    [Senate Hearing 111-992]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-992

                              EXAMINING S. 3302,
                      THE MOTOR VEHICLE SAFETY ACT OF 2010

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

                                    HEARING

                                   before the

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  MAY 19, 2010

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

                                   ----------
                             U.S. GOVERNMENT PRINTING OFFICE

    66-783 PDF                       WASHINGTON : 2011

    For sale by the Superintendent of Documents, U.S. Government Printing
    Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
    DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
    Washington, DC 20402-0001

           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                         ONE HUNDRED ELEVENTH CONGRESS

                                 SECOND SESSION

                JOHN D. ROCKEFELLER IV, West Virginia, Chairman
    DANIEL K. INOUYE, Hawaii             KAY BAILEY HUTCHISON, Texas,
    JOHN F. KERRY, Massachusetts             Ranking
    BYRON L. DORGAN, North Dakota        OLYMPIA J. SNOWE, Maine
    BARBARA BOXER, California            JOHN ENSIGN, Nevada
    BILL NELSON, Florida                 JIM DeMINT, South Carolina
    MARIA CANTWELL, Washington           JOHN THUNE, South Dakota
    FRANK R. LAUTENBERG, New Jersey      ROGER F. WICKER, Mississippi
    MARK PRYOR, Arkansas                 GEORGE S. LeMIEUX, Florida
    CLAIRE McCASKILL, Missouri           JOHNNY ISAKSON, Georgia
    AMY KLOBUCHAR, Minnesota             DAVID VITTER, Louisiana
    TOM UDALL, New Mexico                SAM BROWNBACK, Kansas
    MARK WARNER, Virginia                MIKE JOHANNS, Nebraska
    MARK BEGICH, Alaska
                        Ellen L. Doneski, Staff Director
                       James Reid, Deputy Staff Director
                       Bruce H. Andrews, General Counsel
                     Ann Begeman, Republican Staff Director
                 Brian M. Hendricks, Republican General Counsel
                      Nick Rossi, Republican Chief Counsel

                                C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on May 19, 2010.....................................     1
    Statement of Senator Pryor.......................................     1
    Statement of Senator Rockefeller.................................     7
        Prepared statement...........................................     8
    Statement of Senator Wicker......................................    10
        Prepared statement...........................................    10
        Prepared Statement of Jim Harper, Director of Information
          Policy Studies, The Cato Institute to the House Energy and
          Commerce Committee's Subcommittee on Commerce, Trade, and
          Consumer Protection at a Hearing on ``H.R. ___, the Motor
          Vehicle Safety Act''--May 6, 2010..........................    11
    Statement of Senator Klobuchar...................................    20
    Statement of Senator Thune.......................................    64
        Prepared statement...........................................    64

                                   Witnesses

    Hon. David L. Strickland, Administrator, National Highway Traffic
      Safety Administration..........................................     2
        Prepared statement...........................................     4
    Hon. Dave McCurdy, President and CEO, The Alliance of Automobile
      Manufacturers..................................................    29
        Prepared statement...........................................    30
    Clarence M. Ditlow, Executive Director, Center for Auto Safety
      (CAS)..........................................................    37
        Prepared statement...........................................    39
    Michael J. Stanton, President and CEO, Association of
      International Automobile Manufacturers, Inc. (AIAM)............    45
        Prepared statement...........................................    47
    Hon. Joan Claybrook, President Emeritus, Public Citizen; and
      Former Administrator, National Highway Traffic Safety
      Administration.................................................    52
        Prepared statement...........................................    54

                                    Appendix

    Hon. Kay Bailey Hutchison, U.S. Senator from Texas, prepared
      statement......................................................    79
    Hon. Tom Udall, U.S. Senator from New Mexico, prepared statement.    79
    National Automobile Dealers Association, prepared statement......    82
    Letter, dated May 18, 2010 to U.S. Senate Commerce Committee,
      Committee on Energy and Commerce, U.S. House of Representatives
      from Byron Bloch, Auto Safety Expert, Auto Safety Design.......    83
    Letter, dated May 20, 2010 to Hon. Tom Udall and Hon. Bob Corker
      from Jeffrey W. Runge, MD, President, BIOLogue.................    87
    Hon. Susan Molinari, Chairman, The Century Council, prepared
      statement......................................................    87
    Response to written questions submitted by Hon. Tom Udall to Dave

      McCurdy........................................................    88
    Laura Dean-Mooney, National President, Mothers Against Drunk
      Driving (MADD), prepared statement.............................    90
    Response to written questions submitted to Hon. David L.
      Strickland by:
        Hon. Maria Cantwell..........................................    93
        Hon. Tom Udall...............................................    95

                              EXAMINING S. 3302,
                      THE MOTOR VEHICLE SAFETY ACT OF 2010

                                  ----------

                            WEDNESDAY, MAY 19, 2010

                                           U.S. Senate,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 4:18 p.m. in room
    SR-253, Russell Senate Office Building, Hon. John D.
    Rockefeller IV, Chairman of the Committee, presiding.

                 OPENING STATEMENT OF HON. MARK PRYOR,
                       U.S. SENATOR FROM ARKANSAS

        Senator Pryor [presiding]. I'll go ahead and call our
    hearing to order today. The Committee on Commerce, Science, and
    Transportation today will be considering S. 3302, the Motor
    Vehicle Safety Act of 2010.
        We have a great panel of witnesses today. I want to thank
    all of our witnesses for coming, and the others in attendance
    here.
        And Chairman Rockefeller has been detained on the floor. We
    think he's heading back this direction, but he has asked me to
    go ahead and get underway. And we will have opening statements
    as Senators arrive here. As you all know, we're in a rollcall
    vote right now, and I don't think it has closed, just yet. So,
    we'll probably have a few Senators trickle in.
        But, first I want to thank Chairman Rockefeller for his
    leadership on this issue and for holding this hearing to review
    legislation that he and I have worked on in recent weeks to
    address some of the issues that came to light during this
    committee's March 2nd hearing on sudden unintended
    acceleration. That hearing revealed several weaknesses at
    NHTSA, and within the industry, that we have attempted to
    address in the legislation under consideration before us today.
        I believe our legislation, while not perfect, represents a
    reasonable, strong, smart, and lasting approach for dealing
    with automobile safety concerns identified in our review of the
    recent sudden unintended acceleration cases. Among others
    things, our legislation requires NHTSA to focus on electronic
    and computer control systems in the modern automobile. And I
    think one of the reasons that's important is most of us, when
    we think of cars, we certainly think of them as mechanical, and
    they are, still, very much. But, now there's a very important
    electronic component to most vehicles, if not all, and I think
    it's time for NHTSA to focus on the computer systems and
    electronics of vehicles, because I think they have a very
    direct bearing on safety.
        The bill also increases funding for NHTSA to oversee the
    diverse range of mechanisms involved in automobiles of the
    Digital Age. It establishes safety standards to address
    weaknesses identified in our recent review of sudden unintended
    acceleration. It provides the design and function of NHTSA's
    website in early warning reporting database. And, here again,
    we just think that it's time for NHTSA to look at that anew.
    And, see if we can improve the way the database works and,
    where it would benefit as many people as possible.
        The bill also enhances NHTSA's existing authorities to
    provide for better consumer protection. It strengthens
    penalties for companies that knowingly mislead NHTSA. And it
    attempts to address a potentially problematic cozy relationship
    between NHTSA and the industry it is tasked to oversee. I know
    that not everyone agrees that there's a cozy relationship
    there, but the bill tries to make sure that there's not.
        And I look forward to hearing from our witnesses today. And
    I hope that we're able to move this legislation through the
    Committee sometime soon and move it to the floor and,
    hopefully, get the process started as soon as we can.
        So, as we're still waiting on Senators to arrive because of
    the rollcall vote, what I'd like to do is acknowledge and
    introduce our first witness. It's The Honorable David
    Strickland, Administrator of the National Highway Traffic
    Safety Administration, U.S. Department of Transportation. I
    could give a very long introduction, here, because he has had a
    distinguished, even a remarkable, career helping consumers, and
    he's already making a big impact at NHTSA.
        So, with that, Mr. Strickland, would you mind giving your
    opening statement?

                 STATEMENT OF HON. DAVID L. STRICKLAND,

                             ADMINISTRATOR,

             NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATOR

        Mr. Strickland. Thank you very much, Senator Pryor. I
    really appreciate the kind introduction and the opportunity to
    appear before the Commerce Committee again.
        Members of the Committee, the men and women of NHTSA thank
    you for the opportunity today to discuss the proposals to
    strengthen the authority of the National Highway Traffic Safety
    Administration. I applaud the Committee members, and their
    staffs, for working so hard to understand these issues and for
    reflecting that understanding in the Motor Vehicle Safety Act
    of 2010.
        Time has not permitted a full review of all the
    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 for us to work together
    to improve safety on our Nation's roadways. Again, we very much
    appreciate the provisions in the bill 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
    negotiating and dealing with the manufacturers. With the
    addition of imminent hazard authority, which would bring
    NHTSA's authority into line with that of many other safety and
    health agencies in the Federal Government, this provision gives
    NHTSA an important avenue through which to deliver on its
    promise of consumer protection. And it is a mission that I
    strongly believe in.
        However, as drafted, the provision stops short of giving
    NHTSA full recall-order authority in these situations, when
    needed. The bill would permit NHTSA to order manufacturers to
    notify purchasers that the vehicle, or equipment, poses an
    imminent safety hazard, and provide the purchaser with
    information explaining the safety risks and actions purchasers
    can take to reduce that risk. Notification does not constitute
    a recall, which consists of both notice to the owners and the
    provision of a remedy or the noncompliance or defect. We would
    like to work with the Committee to ensure that the legislation
    provides consumers with an actual remedy in the face of an
    imminent hazard.
        As part of our safety mission, NHTSA collects a wealth of
    information in our various databases. We share in President
    Obama's assessment that information maintained by the Federal
    Government is a national asset.
        The proposed legislation would require NHTSA to improve the
    accessibility of the information on its publicly available
    safety databases. We will be very happy to do so, and we
    already have several ideas on how to make our recall, and our
    investigations data, much more user-friendly.
        Even in their 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.
        Some of the rulemaking provisions that are also included in
    the legislation do not currently provide the flexibility that
    NHTSA needs in determining the best way to devise standards
    that accomplish the bill's current purposes. For example, the
    event data-recorder provision contains very specific time
    periods during which data would have to be recorded under the
    new rule. NHTSA needs the flexibility to determine what
    parameters are technologically feasible and what would be best
    to serve the purposes of the provision.
        Similarly, the section's prohibition on permitting event
    data recorders to record or transmit vehicle location may be
    disruptive to advanced crash notification systems that can
    provide emergency responders with precise location of
    accidents. NHTSA needs discretion to balance the competing
    needs of privacy and the automatic notification of emergency
    first responders.
        I and the staff of NHTSA are looking forward to working
    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 safety crashes. We will be accountable to the
    President, to the Secretary of Transportation, and to the
    American public, whom we are very proud to serve.
        Thank you very much, Senator Pryor and the rest of the
    Committee. I look forward to answering your questions.
        [The prepared statement of Mr. Strickland follows:]

        Prepared Statement of Hon. David L. Strickland, Administrator,
                 National Highway Traffic Safety Administration
        Chairman Rockefeller, Ranking Member Hutchison, and members of the
    Committee:
        Thank you for the opportunity to appear before you today to discuss
    legislative proposals to strengthen the authority of the National
    Highway Traffic Safety Administration (NHTSA) and to address many
    issues raised by the recent Toyota recalls. I applaud the Committee
    members and their staff for working so hard to understand these issues
    and for reflecting that understanding in S. 3302, ``The Motor Vehicle
    Safety Act of 2010.''
    Status of NHTSA's Activities Related to Toyota Recalls
        Before I speak to some of the proposed measures in the bill, allow
    me to briefly summarize the current status of NHTSA's activities
    related to the Toyota recalls. As you know, we initiated three separate
    actions in February: a timeliness query (TQ) related to the pedal
    entrapment recall; a TQ related to the ``sticky pedal'' recall; and a
    recall query (RQ) looking at whether those two recalls were sufficient
    in scope and whether there are other matters related to unintended
    acceleration in Toyota vehicles that should have been addressed by the
    company. On April 19, Toyota agreed to pay $16,375,000 in civil
    penalties in connection with the sticky pedal TQ. This is the maximum
    penalty available under current law. NHTSA believed the penalty was
    warranted due to the company's failure to inform the agency in a timely
    way about the safety defect involved in that recall.
        We are continuing to review the large number of documents submitted
    by Toyota in response to the pedal entrapment TQ. We have not reached a
    decision yet on whether the facts of that case warrant a civil penalty.
    We have recently begun to review the huge volume of documents received
    in response to the RQ. The documents are so numerous that we have
    entered into an agreement with the Department of Justice to help us
    categorize and analyze the documents. That task will take some time.
        At the same time we have undertaken two important reviews of issues
    related to unintended acceleration. The first is a review of the
    electronic throttle control (ETC) system in Toyota vehicles. This
    review entails in-depth research into the design, function, and safety
    measures associated with that system, including all of its electronic
    components and software. The National Aeronautics and Space
    Administration (NASA) is assisting us in this effort, which is well
    underway. NASA brings its great expertise in electronic control
    systems, forensic analysis, and fail-safe design to the project. NASA's
    expertise is being complemented by specific automotive electronics and
    safety systems expertise from both inside and outside of NHTSA. The
    team is working to identify any possible failure modes in the ETC
    system that can lead to unintended acceleration and that involve
    conditions that can realistically be expected to occur in consumers'
    use of these vehicles. We are hoping to complete this review of the ETC
    system by the end of August, but that will depend on just how quickly
    the necessary testing and analysis can be done. If we do find such
    possible failure modes that might explain any of the unintended
    acceleration events reported to NHTSA, we will open a defect
    investigation.
        The second review will be conducted by an independent panel of
    experts chosen by the National Academy of Sciences (NAS). This group
    will study the broad subject of unintended acceleration and electronic
    control systems across the automotive industry. They will look at
    subjects such as electronic vehicle control systems' design and
    reliability (including hardware and software issues), electromagnetic
    compatibility and electromagnetic interference, existing relevant
    design and testing standards, human factors and the possibility of
    human error, and mechanical failure. The panel will make
    recommendations to NHTSA on research, rulemaking, and enforcement
    activities and the personnel, infrastructure, and financial resources
    required for NHTSA to help ensure the future safety of ETC systems and
    other electronic control functions. NAS has begun the process of
    identifying panel members, and we have been informed that the panel
    will be established by July and will complete its work within 15
    months. We think this group's work comes at a very opportune moment,
    not only to provide advice to the agency on the unintended acceleration
    issue, but also to provide such advice on the range of electronics
    issues that might affect motor vehicle safety as new electronic crash
    avoidance and other technologies rapidly proliferate in the vehicle
    fleet.
    Legislative Proposals
        We very much appreciate the provisions in the bill that would
    enhance NHTSA's vehicle safety authority. If enacted, these measures
    would significantly increase the agency's leverage in dealing with
    recalcitrant manufacturers in situations where we think recalls are
    necessary or where the manufacturer has not been totally forthcoming on
    possible defects or noncompliance issues. As illustrated by our recent
    penalty action against Toyota, the current maximum penalty is not a
    very significant sum of money for a major corporation and, accordingly,
    does not present much of a deterrent.
        The addition of imminent hazard authority would bring NHTSA's
    authority into line with that provided to many safety and health
    agencies. If the threat to human life is truly imminent, the agency
    needs to act quickly and not be slowed down by a lengthy procedural
    process. Of course, we understand the need to use such extraordinary
    authority very judiciously, and would use it only in those situations
    where the hazard was truly imminent and the manufacturer unwilling to
    cooperate.
        However, as drafted, the imminent hazard provision (section 202)
    stops short of giving NHTSA full recall order authority in these
    situations. The bill would permit NHTSA to order manufacturers to
    notify ``purchasers'' (we think this should be ``owners, purchasers,
    and dealers'') that the vehicle or equipment poses an imminent safety
    hazard and provide the purchaser ``with information explaining the
    safety risk and actions the purchasers can take to reduce the risk.''
    Such notification does not constitute a recall, which consists of both
    notification to the owners and the provision of a remedy for the
    noncompliance or defect. We would like to work with the Committee to
    ensure that the legislation provides consumers with an actual remedy in
    the face of an imminent hazard.
        Of course, the bill would ensure that a manufacturer facing a
    recall order issued under this authority would have the opportunity for
    prompt and thorough review in the court of appeals. This important
    aspect of the draft legislation retains the manufacturer's right to
    judicial review of a recall order but situates that review directly in
    the appellate courts. Current law requires NHTSA to bring an action in
    district court to enforce a recall order and to prove its case in a
    trial de novo. The manufacturer could further challenge a district
    court decision in the appellate courts. Meanwhile, the vehicles or
    unsafe equipment would still be in use by consumers who remain exposed
    to all of the dangers associated with the defect or noncompliance. We
    think the balance struck by the Committee greatly enhances the
    protection of consumers.
        We believe the bill's rulemaking provisions correctly identify the
    major areas where new or revised standards may have a beneficial effect
    on reducing the frequency or severity of unintended acceleration. In
    many of these areas the agency has already begun to increase its
    understanding of the subject and possible regulatory options, and we
    expect to learn a great deal more from the two reviews discussed
    earlier. Of course, to get to the point where we can propose well-
    conceived and fully researched new safety standards will, in most
    cases, take a great deal more work. These rulemakings would be
    additions to NHTSA's already ambitious regulatory agenda, which
    includes many other high priority safety and fuel economy topics. The
    possibility exists that our ability to achieve the deadlines set for us
    in the proposed legislation may be constrained by circumstances. In
    light of these issues, we look forward to working with the Committee to
    help ensure that the deadlines contained in the legislation are
    achievable.
        Some of the rulemaking provisions contain language that we believe
    would not preserve sufficient substantive flexibility for NHTSA in
    determining the best way to devise standards that accomplish the bill's
    purposes. For example, the event data recorder (EDR) provision (section
    107) contains very specific time periods during which data would have
    to be recorded under the new rule. NHTSA needs the flexibility to
    determine what parameters are technologically feasible and would best
    serve the provision's purpose. Similarly, that section's prohibition on
    permitting EDRs to record or transmit vehicle location may be
    disruptive to advanced crash notification systems that can provide
    emergency responders with precise location information. NHTSA needs the
    discretion to balance the competing interests of privacy and automatic
    notification of emergency responders.
        The bill would also require NHTSA to improve the accessibility of
    the information on its publicly available safety data bases. We will be
    very happy to do so and we have several ideas on how to make our recall
    and investigations data more user friendly. We appreciate the fact that
    the bill would give us some time for this project because significant
    changes to such large and publicly used data bases require great care
    in planning and execution. While we surely share the view that our data
    bases can be improved, I must add that even in their current state they
    are among the most outstanding consumer safety data bases in
    government.
        The bill also includes what this Administration believes are
    extremely important whistleblower protections (section 306) for
    employees of motor vehicle manufacturers, part suppliers, and
    dealerships. The safety of our vehicles is better ensured when the
    workers who manufacture, supply, or sell them feel they can come
    forward with safety concerns without retaliation. NHTSA has, on rare
    occasions, received reliable information from whistleblowers and, of
    course, has not revealed their identities. However, we believe that
    NHTSA is not the appropriate agency to administer whistleblower
    protection provisions. Additionally, the diversion of administrative
    resources that would be required to carry out section 306 could detract
    from achievement of NHTSA's safety mission. We encourage the Committee
    to contact the Department of Labor (DOL) for technical assistance on
    this section. DOL already administers five other whistleblower statutes
    relating to the transportation sector.
        This Administration's appointees are subject to the most stringent
    ethical standards ever applied within the Executive branch. We are
    certainly supportive of strengthening ethical standards applicable to
    career employees where the need exists.
        Thank you and I would be happy to answer any questions.

        Senator Pryor. Thank you, Mr. Strickland.
        Let me start, if I can, with event data recorders. Do you
    think that the law or the rules should require event data
    recorders on all new vehicles?
        Mr. Strickland. At this point, sir, we are looking at such
    a mandate, in terms of its feasibility and its cost. We believe
    that event data recorders provide a tremendous amount of
    information. Right now there is a rule in place, that will go
    into effect in 2012, where if there is a event data recorder on
    the vehicle, it has to have certain data elements provided. In
    light of what we have learned, not only from the past incidents
    with Toyota, but with other issues, we believe that there is
    great value to having these instruments on every car. But, we
    are going through our rulemaking process and our prior
    research, on an ongoing basis, to go forward with such a
    provision.
        Senator Pryor. And you mentioned that you thought that
    NHTSA should have flexibility in the type of data, et cetera,
    that's collected there. Could you go through that one more
    time?
        Mr. Strickland. Yes, certainly, Senator.
        There is a tremendous number of elements and cost and other
    issues that have to be taken into consideration. Right now,
    most data recorders, I believe, record 5 seconds of pre-crash
    data and 1 second of post-crash data----
        Senator Pryor. And is that enough time?
        Mr. Strickland. My understanding, from the staff and from
    other experts is that this does provide us with the guidance,
    in terms of a crash scenario, to better understand what
    happened. We are looking right now at the sufficiency of the
    data, where there could be improvements made, looking at the
    cost and the technological issues, and there are also energy
    issues. There are design issues that have to be taken into
    account.
        I know that, in some instances, event data recorders, in
    terms of their survivability and other issues, can
    theoretically be made to address all these issues. It could
    cost as much of a car. It could be--I think a airline data
    recorder is about $20,000. So, I believe, for us to be able to
    make the right decision, we do need to have the flexibility to
    look at all of the elements so that we can make the right
    decision, in terms of the data. We also need to properly align
    the costs of the safety device so that we can still have, you
    know, affordable cars throughout the populace, but achieve what
    we need, in terms of getting data.
        Senator Pryor. And then, one last question on the data
    recorders. Who should have access to the recorded data?
        Mr. Strickland. Well, right now, sir, the owner of the
    vehicle has access, and then can provide access to public
    safety officials and to NHTSA. We have not had any particular
    issues in getting data. We've had some difficulties, on
    occasion; but, we believe that it would be of great benefit if
    NHTSA had the ability to also have access of the data onsite,
    with the proper protections and protocols. But, right now, the
    law says, and the protocol is, that it's the owner of the
    vehicle that has control of the data, and we must ask
    permission to get access to it.
        Senator Pryor. Thank you. And I'm going to make this my
    last question, then I'm going to turn the hearing back over to
    the proper authority, here, the Chairman----
        The Chairman. Do you remember my name?
        Senator Pryor.--of the Commerce Committee. What's that?
        The Chairman. Do you remember my name?
        Senator Pryor. Senator Rockefeller?
        The Chairman. Is that it?
        Senator Pryor. OK, yes.
        [Laughter.]
        Senator Pryor. Senator Rockefeller.
        Mr. Strickland. Thank you, Mr. Pryor.
        Senator Pryor. And the last question that I would like to
    ask is on whether NHTSA--in your view, has adequate expertise
    in-house to fully understand and regulate electronic and sulfur
    control systems in a modern-day vehicle.
        Mr. Strickland. We have expertise on board right now to
    handle our mission. We can always be stronger. We can always be
    better.
        The President has requested for us, in the 2011 budget,
    resources for 66 new positions. Some of those positions will be
    going to improve our internal expertise. We are in the midst of
    recruiting additional engineers and experts, as we speak. We
    definitely look forward to working with the Committee and the
    Congress, in terms of resources and the allocation of our
    resources, to make sure that we have what we need, in terms of
    expertise. I am confident with our onboard expertise, but, as I
    said, we are always looking to get stronger.
        Senator Pryor. Thank you.
        And, Mr. Chairman, thank you for allowing me to go ahead
    and start the hearing. And I made a very short opening
    statement, and I think what we said, at the outset, is that we
    anticipate that you'll be making an opening statement, as well
    as Senator Wicker.

               STATEMENT OF HON. JOHN D. ROCKEFELLER IV,
                    U.S. SENATOR FROM WEST VIRGINIA

        The Chairman [presiding]. Well actually, Senator Wicker and
    I are going to beat you----
        [Laughter.]
        The Chairman.--because we're just going to put ours in the
    record.
        Senator Pryor. Oh.
        [Laughter.]
        Senator Pryor. OK.
        [The prepared statement of Senator Rockefeller follows:]

              Prepared Statement of Hon. John D. Rockefeller IV,
                        U.S. Senator from West Virginia
        On March 2, the Commerce Committee held an extraordinary all day
    hearing on the serious safety defects found in Toyota vehicles.
        During the hearing, it quickly became clear that we were also
    dealing with even larger safety issues that reached far beyond the
    individual cases of sudden acceleration that were the subject of recent
    Toyota recalls.
        First, we learned the incredible extent to which almost every
    function in a car today is controlled by computers and electronics--
    especially safety systems. And yet, we have no minimum standards for
    vehicle electronics, including the electronic throttle controls that
    govern cars' speed.
        Second, we learned that the National Highway Traffic Safety
    Administration (NHTSA) does not have the resources and the authority it
    needs to effectively enforce safety standards for all the cars on the
    road today.
        While vehicle electronics largely control today's cars, NHTSA had
    only two electronics engineers to investigate the safety of hundreds of
    different car models.
        And the agency's ability to enforce safety regulations is severely
    limited by the $16 million cap on civil penalties against automakers--
    the equivalent of a parking ticket for corporations with billion-dollar
    revenue streams.
        We are here today for a legislative hearing. With a number of my
    colleagues on this Committee, I introduced the Motor Vehicle Safety Act
    of 2010 to address these problems. To summarize, the bill would:

       Dramatically raise civil penalties for auto manufacturers
            that violate vehicle safety standards or withhold critical
            safety information from NHTSA;

       Require disclosure of more safety information to consumers,
            and mandate that NHTSA make its vehicle safety data bases more
            accessible;

       Give auto industry employees the same whistleblower
            protections as airline employees;

       Require senior auto executives to take a hands-on role in
            safety issues;

       Stop the revolving door of NHTSA safety regulators leaving
            to work for the auto industry;

       Increase NHTSA's authorization levels so it can hire the
            engineers and safety experts it needs to regulate today's
            computerized vehicle fleet;

       Create minimum safety standards for vehicle electronics;

       And require vehicles to stop within a certain distance--even
            if the engine is operating at full throttle.

        I look forward to discussing the bill with my colleagues and
    hearing feedback from our witnesses: most importantly, how do they see
    these provisions and others in the bill working to protect consumers on
    the road?
        It was Toyota's recent recalls that brought intense focus to
    serious safety risks on the road--but this legislation is about auto
    safety writ large. It tackles the issues industry-wide and directly at
    the government agency charged with safety oversight.
        If we are serious about protecting the American people--and the
    hard-working employees of companies like Toyota--we cannot hide from
    questions of safety. We must face them head-on, honestly and directly.
        The American people will buy more cars--and the auto industry will
    thrive--only when people feel confident their cars are safe.
        We can do better by the American people--and with this legislation
    we will.

        The Chairman. Speaking personally, I'm totally embarrassed
    and apologize to the witness, and to the other witnesses,
    because we were having a vote on the floor, which is, to me, of
    such magnitude that I could not leave, and therefore, put
    everybody else at inconvenience, and I do apologize for that.
    And I thank you, Senator Pryor, for chairing.
        OK, I want to actually continue on his line of questioning,
    Mr. Strickland. If we get what we call for in the bill, you're
    going to get a lot more money next year, a lot more money the
    year afterwards, a lot more money the year afterwards. It'll go
    up to about $280 million. And when you said, ``We are
    recruiting''--well, there are several areas of recruiting, it
    seems to me. In other words, when you say, ``We could always do
    better''--and I, at one point, had, in my talking points, that
    you had, actually, only two people who were trained engineers
    in electronics, and I wasn't aware of any people who were
    trained in computer software.
        Now, I can, hopefully, be entirely wrong. But, if I'm not
    wrong, or if I'm close to not being wrong, then it's not a
    question of, ``We can always do better,'' you've got to do a
    whole lot better, because the world has changed from a little
    cord that went to the pedal--as opposed to the computers, which
    now govern everything. And we're talking about brake overrides
    and all the rest of it. This is a very, very, very different
    automobile, and I assume it'll get much more complicated.
        So, I'm really interested in--when you say, ``We can always
    do better,'' who are you going afterwards? How do you do it?
    How long does the training take? Maybe you just get people who
    have this already, but, to me, it's not a question of, ``We can
    always do better,'' it's a question, ``You've got to do a whole
    lot better, real fast.'' And yet, I'm not entirely certain
    that--unless you get somebody who's already fully trained, that
    you can do that really fast.
        Can you comment on all this, please?
        Mr. Strickland. Yes, sir, Mr. Chairman. Right now, to
    answer the first part of your question, we have 10 engineers
    with electrical/electronics training. We have a software
    engineer at our vehicle test center in East Liberty, Ohio. We
    always have the ability, and we have called upon our resources,
    to hire contractors, to assist us in our efforts.
        I do agree, we need to strengthen ourselves quickly, and
    the universe of expertise in automobiles is a finite one.
    Electrical engineers, software engineers, automotive engineers,
    usually work in the manufacturing sector for one of the
    automobile manufacturers, where they would have a great deal of
    expertise, either on the line or in development. I expect that
    to be the source of our recruitment, those folks that have done
    a lot of this type of work. So, as Administrator, my
    expectation will be to hire the best folks and get them online
    quickly. There should not be a serious uptick, in terms of the
    needs for training, in terms of dealing with the issues that
    are at hand. The goal for us is to make sure we get as many of
    these folks as possible where we need them. I am relying upon
    our senior leadership and our staff in recognizing the areas of
    emphasis for electronics and software and mechanical systems.
        The Chairman. But, you're saying that you have one person
    in Ohio on software, and I'm kind of gaping. I mean, cars are
    computers now.
        Mr. Strickland. Yes, sir, they are.
        The Chairman. And if you have somebody--you don't have
    anybody in your office, but you have somebody in Ohio, and then
    you talk about contracting to get advice. I mean, you've got
    how many--280 million cars to overlook, and hundreds of brands
    of cars, and hundreds more iterations in the years to come,
    thousands of more iterations, cars from all over the world. Do
    you have your eyes--have your people identified--you say it
    will not be a problem to get the electrical folks and the
    computer folks--or, actually, you haven't said that about
    computers, you said you have one in Ohio. That doesn't sound
    like a lot of help.
        Mr. Strickland. Well, I think, sir, you have to recognize
    that we leverage our expertise internally for all of our
    engineers and our experts. But, we have a universe of about 250
    million cars that NHTSA is responsible for the oversight and
    its safety. So, it isn't necessarily we're looking at a
    correlation of one-to-one. What we do is, as you well know, we
    look for trends and data to show defect issues. And our
    expertise on board, even though they might not specifically be
    a computer engineer or a software engineer, our group of
    automotive engineers, collectively, are some of the best in the
    world. And their expertise----
        The Chairman. OK. Well, let me just--I only have 16, 18,
    17, 16 seconds left. Tell me, rather than all of the wonderful
    things that are going to happen, what frustrates you about what
    expertise you do not have. Don't make this sound happy. I mean,
    this is the real world, people's lives are at stake. Where are
    you disappointed when--granted, you've only been there a short
    period of time. I don't know how much attention was paid to
    this over the last 10 years, and you haven't had a very good
    budget. But, you're getting that, so you're going to be able to
    count on that, I think, so that you have to be frustrated about
    what you don't have.
        Mr. Strickland. Mr. Chairman, we, at NHTSA, take our jobs
    very seriously. Thirty-four thousand people lost their lives in
    2008 because of roadway accidents. Our best successes,
    unfortunately, always lead to the fact that we have a
    tremendous loss of life on the roads. And so, however you lose
    your life, it's a very serious matter.
        My frustration? My frustration is that fact that every time
    somebody loses their life on the roadway, it is because we
    weren't able to do enough. We can never do enough. And we
    appreciate the resources that this committee is trying to get
    for us to improve ourselves and to strengthen ourselves. But,
    in terms of a general frustration, it's a mission frustration.
    And until we get to zero, I, frankly, will always be
    frustrated.
        The Chairman. Thank you.
        Senator Wicker.

                  STATEMENT OF HON. ROGER F. WICKER,
                     U.S. SENATOR FROM MISSISSIPPI

        Senator Wicker. Thank you, Mr. Chairman. Let me say, I
    would ask that my opening statement be placed in the record.
        The Chairman. Of course.
        [The prepared statement of Senator Wicker follows:]

     Prepared Statement of Hon. Roger Wicker, U.S. Senator from Mississippi
        Thank you, Mr. Chairman, for holding this hearing to examine the
    Motor Vehicle Safety Act of 2010. The incidents of unintended
    acceleration, and the attention they brought to the defect recall
    process at NHTSA, raised public awareness about vehicle safety. I
    appreciate the Committee's efforts to address that issue.
        I want to thank all our witnesses and stakeholders for being with
    us today. Your expertise and input is invaluable to our efforts to
    ensure vehicles are safe. Your testimony will also help us identify the
    best possible process and interaction between consumers, manufacturers
    and NHTSA.
        While I support addressing specific issues that have been raised
    regarding vehicle safety, I do have reservations about the bill in its
    current form. I have some concerns about the various provisions that I
    will address further during questioning with our witnesses.
        Generally, there are mandates that could require significant and
    costly redesigns of some vehicles without significant safety benefits--
    especially given the existence of other provisions such as the brake
    override. The time frames for creation of rules by NHTSA, and
    subsequent implementation of these rules by the manufacturers, appear
    unrealistic and in some cases impossible.
        I am interested to learn more about the budget authorization
    increases in the bill. I would like to know how NHTSA anticipates using
    these funds. It is also important to learn more about how the specific
    amounts requested relate to the actual costs that NHTSA anticipates
    taking on with the new authorities and requirements in the bill.
        Some have expressed concern about the privacy implications of all
    the new data that will be collected under the bill. I would like to
    submit for the record testimony submitted at the recent House hearing
    on vehicle safety legislation about the privacy issue.
        I want to ensure that all rulemakings and new mandates are
    appropriately researched and founded in facts. This is the only way to
    ensure they will achieve the most effective results in the most
    efficient way possible. We must also be very careful to avoid creating
    unintended consequences, especially when dealing with such highly
    technical issues.
        I want to thank the Chairman for his continued commitment to
    vehicle safety, and I look forward to working with stakeholders and my
    colleagues toward a bipartisan bill that focuses on necessary actions
    to ensure vehicles are safe.

        Senator Wicker. I have several reservations about the bill,
    in its current form. And let me just mention, in taking time in
    this round, the mandates could require significant and costly
    redesigns, without convincingly making significant safety
    benefits. So, I'm concerned about that.
        The Chair mentioned the budget authorization. It, indeed,
    doubles the spending on this aspect of your agency. I think we
    should be careful to make sure the specific amounts requested
    actually relate to the actual cost that NHTSA will be taking on
    under this new legislation.
        And, number three, a number of people are concerned about
    the privacy implications of the data that will be collected
    under the bill. At this point, I'd like to ask that the
    testimony, before the House Energy and Commerce Committee, of
    Jim Harper, on May 6, be entered into the record. Do I have a
    unanimous consent for that----
        The Chairman. You certainly do.
        Senator Wicker.--Mr. Chairman? Thank you very much.
        [The information referred to follows:]

       Prepared Statement of Jim Harper, Director of Information Policy
         Studies, The Cato Institute to the House Energy and Commerce
                                  Committee's
     Subcommittee on Commerce, Trade, and Consumer Protection at a Hearing
           on ``H.R. ___, the Motor Vehicle Safety Act''--May 6, 2010
        Chairman Rush, Ranking Member Whitfield, and members of the
    subcommittee, thank you for inviting me to address this hearing on H.R.
    ___, the Motor Vehicle Safety Act of 2010.
        My name is Jim Harper, and I am Director of Information Policy
    Studies at the Cato Institute. In that role, I study and write about
    the difficult problems of adapting law and policy to the challenges of
    the information age. I have maintained a website called Privacilla.org
    since 2000, cataloguing many dimensions of the privacy issue, and I
    also maintain an online Federal legislative resource called
    WashingtonWatch.com. It had over 1.6 million visitors in 2009.
        Cato is a market liberal, or libertarian, think-tank, and I pay
    special attention to preserving and restoring our Nation's founding,
    constitutional traditions of individual liberty, limited government,
    free markets, peace, and the rule of law.
        I serve as an advisor to the Department of Homeland Security on its
    Data Integrity and Privacy Advisory Committee, and my primary focus in
    general is on privacy and civil liberties. I am not a technologist, but
    a lawyer familiar with technology issues. As a former committee counsel
    in both the House and Senate, I understand lawmaking and regulatory
    processes related to technology and privacy.
        After sharing two prefatory observations about the constitution and
    risk management, I will turn to the privacy issues involved with the
    mandate for event data recorders authorized by section 107 of the
    legislation. My conclusions are that most of the Motor Vehicle Safety
    Act exceed the proper role of the Federal Government, that collective
    overspending on collection of accident data may undermine the goal of
    preserving drivers' lives, and that mandatory EDRs are another move
    toward constructing surveillance infrastructure that threatens the
    privacy and liberty of the American citizen.
    What's a Constitution When Lives Are at Stake?
        My analysis of Federal legislation always begins with the
    Constitution. Which grant of power in the Constitution allows Congress
    to act? And what impediments on Federal power may limit Congress'
    action?
        The Motor Vehicle Safety Act shares a constitutional infirmity with
    much of the legislation Congress considers today. There is no source of
    authority for it in the Constitution.
        Likely, if your committee advances this legislation, your report
    will cite the commerce clause (article I, section 8, clause 3) as the
    specific power granted to Congress in the Constitution to enact it as
    law. That clause gives Congress power ``To regulate Commerce with
    foreign Nations, and among the several States, and with the Indian
    Tribes.''
        The preface to the Cato Institute's pocket constitution--more than
    three million copies in print--discusses the meaning of this provision.
    Since the New Deal,\1\ the Supreme Court has abandoned the meaning and
    purpose of the commerce clause, allowing Congress to regulate based
    merely on activity having effects on interstate commerce.\2\
    ---------------------------------------------------------------------------
        \1\ E.g. Wickard v. Filburn, 317 U.S. 111 (1942) (approving the
    regulation of wheat grown for personal use and not for sale under the
    Commerce Clause).
        \2\ The Court discovered the commerce power's present outer limits
    in United States v. Lopez, 514 U.S. 549 (1995), which found that gun
    possession near a school was too attenuated from effects on commerce to
    be within the commerce power.
    ---------------------------------------------------------------------------
        You may regard the constitution's limited, enumerated grants of
    power, as quaint. But they are not. You swore an oath to bear true
    faith and allegiance to the constitution at the beginning of this
    Congress, as the Constitution requires you to do.
        This is not just ceremony, and the Constitution is not just a
    symbol. The results of continuing nonchalance about the Constitution's
    limits are plain to many observers.
        With reason, many people regard the Federal Government as overly
    large, remote, and imperious. Your good intentions notwithstanding,
    many view Congress negatively, as a body that cannot hew to any
    principle.
        It is not just principle. There are consequences to disregarding
    the Constitution. Campaign finance law ``reformers'' believe that too
    much money is spent on politics and influence at the Federal level. But
    people and organizations will always try to influence the government's
    influence over them. Money follows power. Huge expenditures on
    political influence follow directly from the hugeness of Federal power.
        As you press the Federal Government into involvement in every
    segment of the economy--including auto safety, automobile design, and
    auto safety research--you should not be surprised to find that every
    segment of the economy spends money on lobbying and campaigning to push
    for its interests. If you want campaign finance reform, follow the
    Constitution and move authority back to the states and people where it
    belongs.
        The good intentions that animate your auto safety efforts do not
    overcome constitutional limits on the government.
    Is Auto Safety for Rich People?
        Everybody shares the goal of maximizing the welfare of Americans,
    including by making auto travel safe. Better data about the operation
    of cars in the moments before collisions would almost certainly improve
    knowledge of how to make auto travel safer. Important questions remain
    about using event data recorders to generate statistical research that
    would improve the design of the Nation's cars, however.
        Risk management and benefit-cost analysis can enlighten efforts to
    maximize welfare by improving auto safety. As a member of the
    Department of Homeland Security's Data Privacy and Integrity Advisory
    Committee, I helped design a framework for analyzing programs that
    generalizes to the problem of auto safety. In fact, we used the
    ``security'' of cars against common threats to illustrate risk
    management.
        In the DHS Privacy Committee's ``framework document,'' \3\ we
    defined the risk management problem as determining how, and how well, a
    program addresses threats to the public. With benefit information in
    hand, the costs of the program can be compared to determine whether it
    cost-effectively lowers risk. (Making auto travel safer for people is
    easier than securing against terrorism. Both the threats to car
    occupants and the costs of steps to counter such threats are easier to
    measure.)
    ---------------------------------------------------------------------------
        \3\ Report of the Data Privacy and Integrity Advisory Committee,
    No. 2006-01 (March 29, 2006) http://www.dhs.gov/xlibrary/assets/
    privacy/privacy_advcom_03-2006_framework.pdf.
    ---------------------------------------------------------------------------
        Responses to health threats like automobile collisions can be
    categorized four ways:

       Acceptance--a rational alternative that is often chosen when
            the threat has low probability, low consequence, or both. Low-
            speed ``fender benders'' occur often, but are acceptable in
            terms of human safety because they have only the rarest impacts
            on life and health.

       Prevention--alteration of the target or its circumstances to
            diminish the risk of the bad thing happening. This is the main
            goal of data collection, to learn how cars might be altered to
            protect life in the event of serious collisions.

       Interdiction--confrontation with, or influence exerted on,
            an attacker to eliminate or limit its movement toward causing
            harm. The Privacy Committee report cited ``flashing your lights
            to warn another car about the fact that you are passing'' as a
            ``mild interdiction.'' Discovering new interdiction techniques
            may be a goal of data collection.

       Mitigation--preparation so that, in the event of the bad
            thing happening, its consequences are reduced. It is unlikely,
            but the inclusion of first aid materials, for example, may be a
            mitigation of the effects of collisions on human health.

        More data might contribute to each type of response to threats to
    human health from auto collisions. Continuing with the risk management
    framework:

            The final step in analyzing the program's efficacy is to be
            aware of new risks created by the prevention, mitigation, or
            interdiction of the threats under consideration. Installing
            heavy iron siding to a car may mitigate the risk to the car
            from accidents. At the same time, the reinforced car may pose
            new risks to other cars and pedestrians.

        I do not worry that NHTSA will propose iron siding that sends cars
    careening into bike paths and playgrounds. But the costs of the data
    collection program may have risk transfer effects that are important to
    consider.
        According to the Research and Innovative Technology
    Administration's Bureau of Transportation Statistics there were
    6,813,369 new retail sales of passenger cars in the United States in
    2008.\4\ This is the lowest number of new car sales since at least
    1990, given economic conditions 2009 was probably not a good year, and
    the only year for which BTS reports lower sales is 1960. The number of
    vehicles on American roads, meanwhile, continues to rise, to a whopping
    254,403,082 as of 2007.\5\
    ---------------------------------------------------------------------------
        \4\ U.S. Department of Transportation, Research and Innovative
    Technology Administration, Bureau of Transportation Statistics, Table
    1-12: U.S. Sales or Deliveries of New Aircraft, Vehicles, Vessels, and
    Other Conveyances http://www.bts.gov/publications/national_trans
    portation_statistics/html/table_01_12.html.
        \5\ U.S. Department of Transportation, Research and Innovative
    Technology Administration, Bureau of Transportation Statistics, Table
    1-11: Number of U.S. Aircraft, Vehicles, Vessels, and Other Conveyances
    http://www.bts.gov/publications/national_transportation_statistics/
    html/table_01_11.html.
    ---------------------------------------------------------------------------
        A demand curve is a graph illustrating the willingness of consumers
    to buy at a certain price. A downward sloping demand curve reflects the
    common circumstance in most markets: people buy less of things that
    cost more. In the demand curve pictured on the next page, an increase
    in price of two units will cause sales to drop by one unit.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        This is not the demand curve for automobiles in the United States,
    but the U.S. automobile demand curve almost certainly slopes the same
    direction. When automobiles are more expensive, people buy fewer
    automobiles.
        I do not know how steep the U.S. demand curve for automobiles is,
    and I do not know the cost of installing electronic data recorders in
    cars. But it is a near certainty that putting EDRs in cars raises their
    costs and lowers sales.\6\ It lowers sales more for poor people than
    for rich people. New car sales affect the availability of used cars, of
    course, and the cost of trading up from an older used car to a newer
    used car.
    ---------------------------------------------------------------------------
        \6\ I focus here on the policy of putting EDRs in all cars as a
    whole, not the incremental advance of that policy in this bill. By
    requiring all makes to build EDRs into their cars, the bill would
    prevent any one manufacturer from gaining a cost advantage by not doing
    so.
    ---------------------------------------------------------------------------
        This has negative effects for the automobile industry, of course,
    and unemployment has negative effects on the health and well-being of
    people. But lower auto sales probably also have negative effects on the
    safety of drivers and passengers.
        When people forgo new car purchases or trade-ups to newer used
    cars, they remain in older cars that are likely to be involved in more
    collisions due to wear and tear and design problems that have been
    rectified in newer models. When they are in collisions, occupants of
    older cars may suffer more injury and death than they would in newer
    cars which are better designed to protect them.
        Because the poor are in older cars, the bulk of these effects--
    greater numbers of collisions and greater morbidity and mortality in
    collisions--will fall on poor people.
        I do not have the cost data or the economic training to determine
    the amount of injury and death produced by including EDRs in
    automobiles, but it is almost certainly above zero, and it probably
    falls more heavily on the poor.
        It would be a mistake to conclude that EDRs should not be put in
    automobiles. The data they collect can improve auto safety so that the
    dynamic I have described--newer cars being safer--will continue.
        The idea of trade-offs merely sharpens the auto safety risk
    management question to: How much data do you need to make cars safer?
        It seems plain that statistically relevant evidence about auto
    safety could be produced using sampling, by drawing on a cross-section
    of collisions from which EDR data is available. Putting EDR
    functionality in every car is overkill that has costs.
        Perhaps 50 percent of the cars produced should have EDRs. Maybe
    it's 30 percent, or 60 percent. If there is to be a mandate, why not
    place it on more expensive models? \7\ If EDRs were offered as a public
    safety option, perhaps the wealthier cohort of auto consumers would
    choose them, avoiding cost impositions that endanger the poor.
    ---------------------------------------------------------------------------
        \7\ That rule could be adjusted where less expensive models do not
    share all the relevant design characteristics with the more expensive
    models.
    ---------------------------------------------------------------------------
        Analyzing EDR data from 100 percent of accidents is not required to
    produce valid auto safety research. An across-the-board mandate serves
    some other end, which I speculate about below. The auto industry's
    general ``voluntary'' inclusion of EDRs in automobiles is not strong
    evidence to the contrary. The industry may not have considered these
    trade-offs, or it may be pursuing ends beyond or distinct from safety.
    EDRs and Privacy
        Privacy is a complex and vexing issue, and the interaction between
    EDRs and privacy is a challenge to describe or calculate. But the
    installation of EDRs in U.S.-sold vehicles to date has been a challenge
    to privacy. Making EDRs mandatory in new U.S. vehicles will erode
    privacy further, the privacy protections in the Motor Vehicle Safety
    Act notwithstanding.
        The word ``privacy'' is used casually to describe many concerns in
    the modern world, including fairness, personal security, seclusion, and
    autonomy or liberty. Few concepts have been discussed so much without
    ever being solidly defined.
        The strongest sense of the word ``privacy'' is its control sense:
    having control over personal information about oneself. In his seminal
    1967 book Privacy and Freedom, Alan Westin characterized privacy as
    ``the claim of individuals, groups, or institutions to determine for
    themselves when, how, and to what extent information about them is
    communicated to others.''
        I use and promote a more precise, legalistic definition of privacy:
    as the subjective condition people experience when they have power to
    control information about themselves and when they have exercised that
    power consistent with their interests and values.\8\ The ``control''
    dimension of privacy alone has many nuances, and I will parse them here
    briefly.
    ---------------------------------------------------------------------------
        \8\ See generally, Jim Harper, ``Understanding Privacy--and the
    Real Threats to It,'' Cato Policy Analysis No. 520 (Aug. 4, 2004)
    http://www.cato.org/pub_display.php?pub_id=1652.
    ---------------------------------------------------------------------------
    A Personal, Subjective Condition
        Importantly, privacy is a subjective condition. It is individual
    and personal. One person cannot decide for another what his or her
    sense of privacy is or should be.
        To illustrate this, one has only to make a few comparisons: Some
    Americans are very reluctant to share their political beliefs, refusing
    to divulge any of their leanings or the votes they have cast. They keep
    their politics private. Their neighbors may post yard signs, wear
    brightly colored pins, and go door-to-door to show affiliation with a
    political party or candidate. The latter have a sense of privacy that
    does not require withholding information about their politics.
        Health information is often deemed intensely private. Many people
    closely guard it, sharing it only with doctors, close relatives, and
    loved ones. Others consent to have their conditions, surgeries, and
    treatments broadcast on national television and the Internet to help
    others in the same situation. More commonly, they relish the attention,
    flowers, and cards they receive when an illness or injury is
    publicized. Privacy varies in thousands of ways from individual to
    individual and from circumstance to circumstance.
        An important conclusion flows from the observation that privacy is
    subjective: government regulation in the name of privacy is based only
    on politicians' and bureaucrats' guesses about what ``privacy'' should
    look like. Such rules can only ape the privacy-protecting decisions
    that millions of consumers make in billions of daily actions,
    inactions, transactions, and refusals. Americans make their highly
    individual privacy judgments based on culture, upbringing, experience,
    and the individualized costs and benefits of interacting and sharing
    information.
        The best way to protect true privacy is to leave decisions about
    how personal information is used to the people affected. Political
    approaches take privacy decision-making power away from the people. At
    its heart, privacy is a product of autonomy and personal
    responsibility. Only empowered, knowledgeable citizens can formulate
    and protect true privacy for themselves, just as they individually
    pursue other subjective conditions, like happiness, piety, or success.
    The Role of Law
        The legal environment determines whether people have the power to
    control information about themselves. Law has dual, conflicting effects
    on privacy: Much law protects the privacy-enhancing decisions people
    make. Other laws undermine individuals' power to control information.
        Various laws foster privacy by enforcing individuals' privacy-
    protecting decisions. Contract law, for example, allows consumers to
    enter into enforceable agreements that restrict the sharing of
    information involved in, or derived from, transactions. Thanks to
    contract, one person may buy foot powder from another and elicit as
    part of the deal an enforceable promise never to tell another soul
    about the purchase. In addition to explicit terms, privacy-protecting
    confidentiality has long been an implied term in many contracts for
    professional and fiduciary services, like law, medicine, and financial
    services. Alas, legislation and regulation of recent vintage have
    undermined those protections.\9\
    ---------------------------------------------------------------------------
        \9\ The Gramm-Leach-Bliley Act and Federal regulations under the
    Health Insurance Portability and Accountability Act institutionalized
    sharing of personal information with government authorities and various
    ``approved'' institutions. See 15 U.S.C.  6802(e)(5)&(8); various
    subsections of 45 C.F.R. 164.512.
    ---------------------------------------------------------------------------
        Many laws protect privacy in other areas. Real property law and the
    law of trespass mean that people have legal backing when they retreat
    into their homes, close their doors, and pull their curtains to prevent
    others from seeing what goes on within. The law of battery means that
    people may put on clothes and have all the assurance law can give that
    others will not remove their clothing and reveal the appearance of
    their bodies without permission.
        Whereas most laws protect privacy indirectly, a body of U.S. state
    law protects privacy directly. The privacy torts provide baseline
    protection for privacy by giving a cause of action to anyone whose
    privacy is invaded in any of four ways.\10\ The four privacy causes of
    action, available in nearly every state, are:
    ---------------------------------------------------------------------------
        \10\ Privacilla.org, ``The Privacy Torts: How U.S. State Law
    Quietly Leads the Way in Privacy Protection,'' (July 2002) http://
    www.privacilla.org/releases/Torts_Report.html.

       Intrusion upon seclusion or solitude, or into private
    ---------------------------------------------------------------------------
            affairs;

       Public disclosure of embarrassing private facts;

       Publicity that places a person in a false light in the
            public eye; and

       Appropriation of one's name or likeness.

        While those torts do not mesh cleanly with privacy as defined here,
    they are established, baseline, privacy-protecting law.
        Law is essential for protecting privacy, but much legislation plays
    a significant role in undermining privacy. Dozens of regulatory, tax,
    and entitlement programs deprive citizens of the ability to shield
    information from others. Mandated EDRs undermine privacy, despite the
    protections outlined in the Motor Vehicle Safety Act, as I will discuss
    below.
    Consumer Knowledge and Choice
        Perhaps the most important, but elusive, part of privacy protection
    is consumers' exercise of power over information about themselves
    consistent with their interests and values. This requires consumers and
    citizens to be aware of the effects their behavior will have on
    exposure of information about them.
        Technology and the world of commerce are rapidly changing, and
    personal information is both ubiquitous and mercurial. Unfortunately,
    there is no horn that sounds when consumers are sufficiently aware, or
    when their preferences are being honored. But study of other, more
    familiar, circumstances reveals how individuals have traditionally
    protected privacy.
        Consider privacy protection in the physical world. For millennia,
    humans have accommodated themselves to the fact that personal
    information travels through space and air. Without understanding how
    photons work, people know that hiding the appearance of their bodies
    requires them to put on clothes. Without understanding sound waves,
    people know that keeping what they say from others requires them to
    lower their voices.
        From birth, humans train to protect privacy. Over millions of
    years, humans, animals, and even plants have developed elaborate rules
    and rituals of information sharing and information hiding based on the
    media of light and sound.
        Tinkering with these rules and rituals today would be absurd.
    Imagine, for instance, a privacy law that made it illegal to observe
    and talk about a person who appeared naked in public without giving the
    nudist a privacy notice to that effect and the opportunity to object.
    People who lacked the responsibility to put on clothes might be able to
    sue people careless enough to look at them and to recount what they
    saw. A rule like that would be ridiculous, but legislation of precisely
    this character has been a staple of privacy proposals in Congress for
    at least a decade.
        The correct approach is for consumers to be educated about what
    they reveal when they interact online and in business so that they know
    to wear the electronic and commercial equivalents of clothing.
    No, Really: EDRs and Privacy
        If you needed any proof that privacy is complex, witness the fact
    that my introduction of the concept has consumed three written pages. I
    now turn to how EDR policy currently threatens privacy by depriving
    consumers of control over personal information.
        There are at least three ways that EDRs undermine privacy: In the
    current market environment, consumers generally cannot control whether
    or not their vehicles have EDRs; they do not control what their EDRs
    do; and they have limited ability to control what happens with the
    data. The Motor Vehicle Safety Act makes the problem worse with regard
    to the first two, while providing some protection with regard to the
    third.
    Control of Whether or Not Vehicles Have EDRs
        As I noted earlier, giving consumers choice with regard to EDRs
    could improve auto safety by allowing price-sensitive consumers--the
    poor--to decline having them. The margin of cost savings could move
    these consumers into safer vehicles, saving their lives and the lives
    of others.
        This would also protect privacy. If EDRs were a choice, auto
    manufacturers, marketers, dealers, and resellers would give consumers
    at least some information about EDRs and what they do. There would be
    greater public discussion of their safety merits, privacy consequences,
    and value per dollar because car buyers could do something with that
    information.\11\
    ---------------------------------------------------------------------------
        \11\ It is important not to be fooled by today's public ignorance
    of EDRs. Consumers are able to make choices about EDRs. In the present
    market environment, with EDRs standard on most vehicles, consumers
    exercise rational ignorance: There is no plausible benefit from
    learning about EDRs, so they invest no time or energy in learning about
    them or their consequences. They are disempowered objects of government
    and industry policy.
    ---------------------------------------------------------------------------
        Consumers motivated by privacy could opt out of having EDRs
    entirely. Consumers motivated by personal and public safety could opt
    to have EDRs in their vehicles. Giving consumers control over the
    choice whether to have EDRs in their cars would improve their privacy
    by improving their control over their personal information
    infrastructure.
    Control of What EDRs Do
        I note that some states have proposed to give consumers control of
    whether their EDRs are activated.\12\ This would shore up consumers'
    control of personal information and thus their privacy. Consumers could
    decide based on their particular circumstances whether they want their
    vehicle collecting data about their use of it.
    ---------------------------------------------------------------------------
        \12\ I have not investigated the status of state laws, but a 2006
    article cites proposed legislation in Montana, New Hampshire, and New
    Jersey. Aleecia M. McDonald and Lorrie Faith Cranor, How Technology
    Drives Vehicular Privacy,'' I/S: A Journal of Law and Policy for the
    Information Society, Volume 2, Issue 3 (2006) http://lorrie.cranor.org/
    pubs/vehicular-privacy-authors
    Version.pdf.
    ---------------------------------------------------------------------------
        Given all the technology built into it, it is not a stretch to say
    the car is a computer. But consumers do not get to control this
    computer. Consumers should have more choice and control. At a minimum,
    government policy should not deprive them of it or channel the market
    away from consumer control.
        Of course, EDRs today are closely integrated with basic vehicle
    operations and safety features like air bags. This is a historical
    accident, not something inherent to EDRs. The data recording function
    could be logically separated from vehicle maneuvering and operated by
    drivers from the console.
        An extension of this thinking would be to give consumers the
    ability to access and control much of the software that runs inside
    their vehicles. Red Hat CEO Jim Whitehurst recently made a pitch for
    automakers to adopt open source principles in a recent, very
    interesting Business Week commentary.\13\
    ---------------------------------------------------------------------------
        \13\ Jim Whitehurst, ``Why Toyota Should Go Open Source,''
    Bloomberg Businessweek (Apr. 1, 2010) http://www.businessweek.com/
    innovate/content/mar2010/id20100329_064567.htm.
    ---------------------------------------------------------------------------
        Open source has its place, and I would not recommend open source
    for the functions integral to stopping, starting, and turning, but the
    many other computing and communications features in automobiles would
    benefit from open source software development. A feature of this
    approach would be that consumers could gain control over the
    functioning of much of the computing their automobiles do.
        This control would improve their privacy by allowing them to select
    what data is recorded, how long it is kept, where and how it is stored,
    and so on. Given the opportunity, some drivers might create extensive
    personal records of their driving, perhaps offering researchers greater
    insight into driver behavior than the mandatory, one-size-fits-all EDRs
    envisioned by the Motor Vehicle Safety Act.\14\
    ---------------------------------------------------------------------------
        \14\ Researchers might pay for it, opening up a new market in which
    some drivers cleverly capitalize on personal information about
    themselves to subsidize their mobility.
    ---------------------------------------------------------------------------
        One can only guess at why government and corporate policy is
    converging on requiring EDRs in cars and denying consumers control of
    the EDRs' functioning. My best guess is that their use in litigation is
    regarded by industry as an important protection and by litigators as
    important evidence.
        EDR data is being used in litigation today, and its use will
    increase. Giving consumers control of the data would protect privacy,
    but it would frustrate the interests of government, industry, and the
    trial bar. When all these interests unite in Washington, D.C., it is no
    surprise that consumer privacy loses.
    Control of EDR Data
        With consumers substantially deprived of control over EDRs'
    existence and functioning, protections going to the use of EDR-produced
    data cannot be entirely satisfying. The rules about data proposed in
    the Motor Vehicle Safety Act provide some privacy protection, but far
    less than the full array of controls consumer should have.
        Section 107(d)(1) would make any data in an EDR the property of the
    owner or lessee of the vehicle in which it is installed. This restates
    the appropriate and probable legal status of such data. It is some
    benefit to privacy to have a restatement because the law in this
    ``new'' area is unclear.
        The privacy subsection (107(d)(2)) bars collection of the data by
    anyone other than the owner or lessee except in certain circumstances:
    when there's a court order, with the data owner's permission, and when
    a government agency has certain beneficent purposes.
        The first two are appropriate restatements of the appropriate legal
    rules around data, and I take it that the court order provision is not
    meant either to expand or to contract the circumstances in which courts
    can authorize or require the acquisition of EDR data.
        The third is interesting, though, because it illustrates how the
    bill giveth with one hand and taketh away with the other. It creates
    (or affirms) an intellectual property right in EDR data, but prescribes
    an unrestricted, royalty-free license to that data benefiting
    government researchers. The license is limited to data that will not
    reveal the identity of the driver, owner, or lessee--a privacy
    protection--but on balance this provision reduces the consumer's
    control by carving another exception from consumer control of data
    produced by the EDR.
        There is little question that the data in someone's computer is
    their property. So it is with the data in people's cars. But the Motor
    Vehicle Safety Act would reduce people's property rights in EDR data by
    a small margin.
        Overall the disability on consumers to control the existence of
    EDRs in their cars and to control the functioning of EDRs in their cars
    threatens privacy. And it threatens privacy more than the modest
    protections of EDR data in the bill, which restate, then slightly
    derogate from, the better view of existing law about who ``owns'' data.
        There is no privacy apocalypse that occurs should EDRs be mandatory
    nationwide in all new cars. This is but a small step in the continuing
    erosion of privacy that has been going on for years--and that will
    continue.
        The future trajectory of EDR policy is deeply concerning. As they
    have in the past, EDRs will probably continue to add new functions and
    capabilities.
        I note with dismay that the bill would allow NHTSA to require EDRs
    to capture ``certain events such as rapid deceleration, full-throttle
    acceleration lasting more than 15 seconds, and full braking lasting
    more than 10 seconds, even if there is not a crash or airbag
    deployment.'' This is an open-ended grant of authority that could allow
    recording of travel at 90+ miles per hour or 85 miles per hour, or
    maybe 70.
        Future changes to policy may further erode the weak privacy
    protections in the bill. Perhaps reasonable suspicion will allow law
    enforcement officers to access EDR data and issue speeding tickets
    based on it. The existing ban on location data may fall, or EDR data
    might be correlated with location data collected by other functions in
    the car.
        The mandatory EDR is surveillance infrastructure. There are no two
    ways about it. At some point in the future, a day will come when it is
    ``switched on,'' and drivers across the country may be subject to
    government monitoring of their comings and goings.
        Government and industry appear largely to agree on having EDRs in
    all our automobiles, with consumers prevented from controlling those
    EDRs. Because the data collected by EDRs will be available to
    government and litigators, the Motor Vehicle Safety Act puts a sort of
    ankle bracelet on every American driver when he or she gets behind the
    wheel.
        These things are not happening because of an evil plot hatched at
    NHTSA or because of a cabal between NHTSA and the auto manufacturers.
    They are happening because so few people are looking down the road. You
    should be aware that the good intentions behind this bill help build
    ``Big Brother infrastructure.''
        To avoid this, to protect privacy, and to limit the injury and loss
    of life that I think comes from an overbroad mandate for EDR use,
    Federal policy should prefer EDRs to be optional, or at least not make
    them mandatory. Consumers should have control over the functioning of
    EDRs in their cars. And if they choose them, consumers should have full
    ownership of the data their EDRs produce, being free to barter or trade
    that data to anyone who wants to access it.

        Senator Wicker. Now, let me ask--we're going to get some
    very good information from the National Academy of Sciences and
    from NASA. The Act allows NHTSA 3 years to complete the
    electronics rulemaking. There's no specific requirement in the
    legislation, as it exists today, that the results of these
    studies be taken into consideration by your agency.
        So, what's your opinion about that, Mr. Administrator? What
    is your understanding of the status of the NAS and NASA
    studies? And how can we be sure that these very valuable
    studies, from very reliable entities in the United States, will
    be taken into account as part of the rulemaking?
        Mr. Strickland. Thank you, Mr. Wicker, for the question.
        The rulemaking provision regarding electronics has several
    questions that we are still trying to go through at the
    Department and at NHTSA and through the administration. So,
    I'll have to be fairly limited in my response. I'll be happy to
    get back to you in more detail on the record. But, this is--I
    will--I want to lay out a couple of things for you right now.
        [The information referred to follows:]

        We are nearing completion of our work with NASA. It has already
    provided NHTSA with new insights into certain issues related to vehicle
    electronics and software systems. Those insights will certainly be part
    of NHTSA's factual basis in determining whether a rulemaking on
    electronic systems is necessary. When we have the results from the NAS
    study a year or so from now, we expect to have specific recommendations
    on what type of standards, if any, may be useful in this area. Should
    NHTSA conclude that it could advance vehicle safety by promulgating
    such standards, NHTSA would conduct the necessary research efforts to
    support a rulemaking proceeding. In any such proceeding, NHTSA would
    take special consideration of the studies by NASA and NAS and would
    include those studies in its rulemaking docket.

        Mr. Strickland. The NASA study is underway. We are going
    through our project and our test plan that we are working with
    NASA, and we need to have that peer-reviewed after that is
    completed, which is going to take us some time. The hope is to
    have the NASA portion of the study, which is Toyota-specific,
    in terms of the sudden unintended acceleration issues with the
    Camry, the other vehicles that were described. Hopefully,
    that'll be done by late summer, early fall of this year.
        The second part, which is a larger, more comprehensive
    component, is the National Academy of Sciences study. Right now
    the National Academy is doing this, independently of NHTSA, and
    they are working to empanel the experts that will be conducting
    the study. That study will take approximately 15 months,
    presuming that everything goes smoothly and the National
    Academy can get the information that it needs from the various
    constituencies.
        After all that work is done, NHTSA will have to make some
    decisions, both from the National Academy of Sciences' work and
    from the NASA work, whether there actually is an issue that
    rises to a safety defect, before we can even think about either
    opening an investigation or thinking about how we would craft a
    potential standard for electronics. The reason why we're
    investing this time and this effort and over $3 million to do
    this work is so that we can actually get an answer to find our
    way forward on whether we do need to have such a standard or
    rule. So, we would hope that working with the Committee, we
    could work through these particular issues and understand sort
    of where we are as an agency in the expertise that we have
    brought on board, internally and hiring NASA and hiring
    National Academy, before we sort of think about next steps.
        But, I can definitely understand the Committee's concern
    about having some underlying protections and some minimum
    standards from manufacturers in this area. We'd like to have a
    longer, ongoing conversation with the Committee and the
    Congress on this issue.
        Senator Wicker. Well, thank you. And my time has expired.
        I am heartened by your testimony, Mr. Administrator. I have
    a great deal of confidence in NAS, for example, that they will
    apply sound science and call it by the numbers. And that's what
    we need. And to the extent that that information is available
    to us, we certainly need to make sure that it's taken into
    account. So, thank you for your testimony.
        Mr. Strickland. Thank you, Senator Wicker.
        The Chairman. Thank you, Senator Wicker.
        Senator Klobuchar has come. And you have your--an option.

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Oh. That sounds exciting.
        The Chairman. Yes, it is. Always options.
        Senator Klobuchar. OK.
        The Chairman. You can make an opening statement and ask
    questions. You can put your opening statement in the record,
    like the rest of us have, and ask questions.
        [Laughter.]
        Senator Klobuchar. Oh.
        [Laughter.]
        Senator Klobuchar. I think I'll pick a hybrid, like a
    hybrid car.
        The Chairman. That's fine.
        Senator Klobuchar. OK.
        Thank you very much, Mr. Strickland, for being here----
        Mr. Strickland. Thank you.
        Senator Klobuchar.--back here.
        Mr. Strickland. Thank you.
        Senator Klobuchar. And, again, I'm very excited that we're
    moving forward--I thank the Chairman--with the Motor Vehicle
    Safety Act. And I'm glad to be one of the supporters.
        As I said during the March hearings on the Toyota
    acceleration, it's time to change the rules of the road and
    place the consumers in the driver's seat. We had several
    instances in our State, and it's a very concerning issue in our
    State.
        I just wanted to ask you a little bit about, first of all,
    the fine and that issue. In your testimony, you noted that the
    sticky-pedal-timeliness query led to a fine of 16.4 million
    being levied against Toyota. And you also note that NHTSA's
    continuing to review the large number of documents submitted by
    Toyota, regarding the pedal-entrapment query. How would the
    penalties against Toyota differ, in either instance, if the new
    bill became law?
        Mr. Strickland. I guess the question is always about, what
    is the proper level of a penalty to create a deterrent value,
    to make sure that a manufacturer doesn't make a similar mistake
    in the future. I think we assessed the maximum penalty allowed
    under law for the sticky pedal. We are working on the
    timeliness query regarding floormat entrapment and then the
    larger overall recall query. I can't make an estimation as to
    what the decision would be by NHTSA, in terms of the levies, if
    there is a penalty found. But, we definitely would take into
    account the number of vehicles involved, the severity of the
    incident that happened.
        Senator Klobuchar. But, would the new bill, if made law,
    allow you to ask for larger penalties or----
        Mr. Strickland. It would.
        Senator Klobuchar.--would it make it easier?
        Mr. Strickland. It would. Actually, there are several
    elements of the bill that would make a lot of our enforcement--
    --
        Senator Klobuchar. And what are those?
        Mr. Strickland.--jobs easier, including the ability to
    assess a penalty which would be more in line with the size of
    the company and the severity of the violation.
        Senator Klobuchar. And why do you think that would be
    helpful?
        Mr. Strickland. Deterrence is always the goal. We don't
    want to be in a situation where we are prosecuting violations.
    We will want manufacturers to comply with the law. The ability
    for us to have a fine, which creates a deterrent value, means
    the manufacturers, hopefully, would be more attentive to the
    law, more attentive to the amount of time and the turnaround in
    providing the information to NHTSA and to the American public.
    It's a very important element of what we do; and having an
    ability to assess a fine that is in line with the revenues of
    some of the largest corporations on the planet would assist in
    that goal.
        Senator Klobuchar. OK. I also had a question about NTSB. As
    you know, this committee has jurisdiction over NTSB, which has
    also requested authority to investigate more traffic accidents.
    Do NHTSA and NTSB work together now? And do you see it as a
    positive, to have NTSB have broader investigative authority
    related to vehicle accidents?
        Mr. Strickland. It's a little bit of a loaded question for
    me, Senator, in that the current Chairman of the NTSB and I
    were former colleagues on this very committee, as staff, and
    very close friends. So, I will say that prior to both of our
    appointments for these agencies, NHTSA and the NTSB has worked
    very closely together, in terms of dealing with the issues that
    the Safety Board has found that NHTSA should address, starting
    all the way from airbags all the way to the current Motor Coach
    Safety Plan. So, having the NTSB be a partner in investigations
    and to work with is always a value-added. I mean, it's about
    safety, and more folks that are on the beat to help protect
    American public is always a good thing.
        Senator Klobuchar. One last question. I believe it's
    important that NHTSA have similar authorities, as we've
    discussed, other safety enforcement entities of the Federal
    Government. I'm pleased that you clarified the scope of the
    imminent hazard authority that NHTSA would have, should the
    Motor Vehicle Safety Act become law in your testimonies. I
    believe it has been unfairly characterized as too broadly
    defined.
        You note that you'd like the opportunity to work with the
    Committee to ensure that consumers, in cases like this, have an
    actual remedy. What do you mean by an actual remedy?
        Mr. Strickland. Well, a recall has two components. We
    identify a safety defect that poses an unreasonable risk, and
    the manufacturer has to propose a remedy to fix that defect.
    The provision is currently crafted, while it provides
    information to consumers, the important next step is to make
    sure that that consumer can take their car in and get that
    defect remedied. Without the ability for NHTSA, to be able to
    order a mandatory recall in the case of an imminent hazard,
    that doesn't complete the safety loop. You can inform someone
    about a problem, but if you can't fix it, that still leaves a
    risk out there and possibly getting people injured or killed.
        So, I think it's especially important for the imminent
    hazard authority to be complete, as it is with other consumer
    protection agencies, so that we can inform, and when we need to
    intervene, force a mandatory recall to get those vehicles
    fixed.
        Senator Klobuchar. All right, very good. Thank you----
        Mr. Strickland. Thank you, Senator.
        Senator Klobuchar.--for clarifying that.
        The Chairman. Thank you, Senator Klobuchar.
        I'll ask a question. The corporate-responsibility aspect of
    this is interesting to me, and we found that out in our
    hearings with respect to Toyota, and I think it's probably
    true, generally. And that is the concept of, when you're doing
    an investigation, and you ask for information, that that
    information isn't just sort of forwarded to you by some group
    of people working at some level. But, that it be certified--I
    think that's the correct word--that it be certified with a
    signature by the CEO of the company in North--of its company in
    North America. I think that makes a lot of sense.
        Now, what I don't know is how big a problem that is. It
    was, in the case of Toyota. And that, of course, is
    headquartered overseas, and they had difficulties with their
    own transportation ministry, and with you.
        But, explain to me why that's necessary, and how broadly
    you think it is not needed. In other words, people who just
    tend to promptly return what you ask for. Give me the state of
    the play. That means--it's in the bill and I'd like that----
        Mr. Strickland. Yes, sir.
        The Chairman. It's important. But, talk to me about it.
        Mr. Strickland. Corporate accountability is incredibly
    important. The veracity of the information is incredibly
    important. It is already a Federal crime if a manufacturer
    misleads or lies to NHTSA. But, the issue that the staff has
    found over the years, that the Secretary has testified to you
    about when we were here before you in March, and the issues
    that I have found, as Administrator, is that there clearly had
    been a disconnect at Toyota, between Toyota Motor Corporation
    in Japan and Toyota North America here----
        The Chairman. I'm not just talking about them.
        Mr. Strickland. Yes, understand.
        The Chairman. Yes.
        Mr. Strickland. This is broader. Using them as a leaping
    point. For any manufacturer, any provision that makes the
    leadership responsible and accountable for decisions that they
    make in regards to provision and information to NHTSA, the
    speed they provide it, and the accuracy with which the
    information is provided, is important and necessary, and would
    be welcomed by NHTSA.
        The Chairman. There's a kind of a relationship, it seems to
    me, between that and what Senator Klobuchar was talking about,
    the imminent hazard authority, because, I mean, there are
    people who say, ``Well, it'll shut down the auto industry.''
    And that strikes me as absurd, because you put in very clear
    language that the authority could only be used if a vehicle
    defect, quote, ``presents an imminent hazard to public safety
    that may result in death or serious bodily harm.''
        The Secretary of Transportation has that authority already
    with buses, he has it with trucks, has it with aircraft that
    might have defective parts. And if you add up all of the
    injuries and deaths between those three modes of
    transportation, or four, or whatever it was, it doesn't come
    close to what happens in automobiles. And so, it doesn't make
    any sense to me that that would not also apply to automobiles.
        Tell me how would you and the Secretary apply that? How
    would you make judgments about what constituted present--
    presents an imminent hazard to public safety that may result in
    death or serious bodily harm? How would you do that?
        Mr. Strickland. We would use this authority very carefully,
    as we do in all of the modes that you mentioned, including the
    Federal Rail Administration, as well. It is a situation where
    it is a timely issue that is so important that we know that the
    ability or the possibility of death or serious injury is so
    acute that we must act now. So, it is going to be used very
    carefully, very sparingly. We rely upon----
        The Chairman. How do you judge that it is that acute?
        Mr. Strickland. It is acute----
        The Chairman. Cars are out there, you're here.
        Mr. Strickland. A report that we would get about a
    particular situation--I can't imagine a fact pattern, but we
    have a situation where there is a significant loss of life, or
    a loss of life in a situation that we feel it would be
    repeatable and easily foreseeable--in that situation, we would
    probably look very hard at acting quickly, to making sure that
    that recall happened as soon as possible. That----
        The Chairman. Are these patterns that you're looking for,
    or specific episodes?
        Mr. Strickland.--it wouldn't have to be a pattern, sir,
    just like we act right now. For example, the Santee California
    crash, for example, where we--the loss of life that we had from
    the Saylor family. That was one accident. We lost four people.
    But, that immediately, you know, triggered action for NHTSA,
    not based upon looking at a trend analysis. It's something
    where it could be a small number of incidents, it could be one
    singular incident, it could be a number of incidents. But, I
    would imagine we would look to our other sister agencies and
    modes, and how they apply this, and use the same type of
    screening and application of this. Because we know it is a
    situation has to be very, very carefully used, because we know
    the importance of changing the process, of going through the
    public hearing, what we normally do. It has to be a clear and
    present danger of loss of life that has to be intervened in an
    incredibly fast fashion.
        The Chairman. Let me ask you something which is not in the
    bill. When you have the unanticipated-acceleration problem, the
    person gets rid of the car. They get rid of the car by selling
    it to a second-hand car dealer, or whatever. And
    philosophically, that, I think, creates quite a dilemma,
    because if the machine was dangerous for the individual who
    wanted to get rid of it, because it suddenly surged forward and
    they couldn't stop it--now, we're going to have a brake
    mechanism, but we don't yet--how is it that you can let that go
    to a secondhand or a used car dealer? Because it's still a
    lethal instrument.
        Mr. Strickland. Currently, we don't have authority over the
    used car market in the way that we have authority over new car
    sales and dealers and manufacturers. This is an issue that we
    very much would like to work with the Committee on.
        One concept that I know that, internally, we are discussing
    at NHTSA, is having the type of ability to have car resellers,
    like used car dealerships, actually have to check to make sure
    if there has been any recalls on that particular vehicle, if
    there was a remedy that had to be exacted, and if that remedy
    had been applied to the car. If it hadn't been applied, then
    it's their responsibility to actually get the recall repair
    done before they can put it back in the stream of commerce.
    That is something that is currently not in law. We think it
    could be very helpful for us to make sure that we have
    fulfilled the recall-and-defect-remedy loop. And we'd be very
    interested in speaking with you and the Committee, and
    hopefully having that provision included.
        The Chairman. I want to talk more on that, but I've
    overshot my time already.
        Senator Wicker.
        Senator Wicker. With regard to the imminent hazard
    authority, the Federal Railroad Administration doesn't have
    this. Consumer Product Safety Commission, very concerned with
    protecting Americans, doesn't have this authority. In those
    instances, the agency must either obtain a court order or
    provide an expedited administrative review of the
    determination. So, why should NHTSA be provided different
    authority than we have provided to other safety agencies?
        Mr. Strickland. Mr. Wicker, I would have to say that the
    Federal Rail Administration does have the authority, they have
    to just review, post-order, by the Administrator. And that
    authority is also available at FMCSA, at FAA, and there's
    probably a host of other agencies, I think, also included with
    FDA.
        So, the construction, as currently drafted in the
    legislation, is not without precedent. And it is an authority
    that, through all of the sister modes at DOT, has been very
    carefully and thoughtfully used, and it has had a tremendous
    impact on safety, and being able to give the Administrator an
    ability to intervene in a crisis situation.
        NHTSA is the mode where we have the largest loss of life--
    we have over 34,000 people that lost their lives in 2008. As
    Senator Rockefeller alluded to, our other sister modes have
    nowhere near the amount of deaths and injuries as the roadways
    do. We think that this particular provision is incredibly
    important and would give us a tremendous opportunity to
    effectuate our safety mission.
        Senator Wicker. So, are you saying that I am mistaken in
    the premise of my question, that the Federal Railroad
    Administration does have the authority, to the extent that it
    is envisioned in the proposed Act?
        Mr. Strickland. That is correct. I'm very confident in
    that. My director of enforcement was the head of enforcement at
    FRA, and was over at FRA for over 25 years, and used this
    authority, specifically, numerous times. I'm very confident in
    that. FRA does have the authority, as drafted, with the ability
    to effectuate a remedy, which is the one component that is not
    in the legislation, as introduced.
        Senator Wicker. Thank you.
        The Chairman. Thank you, Senator Wicker.
        Senator Pryor.
        Senator Pryor. Thank you, Mr. Chairman. I just have a
    couple of follow-ups for Administrator Strickland, and that is,
    Do automobile manufacturers, today, provide the vehicles with
    software updates to improve the safety of the automobile? Can
    they go in and update the software on existing vehicles?
        Mr. Strickland. Yes. Manufacturers will, depending on the
    level and whether it rises to a safety defect, will perform
    software modifications on the fly, sometimes on the line,
    themselves. They'll issue a technical service bulletin, where
    they will go out and load new software on a vehicle to deal
    with the drivability issue.
        If it is a safety defect issue, they need to report it to
    NHTSA, per the Motor Vehicle Safety Act, and then follow on
    with a recall and everything else. But, there is lots of
    activity, software-wise, that the manufacturers undertake.
        Senator Pryor. If it's not safety related, do they have to
    provide the information to NHTSA?
        Mr. Strickland. That is correct. If it's not safety
    related, they do not.
        Senator Pryor. OK. But, do they routinely provide it to
    NHTSA, or do they normally just take care of it, and NHTSA not
    know about it?
        Mr. Strickland. In addition to their provision of
    information from the early warning TREAD mandates, our staff
    also follow the manufacturers individually. We take a look
    their technical service bulletins and their other announcements
    so that we can make an evaluation whether a manufacturer may
    look at a software update as not being a safety-related issue;
    we may have a different interpretation of that. If we do find
    that, we then approach the manufacturer and may take action. So
    the manufacturer doesn't have an obligation if it's not safety-
    related, but we, independently, also verify those issues as we
    see them arise in manufacturer bulletins and other advisories
    that they do.
        Senator Pryor. And do you know the industry practice, in
    terms of the consumers' knowledge about the software updates to
    the manufacturers or the dealerships or authorized repair
    centers? Do they routinely notify the consumer of the update?
        Mr. Strickland. I can only speak as an owner of two
    automobiles. I have never personally received a notice about a
    software update for my vehicle, except for when they wanted me
    to purchase a DVD update for my GPS system, for a certain
    amount of money. But, anything short of that, I've never
    received anything like that, and I'm not knowledgeable of such
    activity.
        Senator Pryor. Thank you, Mr. Chairman.
        The Chairman. Thank you, Senator Pryor.
        If I might just continue on what we were talking about
    before. It's interesting to me, the--in fact what the--the
    computer update--I'm trying to imagine what I would be getting,
    under this bill, that, one, I could understand--well, let's
    start with ``read''; second, understand; and, third, be
    informed, because that would mean that I would have to stop
    doing some things that I had been doing, because the computer
    was doing them, and start doing things, or whatever. So, what
    does this notice of update do for the driver of the car?
        Mr. Strickland. Well, Chairman Rockefeller, the question
    that I don't have the answer to is the number of software
    updates and upgrades that may happen. It may be part of routine
    maintenance when a person brings in their car at a particular
    mileage check, where they may do these type of upgrades, and
    not notify the consumer. Personally, as a consumer and as a
    person who's worked in consumer safety for a number of years,
    I've always believed that consumer information empowers people.
    I think that this provision would definitely help assist
    telling people about what's going on with their automobiles and
    inform them, and then, if they want to know more, they can make
    a query of the manufacturer.
        Our only mission in this area is safety. If it's safety-
    related, we have to know about it and that information must be
    conveyed to the consumer. Anything beyond safety is beyond the
    ambit of our mission. It may be very good for consumers to know
    about these additional changes, but, as far as our mission
    goes, it is not core to our mission. I would have to think
    longer before I can give you more a specific answer about the
    provision--or how much information will be provided by a
    manufacturer. The representatives from the Alliance and AIAM
    may be more knowledgeable as to these types of updates that are
    outside of the safety realm, but I--personally, I always think
    more information is----
        The Chairman. But, my point is, they're not outside the
    safety realm.
        Mr. Strickland. Sometimes----
        The Chairman. If it's a computer----
        Mr. Strickland.--they are.
        The Chairman. If it's a software----
        Mr. Strickland. If it's a software update----
        The Chairman.--update, I mean, that may very much be gas,
    brake, whatever.
        Mr. Strickland. There are several types of updates. They
    will often make modifications for things--for drivability or
    roadability to improve the comfort of the driver. It has
    nothing to do with safety, but it may change particular aspects
    of the performance of the vehicle, for example. So, those types
    of updates we're not concerned about those. Our concern comes
    into when a software update does impact safety. If there is an
    issue where the software is correcting a defect, where we
    should be having a full recall, then the Motor Vehicle Safety
    Act comes into play. Anything outside of that, in terms of
    software updates, which deals with other comfort issues, we, as
    an agency, aren't concerned about those. But, perhaps the
    consumers should know about them, because it is their car.
        The Chairman. All right. One more quick one. On the last
    subject, of the used car, and the consumer needing to be
    informed--and, by the way, the used car dealer needs to be
    informed, because maybe the consumer doesn't tell the used car
    dealer; he just says, you know, ``I'm getting another car, and
    here, I want to sell this one, trade it in for this one.'' And
    there's a lot wrong with the car; the unintended acceleration
    being the example, of course, that I think of. Number one, how
    in the law, which we have not made about this subject, but
    which I think is very important for the future, perhaps--
    definitely next year--how do they know what was wrong with the
    car, unless the person tells them? I mean, NHTSA isn't involved
    in that transaction.
        And second, when you do, if they want to find out what the
    state of cars are, there is, evidently, your website, to see
    whether a make or model of a car was recalled or experiencing a
    large number of complaints. The bill would also require
    manufacturers to give consumers access to dealer bulletins on
    car----
        Now, all this sounds very good. But, most people, when they
    buy cars, don't delve into a whole lot more than the ignition,
    the brake, gas, the radio. I mean, it's just true. There are
    all kinds of buttons that never get used. So, does the Website
    really do good? I mean, do people just charge to the NHTSA
    Website every time they're considering a change, or something?
        Mr. Strickland. We would hope that every American
    consumer----
        The Chairman. Yes, but, Mr. Strickland, you've got to be
    realistic, here. I don't think they're going to do that. My
    colleagues might disagree.
        Mr. Strickland. There is a responsibility upon the
    manufacturer and the new car dealer, which NHTSA does have a
    direct regulatory relationship. For professional resellers,
    used car dealerships, we do not. I think it does help safety if
    there is responsibility placed upon a used car, a reseller to
    have responsibility to check the website, to check with the
    manufacturer for any pendent recalls or defects that need to be
    addressed.
        The Chairman. Who does have----
        Mr. Strickland. Right now, there is----
        The Chairman.--the watchover authority----
        Mr. Strickland.--there isn't any.
        The Chairman. Well, that's a problem.
        Mr. Strickland. Yes, sir, it is. I agree.
        The Chairman. How would you solve that?
        Mr. Strickland. As I suggested, we'd like to work with the
    Committee on providing us the authority to be able to enforce
    regulations on used car resellers to deal with exactly this
    problem.
        The Chairman. Well, that's very interesting. I think that's
    a dangerous situation.
        Senator Klobuchar.
        Senator Klobuchar. I have no additional questions. Thank
    you, Chairman.
        The Chairman. That can't be.
        [Laughter.]
        Senator Klobuchar. It's true. I'll submit them for the
    record.
        The Chairman. All right.
        Senator Klobuchar. Thank you. And, plus, we have a charming
    second panel.
        The Chairman. We do, and they're coming on, because we're
    going to thank Mr. Strickland. I, again, apologize for being
    late.
        Mr. Strickland. It's quite understandable. Important
    business, Mr. Chairman. Thank you for inviting me and taking
    the time. And thank you for the hard work on this bill. It's
    a----
        The Chairman. Yes, it's a----
        Mr. Strickland.--great piece of legislation.
        The Chairman.--I think it's a good bill. I really do think
    it's a good bill. In any event, thank you very much.
        And we go, then, to the next panel, which is The Honorable
    Dave McCurdy, who I had breakfast with this morning, President
    and Chief Executive Officer; Mr. Clarence Ditlow, who we are
    very familiar with, the Center for Auto Safety; Mr. Michael
    Stanton, President and Chief Executive Officer; and The
    Honorable Joan Claybrook, President Emeritus, Public Citizen
    and former National Highway Traffic Safety Administrator, U.S.
    Department of Transportation.
        And I apologize to all of you, too.
        [Pause.]
        The Chairman. The Honorable Mr. McCurdy, we will start with
    you, if you have a statement you wish to make.

