in litigation and for many other 
purposes. Your car is a computer, but if you have almost no 
control of what that computer does your privacy is very much 
threatened.
    Think of EDRs in the near future as an ankle bracelet that 
all drivers will have to wear just for getting behind the 
wheel. We are talking about a loss of privacy and autonomy in 
developing this kind of data infrastructure without consumer 
input or control. Without doubt, there is no doubt in my mind, 
of course, everyone is trying to do the best for auto safety 
and consumer welfare over all, but consumer welfare involves 
the freedom to live as you want unmonitored. I will brag 
slightly that I rebuilt a few engines when I was in high 
school. I am proud to report both of them ran when I was done 
with the process. There is no reason on God's green earth why a 
429 4-barrel and 1973 Mercury Montego should have a double 
roller timing chain but mine did, and I was proud of it.
    I miss the day, frankly, when people could tinker with 
their cars, make their cars an expression of themselves. It may 
be computer geeks in the future that want to tinker with their 
cars and with the data in computing power in their vehicles 
make those cars something special. But I think that freedom 
consistent with safety should continue to exist. Thank you very 
much for hearing me out.
    [The prepared statement of Mr. Harper follows:]
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    Mr. Rush. That concludes the opening statements of the 
witnesses. And I have a question that I want to ask all the 
witnesses to respond, if you will. A lot of ink has flown on 
this topic of automobile safety. There has been additionally 
several informative oversight hearings held in light of the 
Toyota incident. We have all come to the conclusion that NHTSA 
needs to be recalibrated, needs to be remade. We need a new 
model for NHTSA, an upgraded model for NHTSA, and it needs to 
be energized, it needs to be equipped to achieve its primary 
goal of securing public safety on the highways. And I just have 
a question, a general question for each and every one of you. 
In an immediate sense in a nutshell what is the best possible 
piece of legislation that you would envision? In other words, 
what in your words and your viewpoints, what is the provision 
that must exist in any kind of refurbishing of NHTSA and what 
provisions must not exist? Each one of you, would you--David 
wants me to start with you, Mr. Harper. Would you please be so 
kind?
    Mr. Harper. I am not a NHTSA expert, and I apologize for 
that, but I think two laws that are very important in this area 
that relate to some of what I said are the Regulatory 
Flexibility Act, which requires economic analysis of major 
rules, rules of having a consequence of more than $100 million, 
and I think the analysis should include what the potential 
costs of all mandates in the bill are, regulatory mandates, so 
that we can understand that if car prices are rising so high 
that it prevents a used car market from emerging. There are 
kids today driving around in cars from the '70s, and when they 
get in an accident those cars are more likely to get in 
accidents because of age and design flaws from the past.
    When they are in accidents they are likely to suffer more 
injuries just because newer cars have better safety features in 
them, so we have got to consider getting people out of older 
cars into newer cars and that is done by making sure that cars 
are relatively inexpensive, so there are trade-offs here. The 
reg flex act would be involved in that. Another is the 
Government Performance and Results Act. The Results Act was 
just getting started when I was on the Hill, and I recall NHTSA 
being an example of an agency that did a pretty good job of 
measuring results per dollar. It is a lot easier than rating 
components of the Justice Department where you are trying to 
measure justice in terms of per dollar. You can't do it. But 
traffic statistics you can do per dollar and I think continuing 
that would be important.
    Mr. Rush. Mr. Ditlow, do you have any concise comments?
    Mr. Ditlow. Mr. Chairman, I think that the transparency and 
oversight provisions are the most important because you can--
when you look at issuing new standards, we need them. There is 
no question about it. But I am looking at the past 40 years of 
this agency and there needs to be a public oversight to hold 
the agency accountable to enforce the laws that are there. And, 
unfortunately, we don't have the access today that we once had 
so creating the transparency of how the agency functions, the 
data that should be public but is not public, and then the 
right to judicially challenge the decisions of the agency, that 
is what will make the agency work for the future. It is the age 
old story, you can tell the agency to do something but how do 
you tell them to do a good job. It is the citizen that is going 
to make the agency do a good job.
    Mr. Rush. Thank you. Ms. Claybrook, I can't wait for your 
answer.
    Ms. Claybrook. Thank you so much, Mr. Chairman, for asking 
the question. I would say that the resources for the agency are 
totally essential, that this agency is starving to death, as I 
mentioned. $132 million is ridiculous to expect it to do its 
job. And so I think this bill should not be passed without a 
goal of $500 million a year annual budget for the agency in the 
next 4 years. So I would say an increase each year of $100 
million on top of the prior year. That is the only way this 
agency is going to have the capacity to do the job that you and 
I expect it to do. What it shouldn't have, in my view, is a 
situation where it has conflicts of interest. I think that it 
should not have a test facility owned by a manufacturer. I 
think it is a terrible conflict of interest so that that is 
something that is not in the bill. I think it should be added 
to the bill. I think that there should be criminal penalties.
