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From Products Liability Law Daily, June 23, 2015

DOT OIG: fatal flaws identified in NHTSA’s ODI GM investigation process

By Pamela C. Maloney, J.D.

The process for collecting vehicle safety data utilized by the National Transportation Safety Administration’s Office of Defect Investigation is insufficient to ensure complete and accurate data an audit conducted by the Department of Transportation’s Office of Inspector General concluded in a report entitled Inadequate Data and Analysis Undermine NHTSA’s Efforts to Identify and Investigate Vehicle Safety Concerns. The report also concluded that (1) weaknesses in ODI’s processes for analyzing safety data further undermine ODI’s efforts to identify safety defects and (2) its processes for determining when to investigate potential safety defects is insufficient to prompt needed recalls and other corrective action. NHTSA concurred with all 17 recommendations made by the OIG, and agreed to implement them as written within the next year, except with regard to those recommendations that require rulemakings. NHTSA also reported that the recommendations could be implemented within the constraints of its current budget (DOT Office of Inspector General, Report No. ST-2015-063, June 18, 2015).

Background. During an April hearing before the Senate Commerce, Science, and Transportation Committee’s Consumer Protection, Product Safety, and Insurance Subcommittee, NHTSA’s Acting Administrator testified that NHTSA and the Department’s Office of General Counsel were assessing ODI’s processes in light of the GM recalls involving defective ignition switches. The Secretary of Transportation further requested that the OIG assess NHTSA’s vehicle safety procedures and determine whether NHTSA had information on GM’s ignition switch issues.

The OIG audit assessed ODI’s procedures for (1) collecting vehicle safety data; (2) analyzing the data and identifying potential safety issues; and (3) determining which of these issues warrant further investigation. OIG considered how these procedures affected ODI’s handling of concerns related to the GM ignition switch and examined information available to NHTSA prior to GM’s 2014 recall announcement. The audit did not assess whether GM fully disclosed information on the ignition switch issue to NHTSA. In addition to the Secretary’s request, OIG conducted a separate audit to assess NHTSA’s actions to implement OIG’s 2011 recommendations aimed at strengthening ODI’s process for identifying and addressing safety defects.

Other findings. In addition to finding weaknesses in ODI’s collection and utilization of safety data, the audit also found that ODI’s investigation decision process lacks transparency and accountability. Furthermore, the audit identified weaknesses in ODI’s training and supervision of pre-investigation staff, as well as in its processes for identifying potential safety concerns and for initiating investigations. With regard to issues that arose during the GM ignition switch defect, the audit concluded that ODI overlooked documentation such as non-dealer field reports, death and injury reports, and special crash investigation reports that explicitly linked the ignition switch defect and air bag non-deployments. ODI also failed to investigate or adequately monitor either the GM ignition switch or the air bag non-deployment issues and failed to document the ODI’s justification for declining a proposal to investigate these issues as they related to the Chevrolet Cobalt and the Saturn Ion.

Recommendations. The OIG report contained 17 recommendations for improving ODI’s processes. The recommendations for improving ODI’s processes for screening and analyzing vehicle safety data included, among others:

  • Issue guidance or best practices on the format and information that should be included in non-dealer field reports to improve consistency and usefulness;
  • Require manufacturers to develop and adhere to procedures for complying with early warning reporting requirements; and require ODI to review these procedures periodically;
  • Develop and implement internal guidance that identifies when and how to use oversight tools to enforce manufacturers’ compliance with early warning reporting data requirements; and
  • Provide detailed and specific guidance to consumers on the information they should include in their complaints, as well as the records they should retain (such as police reports and photographs) in the event that ODI contacts them for more information.

The recommendations for promoting a streamlined process for opening investigations of potential safety concerns included the following actions:

  • Develop a process for prioritizing, assigning responsibility, and establishing periodic reviews of potential safety defects that ODI determines should be monitored; and
  • Document and establish procedures for enforcing timeframes for deciding whether to open investigations; and establish a process for documenting justifications for these decisions.

Congressional reaction. Senators Richard Blumenthal (D-Conn.) and Edward J. Markey (D-Mass.), members of the Commerce, Science and Transportation Committee responded to the report by demanding immediate action to increase transparency measures at NHTSA. In a joint statement, the Senators said, “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. 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.”

Blumenthal and Makey have introduced two bills which would help achieve that goal. The first, entitled “The 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. 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.

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