NHTSA Opens EQ Investigation into Hercules Tire Recall at Lawyer’s Request

The National Highway Traffic Safety Administration has opened an Equipment Query investigation into a defective Chinese tire sold in the U.S. under different brand names that was recalled by one importer, but not another – even though they share the same distributor.

In March, the agency sent an information request to Hercules Tire and Rubber Company, a subsidiary of American Tire Distributors Inc., to determine if it should have recalled its Hercules Radial A/T in eight different sizes manufactured by the Shandong Yongsheng Rubber Co., Ltd.

Tires that were essentially the same, but sold as Capitol Precision Trac II, were recalled by importer ITG Voma in October. The recall population of 94,890 tires included seven sizes for passenger cars and light trucks.  Both tires were manufactured by Shandong Yongsheng and shared a common green designation, defined by NHTSA as: “tires that are produced to the same internal specifications but that have, or may have different external characteristics and may be sold under different tire line names.” Both were distributed by American Tire Distributors.

The probe was opened at the behest of attorney Michael Cowen of the Cowen Law Group of Brownsville, Texas. (see Texas Attorney Asks NHTSA for Tire Investigation) Cowen represented Krystal Cantu, whose right arm was crushed in a rollover caused when the left-rear tire, Capitol Precision Trac II, suffered a tread separation. The August 2013 crash was a factor in ITG Voma’s decision to recall some Capitol Precision Trac II tires that lacked a nylon cap ply, which made the tires less robust and prone to tread separations. During Cantu’s lawsuit against ATD, Voma and Shandong Yongsheng, a manufacturer’s representative testified that the Capitol Precision Trac II shared a common green tire designation with the Hercules Radial A/T.

NHTSA’s March information request to Hercules, as the importer, manufacturer, or entity that “otherwise introduced for sale in the United States,” sought information on the similarities between the tires ITG Voma recalled and the Hercules Radial A/T, and “why Hercules has not yet made a defect decision and/or decided to conduct a recall of those tires.”  

In February 2013, Hercules recalled seven 10-ply Load Range E tires manufactured by the Shandong Yongsheng Rubber Co., but these tires were not the same size or load range as the Capitol Precision Trac. Hercules said in its defect report to NHTSA that the tires could experience in-service belt and tread separations.

In its latest probe, the agency also asked Hercules to explain why it did not include these tires in that earlier recall.

The EQ’s Opening Resume was a bit unusual, in that it acknowledged that the allegation came from Cowen:

On December 17, 2014, Attorney Michael Cowen of Cowen Law Group wrote to NHTSA alleging that certain Hercules All Trac A/T tires are substantially similar in design, construction, and performance as tires that importer (and manufacturer) ITG VOMA recalled due to a safety defect. NHTSA was requested to investigate.

This is a departure from past practice, in which the agency was loathe to acknowledge outsiders – unless it was to dismiss them in a Federal Register Notice. But, in these current and oh-so-challenging times of serving as a Congressional piñata and media whipping boy, NHTSA’s been forced to change a lot of its past practices. The agency is not letting manufacturers get away with so much blatant flouting of the regs. (Suddenly, filing the legally mandated detailed chronology of the discovery of a defect is very fashionable among automakers notifying NHTSA of a new recall.) NHTSA’s letters to errant manufacturers are getting down-right fiery; fines are bigger, and meted out more swiftly. And the agency has been signaling that the party is so over, directly to lawyers for the defense, and more recently for the plaintiffs.

And maybe, soliciting and acknowledging the cooperation from the attorneys who wrest important information about defects from manufacturers could help NHTSA fulfill its enforcement obligations. Here’s hoping.

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