EWR: Elective Warning Reports - When Manufacturers Don't Report Claims

Last week was a case of déjà vu all over again, to quote Mr. Yogi Berra, as NHTSA, and one of its “regulatory partners,” General Motors, faced their Congressional interlocutors, for the second performance of Safety Accountability Theater since 2000, when Congress passed the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act. Fourteen years ago, it was the Ford Explorer/Firestone tire fiasco that set all those hands a-wringing. Five years ago, it was Toyota Unintended Acceleration. Now, its GM ignition switches.

These come-to-Jesus gatherings were supposed to be obviated by the creation of the Early Warning Reporting (EWR) system. A major component of the TREAD Act, EWR requires manufacturers to submit reams of death, injury, property damage, warranty and other data to the government on a quarterly basis. It’s an honor system that depends on truthful reporters.

More than a year ago, SRS discovered three death and injury claims that had not been reported through EWR, and sought out NHTSA to confirm this apparent lapse and determine NHTSA’s policy toward manufacturers that did not submit reportable injury claims. As is usually the case when we try to help our favorite federal agency, SRS got crickets. And, as is usually the case in that circumstance, we submitted a Freedom of Information Act request to find out what they did about the information we gave them, and the agency’s policy for ensuring that reportable claims were getting into the system.

As is usually the case, NHTSA said that it had practically no information to share. As is usually the case, SRS called B.S. filed an appeal, and when that failed, took it to the U.S. District Court. And, as is usually the case, NHTSA found more responsive materials.

Last week, U.S. District Court Judge signed a Settlement Agreement between SRS and the DOT in which the government paid our legal fees. As is usually the case.

That GM Loaner May Not be Safer

Last week, General Motors attempted to pour oil on its troubled waters with an offer of free loaner cars for consumers awaiting a fix for the wandering ignition defect that is linked to at least 13 deaths. But, Consumers for Auto Reliability and Safety (CARS) says that a loaner may be no safer – as long as automobile dealers are permitted to put customers in vehicles that may be under recall, but unremedied.

“We are very concerned for customers who go to GM dealers expecting a safer loaner car and that might not be what they get,” says Rosemary Shahan, CARS president.

This issue has been simmering on the Congressional back-burner since last May, after a California jury awarded $15 million to the parents of two sisters who died in an Enterprise Rent-A-Car 2004 PT Cruiser on October 7, 2004. The driver of the truck they hit testified that he could see smoke pouring from the PT Cruiser’s engine compartment just before it veered into the southbound lanes of Highway 101 in Monterey County, crashing into his 18-wheeled Freightliner tractor trailer. A month earlier, Chrysler had recalled 439,000 2001-2004 PT Cruiser and the 2005 PT Cruiser Convertible for a power steering hose that could rub against the transaxle differential cover, eventually resulting in a steering fluid leak and an underhood fire. Despite the recall notice, Enterprise had rented the PT Cruiser that crashed to three other customers before the Houcks. On the day of the crash, the PT Cruiser was the only vehicle available and Enterprise employees offered it to Raechel and Jacqueline Houck as a free upgrade.

Automobile dealers are prohibited from selling a new recalled vehicle that has not yet had the remedy implemented, but there is no such prohibition against renting or loaning out a recalled vehicle that has not had the fix, or selling a used unremedied vehicle.

The Raechel and Jacqueline Houck Safe Rental Car Act of 2013 was sponsored by Democratic Sens. Charles E. Schumer (D-NY), Barbara Boxer (D-CA), and Claire McCaskill (D-MO) and Republican Sen. Lisa Murkowski (R-AK), and supported by the car rental companies. The bill, S921, was filed in May and was unanimously passed by the Senate Committee on Commerce, Science and Transportation, but it has advanced no further. CARS is lobbying for the bill and a similar one in the California legislature. SB 686 prohibits dealers from loaning, renting, leasing or otherwise transferring ownership of recalled used vehicles to consumers. But in both cases, the auto dealers have demanded a carve-out for loaners, because, as lobbyists testified they “have no way to know” if a vehicle has been recalled.

“The dealers and the manufacturers are blocking it and can’t even get out of the Senate,” Shahan said. “They’ve testified that they don’t want to pay for the down time, because a recalled vehicle could be out for weeks. They don’t want to lose the revenue, they’d rather put their customers at risk.”

