1. . . I -- United States General Accounting Office Report to the Chairman, Committee on GAO Energy and Commerce, House of Representatives September 1990 MOTORVEHICLE SAFETY Information on Recent Controversy Between NHTSA and Consumer Group GAO/RCED-90-221 United States GAO General Accounting Office Washington, D.C. 20648 Resources, Community, and Economic Development Division B-239745 September 27,199O The Honorable John Dingell Chairman, Committee on Energy and Commerce House of Representatives Dear Mr. Chairman: As requested in your letter of November 7, 1989, and subsequent discus- sions with your office, this report provides information on various alle- gations involving the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) and the Center for Auto Safety (Center). NHTSA is responsible for ensuring highway and vehicle safety; the Center is a private consumer group concerned with vehicle safety issues. You enclosed a copy of the Center’s September 1989 Lemon Times newsletter that alleged that NHTSA had allowed unsafe vehicles to remain on the roads. The article listed 25 defect investigations involving roughly 37 million vehicles that NH-KU’S Office of Defect Investigation (ODI) had asked manufacturers to recall voluntarily. Later, NETSA closed these investigations without ordering a recall. Also, the Center stated that the Congress should provide judicial review of NHTSA decisions to deny petitions to open safety investigations, or to close safety defect investigations without a recall. Largely in response to this article, 50 ODI employees sent a letter to the Center defending NH--EN’S decisions to close the 25 defect investigations and charged the Center with eroding public confidence in NHTSA. We focused our review on (1) the reasons for the controversy between NHTSAand the Center over the 25 closed safety defect investigations, (2) the issues surrounding proposed judicial review of NHTSA’S decisions to deny petitions to open safety defect investigations or close investiga- tions without a recall (nonenforcement decisions), (3) whether the Center’s activities hindered ODI’S work performance or damaged public confidence in NHTSA, and (4) whether the Center’s sale of data obtained from NHTSA is legal, and whether the Center receives preferential treat- ment in obtaining those data. ODI employees said that they responded to the September Lemon Times Results in Brief article because the director of the Center had visited ODI before the article was published, and the employees believed that a number of their Page 1 GAO/WED-W221 NHl’SA/Consumer Group (bntroversy B239746 differences had been resolved. ODI employees saw the subsequent publi- cation of the article as a betrayal because it did not portray ODI'S investi- gative process accurately. A particular misunderstanding concerns the role of the recall request letter, which is the letter ODI sends to manufac- turers asking them to recall a vehicle model voluntarily. Another major source of conflict between ODI and the Center concerns the role of the recall request letter. In its Lemon Times article, the Center noted that ODI sent a recall request letter for each of the 25 inves- tigations and later closed these investigations without ordering a manu- facturer recall. According to ODI officials, however, the recall request letter is often followed by ODI'S obtaining additional information from the manufacturer or conducting its own tests. ODI then uses this addi- tional information to decide whether the safety defect warrants further investigation or action. NHTSAclosed 21 of the 25 safety defect investiga- tions cited in the article because the agency decided that the safety risks were insufficient to warrant pursuing the matter any further. NHTSA closed one investigation because it lost a federal court appeal, and the other three because they were similar to the case NHTSA lost (see app. I). A 1985 Supreme Court ruling (Heckler v. Chaney) set a general pre- sumption of unreviewability for federal agency nonenforecment deci- sions. NHTSA'S denying a petition to open a particular safety defect investigation fits within this category. A 1988 District of Columbia Cir- cuit Court case (Center for Auto Safety v. Dole) applied the Heckler v. Chaney ruling to a NHTSAdecision to deny a petition to open a defect investigation, finding it inherently unreviewable because NHTSA’S gov- erning statute and regulations provide a reviewing court “no law to apply.” The Center supports legislation under which the court could examine the substance of such denials to determine if they were “arbi- trary and capricious.” Currently, enacting legislation to change NHTSA'S governing statutes is the only way to permit review of NHTSA’Snonen- forcement decisions under the “arbitrary and capricious” standard. We found no court decisions discussing the right to judicial review of deci- sions to close investigations without a recall. We found no evidence that the September controversy hindered ODI employees from performing their work. ODI officials believe, however, that the Center’s activities over the past several years have caused a loss of public confidence in NHTSA, resulting in fewer calls to NHTSA’S Auto Safety Hotline on potential safety defects, and fewer returns of 0~1’s vehicle owner questionnaires. Our examination of 6 years of ODI statistics found that questionnaire returns have declined from a high in Page 2 GAO/RcEDW221 NEISA/Consumer Group Controversy Et-239746 1987, and that Hotline defect calls have been declining since early 1989. There is no clear evidence, however, to indicate what role, if any, the Center’s activities may have played in this decline. The Center does not violate any laws by selling information it receives from NHTFA and does not seem to be treated differently from other public interest groups requesting information from MIT%. According to its director, the Center does not charge the general public for its infor- mation packets on specific safety defects and recalls, but does charge reporters, attorneys, and others for a complete list of defect complaints. The price roughly covers the Center’s costs. Under the National Traffic and Motor Vehicle Safety Act of 1966, as Background amended, NHTSA has the authority to recall motor vehicles found to have a safety defect that poses an unreasonable risk of accident. From 1967 through 1989, approximately 140 million vehicles have been recalled for safety defects, many as a direct result of NWIW’Sinfluence. The Center for Auto Safety is a nonprofit consumer group founded by Ralph Nader and the Consumers Union in 1970.