          STATEMENT OF HON. DAVE McCURDY, PRESIDENT AND CEO,
                THE ALLIANCE OF AUTOMOBILE MANUFACTURERS

        Mr. McCurdy. Thank you, Mr. Chairman and Senator Pryor and
    other members of the Committee, for inviting me to offer the
    Alliance views on Senate bill 3302, the Motor Vehicle Safety
    Act of 2010.
        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 fact, in a historic period of auto
    safety in this country. Our roads are safer today. U.S. traffic
    fatalities, reported at the end of 2009, reached the lowest
    level in 49 years. Consumers are benefiting from many
    innovative, lifesaving technologies that assist the driver,
    including electronic stability control, lane-departure warning
    systems, blind-spot monitors, adaptive cruise control, and many
    others. What seems like science fiction is automotive fact.
        If Congress wants to reassure consumers quickly about auto
    safety, I would encourage this committee and the Congress to
    focus on three to four measures that enhance safety the most.
    Here are our recommendations:
        The Alliance supports a vehicle brake override standard
    that will reassure consumers that they can count on their
    automobiles, no matter what the cause of unintended
    acceleration, whether it's a sticky pedal or a pedal getting
    caught in a floor mat, or faulty electronics.
        A pedal-placement rulemaking would not provide additional
    safety benefits, however. Administrator Strickland told the
    House, recently, that it needs further research, and we agree.
        Second, the Alliance supports requiring event data
    recorders in new vehicles. The Congress should allow NHTSA to
    fully implement the first rule, and collect data from it,
    before ordering NHTSA to start writing the next rule.
        Some of the proposed new requirements will add
    significantly to the cost of these devices. In these tough
    economic times, Americans want to know they are getting a real
    safety benefit for their money. In my opinion, Senator Udall's
    legislation, S. 3271, the Vehicle Safety Act, is a better
    approach.
        The Alliance urges Congress to adopt legislation that
    enhances our expertise, such as the Center for Vehicle
    Electronics and Emerging Technologies within NHTSA, which is in
    your bill. Even in this partisan environment, this is something
    we can all agree upon.
        Automakers also urge Congress to fully fund the National
    Automobile Sampling System, or NASS. In addition, we encourage
    Congress to fund the Driver Alcohol Detection System for
    Safety, or DADSS, to help identify vehicle technologies that
    could stop drunks from turning on a car. More people die in
    alcohol-related crashes every single week than all of the
    alleged unintended acceleration incidents, combined, over the
    last decade.
        As you consider this legislation, we urge you to consider
    its legal and marketplace effects. Congress must balance the
    desire for more 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. Safety
    legislation should empower the engineers, not trial lawyers.
        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.
        Regard granting NHTSA imminent hazard authority, the
    proposed provisions, in our opinion, are so lacking in
    standards and the opportunity to be heard before a neutral
    decisionmaker as to violate the due-process clause of the U.S.
    Constitution.
        Regarding corporate responsibility for NHTSA reports, the
    proposed personal liability for automotive executives would be
    $250 million. That's 50 times higher than for executives under
    Sarbanes-Oxley.
        In closing, I know the challenges of reaching a consensus.
    I've chaired several subcommittees and a full committee. This
    bill can be made stronger by focusing on what's most important.
    And we look forward to working with you to identify those
    elements and provisions that will benefit consumers the most.
        Thank you.
        [The prepared statement of Mr. McCurdy follows:]

          Prepared Statement of Hon. Dave McCurdy, President and CEO,
                    The Alliance of Automobile Manufacturers
        Thank you, Chairman Rockefeller, Ranking Member Hutchison, and
    members of the Committee, for inviting me to offer the Alliance's views
    on S. 3302, the Motor Vehicle Safety Act of 2010. The Alliance is
    committed to working constructively with the Congress on legislation
    that promotes the National Highway Traffic Safety Administration's
    (NHTSA) mission to ``save lives, prevent injuries and reduce economic
    costs due to road traffic crashes.'' We appreciate the opportunity to
    share our views on how S. 3302 contributes to the overall safety of the
    driving public, as well as areas in which we believe the legislation
    could be improved.
    Reassuring Consumers
        There has been a lot of discussion on auto recalls in the past few
    months, so let me start by reassuring the American consumer.
        Government data shows many advances in road safety. According to
    NHTSA, overall traffic fatalities reported at the end of 2009 reached
    the lowest level in 49 years, declining for the 15th consecutive
    quarter. This fact is remarkable given that the number of licensed
    drivers has more than doubled and annual vehicle miles travelled (VMT)
    have more than quadrupled since 1954.
        Consumers are benefiting from a range of innovative new safety
    technologies. Because consumers want more safety features, automakers
    have developed many of today's significant safety innovations without a
    government mandate, including anti-lock brakes, electronic stability
    control (ESC), adaptive headlights, side airbags and curtains, front
    passenger safety belt reminder systems and advanced collision avoidance
    features like lane departure warning, blind spot monitors and adaptive
    cruise control.
        Automobiles are complex, integrated systems that undergo years of
    rigorous testing and certification before they ever go on sale. Every
    auto innovation begins with an idea, but the real work is years of
    research, computer simulations, product development, laboratory
    testing, road testing, certification and more. Through the Society of
    Automotive Engineers (SAE), 14,000 mobility experts in 100+ countries
    have worked together to develop more than 2,600 globally recognized
    standards for motor vehicle transport.
    Real-World Benefits
        The industry continues to work to advance the state-of-the-art in
    real world safety. Our engineers are always testing and developing new
    safety technologies, then evaluating their performance in real-world
    situations. Proposed legislation needs to meet the same test. Congress
    and all stakeholders should be focused first and foremost on passing a
    bill that will result in real-world safety benefits for Americans. This
    includes carefully weighing the potential costs of any regulation with
    the real world benefits consumers might expect. We believe that this
    legislation can advance safety through:

       Enhancing real-world expertise on the advanced technologies
            that enhance safety.

       Adopting consumer confidence measures, including more
            education on how cars work.

       Balancing proposals with consumer concerns and marketplace
            concerns.

       Adopting measures to help engineers, not trial lawyers.

       Fully funding data collection programs (e.g., NASS, FARS,
            NMVCCS, etc.,) to enable improved identification of real-world
            safety trends.
    Title I. Vehicle Electronics and Safety Standards
        A number of rulemakings are mandated, many of them to be conducted
    concurrently according to unrealistic timelines. Some are overly
    prescriptive. Other rulemakings are simply unnecessary because they
    mandate standards already adopted by NHTSA. Still other mandates are
    premature.
        To ensure that motor vehicle safety is enhanced, the Alliance has
    the following recommendations. In all instances, however, more
    reasonable timelines for rulemaking and especially for implementation
    are needed.
    Rulemakings or Actions that should be pursued on a Priority Basis
        Section 101. Electronics and Engineering Expertise. The Alliance
    supports Section 101 that establishes a Center for Vehicle Electronics
    and Emerging Technologies within NHTSA. We note that concerns over
    NHTSA's alleged lack of expertise with advanced vehicle technologies
    are in part unjustified considering the complex rulemakings the agency
    has completed in the last decade on numerous advanced vehicle
    technologies, including advanced airbags, electronic stability control,
    event data recorders and others. As the industry works to reinvent the
    automobile to make it safer, cleaner and more efficient, highlighting
    and promoting this area of expertise within the agency is welcomed.
        Section 102. Vehicle Stopping Distance and Brake Override Standard.
    The Alliance supports the intent of Section 102, which would direct
    NHTSA to develop a rule requiring ``brake override'' technology for
    vehicles equipped with electronic throttle controls. A number of
    Alliance members already incorporate this technology into their
    vehicles and the others are moving in that direction. Alliance members
    recognize that safety is at the top of consumers' minds, and brake
    override technology will reassure them that they can count on their
    brakes in difficult situations. The Alliance recommends that this
    standard be written to amend FMVSS 135 and FMVSS 105, which already
    prescribe brake stopping distances.
        The Alliance also notes that Section 102 (and Section 103) calls
    for the creation of standards that would ``prevent'' certain outcomes
    from happening. Such a requirement for the standard is beyond anything
    reasonable--or even possible in the real world. The Alliance recommends
    that the use of the word ``prevent'' in these two Sections be changed
    to the more typical requirement such as ``reduce'' or ``mitigate.''
        Section 105. Keyless Ignition Systems Standard. The Alliance
    supports requiring that passenger vehicles with pushbutton ignition
    systems have a consistent means to shut off the engine. However, the
    Alliance is deeply troubled by the suggestion that the actual intent of
    this provision is to redesign the ignition systems of certain vehicles
    to perform non-stop/start-related functions, such as to shift the
    vehicle into neutral or de-power the accelerator without turning off
    the engine. Such a radical departure from the current operation of
    these systems is questionable at best and may actually result in
    significant unintended consequences (such as in the case of an engine
    fire). At the very least, a change of this magnitude needs careful
    consideration by NHTSA, automakers and other stakeholders to ensure
    that all aspects of such a change are considered before they are
    required. If Congress believes this idea is worth pursuing, it should
    direct NHTSA to study potential options and report to Congress and the
    public on the potential benefits and trade-offs of such a redesign.
        Section 107. Vehicle Event Data Recorders (EDR). The Alliance
    supports the intention of Section 107, which would require NHTSA to
    mandate installation of event data recorders on new vehicles; however,
    the Alliance is very concerned about and would oppose certain aspects
    of this provision. In 2006, NHTSA published a rule setting the
    parameters for EDRs voluntarily installed in vehicles. That
    comprehensive rule, in which certain technical details submitted by
    petition for reconsideration are still not resolved, was the result of
    a lengthy and complicated deliberation with substantial public
    comments.
        Given that the existing rule has been scheduled for implementation
    in 2012, the Alliance recommends that the first phase of mandatory
    implementation should be consistent with the existing rule being
    implemented by NHTSA, including the resolution of pending petitions
    relating to technical issues and the effective date, to enable
    manufacturers who have implemented EDRs on parts of their fleet to come
    into full compliance. Equally important is the fact that manufacturers
    who opted not to install EDRs previously will need sufficient lead
    time, and certainly more than 2 years, to develop and implement this
    technology in their fleets. The law should not mandate lead times that
    may be unrealistic and NHTSA should have the authority to establish the
    lead time, including any phase-in schedule, after consultation with the
    manufacturers.
        Specifications and requirements for EDRs, including those for data
    storage time, require analysis and consideration of available
    technology, feasibility, safety benefit and cost, should be left to
    NHTSA to study and decide whether to undertake further rulemaking and
    not specified in this legislation.
        The Alliance also supports strong privacy protections for
    consumers. The Alliance believes that information stored on an EDR is
    the property of the vehicle owner and should not be accessed by anyone
    without the owner's permission or as required by law. Additionally,
    even with the owner's permission, data that is retrieved for the
    purpose of including in a publicly available database should be
    rendered anonymous by excluding at minimum the last six digits of the
    vehicle identification number (VIN) associated with the data. The bill
    should contain an exception for the transmission of EDR data to 9-1-1
    call centers for purposes of emergency response.
        With respect to the second phase of the EDR requirements, the
    Alliance believes that the provisions are extreme and would cost
    consumers thousands of dollars for the devices that would be required.
    For automakers to develop a device that is resistant to temperature,
    water and crashes and capable of continuously recording various pieces
    of data for 75+ seconds, we would need to create the equivalent of an
    airline ``black box'' for vehicles. This would be very expensive with
    no current demonstration of benefit.
        A better approach would be to provide for a NHTSA study of the
    results of the first phase rulemaking as a prologue to any future
    enhancements to the rule.
    Unnecessary Rulemakings
        Section 103. Pedal Placement Standard. The Alliance recommends
    deleting Section 103, which would direct NHTSA to develop a rule
    specifying minimum clearances for passenger vehicle foot pedals with
    respect to other pedals, the vehicle floor, and any other potential
    obstruction to pedal movement. While perhaps well-intentioned, Section
    103 would require NHTSA and auto manufacturers to spend valuable
    resources focusing on one aspect of a limited, past design problem that
    is unlikely to reoccur in the future given the recent attention.
    Implementing brake override technology as S. 3302 would accomplish is a
    better, more comprehensive solution to address concerns about
    unintended acceleration caused by pedal entrapment.
        Section 106. Transmission Configuration. Section 106, which would
    direct NHTSA to prescribe a Federal motor vehicle safety standard for
    passenger vehicles requiring an intuitive configuration and labeling of
    gear shifting controls that makes the neutral position conspicuous is
    unnecessary. Such a standard already exists. Federal Motor Vehicle
    Safety Standard No. 102, ``Transmission shift position sequence,
    starter interlock, and transmission braking effect,'' currently
    specifies the transmission shift position sequence to reduce the
    likelihood of shifting errors. The standard was among the first group
    of early standards issued by the agency and was last amended in 2005.
    Changing the shift configuration (as is suggested) potentially involves
    transmission re-designs that are very costly and require substantial
    lead time. As a result, any changes in shifting configuration will
    require far more than the one model year of lead time that is provided.
    Given that this standard has been in effect for a long time, changing
    the shift position sequence is unnecessary and ill-advised.
    Rulemakings that Require Additional Study
        Section 104. Electronic Systems Performance Standard. As the
    Committee is no doubt aware, NHTSA has contracted with the National
    Academy of Sciences (NAS) to examine the broad subject of unintended
    acceleration and electronic vehicle controls across the entire industry
    over the course of 15 months. The NAS will make recommendations to
    NHTSA on how its rulemaking, research, and defect investigations
    activities can help ensure the safety of electronic control systems in
    motor vehicles. In addition, NHTSA with the help of NASA is conducting
    its own review and investigation into the electronic systems that have
    been the focus of recent hearings. Both studies will be peer reviewed
    by scientific experts and the total cost for these studies will be
    approximately $3 million. Section 104 would require NHTSA to require
    electronic systems in passenger vehicles to meet minimum performance
    standards within 3 years of enactment. In this regard, S. 3302
    presupposes the outcome of these reviews.
        Auto manufacturers subject electronics systems in our vehicles to
    rigorous testing that is unparalleled in the consumer electronics
    sector. Auto systems are designed to last at least three to four times
    as long as standard consumer electronics and are subjected to much
    harsher extremes in testing. The Alliance supports the work on
    electromagnetic interference that is ongoing at NHTSA and the National
    Academy of Sciences. The results of the NAS study should inform any
    future rulemaking that considers standards for electronic vehicle
    controls.
    Title II. Enhanced Safety Authorities
        Section 201. Civil Penalties. The Alliance does not oppose an
    increase in the civil penalties, but the penalties must be capped at
    some reasonable level. Furthermore, the Alliance questions whether a
    five-fold increase in penalties is necessary. Only 2 years ago, this
    same committee visited this issue and set a $15 million-per-offense cap
    on penalties that could be assessed to manufacturers of other types of
    consumer products. Many of these manufacturers are as large as auto
    manufacturers, and auto manufacturers are already subject to civil
    penalties of up to $16.4 million per series of related violations. It
    is not clear to the Alliance why auto manufacturers should be singled
    out for disproportionate penalties relative to other consumer products
    manufacturers.
        Section 202. Imminent Hazard Authority. Although Section 202 is
    captioned ``Imminent Hazard Authority,'' it contains two separate
    provisions: the new imminent hazard authority in Section 202(a) and
    substantial changes to existing judicial review provisions in Section
    202(b). If Congress concludes that an ``imminent hazard'' authority at
    NHTSA is desirable, both of these provisions must be rewritten to
    protect manufacturers' due process rights under the U.S. Constitution.
        While there might be justification for expedited action on
    situations that create an ``imminent hazard'' to safety, the provision
    in Section 202(a) provides for no standard for judging what an
    ``imminent hazard'' might be. Current law provides for recalls when a
    defect presents an ``immediate and substantial threat to motor vehicle
    safety,'' but those terms are not used in the bill, and the new
    terminology is not defined. Neither the Secretary nor the manufacturer
    would have the kind of guidance required under the U.S. Constitution on
    what situations might be subject to this authority. Worse yet, Section
    202(a) provides no administrative hearing on an Imminent Hazard Order
    by the Secretary in a reasonable--or any--time, nor does it provide the
    manufacturer with the opportunity for a hearing before a fact-finding
    judge. General principles of due process require a hearing of some sort
    within a reasonable time on such an administrative order or
    alternatively, a limitation on the duration of the order. For instance,
    the Consumer Products Safety Commission cannot get an imminent hazard
    order without first going to court; under the Federal Railroad Act, an
    order can only last 30 days before an administrative review hearing.
    Section 202(a) has no timeline for an administrative hearing. Under
    this legislation, the Secretary can order a stop sale of unlimited
    duration and the manufacturer is left with the sole remedy of going to
    the U.S. Court of Appeals, a process that can take up to 2 years. There
    is no administrative hearing, no judicial hearing before a fact-finding
    judge, and no expedited review. This and the lack of standards are
    serious due process concerns.
        Due process generally requires that an aggrieved party be given
    notice and an opportunity for a hearing before the party is deprived of
    property. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
    (1985) (``An essential principle of due process is that a deprivation
    of life, liberty, or property be preceded by notice and opportunity for
    hearing appropriate to the nature of the case.'' (internal quotation
    omitted)).
        ``The opportunity to present reasons, either in person or in
    writing, why proposed action should not be taken is a fundamental due
    process requirement.'' Loudermill, 470 U.S. at 546. It is a `` `root
    requirement' of the Due Process Clause'' that the entity `` `be given
    an opportunity for a hearing before [it] is deprived of any significant
    property interest.''' Id., 470 U.S. at 542 (quoting Boddie v.
    Connecticut, 401 U.S. 371, 379 (1971)); see also Zinermon v. Burch, 494
    U.S. 113, 127 (1990). The lack of adequate process is particularly
    troubling where there exist no ``additional procedural safeguards'' to
    protect the interests of aggrieved parties. Matthews v. Eldridge, 424
    U.S. 319, 343 (1976).
        Section 202(b) goes beyond the section's caption and also amends
    the existing statutory process by which a manufacturer obtains judicial
    review of an order to recall vehicles (without regard to imminent
    hazards). Under current law, a manufacturer contesting a mandatory
    recall order is entitled to a de novo trial in district court in which
    NHTSA has the burden of proof to establish the presence of a safety-
    related defect. U.S. v. General Motors Corp., 518 F.2d 420, 438 (D.C.
    Cir. 1975). The draft bill would appear to substitute appellate review
    of any recall order for district court review. Appellate review, which
    is usually deferential to the finder of fact--whether a district court
    or an agency that has held an enforcement hearing--is inappropriate
    where, as under Section 202(b), there has been no hearing on the facts
    and no provision for a fact-finding judge to make an initial decision.
    Under this scenario, the manufacturer would never get due process of
    law to establish the record in a neutral forum. The manufacturer should
    have the opportunity to develop a record and defend itself in District
    Court. S. 3302 as introduced deprives the manufacturers of due process.
        Finally, the imminent hazard provisions, as currently drafted,
    significantly expand the powers of the Secretary to affect
    manufacturers' businesses without actually offering any additional
    safety benefits. NHTSA may order the manufacturer to stop production,
    sale, offer for sale, lease, offer for lease, distribution, the
    introduction or delivery for introduction in interstate commerce, or
    importation into the United States. The current ``stop sale'' provision
    in the Safety Act already prohibits the delivery to a customer of any
    vehicle until the safety defect has been remedied. As long as the
    defect is remedied prior to the vehicle getting into customers' hands,
    there is no added safety benefit gained by stopping production,
    importation or halting distribution to dealerships. Halting
    distribution unnecessarily prevents manufacturers from utilizing the
    most efficient method for fixing defects in vehicles--the dealer body.
    Title III. Transparency and Accountability
        Section 301. Public Availability of Early Warning Data. Section 301
    expands the coverage of the ``early warning reporting'' program to
    include several categories of data that are already being collected by
    NHTSA under the ``early warning reporting'' regulations. For example,
    NHTSA's rule already requires manufacturers to report on customer
    complaints, warranty claims, and field reports under the ``early
    warning reporting'' program, and NHTSA found that it had ample
    authority to require this information under the existing law.
    Accordingly, it is unclear why this provision is needed.
        Section 301 would replace the current ``disclosure'' provision of
    Section 30166 of Title 49 with a new provision that appears to compel
    release of all early warning information ``provided to the Secretary
    pursuant to this subsection'' unless the information is exempt from
    disclosure under the Freedom of Information Act (FOIA). The legislation
    directs NHTSA to undertake rulemaking ``establishing categories of
    information provided to the Secretary pursuant to this subsection that
    must be made available to the public,'' and authorizes NHTSA to
    ``establish categories of information that may be withheld from public
    disclosure under paragraphs (4) and (6)'' of FOIA. The Section goes on,
    however, to require disclosure of consumer complaint aggregated data,
    without regard to whether it might qualify for exemption from
    disclosure under the FOIA, and repeals NHTSA's existing regulation
    establishing categories of early warning information that the agency
    determined to be eligible for withholding from disclosure under
    paragraph (4) and (6) of the FOIA.
        As NHTSA has already done much of what this provision directs
    namely, considered which categories of early warning information are
    entitled to exemption from disclosure under FOIA through an extensive
    rulemaking proceeding that was reviewed and upheld by the courts it is
    unclear what benefit is served by repealing the outcome of that effort
    in its totality and directing NHTSA to do it all over again. A simple
    direction to NHTSA to review the existing regulation and make
    appropriate changes resulting from the review would seem to accomplish
    the same purpose.
        As to the new direction to ``establish categories'' of information
    ``that must be made available to the public,'' the Alliance
    respectfully suggests that this provision misunderstands the FOIA
    process and the protection it affords to trade secrets and confidential
    business information. While the courts have upheld (and, indeed,
    encouraged) agencies to establish categories of exempt information
    under FOIA to help manage the administrative burdens of FOIA, we know
    of no such process for creating categories of information that ``must
    be made available to the public,'' nor do we believe that such
    direction is authorized under FOIA and the case law that has evolved
    around the processes for protecting confidential business information
    (so-called ``Reverse FOIA cases''). A submitter of confidential
    business information to the government is entitled to have that
    information reviewed and considered for withholding from public
    disclosure under FOIA standards, and that right cannot be taken away by
    the administrative creation by NHTSA of ``categories'' of information
    that must be disclosed. By contrast, the courts have encouraged
    agencies to create ``categories'' of exempt information to ease the
    practical problems of reviewing and passing on multiple requests for
    confidential treatment by numerous submitters, when those submissions
    are likely to be repetitive and where most such requests are likely to
    be granted.
        Since TREAD was enacted in 2000, NHTSA has applied FOIA standards
    to evaluate the confidentiality of early warning reports, and their
    evaluations have been upheld by the reviewing courts. As Section 301
    continues to provide for the application of FOIA standards to these
    data, but simultaneously calls for the creation of ``categories'' of
    information to be disclosed, the Alliance believes that this provision
    raises serious questions about the consistency of the provision with
    the FOIA itself and the rights of submitters of confidential
    information to the government.
        Section 302. Improved NHTSA Vehicle Safety Database. The Alliance
    supports Section 302, which would provide for improvements in NHTSA's
    Vehicle Safety Database. We have long advocated for increased funding
    for NHTSA's National Automotive Sampling Survey. More resources to
    sample more cases will aid the agency and the manufacturers in
    developing appropriate vehicle safety countermeasures. In addition,
    Alliance members think the marketplace and consumers will be well-
    served by an improved safercar.gov website. There is a bountiful supply
    of information currently available to the Agency and the public, but
    unfortunately it is not shared with consumers in a way that can be most
    helpful to them.
        Section 304. Promotion of Vehicle Defect Reporting. The Alliance
    does not object to Section 304; however, we note that the requirement
    to affix a notice somewhere inside a vehicle is redundant. Such
    information is already required to be included in the vehicle's owner's
    manual. It is not clear why Congress believes that an owner who
    believes he/she has a defective vehicle would consult his/her glove
    compartment, but not check his/her owner's manual. One place should be
    sufficient--the owners' manual is already required, and already
    instructs consumers how to lodge a complaint.
        Section 305. NHTSA Hotline for Manufacturer, Dealer, and Mechanic
    Personnel. The Alliance does not object to Section 305; however, we
    note that such a hotline is redundant to the similar hotline NHTSA is
    required to maintain for the general public. It is unclear what public
    benefit is served by requiring NHTSA to spend resources to maintain a
    separate hotline for employees of manufacturers, suppliers, dealers,
    and other repair facilities.
        Section 307. Corporate Responsibility for NHTSA Reports. The
    Alliance has serious concerns about Section 307, which imposes personal
    liability up to $250,000,000 on the ``principal executive officer'' but
    does not define the term or provide any means for determining who that
    person may be. The responsibility to review the submission and, based
    on the officer's knowledge, confirm the detailed accuracy of the
    submission fails to understand or recognize that many submissions
    (because of the breadth of the agency's requests and the complexity of
    many of the investigations) are assembled by dozens of company
    employees working together who must review thousands and thousands of
    records. Even if it was feasible to require a single person to have
    requisite knowledge after review of an entire submission, including the
    thousands and thousands of records and judgments of the many people
    assembling the submissions, it would not be possible to make the kind
    of affirmations required under this proposal. Furthermore, the inequity
    among manufacturers of who may be impacted by this provision could be
    substantial. The ``principal executive officer residing in the U.S.''
    is likely to be far different for companies headquartered in the U.S.
    than those that are headquartered in other countries. In addition, this
    responsibility to certify reports applies to information provided in
    response to a ``preliminary safety investigation, or in response to an
    official safety investigation.'' These terms are not currently used by
    the agency and are also not defined in Section 307. In addition,
    $250,000,000 in personal liability is both unreasonable and
    disproportionate to the matter at hand. Even the Sarbanes-Oxley Act of
    2002, upon which this provision seems to be based, caps liability at
    $5,000,000. This provision needs significant modification to address
    these issues.
        In addition, to the extent that Section 307, or any other provision
    of new legislation, would establish requirements regarding the review,
    analysis, or confirmation of data in such a way as to require such work
    to be performed in the U.S. to allow an official in the U .S. to make a
    certification, such a requirement would violate important international
    obligations. Requiring U.S.-based recall decision-making would also
    encourage other countries around the world to impose the same
    unnecessary burdens, significantly increasing the cost of doing
    business for all automakers.
        Indeed, since NHTSA statutory and regulatory authority allows a
    manufacturer to rely on foreign engineering and testing to certify
    compliance at the time of sale, it is inherently inconsistent not to
    recognize and allow the same review, analysis, or confirmation to be
    used for responding to a defect investigation. Particularly at a time
    when more and more of the auto industry is developing worldwide
    research, development, sourcing and construction processes for new
    vehicles, any requirement forcing duplication of activities such in the
    U.S. is counterproductive.
        Section 308. Anti-revolving Door. The restrictions contained in
    Section 308 go far beyond the current ethics restrictions on former
    Federal employees. This section would impose greater employment
    restrictions on NHTSA employees, regardless of level, than are
    currently placed on cabinet level appointees or Members of Congress.
    Perhaps the concerns addressed in this section could more appropriately
    be addressed through amendments to the general ethics laws.
    Title IV. Funding
        Section 401. Authorization of Appropriations. The Alliance supports
    Section 401, which would increase authorized funding for NHTSA's
    vehicle safety programs. The Alliance agrees that NHTSA should have
    resources sufficient to accomplish its important mission. The Alliance
    further urges Congress to set aside some of the proposed increase to
    fund the National Automobile Sampling System (NASS) at a level
    sufficient to provide the statistically valid, nationally
    representative sample originally intended. The need for quality sources
    of data continues to grow as automakers reinvent the automobile in
    response to societal demands for ever safer and cleaner vehicles.
    Starved for funds, the capability of NASS has been dramatically
    reduced. Currently, NASS collects in-depth data on approximately 4,500
    crashes, less than a third of the intended design size of 15,000 to
    20,000 crash cases annually. A $40 million annual investment in NASS
    equates to 1.73 cents for every $100 of economic loss.
        The Alliance also urges Congress to set aside some of the proposed
    increase to fund the research and development of vehicle technologies
    to end drunk driving, i.e., the Driver Alcohol Detection System for
    Safety (DADSS) research program. According to the Insurance Institute
    for Highway Safety (IIHS), DA DSS has the potential to save more than
    8,000 lives per year, a substantial portion of the nearly 12,000
    fatalities that occur each year because of drunk drivers.
    Provisions in the House Discussion Draft Not Included in S. 3302
        Judicial Review of Defect Petition Rejections. The Alliance
    commends the Senate for not including Section 306 of the House draft,
    which would allow for judicial review of defect petition rejections.
    This section seeks to reverse established law by overturning a twenty-
    two year old case, Center for Auto Safety v. Dole, 846 F.2d 1532 (D.C.
    Cir. 1988). Here is the important passage from the decision:

            While safety is an indispensable element of the decision not to
            investigate, NHTSA can and does consider such ``non-safety''
            factors as its available resources, enforcement priorities, the
            likelihood of uncovering sufficient evidence to establish the
            existence of a defect, and the prospect of ultimately
            succeeding in any necessary enforcement litigation. The
            regulation subjudice provides the court no way to second-guess
            the weight or priority to be assigned these elements. In
            particular, it would be unwise, and inconsistent with the broad
            mandate of the agency under the governing statute, to infer a
            mandatory allocation of the agency's limited resources from the
            regulation at issue. We must thus conclude that NHTSA's
            decision governed by this regulation is not reviewable.