    Mr. Rush. Thank you. Mr. Stanton.
    Mr. Stanton. Yes. Thank you for the question. I think I 
have been in the industry almost as long as most of the people 
up here, maybe not quite as long, but I remember very vividly 
when years ago when seat belt use was 12 percent and now we are 
up to over 90 percent, so we have made tremendous, tremendous 
progress in this whole area. And cars have gotten so much more 
complicated over the last 30 years, and we have argued and have 
lobbied not as successfully as I would like to say for 
additional funds for NHTSA when it comes to NASS, the NASS 
system and the FARR system. NHSTA needs to be a data-driven 
organization, and to the degree that we can get them a greater 
amount of better data the better off we all are going to be. 
And then the final point is that the rulemakings that NHTSA 
undertakes, they really have to be an open process and they 
really cannot have the final rule in sight when you start the 
process. You are not being data driven if you do that.
    So the degree that they can go through the rulemaking 
process, have it open, have the record dictate what the final 
rule looks like and when it ought to be implemented given into 
consideration the implementation schedules required by 
automobile manufacturers we end up with a better product.
    Mr. Rush. Mr. McCurdy, do you want to answer this?
    Mr. McCurdy. Yes, Mr. Chair. I wasn't completely deferring. 
I was just suggesting an order here. Mr. Chairman, the rule of 
thumb I have always used on legislation is if you have had 
hearing and you identify the problem then address the problem 
very clearly and simply. And we made some recommendations in 
our testimony those areas that address the particular problem 
that this committee and Congress has identified. We are not 
into re-litigating and going back to decisions on judicial 
review that was made in 1988 by courts. What we would like to 
do is work with you to see how we can make this a bipartisan 
approach that uses common sense to really address the 
underlying problems. And I think you have the basis there. 
Again, there are some key elements that--some real makings at 
NHTSA.
    And my last comment on this, I do not believe that NHTSA is 
broken. You used a car metaphor when you talked about a new 
model. It takes about 5 to 7 years for the industry to create a 
new drive train or a new model. You don't need to go through 
that. I think there are some tweaks here that you can address, 
and I think that--and we agree that it needs to be adequately 
resourced. The center is a good idea. There are some very 
important studies that are going to take place that we are 
anxious to see what those results are which provide data. The 
National Academy of Sciences and even NASA's recommendations I 
think will have real impact and help this committee do its work 
as well.
    Mr. Rush. Thank you. The chair now recognizes the gentleman 
from Kentucky for 5 minutes.
    Mr. Whitfield. Thank you all for your testimony. In reading 
your testimony and also in your verbal response to questions, 
there has been a number of references to these studies that are 
ongoing by NASA and by the National Academy of Sciences. Are 
those ongoing because of a contract with NHTSA or are these 
being conducted by contracts with the automobile manufacturers?
    Mr. Stanton. It is through NHTSA. It came about as a 
requirement from the Toyota investigations and the need for 
additional knowledge and DOT then contracted with NASS and 
NASA.
    Mr. Whitfield. Because as someone who really doesn't 
understand cars, it seems like this pedal placement standard 
and transmission configuration standard when you think about 
the vast variety of vehicles it would be difficult to come up 
with a uniform standard very quickly, and I think that the 
Administrator of NHTSA indicated that he did not think that 
they could meet the time frames in here. Do you all--how many 
of you believe that NHTSA could meet the time frames for the 
regulations called for in this legislation?
    Mr. McCurdy. As my colleague, Mr. Stanton, mentioned there 
are nine mandates in different rulemakings and we believe--and 
the Administrator admitted this was too compressed. Again, I 
don't think you have to have that many rulemakings. I don't 
think you have to--those will not address the problem that 
really was with Toyota. Brake override will address that. It is 
preferable to have a placement or the other approach which 
again there is a certain overreach in the drafting. And I 
understand positional negotiation and obviously the 
Administrator was asked the question what all he would like to 
see in this bill or did he cover, and he said it captures the 
universe. Well, it really does capture the universe. It is very 
broad. I think you need to narrow it now in order to get those 
real problems addressed. I think a very straight rulemaking on 
one or two items can address it.
    Mr. Whitfield. Ms. Claybrook, what do you think? Do you 
think that NHTSA can meet these deadlines?
    Ms. Claybrook. Well, they are certainly going to need a lot 
more resources in order to do so. I would say that. I think 
they are very tough deadlines. I think that they are important 
though. I don't think that the brake override solves the 
problem. The brake override is like a safety protection if you 
have a problem, but it doesn't solve the problem. What you need 
to solve the problem is to change the electronics and improve 
the electronics in the vehicles themselves. And so I think that 
these standards are really important for the agency to address. 
The reason they have deadlines in them is because the agency 
has taken years and years and years in the past to do its job, 
and so there is a lot of frustration with that and with the 
endangerment of the public that occurs when they don't act.
    Mr. Whitfield. I personally--yes, Mr. Stanton.
    Mr. Stanton. Just real quickly. There is already a standard 
FMVSS on the transmission and it has to be intuitively correct, 
so there is some work that has already been done on that. But I 
don't think that there is any way in the world that you could 
anticipate what the requirements are going to be, what the 
rulemaking outcome should be. Take, for example, your pedal and 
brake interface. What does that mean? How are they going to 
deal with that? Are they going to move the break pedal further 
away from the gasoline pedal? And then what is the implication 
of that on safety and what does it mean to the floor plan of 
the vehicle? And then how do you do that in 2 years? That is 
not good government.
    Mr. Whitfield. Do you have those concerns, Mr. Harper?
    Mr. Harper. I do. If you look at some of these, there is a 
great deal of information the agency already has. There was a 
year long study done through the Volpe Center on the brake 
pedal placement. There are certain recommendations that they 
have made. And then when you look at all nine standards there 
is provision for the agency that if they can't meet the 
deadlines to come back to the Hill and inform the Hill of that. 
And that happened with the roof standard that was just here 
last year and we got a much better standard out of it.
    Mr. Whitfield. Mr. Harper, do you want to comment? OK. Let 
me ask one other question, and I see my time is about to run 
out. The judicial review for a defect petition rejection and 
trying to stay in imminent hazard order the judicial reviews 
are different. In one you go to U.S. District Court and the 
other you go to the U.S. Court of Appeals. Does the fact that 
these judicial review procedures are different, is that of 
concern to any of you?
    Mr. Stanton. I guess I would say that the way that they are 
handled is problematic in both cases for different reasons. 
Certainly the judicial review on imminent hazard is a deviation 
from what is under the CPSC and the other area where the agency 
would have to go to court to get the teeth and ability to do 
it. But the judicial review on the other side is for both 
defects, rejections, and also for new standards. Now we are 
concerned that you could have a lot of people that would like 
to see a new standard that NHTSA would really not for good 
reason not want to promulgate and yet they have now devoted to 
the court, and we think it ties up the agency, will tie up the 
lawyers and not get the job done.
    Mr. Whitfield. Thank you, Mr. Chairman.
    Ms. Claybrook. If I could just comment on that. I would 
just comment not on the need for them but on just the procedure 
which is that I think under the imminent hazard provision you 
would have to have some kind of a mandatory agency hearing of 
some sort so that there would be a record before they would go 
to the Court of Appeals so I just comment on that.
    Mr. Ditlow. The provision for review of defect petition is 
limited to that defect petition. We have 23 years of experience 
where there was judicial review until the court in 1988 said 
there was no law to apply, and yet we only had two lawsuits, 
and one of those lawsuits actually resulted in the Kelsey-Hayes 
landmark decision where instead of recalling 50,000 GM pickups 
with a camper body, they recalled 200,000 because all the 
wheels on any of the GM pickups could fail. So it has worked, 
and what we would like to do is just reinstate it.
    Mr. Rush. Mr. Braley, you are recognized for 5 minutes.
    Mr. Braley. Thank you, Mr. Chairman. Mr. Harper, I took 
note of your testimony talking about people who are foregoing 
new purchases, remaining in older cars which in many cases are 
more hazardous to operate on the roadways of this country, and 
the effect of that in terms of greater morbidity and mortality. 
This came up during the Cash for Clunkers debate because as one 
of the original co-sponsors of that bill a lot of us felt like 
we could have done more in terms of giving incentives for 
people to get older cars, used cars, off the road and replacing 
them with higher quality used cars in addition to new cars. And 
one of the things that Consumer Reports mentioned was that a 
benefit that few people talk about from that Cash for Clunkers 
program was a dramatic improvement in vehicle safety from those 
older cars that were being taken off the road and replaced with 
some that had some of the safety components that Mr. McCurdy 
referred to in his opening statement, that consumers are 
benefitting from a range of innovative new safety technologies. 