* The group has been independent of its founders since 1972. The Center has been both a major critic of NHTSA and a frequent user of NHTSA information and data. The Center also supplies information to NHTSAfrom consumer com- plaints it receives on possible vehicle defects. In an article in its September 1989 Lemon Times, the Center accused NHTSAof allowing vehicles it knows to be unsafe to remain on the roads. The article lists 25 investigations involving roughly 37 million vehicles in which NHTSA asked for a voluntary manufacturer recall and later closed the investigation without a recall. The Center contends that the Congress should provide for judicial review of agency decisions to close safety defect investigations (such as the 25) without a recall or to deny petitions to open defect investigations. Fifty NHTSAODI employees signed a response letter to the Director of the Center defending NHTSA’S record on the 25 cases and charging the Center with undermining the defect investigation program by eroding public confidence in NHTSA. ‘The Consumers Union is a nonprofit organization established in 1936 which provides mfomuuon to consumers on goods, services, health, and personal finance. Page 3 GAO,‘RCED9&221 NWI%/Conmme r Group (bstmwwny a-239745 officials and employees told us that although they expect criticism Several Reasonsfor ODI from outside groups in the course of their work, the Lemon Times article the NHTSA/Center provoked a response because the Director of the Center had visited ODI Controversy prior to its publication. ODI employees thought they had reached a con- sensus on several issues of disagreement during this visit, but the crit- ical article came out shortly afterwards. NHTSA and the Center continue to differ on their interpretations of the recall request letter and its role regarding the 25 defect investigations cited by the Center. Beyond this, the different roles and responsibilities of NHTSA and the Center in pro- moting auto safety cause a continuing tension between the two groups. Center Director’s Visit The main catalyst for writing a letter responding to the Lemon Times article was the fact that the Director of the Center had visited ODI Provided Impetus for shortly before its publication to resolve differences between the two NHTSA ResponseLetter groups. ODI officials invited the Director to visit the agency and talk to ODI staff about how the two groups could work together more effec- tively, hoping to arrive at a compromise in regard to information sharing. Specifically, ODI employees have been trying to get the Center to standardize the information contained in consumer complaints that it forwards to ODI, thereby saving what staff characterize as many extra hours of work tracking down additional information and weeding out duplicate complaints. ODI employees told us that after the meeting, they were left with the impression that the Center would be more willing in the future to work with the agency for their mutual goal of promoting vehicle safety. Hence, the subsequent publication of the Lemon Times article caused many employees to feel betrayed because they believed the Director deliberately misrepresented 0~1’s investigative process. Recall Request Letter’s As outlined in ODI’S formal procedures, a request letter for voluntary recall is sent when ODI investigators have made a preliminary determi- Role in NHTSA’s nation that a defect exists. This determination is made during the engi- Investigative ProcessIs neering analysis phase of an investigation. A recall request letter is only Disputed one step in an ongoing safety investigation, and subsequent information from the manufacturer or from ODI’S own testing may lead investigators to conclude that the defect does not pose an unreasonable risk of acci- dent. Also, a manufacturer may take other action, short of a formal recall, that satisfies ODI investigators (See app. 11for a summary of !)DI’S investigative procedures). Page 4 GAO/WED-90-221 NHl’SA/Consumer Group (bnuoversy Es2397465 One ODI official acknowledged that the decisions made in regard to the 25 cases cited by the Center were very difficult, but that the process depends on allowing engineers, managers, and legal staff to make the hard decisions on the basis of their professional experience, knowledge, and expertise. In each of the 25 safety defect investigations cited by the Center, NHTSA sent a voluntary recall request letter to the manufacturer and, after further information-gathering and investigation, later closed the investigation without a recall. According to ODI closing documents, 21 of the 25 investigations were closed because the alleged defect did not pose a safety risk significant enough to warrant further action. One was closed because NHTSAlost a federal court appeal, and the remaining three were closed because they were similar to the case NHTSA lost in federal appeals court (see app. I). For example, four of the defects in question resulted in a safety failure early in the life of the vehicle. ODI officials said these types of defects will not have a significant safety impact because the manufacturer most likely will have repaired or replaced the defective part before a recall is necessary. Also, the manufacturer will have changed the