        It is no more appropriate now than it was in 1988 to mandate that
    the Agency with the greatest expertise to evaluate such decisions and
    the companies that will be affected by these judicial reviews be forced
    to defend past decisions rather than to pursue other potentially more
    safety-promoting activities such as advancing the work on other open
    investigations. Rather it creates an environment of ``regulation by
    litigation'' which will not serve the agency, the industry or the
    public well. It is inconsistent to assert that the agency needs more
    resources and more expert staff to undertake its safety mission and in
    the same breath assert that a non-expert court is better able to make
    these decisions than NHTSA. This proposal will contribute to clogging
    the court system and it will waste important agency resources. If every
    petition denial is subject to judicial review, NHTSA will be forced to
    spend substantially more resources in responding to each petition,
    regardless of its merit, and to be prepared for the anticipated
    judicial review. That, in turn, is likely to lead NHTSA to create much
    more stringent petitioning thresholds so that the agency must only
    respond to very well supported petitions with substantial technical
    analyses of multiple events. Finally, this provision would not have
    changed the outcome of the unintended acceleration investigations. The
    results of a successful appeal would simply be for the agency to open
    an investigation, which it did numerous times in the recent case.
        Vehicle Safety User Fee. Alliance members are not in favor of
    including a new open ended fee on the cost of each new vehicle. Indeed
    we are sensitive to the cumulative impact of increased vehicle costs on
    consumers, especially in the current economic downturn. It is important
    to bear in mind the larger context of regulatory factors impacting
    vehicle costs. Only last month, the Administration finalized new fuel
    economy and greenhouse gas standards for automobiles, which the
    Alliance supported. The new standards will provide significant energy
    security and environmental benefits, but they will also increase the
    price of a new car by hundreds of dollars over the next several years.
    Additionally, NHTSA recently finished or is still working on--vehicle
    rulemakings that are projected by the agency to increase the price of a
    car by an additional $428 to $813. Finally, each of the new technology
    mandates in this proposal will also have some associated cost for
    consumers. Vehicle owners are not the only ones who benefit from the
    efforts of NHTSA. Highway safety is a national priority--promoting
    reductions in health care costs associated with accidents and
    protecting pedestrians as well as vehicle owners. This national purpose
    is particularly well suited to the general appropriations process which
    is better suited to fund programs providing a general benefit to the
    public.

        The Chairman. I thank you.
        And, Mr. Ditlow, we look forward to--nice to see you
    again--look forward to hearing from you.

                   STATEMENT OF CLARENCE M. DITLOW,
            EXECUTIVE DIRECTOR, CENTER FOR AUTO SAFETY (CAS)

        Mr. Ditlow. Good to see you again, too, Chairman
    Rockefeller. Thank you for----
        The Chairman. Is your button on?
        Mr. Ditlow. We're on.
        The Chairman. Yes.
        Mr. Ditlow. Chairman Rockefeller, Senator Pryor, other
    members of the Committee, thank you for the opportunity. I am
    Clarence Ditlow, Executive Director of the Center for Auto
    Safety. I ask that my full statement be put in the record.
        The Chairman. All statements will be.
        Mr. Ditlow. OK, thank you.
        The Chairman. Yes.
        Mr. Ditlow. And I'd also like to introduce Paul Sheridan,
    who would have benefited from Section 303 of this bill, because
    he was the whistleblower that blew the whistle on the Chrysler
    minivan in the 1990s, got fired, and then sued for $82 million.
    So, people like Mr. Sheridan certainly need protection.
        The--when we look at this bill, I want to focus in on the
    difference on how this legislation would affect standards
    versus defects. When you look at standards, the bill moves
    forward and enacts standards. Now, rulemaking and standards,
    it's done on the record. Ex parte communications are docketed.
    If the agency doesn't issue a good rule, as it did under the
    TREAD Act with tire-pressure monitoring, the public can
    challenge it, get the rule rewritten, and turn it into a better
    rule. But, if it's a defect, we don't have the same level of
    protection that we have for standards. With defects, there are
    no checks and balances, there's no right for review. Most of
    the records in defect-provisions proceedings are not put on the
    record.
        And if you take a look at the TREAD Act, it's set up in our
    early warning reporting system. It has been criticized twice by
    the inspector general. And opening it up is a good thing, but
    there's a fundamental problem with it that the inspector
    general and the Center for Auto Safety agree on. The categories
    in it are so broad, you don't know what is being turned over by
    the manufacturers.
        Second, the manufacturers only have to submit summary data,
    except for field reports. So, you don't know what's behind the
    records. And if you take a look at the recent example of the
    Toyota 4Runner, where NHTSA has now opened a timeliness query
    on a recall done in 2005 for a fractured steering relay rod,
    the agent--Toyota has submitted a complaint--a summary
    complaint under EWR. And it entered it as rollover and power
    train. It didn't enter it as rollover and steering. And when we
    obtained the records, independently through a product liability
    lawsuit, we found that it was a fractured steering rod. But,
    the--here's the problem--the agency never requested from Toyota
    the underlying record. And it could have spotted, in 2005--or
    2004, when the report was done, that there was a problem. With
    Toyota's sudden acceleration, there are 301 EWR summary reports
    in the record, but only 15 of them have been sought by the
    agency.
        For the Jeep Grand Cherokee, which we're working on right
    now because of fuel tanks, there are 26 summary reports of
    fire-related crashes, where claims have been filed. The agency
    has not requested any of those records. So, how do we know
    what's there, unless you get it? And, there's--and because
    there's no oversight, and there's no record, you can't do
    anything with it.
        So, when we--and when we take----
        The Chairman. Is this the last-year----
        Mr. Ditlow.--a look at these records----
        The Chairman. Mr. Ditlow?
        Mr. Ditlow.--too----
        The Chairman. Are these----
        Mr. Ditlow.--here's what's happening with electronics.
    The--when we do open an investigation, the manufacturers are
    now submitting, electronically. Where does it--but the
    electronic record, which is a--nonconfidential--is not made
    public by the agency. It's shipped over to Ashburn, Virginia,
    to a data-collection center, where you've got to pay $80 per CD
    to get a copy of it. And all the agency would have to do is
    push the button, upload it to the website, where they keep all
    the other investigatory files, and then the public could
    meaningfully participate in these investigations.
        So, what--so in summary, what I'd like to suggest is that
    the bill is a good bill. The agency is a good agency. It's
    underfunded, it's understaffed, it's outmanned by the
    automobile industry. The public doesn't have an opportunity, in
    defect proceedings, to monitor how well the agency does. It
    does, in standards. So, we want to have a level playing field
    between accountability and responsibility, on the part of
    defects, at the agency level, as we do with the standards. And
    if we end up with the bill going forward, leveling that playing
    field, then the public will have confidence that the vehicles
    that are being sold are safe. We can go back to the levels of
    previous vehicle sales, but they'll be safe vehicles. We won't
    have these recalls popping out of nowhere to damage a brand and
    cost consumers their lives.
        Thank you.
        [The prepared statement of Mr. Ditlow follows:]

         Prepared Statement of Clarence M. Ditlow, Executive Director,
                          Center for Auto Safety (CAS)
        Mr. Chairman, members of the Subcommittee, thank you for the
    opportunity to testify on the proposed Motor Vehicle Safety Act of
    2010. I am Clarence Ditlow, Executive Director of the Center for Auto
    Safety (CAS) which was founded by Consumers Union and Ralph Nader in
    1970 to be a voice for consumers on auto safety.
        The Center has watch dogged the National Highway Traffic Safety
    Administration (NHTSA) and the auto industry for 40 years. The National
    Highway Traffic Safety Administration is a wonderful agency with a
    vital mission but it is woefully underfunded, 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. Ford's third quarter
    2009 income was $35.5 billion compared to NHTSA's annual vehicle safety
    budget of less than $200 million.
        Independent Test Facility: Unlike such other public health and
    safety agencies as FDA's Center for Biologics Evaluation and Research,
    NHTSA doesn't even have its own research facility. Instead it must rent
    space at the Transportation Research Center (TRC) owned by Honda which
    is a test facility used primarily by auto companies who like to rub
    shoulders with NHTSA. Lacking state-of-the-art facilities at TRC, NHTSA
    produced a test report in EMI induced sudden unintended acceleration
    (SUA) that had no recorded test data or procedures. The first NHTSA
    Administrator, Dr. William Haddon, long sought a test and research
    facility owned by NHTSA as priority because it would give the agency
    the ability to do its own research to discover emerging problems and to
    support its investigations and compliance testing. It's time to make
    Dr. Haddon's dream come true and raise NHTSA's research capability to
    that of other regulatory agencies by creating an independent test
    facility combined with the Center for Vehicle Electronics and Emerging
    Technologies created under  101 of S. 3302.
        We deeply appreciate the effort that went into drafting the
    proposed Motor Vehicle Safety Act of 2010. Consumers and auto companies
    alike will benefit from fundamental reforms to the National Traffic and
    Motor Vehicle Safety Act. All too often auto companies with their focus
    on short-term profits and sales have failed to incorporate advanced
    safety features and recall vehicles with known defects. They prefer
    instead to meet the minimum safety standards issued by NHTSA and take
    the chance that a strapped regulatory agency will not order a recall.
    When exposed by crashes spotlighted in the news and by such emerging
    technologies as cell phone calls or videotapes, auto companies lose
    billions in sales and brand damage while consumers lose their lives.
    It's a no-win situation for both.
        Whether it's the Chevrolet Corvair in the 1960s, the Ford Pinto and
    the Firestone 500 tire in the 1970s, the Audi 5000, Chrysler minivan
    tail gate and GM pickups with side saddle gas tanks in the 1980s, the
    Ford Explorer and Firestone Wilderness & ATX tires in the 1990s, and
    Toyota sudden acceleration in the 2000s, there's a common thread: Non-
    existent or out-of-date and inadequate safety standards coupled with
    enforcement efforts playing catch up to an industry striving to avoid
    recalls. If the industry wins the bet and the agency never catches up,
    individual companies can save hundreds of millions of dollars in
    avoided recalls as Toyota bragged about in sudden acceleration. If they
    lose and contain the loss at NHTSA, the worst case scenario is a fine
    of $16.4 million. If the defect goes public, the cost to the auto
    companies is far greater in lost sales and reputation. But as history
    has shown, only one or two defects go public every decade. What goes
    unsaid is that the innocent bystanders, consumers, pay with their
    lives.
        What can be done about this: First and foremost we have to go back
    to the basics of the original safety legislation in the 1960s and 1970s
    which envisioned adequate funding for enforcement and safety research
    including the agency's own research and testing facility instead of a
    leased facility owned by a regulated manufacturer. The original
    legislation included a strong check and balance in the form of a
    transparent regulatory mechanism and a public right to petition and sue
    for unsupported denials of petitions and closing of defect
    investigations.
        Judicial Review: One of the leading enforcement cases brought by
    NHTSA, U.S. v. General Motors Corp., 518 F.2d 420 (D.C. Cir. 1975),
    (Kelsey Hayes Wheels) would have never had happened but for a mandamus
    challenge brought by Ralph Nader over the closing of a defect
    investigation with the small recall of 50,000 GM pickups with camper
    bodies on which the wheels failed. The investigation began based on a
    request from Mr. Nader to open an investigation. Id. at 435. The recall
    of the camper body pickups was a compromise settlement by the agency.
    Id. at 436. Mr. Nader challenged the settlement in U.S. District Court
    and obtained an order reopening the investigation. Id. at 437. Upon
    reopening the investigation upon the order in Nader v. Volpe, Civ. No.
    960-70 (D.D.C., filed Mar. 31, 1970), NHTSA sought and obtained the
    recall of all 200,000 GM pickups with Kelsey Hayes Wheels.
        The 1974 Vehicle Safety Amendments codified the public right to
    petition for a defect investigation seeking a recall just as Ralph
    Nader had done in the Kelsey Hayes Wheels case. The judicial right to
    challenge denials continued until the decision in Center for Auto
    Safety v. Dole, 846 F.2d 1532 (DC Cir 1988) holding that NHTSA's
    decisions to deny defect petitions are judicially unreviewable because
    there is no ``law to apply.'' Id. at 1535. During the 15-year period in
    which the right to seek judicial review of the denial of a defect
    petition was unquestioned, this was the only litigated case. During the
    8 year period prior to 1974 when there was judicial review of such
    requests to open investigations as Mr. Nader's in the Kelsey Hayes
    Wheels case, only the Kelsey Hayes case was litigated. So, in the
    entire 23-year history of the right to judicial review to challenge
    denials of defect petitions and requests to open investigations, there
    were only two litigated challenges. This is scarcely a burden on agency
    resources but rather a very valuable check and balance against
    unsupported agency defect actions.
        Public Investigations and Information: In the early days of the
    agency from 1966 through the early 1980s, defect investigations and
    defect information were an open book at NHTSA. There were public lists
    of all investigations. Investigatory files were open as provided by the
    Freedom of Information Act. Warranty information, lawsuits, claims,
    field reports and complaints submitted by manufacturers in
    investigations were routinely available. Consumers and safety groups
    could go to NHTSA's Technical Reference Division and obtain copies of
    any consumer complaint, Technical Service Bulletin (TSB) or other
    dealer communication filed with the agency under what is now 49 U.S.C.
     30166. Safety groups could monitor investigations and rebut
    manufacturer arguments. Records of meetings with manufacturers during
    investigations were routinely kept. This transparency resulted in
    investigations that resolved defect issues and resulted in single
    recalls. Investigations did not linger for years and result in multiple
    sequential recalls. Such was the case with Ford Cruise Control
    Deactivation Switch fires which took 11 years from the date of the
    initial investigation and 6 recalls before all 16 million Fords with
    defective switches were recalled.
        Beginning in the mid-1980s and culminating after Early Warning
    Reporting was established, NHTSA gradually closed the door on public
    defect investigations and defect information. When the agency went from
    a paper record keeping system to an electronic and Internet system for
    defect investigations and defect information, consumers and safety
    groups got the short end of the deal. Dealer communications including
    Technical Service Bulletins (TSBs) which used to be in public files are
    no longer readily available, if available at all. The agency now places
    only sketchy and inaccurate summaries of a small fraction of all dealer
    communications and TSBs on its website.
        Electronic Investigation Files Unavailable at NHTSA: NHTSA today
    requires manufacturers to submit most information in defect
    investigations in electronic format. Instead of placing the information
    on the Internet or in public files at the Technical Reference Division
    (now Technical Information Services), the agency sends the defect
    records to the National Crash Analysis Center (NCAC) in Ashburn VA
    which has no public facility for reading files as did Technical
    Reference. Instead one must pay $80 per CD for investigatory files with
    there being multiple CDs per investigation. The cost of obtaining
    information on the Toyota sudden unintended acceleration (SUA)
    investigations in the 2000s is nearly $1,000--if one can find the
    information. For most consumers and consumer groups, what was once
    readily available is practically unavailable today. This thick pile is
    just an index to all the electronic investigatory files only available
    from NCAC. Soon all detailed investigatory file manufacturer
    submissions will be in electronic format and unavailable from NHTSA.
    Since there are no confidential materials in the electronic files at
    NCAC, NHTSA should send them to its already existing investigations
    website instead.
        EWR Data Too Broad and Not Public: When the TREAD Act was passed in
    2000, Congress required NHTSA to set up an Early Warning Reporting
    System (EWR) that required manufacturers to submit information on
    deaths, injuries, warranty claims, complaints and field reports. From
    the consumer and safety group perspective, EWR made a bad situation
    worse. Until Public Citizen filed a FOIA lawsuit, no information
    obtained under EWR was public. Now the agency releases the summary
    information on death and injury reports but it is so vague as to be
    useless.
        EWR submissions by manufacturers and NHTSA summary reports on
    passenger vehicles are grouped into 20 component categories so broad
    one doesn't know what the report is. E.g., one category covers the fuel
    system--is this the fuel filler neck, the fuel rail, the fuel
    injection, the throttle body, the evaporative canister, the fuel tank,
    the electronic control unit that controls fuel metering or what?

    ------------------------------------------------------------------------

    ------------------------------------------------------------------------
    steering system    suspension system  service brake     parking brake
                                           system
    engine and engine  fuel system        power train       electrical
     cooling system                                          system
    exterior lighting  visibility         air bags          seat belts
    structure          latch              vehicle speed     tires
                                           control
    wheels             seats              fire              rollover
    ------------------------------------------------------------------------

        In the recent case of the Toyota 4Runner steering rod relay recall,
    05V-389, for which NHTSA has opened a timeliness investigation on May
    10, 2009, Toyota coded a clear steering rod relay fracture that led to
    a rollover crash with 3 injuries as rollover and power train but not
    steering. In a September 2004 Audit of EWR, the DOT Inspector General
    found that EWR can't identify steering defects and NHTSA Administrator
    Runge agreed to that finding. defects. In contrast to the 22 specific
    components categories for passenger cars and trucks under EWR, consumer
    complaints from VOQ's can go into 1200 different categories (that's too
    many but 22 is too few). (Attached is the consumer complaint list for
    VOQ's.)
        For the past 7 months, the Center for Auto Safety has been filing
    FOIA after FOIA to open up the secret workings of the EWR system. Our
    first FOIA for lists of all EWR inquiries and files resulted in NHTSA
    asking us to pay $55,000 in advance for the information. After 6 months
    of negotiations, NHTSA gave us a list of death and injury inquiries
    made to manufacturers. What NHTSA didn't give us and what we still
    don't know are: (1) what the agency did with the records obtained under
    the inquiries--i.e., did they open and close an internal investigation
    or evaluation without making it public, (2) was there any follow-up
    with the manufacturer and (3) the actual death records themselves.
        NHTSA Fails To Request Most Death and Injury Reports: What we do
    know by comparing the summary EWR reports to the EWR inquiries is
    shocking. NHTSA doesn't even request specific death and injury records
    from the summaries submitted by auto companies in the broad EWR
    reporting categories where there are know major defects. Here are three
    examples:

            Toyota SUA--most likely component vehicle speed control with
            fuel system, power train and electrical other possibilities.
            301 reported incidents of death and injury--only 16 records
            requested leaving 286 unrequested.

            Jeep Grand Cherokee Fuel Fed Fires--most likely components are
            fire-related and fuel system. 26 reports of fire related deaths
            and injuries--no records requested.

            1990-95 Toyota 4Runner and 1993-98 T100 steering--most likely
            components steering, suspension, rollover. 5 reports of
            steering related deaths and injuries, no records requested.

        During the same time that Toyota provided the 301 summary EWR speed
    control death and injury reports, the agency had multiple defect
    investigations and petitions pending to which the reports were relevant
    but apparently ignored. The Center for Auto Safety has a defect
    petition pending since last October on fuel fed fires in 1993-04 Jeep
    Grand Cherokees which have had 279 deaths in fuel fed fire crashes with
    over 70 deaths clearly due to fire. Under EWR, Chrysler has submitted
    26 summary reports of fire related deaths and injuries. Our EWR FOIA
    showed that NHTSA has not requested the underlying death and injury
    report for any of the 26 EWR summary reports. The public record of our
    defect petition does not show any communication between the agency and
    Chrysler, something that used to be made public on an ongoing basis in
    past defect petition when the agency was more open. For the Toyota
    4Runner, NHTSA did not have an open investigation when Toyota announced
    Recall 05V-389 based on reports in Japan a year earlier with a claim
    that there were no cases in the U.S. which could have been disproved
    then by asking for the death and injury reports behind Toyota's EWR
    summary reporting but NHTSA failed to ask. A complicating factor is EWR
    reporting requirements only go back 9 model years from the reporting
    quarter so almost all 4Runners were not subject to reporting when EWR
    started in 3rd Quarter of 2003. The reporting requirement should be
    extended to the average 12 year life of a vehicle.
        Defect Death Reports Should be Mandated and Public: Unless a defect
    investigation in the form of a Preliminary Evaluation or an Engineering
    Analysis is opened, the public does not have any access to NHTSA's
    analysis of EWR data. One thing is clear--NHTSA has made hundreds of
    information inquiries on deaths under EWR which are not made public. We
    have gotten access to only one EWR inquiry so far--Ford Explorer
    rollover deaths labeled as DI06-Explorer. The records which consist of
    non-confidential claims records, police reports, lawsuits, and
    newspaper articles cover over 300 deaths through 2005. But despite the
    300 deaths, there is no indication of what NHTSA did. This is all the
    more of a mystery because the total Explorer rollover deaths after the
    TREAD Act took effect are more than before the TREAD Act became law.
    The agency just doesn't like the public to see what it's doing behind
    closed doors.
        Death reports based on an allegation of a defect are the most
    significant records covered by EWR today. The number of death reports
    is low. The documents consist of public records so there is no issue of
    confidentiality. The vast majority of recalls do not involve deaths.
    Where there are defects involving deaths, there is normally a recall.
    Death reports should be treated just like field reports--the actual
    document that the manufacturer receives of a death claim or notice that
    alleges or proves the death was caused by a possible defect should be
    required and made public. Otherwise NHTSA can sit on the summary
    numbers and never request the actual claim or notice information
    received by manufacturer as it did with Toyota SUA and Jeep Grand
    Cherokee fires. In addition to death reports, EWR should be expanded to
    include lawsuit complaints which are one of the most detailed sources
    of information available on safety defects.
        Private Meetings: One big abuse in defect investigations not
    addressed by S. 3302 is the meeting between manufacturers and NHTSA for
    which there is no record other than a list of attendees. These meeting
    often occur at the conclusion of an investigation where the important
    decisions are made and are attended by former NHTSA employees
    representing the manufacturer. They frequently include presentation of
    documents by either NHTSA or the manufacturer on why there should or
    should not be a recall. In the case of the Toyota Sienna SUA
    investigation, EA08-014, that led to the Safety Improvement Campaign
    09V-023 (i.e., less than a Safety Recall), a meeting attended by former
    NHTSA Chief Counsel Erika Jones, Chris Tinto and Chris Santucci (former
    NHTSA staff) has only the list of attendees and nothing else.
        The single best example of a NHTSA private meeting occurred in the
    Chrysler minivan liftgate investigation. In September 1993, a young
    girl in Virginia was killed when the rear liftgate latch failed on her
    family's Dodge Caravan, the liftgate opened and she was ejected from
    the rear. NHTSA opened a Preliminary Evaluation which got upgraded to a
    Engineering Analysis in January 1994. By October 1994, 30 children had
    died, and many more had been permanently injured due to the minivan
    liftgate latch and seat system safety defects, which were well-known
    inside Chrysler. Paul Sheridan, the head of Chrysler's Minivan Safety
    Leadership Team had already made several major presentations to upper
    Chrysler management recommending that the minivan be recalled and the
    safety defects be repaired at no charge to minivan families. On
    November 17, 1994, NHTSA held a private meeting with Chrysler at which
    NHTSA showed Chrysler its low speed crash tests showing the tailgate
    popping open and child dummies flying out. NHTSA told Chrysler ``The
    latch failure is a safety defect that involves children.'' Yet at that
    meeting NHTSA agreed not only to drop its request for a safety recall
    but also to deny any FOIA requests for the crash tests predicting it
    would be months before the tests could be pried loose. Yet there is
    nothing in the public investigatory about the agreement. Instead it was
    revealed in the attached internal Chrysler memo produced in discovery
    in a lawsuit and released from protective order when the case went to
    trial. These meetings are not about data submissions by manufacturers.
    They are about secret deals to close investigations without recalls
    that ultimately result in deaths and injuries to consumers.

            To correct this, we recommend adding a section ``o'' to 30166
            reading:
            (o) Records of Meetings in Investigations.--If a manufacturer
            meets with representatives of the Secretary of Transportation
            during or in the course of an investigation, the Secretary
            shall keep public minutes of the meetings including records of
            any presentations or evidence presented by either the Secretary
            or the manufacturer. Any information provided to the Secretary
            pursuant to this subsection shall be disclosed publicly unless
            exempt from disclosure under section 552(b) of title 5.''

        Whistleblower Protection: The Chrysler minivan investigation
    demonstrates the strong need to provide whistleblower protections for
    employees working in the auto and related industries who blow the
    whistle to NHTSA. Paul Sheridan who is here today tried to get Chrysler
    to recall the minivans and fix not only the liftgate latch but also the
    seat back structure. Chrysler responded by disbanding Sheridan's Safety
    Leadership Team. At this point Sheridan announced his intention to
    report his safety defect concerns, to NHTSA. Alarmed by Mr. Sheridan's
    intention, Chrysler waited until the Christmas holidays to raid Mr.
    Sheridan's office files, fired him without notice and obtained an ex
    parte ``muzzle order'' which threatened him with arrest if he disclosed
    what he knew about Chrysler safety defects. Undaunted Mr. Sheridan
    provided his sworn testimony to NHTSA. In an effort to intimidate him
    Chrysler then amended their Michigan lawsuit against him, alleging
    ``damages'' totaling $82,000,000. This amount stands as an all-time
    record claimed against a former employee. Ultimately Chrysler dropped
    its claims in exchange for Mr. Sheridan dropping a state whistleblower
    lawsuit but needless to say Mr. Sheridan incurred untold sums in legal
    expenses and personal trauma.
        Recall Database: NHTSA itself should be required to maintain a
    database of recall information by VIN--what is more important than a
    list of vehicles subject to a recall by VIN is a list of vehicles by
    VIN that have not yet been repaired under a recall. Some manufacturers
    already give that information to companies like Carfax where inputting
    a VIN to be checked will turn up outstanding recalls. As the Federal
    agency to go to on vehicle safety, NHTSA should get that information
    from manufacturers. In the 1980s the Federal Trade Commission required
    some manufacturers to publish free indexes of TSBs and were allowed to
    charge a nominal fee for posting and handling for providing individual
    TSBs. Section 302(c) of the discussion draft is silent as to whether
    manufacturers can charge for access to TSBs. Some companies already
    charge for such access with Toyota having a $400 annual fee. This
    section should be modified to require the dealer communications be free
    for a specific vehicle upon the consumer entering the VIN.
        Funding: The Center for Auto Safety supports increased funding for
    NHTSA of $500 million per year. If appropriations in this amount are
    not available, then we support the user fee as the way to get funding
    for NHTSA to levels more adequate to its mission. In the short-term,
    NHTSA should be given funding to purchase its own research and test
    facility as Congress intended to do more than 40 years ago in the 1970
    Vehicle Safety Amendments. One particular area that is underfunded that
    could expose defects like Toyota SUA earlier is the National Analysis
    Sampling System (NASS). The current budget is just over $15 million and
    investigates only 4,000 crashes per year. This compares with a budget
    of around $10 million per year in the early 1980s providing about
    10,000 cases. The original design would have produced nearly 19,000
    cases per year which, at current costs, would require a budget of
    around $60 million.
        Had NASS been operating at its original design size, the agency
    could have spotted the problem with Firestone tires on Ford Explorers
    much earlier. The savings in life and limb from that discovery, even a
    few months earlier, alone would have been sufficient to cover the extra
    cost of NASS at its full design size. Explorers were introduced in 1990
    and the defective Firestone tires were on some of the earliest models.
    If the excessive Explorer rollovers resulting from failures of
    Firestone tires could have been spotted by the mid-1990s, it could have
    saved hundreds of lives and at least $1 billion for Ford and Firestone.
        Enhanced Safety Authority: The Center for Auto Safety fully
    supports increasing the civil penalty to $25,000 per violation and
    lifting the cap on civil penalty to match other enforcement agencies
    such as the Environmental Protection Agency which also regulates the
    motor vehicle industry. We also support the imminent hazard provision
    which is present in other regulatory agency such as the Food and Drug
    Administration. Missing from the discussion draft is criminal penalties
    which are common in other statutes for knowing and willful violations
    of the Act.
        Vehicle Electronics and Safety Standards: The Center for Auto
    Safety fully supports the provisions in Title I. We recommend that the
    Event Data Recorder (EDR) provision be changed to require both
    rulemakings to be completed in 3 years and to give manufacturers that
    presently do not have an EDR that meets the requirements in the present
    voluntary standard the option of going to the advanced EDR a year
    earlier than required and skip the minimal EDR. All of the rulemakings
    required by Title I would benefit from deadlines for issuing proposed
    rules as well as final rules.
        Conclusion: This legislation provides a unique opportunity to not
    only reduce the unacceptable toll of death and injuries on the Nation's
    roads but also provide stability to the auto industry which suffers
    from lack of public confidence and sales when preventable defects such
    as Toyota sudden unintended acceleration occur. The Federal Government
    through the National Highway Traffic Safety Administration should lead
    the way to vehicle safety and not clean up afterwards.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The Chairman. Thank you, sir.
        Mr. Stanton, you are the President and Chief Executive
    Officer of the Association of International Automobile
    Manufacturers.

          STATEMENT OF MICHAEL J. STANTON, PRESIDENT AND CEO,

                ASSOCIATION OF INTERNATIONAL AUTOMOBILE

                       MANUFACTURERS, INC. (AIAM)

        Mr. Stanton. Thank you, Mr. Chairman.
        AIAM and its member companies appreciate the Committee's
    efforts to improve motor vehicle safety, and understand the
    intended benefits of the bill. We also fully support the
    Committee's proposal to provide additional engineering and
    related resources to NHTSA, including improving the agency's
    vehicle safety database, to provide greater accessibility. AIAM
    also 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 vehicles that will meet the new
    standards.
        We are concerned that the rulemaking mandates in the bill
    predetermine matters currently under active investigations 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 bill, we
    defer to NHTSA's judgment as to the feasibility of the
    deadlines for issuing the final rules, as specified in the
    bill. However, we note that the deadlines for many rulemaking
    mandates appear to be unreasonably short and provide
    insufficient lead time for implementation. 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 technologies contemplated in the 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, these lead
    times are just not feasible. Even those companies that
    currently have the technologies, may also need sufficient lead
    time, because there are no assurances that the technologies
    that they employ will meet the requirements of the final rule.
        In addition, the bill does not provide for the new
    requirements to be phased in, nor does it provide for phase-in
    incentives 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 an add-on
    technology or approach.
        It is also important that NHTSA be given time and
    flexibility to develop data-based technology-neutral standards,
    and to specify realistic, achievable lead time for
    implementation. In the case of the brake override standard, we
    support NHTSA's efforts to develop a safety standard to address
    unintended acceleration, but believe there are some technical
    issues that will need to be considered during the rulemaking.
    For example, some vehicles still use mechanical, rather than
    electronic, throttle-control systems. So, the application of an
    electronic override may be impracticable for these vehicles.
    And for vehicles with manual transmissions, a brake override
    system may not be necessary, since the clutch pedal provides a
    way for quickly removing power from the driving wheels.
        Also, implementation of a brake override may be more
    complicated in some vehicles than others because of the way the
    throttle, brake, and electronic systems are currently designed.
        These issues can be properly vetted by following the
    agency's adequate--giving the agencies adequate time to review
    input provided through the rulemaking process. And make
    decisions that will lead to the performance-based standard
    appropriate for the different vehicle types and technologies
    available today and in the future.
        With respect to the proposed corporate-responsibility
    requirement, which is section 307, we have concerns that this
    requirement could significantly chill the speed of the safety
    investigation practices used by some AIAM members, and
    introduce nonsafety experts into the process. The current
    practice, used by some of our members, separates 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 you have senior officials involved
    into the safety decisionmaking process.
        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. We do not believe
    that requiring a senior officer 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 giving to
    limiting the scope of this certification to formal responses to
    NHTSA's defect determinations. Additional considerations should
    also be given to allowing a corporate officer specifically
    charged with safety matters to certify such submissions.
        Mr. Chairman, my written testimony addresses most of the
    issues in the bill. I would be happy to answer any questions.
        [The prepared statement of Mr. Stanton follows:]

