When my children were growing up, they loved the “Where’s Waldo” book series. Each page had an illustrated picture chock full of people and objects; hidden somewhere among the mass of detail was a small picture of a cartoon character named Waldo. When the Toyota Motor Corporation announced this week that it was stopping the production and sales of several of its car models because of a dangerous problem with unintended acceleration, we had a “Where’s Waldo” scenario. The National Highway Safety Administration (NHTSA), the regulator which is supposed to protect the American public from this sort of event, is nowhere to be seen, hidden inconspicuously in the background, hard to spot because of its disturbingly minor role in the unfolding events.
As I wrote earlier, Toyota had previously announced that it would replace the accelerator pedals on about 3.8 million vehicles in the United States because the pedals could get stuck in a floor mat. In the meantime, Toyota advised owners to remove the mats to avoid the problem. But, as I also noted, there were reports of cars accelerating when there were no floor mats involved. Until its most recent action, Toyota resisted this claim, blaming the problem on the design of the accelerator, and planning to address the problem by installing a redesigned accelerator that would not become entangled in a floor mat. For the first time, the company said it might be possible that there was an acceleration problem that had nothing to do with the floor mat, although, with an eye on minimizing potential lawsuits, the company also said that if there was a problem, it was a rare one.
When the Washington Post called NHTSA for comment, it initially refused, maintaining its Waldo-like appearance. The agency has since opened up, arguing in articles appearing today that it has been pressuring Toyota on the issue. It's troubling, though, that it took so long for the broader recall to be instituted and for the new sales to be halted.
The fact that Toyota has taken an unprecedented action, certain to cost it millions of dollars, does not mean that the regulatory system has worked. An important question is what role, if any, did NHTSA play in the recall, and why didn’t it act sooner to force the car company to address the problem of accidents not associated with the floor mat. NHTSA’s regulatory authority to order recalls is limited under its statutory mandate, and this may explain its Waldo-like behavior. If this is the explanation, Congress should act to give the agency more regulatory power.
One important part of the issue has flown under the radar: recalls don’t work. As I wrote earlier, NHTSA has said that the overall effectiveness of recalls is about 72%, which means Toyota will not fix about one million cars, assuming the average recall rate applies. Since some vehicle owners will not have their cars or trucks fixed, additional people will likely die or be injured, despite Toyota’s decision to stop production and sales.
Since recalls do not work well, it is better if NHTSA requires manufacturers to design safe cars rather than waiting for defects to show up and instituting a recall. Congress should investigate why the agency did not consider regulation in this instance. Some other brands of cars have a built-in safety system so that if the accelerator gets struck, you can step on the brake and it will over-ride the accelerator and stop the car. Since Toyota does not have this system, it is more difficult to stop their cars. NHTSA could require this system be built into all cars.
Bart Stupak, the chair of the House Energy and Commerce Committee's Subcommittee on Oversight and Investigations, has said he is taking up the issue. Congress needs to sort out whether the agency did its best but was stymied by a lack of legal authority, resources, or personnel, or whether the agency has chosen to fade into the background of auto safety, where its role is so small it almost disappears from the picture. Where’s Waldo is an entertaining diversion for children. Where’s NHTSA is a serious threat to the safety of drivers and their passengers.
Sidney Shapiro, CPR Member Scholar; University Distinguished Chair, Wake Forest University School of Law. Bio.
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