NHTSA Opens Smart Key Compliance Probe

With a 2011 rulemaking on standards governing electronic key systems still pending, the National Highway Traffic Safety Administration has opened a compliance investigation into 34 recent model-year vehicles that allow the vehicle to be turned off in a gear other than park, allow the key fob to be removed from a running vehicle with no warning to the driver, and allow vehicles to be restarted without the key fob present – all conditions that defy the letter and intent of Federal Motor Vehicle Safety Standard 114. And, incidentally, all conditions that Safety Research & Strategies informed the agency about in a 2010 meeting.

SRS obtained these documents after submitting a Freedom of Information Request for agency documents related to keyless ignition investigations.

On January 28, the agency’s Office of Vehicle Safety Compliance sent information requests to Toyota, Ford, General Motors, Nissan, Mazda, Hyundai and Kia regarding 2012 and 2013 model-year vehicles, based on tests of how their keyless ignition systems operate under different scenarios in which to determine if the Theft Protection and Rollaway Prevention Standard had been violated.

The agency said that the probe was initiated by a Ford recall (13V-475), for 23,000 Ford Focus vehicles, equipped with keyless starting systems that did not have an audible warning when the driver exited the vehicle. But actually, the compliance investigation had its origins in a routine FMVSS 114 compliance test of a 2013 Ford Focus. After discovering that the vehicle did not meet the warning aspect of the regulation, NHTSA’s Office of Vehicle Safety Compliance (OVSC) contacted Ford in March 2013. The two met to   discuss how its Intelligent Access key system worked. And OVSC asked Ford if it could use its MyCANIC tool. Used with Ford software, the MyCANIC is plugged into the OBD-II diagnostics port to read specific data channels from the vehicle’s computer, namely to access how the “Power Mode” communicated either a “Key Out” or “Key In” reading.

Over the spring, and stretching into the fall the OVSC and Ford jointly reviewed the vehicle. NHTSA asked for more information; Ford provided it. In September, Ford made the decision to recall, even though, “it was not determined that a non-compliance to FMVSS 114 Section 5.1.3 existed in these vehicles,” Ford noted in its Part 573 Notice of Defect and Noncompliance. And just in case the agency was wondering what Ford really thought of FMVSS 114, it added:

“While the applicability of this section of FMVSS 114 to keyless ignition systems is ambiguous, in the interest of Ford's consistent cooperation with the agency, Ford will conduct a notification and remedy campaign to add a  ‘key in ignition’ door chime to address the agency's question with respect to the requirements of FMVSS 114 Section 5.1.3 (Theft Prevention).”

NHTSA Proposes Side Impact Protection for Children

With just six months to go before a Final Rule is due to be published, the National Highway Traffic Safety Administration has released its proposal to add side impact testing to the child seat safety standard for children up to 40 pounds.

To the uninformed, the NPRM reads like the history of an agency moving forward expeditiously toward a test that will lead the way for global child safety standards. And it is true that the proposed sled test adds a new deformable door component. But a more complete dive into the history of side-impact crashes and protection for child shows that this innovation should have been an amendment to an existing side impact test for child safety seats. This proposal is waaaaay late, and the result of not one—but two—Congressional mandates, about a dozen years apart.

Here’s the truth: (And you can measure it by policy, by regulation, by research, by public engagement – it all comes out the same.) Protecting children in crashes has never been a priority for the agency, nor for the automakers. That’s how you get the first side-impact compliance test for child safety seats in 2014.

Nonetheless, some child seat safety experts are applauding the effort.

“I’m very excited that this is finally being implemented,” said Gary Whitman, Vice President, Research and Development at ARCCA Inc, and an expert in occupant crash safety systems who has tested hundreds of child seats and collaborated with NHTSA, the Pennsylvania chapter of the American Academy of Pediatric Child Injury Prevention, National SAFE KIDS Campaign, and the Children’s Hospital of Pennsylvania in child restraint research. “It’s long overdue and it’s a shame that it required an act of Congress.”

At the same time, Whitman and biomechanical expert Salena Zellers Schmidtke agree that the proposal has some serious deficits – it only protects children up to 40 pounds, and makes questionable assumptions about the efficacy of side air curtains for children in booster seats in a side impact crash.

Safety Research & Strategies Sues U.S. DOT in (Another) FOIA Dispute

Safety Research & Strategies, an automobile and product safety research and consulting firm, today filed its fourth Freedom of Information lawsuit against the U.S. Department of Transportation, alleging that it has improperly held documents regarding Early Warning Reports.

The lawsuit emanates from two instances in which manufacturers allegedly did not report serious injury claims against them to NHTSA, as required under the Transportation Recall Enhancement Accountability and Documentation (TREAD) Act’s Early Warning Reports (EWR) provision. One crash occurred in April 2009, involving a tire tread separation which resulted in an occupant sustaining a serious closed head injury. The second crash occurred in June 2010, involving the apparent failure of Harmony Lite Rider child restraint, which caused severe injuries to two young children.

“EWR data is supposed to alert the agency investigators to defect trends,” says SRS President Sean E. Kane. “But if manufacturers don’t report complete and accurate information, the system doesn’t work.”

Harmony, which manufactured the child safety seat and Nankang, the Taiwanese tire manufacturer, and Tireco, the tire importer, were notified of these claims via civil lawsuits in August 2010 and November 2011, respectively. Neither, however, showed up in a search of the manufacturer’s quarterly reports to NHTSA.

In March, SRS informed the director of the Office of Defects Investigation Frank Borris, and NHTSA’s Senior Associate Administrator for Safety, Daniel C. Smith, of these apparent omissions. The memo requested confirmation that these claims should have been submitted to the agency via a quarterly EWR submission, and “what actions the agency plans to take.” After receiving no reply, SRS submitted, in May, a Freedom of Information Act request, seeking any documentation that NHTSA followed up with Harmony, Nankang or Tireco, as well, as the agency’s policies and procedures around EWR, and a manufacturer’s failure to submit a reportable incident.  

The Safety Record Special Report: How Consumer’s Union Shocking Child Seat Tests Forced the Recall of the Evenflo Discovery

Editor’s note: The Safety Record spent more than a year seeking the documents related to Recall 08C002 involving Evenflo Discovery child restraint.  The Safety Record undertook this project because the defect was serious, resulting in a recall of more than 1 million seats. Yet, much the public record explaining how this recall came about was missing, and, the National Highway Traffic Safety Administration was not forthright in its actions or in its public statements in February 2008. The Safety Record is committed to ensuring that the public record is complete and to bringing transparency to NHTSA’s important regulatory and investigative activities in the interest of government accountability. Documents obtained following the successful settlement of Safety Research & Strategies litigation against NHTSA show that the Evenflo recall was the result of secret investigations and behind-the-scenes exchanges between the agency and Evenflo. This Special Report, in part, is based on these records.  

On September 19, 2005, Isaac Neal Eslinger died of his injuries in a rollover crash that occurred the day before. He was seven months old. His mother Debra was at the wheel of the family’s 1996 Isuzu Oasis van, travelling north on Highway 6 towards Mandan, North Dakota. According to the police report of the crash, the last thing Debra Eslinger remembered was glancing back at her daughter, before realizing that she had swerved onto the shoulder of the other side of the road. Debra tried to correct her steering, but lost control of the van. It rolled over and came to rest in a ditch on the east side of the highway.

Debra, who was wearing her seatbelt, and her three-year-old daughter, secured in a child safety seat, survived the crash without any injuries. The Evenflo Discovery infant seat holding Isaac, however, detached from its base in the crash. Isaac, still strapped in the seat, was pitched out of the van. He died of a skull fracture and head injury.

Isaac’s father, Neal Eslinger, a chiropractor in Bismarck, paid tribute to his only son on a blog he writes, called My Living Strength:

“Isaac has a spirit presence that warmed all hearts. He was a “master of smiling” as he displayed his prominent dimples, twinkling eyes and his unique laughs, giggles and squeaks. The mere glimpse of his mother or sound of her voice would bring a smile and a laugh that truly was an honor to witness. …Isaac was a gift from God and he always was and always will be “Our Little Angel.” Words cannot express the blessings he brought into our lives.”