         Prepared Statement of Michael J. Stanton, President and CEO,
       Association of International Automobile Manufacturers, Inc. (AIAM)
        Chairman Rockefeller, Ranking Member Hutchison, and members of the
    Committee, thank you for the opportunity to speak with you today
    regarding S. 3302, the ``Motor Vehicle Safety Act of 2010''. My name is
    Michael Stanton, and I am President and CEO of the Association of
    International Automobile Manufacturers, or AIAM. AIAM is a trade
    association representing 15 international motor vehicle manufacturers
    who account for 40 percent of all passenger cars and light trucks sold
    annually in the United States. AIAM members have invested over $40
    billion in U.S. vehicle plants, component manufacturing facilities and
    R&D centers and directly employ 90,000 Americans. More than half of all
    vehicles sold by AIAM members in the United States are made in the
    United States.
        AIAM and its member companies appreciate the Committee's efforts to
    improve motor vehicle safety and understand the intended benefits of
    the bill. Having NHTSA consider additional Federal Motor Vehicle Safety
    Standards to address certain issues raised by recent recalls is an
    important goal. We also fully support the Committee's proposals to
    provide additional engineering and related resources to NHTSA,
    including improving the agency's vehicle safety database to provide
    greater public accessibility. However, AIAM believes that NHTSA also
    must be given the necessary time and flexibility to study these
    important safety issues so that it can make analytic, data-based,
    technology neutral decisions. Similarly, manufacturers require
    sufficient lead time to engineer, test and produce vehicles that meet
    any new standards.
        We are concerned that the rulemaking mandates in the bill pre-
    determine conclusions as to matters currently under active
    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.
        With respect to the proposed Corporate Responsibility requirement
    (Section 307), we have concerns that this requirement could
    significantly chill the speed of the safety investigation processes
    employed by some AIAM members and introduce those who are not safety
    experts into the process. The current process employed by some AIAM
    members separates 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 the 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 (18 U.S.C. Section 1001). AIAM does
    not believe requiring a senior officer to certify responses to safety
    investigations and other submissions to NHTSA are necessary or
    practicable. Consideration should be given to limiting the scope of
    this certification by restricting it to formal responses to NHTSA's
    defect determinations. Further, consideration should be given to
    allowing a corporate officer specifically charged with safety matters
    to certify submissions.
        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 deadlines for many rulemaking mandates appear
    to be unreasonably short and provide for insufficient lead time. Short
    deadlines can adversely affect the quality of the final rule,
    potentially placing the agency in the position of having to decide
    whether to rush completion of a proceeding or miss the statutory
    deadline and have to explain the delay to Congress. Prior to issuance
    of a final rule NHTSA often finds it necessary to conduct research to
    address issues that first arise after publication of a proposed rule,
    as a result of public comments submitted to the agency. From our
    perspective, if the short deadlines adversely affect the quality of the
    final rules, consumer and manufacturer resources used to comply with
    the rule may be misallocated. Moreover, short deadlines tend to limit
    opportunities for public comment, potentially impairing the ability of
    interested stakeholders to assist in the development of an effective
    final rule.
        With regard to the effective dates 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, however, also need sufficient lead-time because there are
    no assurances that these current technologies, which may vary from
    company to company, will be employed consistent with the mandates in
    the anticipated final rule. More often than not, complexities in
    achieving compliance with a proposed standard first become apparent
    during the rulemaking proceeding as a result of public comment and
    further research and analysis by the agency. This new information may
    demonstrate a need for greater lead-time than was initially
    anticipated. Without the appropriate lead-time, successful
    implementation of the rule would be compromised.
        In addition, the bill does not provide for the new requirements to
    be phased-in, nor does it provide for phase-in incentives to promote
    early deployment where feasible. It is generally more efficient for
    manufacturers to implement new technologies at the time of full model
    changes, so that the new items can be better integrated than would be
    the case with a purely ``add-on'' approach. Phase-in periods for new
    standards accommodate the integration of new technology as part of the
    model redesign process, generally resulting in superior compliance
    measures being implemented at lower cost for consumers and
    manufacturers. Phase-in periods also provide time for suppliers to
    design, test, and ramp up production capacity for new or significantly
    modified components so that all of their customers can meet the
    requirements of new safety standards within the given lead-time.
        AIAM's comments on specific provisions of the bill are as follows--
        Sec. 101. Electronics and engineering expertise. The creation
    within NHTSA of a ``Center for Electronics and Emerging Technologies''
    is an appropriate response to the rapid movement of the industry toward
    electrification of vehicle systems (generally, to improve fuel
    efficiency) and the adoption of a wide range of advanced technologies.
        Sec. 102. Vehicle stopping distance and brake over-ride standard.
    AIAM supports NHTSA rulemaking to develop a safety standard to address
    unintended acceleration through brake-override technology. AIAM
    recommends that NHTSA be given more time to develop the standard and
    the flexibility to determine the details and lead-time of the standard
    based on the agency's analysis of the issue and input provided during
    the rulemaking proceeding. Also, as currently written, the bill directs
    NHTSA to issue a safety standard that would ``prevent'' unintended
    acceleration in passenger vehicles. Given that the instances and causes
    of potential unintended acceleration are uncertain, it would be more
    appropriate to focus legislation on means to ``address'' this issue. In
    addition, some vehicles sold in the U.S. (and elsewhere in the world)
    use mechanical, rather than electronic, throttle control systems. This
    section of the bill should preserve that design option by limiting
    provisions in Section 102(a)(2)-(4) to those vehicles in which an
    electronic throttle control system has been installed. Likewise, it is
    not clear that there is a need for a brake over-ride in vehicles with
    manual transmissions, since the clutch pedal is a way of disengaging
    the engine from the transmission, thereby removing power from the
    driving wheels. For this reason, the brake over-ride standard should
    not be applied to manual transmission vehicles, or NHTSA should be
    given discretion to identify types of vehicles or technology for which
    the standard does not apply.
        Section 103. Pedal placement standard. The considerations noted
    with regard to Section 102 apply here as well. The ramifications of
    changes in pedal placement are more complex than might be initially
    apparent. NHTSA should be allowed the discretion to determine whether a
    standard is appropriate or feasible. Challenges include balancing the
    conflicting demands on pedal placement that, on the one hand, would
    suggest a larger separation between brake and accelerator to reduce the
    likelihood of pressing them simultaneously and, on the other hand,
    would suggest placing the pedals close together which would be expected
    to reduce braking time in emergency situations. Driver comfort is
    another issue and will be different for shorter, taller, younger, and
    older drivers. Currently, the variety of vehicles, as well as the
    availability on some vehicles of adjustable pedals, lets people select
    a vehicle that is comfortable for them to drive safely. Pedal placement
    can also affect the performance of a vehicle in a crash; it will affect
    the position of the driver relative to the steering wheel and airbag
    module which in turn could drive changes to the design of a vehicle's
    airbag system. Pedal placement also has an effect on driver injuries,
    not only to lower extremities but to other body regions as well since
    crash forces travel up through the legs to the hips and the rest of the
    body. In addition to potential changes to vehicles' safety systems,
    movement of pedal locations in vehicles could involve significant
    redesign of the floor pan and other vehicle components and should be
    undertaken at the time of full model changes, if found to be a cost-
    effective means of addressing the unintended acceleration matter.
        Section 104. Electronic systems performance standard. In late March
    2010, NHTSA announced a research study with the National Academy of
    Sciences' National Research Council to examine the broad subject of
    unintended acceleration and electronic vehicle controls. This work is
    expected to be completed in about 15 months. Additionally, NHTSA has
    brought in NASA engineers and other experts in subjects such as
    electromagnetic compatibility as part of a shorter-term review of the
    systems used in Toyota vehicles to determine whether they contain any
    possible flaws that would warrant a defect investigation. The study is
    expected to last through at least late summer and include NASA experts
    on computer-controlled electronic systems, electromagnetic interference
    and software integrity. While it would be inappropriate to pre-judge
    the outcome of this work, it would be appropriate for Congress to
    codify the need for expedited study of these matters and to direct the
    agency to consider rules to address whatever concerns are found,
    including the ones identified in the bill. Since it is premature to
    judge the precise scope of whatever needs emerge from the study
    process, it would be inappropriate to establish deadlines for issuing
    final rules and for achieving compliance. The study process should be
    allowed to run its course and the need for adoption of rules and the
    content of such rules should be determined after the completion of the
    studies.
        Section 105. Keyless ignition systems standard. This matter is the
    subject of ongoing work by the Society of Automotive Engineers (SAE).
    It was specifically requested by NHTSA in order to develop a consensus
    standard. The SAE committee, which has set a deadline of August 2010,
    should be allowed to proceed with its work. If Congress deems it
    necessary, it would be appropriate to specify a deadline for completion
    of that work and the adoption by industry of a voluntary agreement
    consistent with the SAE criteria. Congress could specify that if this
    process is not completed in a timely fashion and in a manner acceptable
    to NHTSA, NHTSA would then issue a rule.
        Section 106. Transmission configuration standard. Transmission
    shift lever sequence is currently regulated by Federal Motor Vehicle
    Safety Standard 102. It would be appropriate for Congress to direct
    NHTSA to conduct an expedited review of this standard under its
    existing Regulatory Review Plan and issue rules to address any
    shortcomings in the current standard that are identified in the review.
        Section 107. Vehicle event data recorders. We do not object to
    making the requirements of the current EDR rule, which is currently
    scheduled to go into effect beginning September 1, 2012, on an ``as
    equipped'' basis, mandatory for all passenger vehicles. (A petition
    currently before the Agency requests an additional year lead-time).
    However, sufficient lead time must be given for implementation since
    not all manufacturers currently have EDRs in their vehicles and some
    may not have planned to add EDRs to all of their models. We are
    concerned that the part of this section directing the Secretary of
    Transportation to initiate rulemaking to revise the existing
    requirements for EDRs is excessively prescriptive. We do not object to
    directing NHTSA to consider the specifications listed in the bill, but
    the selection of new specifications should follow analysis by the
    agency and a notice-and-comment rulemaking process. As with the other
    mandates in the bill, the agency should be given flexibility regarding
    lead-time that is provided for compliance. This would allow the agency
    to balance the safety benefits of monitoring and recording additional
    data elements against the resulting cost and increased complexity. In
    addition, in the event that information is retrieved by a government
    safety agency under paragraph (d)(2)(C), the vehicle manufacturer
    should also receive access to the information, much as is done
    currently with information derived from on-board diagnostic systems.
    The section should also include a general prohibition on tampering with
    EDR information with associated civil penalties.
        Section 201. Civil penalties. We understand the desire to increase
    the amount of civil penalties but object to an excessive increase that
    creates a system where penalties have little direct relationship to
    violations. Also, providing a cap on maximum penalties, as is the case
    under current law for most Federal regulatory regimes, provides some
    degree of assurance that penalties would not reach a level that would
    risk bankrupting a manufacturer and result in a significant loss of
    jobs. We urge that a cap be retained and would be pleased to work with
    the Committee to determine the appropriate penalty amount. It should be
    noted that civil penalties are not the primary factor in determining
    the conduct of manufacturers. The harm to a manufacturer's reputation
    from the publicity, as well as the increase in tort exposure
    surrounding safety noncompliance or defect events, has a major impact
    in the marketplace. This provides a greater incentive to avoid these
    situations. Last, we urge that the bill allow the agency to retain
    discretionary authority on setting appropriate penalties.
        Section 202. Imminent hazard authority. We agree with the concept
    of providing NHTSA new authority to address ``imminent hazards.''
    However, such authority should be carefully circumscribed and defined
    to assure that this severe remedial approach is reserved for
    appropriate cases in which there is a high likelihood of imminent
    death. The language extends the authority to situations that ``may''
    involve death or serious bodily harm, a standard that could be met in a
    wide range of routine enforcement cases, given the nature of automobile
    crashes. Moreover, unlike the recently amended Consumer Product Safety
    Act, it does not require that NHTSA first go to court to obtain an
    imminent hazard order and there is no timeline for a prompt
    administrative hearing. The only remedy under the bill is for a
    manufacturer to go to the Federal appeals court; a procedure that can
    take several years. The agency should develop guidelines and
    procedures, consistent with constitutional due process protections, for
    invoking the authority, and those guidelines should be subject to
    notice and comment and appropriate judicial review. In sum, given the
    severe consequences to a manufacturer, its workers and dealers of
    closing a production facility, the Committee should reconsider the
    process and criteria provided in the bill for exercising imminent
    hazard authority to ensure that such authority is reserved only for
    situations involving a substantial number of vehicles and in which
    there is a high and imminent likelihood of death or serious bodily
    harm.\1\
    ---------------------------------------------------------------------------
        \1\ We also note that the notification in paragraph (3)(A)(iii)
    should go to ``owners,'' not ``purchasers,'' since some vehicles will
    have been resold by their original purchasers.
    ---------------------------------------------------------------------------
        Section 301. Public availability of early warning data. We oppose
    the expansion of the information categories that could be made public
    under paragraph (d) of the bill. We note that current confidential
    early warning information is fundamentally vehicle quality data that
    often has little relationship to safety but has substantial competitive
    value. Access to information of this type would assist companies in
    evaluating the effectiveness of competitors' technology, while
    potentially avoiding the expense and risk of developing and marketing
    that technology themselves. The release of any additional categories of
    early warning information would be harmful to manufacturers and is
    likely to spawn frivolous lawsuits. In 2008, NHTSA looked at this issue
    and completed a rulemaking which we believe struck the proper balance
    between confidentiality and public disclosure. In addition, to the
    extent that any data is publicly released, provisions must be made to
    redact consumer identifying information and vehicle VINs.
        Section 303. Consumer Notice of Software Updates and other
    Communications with Dealers. Manufacturers currently provide copies of
    all Technical Service Bulletins (TSB's) and other dealer and owner
    communications to NHTSA and this includes software updates for all
    previously sold vehicles. AIAM would support having these documents
    easily available and accessible to the public on the NHTSA website.
    Manufacturers already make available to independent repair shops and
    other after-market service companies website access to such
    information. This information is the same information provided to
    dealers. Some of our members also make TSB's and other dealer
    communications available to the public on their websites. Consequently,
    AIAM does not believe a mandate requiring manufacturers to provide such
    information on their websites is necessary, especially if NHTSA makes
    these communications easily available and the manufacturer can simply
    provide a link on their website for the public to the NHTSA site. AIAM
    also believes that the requirement to use ``plain'' language and where
    such language should be placed on a TSB is overly prescriptive and
    burdensome, especially when many of these software updates are not
    safety related.
        Section 306. Whistleblower Protections For Motor Vehicle
    Manufacturers, Part Suppliers, and Dealership Employees. As a matter of
    public policy, AIAM supports protecting employees from retaliatory
    discharge for reporting safety-related defects. We have substantial
    concerns, however, about the process and standards in this Section. We
    believe that such matters should be handled by the Secretary of Labor
    consistent with its procedures. Instead, Section 306 has the Secretary
    of Transportation handling discharge or discrimination complaints. We
    believe NHTSA's resources and time should be focused on motor vehicle
    safety and leave these matters to DOL where such expertise lies and
    where a process is in place to handle whistleblowers discrimination
    complaints related to numerous Federal statutes, including Sarbanes-
    Oxley, the Surface Transportation Assistance Act and the Comprehensive
    Environmental Response, Compensation, and Liability Act of 1980
    (CERCLA). The recently amended Consumer Product Safety Act also refers
    whistleblower complaints to the Secretary of Labor.
        Section 307. Corporate responsibility for NHTSA reports. Under
    current law, the vehicle manufacturer or its U.S. agent is legally
    responsible and accountable for submitting accurate information to
    NHTSA. Providing false or misleading statements to the Federal
    Government is strictly prohibited (18 U.S.C. Section 1001). AIAM does
    not believe requiring a senior officer of the U.S. company to certify
    submissions to NHTSA is necessary or practicable, and in fact may be
    counterproductive to the intended benefits. The safety concerns,
    analyses, and judgments are extremely complicated. It is an iterative
    process requiring engineering expertise and judgment as well as the
    analysis of data from a variety of sources both within and outside the
    company--including suppliers and affiliates. A senior executive,
    especially one based in the United States, must rely on the expertise
    and knowledge of others with the skills required to assess the accuracy
    and rigor of engineering and complicated data analyses, since such
    individuals are generally not experts in vehicle safety. Successful
    approaches to safety ensure the integrity of the decision-making and
    reporting process by eliminating the presence of senior officers who do
    not have this expertise and also have fiduciary responsibilities beyond
    vehicle safety.
        In addition, requiring senior executives to have such an intimate
    role in reporting is likely to have the unintended effect of slowing
    down safety-related decisions and introducing additional layers to the
    process. It is not uncommon for NHTSA to make a series of information
    requests of varying degrees in scope. If each of these responses to the
    agency, no matter how minor, must be certified and signed by ``the
    principal executive officer or officers residing in the United
    States,'' the agency's investigation process could be significantly
    delayed and it may not have the benefit of the greater knowledge of
    trained safety executives.
        This does not mean that the U.S. company is not legally responsible
    for the accuracy of its submissions but that responsibility rests on
    the corporation as a whole not one U.S. senior executive. Requiring the
    ``principal senior executive'' to certify a submission, as opposed to
    requiring the person more directly responsible for handling the
    company's safety and regulatory affairs, may unintentionally breach the
    wall between the responsibility for responding to safety issues and the
    sales/finance responsibility, which many have built to minimize the
    impact of financial considerations on voluntary recall decisions.
        If the Committee nevertheless insists on some sort of senior
    officer certification, consideration should be given to limiting the
    scope of this certification by restricting it to certain major
    submissions and/or allowing other corporate safety officials to sign.
    In addition, the potential liability cap of $250 million is grossly
    excessive as applied to an individual corporate officer and presents
    unduly burdensome practical constraints on a manufacturer. The
    assessment of penalties for ``incomplete'' submissions is a vague and
    highly subjective standard. AIAM would be pleased to work with the
    Committee to establish a more reasonable and productive scope of
    individual penalties.
        Section 307. Corporate Responsibility for NHTSA Reports--Criminal
    Penalties. In addition to our other concerns regarding certification of
    NHTSA submissions by the ``principle executive officer residing in the
    United States,'' AIAM does not support expanding the current criminal
    penalty provision. The new provision adds potential additional criminal
    exposure by including not only violation of Section 30166 but also
    Sections 30118 and 30119, the general defect reporting provisions and
    adds additional penalties to those already provided under Section 1001
    of title 18. We believe the current criminal penalty provision, which
    includes criminal penalties and up to 15 years of imprisonment is
    adequate to handle such matters.
        Section 308. Anti-Revolving Door. AIAM supports strong conflict of
    interest rules for Federal employees but believes that these rules are
    too onerous and will result in the best candidates--for example,
    electrical engineers, experienced attorneys, etc.--deciding not to work
    for NHTSA. NHTSA's work is too important to risk this result. It is too
    broad, as well, as it applies not just to matters that the employee has
    been involved with in the last 3 years, but prohibits a former NHTSA
    employee to even advise a manufacturer on motor vehicle safety
    compliance matters, even if the employee's work for the manufacturer
    does not directly or indirectly involve communications or interactions
    with NHTSA. It is not appropriate to only apply such restrictions to
    NHTSA employees and let other Executive Branch agencies (and Congress)
    have a lesser standard. Finally, this provision is very one-sided
    because it only applies to motor vehicle manufacturers, an ex-employee
    of NHTSA can immediately go and work for a non-governmental
    organization or a plaintiffs' product liability law firm.
        Section 309. Deadlines for rulemaking. This section provides
    helpful flexibility to allow necessary additional time to complete
    rulemaking proceedings, as conditions warrant. Similar flexibility
    should be provided to the agency to allow additional compliance lead-
    time and phase-in schedules as appropriate.
        Thank you for the opportunity to present AIAM's views.

        The Chairman. Thank you, Mr. Stanton. We're very happy to
    see you.
        Ms. Claybrook.

              STATEMENT OF HON. JOAN CLAYBROOK, PRESIDENT

          EMERITUS, PUBLIC CITIZEN; AND FORMER ADMINISTRATOR,

             NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

        Ms. Claybrook. Thank you so much, Mr. Chairman. Really
    appreciate the opportunity to be here. My name is Joan
    Claybrook, and I----
        The Chairman. You know a little bit about NHTSA, I think.
        [Laughter.]
        Ms. Claybrook. I'm sorry?
        The Chairman. You know a little bit about NHTSA, I think.
        Ms. Claybrook. I know a little bit about NHTSA, thank you.
        Since I left office, in 1981, Mr. Chairman, more than a
    million Americans have lost their lives on the highway, in
    vehicle crashes, and many more have suffered horrible injuries.
    The cost to the Nation of just the fatalities is $6 trillion,
    not adjusted for inflation.
        In the last 18 months, we have witnessed some terrible
    failures of regulation, whether it has been in the massive
    failure in the financial regulation area, whether it has been
    with Toyota, whether it has been in the coalmine area where a
    regulatory agency is smothered with revolving-door lobbyists,
    and now with the oil rigs fouling our Gulf of Mexico, and the
    huge impact this has had on small businesses.
        I mention these because this law that you are trying to
    pass is extremely important, and it will make a huge
    difference, in terms of the ability of this agency to do its
    job. And when you have good regulation and enforcement,
    regulated companies take fewer risks with public safety and the
    environment and with the public's money.
        So, I strongly endorse your bill. I'm going to comment on
    only a few sections, because of time.
        First is section 107, dealing with the event data recorder.
    And we're concerned that there are some missing elements in
    this rule. First, it should be a performance standard, and not
    a specific standard just for event data recorders. And I say
    this because that's what the underlying statute that NHTSA
    administers--requires. And so, I think it ought to be systems
    that do the job that an event data recorder does, but not
    necessarily specify an event data recorder, so that we could
    move into technology development, such as wireless systems, at
    some future point in time. So, I urge you to consider that.
        And also, to have only one rule, rather than two, as this
    bill specifies--I think you could shorten the time--to enlarge
    the data elements that must be recorded to include rollover,
    which is one of the most deadly types of crashes. And under the
    bill, as written, it's optional, not required. That kind of
    crash kills 10,000 people a year.
        And also, to require a single uniform access system for
    downloading and recording the location of a crash, to
    facilitate immediate medical assistance. This is a really
    important provision. Cell phones today, if you call 911, they
    know your location. And so, for medical assistance that comes
    from the whole notification process, such as OnStar, if you
    don't know your location, then you can't get that immediate
    medical help, which is so critically important. And so, I
    believe that all of those changes should be made, if possible.
        And, in addition, we would like to see NHTSA get the data
    that comes off of these event data recorders, with protection
    for privacy. And my reason for saying this is this. NHTSA has
    very limited data systems. It's very expensive to get this
    information. But, when the EDR-type data is downloaded, if
    NHTSA got it, as well, could get it in a wireless way, then it
    would have real-time on-road information to help it do the kind
    of job it needs to do, in sort of--in terms of setting
    standards and finding defects. And it would have to set up a
    new system--a new database at the agency. But, right now it's
    totally inadequate, their data systems.
        I know that Mr. Stanton has supported improving NASS. It's
    extremely expensive to do these individual-acts investigations,
    which is what NASS is. So, to have this online data would be
    fabulous for the agency. And it's a forward-looking way of
    treating the EDR, but I think it's something that could really
    improve the future for the agency.
        On enforcement authority, I strongly support the civil
    penalty provisions and imminent hazard authority. But, we urge,
    as well, that criminal penalties be added to the NHTSA law. The
    criminal penalties are in statutes covering motor carriers,
    hazardous materials, aircraft, oil pipelines, water safety,
    railroad safety, clean water, food and drugs, cosmetics, solid
    waste, clean air, mine safety, occupational safety and health,
    consumer product safety, consumer product hazardous substances,
    securities antitrust, vehicular homicide. This is just a short
    list of all the other statutes that have them. And I think
    that, in terms of having the top brass pay attention, as you're
    interested in with corporate accountability, that's what makes
    them pay attention, if they think they could go to jail, if
    they refuse to do a recall. And I think that this recent
    steering-rod issue that came up with Toyota is a perfect
    example of the problem, where they did a recall in Japan, they
    didn't do one in United States for another year. And they
    misled the agency, they lied to the agency. So, I think that we
    ought to have that added.
        The transparency provisions, I won't discuss in detail,
    because Mr. Ditlow has just done that in his testimony. But, we
    urge that greater consideration be given to improving
    transparency. NHTSA has, unfortunately, over the years,
    developed a great deal of secrecy that should not exist. And I
    think that it would make a huge difference if the Committee
    could turn its attention to improving the transparency.
        On the funding, this agency gets a $132 million a year for
    its vehicle safety program. We deeply appreciate that this bill
    would vastly increase the funding. It needs to be done. I think
    the goal should be $500 million a year in 4 years. While the
    bill heads in that direction, doesn't quite get there. And we
    hope that you would consider that.
        And then, finally, we do endorse the revolving door and
    whistleblower provisions. But, we also are very concerned,
    because NHTSA's only testing capacity is at a Honda-owned
    facility, and we think that's a conflict of interest. And we
    would like to see the Committee address this and have the
    agency have its own facility some other way, and not be
    dependent on one where it's 20 percent of the use of that
    facility and other motor vehicle manufacturers use it as well
    as Honda, all in the same facility. We think that for a
    regulatory agency, this is inappropriate.
        Thank you so much, Mr. Chairman, for the opportunity to
    testify.
        [The prepared statement of Ms. Claybrook follows:]

     Prepared Statement of Hon. Joan Claybrook, President Emeritus, Public
      Citizen; and Former Administrator, National Highway Traffic Safety
                                 Administration
        Mr. Chairman, members of the Committee, my name is Joan Claybrook
    and I am pleased to be asked to testify today concerning proposed motor
    vehicle safety legislation to enhance the authority and capacity of the
    National Highway Traffic Safety Administration in the U.S. Department
    of Transportation to protect the public. I am President Emeritus of
    Public Citizen and a former Administrator of the National Highway
    Traffic Safety Administration (NHTSA).
        In the last eighteen months we have witnessed corporate executives
    take huge financial risks with investors money and a massive failure of
    regulation in the financial sector that has upended our economy, caused
    people to loose their savings, their jobs, their homes and forced many
    into bankruptcy. The effects will be tearing at the fabric of our
    society for years to come.
        In the past few months the American public has witnessed more
    spectacular examples of corporate excesses and of the failure of
    regulation to moderate corporate misbehavior, resulting in unnecessary
    deaths, injuries, and environmental and economic harm. The year 2010
    began with the shutdown of Toyota production until repairs for a sticky
    accelerator could be made after Toyota notified Canadian and European
    authorities about the problem last year but failed to notify the U.S.
    Department of Transportation. The company was recently fined $16.4
    million, the maximum under current law.
        This revelation followed a horrible crash of a runaway Toyota built
    Lexus last August while the occupants were on a cell phone begging the
    911 operator for help. They crashed at almost 100 mph, killing all four
    occupants. Shortly thereafter Toyota recalled over 5 million vehicles
    for the so-called floor mat problem (which many believe is an
    electronic problem that is still being investigated by the Department
    of Transportation). Toyota officials boasted in an internal memo last
    summer that in 2007 it had avoided a major recall for its runaway
    vehicles and saved the company $100 million. Over 50 people are dead
    because of runaway Toyotas and many others injured.
        ABC television 2 weeks ago revealed that Toyota also lied to NHTSA
    in 2004 about U.S. customer complaints it received concerning its
    trucks and 4-Runner steering rod breakage (causing a complete loss of
    steering control). Toyota denied knowing about any U.S. complaints and
    thus refused to conduct a recall in the U.S. after it carried out one
    in Japan. NHTSA did nothing when it received Toyota's notice of the
    Japanese recall even though the vehicles were identical. Toyota finally
    initiated a U.S. recall a year later in 2005. With the media
    revelations of Toyota's law violations, NHTSA is now conducting an
    investigation.
        In early April, a horrible coal mine explosion at the Massey Energy
    Upper Big Branch coal mine in Montcoal, West Virginia killed 29 miners.
    This mine had been cited just weeks before the disaster for numerous
    safety violations, including problems in ventilating the mine and
    failure to prevent a buildup of deadly methane gas. The mine company
    denied there were any ventilation problems shortly before the blast.
    The mine owner, Don Blankenship, is a well known opponent of mine
    regulation. In 2006 a subsidiary of Massey pleaded guilty to 10
    criminal charges at the Sago mine that killed two miners and the
    company paid a $2.5 million criminal fine. As the families and the
    Nation mourned the most recent mine deaths, the FBI has begun an
    investigation of criminal offenses under the Federal Mine Safety and
    Health Act. According to the Washington Post, ``More than 200 former
    Congressional staff members, Federal regulators and lawmakers are
    employed by the mining industry as lobbyists, consultants, or senior
    executives, including dozens who work for coal companies with the worst
    safety records in the Nation.'' Regulation of mining operations and
    enforcement of violations has been weak for years.
        Then on April 20, a British Petroleum (BP) oil rig exploded in the
    Gulf of Mexico, off shore from New Orleans and its fragile wetlands,
    marshes and estuaries. Eleven workers were killed, others injured, fire
    ensued, the rig collapsed, and oil started leaking at 40,000 gallons a
    day. It is now estimated by the Coast Guard to be a raging torrent of
    oil pouring out of the drilled hole a mile deep in the water at a rate
    of more than 200,000 gallons a day and BP for a month has not been able
    to stop it. The blowout preventer designed to seal the well was
    activated by workers but did not work nor did the failsafe switch. The
    huge oil slick will far exceed the spill of the Exxon Valdez oil tanker
    in Alaska. It threatens wildlife all along the Gulf Coast, where some
    30 percent of U.S. fish and shell fish are harvested. The rest of the
    Nation will feel the impact of higher prices for these products. But
    thousands of workers and small business owners along the Gulf Coast are
    now being shutdown, who knows for how long, because their products are
    awash in oil. The Coast Guard is responsible for supervising the clean
    up but regulation of oil drilling by the Interior Department is minimal
    as the Wall Street Journal recently documented. Also, in Federal
    legislation passed after the Exxon Valdez debacle, oil industry
    lobbyists secured very low limits on company liability (economic
    liability is capped at only $75 million).
        Mr. Chairman, enactment of your vehicle safety legislation in the
    next months before Congress adjourns is crucial. Since I left the NHTSA
    in 1981, more than one million Americans have lost their lives in motor
    vehicle crashes and many millions more have suffered serious injuries.
    Applying the DOT cost value of $5.8 million per fatality, the cost to
    the Nation of this loss of life over 30 years amounts to nearly $6
    trillion, not adjusted for inflation. While the number of annual deaths
    has dropped in the last few years because of the recession, if history
    is our guide, they will rapidly climb back as the economy recovers.
    These numbers do not include the cost of the horrible injuries in car
    crashes from brain injury, quadriplegia, paraplegia, epilepsy, burns,
    and the resulting bankruptcies, orphaned children, divorces, and
    increased government health care, unemployment and other social
    assistance costs. The most recent figure for the total annual cost of
    crash injuries in 2000 was $230 billion a year. In the past 10 years
    those economic costs surely have increased dramatically.
        These examples of regulatory failures, corporate malfeasance and
    profits before safety, and the extraordinary loss of life in auto
    crashes every day set the backdrop for our discussion of the need for
    amendments to the National Traffic and Motor Vehicle Safety Act. With
    strong regulation and enforcement, regulated companies take fewer risks
    with the public's safety, environment or money. NHTSA has been far less
    effective that it can and should be. Your legislation reflects the
    importance of reenergizing the agency, and helping it achieve its
    primary goal of securing public safety on the highways. We deeply
    appreciate your effort in preparing this legislation. I will focus my
    comments on the four main sections of this important bill to give NHTSA
    the regulatory heft and direction it needs to do its job:

            I. To require the issuance of key safety standards that update
            and enlarge the agency's oversight of electronic systems in
            motor vehicles;

            II. To enhance the authority of the NHTSA to enforce the law;

            III. To increase transparency, accountability and integrity at
            NHTSA so that the public can play a greater role in overseeing
            what the agency is doing, or failing to do, and to assist the
            public in protecting itself;

            IV. To provide greater resources for an agency that is
            responsible for 95 percent of the Nation's transportation
            deaths but that receives only 1 percent of the U.S.
            transportation budget. NHTSA's FY 2011 budget request for its
            motor vehicle safety programs is a paltry $132 million.

        Mr. Chairman, I will not comment on every provision in the proposed
    legislation, but will highlight those that I believe need the most
    support or adjustment, and in addition I will submit more technical
    amendments to the staff.
    Title I. Vehicle Electronics and Safety Standards
        I support the provisions in this title but urge that the bill
    include deadlines for issuance of proposed rules as well as final rules
    as this committee saw fit to do for the rollover safety standards in
    the 2005 SAFETEA-LU legislation. This is needed to make sure that the
    agency does not wait to act until the last minute, missing the deadline
    for the final rule.
        I particularly want to discuss vehicle Event Data Recorders (EDRs),
    Section 107. I have a few suggestions I think are critical to the
    viability and utility of this provision. I also commend to the
    Committee the EDR legislation developed by Representative Jackie Speier
    (D-CA) which is more comprehensive and supported by consumer groups. In
    particular with regard to Section 107, I recommend the following:
        First, under Section 30102 of the existing law, motor vehicle
    safety standards are minimum standards for ``motor vehicle or equipment
    performance.'' To require an ``event data recorder'' is not really a
    ``performance'' standard. And given the dramatic developments in motor
    vehicle electronic advancements and particularly wireless
    communications, I urge that the bill be amended to require an ``EDR or
    other system'' so that manufacturers are encouraged to innovate. For
    simplicity in my testimony I will refer to ``EDR,'' but that should be
    considered shorthand for a performance standard.
        Second, the time to accomplish these two rulemakings, in
    subsections 107(a) and (b), is too long and unnecessary given the
    existence of NHTSA's voluntary standard, the current state of EDR
    technology and installation of EDRs by the industry. The bill requires
    one rulemaking to mandate installation of minimal EDRs and a second to
    upgrade the requirements. Both objectives can be achieved with a single
    rulemaking in 3 years, 18 months to issue a final rule and 18 months
    lead time, rather than a total of 5 years, 3 years to issue the rule
    and two for lead time, as contained in S. 3302.
        Third, at a minimum, I also urge that NHTSA be required to mandate
    recording of all the data elements listed now in its voluntary standard
    unless there is a strong reason not to do so. Also, collection of
    rollover data should not be optional or truncated. Data collection of
    the full rollover event must be required. Rollover crashes are a major
    source of auto crash deaths, with some 10,000 deaths and almost 20,000
    severe injuries resulting each year. There is no reason to make
    collection of data for such critical crashes optional or limited to
    only the first two events, other than the fact that the auto companies
    have been lobbying medical societies, NHTSA and CDC to downgrade the
    importance of rollover crashes. But in fact, if you are in a rollover
    crash, the risk of serious injury approximately doubles compared to
    other crash modes.
        Fourth, the language in Sec. 107(b)(5) and (b)(6) should require a
    single, universal or uniform access port. It appears that the wording
    of subsection (b)(6), ``to facilitate universal accessibility'', is
    intended to achieve that goal. The wording of the provision should,
    however, more clearly state that a universal data port design is
    required to ensure that any downloading tool will be compatible and
    result in the elimination of the need for a unique and different
    download tool for each EDR, which is very expensive, wasteful and
    confusing burden for police agencies and others.
        Fifth, I also urge that Section 107(c)(4) be deleted. Recording the
    crash location is absolutely essential for getting medical care
    immediately to crash victims, as GM's On Star and the BMW's crash
    notification system now do and most vehicles will in the near future.
    Any emergency response system transmitting EDR data would have to
    include the crash location because it assures faster and more effective
    medical care. Crash location is also critical for subsequent crash
    investigation and reconstruction, as well as for future research using
    the crash data from EDRs. At present, if you call 911 on your cell
    phone, your location can be identified. Including crash location in EDR
    data is far less intrusive and will save lives. On balance, identifying
    the location of the crash to save lives and reduce injuries far
    outweighs abstract arguments for keeping it secret, particularly with
    other strong privacy standards and protections.
        Sixth, the bill should be amended to require that the data
    collected by the EDR be automatically transmitted electronically to a
    NHTSA database (with privacy protections for those involved in the
    crash as NHTSA routinely requires now in all its data collection). GM's
    On Star and BMW now regularly collect this data electronically and use
    it for evaluation of their vehicles. Electronic collection of EDR data
    by NHTSA would expedite the collection process and reduce the cost of
    collecting this data, allowing the agency to obtain the data without
    waiting for the physical examination of the vehicle. EDRs can lose data
    due to tampering and inept physical downloading. Handling by
    intermediaries increases the chances that EDR data will be corrupted.
    It will be far less expensive and far more reliable for NHTSA to
    receive real-time data electronically and directly from actual crashes
    at about the same time as the crash notification systems alert medical
    help.
        Currently, NHTSA spends over $15 million a year to investigate
    crashes weeks after they occur as part of the National Automotive
    Sampling System (NASS), but the number of crashes investigated is only
    about 4,000, far fewer than needed for statistically robust data.
    NHTSA's crash data program is too small for the agency to conduct its
    mission. Specifically, the agency requires detailed data on a large,
    representative number of crashes that occur on U.S. roads to diagnose
    safety problems, to identify safety defects and noncompliance with
    safety standards, and to evaluate the degree to which its standards and
    programs are achieving their goals.
        Crash investigations do collect far more data per crash than a real
    time EDR system would, but the EDR data would provide a high quality
    basis for selecting which crashes to investigate and would reveal the
    state of highway safety in this country. EDR data and crash
    investigations would complement each other, giving NHTSA more robust
    and statistically valuable data. Getting such data will also assist the
    agency to oversee the EDR program and improve it because it will be
    constantly looking at the data collected. In short, the agency is
    totally thwarted and cannot do its job with inadequate and outmoded
    data. Any more band aids are a waste of lives, time and money. The
    agency needs to enter the 21st Century and be able to collect and
    analyze real time crash data received electronically. The agency should
    be directed to undertake immediately a complete review and redesign of
    its crash data systems by 2011 showing how it could collect and use
    real-time electronic crash data by 2015.
        NHTSA should require such electronic collection systems either as
    part of the EDR rule, or as a separate requirement. With some
    manufacturers now collecting such data for themselves, it should not be
    difficult to make sure such data are routinely transmitted to a NHTSA
    database.
        Finally, the bill should require manufacturer or government
    officials that retrieve EDR data from a vehicle to automatically
    provide the vehicle owner with a copy within 20 business days.
    Title II. Enhanced Safety Authorities
    1. Civil Penalties
        I heartily support the increase in civil penalties of $25,000 per
    violation (as at the Environmental Protection Agency (EPA) emissions
    program) without any mandated maximum. One of the NHTSA's serious
    problems is that the auto industry has not felt any pressure to comply
    with safety standards or recall vehicles because the agency had no real
    tools to punish them if they disobey the law. The agency's penalties
    for violation of fuel economy standards have no maximums, and there is
    no maximum on EPA's vehicle emissions penalties. With NHTSA's maximum
    of $5,000 per violation ($1,000 until the 2000 Transportation Recall
    Enhancement, Accountability, and Documentation (TREAD) Act) and maximum
    for any case of $16.4 million ($1 million in the law prior to TREAD),
    the agency until the recent Toyota $16.4 million fine had imposed a
    total of only $8,273,496 in fines from 1966 through 2009. No wonder the
    auto companies view NHTSA as a toothless tiger. It is important to
    evaluate both sides of the ledger, and to realize that since there is
    no limit on the damage a manufacturer can cause with it operations, so
    there should be no limit on the penalties the Secretary can impose,
    justified by the facts of a case.
        By comparison with auto safety enforcement, California last week
    fined Sempra Energy $410 million for gouging the state on energy
    contracts signed during the energy crisis there a decade ago. Last week
    the Justice Department announced Johnson and Johnson has agreed to pay
    more than $81 million in a case accusing them of illegally promoting
    the epilepsy drug Topamax for psychiatric uses. And in February BAE
    Systems, a large defense contractor, agreed to pay $400 million to
    resolve allegations it misled the Defense and State departments in its
    activities in relation to the Foreign Corrupt Practices Act a decade
    ago. By any reasonable measure, NHTSA's piddling fines for behavior
    that can and has caused death and injury are far too low.
    2. Imminent Hazard Authority
        I also strongly support the imminent hazard authority. To assure
    due process for a violator, I suggest NHTSA be required to use the same
    procedures it uses in determining a regular safety defect with an
    informal agency hearing. If a manufacturer objects it could seek
    judicial review in the U.S. Court of Appeals which should be required
    to conduct an expedited hearing and response.
    3. Criminal Penalties
        Finally, I strongly urge the Committee to include criminal
    penalties for knowing and willful violations of the Act. Criminal
    penalties are standard in many consumer protection and other regulatory
    statutes for knowing and willful acts. In the transportation regulatory
    agencies there are numerous authorities for criminal penalties. For
    example:

       Motor carriers who knowingly and willfully violate certain
            motor carrier laws are subject to up to 1 year of imprisonment.

       Persons, who misrepresent the contents of a container with
            hazardous material, or tamper with the labeling of hazardous
            materials, are subject to 5 years of imprisonment.

       Persons operating certain aircraft may receive up to 3 years
            of imprisonment for knowingly and willfully forging, altering,
            displaying or selling fraudulent registrations or certificates.

       Persons who damage an oil pipeline sign or marker are
            subject to up to 1 year of imprisonment.

       Persons who knowingly and willfully violate vessel operation
            and waterfront safety requirements commit a felony punishable
            with up to 6 years of imprisonment.

       A person who knowingly and willfully falsifies a report
            required under the Railroad Safety Act is subject to up to 2
            years imprisonment.

        In addition, environmental, worker and consumer protection laws
    regularly authorize criminal penalties, including the Consumer Product
    Safety Act that this committee amended in 2008 to make its criminal
    penalty provisions effective. For example,

       The Clean Water Act provides that anyone who knowingly
            violates provisions regarding disposal or discharge of
            effluents or knowingly introduces a hazardous substance into a
            sewer system or public treatment facility is subject to up to 3
            years of imprisonment.

       The Food, Drug, and Cosmetic Act provides that anyone who
            introduces adulterated or misbranded foods, drugs, devices or
            cosmetics into interstate commerce can receive up to 1 year of
            imprisonment.

       The Solid Waste Disposal Act provides that anyone who
            knowingly transports or disposes of hazardous waste without a
            permit can be sentenced to up to 5 years of imprisonment.

       The Clean Air Act provides that anyone who knowingly
            releases any hazardous air pollutant into the air can receive
            up to fifteen years of imprisonment.

       The Mine Safety Act provides that any operator, including
            corporate officers, who knowingly violates or fails to comply
            with mandatory health and safety standards, is subject to up to
            one year of imprisonment.

       The Occupational Health and Safety Act provides that willful
            violations of any standard that cause the death of an employee
            are punishable by up to 6 months of imprisonment.

       The Consumer Product Safety Act provides that anyone who
            manufactures, sells, distributes or imports a consumer product
            that does not conform to the applicable product safety standard
            can receive up to one year of imprisonment.

       The Consumer Product Hazardous Substances Act provides that
            anyone who, with intent to defraud or mislead, introduces
            misbranded or banned hazardous substances into interstate
            commerce can receive up to one year of imprisonment.