So I think one of the things we have to be doing as we set 
policy outside the scope of NHTSA is also looking at ways to 
provide incentives to people who because of their economic 
circumstances are stuck in these older vehicles. We see this in 
the real world environment.
    And I think that is something that goes beyond partisan 
politics and get to the root cause of how we provide people 
with a better occupant compartment. But I would like Ms. 
Claybrook to comment on the privacy concerns that Mr. Harper 
raised because my understanding of privacy is that it goes to 
an expectation of privacy that in order to have a basic right 
to assert a claim based on privacy you have to have an 
expectation in that time, manner, and place that there is a 
privacy concern to protect. In order to be in one of these 
vehicles with an EDR device in it, you have to be licensed and 
given the privilege of operating a motor vehicle. So I would 
like you to respond because in one of the points you raised you 
talked about the necessity for mandating recording of these 
incidents, and I would like you to respond to that.
    Ms. Claybrook. Well, I can tell you that NHTSA has 
incredible privacy protections built into all of its operations 
and particularly for any investigation that is done of any 
crash. They have been doing this for 45 years, and as far as I 
know there has never been any disclosure in all that time of 
the thousands and thousands of crashes they have investigated 
of any problem, and that is not something that necessarily 
people would even have an expectation about because they don't 
necessarily know that their crash is going to be investigated. 
With regard to EDRs, every consumer should have in the owner's 
manual and I believe even more prominently in the vehicle when 
they buy it an indication that they have an EDR so that they 
know they have one that they have the right to have that 
information. They own that information, in fact.
    What I have suggested in addition is that there be an 
electronic transmission of just the data, not the private 
information of who owns the car or the name of anybody to the 
agency so that it can have real time data to do its job, and 
this where Mr. Stanton and I completely agree. We think that 
the agency needs much more data, and if we can send a satellite 
up and we can download data from that satellite or if we can 
send people to the moon and talk to them from NASA while they 
are up there, it seems to me we can download data from an EDR. 
So the technology is certainly available. It is just a matter 
of the will to do it and to do it in a way that does not harm 
any person.
    Mr. Braley. And that goes to one of your related 
recommendations in that the third item you mentioned was the 
access tools be commercially available, which is a current 
standard. We have to have a uniform system for recording and 
extrapolating the information. This is the same problem we 
faced, by the way, with electronic health care records and the 
problem we are having with the ability to share information 
that can help us transform the way we learn from the health 
care that is being delivered in this country. One of the other 
questions I wanted to ask you about has to do with the 
reporting of lawsuits of part of the early warning system, 
which is not currently required. The reason I don't understand 
why that was not part of the original requirement is if you 
look at the parallel problem of reporting incidents of 
preventable medical errors under the national practitioner's 
database they are required to report both claims that are 
reported under any system as well as lawsuits are filed, and 
that is part of a comprehensive effort to improve patient 
safety. Wouldn't that same logic apply in this setting?
    Ms. Claybrook. Absolutely, and, in fact, we ask the agency 
to include a separate listing of when lawsuits are filed 
because if someone just writes a letter to an auto company and 
says, well, I am thinking about making a claim against you 
because I have been harmed from a defect in your vehicle, it is 
an entirely different thing than if a lawsuit has actually been 
filed because these lawsuits are complicated, difficult, 
expensive, and people don't file them unless they have a real 
view that they could win these lawsuits because they are taken 
on a contingent fee basis by the lawyer who doesn't want to 
have to end up paying a lot of money to do it and then not 
winning the lawsuit.
    It is entirely different in terms of the seriousness of 
that issue, and so I think that separately reported from just 
claims ought to be lawsuits filed on any particular make, model 
or alleged defect that is reported under the early warning 
system. And it is just a number of lawsuits. It is not anything 
else. It is just a number. And so the consumer knows when they 
go on the database they could look and see here is my make, 
model. There is an alleged defect. That is the same problem I 
had. And, by the way, there are two lawsuits that have been 
filed or there are 20 lawsuits that have been filed, whatever 
it may be. That is going to inform them a lot more about the 
seriousness of this issue than just that there is a bunch of 
claims that have been perhaps discussed.
    Mr. Braley. Thank you. I yield back the balance of my time.
    Mr. Rush. The chair thanks the gentleman, and the chair 
thanks all the witnesses. There is a vote occurring on the 
floor so with that said, we are going to adjourn the panel. And 
thank you again for your time that you have invested in this 
hearing and this legislation. Thank you so very much. The 
committee now stands adjourned.
    [Whereupon, at 2:15 p.m., the Subcommittee was adjourned.]
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