[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

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       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\
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    \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.
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    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%
----------------------------------------------------------------------------------------------------------------

                                  
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