        In addition, a driver who participated in an illegal street race
    that killed eight people is subject to criminal penalties. Goldman
    Sachs is subject to criminal penalties by the Securities and Exchange
    Commission for securities fraud. Antitrust violations can be criminally
    prosecuted. Why not NHTSA?
        There is no reason why NHTSA should not also have the authority to
    seek criminal penalties for persons who knowingly and willfully violate
    the Act, especially because these actions result in death and injuries
    and so many lives are at stake. Such prosecutions would have to be
    brought by the Justice Department after a thorough review of the
    evidence in the case. The Justice Department does not bring many such
    cases each year. But it would be a strong deterrent to auto companies
    knowingly and willfully violating the law. And it would change the way
    the top brass views the company's regulatory obligations. Disclosures
    about how Toyota, the largest auto manufacturer in the world,
    specifically and knowingly and willfully refused to conduct safety
    recalls and in fact boasted about saving the company $100 million
    dollars by falsely narrowing the scope of a recall, more than justify
    this provision.
        I also ask that legislation delete section 30170 (a)(2) of title 49
    the provides a safe harbor for persons who violate 18 U.S.C. 1001 with
    the specific intent of misleading the Secretary of Transportation about
    vehicle safety defects that have caused death or injury. This
    subsection allows a person to recant and correct their violation to
    avoid any penalty if he/she did not know that the violation would
    result in an accident causing death or serious bodily injury. This
    provision completely undercuts our general criminal code and provides a
    special exception for people misleading and lying to NHTSA. It does not
    apply to any other government agency.
    Title III. Transparency, Accountability, and Integrity
        I support all of the provisions in Title III of the bill. They make
    excellent improvements to help the public learn about NHTSA's programs
    with greater openness and accessibility. The bill encourages the public
    and manufacturers, dealers and mechanics to report safety problems to
    the agency, and helps to encourage the integrity of the government's
    auto safety program.
        However, in addition to the provisions in the bill, we would urge
    the Committee to adopt the following provisions which are essential to
    achieve these goals:
    1. Judicial Review of Rejections of Defect Investigation Petitions
        We strongly urge the Committee to include, as the House bill does,
    authorization for judicial review when a public petition for a recall
    investigation is rejected by NHTSA. Giving the public the authority to
    challenge an agency rejection of a defect petition is essential. As we
    now know, NHTSA on a number of occasions turned down safety defect
    petitions from Toyota owners for an investigation of their runaway
    vehicles. The owner had no recourse when his/her petition was rejected,
    and NHTSA did nothing to protect the public. It is clear that greater
    public involvement would improve NHTSA's attention to consumer
    complaints and concerns.
        It is highly unlikely that this provision will be used often
    because it is costly to bring such suits, but it should be available
    for the times when citizens have done their homework and are ready to
    press the case. During the 22 years when such authority was available
    (before a court ruling in 1988 indicating that such suits were not
    authorized by the NHTSA statute), only two cases were brought. One of
    the cases brought to light an important defect that the agency had not
    fully investigated, and may have saved a number of lives.
        Also the standard is very high to be successful in such a case. It
    is not unlike the provision in the Federal Election Commission law that
    authorizes a challenge of the dismissal by the Commission of a
    complaint or failure to act on it. The U.S. Supreme Court has upheld
    that specific authorization for review of the dismissal of a complaint.
    A precedent for the provision in the bill is found in two
    antidiscrimination statutes concerning particular actions that shall
    not be deemed committed to unreviewable agency discretion. To assure
    that the agency is responsive to the public, which suffer death and
    injury from vehicle defects, such authority should be granted. In the
    same way that the auto companies are asking for due process for
    imminent hazard decisions, and are allowed to challenge agency defect
    enforcement decisions, we are asking for fair treatment for consumers
    harmed by rejection of safety defect petitions.
    2. Reporting Law Suits under Early Warning
        The statute should require NHTSA to distinguish claims or consumer
    complaints made to manufacturers by the public, and which the
    manufacturers are required to disclose to the agency (under the TREAD
    Act Early Warning Reporting requirements), from lawsuits filed in
    court. Currently, manufacturers are not required to separately report
    the number of filed lawsuits that assert a product defect even though
    these documents are public records in our courts. Since lawsuits are
    reported together with other consumer claims, as a single number, the
    number of lawsuits is not known. The number of lawsuits related to a
    particular alleged defect should be reported separately because
    lawsuits are an order of magnitude more credible and substantiated than
    general consumer letters that suggest a possible claim against a
    manufacturer. In terms of early warning, both the agency and the public
    should know how many claims are full-fledged lawsuits and how many
    represent a general consumer request for compensation.
    3. Fix Vehicle Defect Categories under Early Warning
        As a part of the Early Warning Reporting rulemaking required under
    Sec. 301(b), the bill should require the agency to either eliminate the
    potential vehicle defect categories now used by manufacturers when they
    report a potential safety defect, or vastly expand the number of
    categories so that the public can distinguish what specific part of the
    vehicle is a potential problem. The existing 24 categories are too
    vague and generalized and do not inform the public about what problem
    is being reported. Also, because the categories are vague,
    manufacturers can use one category in one report and another category
    in another report concerning the same problem to undermine the whole
    purpose of consistent reporting under the Early Warning Reporting
    system. For example, in the Toyota runaway vehicles, the manufacturer's
    early warning report can reference a problem with the transmission, the
    engine or the brakes. If the vehicle rolls over, they can even use that
    category as well. Spreading reports of the same problem over several
    reporting categories is currently permitted but undermines the purpose
    of the Early Warning Reporting system. Such game-playing should be not
    possible. Also there is a need for instructions on how to report any
    category. Perhaps the best remedy is to have the manufacturer report
    the exact problem without any broad categories.
        By comparison, for the VOQ (vehicle owner questionnaire) filed by
    consumers with NHTSA when they report a possible defect, there are 1200
    possible vehicle defect categories consumers can review to select the
    one that best describes the potential defect in their vehicles. Why
    don't manufacturers, who know a lot more about the problems they are
    reporting, have to be as precise? The bill needs to correct this
    problem.
        In 2004, the DOT Inspector General issued a scathing report on
    NHTSA's implementation of the early warning requirements in TREAD. It
    complained particularly about NHTSA's overly broad vehicle defect
    categories manufacturers would use for their quarterly filings and
    about other issues. The bill should require that this report be
    updated.
    4. Make Public Manufacturer Reports of Deaths
        We also urge that the underlying reports of deaths from
    manufacturers be required to be public. Such information comes to
    manufacturers in the form of consumer letters, newspaper articles,
    lawsuits, field reports, etc. These documents should be publicly
    available at NHTSA. As it now stands, it is impossible for the public
    to exercise any real oversight of NHTSA decision-making to act or not
    act on such information without access to this specific documented
    information. To be useful, the numbers of deaths and injuries should
    also be aggregated by make and model and alleged defect.
    5. Collect Names and Addresses of Aftermarket Tire Purchasers
        Sellers of aftermarket tires are not been required to record the
    names and addresses of buyers and report them to the manufacturer so
    that owners can be notified by mail or Internet if there is a recall
    involving their tires. This provision was eliminated from the law in
    1982 at the request of independent aftermarket tire sellers who did not
    want the manufacturers to have access to information about their
    purchasers which would allow manufacturers with retail company stores
    to compete with them. But this of course undermines the ability to
    provide notice to the owners about a defective tire. With the Internet
    and electronic record keeping so readily available now, this
    requirement should be reinstated with the data and recall notices
    managed by an independent operator just as R.L. Polk does for auto
    purchaser names that it secures from state motor vehicle
    administrators.
    6. Fully Document Ex Parte NHTSA Meetings with Interested Parties
        A major problem with transparency at NHTSA has been private ex
    parte meetings manufacturers have with the agency about particular
    defects or pending rulemaking. Too often NHTSA writes only cursory
    notes about the meeting, mentioning the attendees but rarely stating
    the substance of the meeting or attaching the materials used at the
    meetings, including power point presentations, hand outs, etc. Thus the
    public is essentially kept in the dark. In addition, these notes often
    are not put in the docket until months after the meeting occurs.
        The Center for Auto Safety has discovered summaries of such
    meetings at NHTSA prepared by manufacturers and revealed later in
    litigation that bear no resemblance to NHTSA's so-called notes of the
    same meeting. The purpose of the ex parte rule at regulatory agencies
    is transparency but at NHTSA it has been completely undermined. We ask
    that the bill require that detailed minutes of the entire discussion at
    ex parte meetings be prepared with all materials handed out by either
    the company or NHTSA put into the docket within 2 weeks of a meeting.
    Incidentally, when consumer organizations take part in such meetings we
    make our materials fully available for the agency docket and have no
    objection to complete written minutes of our discussions being placed
    in the public docket.
    7. Assure Public Access to Defect Information Through the Internet
        NHTSA policies deter consumers from readily getting information
    such as manufacturer technical service bulletins or specific defect
    investigatory material by charging huge fees under FOIA or through
    contractors hired to collate and distribute information. Since much of
    this information comes to NHTSA electronically, the agency should be
    required to put any electronic information on the web to save the
    agency the time of dealing with requests and the public the time and
    cost of making specific requests and having to pay for them.
    8. Revolving Door
        Recently Senator Barbara Boxer (D-CA) introduced legislation, S.
    3268, to limit the revolving door between NHTSA staff and the auto
    industry. We commend her for this work. It requires a three-year
    cooling off period before an agency employee could work for or
    represent a motor vehicle company on NHTSA matters. It is a very
    reasonable bill and we have urged the House Committee to include it in
    its draft legislation. As the press revealed several months ago, a
    large number of former NHTSA officials, including Administrators (the
    top Presidential appointee), deputy administrators, general counsels,
    and chiefs of the enforcement, rulemaking and research divisions, as
    well as technical staff have left NHTSA over the years to be employed
    by vehicle and equipment manufactures as consultants, lobbyists,
    attorneys or on staff. This results in staff currying favor with
    regulated companies while at NHTSA, it encourages former employees to
    advise companies about how to avoid or influence NHTSA regulatory
    decisions, and undermines the integrity of the agency's work. Obviously
    this is a real problem and needs to be addressed. We appreciate the
    Committee including the Boxer provisions in the bill.
    9. Whistleblower Protections
        The Congress has recognized the need to provide whistleblower
    protections for employees working in public transportation, commercial
    vehicle employees, and selling products regulated by the Consumer
    Product Safety Commission. We support the Committee's inclusion of
    Whistleblower Protection in the Senate bill.
    10. NHTSA's Vehicle Regulatory Test Facility Is Owned by Honda
        NHTSA does not own its own test facility, yet it must conduct crash
    barrier and car to car tests all the time to do its job. NHTSA operates
    its testing activities in a facility owned by Honda Motor Company,
    which as a matter of principle and fact compromises the agency's
    integrity.
        In 1978, as NHTSA Administrator, I agreed to lease space for NHTSA
    testing programs at a vehicle test facility built by the State of Ohio
    in East Liberty. At the time NHTSA conducted minimal equipment tests--
    but not vehicle tests--at a building in Riverdale, Maryland. There was
    no crash test capacity or test track. With no money allocated by
    Congress to build a facility, and time-consuming contracts required for
    each testing program we initiated, we agreed to what was then our only
    option.
        In the 1990s, Honda Motor Co. became the owner of the East Liberty
    test facility and ever since NHTSA has been leasing the space from an
    auto manufacturer. This is an unacceptable conflict of interest. If
    Toyota was the company that owned the test facility, this arrangement
    would have been widely acknowledged as untenable. But every year the
    agency conducts tests on Honda vehicles as well as others at the Honda
    owned test facility which is also rented by other manufacturers and
    used by Honda.
        This facility is used by about nine auto manufacturers which is far
    more than it is used by NHTSA. At present, NHTSA uses approximately 23
    percent of the facility's capacity. Manufacturers conduct 78 percent of
    durability and dynamics operations compared to 4 percent for the
    government, 64 percent of the impact laboratory operations compared to
    33 percent for the government and 51 percent of contract services
    offered by the facility compared to 49 percent for the government.
        Honda disagrees that there is a conflict because, it claims, it has
    hired a third party, Ohio State University, to manage the facility and
    the finances. This use of an intermediary entity does not eradicate the
    fact that Honda is the owner that completely controls the facility,
    economically benefits from owning it, and along with other vehicle
    manufacturers, makes use of the same facility as the agency. This is
    not a particular criticism of Honda. But NHTSA is a government motor
    vehicle regulatory agency that must operate independently, and have its
    own facilities as do other government agencies. Because a number of
    companies use the Honda facility, and this bill will require more
    testing, it is doubtful there will be unused capacity at the facility
    if NHTSA were to relocate its testing activities to an independent
    location.
        S. 3302 should require NHTSA to move its motor vehicle testing
    activities and approximately 30 employees within 2 years to a location
    which it controls. The cost of making this move could be paid for by
    allocating the $16.4 million penalty paid by Toyota this year. This is
    new money not in the President's budget. It is inappropriate for NHTSA
    to conduct tests and research affecting the industry it regulates and
    its public safety mission at a facility owned by the auto industry. I
    urge the Committee to include in the legislation a requirement that
    NHTSA move its test facility to a new independent location funded by
    the Toyota penalty.
    IV. Funding
        For years the NHTSA motor vehicle safety program has been on a
    starvation diet. Its current budget is a paltry $132 million, less than
    the cost of minor government programs. It needs to be built up to at
    least $500 million annually. Beginning with this Fiscal Year (FY) 2011,
    it should be doubled. We are very pleased the bill allocates $200
    million for FY 2011, but the increases for FY 2012 and FY 2013 are far
    too small, amounting to only $40 million in each year. These
    authorization levels are the same as in the House draft bill, which
    includes in addition a vehicle safety user fee paid by vehicle
    manufacturers.
        I realize that the vehicle safety user fee will bring in new money
    beginning in 2012, and more in subsequent years, and that such a user
    fee is in operation at the Food and Drug Administration (FDA). I do
    have concerns that it might cause manufacturers to exercise even more
    ownership leverage over the agency than they do now. And I believe the
    small amounts of funding we are discussing for this crucial agency can
    more than be met in the Federal budget.
        My major concern is that the NHTSA's budget reaches $500 million in
    funding in the next 4 years, either with Federal appropriations and the
    user fee or through Federal appropriations alone. My preference would
    be solely through Federal appropriations. But the absence of a user fee
    should not be a rationale not to increase the Federal appropriations.
    This agency has been undercut and undermined as have many regulatory
    agencies by industries that want to cut costs at the expense of the
    public. But their complaints have been shown to be short sighted and
    costly for so many American families who suffer the consequences of
    regulatory failures as the opening paragraphs of my statement today
    show. In fact, effective regulatory agencies that are properly funded
    are so cost effective and they are crucial to assuring our standard of
    living and way of life in America. I urge the Committee to assure this
    small agency is given the funds needed to do its job--which are but a
    footnote in the Federal budget.
    Conclusion
        Thank you very much Mr. Chairman and members of the Committee for
    this opportunity to testify. This important legislation needs to be
    enacted into law. A decade ago, after the Ford/Firestone debacle, the
    Congress passed legislation and thought it had fixed the problems at
    NHTSA. But time has revealed that the TREAD Act and the underlying
    statute need major improvements to upgrade the agency's regulatory
    authority, to increase transparency, to enhance enforcement powers, to
    add much needed resources and to protect its integrity. Recent months
    have shown how important these powers are to prevent massive numbers of
    preventable deaths and gruesome injuries. The public is fed up with
    regulatory failures that harm so many citizens and communities. Let's
    do it right this time and set an example. When regulation works well,
    the companies as well as the public benefit. We look forward to swift
    movement of the legislation.

        The Chairman. No, thank you very much, with all of your
    experience. Well, you all have a lot of experience.
        Your bringing up the coal mines is a very fast way to get
    right into my soul.
        [Laughter.]
        The Chairman. And what was interesting to me, frankly,
    about the four of you is that two of you, who sort of do
    protection for a living--or did, and do--and the two of you,
    who are more on the production side, representing automobile
    companies, that efforts toward safety ran into complaints such
    as, you know, ``Oh, it'll cost,'' or, ``But, there'll be
    deadlines.''
        And in one specific case, when you--we were talking--you
    were talking about--Mr. Stanton I believe it was you--the brake
    override; the bill requires it. In fact, the bill doesn't
    require it. The bill says that it allows it as a potential
    solution. But, the bill does require that the car be able to
    stop in a certain amount of footage, time, whatever is decided
    on.
        But, it's always interesting to me--I mean, I've done this
    so much with coal mine operators and coal miners. And one is,
    sort of, putting the brakes on--the former putting the brakes
    on, because it'll cost; or because we don't know, how long
    it'll take; or that there are small manufacturers and big
    manufacturers, and everything has to be the same for everybody,
    or nothing can be the same for everybody, and therefore,
    everything will take more time, so slow down.
        And then, what occurs to me is that this country's going
    through a lot of transformation right now and we've discovered
    that we have fallen behind in a lot of areas.
        I mean, this coal mine incident in West Virginia is
    absolutely stunning in its implications of--not only about coal
    companies and the demand for--in one case, there's a CEO
    demanding production levels every 2 hours, every single day.
    And I assume that means through the night, because coal mines
    don't stop operating, for the most part, depending on the
    market.
        But, philosophically, I guess what I'd like to ask each of
    you--this'll be my only question on the first round. When you
    look at NHTSA, when you talk about a culture of secrecy, well,
    you know, culture of secrecy is much, I think, deeper in coal
    mining than it is in carmaking. On the other hand, you also
    mentioned that being part of the problem with NHTSA. And I'm
    interested in how you react to what kind of a job NHTSA's
    doing. Granted, most Americans can't tell you what it is. This
    is like this oilspill. MMS suddenly appeared on the American
    scene. Nobody knows what it does, and it turns out they don't
    really do very much.
        [Laughter.]
        The Chairman. But, talk to me about what you each,
    individually, feel about the job that NHTSA is doing and where
    you think it ought to be stronger, or is--pushing too hard, or
    whatever. Understanding that we've been through a period, in
    our last 10 years, where regulation was not a top priority, so
    that under a new administration, I think, it's a greater
    priority, one which two of you may not welcome. But, I just--I
    would be interested to hear.
        Mr. McCurdy. Mr. Chairman, thank you for the question.
        And I'm glad someone has asked that, because, in our
    opinion, NHTSA is not broken. Can it be funded better? Yes.
    Does it need resources? Yes. Can it improve some capabilities?
    Absolutely. We support that. As in our statement, there are a
    number of things in this bill we support--brake override and
    others.
        But, to your philosophical question, is where I'd like to
    go, if I could. NHTSA has adopted, recently, the--more of the
    public health approach. And that is, you address the area of
    the biggest concern--the biggest problem. And it's like triage,
    you go and you affect it. That's why we support the DADSS
    effort for trying to develop technologies to prevent drunk
    drivers from getting behind the wheel, because that is the
    principal source of death in this country.
        NHTSA did a study in 2005. What was the principal death--or
    cause for--it's a causal crash study. Over 94 percent were
    driver errors. You know, you and I both know that we have
    individual responsibility. And I get into a car; I have a
    responsibility to, not only my passengers and myself, but to
    those other folks on the road. And I need to understand
    capabilities of that car, and how to operate it safely. And
    that's not mentioned very much.
        As far as----
        The Chairman. Mr. McCurdy?
        Mr. McCurdy. Yes.
        The Chairman. In that I have 2 seconds left; can we give
    Mr. Ditlow one quick shot at that? And I'll go back to it in my
    next round.
        Mr. Ditlow. With NHTSA--I mean, if you look at--it's
    underfunded. You've got to fund it more. If you look at every
    major crisis we've had--Ford/Firestone, Toyota's sudden
    acceleration--we've had an old and outdated standard, that they
    didn't have money to do adequate research on, independent
    research on, and then issue new rules. We like the agency. It
    needs more funds. And it needs to recognize that its mission is
    to protect the public.
        The Chairman. All right.
        I want to welcome Senator Thune.
        I'm very glad you came, sir. And the intelligencia at the
    dais has just put their statements in the record.
        [Laughter.]

                     STATEMENT OF HON. JOHN THUNE,
                     U.S. SENATOR FROM SOUTH DAKOTA

        Senator Thune. OK. Thank you, Mr. Chairman.
        I would be happy to join in that pattern here, and submit
    my statement for the record.
        [The prepared statement of Senator Thune follows:]

     Prepared Statement of Hon. John Thune, U.S. Senator from South Dakota
        I would like to thank the Chairman and Ranking Member for holding
    today's hearing.
        In light of the historic Toyota recalls and the unfortunate and
    preventable deaths associated with unintended acceleration, I think it
    is appropriate for Congress to respond with additional instruction for
    the auto industry that will protect consumers from this type of design
    flaw in the future.
        However, I think any additional regulation should be as focused as
    possible on fixing the problem at hand.
        New regulations should not duplicate existing regulations, and auto
    manufacturers should have an appropriate amount of time to retool
    manufacturing lines and test new vehicle designs to comply with the new
    regulations.
        Additionally, I believe it is important that this committee and the
    National Highway Transportation Safety Administration work closely with
    the automakers as we enact new laws that protect consumers.
        Effective communication with the key stakeholders will result in
    legislation that protects consumers from further defects and allows
    manufacturers to build cars as efficiently as possible.
        I am pleased that Administrator Strickland has agreed to join us
    today. I am also pleased that witnesses representing consumer groups
    and foreign and domestic automakers are going to join us as part of the
    second panel.
        We must all work together on new consumer protections that respond
    to the Toyota recalls and ensure this scenario is prevented in the
    future.

        Senator Thune. And I do appreciate your holding today's
    hearing, and giving some examination to the legislation, and an
    opportunity for the stakeholders to all come and give us their
    views.
        I'm interested in knowing, with regard to the regulations
    that would be--come as a result of this legislation, whether
    the automakers that are represented here believe that there
    would be enough time to comply--and, to adequately test any new
    designs that are required, and retool manufacturing lines. What
    is a sufficient amount of time to do the things that you would
    have to do to comply with the new regulations, pursuant to this
    law, if it were to become a law?
        Mr. Stanton. Let me take a first cut at that. Our concern
    is, is that the rulemaking--the legislation should not prejudge
    the outcome of the rule, so that, as NHTSA goes through the
    rulemaking process, we all learn what is the right thing to do,
    what's the complexity of the fixes or the standards that are
    going to be promulgated, and then the implementation schedule.
    And that becomes very important for the manufacturer.
        And we found, in looking at the bill, that it is, in our
    view, overly prescriptive. It picks what the final rule will
    be. And it doesn't provide enough lead time for manufacturers
    to go ahead and implement it on--in a normal or orderly basis.
        And we're not saying that the--that it's not important.
    It's not saying that we don't want to make our vehicles just as
    safe as possible. But, what I was trying to say in my statement
    is that we want to do it right. And these cars are more and
    more complicated today than they have ever been. Rulemaking is
    more and more complicated. And it's really important that we
    take enough time to get it right. We all want it right, at the
    end of the day. And we'd like it as soon as we can get it. But,
    we don't want to do it wrong.
        Senator Thune. Do you have a sense or a feel for what
    amount of time that would be?
        Mr. Stanton. Usually, on a new standard, it's 3 to 4 years
    for models from the time that they actually come off the
    drawing board to the time that they're in production. So,
    usually you try to phase it in over a time period like that.
    And then, traditionally, you don't like to put it in--if it's
    expensive change or regulation, you generally don't want to try
    to do it in the last year of a model production. So, you'd like
    the flexibility to go one more year.
        Now, if it's a safety issue, it's a little bit different.
    It's much more important to make the implementation. And we
    certainly want to work with the agency to make sure that they
    get implemented correctly and quickly.
        Mr. McCurdy. Senator, if I may, just on one point. The--a
    number of the provisions that we support, such as brake
    override, automakers are deploying that, as we speak. So, there
    is some experience. And so, I think that timeline, in this
    rule, would be less.
        But, it's--in this bill, there are a number of rulemakings.
    And it's--so, it's the volume of those. And it's not a question
    of slowdown versus--in my opinion, it's more a question of
    overreach.
        So, if we address the problem that is the basis for the
    hearing--and that is the sudden, unintended acceleration--there
    is a way to address that. And I think it can be done, working
    with NHTSA, you know, in a very cooperative and very, you know,
    expeditious manner.
        But, some of the other provisions, because they are
    duplicative--pedal placement, for instance--it's not as simple
    as just saying you have to have a certain distance. You have to
    look at redesigning the floors, the structure of automobiles.
    There are lots of different models. And, in fact, we don't
    think that's going to actually address the problem, which is
    what the hearing's about.
        Senator Thune. What do you think is a reasonable amount of
    time for electronic onboard recording device, to record pre-
    accident data? Is there--that sort of----
        Mr. McCurdy. To enact--we support EDRs.
        Senator Thune. Right.
        Mr. McCurdy. And as I indicated before you arrived, sir,
    that Senator Udall has a bill that we actually think is a good
    approach. There's a voluntary effort, again. EDRs are being
    deployed by a number of manufacturers. I think there's a way to
    get there. We're talking probably 2 to 3 years, max----
        Senator Thune. Right.
        Mr. McCurdy.--to do that. And, again, a large number of
    those vehicles are already there. So, it's a standard for how
    you would do it.
        Senator Thune. And what you're saying, though, is that you
    don't need legislation to do all this, that this is----
        Mr. McCurdy. NHTSA is moving.
        Senator Thune. These are things----
        Mr. McCurdy. We can----
        Senator Thune.--that are being done now.
        Mr. McCurdy.--work with NHTSA to have those rulemakings.
        Senator Thune. What would you be looking at in cost per
    vehicle to implement these new regulations? In other words,
    what are we looking at, in terms of additional cost that would
    be passed on to consumers?
        Mr. Stanton. Yes. We have not done a cost estimate. We
    don't know exactly what the final rule would require. So,
    without knowing that, it's hard to estimate what the cost would
    be.
        Mr. McCurdy. And, again, there are--since there are a
    number that we support, I'm not--I don't believe cost----
        Senator Thune. Right.
        Mr. McCurdy.--is the issue. But, with EDRs, there are some
    who've talked about a black box, equivalent to what's in an
    aircraft. The Administrator, when he spoke earlier, said if you
    had the survivability requirements, recording data
    requirements, they could--equipment costs, it could be $20,000.
    That's the cost of the car.
        Senator Thune. Right.
        Mr. McCurdy. So, it's--again, it's depending on how you try
    to address the problem. We think there is an effective way to
    do it without, again, going too far.
        Senator Thune. OK.
        Mr. Ditlow. All right. And I'd like--Senator, I'd like to
    add that, when you look at things like the event data recorder,
    we don't need the capability of an airline ``black box''--for
    example, we're not going to recover a car from the bottom of
    the sea. And some of the features we're talking about is just
    taking advantage of the type of microprocessors that's already
    in there, recording the data, and expanding the data that's
    being recorded. So, these are not major cost items that we're
    looking at, in that area.
        Mr. McCurdy. With all due respect, the--when the bill
    requires that survivability--the conditions it must survive, it
    sounds more and more like an aircraft recorder than it does
    existing technologies, which we think could address the issue.
        Mr. Ditlow. Well, I think we can agree to--you know, in the
    rulemaking, get closer together on what level of survivability
    we need. And----
        Mr. McCurdy. I'm just responding to what's in the bill----
        Mr. Ditlow. Right.
        Senator Thune. Right.
        Mr. McCurdy.--not the----
        Senator Thune. Right.
        Mr. McCurdy.--rulemaking.
        Senator Thune. Right. Yes, it always becomes a little more
    complicated when you get to the rulemaking process. So----
        Well, I see my time's up. Thank you, Mr. Chairman.
        Thank you all.
        The Chairman. Thank you, Senator Thune.
        Senator Pryor.
        Senator Pryor. Thank you, Mr. Chairman.
        Mr. McCurdy, since we were asking you questions a moment
    ago, let me ask you another question on another subject. And
    that's the Early Warning Reporting Data base. Are there
    improvements that we need to make to the Early Warning
    Reporting Data base?
        Mr. McCurdy. We think that the data that can be provided to
    NHTSA is not only helpful to--from not only consumers, but also
    to manufacturers. So, there are ways to improve it. And we
    would work with the Committee to address that.
        Senator Pryor. And how much of the data do you think should
    be made available to the public?
        Mr. McCurdy. Well, there is a difference between
    proprietary data that manufacturers provide, on a very
    confidential basis. And NHTSA does a good job protecting data,
    that's company-specific, that would not apply to consumers as a
    whole. And I think you have to be careful with that balance.
    But, there is a balance that could be achieved.
        Senator Pryor. Let me ask, if I can, Ms. Claybrook, do you
    think that we have found that balance on how much information's
    available to the public?
        Ms. Claybrook. I don't. Our concern is that the data is
    pretty close to useless right now, the way it comes in.
        As Mr. Ditlow said, the categories--there are 24 categories
    that the manufacturers use to report the particular vehicle
    problems. If you look at what the consumer has to report to
    NHTSA when they fill out a vehicle complaint about defect, it
    has 1,200 categories. So, there has to be someplace between the
    24 categories that the manufacturers report and the 1,200 the
    consumers have to use when they report.
        The consumer reports are very specific. You can really
    understand what they're talking about. But, with the
    manufacturers, it could be brakes or steering or--very broad
    categories, so that you have absolutely no idea what that
    they're actually reporting.
        And, in addition, the reports on deaths that come in are
    the most important information. And all of that is kept secret
    by NHTSA, and some of it's newspaper clippings, some of it's
    publicly filed lawsuits. We think that, to the maximum extent
    possible, that information ought to be made public, so that we
    really have a greater understanding of what's being reported.
        And I'd say, finally, the manufacturers are supposed to
    report claims. That is, someone writes in and says, ``You owe
    me money because my car harmed me.'' And then, in other cases,
    that is what's filed as a lawsuit. And there's a big difference
    between a lot of miscellaneous claims and a lawsuit. And if I
    think that there's a defect in a car, and I look it up on the
    Web page, and it says there are seven lawsuits versus a bunch
    of miscellaneous claims, I know that the lawsuits make a lot of
    difference, compared to these miscellaneous claims. I think the
    lawsuits ought to be segregated out so we know, for each report
    that comes in, how many lawsuits have actually been filed. In
    some cases, there'll be none; in other cases, there will be
    one; other cases, there'll be 10.
        Senator Pryor. Right.
        Mr. McCurdy, I think you had a response to that. And then I
    have other questions.
        Mr. McCurdy. Yes. And, just quickly, I think there are FOIA
    requirements here that we have to be mindful of. And the only
    comment I had--I couldn't resist--when I was Chairman of the
    Intelligence Committee, we used to always admonish those that
    collected data, that we can be data rich but information poor.
    It's how you use the data, and it's how NHTSA can organize and
    use it and report it, to actually improve the information for
    both consumers, the agency, and manufacturers.
        Senator Pryor. Ms. Claybrook, let me ask you about another
    matter, the imminent hazard authority, that's in the bill. And
    do you think that NHTSA should have the authority to stop
    further sales of a vehicle if a defect creates an imminent
    hazard that could lead to deaths or serious injuries?
        Ms. Claybrook. I do. I agree with Mr. Strickland's
    statement today, where he said that they--you need to finish
    the job, not only to have notification of the public, but also
    the authority to require a recall. I believe that--one of the
    issues that has been raised by the manufacturers--and on this I
    have a certain agreement with them--is that there's not enough
    due process built into this provision. I think that it ought to
    follow the way that NHTSA handles recalls, in terms of process.
    And that is, that they have a public hearing--and they could
    have it much faster, under imminent hazard, because it's so
    imminent--and then they make a decision. And the manufacturer
    is then in the position of either initiating a recall or
    objecting. If they object, the Attorney General has to go to
    court.
        I think that that's the process that ought to be followed
    with imminent hazard, just as the way it is with defects, only
    much faster.
        Senator Pryor. Mr. Stanton, would you like to respond to
    that?
        Mr. Stanton. Yes. I thought it was very interesting that
    Mr. Strickland talked about how unique this would be, and how
    unusual it would be. And I--we all agree with that completely.
        Our concern is--and we've talked about this before--is the
    due process. In the Consumer Product Safety Act--the agency can
    go to court, the district court and get a ruling. You could get
    something like a temporary restraining order, but you would
    have the ability for the manufacturer then to have a process,
    be heard, and then appropriate action.
        Senator Pryor. Mr. Chairman?
        The Chairman. Thank you, Senator Pryor.
        I want to get back on this--the culture question. And
    it's--endlessly fascinates me, because I haven't been through
    this as much as some of you. But, it really is interesting. I
    mean, that those who produce want things to slow down. Those
    who use the product want to be safe. I think America has made a
    decision that it wants to be safer. And I think that's not just
    9/11.
        Which, Mr. McCurdy, I was also Chairman of the Intelligence
    Committee, and it's a--you know, the way that we have, in fact,
    not improved the sharing of intelligence, even with the
    Director of National Intelligence, is just fascinating to me,
    because it talks about the culture of the intelligence
    community, which does not want to share. Even with the Director
    saying, ``You have to do it,'' you really don't get much.
        The FBI's not very good at it, for example, because they
    have people who are trained to make arrests, and they're
    lawyers, and they have long yellow pads, and they don't surveil
    willingly.
        And so, the culture is really important, because these are
    people who have been there for a long time, and they do things
    the way they do things. And a new Administrator comes in and--
    maybe full of fire and have different ideas, but it doesn't
    necessarily mean that the culture changes.
        And I don't want to seem like I'm beating a dead horse,
    here, but I really am interested in what you, all four, feel.
    What the culture of NHTSA is, and compared to--example--Ms.
    Claybrook, when you were running it, which was, you said was
    some time ago, but nevertheless there are probably some people
    who were there then who are----
        Ms. Claybrook. There are some----
        The Chairman.--still there----
        Ms. Claybrook.--there are some----
        The Chairman.--now.
        Ms. Claybrook.--that are still there.
        The Chairman. Yes. And, in whatever order, I'd be
    interested.
        Ms. Claybrook. Well, I'll go next, since you raised my
    name.
        I think that this is an agency that looks at itself as
    being under siege. That's the culture of the agency. It has the
    manufacturers batting away at them all the time for every
    initiative that they take. The Secretary of Transportation goes
    crazy when some big thing comes up and they are caught unaware.
    It's an agency that has 1 percent of the money in the
    Department of Transportation, and has to deal with 95 percent
    of the transportation deaths.
        So, it's grossly underfunded. It always has been, since the
    day it was enacted into law, in 1966. It tries to be a
    scientific agency that works with data and information, but it
    has never had the money to really get that data that it needs
    in order to be firm and have the ability to make its decisions
    and not be challenged. It does have a culture of secrecy. At
    Public Citizen, we sued probably 10 times, because they--even
    the early warning data, they tried to keep all of that secret.
        And it's--I think it's an agency that has grown out-of-
    date, because it hasn't updated its standards, and it hasn't
    been able to hire new people. And, as we know, from the Toyota
    case, it doesn't even have software engineers here in
    Washington. And its--electrical engineers are not electronics
    engineers, so that--they're missing a lot of expertise.
        That's why this bill is so important, Mr. Chairman, because
    it deals with some of the secrecy issues. It deals with
    accountability issues. It puts on the table some important
    safety standards that they should issue--should have issued, in
    some case, long ago. It gives it more money.
        There's--in the defects area, which Mr. Ditlow mentioned,
    there is an imbalance in the way they handle the public with
    regard to defects, versus the way they handle it with regard to
    safety standards. Safety standards, all the information's on
    the website. You don't have to move out of your desk to get the
    information. But, for defects it's like a battle royal to get
    almost anything, whether it's early warning data; whether it's
    manufacturer submissions; whether it's the $80 disks that you
    have to pay for, just to get information that they submit.
        So, I think that that's one of the really important things
    that you have the opportunity to fix in this bill.
        The Chairman. So, what happens in culture, when people have
    been somewhere for 30 years? I mean, it also fascinates me. I
    admit I'm being a little too philosophical, here. But, in CMS,
    which is the Center for Medical Services, which is all of
    Medicare and all of Medicaid--and there's a terrific new person
    who's going to be running that, I hope. And he's very ambitious
    about it, but is very worried about the culture.
        In other words, when the 4,000 people in Baltimore come in
    to work every day, and they've got a stack of paper that they
    left last night, here, and they've got another one here, and
    they've got one here, and they've got one right in front of
    them. And they're all claims, and they have to respond. After
    you've done that for a while, you kind of lose fire.
        And, granted there are other jobs in HHS and CMS, and all
    the rest of it, that are going to make important decisions--how
    much people get reimbursed for this, that, or the other thing.
        But, it's really hard, isn't it, when you have traditional,
    established agencies, with a lot of--not that NHTSA has a lot
    of employees, but it has some--employees who have been there
    for quite a while, to get them to do things differently? And,
    just having a new director or a new administration doesn't
    necessarily make things happen.
        Mr. Ditlow, how do you respond to that?
        Mr. Ditlow. The--one of the cultural issues that I see----
        The Chairman. Can you pull that a little closer?
        Mr. Ditlow. Yes.
        One of the cultural issues that I see is that the agency is
    too exposed to the industry. They go to SAE conferences, but
    they don't go to consumer conferences. They begin to understand
    the problems of the industry, and not so much the problems of
    the consumer.
        And--but, on the other hand, they don't--they're trying to
    do something for the consumer, and they're saying, ``Well, this
    is the best that we can get.'' And they want to move on to the
    next case, and try to get something for the consumer there,
    when they're just not doing enough for the consumer.
        And then they have to, in the research facilities, rub
    shoulders with automakers who want to know, ``Well, just what
    are you doing over there?'' And you're relying on the resources
    of a Honda, of a research facility that's not your own.
        So, I can see, with this agency not only being hunkered
    down, but just isolated from the consumer. So, one of the
    things that you need to change the culture is to broaden the
    exposure of the agency. To begin the----
        The Chairman. Do you----
        Mr. Ditlow.--understanding----
        The Chairman.--invite them to your meetings?
        Mr. Ditlow. What's that?
        The Chairman. Do you invite them to your meetings?
        Mr. Ditlow. Yes. Oh, absolutely.
        The Chairman. And they just reject the invitations?
        Mr. Ditlow. And--what we--in terms of the broader meetings,
    yes.
        But, they should have a requirement that, when they go to a
    Society of Automotive Engineers Conference, that that be open
    to the public, and not prohibited by excess fees that the SAE
    charges, when the agency can walk in for free. So----
        Ms. Claybrook. In other words, consumers have to pay to go
    to those meetings, and often can't afford to do so, even the
    few who follow this agency intimately.
        I think that the--another program that I had, when I was
    Administrator, Mr. Chairman, was that I paid the costs for
    consumers to come participate in agency proceedings. It's
    something that the Federal Trade Commission did for a while,
    and this was something that was sort of popular in the 1970s.
    And then, it faded away and was stopped.
        But, if you helped consumer groups across the Nation--and
    there are wonderful consumer groups concerned about this, like
    KidsAndCars, that's in Kansas--they can't afford to come to
    agency meetings, that are public meetings, to participate, to
    communicate. To submit comments to the docket is really an
    expensive proposition. And if you have, you know, a lawyer or
    two, like Clarence and myself, who can sit down and read the
    stuff and do it, fine. But that's about it.
        So, I think that if you really wanted to change the culture
    of the agency, not only would you get rid of some this secrecy
    so that it would be more accessible to the public, and people
    would be more interested in it, and the agency would be more
    aware that it was being watched by the public, but you would
    bring the public back into the agency itself.
        And that program cost, that I had, was all of $125,000. I
    mean, it was nothing. Even if you had it now, today, at
    $500,000, it was minuscule to pay the cost that made such a
    difference in--and people came from PTAs, from drunk- driving
    groups. It was fabulous. The ones that came--even some of the
    police--we--you know, State Police, we brought in for some
    meetings. So, that's another way of changing the culture.
        The Chairman. I thank you.
        And I apologize to the senior Senator from Arkansas,
    because I've gone 4 minutes over my time.
        Senator Pryor. Thank you, Mr. Chairman. No apology is
    necessary, obviously.
        But, let me ask, if I may, Mr. Ditlow--in your opening
    statement, you refer to Mr. Sheridan, who's sitting there
    behind you. And I am curious about your views of whistleblower
    protections. Do you think that the law should clearly provide
    for whistleblower protection for auto industry executives,
    production workers, dealership employees, and mechanics? And
    would that be helpful to NHTSA, and therefore the public, in
    discovering potential vehicle defects?
        Mr. Ditlow. That's one of the most essential provisions of
    the legislation, because there are people, like Mr. Sheridan,
    who have tried to change the industry from inside. And they
    know that vehicles are coming off the assembly line with
    defects and inadequate structure in them, such as the seatbacks
    that collapse. And yet, they have--if they complain, they know
    that they're facing, not only ostracism within the company, if
    they stay--lack of promotions--but, ultimately, they could just
    be fired, as Mr. Sheridan was. If they actually go to the
    agency, they could be sued for damages. It's a terrible
    frustration.
        And I can remember one Ford engineer, who was loyal to
    Ford. I mean, absolutely a spectacular engineer. And he was so
    torn by the fact that the transmissions in the vehicles, that
    shifted from park into--didn't hold in park, and went into
    reverse--he ultimately committed suicide because he just
    couldn't cope with what was happening to the public, and yet
    being loyal to his employer.
        Senator Pryor. And, I guess I'll go ahead and ask Mr.
    Stanton. I could really do either you or Mr. McCurdy. But, let
    me hear from Mr. Stanton, if I may, on whistleblower
    protections and if you think that we should have a law that
    clearly states what the whistleblower protections are. And, if
    not, what other ways can we encourage people to come forward
    with information?
        Mr. Stanton. You know, we're--our organization is
    supportive of whistleblower laws. I think the only concern we
    had is, is that it's written in the bill as being in--within
    the Department of Transportation; we think it ought to be
    within the Department of Labor and the body of law that
    surrounds that.
        Senator Pryor. OK.
        Mr. McCurdy.
        Mr. McCurdy. I would agree with Mr. Stanton.
        Senator Pryor. Mr. McCurdy, let me ask you, on the keyless
    ignition systems, which are becoming more and more common in
    vehicles, it's my understanding that your association, or the
    Alliance, believes that we don't need a standard there, or you
    don't like the provision in the bill. Tell me----
        Mr. McCurdy. The----
        Senator Pryor.--where you are on that.
        Mr. McCurdy.--as written in the bill, but--we believe there
    can be a standard for ignition--keyless ignition. And I think
    NHTSA can develop that rule. I think where we found the bill
    overly prescriptive is when it was starting to actually--in
    previous versions, to tell how the--how it would look, the--in,
    you know, very, very specific, itself--just prescriptive.
        We think there is a way. I think, in--keyless ignition's
    part of the future. And I think it's something that there can
    be a standard developed.
        So, we're not opposed to the standard and would work with
    both the Committee and NHTSA to----
        Senator Pryor. And also on the gearshift provision?
        Mr. McCurdy. Neutral. There is a current standard, Section
    102 of the Motor Vehicle Safety Standard, that addresses the
    location of ``neutral'' so it's recognizable. Again, having--
    Congress, developing a prescriptive provision on how to align
    these, we think, goes a bit far. There is a rule there. There's
    a standard. If it needs to be clarified, then that's something
    that we would work with NHTSA on.
        Senator Pryor. And my last question is about event data
    recorders, that we talked about earlier. You've mentioned, a
    couple times, that you like Senator Udall's bill better than
    the Chairman's bill.
        [Laughter.]
        Mr. McCurdy. I knew you were going to say that.
        Senator Pryor. Not just the Chairman, but the Chairman of
    the relevant committee.
        The Chairman. I----
        Mr. McCurdy. The full committee, yes.
        Senator Pryor. So, I----
        The Chairman.--did the best I could.
        [Laughter.]
        Senator Pryor. And, I am curious to hear what you think the
    differences are there, and why you prefer just a regular
    Senator's bill over the Chairman's.
        [Laughter.]
        Mr. McCurdy. Having been both a regular member and a
    nonregular member.
        The--well, Senator Udall's been working on this for some
    time, actually prior to the Toyota incident. So, we think
    there's--again, there's--it's probably less prescriptive. I'm
    not--you know, I support Congress providing this oversight and
    doing its best to promote safety. I think there are limits on
    how prescriptive we can be. Certainly, I'm not in a position
    to--I rely on engineers and data-driven--to make some of these
    determinations. And so, I think it's the less-prescriptive
    nature.
        And, again, when you look at some of the requirements, I
    think there's a difference in cost that would be--and you're
    right, Senator, manufacturers are concerned about cost. And
    there's a culture. And I would hope that you'd ask unanimous
    consent that you have more time, because I'd like to answer
    some of your culture questions about NHTSA. But----
        [Laughter.]
        Mr. McCurdy.--since we produce one out of ten jobs in
    America, and this is a highly competitive market, that safety
    is a top concern, and safety sells, and vehicles are safer
    today than ever before, because consumers are concerned about
    their safety. And we, as consumers, are concerned about our
    safety.
        So, again, we support the bill. And, if I may--if I can
    answer his question?
        Senator Pryor. Sure. I'm finished----
        Mr. McCurdy. You know, too much of this is, kind of,
    rearview-mirror prescription by some in the advocacy community,
    but, I would tell you, there are so many things we are working
    with them on.
        I, too, like to introduce representatives from National
    Federation of the Blind, where we're working on an issue called
    ``quiet cars.'' We have an agreement--we had issued a release,
    today, saying that we believe, for safety, that--and there
    has--doesn't have to be a death in order for us to take
    action--that we can reach out to consumer groups, and others,
    to improve safety. And this is an example.
        We're working closely with NHTSA on the DADSS program, for
    developing technologies to address drunk driving. We worked
    with this committee and staff, and Mr. Strickland in his
    previous position, on KidsAndCars--brake transmission safety
    interlock. We worked on a voluntary basis.
        So, there's a lot of forward-leaning work, here, by this
    industry. And I'm not here to defend NHTSA, and I've only been
    in this industry 3 years, but I would tell you I've been
    impressed by the people and the level of professionalism there.
    And I think they are data-driven.
        And just one data point. If you look at the last 15
    consecutive quarters of reductions in fatalities in this
    country, there are fewer than 20,000--20,000 less than when Ms.
    Claybrook was director of NHTSA.
        [Laughter.]
        Mr. McCurdy. And so, this declining trend is a positive
    trend. Is it enough? Heck, no. Absolutely not. There are too
    many fatalities. But it stressed the real problems--drunk
    driving, distracted driving. We're working--we support a bill
    to ban texting while driving, to ban cell phone uses on
    pneumatic devices--hand-held devices. That's--we actually would
    work with you on your bill, Mr. Chairman, and believe that's a
    good approach to address safety. And I would tell you, that
    will do more, quickly, to address a very, very serious safety
    issue in this country.
        The Chairman. I think, over all, that, in fact--happily,
    that safety sells. And I think that's an advantage that
    automobile companies should take advantage of, and do take
    advantage of.
        I mean, just this committee--I've been on it for 25 years,
    and I just feel a little happier now than I used to. And one of
    the reasons, we've really kind of committed ourselves to safety
    and protection of people who otherwise can't protect
    themselves. And there are ways that you do that. I mean I
    stole, from Henry Waxman, the idea of getting independent
    investigators. It just has--a world of good.
        I mean, we have authority over the health insurance
    industry. Health insurance industry is a particular target of
    mine, because I'm extremely interested in healthcare, and have
    been for a long time. And it's just unbelievable what, in a
    relatively short period of time, we have been able to reveal,
    through oversight and investigation. I mean, they're free-
    floaters, and boy do they love their jobs. And they're happy
    all the time, because they're always after somebody. But, they
    have to do it fairly, because otherwise it doesn't pass test on
    the Committee, and that would be bad.
        But, I really care about this. I mean, I do think that, in
    the rush of success, economically in America, for such a long
    period of time, that we relaxed on a lot of things. And I think
    some administrations relaxed on a lot of things. And I know
    that's the case in coal mining, and you can count it. And I
    know that corporate executives can make a difference.
        I remember, when I was Governor of West Virginia, we had
    too many deaths in the coal mines, and I was trying to figure
    out ways to lower that. And you can pass laws, and that helps.
    But then people have to carry out those laws. And so, what I
    did is, as the CEO, so to speak, of the--and happily, there was
    no Lieutenant Governor--see, it was a wonderful situation--so
    that I would go to the meetings that our mine inspectors would
    have. And when they discussed why a miner or several miners had
    died, I'd go to those meetings. And just the fact that I was
    there rippled throughout the State, at least the mining part of
    the State, and things changed, and deaths went down.
        I mean, I do think the CEO--that's why this signing-off
    certification thing, to me, is very important. Because if--to
    involve--you have to find a way to take the top management and
    make them a part, legally, of safety. They are, of course,
    because they produce the cars and they make decisions and the
    board makes decisions and all the rest of it.
        But it is really easy, in coal mining, to ``short sheet,''
    so to speak, and to go around corners. I mean, it's a hidden
    world--99 percent of West Virginians have never been down a
    coal mine, underground, and never will, because it's a sort of
    a secret world, and it's out there in the distance.
        Well, Detroit is different, because it's a much more, in a
    sense, sophisticated industry, and is subject to the scrutiny
    of purchasers. You don't really, you know, size up a lump of
    coal for its color or safety or whatever. I mean, that's the
    cleaning up at the stationary source problem, that the coal
    faces very, very strongly. And we have to overcome that. And
    can, if we have time.
        [Laughter.]
        The Chairman. That's where I get into my limits thing. Or I
    guess I identified a little bit with you, because it takes time
    to----
        Ms. Claybrook. Sure.
        The Chairman. There are technologies that'll take the
    carbon out of coal--95 percent, in fact--which is cleaner than
    nuclear. You know, whether--what everyone feels about it is--
    it's not known as a dirty producer of energy.
        So, I just wanted to say that to you, generally. I mean,
    this is--this committee is invigorated.
        Mark Pryor is the chairman of the Safety Committee. He's
    very, very active. And I don't move nearly quickly enough for
    his taste.
        [Laughter.]
        The Chairman. And I like that.
        But, you know, with the health insurance industry, I mean,
    we've really been able to make some major changes in them. And
    many more will come as a result of the health bill, and just
    the power of watching over people, if you take it seriously.
    And that's what NHTSA's meant to do.
        And, by the way--then I have one question, and then
    everybody can go home--when we had the Toyota hearing, I hope
    you did notice that we had a double hearing. It was an all-day
    hearing. The morning hearing was only about the work of NHTSA.
    It wasn't about Toyota at all. It was about the work of the
    Federal agency responsible for safety in this country. And
    then, the afternoon hearing was about Toyota. Most people
    didn't notice that. But, it was both, and for a very deliberate
    reason. And Mr. Strickland knows that. And he knows that we're
    watching very carefully what he does, like I'm sure all of you
    are, too.
        I want to ask one question, which just plain fascinates me.
    I read--and I'll--either Mr. Stanton or you, Mr.--David. In
    this alcohol--and in the--that's such a huge factor--and that
    there are emerging technologies which can sense it or you can--
    if you push the ``on'' button, which is a subject in and of
    itself; you have an ``on'' button, and that becomes a problem,
    because people, when they just keep pushing it, thinking
    they'll slow the car down, or whatever. But, that can measure
    their alcohol level, evidently.
        Can you explain to me some of the things that are going on
    in this? Because it's very exciting to me.
        Mr. McCurdy. Yes. Yes, Mr. Chairman, since we're providing
    about $5 million of funding from my association to support that
    effort, in partnership with NHTSA.
        It's a research program. It's exploring technologies,
    outside the realm of just the automotive sector, looking at
    aerospace, defense, healthcare, other areas, to see what
    technology might be available that could help us detect the
    blood alcohol level, breath, or others--a number of means to
    prevent a person who's impaired, above a certain level, from
    actually engaging the automobile.
        The Chairman. It turns itself off.
        Mr. McCurdy. Well, it would not allow it to be turned on in
    the first----
        The Chairman. Turned on.
        Mr. McCurdy.--place. And you're right----
        The Chairman. What's an----
        Mr. McCurdy.--keyless----
        The Chairman.--example of----
        Mr. McCurdy.--ignition----
        The Chairman.--that?
        Mr. McCurdy. I mean, there are a number of things. It could
    be breath-based. I actually had my key--I think I gave it to
    one of my staff, because--but, you know, there are tactile--
    potential technologies. There's breath. There's--and there are
    ways to sort through the automobile. This is very early stages,
    and is something that we want to explore.
        What we would encourage the Congress to look at--there is
    legislation, Senator Udall--sorry he's not the chair, but maybe
    the Chair would like to take it--to increase the funding----
        The Chairman. He's on the Committee. We kind of like him.
        Mr. McCurdy. I know.
        [Laughter.]
        Mr. McCurdy.--to actually increase the funding for this
    research program, to take it beyond just the voluntary effort
    at the, you know--for us, it's a large amount of money--but, to
    expand it, to see if there are those out there.
        There's no immediate fix, but certainly it's--there is some
    promise out there. And, again, it would address the biggest
    single cause of fatalities in this country. And that's what
    we'd like to work with Congress and with the Administration to
    try to address.
        But, we'd be glad to come in and give a very detailed
    briefing on, again, the exploration, where it is. This is the
    second year--third year of this effort. And, you know, it's a
    challenge. It's a--but it's a good, scientific kind of
    challenge----
        The Chairman. It sure is.
        Mr. McCurdy.--an engineering type of challenge. And I think
    it holds some significant promise.
        But, again, we can't overpromise, and we can't raise the
    expectations unrealistically. It will never get beyond the
    personal responsibility issue, and those who serve the alcohol,
    and those that consume the alcohol. We support the ignition
    interlocks, or the locks for those who are convicted, first
    time. We think those are significant areas. We're working with
    States on that, as well. So, there's a lot of both enforcement
    things we can do, before or in conjunction with, but at the
    same time we need to look at all the different potential
    solutions. And, Mike has----
        The Chairman. All right.
        Ms. Claybrook. Mr. Chairman, could I make one comment?
        The Chairman. Of course.
        Ms. Claybrook. You've been very eloquent on your discussion
    of safety. And I don't want this hearing to close without
    saying that the major advances in motor vehicle safety
    standards that have occurred in the last 20 years have been as
    a result of legislation coming out of this committee. Starting
    with the ISTEA bill, in 1991; the airbag legislation, in 1998;
    the TREAD Act of 2000; and the 2005 legislation on rollover;
    plus the Gulbransen law for child safety--NHTSA has been pushed
    hard by this committee to issue those standards. And, but for
    that work, I don't think that those would have happened, at
    least certainly not as quickly.
        And there are many more things that the agency can do that
    are not in this legislation, but this legislation is really
    important. And I hope that the recommendations that Mr. Ditlow
    and I have made, in addition to the ones that the industry have
    made, will certainly be given serious consideration, because
    there are some important improvements that could be made.
        One of the issues of accountability that is in the House
    bill, but not in the Senate bill, would allow a petitioner to
    the agency to seek judicial review if their petition were
    turned down. And one of the things that happened with Toyota
    was that five or six petitions were filed with the agency,
    excellent petitions. They were turned down, and there was no
    recourse. So, those are the kind of accountability issues.
        But, this committee has been terrific on what it's done.
    And thank you so much.
        The Chairman. Thank you very much.
        Senator Pryor, do you want to offer a prayer of some sort?
        [Laughter.]
        Senator Pryor. Benediction.
        The Chairman. Actually, I'm really happy, because why I was
    late in getting here in the first place is because we failed to
    invoke cloture on, doing more to have Wall Street be more
    sensitive to Main Street. We're missing a Senator, and we think
    that we can get it, when we do it tomorrow.
        But, one of the things that I really feel good about--there
    are three people on this committee staff who worked for a very
    long time trying to save the Federal Trade Commission, which,
    once again, is one of those groups that nobody's ever really
    heard of. But, the original underlying bill, sort of, sets up
    in the Federal Reserve, that consumer safety unit. And I was
    just trying to figure out how they would do that, and time
    limits and things of that sort became very interesting to me on
    that. And I wasn't satisfied. And the FTC has been doing this
    for 100 years, and doing it very well, and we work very well
    with them. And so, that, hopefully, will be in the bill. And
    that's one of those very, very important things, with the work
    that we do, and particularly the work that they do. It can make
    a big difference.
        So, I think we're all headed in the same direction. And
    there's nothing wrong with a little grumbling and a little
    griping----
        [Laughter.]
        The Chairman.--from any or all parties. And we have to find
    a way to do this, and to do it fairly, and to do it strongly.
        I guess I adjourn the hearing, right? Senator Pryor?
        The hearing is adjourned.
        And thank you very much. And, again, I apologize.
        [Whereupon, at 6:23 p.m., the hearing was adjourned.]
                                A P P E N D I X

