Safety Research & Strategies Sues FHWA for Guardrail Documents

Safety Research & Strategies, an automobile and product safety research and consulting firm, has sued the Federal Highway Administration for the public release of documents regarding the safety of guardrail end terminals used on highways nationwide. The ET-Plus model end terminals, manufactured by the Dallas-based Trinity Industries, have been allegedly linked to deaths and severe injuries, leading state and federal highway officials to question their efficacy and safety.

The civil lawsuit, filed in U.S. District Court, alleges that the FHWA violated the Freedom of Information Act by improperly withholding records and failing to respond to two separate administrative appeals on the failure to release documents pertaining to the agency’s interactions with Trinity and with the American Association of State Highway and Transportation Officials. SRS originally sought the documents in November and January. 

Guardrail designs have evolved since the 1960s. Earlier designs used blunt ends that acted like a spear, penetrating the vehicle occupant compartment in a crash. The turned-down twist design of the 1970s buried the exposed ends, but acted like a ramp in a crash, causing vehicles to rollover. Today’s preferred design on some highways is the Energy-Absorbing End Terminal, which absorbs the crash energy, bends the end terminal away from the vehicle, and extrudes it through a slot into a flat metal ribbon. In the early 1990s, Texas A&M designed the ET-2000 in cooperation with the Texas Department of Transportation. Originally manufactured by Syro, Inc., the ET-2000, a variant of the Energy Absorbing End Terminal design, addressed some of the safety failures of earlier guardrail designs. The FHWA first approved the ET-2000 in the early 1990s, and its field performance was satisfactory.

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.

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.  

DOT Settles Lawsuit over Toyota UA Documents, New Congressional Inquiry Raises More Questions

The dam against electronically caused unintended acceleration in Toyotas that the National Highway Traffic Safety Administration and Toyota built, with outrage, secrecy, pedal interference recalls, and capped with the February 2011 NHTSA-NASA report springs more leaks. The question is: Can they keep it from collapsing entirely?

Safety Research & Strategies continues to examine information showing that unintended acceleration still plagues Toyota vehicles and that many incidents cannot be explained by floor mats, bad drivers and sticky pedals. Recently, the Department of Transportation settled a Freedom of Information Act (FOIA) lawsuit with SRS, agreeing to turn over investigatory documents, videos and photos related to the agency’s involvement with a 2011 recall of Toyota and Lexus models for alleged accelerator entrapment by interior trim. (The agency also agreed to pay our lawyer’s fees – this from the Most Transparent Administration Ever.)

The recall was precipitated by the Timothy Scott incident. Scott is a former 2007 Lexus RX owner who reported a frightening UA event as he headed home from the gym one morning. In short order, Toyota bought Scott’s vehicle, and pronounced it a case of trim interference. NHTSA never looked at Scott’s Lexus, but began to investigate this root cause in other vehicles. Within six weeks, Toyota recalled the vehicles and NHTSA was all done.

We were eager to see just what the agency found out about the possibility of trim interference as a root cause of UA and what it didn’t want to show us– enough, at least, to try to stash it behind Exemption 5 of the FOIA, which protects agency deliberations. Imagine our amazement when the videos – sans audio- appear to show that the Lexus RX trim does not interfere with the accelerator -- or, not without a lot of manipulation of exemplar vehicles. We are no closer to understanding why NHTSA dropped its investigation, or how trim interference can cause a UA like Tim Scott experienced, or, more importantly, why we had to sue the DOT to get this.

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.”