design on later models to prevent future failures. In nine other investigations, manufac- turers took corrective action, such as a partial recall or a service cam- paign which ODI deemed sufficient to minimize any safety risk. Three other investigations concerned defects that might cause a gradual equip- ment failure, with warning to the driver. ODI officials consider gradual equipment failure with some type of warning to be a mitigating factor when evaluating potential safety risk. Each of these investigations involved use of formal procedures, analysis, and professional judgment by NHTSA'S engineers and attorneys that a recall was not warranted. NHTSA and the Center NHTSA and the Center play different roles in promoting auto safety. As a government agency, NHTSA is bound by its authorizing legislation, which Have Different Auto directs it to find and remedy defects that pose an unreasonable risk to Safety Roles and safety. The definition of “unreasonable risk,” however, is left open, and Responsibilities the tension between NHTU and the Center arises in part because of dif- ferences in the way each interprets this standard. The consumer- oriented Center is more inclined to consider the existence of any defect to be “unreasonable,” while NHTSA takes into account such factors as the severity of safety hazards caused by the defect, and how much warning the driver receives before a significant safety failure occurs. Page S GAO/BCEJM@221 NETSA/Consumer Group (‘ontmversy 5239745 The Lemon Times article expresses the Center’s support for legislation Judicial Review of to permit judicial review of NI-ITSA decisions to deny petitions to open Federal defect investigations, or to close investigations without recalls. The Nonenforcement article discusses several high-profile investigations and lists the 25 that NHTSA closed without a recall to demonstrate the need for such legisla- Decisions tion. The Senate bill cited, however (S. 673), referred only to judicial review of NHTSA decisions to deny petitions to open defect investigations. Currently, NHTSA’S governing statutes would have to be changed to permit either type of review. NHT% is almost completely exempt from review of its decisions to deny petitions to open defect investigations since a 1985 Supreme Court ruling that a federal agency’s nonenforcement decisions are not review- able by the courts unless an agency’s statute provides for it (Heckler v. Chaney).2 Heckler v. Chaney also found that the general presumption of unreviewability did not apply where (1) the agency’s inaction was based on a conclusion by the agency that it did not have the statutory authority to deal with an issue, (2) the agency’s policy was so extreme as to amount to an abdication of its statutory responsibilities, or (3) con- stitutional rights are being violated. The District of Columbia Circuit Court applied the principles set forth in Heckler v. Chaney when it spe- cifically held in 1988 that nothing in NHTSA'S governing statute or regu- lations allowed for judicial review of a NliTSA decision to deny a petition to open a safety defect investigation (Center for Auto Safety v. Dole).3 None of the three exceptions outlined in Heckler v. Chaney were found to be applicable in this case. The Director of the Center for Auto Safety said he supports judicial review of NHTSA nonenforcement decisions using the “arbitrary and capricious” standard set out in Title 5 [6 U.S.& sec. 706 (2)(a)]. To this end, the Center supported a judicial review provision included in S. 673 (National Highway Traffic Safety Administration Authorization Act of 1989), as approved by the Senate Committee on Commerce, Science and Transportation. The judicial review provision was removed from the bill on the Senate floor, and the bill as amended was passed by voice vote on August 3, 1989. The Center for Auto Safety seeks to have the provision reinstated in the House version. 2Heclder v. Chaney, 470 U.S. 821(1986). 3C.enterfor Auto Safety v. Dole, 846 F.2d 1532 (DC. Cir. 1988). Page 6 GAO/WED-XL221 NHTSA/Consume r Group ( mvmrrny Is239745 The judicial review provision contained in S. 673, however, referred only to agency denials of petitions to open investigations, not to agency decisions to close an investigation without a recall. We found no court decisions discussing the right to judicial review of decisions to close investigations without a recall. The Director of the Center pointed to a 1970 suit brought by the Center in which the group had sued over just such an issue and obtained a preliminary injunction against NHTSA The Director considers this suit precedent for allowing judicial review. Before the suit was decided, however, the manufacturer recalled the vehicles in question voluntarily. Therefore, the court did not reach a conclusion on this issue. We believe that the 1970 suit does not set a precedent for judicial review of NHTSA's decisions to close an investiga- tion without a recall. Department of Transportation officials oppose judicial review of NHTSA petition denials because they fear an onslaught of litigation over investi- gations they are not pursuing that will force them to divert resources- engineers and lawyers- away from the problems they do choose to investigate. The Director of the Center believes that the “arbitrary and capricious” standard is tough enough to prevent a large influx of court cases against NHlS4, and he said that previously, the Center sued NHTSA over a petition denial only once (the l-988 Center for Auto Safety v. Dole case). The Senate Committee report on S. 673 confirms that only one NHTSA petition denial has been challenged in court since the National Traffic and Motor Vehicle Safety Act of 1966 was amended in 1974 to provide for citizen petitions, among other changes. The Director of the Center told us that the real worth of a judicial review provision is that it forces NHTSA to consider possible public opposition when making