Three weeks after the crash, on Oct. 7, 2005, Isaac Eslinger’s death in an Evenflo Discovery infant seat was reported to the National Highway Traffic Safety Administration. Fifteen months later, NHTSA’s Office of Defects Investigation came looking for the crash report.

January 2007 would turn out to be a turning point for the popular infant carrier combination car seat. A controversial Consumer Reports story claimed that sled-tests showed that some models of the Discovery had a tendency to separate from its base under the stress of crash forces. This wasn’t actually news. A spate of infant deaths and injuries linked to base separations had initiated a low-level NHTSA investigation in 2004. But that probe was closed four months later with no defect finding.

NHTSA and Evenflo swiftly dispatched the Consumer Reports story by pointing out that its side-impact sled tests were actually conducted at a much higher rate of speed than the story claimed. Within weeks, Consumers Union, publisher of Consumer Reports, printed a retraction, withdrew the story and apologized to its readers. But one year later, NHTSA and Evenflo announced that the juvenile products manufacturing firm was recalling 1.1 million Discovery infant carriers because testing by both parties showed that it could separate from its base in a side impact.

In the three-and-a-half year gap between the closing of the first investigation and the recall of the Discovery infant carrier were two secret NHTSA defects investigations into the infant carrier’s propensity for seat base separations, the discrediting of a consumer advocacy organization that attempted to raise the bar on child restraint safety, and more child injuries and deaths in crashes that resulted in base separations.

The recall was five years ago, but questions about its origins linger. Save a flurry of stories published about CU’s testing mistake and retraction, and fewer when the recall was announced a year later, the record surrounding this child safety defect has remained hidden from public view. Increasingly, this appears to be by design. NHTSA frequently hides the extent of its investigative activities and its negotiations with industry. If no formal Preliminary Evaluation or Engineering Analysis is opened, the public record is never established. This secrecy has been the subject of criticism by safety advocates, who say that it allows the agency to avoid accountability, and by the Department of Transportation’s Office of Inspector General. In an October 2011 audit, the OIG criticized the Office of Defects lack of documentation and transparency:

“Without comprehensive documentation of pre-investigation activities, ODI’s decisions are open to interpretation and questions after the fact, potentially undermining public confidence in its actions.” Noting NHTSA’s failure to document meetings with manufacturers, OIG recommended “a complete and transparent record system with documented support for decisions that significantly affect its investigations.”

In November 2011, Safety Research & Strategies filed a Freedom of Information Request for the communications between NHTSA and Evenflo surrounding February 2008 recall. When NHTSA responded that it had no such documents, SRS appealed – arguing that the simultaneous press releases issued by NHTSA and Evenflo showed that each entity knew about the other’s test results on the Discovery – evidence of communication between the two. In April, after NHTSA did not respond to SRS’s appeal, the company filed a civil lawsuit in U.S. District Court to obtain the documents. In February, SRS and the Department of Transportation settled the lawsuit, after NHTSA released all of the documents it said were in its possession. The Department of Transportation paid SRS’s costs and legal fees of $14,281. 

Ford Offers “False” Testimony; Alliance Swears to It

From the annals of chutzpah: On March 12, the Alliance of Automobile Manufacturers filed a friend of the court brief to head off a potentially disastrous breach in the auto industry’s carefully constructed dam around the causes of unintended acceleration (UA). To wit, there are no electronic causes of unintended acceleration. This phenomenon, as the industry and the National Highway Traffic Safety Administration would have it, is solely caused by drivers hitting the wrong pedal and mechanical causes, such as pedal entrapment and bound Bowden cables. Electronic systems cannot have electronic malfunctions that can go undetected or cause UA, got that?

William T. Swigert, the Senior Judge of the Florida’s Fifth Judicial Circuit, however, had no respect for industry/government mythology. He set aside a jury verdict in favor of Ford Motor Company, after deciding that Ford’s victory in Stimpson v. Ford was won with “false and misleading” testimony and defrauded the federal government to boot, by claiming that it knew of no other cause of unintended acceleration than driver error and concealing years of testing that showed that electromagnetic interference was a frequent root cause of UA in Ford vehicles. (See How Ford Concealed Evidence of Electronically-Caused UA and What it Means Today)

NHTSA's FOIA Problem

Safety Research & Strategies, a Massachusetts safety research firm that advocates for consumers on safety matters, has filed its third Freedom of Information Act lawsuit against the U.S. Department of Transportation alleging that the National Highway Traffic Safety Administration (NHTSA) has improperly withheld documents – this time related to in the Evenflo infant seat recall of 2008.

