Blumenthal, Markey Call for Increased Transparency, Accountability at NHTSA

(Washington, DC) –  Senators Richard Blumenthal (D-Conn.) and Edward J. Markey (D-Mass.), members of the Commerce, Science and Transportation Committee, today called for immediate action to increase transparency measures at the National Highway Traffic Safety Administration (NHTSA). A devastating new report from the Department of Transportation’s Inspector General (IG) enumerates in blistering detail the many lapses in policy, protocol, decision-making and judgment on the part of the agency as it investigated the faulty GM ignition switch that has led to at least 114 deaths and many more injuries. In particular, the new report documents how NHTSA had information about the faulty ignition switch as early as 2003 but took no action. The report also highlights that the agency does not ensure compliance from auto manufacturers to submit information to the Early Warning Reporting (EWR) system, nor does it come close to adequately analyzing the information it does have access to. The EWR system is NHTSA’s public and searchable online database that is supposed to house information about incidents involving potential defects associated with auto fatalities, injuries, or property damage.

 “The Inspector General’s new report further underscores our assertions that NHTSA has failed to use, disclose and in some cases even understand reports and documents it obtains from automakers and consumers that are supposed to provide early warnings of deadly automobile defects,” said Senators Blumenthal and Markey. “We are encouraged that NHTSA agrees with the recommendations made in this scalding indictment of its past ineptitude and indifference to the lives that were lost as a result. Now, the best way to ensure that this avoidable tragedy isn’t replayed again in the future is to empower the public and make public the information NHTSA has historically ignored. Our legislation to reform the Early Warning Reporting system that would make the information NHTSA receives from auto manufacturers public and in a user-friendly format so that consumers can evaluate potential safety defects themselves. It is also clear NHTSA needs sharper teeth, which is why we plan to continue fighting for legislation that expands the agency’s civil and criminal penalty authority to compel compliance with the law.”

Senators Blumenthal and Markey have been leading the investigation in the Senate of the defective GM ignition switch recall. Specific findings in the IG’s report that the Senators first investigated and made public include:

1. The DOT IG report found that NHTSA had information about GM’s defective ignition switch as early as 2003, including non-public documents submitted to its Early Warning Reporting system, but it did not take action that could have saved people’s lives.

 “ODI received early warning reporting data and consumer complaints related to the GM ignition switch defect19 for more than a decade before GM notified ODI of the recall on February 7, 2014.”

“ODI also missed other opportunities to investigate the ignition switch when new evidence came to light in subsequent years.”

“However, some consumer complaints described the ignition switch defect in detail. For example, in June 2005, a consumer sent NHTSA a copy of a letter that she sent to the GM customer service department describing how her 2005 Chevrolet Cobalt had turned off on three occasions while driving. The letter stated that the service manager tested the vehicle and was able to turn the ignition switch when his knee hit the bottom of the “opener gadget” on the keychain. The letter goes on:

This is a safety/recall issue if there ever was one. Forget the bulletin. I have found the cause of the problem. Not suggested causes as listed in bulletin. The problem is the ignition turn switch is poorly installed. Even with the slightest touch, the car will shut off while in motion. I don’t have to list to you the safety problems that may happen, besides an accident or death…”

1. Among the secret documents NHTSA had that could have alerted the public to the defective GM ignition switch was a 2007 report that accurately described the cause of a fatal Wisconsin accident that Senator Markey first obtained and released publicly in 2014.  However, NHTSA neither made the document public nor, apparently, understood it.

“For example, in June 2007, GM provided ODI with a State trooper’s report that identified the 2005 Chevrolet Cobalt’s ignition switch as a possible cause of air bag non-deployment during a fatal accident. However, two ODI staff who reviewed the report in 2007 did not note this potential link when documenting their reviews.”

“However, ODI staff missed opportunities to connect the ignition switch defect to air bag non-deployments because they did not consider all available information. For example, in 2007, two ODI employees reviewed the underlying documentation for a death and injury report on a fatal accident involving a 2005 Chevrolet Cobalt, which contained evidence that linked the ignition switch defect to the vehicle’s air bag non-deployment. However, neither employee—an early warning reporting analyst and an ODI air bag investigator—made this connection during their analyses of the documentation. The death and injury report documentation specifically included:

• A Wisconsin State Trooper’s report that identified the ignition switch defect as a possible cause of air bag non-deployment during the accident. However, the two ODI staff who reviewed the report did not note this finding when documenting their reviews of the report.