deci- sions not to open certain safety defect investigations. As it stands, the Congress would have to change the law to provide for judicial review of NHTSA’S decisions to deny a petition to open a defect investigation, or to close an investigation without a recall. As noted above, agency nonenforcement decisions are not reviewable since Heckler v. Chaney unless set out in agency statute or regulation. The Senate has considered and rejected legislation providing for such reviews of NHTSA. Page 7 GAO/RCJ3lM@221 NEllSA/Conmmer Group Controvemy E239743 The controversy surrounding the September Lemon Times article and Impact of Center’s ODI employees’ letter to the Center did not hinder ODI employees in their Actions on NHTSA’s work. ODI officials continue to believe, however, that the Center’s activi- Work ties over the past few years have reduced public confidence in NHTSA, resulting in fewer calls to the agency to report potential safety defects and fewer returns of ODI’S vehicle owner questionnaires. We found that certain indicators ODI officials use to measure public confidence in NHTSA have been decreasing recently, but there is no clear evidence linking this drop to the Center’s activities. Federal government employees are subject to review and criticism of their work by the public, and ODI employees are often criticized by the Center and other groups. When we spoke with ODI employees, we found that while some employees were angry about what they believed were distortions of their work, most said they recognize the legitimate role the Center plays as consumer advocate. Also, there was a consensus among the employees that the particular September 1989 Lemon Times article was no worse than previous or subsequent criticism from the Center. We found no evidence that publication of the article hindered ODI employees from performing their work. On the contrary, several told us that they were motivated to work even harder. One member of the com- plaint-screening staff said that he “took it as a challenge,” and another said that she responded by taking more time with public callers so that they would have a good impression of the agency. The incident seemed to improve office morale, and the employees generally believed the resultant publicity was good for NHTSA because it raised public aware- ness of the agency’s existence and mission. In their September letter to the Center, 50 ODI employees alleged that their work has been hindered by a loss of public confidence in the agency. ODI officials fear that if the public loses confidence in NHTSA, fewer people will report potential safety defects. Several 0~1 employees stressed the fact that their work depends on reports of safety defects from the public for early clues to potential auto safety problems, via their Auto Safety Hotline and Vehicle Owner Questionnaires. To support their case that the Center’s activities in recent years, including the Sep- tember article, have had a negative effect on public confidence in NHTSA, ODI officials gave us statistics on the number of calls to the Auto Safety Page 6 GAO/BCZBW221 NHlSA/Consumer Group Controversy 5239746 Hotline and the number of Vehicle Owner Questionnaires returned.4 ODI officials use these numbers as indicators of public willingness to contact NHTSAabout auto safety problems. We analyzed ODI’S numbers and found that questionnaire returns are down substantially since 1987. It should be noted, however, that in 1987, questionnaire returns were much higher than in any other year from 1984 to 1989 (see fig. 1). ODI officials suggested that several high- profile defect investigations in 1987 may have caused the high return rate, but they could not pinpoint any specific reason for the increase. ODI officials continue to be concerned by the numbers for the first 6 months of 1990, which are lower than those for the same months in 1989.5 We found no clear evidence linking the fluctuations in questionnaire returns to the Center’s activities. 4NHTSA sends out a questionnaire to every person who calls with a complaint about a safety tlrt& or an information request on a recall effort. The questionnaire asks for specific informatlon aknjut the complainant’s allegedly defective vehicle, for use in safety defect investigations. 51nresponse to what they see as a sharp decrease in questionnaire returns, ODI officiab ha\ v twgun sollclting returns over the phone (“ekctronlc” returns). Ekctronic returns have ken PCPI\ t-d In the months of April, May, and June 1990. We did not include these electronic returns m our analysts If we had included them, the number of questionnaire returns would have been slightly h+$wr m I hese 3 months than in the same months in 1989. Page 9 GAO/RCED90-221 NHlSA/Consumer Group (‘~mtmversy B-239746 Figure 1: Vehicle Owner Questionnaire Returns, 1984-89 16 VOO Rstums (bmaands) Source: 001 data. ODI officials also were concerned that while Hotline calls were up sub- stantially in 1989, those calls relating to safety defects were down. We found that Hotline calls did rise substantially in 1989, most likely because of a controversy over child safety seats in December, during which ODI received substantially more hotline calls than in previous months. Because ODI employees do not send a vehicle owner question- naire in response to every call, it is difficult to make a direct comparison between the increased number of calls and the number of questionnaire returns. Even without reference to total Hotline calls, however, it appears that calls on safety defects are dropping (see fig. 2). Since these calls are often 0~1’s first tip on potential safety problems, any sustained decrease is cause for concern among ODI officials. Again, we found no clear link between the Center’s actions and the drop in defect calls. Page 10 GAO/EEBWM21 NElSA/Consumer Group Cmaroversy Figure 2: Number of Calls to NHTSA’s Auto Safety Hotlhw Reporting Potential Safety Defects, Jan. 