October 15, 2012
When is a safety recall not really a safety recall? When the manufacturer submitting the Part 573 Defect and Non-Compliance Report (49 CFR Part 573) says it isn’t.
The Recall Management Division’s files are dotted with many such non-admission admissions. For example, in February, Goodyear recalled nearly 41,000 of its Silent Armor Tires in six sizes. The company conceded that these tires had high rates of warranty and property damage claims, and that the tire’s lack of robustness could result in a partial tread separation and a crash. Three months earlier, two Texas college students died in a rollover crash, after the left rear Silent Armor tire on the pick-up truck suffered a tread separation.
Goodyear, however, “found no safety issues” and deemed its recall a “customer satisfaction campaign,” to NHTSA.
If NHTSA’s proposed changes to the recall regulations are eventually adopted, the practice of manufacturers making signing statements will end. The agency is also proposing to require automakers to file defect and non-compliance reports via the Internet, including notices of foreign recalls. The agency is proposing asking manufacturers to submit the specific Vehicle Identification Number for each recalled vehicle, so that consumers can search a recall by their vehicle’s specific VIN. Unfortunately, there appears to be no such provision for the Tire Identification Number (TIN). Manufacturers will continue to submit TIN ranges only, and there will be no Web portal, which the public can use to determine if a specific tire has been recalled.
The agency wants to put manufacturers on a circumscribed schedule to make more timely notifications to consumers of a safety defect – even if the remedy is not yet ready. The agency reasoned that consumers have a right to know these risks and take precautions, if necessary, and that this consideration carried more weight than a manufacturer’s desire to smoothly roll out a recall.
The agency also proposes to tighten up manufacturer’s defect risk requirements in their Part 573 reports. Manufacturers would be required to identify and describe the risk the defect or non-compliance poses to safety to NHTSA exactly 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.
Some of these changes are courtesy of the Moving Ahead for Progress in the 21st Century Act, MAP-21, for short. The 2012 law mandates NHTSA to require that motor vehicle safety recall information be made available to the public on the Internet, and authorizes the Secretary of Transportation to require each manufacturer to do so. As NHTSA already has a website where consumers can look up recalls by vehicle make and model, or by the recall campaign number, the agency opted to beef up the current system, rather than require each manufacturer to create its own website.
It wants automakers to submit its defect and noncompliance reports via a Web portal, for “maximum efficiency and reduce the agency’s burden to translate and enter information into its database. No longer would the agency devote resources to identifying and correcting errors in translation that occur whenever agency personnel review and then reenter the information reviewed into the NHTSA database.”
A Safety Recall by Any Other Name
But back to the non-safety recalls. Lots of manufacturers have tried to call their safety recalls something – anything but a safety-related defect. Back in the day, NHTSA would argue with manufacturers about these skeevy attempts to evade an honest reckoning. For example, in 1979 Ford and NHTSA had a dustup over what nomenclature might be applied to a bad weld that made the seat backs of the Mercury Capri vehicle in the 1971 to 1974 model years fail and suddenly collapse. Ford maintained that seat back collapse was not a safety defect. NHTSA took the opposite view. Eventually the agency brought down the initial determination that it was and Ford did the recall.
Over time, however, industry and government appeared to have reached an understanding. At times, the automaker “voluntarily” recalled the vehicle, but called it a “customer satisfaction,” or “safety improvement” campaign, and NHTSA didn’t bother to argue about the language automakers put in its Part 573 reports. Some other favorites:
The Honda Odyssey had problems with struts to its rear liftgate. The components would fail prematurely and send the lift gate crashing down on a head in the way. On the heels of an Office of Defects Investigation, Honda reluctantly recalled the 2005 Odyssey to replace the components – but not without asserting “Honda recognizes that this is not a safety defect.” If the consumer complaints to NHTSA are to be believed, this problem has followed the 2006, 2007, 2008 and 2009 models. One owner of a 2009 Honda Odyssey in Point Reyes Station, California said the falling door caused a head injury that required eight stitches. Hey, nothing unsafe about that.
