Consumer Groups Attack NHTSA Safety Defects Policies

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Center for Auto Safety
Public Citizen
Consumer Federation of America
U.S. Public Interest Research Group
Advocates for Highway and Auto Safety

April 22, 2003

Dr. Jeffrey Runge, Administrator
National Highway Traffic Safety Administration
400 7th Street SW
Washington DC 20590

Dear Dr. Runge:

Almost since the very founding of National Highway Traffic Safety Administration (NHTSA) in 1966 (then the National Highway Safety Bureau), NHTSA has published a monthly defect investigation list intended to inform the public about potential motor vehicle defects and the government action on safety recalls. Regardless of the Administration, both Republicans and Democrats from the first Administrator, William Haddon, to your predecessor, Ricardo Martinez, published a monthly defect investigation list revealing the scope of NHTSA's investigatory activities.

This list enabled the public to learn about the potential safety defects that were being investigated in vehicles on the road and allowed a public evaluation of the agency's diligence in carrying out its investigatory program showing whether, for example, investigations were dragging on for years, a particular investigation showed progress, and what investigations were closed without a recall.

Despite this clear public purpose, under your watch, NHTSA recently decided to stop publishing this vital list, which had served as an important check on the agency's performance. A NHTSA spokesperson explained the decision to reporters by stating: What seemed to be unnecessary was the monthly defect list. We're not trying to be secretive. There was no interest.

We are sending this letter to assure you that there is indeed interest in the list on the part of both the media and citizens. Regardless of whether the agency was trying to be secretive, it is, in fact, behaving secretively. The public can no longer see at a glance which investigations were closed without a recall or have languished for months without any visible action.

Before its demise, the monthly defect investigation list for each month included the following:

1) Newly opened investigations;
2) Investigations closed;
 3) Investigations upgraded;
4) Agency activity in pending investigations, such as whether a letter was sent to, or received from, a manufacturer;
5) The length of time an investigation had been pending; and
6) How many investigations were pending i.e., the case load.

To increase public access to information, the NHTSA Web site included case resumes of newly opened and closed investigations, along with a monthly list which contained information such as detailed descriptions of the defect being investigated, and the number of failures, crashes, injuries & deaths that had been reported. NHTSA also, on request, faxed the monthly list and case resumes to the press and persons interested in monitoring the agency's investigations. (Attachment A is an exemplary monthly list with resumes.) We would be interested to know the number of monthly subscribers and the number of requests that the agency received each month. Unfortunately, at the same time NHTSA terminated its monthly list, the agency also dropped the practice of posting the list on its Web site. (Attachment B shows an empty page from NHTSA's Web site, in the area that used to contain monthly investigation lists and case resumes back to 2001.)

There are at least six reasons why the list should continue to be regularly published:

1) Informing the public of NHTSA's investigations of defects and safety recalls assists the agency in its statutory mission to protect the public from an unreasonable risk of vehicle crashes, deaths and injuries due to vehicle defects.
2) Publication of the list fulfills NHTSA's statutory obligation to notify the public during the investigatory stage of deadly defects; e.g., the Ford Pinto, Firestone 500 tire, Firestone ATX and Wilderness tires, Chrysler minivan tailgate latch, General Motors pickup side saddle fuel tank, Ford transmissions that fail to remain in park, and many more defects that have killed and injured thousands of people.
3) The list assists the public in deciding which new or used vehicles to buy.
4) The list raises awareness of the risks of potential safety defects in cars driven by members of the public.
5) The list enables the public to assist NHTSA in carrying out investigations.
6) Continued publication would help to fulfill a stated hallmark of your tenure as Administrator: your commitment to transparency and openness in the agency, while ceasing publication of the monthly defect list is the opposite of openness and transparency.

Accompanying the demise of the monthly defect list, a disturbing trend has accelerated under your watch whereby automotive manufacturers are allowed to conduct voluntary “service campaigns” in lieu of statutorily-defined safety recalls. Because neither a manufacturer nor the agency makes a formal defect determination, a service campaign is not subject to any of the far more effective notification and reporting requirements inherent in a recall, nor are manufacturers actions potentially subject to the civil penalties available under the Vehicle Safety Act.

In a bizarre twist, the agency very recently also decided to mislabel such service campaigns a safety recall, even though they are not, in point of fact, an actual recall. NHTSA announced just a month ago that it will now list service campaigns under the heading for safety recalls in its annual report entitled Safety Related Recall Campaigns for Motor Vehicles and Motor Vehicle Equipment.

Since the very first report was published for the period from September 9, 1966 (the day on which the Vehicle Safety Act took effect), to September 9, 1967, this book has been reserved for the safety recalls required by NHTSA, and reported by vehicle, equipment and tire manufacturers. While the proliferation of so-called service campaigns have seriously undermine NHTSA's authority to protect the public and are bad enough, the agency's subsequent decision to include them in the recall column represent an insidious alteration of the statute defining a recall in a manner unauthorized by Congress and for no public purpose. The only purpose of this change in terminology is to protect manufacturers from greater public comprehension of their exposure to hazards and the potential liability of a recall. Neither of these results is appropriate for NHTSA to foster.

Since passage of the Transportation Recall Enhancement, Accountability and Documentation (TREAD) Act in November 2000, the distinction between a safety recall and a service campaign has become all the more important. Under § 6 (b) of TREAD, 49 US § 30120(d), a manufacturer must reimburse an owner who paid for the cost of the remedy within a reasonable time before notice of the safety recall. A service campaign is not subject to this provision of the law, so a manufacturer that conducts only a service campaign is free to impose the cost of any prior repairs on consumers. This is only one reason that the manufacturers prefer service campaigns to safety recalls.

The combined effect of ceasing publication of the investigation list and mislabeling service campaigns as safety recalls is to conceal from the public the fact that the agency has become a toothless tiger when it comes to its enforcement role in safety investigations and recalls. The agency's answer to dropping the ball in many investigations is to hide its real track record from the public eye. If NHTSA were a corporation, the Federal Trade Commission would investigate the agency for misleading practices.

Given your praiseworthy practice of speaking the truth in other areas of safety concern, such as the hazards of SUVs, we are asking that you require that NHTSA tell the full story about defect investigations by: (1) reinstating publication of the monthly defect investigation list and case resumes; and (2) fulfilling NHTSA's statutory obligations to require a safety recall where one is warranted, rather than permitting manufacturers to provide only the lesser consumer protections of a service campaign while the agency mislabels the action a recall.

Sincerely,

Clarence Ditlow, Executive Director
Center for Auto Safety


Joan Claybrook, President
Public Citizen


Jack Gillis, Director of Public Affairs
Consumer Federation of America


Ed Mierzwinski, Consumer Program Director
US Public Interest Research Group


Judith L Stone, President
Advocates for Highway and Auto Safety





[1] NHTSA has recently claimed that the public may obtain the same information that was contained in the Monthly List through the Defect Investigation page of the agency’s Web site and its Quick Search function. Yet visitors to this site cannot find (1) information on investigations opened within the past four weeks or (2) any information on older investigations, or what is going on in those or (3) any information on closed investigations. As is shown in Attachment C, the agency’s Quick Search function is plagued with programming errors. As just one example, a search on April 10, 2003, turned up 37 entries, all for Investigation No. RQ03007. NHTSA also claims that the public can conduct a make/model search to locate information regarding any pending investigation. But this would be like looking for a needle in a haystack, as it would take countless hours to search for the thousands of make, model and year combinations for vehicles on the road. This suggested method would be, practically speaking, nearly impossible, and a ridiculous waste of time for consumers.