1989-June 1990 2060 Dsfutcsus 1000 1600 1100 1200 1000 606 --- 600 400 200 lm# 2189 m9 me was 6/w rm Bma San 1omB 11188 1211)s lrn 2m s/o0 us0 6m6m lirrmlnMonths Source: ODI data. The Center’s sale of information available from NHTSA is not illegal. If a Center’s Use of third party is willing to pay the Center for information that one can get NHTSA Information free from NHTM, there is no legal prohibition on the Center’s selling it to the third party. The Center receives information from NHTSA by (1) reviewing the public files kept in W’S Technical Reference Library and noting or copying the needed information and (2) filing a Freedom of Information Act (IUA) request with NHTU’S Executive Secretariat. Although fees are associated with obtaining information by FUA request, the Department of Transportation waives all fees that total less than $10. While the Director of the Center said that the group often pays FOIAfees, NHTSAofficials told us that in most cases, the Center also gets a waiver for costs in excess of $10 under a section of the Department of Trans- portation’s VIA regulations which states that fees may be waived if dis- closure of the information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester” (49 C.F.R. Subtitle A, section 7.97 (e)). The Page 11 GAO/lUXD9&221 NJTl’SA/Consnmer Group (‘mwoversy Center does pay for a yearly computer search and downloading of ODI’S complaint database,including names and addressesof complainants.~ The Center does not seemto be treated differently from other nonprofit or public interest groups that request NITI%information, although it is the most frequent requester of information from the Office of Defect Investigation. ODI officials estimated that 90 percent of the time that employeesspend answering public inquiries is devoted to the Center. ODI officials also noted that the type of inquiry the Center makes generally requires the time of technical staff, not Hotline or other information- processingemployees. In regard to NXArequests, the Center is by far the largest public interest group requesting this type of information, making it difficult to compare its treatment with that of similar groups. ODI officials told us that, since the Center requests FDIAinformation in its complaint data baseso fre- quently, the information is sometimes releasedto it without going through the formal FUIAprocess.It should be noted, however, that auto manufacturers also are granted this informal waiver. No other group requests information as frequently as the Center and the manufacturers. The Director of the Center says that the group does not charge the gen- eral public for consumer packageson auto safety defects and recalls compiled from information obtained free from NITISLThe Center asks that information requests be in writing and that the requester include a self-addressedenvelope with 46 cents postage.According to the Director, the Center sendsout about 60,000 information packagesevery year. The packagesinclude referrals to NITW’Stechnical reference divi- sion (which charges a fee for searcheson specific defects and recalls) and the Auto Safety Hotline if additional information is needed. Information sold to reporters, attorneys, and others from ODI’S complaint data basecosts the Center $80 per search after the initial, annual downloading. The Director of the Center says that those who request this information are charged the search fee plus a postage and handling fee of $20. He claims the Center takes a loss much of the time even with this fee schedule and, in someinstances (e.g., to public interest research groups), provides the information free. ?he Center files a FDIA each year to obtain the names, addresses, and specitic complamts of those people who have contacted NJTISA in the preceding year. The Center hires a contractor w go through NH’ISA’s files and compile this information into a computer data base. K&i charges and (-ontractor fees total about $2,000. Subsequent searches of that data base cost the Center $80 each Page 12 GAO/WED-W221 NE’ISA/Conmuner Group (‘cmtroversy B-239745 To determine the reasons for the conflict over the 25 safety defect Scopeand investigations cited by the Center, we met with NHTSA and ODI officials Methodology and the Director of the Center. We reviewed and analyzed the closing documents for the 25 investigations and the recall request letters for 20 of the 25.7 Also, we interviewed three panels of ODI employees, including (1) seven employees from the complaint-screening staff, (2) four employees from the engineering analysis staff, and (3) seven senior ODI officials (one of the officials was also a member of the complaint- screening staff panel). These interviews helped us determine how ODI’S work had been affected by the controversy. In addition, we analyzed Auto Safety Hotline calls received by ODI from January 1984 through June 1990, and the number of Vehicle Owner Questionnaires returned between January 1984 and June 1990 to determine if the Center’s activ- ities had hindered ODI’s work by unde rmining public confidence in NHTSA. We reviewed Department of Transportation FOIAregulations and spoke to NI-I'ISA officials responsible for the disposition of FOIAand other infor- mation requests to determine how the Center compared with other public interest groups in requesting information from NHTSA.Finally, we examined legal matters principalIy relating to judicial review, but also encompassing the legality of the Center’s sale of NHTSAinformation. It was not within the scope of our review to determine whether NH-ISA’S decisions in regard to the 25 safety defect investigations were correct. We discussed the information in this report with NHTSAofficials and the Director of the Center, who agreed with the facts presented. As requested, however, we did not obtain official agency comments on a draft of this report. Our work was conducted primarily between December 1989 and June 1990 in