      Prepared Statement of Hon. Kay Bailey Hutchison, U.S. Senator from
                                     Texas
        Thank you, Mr. Chairman, and thank you for providing this
    opportunity to hear testimony about S. 3302, the Motor Vehicle Safety
    Act of 2010, which you introduced earlier this month.
        Toyota's recall of more than six million vehicles to address
    problems with unintended acceleration in a number of different Toyota
    models has renewed this committee's attention and commitment to
    improving vehicle safety. In early March, the Committee held an all day
    hearing on the many issues surrounding the recalls, including the
    multiple investigations closed by the National Highway Traffic Safety
    Administration (NHTSA) without resolving concerns about unintended
    acceleration, and whether the problem could have been identified and
    corrected earlier.
        The hearing highlighted failures on the part of both Toyota and
    NHTSA, and suggested that additional action may be needed by Congress
    to prevent this type of situation--which has been linked to more than
    three dozen fatalities on our Nation's highways--from recurring.
        Since the hearing, the Department of Transportation (DOT) has
    intensified its investigations into unintended acceleration and vehicle
    electrical systems, and for the first time levied the maximum civil
    penalty allowed by law, $16.4 million, against Toyota for waiting too
    long to notify DOT of its accelerator pedal problems.
        This committee has placed a strong emphasis on both consumer
    protection and transportation safety. I applaud the Chairman for taking
    the initiative to introduce legislation intended to address many issues
    identified during our oversight hearing and subsequent fact gathering.
    I do have some initial concerns with certain provisions of the bill,
    but I hope today will serve as a first step toward reaching a consensus
    on how we can work together to clarify and improve the legislation in
    order to allow it to move forward with strong bipartisan support.
        Let me be clear: I support sound vehicle safety legislation. In
    fact, I have been working with Senator Brown and members of this
    committee to advance comprehensive motorcoach safety legislation, which
    was reported out of this committee last December. That legislation
    includes several vehicle safety requirements, including safety belts
    and stronger roofs, which I hope will pass the Senate and become law
    during this session of Congress.
        One of my concerns is the short time frames and compressed schedule
    for developing and implementing rules. We must ensure that we allow
    time for analysis and comment to avoid unintended consequences.
        It is also important that new standards be fully researched. As I
    mentioned, DOT is actively pursuing its research into vehicle
    electrical systems. It would make sense to use the results of those
    studies to shape any new vehicle electronics system standards so that
    they have a strong foundation in science.
        I believe we can pass legislation that will improve safety without
    unintended consequences. I know the Chairman shares my view, and I look
    forward to working with him on this important issue.
        I thank all of the witnesses for appearing today and look forward
    to a constructive conversation.
                                     ______

       Prepared statement of Hon. Tom Udall, U.S. Senator from New Mexico
        Senator Rockefeller, thank you again for your leadership in
    protecting consumers and for your legislation to improve vehicle safety
    for all Americans.
        Motor vehicle safety is critical and your bill, Mr. Chairman,
    addresses a number of issues and shortcomings highlighted by recent
    vehicle recalls. I am pleased to be a co-sponsor of this important
    legislation.
        I am particularly pleased that your bill includes a requirement for
    event data recorders in all vehicles under 10,000 pounds. Event data
    recorders provide a report of a vehicle's operating statistics, such as
    the throttle position and speed of the vehicles, during the last
    seconds before and immediately after a crash.
        They serve a similar function as the ``black boxes'' that are in
    airplanes, by documenting critical information leading up to an
    incident. Unlike ``black boxes,'' however, an EDR does not record the
    voices of the vehicle occupants. It simply preserves the vehicles
    internal operating data.
        EDRs are an important tool for crash investigators to determine the
    cause of crashes and whether those crashes are a result of vehicle
    malfunctions.
        In 2006, the National Highway Traffic Safety Administration (NHTSA)
    created a framework for the type of information to be recorded by event
    data recorders in light duty vehicles. But it stopped short of
    requiring the recorders. If a vehicle manufacturer installs an event
    data recorder in a car, it must comply with the NHTSA requirements. Yet
    there is no requirement that the manufacturer install the recorder in
    the first place.
        NHTSA's 2006 rule further requires the manufacturer to ensure that
    a tool to read the recorder is commercially available. Unfortunately
    today, while there are many such tools commercially available, there is
    no one universal tool. This creates a challenge for investigators who
    must carry a suitcase of readers with them on investigations. This is
    an unnecessary burden that should be addressed.
        Earlier this year, I introduced the VEHICLE Safety Improvements Act
    of 2010 that requires all vehicles manufactured for sale in the United
    States to be equipped with an EDR and that a universal tool be
    developed to read the EDR in all vehicles regardless of make or model.
    I am pleased to see that the Motor Vehicle Safety Act includes these
    provisions for passenger cars.
        Although EDRs will not prevent crashes, the data they provide after
    a crash will help to identify the cause of the crash and, in the case
    of a vehicle malfunction, help to identify solutions to improve vehicle
    performance.
        While EDRs can only diagnose and help prevent future crashes, NHTSA
    and leading automakers are developing vehicle safety technologies to
    prevent crashes in the first place. Their Driver Alcohol Detection
    System for Safety (DADSS) program is often described as a ``Manhattan
    Project'' to end drunk driving within our lifetime.
        Senator Corker and I introduced the S. 3039, the ROADS SAFE Act, to
    authorize and increase funding for this exciting research and
    development effort. I believe our bipartisan legislation falls within
    the scope of the Committee's current work to improve motor vehicle
    safety.
        Tragic drunk driving crashes often prompt communities to do more to
    prevent drunk driving. This was the case in my home state of New Mexico
    back in 1992, when a drunk driver killed a mother and her three girls
    on Christmas Eve. He was speeding 90 miles an hour, going the wrong way
    down the highway. This crash helped change attitudes in my state--but
    it should not take a tragedy for us to do more to prevent drunk
    driving.
        In 2008, drunk driving killed 11,773 Americans, including 143
    people in New Mexico. That is an average of 32 people killed every day
    by drunk driving. This unacceptable death toll is all the more shocking
    when you consider that each one of those deaths was preventable.
        The United States has already made significant progress. Compared
    to twenty years ago, our roads are much safer today. Yet even as the
    overall number of people killed on our roadways has declined, drunk
    driving still accounts for one third of all traffic fatalities, as
    shown in the chart below based on data from NHTSA's Fatality Analysis
    Reporting System:

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        It is even more worrisome that a drunk driver has just a two
    percent chance of being caught. In fact, one study found that a first-
    time drunk driving offender has, on average, driven drunk 87 times
    before being arrested. This is unacceptable. Something must be done to
    prevent these drivers from getting on the road in the first place. The
    good news is that there are potential technologies out there that could
    do just that.
        New safety technology has already transformed the automobile and
    saved countless lives. For example, air bags and anti-lock brakes are
    now standard features in many vehicles. These safety devices are built
    into the car and are unobtrusive to the driver. Such technologies are
    an important reason we have fewer traffic fatalities today.
        Now imagine a future with vehicles that could detect whether a
    driver is drunk when he or she gets behind the wheel, before he or she
    even starts their car. There would be no drunk driving crashes if it
    were impossible for impaired drivers to drive. If such technology were
    widely deployed in cars, an estimated 8,000 lives could be saved every
    year.
        I realize that many might think this is a farfetched idea. Yet
    consider that vehicles today can already give driving directions thanks
    to GPS satellite navigation devices. Some cars can even parallel park
    themselves.
        New Mexico and other states require convicted drunk drivers to use
    an ignition interlock; a breathalyzer device they blow into before
    their vehicle's engine will start. The success of ignition interlocks
    for preventing repeat drunk driving offenses suggests that a better
    technology could be used to prevent all drunk driving.
        In 2006, Mothers Against Drunk Driving convened an International
    Technology Symposium in Albuquerque. The goal of the meeting was to
    review efforts to develop advanced ignition interlocks technology. In
    2008, NHTSA partnered with leading automakers to explore the
    feasibility of in-vehicle technologies to prevent drunk driving. The
    recent progress of this cooperative effort fuels optimism that such
    technology could be deployed within 5 to 10 years.
        Clearly, such advanced technologies must win widespread public
    acceptance in order to be effective. They must be moderately priced,
    absolutely reliable, and unobtrusive to sober drivers. They should be
    set at a level that would not prevent a driver whose blood alcohol
    content (BAC) is less than the legal limit--which state laws set at .08
    BAC for most drivers--from operating a vehicle. The aim is to stop
    drunk driving--not discourage responsible social drinking. A recent
    Insurance Institute for Highway Safety poll found that 64 percent of
    Americans believe that advanced alcohol detection technology that is
    reliable and prevents an impaired driver from operating a vehicle is a
    good idea.
        The ROADS SAFE Act would authorize $12 million in annual funding
    for 5 years for the DADSS program. DADSS is a public-private
    partnership between NHTSA and the Automotive Coalition for Traffic
    Safety. The goal is to explore the feasibility, potential benefits, and
    public policy challenges associated with using in-vehicle technology to
    prevent drunk driving.
        This increased Federal funding to combat drunk driving is a smart
    investment in public safety. Drunk driving has direct and indirect
    economic costs in terms of damaged property, medical bills, and lost
    productivity. In economic terms, drunk driving costs $129 billion
    dollars per year. Of course, such monetary costs cannot be compared to
    the value of saving 8,000 lives every year.
        The ROADS SAFE Act is supported by a wide range of organizations
    representing automakers and advocates for the prevention of drunk
    driving, including:

            Advocates for Highway and Auto Safety;

            Alliance of Automobile Manufacturers;

            American Academy of Pediatrics;

            The Century Council;

            Distilled Spirits Council;

            General Motors;

            Governors Highway Safety Association;

            Mothers Against Drunk Driving;

            National Safety Council;

            Nationwide Insurance; and

            Safe Kids USA.

        Chairman Rockefeller, I am particularly pleased that a number of my
    colleagues from this committee are co-sponsors of the ROADS SAFE Act.
    Given the broad backing and bipartisan support for this bill, I am
    hopeful that the ROADS SAFE Act will become an important part of the
    Committee's overall effort to improve motor vehicle safety.
        Thank you.
                                     ______

       Prepared Statement of the National Automobile Dealers Association
        Mr. Chairman, the National Automobile Dealers Association (NADA)
    represents approximately 17,000 franchised automobile and truck dealers
    who sell new and used motor vehicles of all makes and models and who
    engage in service, repair, and parts sales. Together they employ
    approximately 1,000,000 people nationwide, yet most are small
    businesses as defined by the Small Business Administration. NADA
    appreciates the opportunity to submit testimony to the Senate Commerce,
    Science and Transportation Committee regarding S. 3302, the Motor
    Vehicle Safety Act of 2010.
    A. Unintended Acceleration
        NADA supports a performance-based mandate designed to enable motor
    vehicle operators to stop their vehicles under full throttle
    conditions. NADA suggests that the Committee consider a requirement
    that NHTSA study possible reduction strategies for ``unintended
    acceleration,'' including motorist education.
    B. Event Data Recorders (EDR)
        NADA supports a mandatory EDR requirement for new passenger
    vehicles based on the requirements set out in 49 CFR Part 563. It is
    important that such systems be fully accessible to dealership service
    facilities in order to facilitate vehicle maintenance and repair.
    Furthermore, NADA would support language indicating that state laws
    governing EDR data privacy are not preempted by Federal law.
    C. Imminent Hazard Authority
        Dating back to the mid-1960s, NHTSA in conjunction with vehicle
    manufacturers have utilized the existing defect and noncompliance
    identification and notification process to adequately address
    ``hazards'' arising out of specific motor vehicle defects or
    noncompliances, however ``imminent.'' Where necessary, NHTSA and
    vehicle manufacturers have issued ``stop sales'' orders for new
    vehicles and, in extreme situations, ``stop operation'' orders for new
    and used vehicles. New vehicle dealers have played an important role
    with respect to both purchaser notifications and defect/noncompliance
    remediation.
        In addition to the generally redundant nature of this new
    authority, NADA is greatly concerned that it could impose unwarranted
    constraints on franchised new vehicle dealers that would not likewise
    be imposed on independent used vehicle only dealers or on private
    sellers.
    D. Civil Penalty Authority
        NADA has concerns regarding raising the existing civil penalty
    authority by five times and removing the maximum liability cap. NADA
    supports raising, but not eliminating the liability cap. Without a
    liability cap, the Secretary of Transportation could potentially fine
    an automobile manufacturer out of business, or out of the American
    market. NADA believes that any increased civil penalty authority should
    be tailored to apply to violations of particular immediate concern, and
    not to each and every potential violation of the statute.
    E. Transparency and Accountability
        NADA would support a more user-friendly vehicle safety database
    searchable by vehicle identification number (VIN), but only if it could
    be managed to ensure accurate, real-time data. NHTSA's existing
    SaferCar.gov website currently serves as an excellent source of vehicle
    safety information including data on defect and noncompliance recalls.
    With respect to a recall sticker mandate, NADA suggests that such
    sticker be unobtrusive enough to discourage its removal by the motoring
    public.
        NADA does not object to NHTSA making safety-related communications
    available on its public, one-stop-shop website (i.e., safercar.gov),
    but fails to see any need for a redundant mandate for individual OEM
    websites. Assuming that it may be appropriate for safety-related
    software upgrades and modifications to be made publicly available, non-
    safety-related information is outside the bounds of this legislation
    and should not be required.
        NADA finds the whistleblower protection language to be subject to
    potential abuse by employees who are otherwise involved in or
    potentially involved with justifiable, disciplinary actions unrelated
    to any whistleblower retaliation. NADA requests to work with committee
    staff to find language that achieves the Committee's goals and
    minimizes potential abuses.
        NADA supports the anti-revolving door language in Sec. 308 of the
    bill, provided it is expanded to include not only automobile
    manufacturers, but also auto-related trade associations, non-profits,
    think tanks, public interest organizations related to auto safety and
    fuel economy, and plaintiffs' product liability law firms. Moreover,
    EPA should also be covered under this section, as EPA now regulates
    fuel economy along with NHTSA, and fuel economy has an impact on
    highway safety.
    F. Conclusion
        The Committee has a proud history of improving highway safety. The
    reason funding for drunk driving has tripled since 2005, and the reason
    safety belt use is at a record level, is due in large measure to the
    bipartisan work of this committee. Senators who serve on this committee
    are aware that what counts ultimately is lived saved and injuries
    prevented on our Nation's roads. Accordingly, NADA recommends that the
    Committee require NHTSA conduct an analysis on this legislation to
    ascertain how many lives this bill will save and how many injuries it
    will prevent. If NHTSA's analysis finds that the lives saved and
    injuries prevented are not significant, the Committee may want to
    consider alternatives that better reduce fatalities on our Nation's
    roads in a meaningful way prior to a committee vote.
        Mr. Chairman, thank you for the opportunity to share NADA's views
    on S. 3302.
                                     ______

                                             Auto Safety Design
                                              Potomac, MD, May 18, 2010
    To: U.S. Senate Commerce Committee
    To: Committee on Energy and Commerce, U.S. House of Representatives
    Recommendations for the Motor Vehicle Safety Act of 2010
        I am strongly supportive of the Motor Vehicle Safety Act of 2010.
    From my perspective of 40-plus years in the trenches of auto safety, I
    have long felt that NHTSA needed to proceed more vigorously in its
    defect investigations. The public needs to be regularly informed of
    vehicle safety defect issues that may involve their own vehicles, and
    be invited to submit their comments about the issues they are
    experiencing. And the automakers need to be fully forthright with NHTSA
    and the public, rather than too-often hiding behind a policy of conceal
    and deny and delay.
        Recommendation 1: Documents Should Not Be Concealed--Too often,
    what automakers were telling NHTSA was not consistent with what the
    automaker's internal documents were showing . . . yet those documents
    were often withheld from public view and from NHTSA and Congress
    because of so-called ``protective orders'' that prohibited those
    documents from being used outside of the particular product-liability
    case in which they were produced (often after lengthy legal battles).
        Therefore, there should be a provision in the proposed law that
    allows such safety-related documents to be given to or obtained by
    Congress, NHTSA, and the public if those ``protective order'' documents
    concern vehicle safety matters. This would be analogous to a Freedom of
    Information Act request . . . and, importantly, where the public safety
    merits outweigh the corporate secrecy rationale.
        Recommendation 2: Monthly Videos about Defects--NHTSA should
    release a monthly video, with a companion written overview, that
    describes those defect issues and investigations that are newly
    underway, or major ones that are continuing. The videos should be
    provided, via satellite link and also by sending DVDs, to the TV news
    stations across the Nation. If the video gives a 60-to-90 seconds
    update on auto safety defects, then the viewing public will be
    regularly advised about vehicle safety issues that may affect their own
    vehicles (and which may be linked to adverse incidents or actual
    accidents).

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        The feedback from the public would be highly beneficial to NHTSA in
    further pointing out the extent of any defect issue being investigated,
    and would help point to new defect issues as well. (NOTE: I personally
    know how important and useful this would be. I used to produce and
    present my own Auto Safety Reports twice-a-week on KABC TV News in Los
    Angeles, for 7 years. When I periodically showed the many latest NHTSA
    investigations, the public response was amazing and supportive.)
        Recommendation 3: Get Rid of Private Contractors--Too many times,
    when I've needed copies of NHTSA's crash tests and other materials, all
    developed with public funds, the private contractors charged exorbitant
    fees (and the copy quality was often poor). In the old days, NHTSA
    employees made the copies, or you could even make them yourself. It was
    quicker and more efficient and much less costly. Some of these crash
    test films and videos, and the related documents, can now be downloaded
    (often with some difficulty) from the Internet . . . but the system
    must be made much more comprehensive and also much easier to use.
        Recommendation 4: Require NHTSA to Undertake Ruling for Sideguards
    on Trailers--Sideguards on trailers would prevent the deadly ``truck
    underride'' hazard in which passenger cars crash deeply beneath the
    tall sides of long trailers. About 225 Americans die each year inside
    underride accidents. European trailers have sideguards . . . but not
    here in America! NHTSA and the U.S. trailer manufacturers have both
    been asleep on this urgent need for 40 years! Finally, please demand
    that NHTSA start rulemaking to require sideguards on all U.S. trailers.
    Even if NHTSA starts rulemaking right away, it will still take many
    years before all of America's 4 million trailers are equipped with this
    critical safety feature.
        Please refer to the following two-page attachment for further
    information about the need for sideguards, including suggested language
    for a Congressional mandate.
        Thank you for introducing the Motor Vehicle Safety Act of 2010. I
    am available to be of further service on behalf of this legislation and
    for other vehicle safety matters as well, so please don't hesitate to
    contact me.
                Sincerely,
                                                   Byron Bloch,
                                                    Auto Safety Expert.
                                   Attachment
    An Urgent Plea to Congress . . . . . .

    Truck Side Underride Accidents are Needlessly Killing Americans Because
                          Our Trailers Lack Sideguards

       This Hazard can be Easily Solved with a Congressional Mandate to
                               Require Sideguards

                  By Byron Bloch, Auto Safety Expert--May 2010

        Roya Sadigh, age 26, was tragically killed on Thanksgiving eve 2004
    when her car, in which she was the seatbelted passenger, skidded on a
    snowy road. The BMW crashed into and ``underrode'' beneath the tall
    open side of a large trailer . . . and its large rear wheels crashed
    into her ``survival space.'' With a simple sideguard, similar to those
    on European trailers for many years, or like the drop-center feature of
    U.S. moving vans, her car would have been safely deflected away from
    the trailer, underride would have been prevented, and she would have
    survived. Every year across our nation, hundreds of Americans are
    killed or paralyzed in these side underride tragedies. It is overdue
    time to stop this senseless killing. It is time for our government and
    the industry to finally take action.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        There is a compelling public safety need for all American trailers
    to be designed and equipped with side guards to prevent cars, SUVs,
    pickups, and vans from crashing deeply beneath the trailer's tall open
    sides. Following a U.S. Congressional Hearing in 1991, at which Mr.
    Bloch testified, NHTSA was directed to engage in rulemaking for a more
    effective REAR guard, which they issued in 1995. But there is no
    equivalent mandate for SIDE underride guards. The U.S. trailer
    manufacturers and trucking companies have continuously refused to
    voluntarily equip their vehicles with this critical safety feature. And
    NHTSA, the National Highway Traffic Safety Administration, continues to
    ignore this issue as well. Ironically, full-panel sideguards of
    aerodynamic design have been demonstrated to increase the tractor-
    trailer's fuel efficiency, and are light-weight and economical. There
    are thus many advantages even beyond safety and crashworthiness.
        It is now up to the U.S. Congress . . . the members of both the
    House and Senate . . . to demand that NHTSA and the trailer
    manufacturers and trucking companies finally act in a constructive
    safety manner. Here is our suggestion for what Congress should enact .
    . .

            Congress hereby directs the National Highway Traffic Safety
            Administration (NHTSA) to engage in immediate rulemaking to
            require that all new trailers manufactured as of November 24,
            2011, be designed with or equipped with side guards for the
            purpose of preventing passenger vehicles (cars, SUVs, pickups,
            vans) from crashing beneath the sides of the trailer in what is
            known as an ``underride'' accident.

            Such underride prevention guards or measures can be designed as
            an integrated feature of the trailer from its inception, or it
            can be a separate structure that is securely attached to the
            trailer. Such side underride prevention guards must be of
            sufficient strength and design to effectively prevent a
            passenger vehicle from penetrating or underriding beneath the
            trailer in validation or compliance crash testing at least at
            40 miles per hour (preferably at 50 mph), at a perpendicular or
            90-degree angle to the side of the trailer, with the 4,000-lbs.
            moving barrier and selected passenger vehicles as the test
            device impacting into the side of the stationary target
            trailer. There shall be no intrusion into the ``survival
            space'' of the passenger vehicle.

            Further, Congress hereby directs the Federal Motor Carrier
            Safety Administration (FMCSA) which states that it is ``focused
            on reducing crashes, injuries, and fatalities involving large
            trucks and buses'' to engage in immediate rulemaking to require
            that all existing trailers, and any from other nations that
            will be allowed to legally operate on American highways, must
            be equipped with side underride prevention designs or guards
            that will effectively prevent passenger vehicles from
            underriding beneath the sides of those trailers. Performance
            requirements for compliance must be the same as those issued by
            NHTSA that apply to new trailers, and will become effective as
            of November 24, 2011.

        If Congress fails to act constructively in a prompt manner, then I
    ask that President Barack Obama and Vice President Joe Biden issue an
    Executive Order on behalf of accomplishing what Congress will have
    failed to do. Sideguards are critically needed to prevent the
    continuing side underride epidemic.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                                   Byron Bloch,
                                         Truck Underride Safety Expert,
                                                  www.AutoSafetyExpert.com.
        Byron Bloch respectfully requests the opportunity to testify in-
    person at any Congressional Hearing on the subject of Truck Underride
    Hazards and the Need for Side Underride Guards on all trailers
    operating on American roads and highways. Thank you.
                                     ______

                                                       BIOLogue
                                          Chapel Hill, NC, May 20, 2010
    Hon. Tom Udall,
    U.S. Senate,
    Washington, DC.

    Hon. Bob Corker,
    U.S. Senate,
    Washington, DC.