“NHTSA is the DOT’s only designated public health agency,” says Sean Kane, president of SRS, “Decision-making on important safety matters should not be a private affair between the agency and the regulated.  We will continue to press for the release of documents that should be in the public domain.”

Evenflo recalled the Discovery infant carriers in February 2008 – one year after Consumer Reports, a Consumer Union (CU) publication, printed a controversial story rating rear-facing infant car seats in front and side-impact sled tests. The CU tests showed that only two of the 12 seats performed well in tests and most failed.  And as part of the story, CU urged the recall of the Evenflo Discovery.

NHTSA conducted its own sled tests to check CU’s results and found that the organization’s testing contractor, Calspan, had assessed the seats under conditions that represented a more-than 70-mph impact, instead of the 38.5 mph intended. CU profusely apologized and withdrew its report.

One year later, NHTSA and Evenflo simultaneously released brief announcements that the juvenile products company would recall 1.1 million Discovery infant seats. Using strikingly similar language, both press releases referenced recent tests conducted by NHTSA and Evenflo which showed that “this car seat has the potential to separate from its base.”

NHTSA: No Evidence Prius Unintended Acceleration Linked to Known Causes

The National Highway Traffic Safety Administration has acknowledged what it has emphatically denied so far: Not all instances of Toyota Unintended Acceleration are linked to sticky pedals, floor mats or driver error. The UAs in a 2003 Prius witnessed by ODI engineers last May were not linked to “known causes.”

True, the agency response (see second page of report) to reporters’ questions about the Unintended Acceleration events two Office of Defects Investigations engineers witnessed, videoed and captured data from was tortured. The most interesting admission was swaddled in a lot of hot air about how wonderful and competent the agency is at ferreting out problems and protecting consumers, but it was there:

“We sent two investigators to evaluate and inspect a vehicle based on a complaint we received (complaint number 10428551) and did not find any evidence linking the car to known causes of unintended acceleration cases,” [emphasis ours] the agency said in a statement. “NHTSA concluded that the speed of the vehicle could easily be controlled by the brakes. In contrast to other UA complaints, the vehicle displayed ample warning lights for the driver indicating the car had encountered problems.”

NAS Report on Vehicle Electronics and UA: More Weak Tea

The National Academies of Science released today its long-awaited review of the National Highway Traffic Safety Administration’s Toyota Unintended Acceleration investigations, its regulatory policies and the agency’s next steps in dealing with electronic defects. The 16-member panel of volunteers, from a multitude of related disciplines, met 15 times over about 18 months, and were, at least, in attendance for presentations from 60 contributors.

The panel’s most significant critique was an acknowledgement that NHTSA is ill-equipped to deal with the new age of vehicle electronics:

“For NHTSA to engage in comprehensive regulatory oversight of manufacturer assurance plans and processes, as occurs in the aviation sector, would represent a fundamental change in the agency’s regulatory approach that would require substantial justification and resources (see Finding 4.6). The introduction of increasingly autonomous vehicles, as envisioned in some concepts of the electronics-intensive automobile, might one day cause the agency to consider taking a more hands-on regulatory approach with elements similar to those found in the aviation sector. At the moment, such a profound change in the way NHTSA regulates automotive safety does not appear to be a near-term prospect.”

Conclusions like these pepper the NAS report. Throughout The Safety Promise and Challenge of Automotive Electronics; Insights from Unintended Acceleration, the panel tries to have it both ways: to lay claim to a scientific process, without employing any actual science, to maintain that it was not second-guessing NHTSA’s investigations, but concluding that the agency was justified in closing them; to say that the Audi Sudden Unintended Acceleration controversy isn’t comparable to the Toyota debate because automotive technology has changed so drastically, and yet lean heavily on the 1989 NHTSA-commissioned report, An Examination of Sudden  Acceleration.

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