accordance with generally accepted government auditing standards. As arranged with your office, unless you publicly announce its contents earlier, we plan no further distribution of this report until 30 days after the date of this letter. At that time, we will provide copies to the Secre- tary of Transportation, the Administrator of NHTSA, the Director of the WHTSA officials were unable to provide recall request lette13 for five of the inveS$atbm GUIstated th8trheIettersweresent. P8ge 13 GAO/RCEDWPl NEISA/ckmsnme r Gruap I-aawrrsy 5239746 Center for Auto Safety, and any other interested parties. If you have any questions about this report, please contact me at (202) 275-1000. Major contributors to this report are listed in appendix III. Sincerely yours, Kenneth M. Mead Director, Transportation Issues Page 14 GAO/lUXB~Z21 NElSA/Consnmer Groap (bnmversy Page 16 GAO/RCE@9M!21 IWR3A/Consnme r Gmap (batrovemy Contents Appendix I 18 Details on the 25 Investigations Cited by the Center Appendix II 22 Office of Defect Preliminary Evaluation Engineering Analysis 22 22 Investigation’s Formal Case 24 Procedures for Conducting Safety Defect Invktigations Appendix III 25 Major Contributors to This Report Related GAO Products 28 Figures Figure 1: Vehicle Owner Questionnaire Returns, 198489 Figure 2: Number of Calls to NHT!W’s Auto Safety Hotline Reporting Potential Safety Defects, Jan. 1989-June 1990 Abbreviations Dar Department of Transportation EA engineering analysis NnA Freedom of Information Act GAO General Accounting Office National Highway Traffic Safety Administration ODI Office of Defect Investigation PE preliminary evaluation VOq Vehicle Owner Questionnaire Pa@! 16 Page 17 GAO/RCED9@221 NEl’SA/Conmmer Group Controversy Appendix I Details on the 25 Investigations Cited by the Center ,. _.,, - _,,, -_ ,. ..,, -_ - .-- l$wt;ffice action File order Affected vehicles Alleged defect 1 EA78-118 1975-84 Ford trucks & vans Loose or missing stud nuts & broken wheel studs; can result m a C85-10 set of dual rear wheels falling off 2 EA79-057 197578 Cadillacs Headlight adjustor failures; headlight drops down or to the side when plastic adjusting nut breaks; some visibility problems no warning 3 EA79-079 1974-79 Ford vehicles Loss of power steering/brake assist; increases force/time needed for steering/braking 4 EA80-009 1976-78 Chevettes Tire separates from rim, resulting in a flat or complete detachment; potential loss of vehicle control 5 EA80-085 1978-79 Cadillac Sevilles Broken wire wheel spokes cause flat or wheel separation; potential. loss of vehicle control 6 EA80-024 1980-85 GM X-Body vehicles Rear brake lock-up; potential loss of control C81-09 EABO-112 197980 Dodge and Failure of hatchback support; door falls without warnrng C82-18 Plymouth Horizons ~--___. EA81-015 197880 Chevy Malibu, Monte Carlo & El Rear axle separation C82-03 Camino, Pontiac Lemans & Grand Prix, Olds. Cutlass & Cutlass Supreme, Buick Century & Reaal. GMC Caballero 9 EA81-010 197980 Mustang and Capri Failure of hatchback support; door falls wlthout C82-19 warning -__ 10 E82-028 1981-82 Ford Escort, EXP & Mercury Lynx, Engine compartment fires LN7 11 EA83-014 1978-82 Chrysler vehicles with 1.7L and 2.2L Carburetor isolator failure; results in stalling engine . 12 EA80-100 1980 GM X-Body vehicles Loss of power brake assist; increased force/ c84-01 distance needed for braking 13 EA83-013 198182 Ford vehicles Front seatback failure 14 E80-087 197980 Ford Mustang & Mercury Capri Rear brake lock-up; potential loss of control c84-005 15 EA84-019 1982 Chevy Camaro and Pontiac Firebird Failure of rear seatbelt anchorage 16 EA84-028 1981-82 diesel Chevy Chevettes Rear brake lock-up; potential loss of control Page 18 GAO/ECJCD-9@221NE’l’SA/Consnmer Group (imtrovcrsy Appendix I Detaila on the 2ti Investigationa Cited by the Center Date defect office Da;e~bcall request Date defect off ice opened actionb closed actionb Reason/s defect office closed action 09/l 4178 10/31/84 08/02/88 1. No difference seen between this vehicle and total vehrcle population-no unreasonable risk 2. Complaints down 3. New ‘design 03/l 8179 02/06/80 1O/27/81 1, No unreasonable risk-unlikely that two headlight adjusters will fail at once 2. New design 05/l 8179 04/03/80 04/21/82 1. Problem occurs early in life of vehicle-little likelihood of future incidents 2. New design on later models 3. Complain& down 11/12/79 04/17/80 02/03/82 1. Slow loss of air, providing warning to driver 2. Identifiable problem only in 1976 model, corrected 05/22/80 05/l l/81 1l/04/83 1. Sufficient driver warning 2. Tire air loss usually gradual, vehicle control maintained 3. Complaints down 11/26/79 07/06/81 05/18/89 GM 1980 X-Car case, which DOT lost in federal appeals court 09/02m 1l/20/81 Qxw= 1. No unreasonable risk 2. Complaints down 3. New design 04/07/81 12/02/8 1 ll/26/84 1. Safety recall was conducted on 3 million vehicles produced at one plant 2. No defect found on vehicles produced at other plants 06/23/81 06/01 f82 01/03/85 1. Ford took steps to correct problem 2. Complaints down 3. No unreasonable risk 05/27/82 07126184 1. No specific defect found 2. No unreasonable risk 3. Symptom occurs early in life of vehicle-little likelrhood of future incidents 05/12/83 12/11/88 1. No unreasonable risk 2. New design 07/24/80 08/l 2183 IO/l l/88 1. Complaints down 2. GM conducted an intensive information campargn on servicing these vehicles 3. No unreasonable risk 01/12/83 11/01/83 Ol/26/89 1. Ford conducted a recall that addressed the specrfic problem 2. No unreasonable risk on rest of vehicle 05/27/80 11fO3l83 05/l 8189 Similar to 1980 GM X-body case, which DOT lost In federal appeals court 05/01/85 1. Complaints down 2. Passes dynamic test 3. No unreasonable risk -- ..