NHTSA Chokes on Recall Rule

The NHTSA has published a Final Rule on Early Warning Reporting and recall requirements, and we are sorry to say that it misses the mark on a number of fronts. But – it certainly is a very traditional approach to auto safety. NHTSA’s most significant safety steps forward are almost exclusively at the behest of Congress, and the gaps in this bill reflect that Daddy-Didn’t-Make-Us-Do-It mind-set.

These amendments, weaker than they should have been, are the result of 2012 Moving Ahead for Progress in the 21st Century Act, (MAP-21, for short) MAP-21 is the first major highway funding authorization bill since the 2005 Safe, Accountable, Flexible Transportation Equity Act – a Legacy for Users (SAFTEA-LU). The comprehensive bill, among other things, could have fixed some significant problems with recall process and made the system more useful for its intended audience – consumers. Instead, NHTSA nibbled at the edges, and, if history is any judge, it will be another decade at least, before the agency makes more substantive changes – or Congress intervenes.  

The New Requirements

NHTSA was considering satisfying the MAP-21 dictate to make recalls Internet-based and searchable by Vehicle Identification Number (VIN), by requiring manufacturers to submit the VIN ranges of recalled vehicles directly to the agency to augment its current consumer search interface, which allows users to look up recalls by vehicle make and model, or by the recall campaign number. Frequently, a recall may not cover all vehicles in a particular model or model year, but ones manufactured in specific plants or in specific date ranges. Instead, the agency decided to require each manufacturer of large volume light vehicle and motorcycle manufacturers to offer their own recall look-up websites, which includes a VIN field.

Consumers will also benefit from requirements to make plain the urgency of attending to a recall repair in the content of the owner recall notification letters and envelopes. Now, manufacturers must include the large-type words “IMPORTANT SAFETY RECALL,” on the letter, and on the envelope. The notification letter itself must contain the statements: “This notice applies to your vehicle,” followed by the owner’s specific VIN, and   “This notice is sent to you in accordance with the National Traffic and Motor Vehicle Safety Act.”

The Final Rule also tightens up manufacturer’s requirements in their Part 573 reports. Recall reports and information will be submitted to the agency via a web portal. Manufacturers will be required to provide updates to recall information within five working days from when the manufacturer has confirmed the accuracy of the information. The new rule mandates that manufacturers identify and describe the risk the defect or non-compliance poses to safety to NHTSA as they are already required to do in their customer notification letters. That means they have to mention the potential for a crash, without warning or a description of a prior warning. If there’s no crash potential, the manufacturer’s statement must indicate the general type of injury that could occur.

Regarding the reporting of foreign recalls, manufacturers have a year to get their act together to begin submitting their annual substantially similar vehicle list (SSVL) directly to ODI’s Artemis database, rather than submit by mail, because paper or even e-mailed lists cannot be uploaded to Artemis and are not readily searchable.

The amendments to the EWR rule add new categories of information manufacturers must report to bring emerging defects into sharper focus. Under the 2002 EWR rule, manufacturers file quarterly reports on production numbers; incidents involving death or injury; aggregate data on property damage claims, consumer complaints, warranty claims and field reports involving specified vehicle components, like fire or rollover. The EWR information goes into NHTSA’s Artemis database. The Office of Defects Investigations uses this information along with traditional sources – recalls, TSBs, consumer complaints – to monitor defect rends.

The Final Rule now requires light vehicle manufacturers to specify the vehicle type in their death and injury reports and the fuel and/or propulsion system type in their reports. The agency said that the amendment is necessary to keep up with automotive technology:

“… as the automotive industry begins to introduce and produce more vehicles with new propulsion systems,  NHTSA believes now is an opportune time to start collecting EWR information to assist in identifying potential defects in these new systems. As currently configured, the EWR reporting structure may mask potential problems with these systems,” the rulemaking stated.

It also requires manufacturers of light vehicles, buses, emergency vehicles, and medium-heavy vehicle to add stability control systems as a component category.  Light vehicle manufacturers will also have to include forward collision avoidance, lane departure prevention, and backover prevention as new categories of reported information.

These amendments also require light vehicle manufacturers to segregate their Service Brake EWR data into two new discrete component categories – foundation braking systems and automatic brake controls. This emanated from a suggestion by the Alliance of Automobile Manufacturers, which wanted to substitute brake codes for the ESC category, because, they argued, consumers often do not know which of the integrated components caused a crash, but the manufacturer is obligated to report it to the government as the consumer reported the incident to them. The agency rejected that, but thought that adding brake system categories had merit. Foundation Brake System refers to “all components of the service braking system of a motor vehicle intended for the transfer of braking application force from the operator to the wheels of a vehicle, such as the brake pedal, master cylinder, fluid lines and hoses, brake calipers, wheel cylinders, brake discs, brake drums, brake pads and brake shoes.” Automatic Brake Controls refers to “systems and devices for automatic control of the brake system, including but not limited to, brake-assist components (vacuum booster, hydraulic modulator, etc.), antilock braking systems, traction control systems, enhanced braking systems,” the rulemaking stated. 

Left on the Table: No TINS, No UA in EWR; Disclaimers Continue

This rule could have been so much better – so much more useful to consumers – but the agency declined to put a toe over MAP-21’s outlines and told safety advocates that they would be placing all of their helpful improvements in File 13.

For example, the agency crapped out on making tire recalls easily accessible. We here at Safety Research & Strategies, long advocates of regulations to improve the tire recall system, thought that this overhaul was the perfect opportunity to add the Tire Identification Number (TIN) to the search mechanism. In the last decade, the Ford Explorer/Firestone Tire firestorm forged a number of advances in tire safety. The agency conducted excellent research into tire aging, amended Federal Motor Vehicle Safety Standard 139 to make tires more robust, and began to require tiremakers to include TIN ranges in their Part 572 Defect and Noncompliance notices. But once the Congressional and media pressure slackened, so did the agency’s interest in completing the job. There is no regulation regarding tire age. The addition of TINs in the recall notice to the agency does little for the consumer or the tire professional in determining if a particular tire has been subject to a recall.

SRS submitted formal comments requested that the agency include tire identification numbers (TIN) in its searchable database, and apply reporting requirements upon tire manufacturers. But, hey, the agency had a very good reason not to add that in: 

“We considered the comments from SRS and ARA suggesting expanding the scope of this portion of our rulemaking to include certain aspects relevant to equipment recalls. At this time, we decline to expand the scope of the rule; the directive of MAP-21 is plainly limited to recalled vehicles.”

Let’s face it, if SRS submitted comments suggesting that NHTSA not kill cute kittens, the agency would certainly come up with very good reasons why cute kittens should be killed. (Animal lovers note, no kittens were killed in the writing of this blog.)

“Once again,” says SRS president Sean Kane, “NHTSA won’t do anything unless Congress orders them to do so. Amazingly, in 2013 consumers still can’t discern whether their specific tires are recalled and there isn’t even a mechanism for tire service shops to do this either.  It’s an easy fix that should have been done.”

Several safety advocates, including Advocates for Highway and Auto Safety and the Center for Auto Safety objected to NHTSA confining its recall improvements to only large, light vehicle manufacturers. They argued that the statute required the publication of searchable recall information searchable for all motor vehicles. NHTSA blew them a raspberry, too:

“We have considered the comments and decline to expand the category of vehicle manufacturers required to provide VIN and Internet-based recalls search functions at this time."

NHTSA got our hopes up when it originally proposed to do away with disclaimers in Part 573 Notices of Defect and Non-Compliance. It was a bold – and in our considered opinion – entirely appropriate amendment, given the frequency of manufacturers’ claims in their Defect and Noncompliance Report that the recall was not related to safety, or was not a recall at all, but really a consumer satisfaction campaign. And these assertions were applied to pretty obvious defects – such as the base of Evenflo’s Discovery infant carrier separating from the seat in a side impact, which caused real-world deaths.

But, the manufacturers, predictably, kicked and screamed. They argued that prohibiting their little Part 573 protests and attempts to duck legal liability was a violation of free speech and threatened that they would fight against agency-influenced recalls even harder if they weren’t allowed to say that a safety defect wasn’t a safety defect.

NHTSA caved in like a hot soufflé stashed in a freezer:

“We also agree that consumers are best served when safety recalls are announced and free remedies are administered as quickly as possible, irrespective of whether we and a manufacturer have reached an accord over the nature or severity of the issue that results in a safety recall. In addition, there have been NHTSA investigations and then recalls where the manufacturer and the agency are at odds over the alleged defect and/or its risk to safety. In these cases, we agree it may be better for the motoring public if NHTSA maintains the flexibility to negotiate a safety recall and a free remedy is offered as opposed to engaging in protracted litigation that would potentially delay any remedy. Accordingly, we have declined to adopt the proposal to prohibit disclaimers,” the agency simpered.

Nor did the agency adopt the requirement that manufacturers review their Part 573 Information Reports for completeness and accuracy 90-days after launching the recall remedy campaign. Why should they? The Recall Management Division has been doing a bang-up job closely following campaigns to see if recalls are being completed. (Read NHTSA’s “Tough” Stance on Ford Recall – Eight Years Too Late to refresh your memory of how the agency let Ford’s accelerator cable defect in Escape vehicles, recalled but largely unremedied, linger for eight years until a high-profile death.)

Quality Control Systems Corporation, which submitted comments on the EWR amendments proposing that the agency add the categories of unintended acceleration and floor mats, and divide air bags and seat belts into more defined sub- groups, was told simply:

“This comment is outside the scope of this rulemaking and will not be addressed in this notice."

 

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