In 2003, Isuzu agreed to add energy absorbing materials to the roof area of the 2002 Axiom, because it apparently did not pass the FMVSS 201 Free-Motion Headform Test with flying colors. But don’t call it a recall. Isuzu deemed the free modifications “a safety improvement campaign and is not being conducted under the Safety Act.”
In January 2009, Toyota conducted one of its numerous unintended acceleration recalls – this time for more than 26,000 2004 Sienna vehicles, to replace a carpet retention clip, because if not in its proper place, the carpet cover could entrap the accelerator pedal and keep it almost floored. Toyota blamed dealer techs (independent third parties) for failing to properly retain the carpet cover after doing a repair. Under the duress of an Engineering Analysis, the automaker agreed to a recall, but not without a last word: “As you are aware, Toyota has not determined that the condition at issue in EA08-014 is a ‘safety-related defect’ within the meaning of the federal vehicle safety laws, and – as summarized below – it continues to believe that no such defect exists.” (Of course, they say that about lots of defects.)
The agency has apparently had its fill of these snippy letters. As we have pointed out in the past, a Part 573 is a Notice of Defect or Noncompliance. If a manufacturer files one, there are only two options. As the agency points out, manufacturers are not allowed to take rhetorical liberties with consumers. The law requires them to affirmatively state in the recall notification letter that either a defect or non-compliance exists.
“These attempts to disavow defect or noncompliance decisions, which amount to disclaimers, are inconsistent with the Safety Act and introduce confusion into the public record for those safety recalls,” the agency said. “For a manufacturer to make this statement, but then to have a record reflecting the direct opposite, is confusing and misleading.”
We are eager to read the Alliance of Automobile Manufacturers’ comments on this proposal. Should this survive the Final Rule, will manufacturers fight harder on some recalls, and, if so will NHTSA wave its “initial determination” [of a defect] wand more frequently?
VINS, But Not TINs
To fulfill the requirements of MAP- 21, the agency will require large volume automobile manufacturers to submit Vehicle Identification Numbers of specifically recalled vehicles, and maintain records of the recall remedy status of each specific vehicle, using the categories required in the agency’s quarterly reporting requirements: Unremedied; inspected and repaired; inspected and determined not to require repair; exported; stolen; scrapped; the owner was unable to be notified (returned mail); or other (for whatever other reason the manufacturer could not remedy the vehicle).
Unfortunately, there is no such provision for Tire Identification Numbers, an 11-symbol alphanumeric unique identifier for each made. In October 2009, as part of an EWR rulemaking, the agency started requiring tiremakers to include a range of TIN numbers for a recalled tire population. Prior to the rulemaking, some manufacturers submitted them voluntarily, some did not.
MAP 21 did not specifically mandate a TIN look-up for consumers, which is unfortunate, because this is where some of the biggest gaps in the recall system lie. NHTSA’s current system does not allow its web users to search tire recalls by TIN. Instead, a consumer must enter the tire’s make and model to see it has been recalled, and then search the associated documents for the TIN range. (In most cases, tires from specific lots are being recalled, rather than the entire line.) This process is time-consuming and challenging for the uninitiated. It is utterly impractical for tire technicians, used tire dealers or independent tire dealers. The latter two groups may not get recall bulletins from tire manufacturers. So, if a Firestone tire is serviced at a Goodyear dealership, those tire technicians would have no recall bulletins or any practical means of determining whether that Firestone tire was part of a recall.
In 2007, a jury found Wal-Mart negligent in a case where tire technicians who repeatedly serviced a 2000 Ford Expedition failed to notice that the Continental Grabber AW P275/60R17 tires on the vehicle had been recalled. The left-rear tire suffered a tread separation, touching off a rollover crash that resulted in permanent injuries to the driver. One dealer fumed about the $4 million verdict, in a 2007 letter to Tire Business.
“Since when does the burden of checking on recalled tires fall on the person/company that changes your oil or rotates your tires,” Bridgestone/Firestone dealer Jeff Voigt wrote. “Where is the magic database where we tire dealers must enter the DOT number of every tire we touch to see if it is on a recall list?”
Here’s the perfect opportunity to make some magic.