__ WW~ 1. Complaints down 2. Similar to 1980 X-Body case, which DOT lost In federal appeals court (continued) Page 19 GAO/WED-9&221 NEISA/Ckmsumer Group (‘mtroversy Details on the 25 Investigations Cited by the Center lh3;h3~pffice action File order Affected vehicles Alleged defect 17 EA84-023 1982-85 GM A-Body vehicles Rear brake lock-up; potential loss of control C85-07 18 EA84-008 Certain GM A-Body vehicles Upper control arm mounting failure; possible steering control problems 19 PE85-047 198285 Cadillac Eldorado Door fires EA88-003 20 EA82-040 197981 Honda Accord & Civic Seatbelt retractor failures 21 EA88-002 1982-83 Toyota Celica Malfunction of front seatbelts 22 Certain 198184 Toyota Cressidas Sudden acceleration ZEiE 23 PE88-051 1985 GM A,C,G,F and N- Windshield wiper failure EA88-025 Body vehicles 24 EA85-041 1985 GM A,C,X-Body Failure of linear seatback recliners; potential loss of control vehicles 25 EA85-018 1978-88 Chevy Chevette, Crankshaft pulley bolt failure; potential loss of power steering 198188 Pontiac T-1000 assist, engine overheating/stalling Page20 GAO/E~W221 NlI’l?SA/Conenmer Group (bntnwersy Details on the 25 lnve&igation~ cited by the Center Date defect office Date recall request Date defect office opened actionb isruedb closed actionb Reason/s defect office closed action 12/l 3183 01/03/85 04/ 18/89 Similar to 1980 X-Body case, which DOT lost in federal appeals court 1l/23/83 01 116185 12/08/85 1. No unreasonable risk 03/25/85 . 2. Problem occurs early in life of vehicle-little likelihood of future incidents 01/28/85 09/04/85 0211a/88 1. GM instituted a safety recall for defective part or cars with a high fail rate - 2. No iniuries/deaths . . reborted 07/20/82 11/04/85 05/l 2186 1. Honda took corrective action 2. No unreasonable risk 1o/ 18185 12/05/85 05/08/86 1. Toyota conducted service recall 2. No unreasonable risk 09/20/83 05/06/86 02~18~88 1. Toyota conducted recall to replace potentially defective part 2. Besides above part, no other defect found 3. Complaints down 04/28/86 09/05/86 03/02/88 1. GM issued six service bulletins on repair, which seemed effective 2. No unreasonable risk 3. Problem occurs early in life of vehicle-little likelihood of future incidents 4. New design on later models 08/l 9185 09/03/86 11/12/87 1. No unreasonable risk-seatback movement is gradual 2. New design 03/l 3185 05/09/86 09/04 /87 1. No unreasonable risk 2. Manufacturer service campaign initiated 3. New design Bathe defect office action numbers in this appendix may differ somewhat from ODI source documents because the same investigation sometimes was referred to differently in various ODI sources For example, an investigation might appear as E82-05 in one source, and EA82-005 in another The numbers do follow a consistent format, however, with a letter(s) to identify the level of investrgation (prelrmrnary evaluation, engineering analysis, or formal case), a 2-digit number identifying the year in which the investigation was opened, and a 2- or 3-digit number giving the chronological order wrthrn that year. bathe dates in this appendix have been compiled from several sources. ODI officials confirmed these dates, but in some cases, we were not able to document them independently. The dates are not a matter of dispute between NHTSA and the Center, however, and do not affect the content of thus report. Page 21 GAo/Bclxhm221 NJm3A/conrmme r Group Controversy Appendix II Office of Defect Investigation’s Procedures for Conducting Safety Defect Investigations Office of Defect Investigation (ODI) officials outlined their investigative process, which consists of three main steps, as detailed below: Most of 0~1’s work comes from consumer complaints via the Auto Safety Preliminary Hotline, but the agency also gains information on potential safety Evaluation defects from letters and from monitoring manufacturer service bulletins (manufacturers are required to send the National Highway Traffic Safety Administration (NI-ITSA)a copy of any service bulletins they send out to their dealers, even if the bulletin is not related to safety). ODIstaff screen the information for patterns and trends that would indicate a potential safety defect. If they see such a pattern, a preliminary evalua- tion (PE) is opened. When a PEis opened, ODIsends a letter to the manu- facturer requesting information on any complaint received on the particular problem noted. Manufacturers are required by law to provide this information (The National Traffic and Motor Vehicle Safety Act of 1966 requires manufacturers to notify NHTSAof any potential safety defects, not only those about which NHTSAsends an information request). NHTSAgenerally requests that the information be returned within 6 weeks, but the agency has no power to enforce this time limit. The PEis designed as an information-gathering process. When the manu- facturer responds, ODIstaff analyze the information and determine whether there is a potential safety problem or whether the manufac- turer has satisfactorily addressed its concerns. If the manufacturer’s response is adequate, a PEclosing document is prepared (this is a public document). If ODIstaff believe the problem warrants further investiga- tion, the case is upgraded to an “engineering analysis” (EA). The PE phase of a safety defect case usually takes about 4 months. ODIstaff told us that about one-third of all PEcases go on to the engineering analysis phase. Engineering Analysis EA. In this phase, a more lengthy information request is sent to the man- ufacturer. This request asks for information on any lawsuits pending against the manufacturer relating to the potential defect being investi- gated, its own engineers’ testing results, sales figures for replacement parts, subsequent design changes, and the manufacturer’s own appraisal of the potential safety consequences. ODImay also do its own tests at this point to determine whether the defect does have an adverse effect on safety. The tests may be done in-house at NHTSA’Slab in Ohio (which Page 22 GAO/ItCED~Z21 NHlSA/Cawumer Group Controversy Oflk of Defect Inveatigation’r ProaWes for coaeting