United States: NHTSA Seeks To Push Beyond The "New Normal" And Into The "New Paradigm"

Last Updated: June 11 2015
Article by Christopher H. Grigorian and R. Nicholas Englund

In recent years, the National Highway Traffic Safety Administration (NHTSA) has received increased public and Congressional scrutiny stemming from high-profile safety defects, such as the Toyota unintended-acceleration issues and last year's GM ignition-switch issue. On June 5, 2015, NHTSA released two reports – the agency's "Path Forward" and its "Workforce Assessment: The Future of NHTSA's Defect Investigations" – which detail process changes and workforce increases the agency is pursuing in the wake of these recent activities. Additionally, the Secretary of Transportation announced the formation of a three-person "Safety Systems Team" (SST) of outside experts who will assist NHTSA in implementing the changes outlined in the agency's "Path Forward" report.

NHTSA's "Path Forward" walks through a post mortem of the GM ignition-switch recall, drawing a number of lessons the agency learned from the experience. NHTSA believes that a key failing in its investigation was that it did not understand the interaction between vehicle systems. In particular, NHTSA did not realize that the air bag system was not powered when the ignition switch was in auxiliary mode – a design that apparently was not shared by many other advanced air bag systems. NHTSA worries that as the number of advance-technology systems in vehicles increases, the potential for difficult-to-detect interactions among vehicle systems could increase.

To combat a potential yawning knowledge gap, NHTSA outlined six key process improvements it is undertaking.

  • Increase the accountability of the automotive industry. As part of the Department of Transportation's GROW America Act, NHTSA is seeking Congressional authority to increase the maximum civil penalty to $300 million. Additionally, NHTSA plans to send vehicle manufacturers and suppliers "pre-investigative notices" of issues it is monitoring. For incidents involving fatalities and litigation, NHTSA will now require copies of settlement documents, including suits settled by suppliers, hoping to ferret out potential defect theories. In addition to requiring settlement documents, NHTSA has also begun an outreach program to the plaintiff's bar seeking potential defect theories and related information. Moreover, NHTSA will continue to require what it terms "enhanced oversight" of manufacturers that fail to timely report a defect or noncompliance, similar to the oversight used in recent Consent Orders. NHTSA also recommends that manufacturers regularly audit their internal processes, while threatening that it has the authority to conduct these audits if necessary.
  • Increase NHTSA's Knowledge-Base of New and Emerging Technologies. NHTSA plans to meet with the industry to increase its working knowledge of new and emerging technologies and their interaction with other vehicle systems. Armed with this knowledge, NHTSA plans to develop a set of screening and investigation questions, which could become a standard part of information requests and special orders to manufacturers.
  • Enhance ODI's System Safety Approach to Detections and Analysis. In conjunction with the increase in its knowledge base, NHTSA intends to include, as a standard part of its investigations, consideration of whether one possible defect is a symptom of defect in another system.
  • Enhance Information Management, Analysis, and Sharing. NHTSA is developing an internal system that will allow it to better analyze the information streams that the agency receives (e.g., EWR data, DI (death and injury) reports and inquiries, Special Crash Investigation (SCI) reports, vehicle owner questions, etc.).
  • Establish Improved Controls for Assessing Potential Defects. For issues that do not advance to a formal investigation, NHTSA will require periodic review of the issue by the agency's defect assessment panel.
  • Ensure Effective Communications and Coordination within the Office of Defects Investigation (ODI) and between ODI and the SCI Division. NHTSA is promoting a more collaborative environment between ODI (NHTSA's investigative office) and SCI (which resides within another office in the agency). Additionally, NHTSA is launching what it calls the Risk Control Innovations Program, which will involve "multi-disciplinary teams from across NHTSA" to analyze "its toughest safety challenges."

NHTSA paired its "Path Forward" with its "Workforce Assessment: The Future of NHTSA's Defect Investigations." The assessment calls for significant increases in staff and budget for defect investigations under two scenarios. The first scenario reflects NHTSA's Fiscal Year 2016 budget request for an immediate increase of 92 additional full time equivalent (FTE) employees among ODI, ODI trend analysis division, and the Office of Chief Counsel (81, 3, and 7 respectfully). The relatively modest increase of this first scenario reflects what the agency believes it needs to keep pace with the current enforcement environment, which NHTSA has previously called its "New Normal."

The second scenario represents a dramatic increase in resources to support what the agency describes as a "New Paradigm" of defects investigation. Under the "New Paradigm", NHTSA envisions upping its staffing and investigation budget to support 380 new FTEs (322 in ODI, 14 in ODI's trend analysis division, and 44 to the Office of Chief Counsel) in addition to the current 64 FTEs in those offices.

Armed with these resources, NHTSA details what it envisions the "New Paradigm" will look like. NHTSA would:

  • Push to find and act on potential safety defects more quickly by requiring manufacturers to provide the agency with "their entire lists of pending safety issues" similar to what has been done in recent Consent Orders;
  • Investigate manufacturing programs and processes at the plants;
  • Regularly audit manufacturers' defect investigation and Early Warning reporting (EWR) processes with an eye to finding untimely defect determinations and underreported Early Warning reports;
  • Utilize state-of-the-art software to analyze incoming data and to manage investigations;
  • Follow-up with significantly more consumers who submit complaints (vehicle owner questionnaires or VOQs) with the agency, including contacting each consumer that files a VOQ that alleges a death or injury;
  • Investigate alleged vehicle defects in the field using teams akin to the NTSB's "Go Team";
  • Deeply analyze death and injury reports by seeking more information in DI Inquiries;
  • Conduct hundreds more investigations every year, "regardless of whether the overall risk appears high";
  • Test recall remedies before manufacturers implement them;
  • Pursue more cases through the agency's full process to the point of a recall order and supporting litigation, because "the threshold for establishing risk would be much lower";
  • Pursue more enforcement actions including civil penalty actions for timeliness violations;
  • Significantly expand its scrutiny of EWR reporting, "including extensive research and outreach and filing special orders to ferret out incidents that were not reported"; and
  • Continue the evolution of its Consent Orders to settle potential violations, which have included enhanced oversight and spending on public campaigns.

While the reports dovetail with recent enforcement actions and the Department's proposed legislation, it also represents an acceleration of the shift from the enforcement practices of the recent past. Over the past year, NHTSA's "New Normal" has emphasized its enforcement and regulatory priorities in early detection of potential safety issues, speeding up the reporting of defects, and improving recall remedy rates. These reports suggest that NHTSA's "New Normal" may just be a stepping stone to the "New Paradigm." Manufacturers need to ensure that their current policies and practices are robust enough to meet this heightened scrutiny.

View the Path Forward, Safety Systems Team and Workforce Assessment documents.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions