April 8, 2014
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.
Elective Warning Reports System
The missing claims involved one crash that occurred in 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 permanent and severe injuries to two young children. 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.
Under the Early Warning Reporting requirements, all manufacturers are obligated to report “any claim against and received by the manufacturer. Claims are merely requests or demands for relief related to a crash, the failure of a component or system, or a fire originating in or from a vehicle. These claims are unverified allegations. They may help NHTSA identify a possible defect, but in and of themselves the claims are not evidence of a defect,” according to the section of NHTSA’s website devoted to EWR.
In February 2013, 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 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.
By July 2013, SRS received only a draft copy of the agency’s EWR Data Analysis Plan from 2008, with page 6 missing. The agency claimed it had no other records relevant to the request. SRS appealed the response, and in September, NHTSA counsel Kevin O. Vincent denied the appeal.
In November, SRS filed suit in U.S. District Court.
A lawsuit, SRS has found, motivates FOIA searches in the way a regular request does not. NHTSA managed to find some more documents showing that, at least, by May 2013, it had contacted Harmony Juvenile Products to report the lawsuits to EWR. Emails between Harmony Juvenile Products Senior Vice President Michael Noah show him apologizing for his “delayed response,” and professing ignorance of his reporting obligations. Harmony filed four death and injury claims going back to 2010.
And that was really about it. No communications with Tireco, asking the whereabouts of its EWR report, no more policy missives. With U.S. District Judge Rosemary Collyer’s signature on the settlement agreement, SRS received $5000 in fees and expenses.
Those three missing reports have encouraged us to look for other instances in which manufacturers have not reported claims. We did not have to look far. We found two apparent omissions from the child seat manufacturer Graco. In February 2013, Graco officially acknowledged that it received a lawsuit alleging a child death caused by a buckle that could not be unlatched. In September 2012, Graco was sued in a serious injury case involving a GracoTurboBooster. In March, a check of the EWR database revealed that it had filed no death and injury claims since the first quarter of 2012.
By the way, readers, we are collecting more instances of potential non-reporting. If you have filed a claim against a vehicle that was less than 10 years old, or a tire or child seat manufacturer in which the component was five years old or younger, contact us. We’ll take a look to see if that claim made it into the EWR database.
As for any policies the agency might have developed to ensure reporting or to penalize, with any consistency, instances of non-reporting, we must conclude from our FOIA that NHTSA has no such formal policies. Under the TREAD Act, it can fine violators, and it has done so twice since 2009. But those fines, against Volvo and Italian motorcycle manufacturer Piaggio, were in conjunction with a failure to launch a timely recall.
Extremely Weak Reporting System
EWR has never advanced beyond the inherent structural weaknesses that make it an improbable trend-spotting tool. The system’s component categories are over-broad. The 15,000 components on the average vehicle are compressed into 24 component categories for vehicles, four for tires and three for child restraints. In addition to hundreds of thousands of consumer complaints, field reports, warranty and property damage claims, in the last calendar year, the agency received 5,564 death and injury submissions across all reporting categories. Compressing thousands of needles in 31 hay stacks “will by necessity result in imprecision, coarseness, and potential inconsistency. This is compounded by the scope of data reported and the desire to minimize the regulatory burden (manufacturers are not requested to review, validate, or filter the data). As a result, many issues will be encompassed within any given component,” according to the agency’s 2008 Early Warning Reporting (EWR) Data Analysis Plan.
In a presentation to the National Academy of Sciences Toyota Unintended Acceleration committee, Early Warning Division Chief Christina Morgan conceded:
“EWR data has prompted some defects investigations by itself but it is most useful in supporting defects investigations by supplementing our traditional ODI data.”
Take air bags – the component failure that got ODI interested in the 2005 Cobalt, and far and away the biggest pool of claims, 25,000, in the EWR database. NHTSA could add just two sub-categories and make that data much more useful: inadvertent deployment and non-deployment.
Randy and Alice Whitfield, of Quality Control System Corp. have used EWR data extensively, published their methodology in a peer-reviewed journal and sued NHTSA successfully for access to EWR data have suggested that NHTSA implement a coding system for light vehicle deaths and injuries claims which linked the category of the allegedly failing component with a separate code denoting the type of failure that is alleged.
But, in August, the agency passed a Final Rule adding a few new broad categories to capture claims involving emerging technologies such as stability control systems, forward collision avoidance, lane departure prevention, and backover prevention systems.
There seems to be little appetite over at NHTSA to exploit EWR’s potential, Randy Whitfield observes, because it leads them to places they’d rather not go – to investigations they don’t want to pursue and to recalls that have failed to stem the complaints, injuries and deaths.
U.S. Representative Fred Upton (R-MI) Chairman of the House Energy and Commerce Committee, opened that chamber’s GM hearings by touting his role in the Ford Explorer-Firestone tire debacle of 2000:
“During the late summer of 2000, in this very room, I led the oversight hearings that examined the Ford-Firestone recalls. A tire malfunction was causing violent crashes, and Americans did not feel safe behind the wheel. We gathered testimony from company and agency officials and reviewed thousands of documents. And we found that the system had failed. Information about the defective tires had been shared with the companies and with NHTSA. The parties failed to protect the public’s safety, and over 100 people died. After that investigation, I introduced the TREAD Act to correct many of the problems that contributed to the Ford Firestone tragedy. That bill was meant to ensure data about safety is reported so that defects can be quickly identified and fixed and lives can be saved.”
The TREAD Act has not been useless – the mandatory reporting of foreign recalls, criminal penalties for violations and some of its other provisions related to rulemaking, child safety seats, for instance, have improved safety. But the TREAD Act’s second biggest provision – the establishment of the EWR database – has not improved NHTSA’s prognosticating skills. If it had, the Cobalt might have been recalled in 2007.
And we might not still be reading about the lives claimed by Ford Explorers in tire-related crashes. On March 31, 8-year-old Amaya Renee Fernandez died of her injuries sustained in a single-vehicle crash on a highway in Haskell County, Texas. According to a news account, the left rear tire on the 1996 Explorer suffered a tread separation, sending the vehicle into a skid and a ditch. The vehicle rolled multiple times. The driver, Marcus Gene Fernandez, 34, suffered serious injuries. Two other passengers – Destani Paige Fernandez, 10, and Nathan Julian Fernandez, 4, were also injured. All four were wearing seat belts.
“It all begs the question: No EWR system, no matter how finely-tuned and perfectly tailored, is going to help NHTSA, because they don’t want it. Their predilection for secrecy and their response to proposals that would make EWR more effective demonstrates that this is true,” Whitfield says. “They’ve never seen their problem as one of setting priorities given a limited number of investigative resources to apply and that the goal is to establish a system on a sound scientific basis that identifies priorities in how they could pitch their investigative work. That’s the prize. And until they decide that is what they want to do, nothing is going to help them.”