safety Defect lnV~tlOM requires only an internal memorandum) or may be contracted out (which requires a formal procurement contract). ODI may have several rounds of correspondencewith the manufacturer to clarify specific points in the EAphase. Although it is possible that NHTS will bring something to the manufacturer’s attention of which it was unaware, generally, the manufacturer has much more information on a potential safety defect than NI-ITSA. ODI staff gather the relevant information to determine if a serious problem exists. This task is compli- cated by the fact that the quality and type of information available vary among manufacturers. For example, somecompaniesmay have informa- tion on warranties readily available but no information on replacement- part sales. Manufacturers will acknowledge that a defect exists much of the time, but will often claim it doesnot adversely affect safety. Also, manufac- turers will argue with ODI over the severity and frequency of the defect. ODI staff set up their own criteria, on the basis of the warranty, sales, and internal testing information, to determine if the defect is severe enough to pose a safety threat. If there is such a threat, ODI issues a recall request letter asking the manufacturer to recall the model for repair. A recall request letter is not an order, but a request for voluntary recall. In the past, NHTSA did not get a very good responseto its recall request letters. Now, however, manufacturers act on recall request let- ters much more often and voluntarily recall models containing safety defects. If they do not, however, NHTSA must decide whether to bring the defect investigation up to the next level-a formal defect case. At this point, it is still possible for manufacturers to provide NH’ISAwith new or updated information that can changethe status of a case.Manu- facturers are continually testing and surveying their dealers during the investigation process,and they have far greater resourcesat their dis- posal than NH’IW They may comeup with new or more detailed infor- mation that convincesODI either that the defect in question is not a safety hazard, or that it has been properly taken care of by the company (e.g., if the manufacturer has isolated and corrected the problem and performed a limited recall). If this happens, the casewill be closed and a closeout memo will be prepared for the public file (not all portions are public-any internal engineering opinions are deleted from the public file, as well as any confidential businessinformation). If the manufac- turer doesnot provide a satisfactory reason for refusing to recall defec- tive cars voluntarily, NHTSA has the option of opening a formal case Pyle 28 GAO/RCED-W221 NETSA/Chmmer Group ~batnwrmy Appendix If Off& of Defect Investigation’s Procedures for Conducting Safety Defect Investigations If NHTSA decides that a recall request has been refused without a good Formal Case reason, it will convene a defect review panel consisting of representa- tives from ODI, Office of the Chief Counsel, and the Office of the Admin- istrator. NHTSA attempts to reach a consensus on the severity of the safety problem at hand and the strength of NHTSA’S case if the agency were to press the issue in federal court. ODI officials also consult with the legal officials informally before the defect review panel convenes to get an idea of the strength of any potential court case. In the interest of agency credibility, NH%% is trying to send recall request letters only if it believes that they have a strong enough case to press the issue in court if necessary. NHTSA cannot force a manufacturer to recall vehicles except by court order on a case brought by the government. A formal case is the final stage of the safety defect investigation process, with the ulti- mate decision on recall resting with the federal courts. Page 24 GAO/RCED-W221 NHlBA/Consumer Group (im~mversy Appendix III Major Conttibutors to This Report John W. Hill, Associate Director Resources, Ron E. Wood, Assistant Director Community, and J. Erin Ebzik, Assignment Manager Cheryl A. Donahue, Evaluator-in-Charge Economic - ’ Curtis L. Groves, Senior Operations Research Specialist Development Division, Washington, DC. Martin J. Fitzgerald, Special Assistant to the General Counsel Office counsel, of w~hington, the General . David K. How=-, Attorney DC. Page 25 GAO/RCEM@221 NETSA/Consumer Gnmp Chmwexuy Page 26 GA0jRCED-W221 NETSA/- r Group (bsrrovemy Pqge 27 GAo/lK?EDw221 Nmswon- r Groap Controversy Related GAO Products Changes to the Motor Vehicle Recall Program Could Reduce Potential Safety Hazards (GAO/CED-82-99, Aug. 24, 1982). Department of Transportation’s Investigation of Rear Brake Lockup Problems In 1980 X-Body Cars Should Have Been More Timely (GAO/ RCED-83-196,Aug. 5, 1983). Department of Transportation’s Motor Vehicle Defect-Testing Proce- dures Were Reasonable-Public Announcements of Potential Safety Defects Could Be Improved (GAO/RCED-&-28, Nov. 9, 1984). Auto Safety: Effectiveness of Ford Transmission Settlement Still at Issue (GAO/RCED%-62, June 10, 1986). Motor Vehicle Safety: Enforcement of Federal Standards Can Be Enhanced (GAO/RCED437-2,Dec. 15,1986). (342810) Page28 GAO/RCED9@221NHTSA/Chnsumer Group Contnweray Ordering Information The first five copies of each GAO report are free. Additional copies are $2 each. Orders should be sent to the following address, accom- panied by a check or money order made out to the Superintendent of Documents, when necessary. Orders for 100 or more copies to be mailed to a single address are discounted 25 percent. U.S. General Accounting Office P.O. Box 6015 Gaithersburg, MD 20877 Orders may also be placed by calling (202) 275-6241.
Motor Vehicle Safety: Information on Recent Controversy Between NHTSA and Consumer Group
Published by the Government Accountability Office on 1990-09-27.
Below is a raw (and likely hideous) rendition of the original report. (PDF)