District Court Rules “Regional Recalls” are Legal

In response to a lawsuit filed by Center for Auto Safety and Public Citizen alleging NHTSA was illegally allowing regional recalls, U.S. District Court Judge Ellen Segal Huvelle, published an opinion finding that controversial practice is not in violation of the National Traffic and Motor Vehicle Safety Act or the Administrative Procedure Act (http://www.dcd.uscourts.gov/04-392a.pdf). The opinion also affirmed that the agency had the ability to exercise its discretion to determine whether regional recalls are appropriate. Regional recalls may include an entire state, counties within a state, or a cluster of states within a geographical region. The plaintiffs were seeking a declaration that the government’s role in regional recalls is unlawful. They were also seeking an order prohibiting the NHTSA from allowing automakers to conduct these types of recalls in the future. [Center for Auto Safety, Public Citizen v. National Highway Traffic Safety Administration, U.S. District Court for the District of Columbia, 04-392 (ESH)].

For nearly two decades, the NHTSA has allowed automakers to recall vehicles for safety related defects based on geographic location (i.e., “regional recall”). While there have only been 40 such campaigns during the last 10 years, consumer groups object to the practice because it does not account for vehicles that are used in the affected region by owners who live outside of that region or owners’ who live close to regional boundaries, yet are similarly affected.

In 1997, NHTSA expressed concerns for regional recalls and indicated that they would audit this process in the future. In 1998 the agency outlined conditions in which a regional recall could be conducted and created policy guidelines such as “Long Term Exposure to Environmental Conditions.” The policy guidelines stated that when the manufacturer could demonstrate that “the relevant environmental factor (or factors) is significantly more likely to exist in the area proposed for inclusion than in the rest of the United States,” a regional recall may be permitted. The policy allowed exclusion of consumers outside of the exposure area who may be subjected to the same or similar conditions at some point or may have been exposed but no longer fit the notification criteria. Although, the agency did state that a consumer who traveled within the exposed area may receive a remedy if their vehicle exemplified signs of the defect after special approval from the manufacturer (but not before), it fails to address a foreseeable event in which consumers could experience a catastrophic event before signs of the defect are present. Furthermore, the NHTSA policy fails to require an expansion to all consumers once the knowledge of additional affected areas is obtained. Consumers outside the realm of a regional recall will not have the knowledge that a potential defect exists.

Copyright © Safety Research & Strategies, Inc., 2004