"Early Warning" Data Kept Out of Public's Reach

The National Highway Traffic Safety Administration released today a final rule thwarting public access to early warning information about motor vehicle safety hazards. 

Despite losing in the courts, the administration insists on trying again to produce a rule that will keep the public in the dark about potential defects and other safety hazards in the cars they drive.

Today's   final rule restricts public access to much of the "early warning data" submitted by the auto and tire industry under the 2000 Transportation Recall Enhancement, Accountability, and Documentation Act (TREAD Act) to assist in the early identification of motor vehicle safety defects.

The TREAD Act was passed in the wake of the Ford-Firestone deaths. In hearings in 2000, Congress discovered that an insurance investigator had compiled evidence of 20 cases of Ford-Firestone problems and presented it to NHTSA in 1998 – and that the agency then sat on its hands until the death toll had mounted so high that it made headlines. Congress wanted to protect the public’s right to know about developing evidence of safety concerns.

Under the TREAD Act, manufacturers of automobiles, tires, child restraints and other vehicle manufacturers submit the following information to NHTSA on a periodic basis:

• Production numbers;
• incidents involving death or injury based on claims and notices received by a manufacturer;
• claims related to property damage;
• warranty claims paid by a manufacturer;
• consumer complaints; and
• field reports prepared by employees of a manufacturer relating to failure, malfunction, lack of durability or other problem relating to performance.

These submissions are to be used to maintain a database of "early warning" information to inform the public of observed defects and problems in advance of or in lieu of a formal defect investigation or recall by NHTSA.

NHTSA decided to address confidentiality concerns through a separate rule covering confidential business information.  In its 2003 final rule, and again in today’s final rule, NHTSA determined that nearly all of this information was confidential, specifically barring the public from access to nearly all of the above listed information -- only information about deaths, injuries, and property damage will be disclosed.

Problems with both the vacated 2003 rule and the 2006 proposal were outlined in Public Citizen’s comments.  Our concerns were:

• The legislative history and statutory language were clear about the need for disclosure.
• NHTSA has not historically invoked confidentiality protections for information of this type that it collected in the context of defect investigations.
• NHTSA does not have authority under the Freedom of Information Act (FOIA) to arbitrarily extend confidentiality protections.
• The agency baselessly claims that the public would benefit little from having access to this information.
• NHTSA does not provide adequate evidence to support the claim that disclosing early warning information would create a competitive disadvantage.

The Bush administration would rather protect the auto and tire industries than the public.  NHTSA attempted to thwart the will of Congress in a 2003 rule that would keep early warning data a secret. We challenged that rule in court and in March 2006 won on the basis that NHTSA had not given the public an adequate opportunity to weigh in on this important decision.

The value of an early warning database is that the public would have access to information that it lacked prior to the TREAD Act.  By shielding this information as confidential business information, NHTSA is undercutting the intent of the law and putting consumers at risk.

NHTSA relies on implausible claims that release of the information will cause commercial harm to the industry, to justify abdicating its role as a protector of the public.  After the Ford-Firestone tragedy, Congress wanted to empower the public to monitor NHTSA's performance in responding to safety issues raised by the early warning data.  This rule restricts access to information needed by the public for its own safety.

No wonder the administration insists on keeping the information secret: secrecy doesn't just protect manufacturers, but it also protects the administration from accountability for its own incompetence.  Insiders suggest that the problem of defective Chinese tires that were eventually recalled could have been detected much earlier, if the agency had paid attention to red flags from information in the early warning database.  As long as the agency insists on keeping this information from the public, we will never know for sure.