• Event data recorder data showed the vehicle’s power mode status had been in the “accessory” position during the accident—a key indicator of the ignition switch defect. However, the ODI analyst reviewing this report did not include this information in his annotation. The air bag investigator noted this information in his review but ultimately concluded that the air bag non-deployment was caused by the long delay between the first and final impacts.”

1. The DOT IG found that NHTSA does not verify that automobile manufacturers comply with Early Warning Reporting requirements, and does not take prompt enforcement action when non-compliance is suspected. Senators Markey and Blumenthal have conducted extensive oversight of NHTSA’s EWR compliance and enforcement, including efforts in which the Senators alerted NHTSA to non-compliance by Ferrari and Honda (after which NHTSA issued penalties against both). In response to one letter, NHTSA told the Senators that “it is not possible to verify the accuracy of each piece of information submitted in early warning reporting” and that NHTSA enforces compliance “as appropriate”.

“Moreover, ODI does not verify that manufacturers’ early warning reporting data are complete and accurate. Although ODI has the authority to inspect manufacturers’ records for compliance with early warning reporting requirements, NHTSA officials told us the Agency has never used this authority. In addition, the Agency has no processes in place for systematically assessing the quality of early warning reporting data or internal guidance on using oversight tools to enforce data reporting requirements. The Agency also has not established best practices for providing early warning reporting data and does not periodically review manufacturers’ early warning reporting procedures. Instead, the Director of ODI told us ODI relies on the “honor system.”

“Yet even in cases where ODI suspects noncompliance, it has not taken prompt enforcement action.”

“Further, ODI’s processes for verifying that manufacturers submit complete and accurate early warning reporting data are insufficient. For example, in May 2014, ODI officials told us that one vehicle manufacturer reported less early warning reporting data than comparable manufacturers. However, ODI took no enforcement action until the manufacturer self-reported the omission of 1,700 death and injury claims in October 2014, even though ODI contacted the manufacturer about inconsistencies in its reporting in late 2011 or early 2012.”

1. The DOT IG identified deficiencies in the way NHTSA requires Early Warning Reporting data to be submitted. 

“Deficiencies in ODI’s vehicle safety data are due in part to the Agency’s lack of detailed guidance on what information manufacturers and consumers should report. For example, ODI regulations specify 24 broad codes for categorizing early warning reporting data for vehicles. However, according to ODI, an average vehicle may have over 15,000 components. Without detailed guidance, decisions regarding key aspects of early warning reporting data are left to the manufacturers’ discretion—resulting in inconsistent reporting and data that ODI investigative chiefs and vehicle safety advocates consider to be of little use.”

1. The DOT IG found that NHTSA does not adequately analyze Early Warning Reporting system data to identify potential defects.

“Weaknesses in ODI’s processes for analyzing vehicle safety data further undermine ODI’s efforts to identify safety defects. Specifically, ODI does not follow standard statistical practices when analyzing early warning reporting data, such as establishing a base case for what statistical test results would look like in the absence of safety defects. Consequently, ODI cannot differentiate trends and outliers that represent random variation from those that are statistically significant.”

Senators Blumenthal and Markey’s Early Warning Reporting System Improvement Act would require automobile and equipment manufacturers to automatically submit the accident report or other document that first alerted them to a fatality involving their vehicle or equipment to NHTSA’s Early Warning Reporting database.  NHTSA would then be required to automatically make those documents public unless they are exempted from public disclosure under FOIA. The legislation also would require NHTSA to consider Early Warning Reporting information when it is investigating potential safety defects and when it is evaluating citizen petitions for automobile safety standards or enforcement actions.

The Automaker Accountability Act would eliminate the cap on the maximum allowable civil fine the Department of Transportation (DOT) can levy on automakers for safety violations or failure to report known defects.