    Dear Senators Udall and Corker:

        I compliment you on your bill S. 3039, ``To prevent drunk driving
    injuries and fatalities . . .'' and write in strong support of it.
        As the former Administrator of the National Highway Traffic Safety
    Administration (2001-2005), I give my wholehearted endorsement to a
    new, technologically-based approach to solving the problem of impaired
    driving in the U.S. While I was Administrator, I advocated for funding
    of this research using Intelligent Transportation System funds, but a
    higher priority was given to infrastructure-related research, as it
    continues to be today. This experience dictates the requirement that
    this additional research funding be directed specifically to NHTSA if
    innovative technological approaches are ever to be brought to bear on
    impaired driving.
        As you are aware, NHTSA has been contributing from its limited
    research budget to a cooperative effort with the private sector known
    as DADSS--Driver Alcohol Detection Systems for Safety. While the effort
    is making progress, a stronger investment from the public sector is
    needed. Any cost/benefit analysis would support greater investment by
    the public, recognizing that direct cost to the U.S. taxpayers from
    impaired driving is over $50 billion per year. Whether the $12 million
    called for in S. 3039 is the right number or not needs to be fleshed
    out in detail prior to the appropriations process. I would ask that you
    stand firm on authorizing at least this amount as negotiations play
    out.
        Prior to joining NHTSA, I practiced and taught emergency medicine
    and trauma care for 17 years. Each alcohol-related crash is a tragedy,
    compounded by the fact that each one was preventable. I am grateful for
    your forward-thinking and stand ready to assist you with your bill in
    any way I can.
                Sincerely,
                                           Jeffrey W. Runge, MD
                                                             President.
                                     ______

       Prepared Statement of Hon. Susan Molinari, Chairman, The Century
           Council in Support of S. 3039--The ROADS SAFE Act of 2010
        The Century Council was founded in 1991 and is an independent,
    national not-for-profit organization headquartered in Arlington,
    Virginia. Funded by America's leading distillers (Bacardi U.S.A., Inc.;
    Beam Global Spirits and Wine, Inc.; Brown-Forman; Constellation Brands,
    Inc.; DIAGEO; Hood River Distillers, Inc.; Pernod Ricard USA; and
    Sidney Frank Importing Co., Inc.), the Council is dedicated to
    developing and implementing programs that fight drunk driving and
    underage drinking. To date, we have hosted more than 2,000 community
    events to launch our programs across the Nation bringing them to
    millions of parents, youth, educators, law enforcement officials and
    traffic safety professionals.
        In 2006, The Century Council committed its support for the
    exploration of advanced technologies to prevent drunk driving. The
    Century Council believes that development of technology to prevent
    drunk driving holds great promise if it is moderately priced,
    absolutely reliable, set at the legal BAC limit of .08 percent blood
    alcohol concentration (BAC), and unobtrusive to the sober driver.
        We are pleased to reaffirm this longstanding position by supporting
    S. 3039, The ROADS SAFE Act of 2010. This legislation would
    significantly increase Federal funding for the ongoing exploration of
    advanced technologies to prevent drunk driving led by the National
    Highway Safety Administration (NHTSA) and the auto industry. If our
    Nation can develop technology to prevent people from driving drunk
    while preserving the rights of drivers below the legal .08 BAC limit,
    it has the capacity to save thousands of lives each year.
        The Century Council is proud of its nearly 20 year commitment to
    fighting drunk driving and our many partnerships with groups like AAA,
    the National Transportation Safety Board, the National Association of
    Drug Court Professionals and the National District Attorneys
    Association, among others. Through these efforts we have worked to
    reduce drunk driving especially among repeat offenders and people who
    drive at high BAC levels of .15 percent or above. For these drivers,
    The Century Council also favors tiered systems that mandate more severe
    penalties, treatment, and aftercare.
        We are proud to support your efforts and look forward to working
    with you.
                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                                  Dave McCurdy
        Question 1. Mr. McCurdy, in your statement, you urge Congress to
    set aside funding for the research and development of vehicle
    technologies to end drunk driving. The Alliance of Automobile
    Manufacturers also endorses the ROADS SAFE Act to support this effort,
    which has the potential to save more than 8,000 lives per year. Could
    you explain to this committee how automakers and NHTSA are working
    together to develop new technologies to prevent and potentially
    eliminate drunk driving?
        Answer. In February 2008, the Automotive Coalition for Traffic
    Safety (ACTS) entered into a 5-year, $10 million \1\ cooperative
    research agreement with NHTSA to explore the feasibility, the potential
    benefits of, and the public policy challenges associated with the more
    widespread use of a range of technologies to prevent drunk driving.
    This effort seeks to develop in-vehicle alcohol detection technologies
    that are less intrusive than ignition interlocks with the hope of
    greater public acceptance for installation in vehicles. Specifically,
    this effort seeks to develop alcohol detection technologies that are
    less intrusive than ignition interlocks with the hope of greater public
    acceptance for installation in vehicles. Specifically, this effort
    seeks to develop alcohol detection technologies that will quickly and
    accurately measure a driver's blood alcohol concentration (BAC) non-
    invasively. These technologies might ultimately be a component of a
    system that could prevent a vehicle from being driven when the device
    registers that the driver's BAC exceeds the legal limit. Such devices
    ultimately must be compatible for mass production at a moderate price,
    meet acceptable reliability levels, and be unobtrusive to the sober
    driver. The program seeks to assess the current state of impairment
    devices, and to support the development and testing of prototypes and
    subsequent hardware that 1 day may be installed in vehicles.
    ---------------------------------------------------------------------------
        \1\ Costs are shared between NHTSA and ACTS on an equal basis.
    Automakers providing funding for this effort to ACTS are: BMW,
    Chrysler, Ford, General Motors, Honda, Jaguar Land Rover, Mazda,
    Mercedes-Benz, Mitsubishi, Nissan, Porsche, Toyota, and Volkswagen.
    ---------------------------------------------------------------------------
        Universal deployment of current technology (breathalyzers) as a
    preventative measure is not a good option because drivers are required
    to provide a breath sample every time they start the vehicle. To be
    acceptable for use among the general public, many of whom do not drink
    or drink and drive, in-vehicle alcohol detection technologies must be
    far less intrusive. Advanced technologies are needed that can rapidly
    and accurately detect a driver's BAC. Such devices should be seamless
    with the driving task, therefore they must be non-intrusive, reliable,
    durable, and require little or no maintenance. The technological
    challenges are substantial, however, the potential benefits to society
    are compelling, with the potential to save more than 8,000 lives
    annually, according to the Insurance Institute for Highway Safety.

        Question 2. What progress in this research and development effort
    do you hope to see in the coming months and years?
        Answer. The Cooperative Research Program being pursued jointly by
    ACTS and NHTSA is divided into two phases. The specific objective of
    Phase I is to develop a proof-of-concept (POC) prototype intended to
    represent a device ultimately capable of rapidly and accurately
    measuring a driver's BAC non-invasively within the time and accuracy
    constraints established by the Program. POC prototypes will be
    available for testing beginning in June/July 2010. The focus of this
    testing will be on evaluating these devices for speed and accuracy
    using standardized procedures capable of measuring to the stringent
    accuracy requirements established. Limited human subjects testing will
    also be conducted at this stage.
        The Phase II effort is intended to result in the practical
    demonstration of one or more alcohol detection subsystems suitable for
    continued development and subsequent integration into a motor vehicle.
    Pending the timely completion of Phase I, Phase II which is scheduled
    to run for 24 months--is expected to begin in January 2011.

        Question 3. Event data recorders provide critical information in
    the event of a crash. This information can serve to determine whether a
    vehicle malfunction was to blame. Currently the law does not require
    manufacturers to install event data recorders. What percent of the
    fleet has an event data recorder?
        Answer. During its EDR rulemaking proceeding, NHTSA estimated that
    64 percent of 2005 model year passenger vehicles (GVWR less than or
    equal to 8,500 pounds) had EDRs. More recently, NHTSA Administrator
    David Strickland testified that approximately 85 percent of new light
    passenger vehicles are equipped with an EDR. It is not known what
    percentage of these EDRs conform with the requirements of NHTSA's
    voluntary EDR rule (49 CFR Part 563) which takes effect September 1,
    2012. It should be noted, however, that several Alliance member
    companies have chosen not to implement EDR technology in their vehicles
    to date. For these manufacturers, a new rule requiring EDR
    implementation will require substantial vehicle electrical and
    electronic modifications to develop EDRs and, consequently, adequate
    leadtime to make such modifications.

        Question 4. Do you have an estimate on how long it will be before
    all vehicles have an event data recorder?
        Answer. If conformance with NHTSA's existing EDR requirements is
    mandated, all new light passenger vehicles (GVWR less than 10,000
    pounds as currently defined by S. 3302) could be equipped with an EDR
    no later than 2016. This would allow those manufacturers that currently
    do not have EDRs sufficient time to redesign and reconfigure their
    vehicles to include EDRs. However, if revised EDR requirements are
    mandated, all or virtually all existing EDRs would need to be
    redesigned. A much longer timeline would be needed if this were the
    case. Full compliance with any newly promulgated requirements would not
    be possible any sooner than 4 to 5 years following issuance of the
    final rule. Rulemaking itself is likely to take at least 3 years.

        Question 5. Could legislation requiring installation of event data
    recorders lead to new vehicle safety advances?
        Answer. Yes. Automakers perform thousands of safety tests on their
    vehicles each year, and the government and groups like IIHS also
    perform crash tests that provide invaluable insights. In addition,
    automakers, NHTSA and other organizations investigate thousands of
    real-world crashes each year in order to improve our understanding of
    the causes and consequences of vehicle crashes. EDRs provide additional
    valuable data in such investigations. EDRs enhance auto safety by
    providing a better understanding of crash events and injuries, as these
    examples demonstrate:

            Regulatory Priorities: Objective data from EDRs help improve
            the quality of NHTSA's data bases (FARS, NASS) that form the
            basis for rulemaking. Often, these data bases include
            subjective information from crash investigators. Real-world
            data can help regulators and automakers better address the top
            safety priorities.

            Safety Trends: A large database of real-world performance can
            help identify safety trends, resulting in an accelerated
            deployment of emerging technologies for crash avoidance. For
            example, this database may identify possible defects for
            investigation or document that new technologies are producing
            dramatic real-world results.

            Medical Treatment: More knowledge on the anatomy of a crash can
            help trauma centers treat patients better and quicker. Not all
            injuries are visible to the eye, but information on crash
            forces can lead doctors to look for internal injuries
            associated with certain types of crashes.

            Emergency Services: When coupled with Automatic Crash
            Notification systems, EDR data can help prioritize emergency
            response. Getting paramedics to crashes 9 minutes sooner can
            save an estimated 1,000 to 3,000 lives per year. EDR data can
            also guide emergency dispatchers to send the most appropriate
            personnel and equipment to a crash site.

            Improved Vehicle Safety Performance: Many variables are
            involved in a crash, and special crash investigators can spend
            weeks gathering information and assessing what occurred. This
            information is useful to auto safety engineers. EDRs can help
            show how an advanced airbag system responded to the weight of
            the person in the seat and whether an airbag inflated
            appropriately for the severity and for the angle of impact of
            the crash.

            Roadway Safety: EDR data has the potential to help identify
            roadway circumstances requiring attention. For example, if a
            series of crashes in a specified location demonstrate certain
            braking patterns, a surface or visual impediment may be
            identified by crash investigators.

        Question 6. In addition to requiring event data recorders in light
    duty vehicles, could requiring event data recorders in medium and heavy
    duty vehicles enhance motor vehicle safety?
        Answer. The Alliance only represents manufacturers of light duty
    vehicles. Consequently, it has no opinion regarding whether event data
    recorders should be installed in medium and heavy duty vehicles. A
    subset of Alliance membership manufactures medium and heavy duty
    vehicles. These are: Ford, General Motors, Mercedes-Benz, and Toyota.
                                     ______

         Prepared Statement of Laura Dean-Mooney, National President,
                      Mothers Against Drunk Driving (MADD)
        Thank you Chairman Rockefeller, Ranking Member Hutchison and
    members of the Committee for your highway safety leadership. Mothers
    Against Drunk Driving (MADD) commends your efforts to save lives and
    prevent injuries on our Nation's roads.
        This year marks the 30th anniversary of MADD. Since our founding in
    1980, drunk driving fatalities have dropped by over 40 percent. We are
    proud of our successes, but as we reflect on 30 years of safety
    advocacy we must recommit to the elimination of drunk driving. There is
    much left to do, as far too many continue to drive impaired. Drunk
    driving is no longer socially acceptable, yet it is still tolerated.
        The public is now well aware of the human consequences of drinking
    and driving because MADD has shared stories like mine with the Nation.
    Yet in 2008 there were 11,733 fatalities involving a driver or
    motorcycle operator with at least a .08 BAC, and nearly half a million
    injuries due to alcohol-related traffic crashes. Alcohol involved
    crashes represented 32 percent of all highway fatalities, and most
    importantly represent real-life tragedies.
        I became involved with MADD after my husband, Mike Dean, was killed
    in Texas by a drunk driver, leaving me to raise our 8-month-old
    daughter alone. On November 21, 1991, Mike left a business meeting in
    Oklahoma and drove to the Dallas-Fort Worth area to visit his family.
        At 7:15 p.m., a drunk driver going the wrong way on a Texas highway
    met Mike's car head on, killing him instantly and simultaneously making
    me both a grieving widow and a single mom. The offender, who died at
    the crash scene, had a BAC of .34 and was driving with an almost empty
    bottle of whiskey in his car.
        For more than 17 years, I have worked as a volunteer to try and
    advance MADD's mission at the local, state, and national levels.
        We have made great progress in the fight against drunk driving--
    much of which occurred in the 1980s and through the mid-1990s--thanks
    to strong laws and tireless leadership from law enforcement.
        For the past 15 years, we have been able to maintain this progress,
    but until the current recession, few major gains have been made in
    actually reducing the overall number of impaired driving fatalities.
    Thanks to Congressional action in 2000, the national .08 BAC standard
    has been instrumental in holding progress in place as vehicle miles
    travelled steadily increased.
        Legislative achievements and law enforcement leadership have saved
    tens of thousands of lives, but America continues to practice a ``catch
    and release'' program: law enforcement does their very best to catch
    drunk drivers, and we as a society through our legislatures and courts,
    too often let them go with few consequences. Studies show that up to 75
    percent of drunk drivers continue to drive even when their licenses
    have been revoked.
    Campaign to Eliminate Drunk Driving
        Fortunately, MADD, with support from Members of Congress, NHTSA and
    others in the highway safety community, has a plan. Following only
    those solutions proven to work, MADD announced the Campaign to
    Eliminate Drunk Driving on November 20, 2006.
        The Campaign consists of four parts, all singularly focused on
    putting a long-overdue end to drunk driving tragedies on our roads:

       Intensive high-visibility law enforcement, including twice-
            yearly impaired driving crackdowns and frequent enforcement
            efforts that include sobriety checkpoints and saturation
            patrols in all 50 states.

       Full implementation of current alcohol ignition interlock
            technologies, including interlock devices for all convicted
            drunk drivers. A key part of this effort will be working with
            judges, prosecutors and state driver's license officials to
            stop the revolving door of repeat offenders.

       Exploration of advanced vehicle technologies through the
            establishment of a cooperative research agreement and a Blue
            Ribbon panel of international safety experts that is assessing
            the feasibility of a range of technologies that would prevent
            drunk driving. Ultimately, any technologies put forth for the
            public must be voluntary, moderately priced, absolutely
            reliable, unobtrusive to the sober driver, and set at the
            illegal limit of .08 BAC.

       Mobilization of grassroots support, led by MADD and its more
            than 400 affiliates, and our partners to make the elimination
            of drunk driving a reality. MADD is uniting drunk driving
            victims, families, community leaders, and policymakers in the
            fight to eliminate drunk driving.
    Advanced Alcohol Detection Technology
        The Motor Vehicle Safety Act of 2010 presents an important
    opportunity to provide the National Highway Traffic Safety
    Administration (NHTSA) with additional tools and resources to carry out
    its lifesaving work. Vehicle safety features, while certainly
    recognized by all as an essential part of the safety matrix, have not
    been MADD's area of focus until recent years. After three decades of
    concentrating on changing human behavior--the biggest contributing
    factor to traffic crashes, death and injury--our organization is also
    focusing its attention on the use of in-vehicle technology to stop
    impaired driving.
        The simple reason that drunk drivers continue to drive drunk is
    because they can. Vehicle technology is now being used to park cars,
    thwart theft, monitor tire pressure, alert the driver to lane
    departure, maintain vehicle stability, and help motorists with various
    other issues. Mobile technology solutions now exist to prevent texting
    while driving. As we look to the cars of the future, it is exciting to
    think about a time when motorists will simply not be able to misuse
    their vehicles--illegally--by driving drunk.
        Such advanced vehicle technology to prevent drunk driving could one
    day save more lives than any other highway safety countermeasure in
    history--8,000-9,000 lives each year, according to the Insurance
    Institute for Highway Safety (IIHS).
        The Driver Alcohol Detection System for Safety, or DADSS, is the
    result of a cooperative research agreement currently underway between
    the Automotive Coalition for Traffic Safety (ACTS), comprised of many
    of the world's leading auto manufacturers, and NHTSA. The agreement is
    a public-private partnership with both entities providing $1 million
    per year for 5 years.
        The purpose of this agreement is to research, develop, and
    demonstrate noninvasive in-vehicle alcohol detection technologies that
    can very quickly and accurately measure a driver's BAC. These advanced
    technologies offer the potential for a system that could prevent the
    vehicle from being driven when the driver's BAC exceeds the illegal
    limit.
        Any technology which is developed must be absolutely accurate,
    nearly instantaneous, and not hassle the sober driver. If the
    technology is successful, a sober driver would notice no difference in
    his or her driving experience. Any technology developed must be set to
    detect blood alcohol concentrations of .08 or above.
        In the first phase of technology development, three companies have
    been selected through a request for proposal process and testing will
    be overseen by Harvard Medical School. While we are hopeful that DADSS
    will be successful in identifying a technology which will one day
    eliminate drunk driving, we need this Committee's help to make this
    goal a reality.
        Senator Tom Udall and Senator Bob Corker have introduced bipartisan
    legislation, the Research of Alcohol Detection Systems for Stopping
    Alcohol-related Fatalities Everywhere Act, or ROADS SAFE, which would
    authorize an additional $12 million per year for DADSS. Currently the
    legislation has seven other co-sponsors. In the House, Representatives
    Ehlers and Sarbanes have introduced similar legislation.
        Additional funding would provide a much needed financial boost to
    the program and ensure a greater Federal commitment toward eliminating
    drunk driving.
        A recent study shows that the public is ready for such a device.
    The Insurance Institute for Highway Safety research shows that two-
    thirds of those surveyed consider the use of advanced technology to
    keep drunk drivers off the road to be a ``good'' or ``very good'' idea.
    A similar survey by the AAA Foundation for Traffic Safety found even
    stronger public support.
        MADD urges the Committee to include the ROADS SAFE Act as part of
    the Motor Vehicle Safety Act of 2010. ROADS SAFE provides $12 million a
    year to address a problem that costs the United States $130 billion
    each year. This is a good return on taxpayer investment.
    Conclusion
        Looking into the future, we have great hope that one day advanced
    alcohol detection technology will be available, preventing drunk
    drivers from operating their cars.
        With this committee's leadership, we are poised to discover the
    cure for one of America's deadliest public health problems.
        Thank you again, Mister Chairman and Ranking Member Hutchison, for
    your leadership on this issue.
                                     ______

                                  Attachments
               Driver Alcohol Detection System for Safety (DADSS)
        DADSS is an ambitious undertaking, addressing a broad range of
    issues while developing a technology to prevent drunk drivers from
    operating vehicles without disrupting the normal driving that is such
    an integral part of our everyday lives.
        The early phase of the project has focused on identifying
    technologies that sense a driver's blood alcohol content level in an
    unobtrusive way, while also being extremely reliable, durable,
    repeatable, maintenance-free--and relatively inexpensive.
        In the first phase of technology development, three companies are
    developing prototypes to be delivered to project experts in late spring
    or early summer. The next step will be testing at a lab associated with
    the Harvard Medical School.
        Why is this important? It is estimated that nearly 9,000 lives
    could be saved by a system that prevents driving by those over the
    generous legal limit for alcohol.
        The key will be public acceptance, and initial surveys are quite
    promising.
        Developing advanced alcohol detection technology through DADSS is
    one of the major elements of Mothers Against Drunk Driving's Campaign
    to Eliminate Drunk Driving (CEDD). DOT is pleased to work with MADD on
    this activity through NHTSA Administrator David Strickland, who serves
    as Honorary Chairman of the CEDD.
        I encourage you to look for future entries reporting on further
    progress with this important initiative, or go to www.dadss.org.
                                     ______

        http://fastlane.dot.gov/2010/05/chuck-hurley-a-pioneer-in-road-
    safety.html#more

              Fast Lane: The Official Blog of the Secretary of
                                                 Transportation
                                                           May 14, 2010

    New technology, diverse partnership working to eliminate drunk driving

        There is exciting news in the ongoing fight to prevent--and maybe
    even eliminate--a major threat to the American family: drunk driving.

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        There has been enormous progress since MADD's founding 30 years
    ago. Together, we have cut drunk driving fatalities nearly in half, but
    we still face the entirely preventable loss of almost 12,000 deaths
    last year. That's nearly \1/3\ of all traffic-related fatalities each
    year--100 percent preventable.
        Advanced technology to prevent drunk drivers from operating
    vehicles holds the real potential of eliminating this threat. For
    nearly 3 years, our National Highway Traffic Safety Administration
    (NHTSA) and leading automakers, working through the Automotive
    Coalition for Traffic Safety, have partnered on an advanced alcohol
    detection research program called DADSS, Driver Alcohol Detection
    System for Safety.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                            Hon. David L. Strickland
        Question 1. Should the Center for Vehicle Electronics, Vehicle
    Software, and Emerging Technologies be staffed exclusively by Federal
    employees or through a combination of Federal employees and
    contractors?
        Answer. NHTSA believes that it should have the flexibility to use a
    combination of Federal staff and contract staff to meet its needs.
    While much of our work would benefit from a more stable Federal work
    force, over time we have often seen the need for specific expertise
    that may solely be available or accessible from a private-sector firm
    or needed by NHTSA for a short-term duration. These factors would favor
    the use of contract support to supplement our Federal staff.

        Question 2. Is there a minimum threshold for the Center in terms of
    staffing levels and budget for it to have significant impact agency
    wide? In other words, would be it useful for the legislation to
    authorize minimum staffing and budget levels?
        Answer. NHTSA agrees that it would be beneficial to strengthen its
    expertise in the area of vehicle electronics and software. Because such
    a Center does not exist currently and because NHTSA believes that the
    findings of the National Aeronautics and Space Administration (NASA)
    and National Academy of Science (NAS) studies should help guide efforts
    and expectations of the Center's operation, NHTSA would prefer the
    flexibility to assess its needs over time and to staff and fund the
    operation at the level most appropriate to obtain the maximum benefits.
    Therefore, it would be preferable to provide NHTSA general
    authorization for the Center without specifying minimum or maximum
    staffing or funding levels.

        Question 3. My expectation is that initially, employees from other
    parts of NHTSA will be reassigned to the Center. Is there a need for
    Congress to ensure that over time the Center adds new in-house
    technical capacity to NHTSA rather than just shuffling around existing
    personnel?
        Answer. Because the Motor Vehicle Safety Act of 2010 has not yet
    become a finalized law, NHTSA did not anticipate the establishment of
    such a Center in its 2011 budget submission. Accordingly, existing
    NHTSA personnel and funds would be insufficient to support the long
    term administration of the Center. If the Center is authorized and
    appropriated funds, NHTSA would not plan to rely only on existing
    personnel.

        Question 4. At the Committee's March second hearing on the ``Toyota
    Recalls and the Government's Response,'' I asked Toyota to read the EDR
    from the 2007 Toyota Tundra involved in a fatal accident taking the
    life of a constituent. The 2007 Toyota Tundra was subject to two of
    NHTSA's recalls regarding unintended acceleration. In April, Toyota
    read out the EDR in the presence of the family's technical expert.
        The technical expert was not satisfied that the read-out tool
    provided complete and consistent information of the EDR. For example
    the EDR recorded the vehicle traveling 75 miles-per-hour at the time of
    the crash and 177 miles-per-hour after the crash.
        I have sent a letter to you requesting that NHTSA read out the EDR
    of that vehicle. Is that something NHTSA can commit to doing?
        Answer. NHTSA has the necessary equipment to read the EDR from the
    2007 Toyota Tundra involved in the crash. To follow up on your request,
    we can take steps to ``image'' the EDR. It is our understanding from
    Toyota that the anomalies in the EDR data readings were caused by
    translation errors with the version of the Toyota software used, but
    that the anomalies have been resolved in the current version of the
    software. Toyota has asserted to NHTSA that when tested with the
    updated software, the EDR did not report anomalous results.

        Question 5. Auto manufacturers are moving to a business model where
    they become systems integrators. At the same time, they are increasing
    the amount of software and electronics content within a vehicle. I
    believe system integration of auto software and control systems
    presents a considerable challenge today. This challenge will only
    increase in the future as more hybrid and electric vehicles are
    introduced into the market.
        The Center for Vehicle Electronics, Vehicle Software, and Emerging
    Technologies is critical for NHTSA to be able to carry out its mission
    in the future. Today, NHTSA appears to be severely limited in its in-
    house capability in these areas. NIST is involved with standards
    organizations and developing tests to ensure conformance to standards
    in areas including software and control systems. They are working on
    these challenges for the Smart Grid and Health IT. NHTSA contacted NASA
    to assist in looking at issues related to unintended acceleration in
    vehicles. Did NHTSA also contact NIST?
        Answer. NHTSA contacted the National Institute of Standards and
    Technology (NIST) in March 2010 as part of our effort to gather
    information related to electronic vehicle controls and to assess their
    expertise in this area. While NHTSA believes that NIST has significant
    expertise in certain aspects of electronics, NASA was chosen because of
    its extensive expertise in electronic controls, as well as its
    unmatched expertise in forensic analysis and fail-safe design,
    verification, and testing strategies.

        Question 6. Is there a way for NHTSA to tap into NIST's expertise
    as part of the Center for Vehicle Electronics, Vehicle Software, and
    Engineering Expertise?
        Answer. NHTSA believes that NIST has significant expertise in
    certain aspects of electronics, and has worked with NIST on previous
    research studies. NHTSA fully expects to continue its collaboration
    with NIST on all areas, including vehicle electronics, software and
    engineering as appropriate.
        Also, NHTSA recommended NIST to the Volpe Center at DOT's Research
    and Innovative Technology Administration, which will conduct a peer
    review of aspects of the NHTSA-NASA work; the Volpe Center selected a
    NIST panelist to serve in that peer review.

        Question 7. An Event Data Recorder (EDR) recovered at the crash
    scene can provide useful information about the crash, complementing
    information gathered from victims and eyewitnesses. EDR data can also
    serve as a piece of evidence. And as with other evidence collected at a
    police investigation scene there should be a chain of custody to ensure
    that if the information is used in a later criminal or civil
    proceeding, no one will question whether the data or device has been
    tampered with.
        Section 107 requires that EDRs be tamper resistant. From a legal
    standpoint, I imagine prosecutors may want EDRs to be tamper proof. I
    recognize that there is a difference between the two terms with respect
    to performance and cost. From the NHTSA's perspective of improving
    passenger vehicle safety, would a tamper resistant EDR suffice, or is a
    tamper proof EDR required?
        Answer. For this response, we are assuming that ``tamper'' means
    the deliberate altering or destroying of the EDR data. Based on our
    current information, a tamper resistant EDR would suffice. This is
    based on the following:

            1. The agency has no evidence to suggest that EDR modules or
            data are currently being compromised by tampering.

            2. We believe it would require a great deal of resources (both
            time and money) to make the EDR and its contents absolutely
            tamper proof.

            3. There is a tension between efforts to prevent tampering of
            EDR data and to enable legitimate entities access to the data
            for legitimate purposes. For example, one way to limit
            tampering would be to use some device to restrict access to the
            EDR imaging ports. However, it is not clear where to draw that
            line between tamper resistance and ease of access by legitimate
            entities.

        An alternate way to deal with this potential problem would be for
    Congress to provide for specific civil or criminal penalties for
    tampering with an EDR and authorize NHTSA to enforce those penalty
    provisions.

        Question 8. Should law enforcement be able to place a device on the
    EDR or its electronic connector, or be able to download software to
    prevent unauthorized users from accessing the data? Is there technology
    available to do that now?
        Answer. Because traffic enforcement and accident response are
    handled at the State level, NHTSA does not have a position on whether
    law enforcement should be able to place a device on the EDR or its
    electronic connector. We are currently unaware of any available
    software that would prevent unauthorized users from accessing the data.
    However, we do have concerns that alterations to the EDR itself may
    unintentionally compromise the EDR's operation.

        Question 9. Under current law, does NHTSA have any authority to
    address privacy issues related to EDRs and EDR data?
        Answer. As a Federal agency, NHTSA is governed by the Privacy Act
    of 1974, the privacy provisions of the E-Government Act of 2002,
    various directives from the Office of Management and Budget, and the
    Freedom of Information Act exemptions from release of information that
    would invade privacy. These provisions allow us and, in some cases
    require us, to protect personally identifying information. In the
    absence of more specific legislation, we apply these provisions in
    addressing privacy issues related to EDR data in our possession.

        Question 10. Under current law who owns EDR data? From NHTSA's
    perspective does it matter?
        Answer. We are aware of no Federal statutes or case law addressing
    the issue of EDR data ownership. However, at least 13 states have laws
    relating to the use or ownership of EDR data. Several of these laws
    provide that EDR data is the property of the vehicle owner. All 13 of
    these states accord some measure of privacy to EDR data, providing that
    only the ``owner'' of the vehicle (generally including a person renting
    or leasing, or with a security interest in, the vehicle) can access the
    data, unless a specified exception applies. Several states define the
    ``owner'' as the owner at the time the data were created or recorded.
    In NHTSA's view, in these states permission from the owner of the EDR
    data is necessary for NHTSA to access EDR data in most instances. In
    states that do not have a law identifying the owner of EDR data, NHTSA
    assumes the current owner of the vehicle owns the EDR data, and that
    NHTSA requires that owner's permission for access, unless State law
    provides otherwise.

        Question 11. In the near future there will be more real-time
    collection of EDR data over a two-way communications network connected
    to the Internet. That presents both opportunities and challenges.
        A May 13, 2010 article in the New York Times described researchers
    at the University of Washington working under a National Science
    Foundation grant who figured out a way to remotely hack into a car's
    electronic control systems and control a wide range of automotive
    functions such as disabling the brakes and stopping the engine. Do you
    believe that policymakers need to be concerned about potential cyber
    security vulnerabilities in passenger vehicles as an increasing number
    of passenger vehicles are expected to have real-time two-way
    connections to the Internet? Is this something that would fall [within]
    NHTSA's current authority or is new authority required?
        Answer. NHTSA is carefully reviewing the report by the researchers
    from the University of Washington and the University of California San
    Diego, and has been in contact with those researchers to understand the
    potential threat and impact on vehicle safety and security. NHTSA
    intends to study facets of this issue as part of a program on Vehicle-
    to-Vehicle Communications, which is a primary component of DOT's
    Intellidrive program. Additionally, the NAS effort, which is examining
    the broad subject of electronic vehicle controls across the entire
    automotive industry, will also study this issue and make
    recommendations or suggested courses of action for NHTSA going forward.
        NHTSA currently has authority to issue Federal motor vehicle safety
    standards that protect the public against existing or anticipated
    sources of ``unreasonable risk of accidents occurring because of the
    design, construction, or performance of a motor vehicle, and against
    unreasonable risk of death or injury in an accident.'' \1\ To the
    extent that the vulnerability of vehicle electronic control units and
    systems to external interference, manipulation, or alteration can be
    construed as presenting an unreasonable risk of accidents, our
    standard-setting authority would enable us to require the adoption of
    measures to reduce that vulnerability.
    ---------------------------------------------------------------------------
        \1\ 49 U.S.C. 30102(a)(8).
    ---------------------------------------------------------------------------
                                     ______

         Response to Written Questions Submitted by Hon. Tom Udall to
                            Hon. David L. Strickland
        Question 1. Could you explain to this Committee how NHTSA is
    working with leading automakers to develop new, in-vehicle technologies
    to prevent--and potentially eliminate--drunk driving?
        Answer. In February 2008, NHTSA entered into a 5-year Cooperative
    Agreement with the Automotive Coalition for Traffic Safety (ACTS)--a
    non-profit organization that is comprised of certain automobile
    manufacturers (BMW, Chrysler, Ford, General Motors, Honda, Jaguar Land
    Rover, Mazda, Mercedes Benz, Mitsubishi, Nissan, Porsche, Toyota, and
    Volkswagen). This cost-sharing agreement, known as the Driver Alcohol
    Detection System for Safety (DADSS) program, allows NHTSA and ACTS to
    engage in cooperative research to develop technologies that will
    quickly and accurately measure a driver's blood alcohol concentration
    (BAC) in a non-invasive manner. It will assess whether such devices
    meet acceptable reliability levels, are unobtrusive to the sober
    driver, and are compatible with mass-production at a moderate price. If
    these requirements are met, these technologies could be a component of
    a system that can prevent the vehicle from being driven when the device
    registers that the driver's BAC exceeds the legal limit (0.08 grams per
    deciliter in all U.S. states).

        Question 2. What progress in this research and development effort
    do you hope to see in the coming months and years?
        Answer. The NHTSA/ACTS Cooperative Agreement supports the
    development and testing of prototypes and subsequent demonstration
    hardware. The goal, at the end of the 5-year program, is the practical
    demonstration of an alcohol detection subsystem in one or more research
    vehicles. The DADSS effort is following a two-stage process. Phase I,
    which is almost complete, supports the development of three working
    proof-of-principle prototypes. These prototypes will begin bench and
    human subject testing in 2010. Phase II, which is scheduled to commence
    in 2011, represents a substantial effort that is intended to lead to
    the development of one or more research vehicles. This effort will
    focus on ensuring that such devices meet the stringent performance
    specifications, are reliable, durable, and virtually maintenance free
    through the vehicle's life span, while operating in the challenging
    automobile environment.

        Question 3. What percent of the fleet has an event data recorder?
        Answer. More than 90 percent of the 2010 new car and light truck
    fleet is equipped with EDRs. The only car companies that do not offer
    any EDRs are the German manufacturers.

        Question 4. Do you have an estimate on how long it will be before
    all vehicles have an event data recorder?
        Answer. It is our understanding that the German manufacturers will
    not equip their vehicles with an EDR absent a mandate to do so. Other
    manufacturers have indicated that they will offer EDRs on the models
    not currently equipped with them in the next 3 or 4 years.

        Question 5. Could legislation requiring installation of event data
    recorders lead to new vehicle safety advances?
        Answer. We believe that EDRs have the potential to improve safety
    by providing a better understanding of the crash environment, including
    vehicle crash performance and driver performance. Indirectly, they may
    lead to safer vehicle designs, improved crash reconstruction, and
    better assessments of safety equipment and automatic crash notification
    systems.

        Question 6. In addition to requiring event data recorders in light
    duty vehicles, could requiring event data recorders in medium and heavy
    duty vehicles enhance motor vehicle safety?
        Answer. Yes, EDRs on these vehicles could provide the same valuable
    information for these vehicles that EDRs currently provide on light-
    duty vehicles. However, unlike light-duty vehicles, these vehicles are
    not required to have crash sensors, which are a necessary component of
    EDRs. Additional time would be needed for these manufacturers to
    develop crash sensors on their vehicles.

               By State and the Highest Driver BAC in the Crash Fatality Analysis Reporting System (FARS)
                                              1982-2007 Final and 2008 ARF
    ----------------------------------------------------------------------------------------------------------------
              *Total         BAC=.00          BAC=.01-.07       Fatalities in        BAC=.15+           BAC=.01+
            Fatalities -------------------------------------- Alcohol-Impaired--------------------------------------
           ------------                                       Driving  Crashes
     Year                                                        (BAC=.08+)
              Number     Number   Percent   Number   Percent ------------------  Number   Percent   Number   Percent
                                                               Number  Percent
    ----------------------------------------------------------------------------------------------------------------
     1982      43,945    19,771       45%    2,912        7%   21,113      48%   14,277       32%   24,025       55%
     1983      42,589    19,787       46%    2,588        6%   20,051      47%   13.689       32%   22,639       53%
     1984      44,257    21,429       48%    3,007        7%   19,638      44%   13,260       30%   22,645       51%
     1985      43,825    22,589       52%    2,974        7%   18,125      41%   12,096       28%   21,098       48%
     1986      46,087    22,896       50%    3,487        8%   19,554      42%   12,988       28%   23,041       50%
     1987      46,390    24,186       52%    3,238        7%   18,813      41%   12,733       27%   22,051       48%
     1988      47,087    25,164       53%    3,156        7%   18,611      40%   12,726       27%   21,767       46%
     1989      45,582    25,152       55%    2,793        6%   17,521      38%   12,062       26%   20,314       45%
     1990      44,599    23,823       53%    2,901        7%   17,705      40%   12,181       27%   20,607       46%
     1991      41,508    23,025       55%    2,480        6%   15,827      38%   10,908       26%   18,307       44%
     1992      39,250    22,726       58%    2,352        6%   14,049      36%    9,604       24%   16,401       42%
     1993      40,150    23,979       60%    2,300        6%   13,739      34%    9,310       23%   16,039       40%
     1994      40,716    24,948       61%    2,236        5%   13,390      33%    9,224       23%   15,626       38%
     1995      41,817    25,768       62%    2,416        6%   13,478      32%    9,108       22%   15,893       38%
     1996      42,065    26,052       62%    2,415        6%   13,451      32%    9,065       22%   15,866       38%
     1997      42,013    26,902       64%    2,216        5%   12,757      30%    8,591       20%   14,973       36%
     1998      41,501    26,477       64%    2,353        6%   12,546      30%    8,461       20%   14,899       36%
     1999      41,717    26,798       64%    2,235        5%   12,555      30%    8,351       20%   14,790       35%
     2000      41,945    26,082       62%    2,422        6%   13,324      32%    8,885       21%   15,746       38%
     2001      42,196    26,334       62%    2,441        6%   13,290      31%    8,947       21%   15,731       37%
     2002      43,005    27,080       63%    2,321        5%   13,472      31%    9,055       21%   15,793       37%
     2003      42,884    27,328       64%    2,327        5%   13,096      31%    8,786       20%   15,423       36%
     2004      42,836    27,413       64%    2,212        5%   13,099      31%    8,762       20%   15,311       36%
     2005      43,510    27,423       63%    2,404        6%   13,582      31%    9,110       21%   15,985       37%
     2006      42,708    26,633       62%    2,479        6%   13,491      32%    8,977       21%   15,970       37%
     2007      41,259    25,611       62%    2,494        6%   13,041      32%    8,768       21%   15,534       38%
     2008      37,261    23,317       63%    2,072        6%   11,773      32%    8,048       22%   13,846       37%
    ----------------------------------------------------------------------------------------------------------------