Six Years After TREAD Act Passes, Data Still Unavailable
WASHINGTON, March 27 LAWFUEL – Law & Legal News — Quality Control Systems Corp. today filed a Freedom of Information Act lawsuit in federal District Court to obtain secret data about deaths and injuries held by the National Highway Traffic Safety Administration (NHTSA). R.A. Whitfield, the company’s director, said that the public needs access to the Early Warning Reports collected under the Transportation Recall Enhancement
Accountability and Documentation (TREAD) Act to better understand why so
many deaths and injuries related to tire failures in the Ford Explorer have continued long after the well-known tire recalls that affected the vehicle.
The TREAD Act was passed in October 2000 in response to Ford Explorer- Firestone tire-related rollover deaths in the U.S. and Ford’s overseas recalls. TREAD amended federal transportation law to require vehicle and equipment manufacturers to report safety recalls or campaigns on vehicles and components in a foreign country if they also sold substantially similar
products in the U.S. It also mandated NHTSA to create regulations governing quarterly Early Warning Reports — information on property damage and
warranty claims, consumer, dealer and field reports, production numbers and deaths and injuries collected by manufacturers — with the intent of using the data to spot defect trends.
When President Bill Clinton signed the bill into law, he directed NHTSA “to implement the information disclosure requirements of the [TREAD] Act in
a manner that assures maximum public availability of information.” But
after six years of crafting regulations, and after three years worth of
data, the public has consistently been denied access to this important
safety information.
Between July 1994 and January 15, 2007, at least 420 persons have been
killed in tire-related, Ford Explorer, Mercury Mountaineer, and Mazda
Navajo crashes, including 396 deaths found in NHTSA’s Fatality Analysis
Reporting System (FARS) and 24 recent deaths found in news accounts. For
more than a year, Whitfield has been seeking Ford’s EWR death and injury
data on Explorers to better analyze the rise in tire-related Explorer
fatalities. While available fatal crash data frequently do not report
vehicle component failures, the TREAD Act requires manufacturers to
separately report claims about deaths and injuries related to alleged
component failures. Whitfield wants to merge the two sets of information
together to get a better picture of the problem.
Whitfield and others, most notably Public Citizen, seeking Early
Warning Reports have been stymied by NHTSA’s decision to keep nearly all
the data secret.
“It is truly outrageous that the Bush administration would move to seal
such essential auto safety information from the public,” said Joan
Claybrook, president of Public Citizen and former NHTSA administrator.
“Public access to this type of data could mean the detection of problems
like the deadly Ford Explorer/Firestone tire combination and could save
lives.”
Since 2000, safety and consumer advocates and manufacturers have fought
over what — if any — of the information collected under the TREAD Act is
public. The safety community has pushed for maximum accessibility.
“The government shouldn’t be the sole arbiter of safety — with a small
staff and limited budget NHTSA should welcome independent evaluations of
the EWR data as part of its mandate to protect the public,” says Sean Kane,
president of Safety Research & Strategies, which commissioned Quality
Control Systems to examine the increase in Explorer tire-related fatal
crashes. “Data are critical to understanding and seeking solutions to
safety problems- Explorer tire-related crashes is just one of many issues
that would benefit from evaluation of the data NHTSA is keeping secret.”
The Rubber Manufacturers Association (RMA) has insisted that the TREAD
Act specifically exempted EWR data from public view under Exemption 3 of
the Freedom of Information Act. (Exemption 3 states that information is not public under FOIA if Congress specifically passes a law preventing its release.)
NHTSA has consistently argued that some EWR information should be kept confidential under FOIA’s Exemption 4 — information that may cause
competitive harm. In January 2001, when the agency began to establish the
EWR regulations, it envisioned making much of the information — including death and injury data — public and received few requests from
manufacturers for confidentiality. But as some manufacturers fought
tenaciously for secrecy, NHTSA designated more classes of information
private under Exemption 4.
In March 2004, Public Citizen sued Secretary of Transportation Norman
Mineta over the confidentiality of EWR data. The suit claimed that NHTSA
had deviated substantially from its initial proposal when it passed a final rule that broadly determined that whole classes of tire data are
confidential. The Rubber Manufacturers Association, which represents
tiremakers, filed counter claims. In March 2006, U.S. District Judge Robert Leon ruled in favor of Public Citizen and directed NHTSA to revisit the
rule. Judge Leon ruled a week later that EWR data was not subject to FOIA
Exemption 3. The RMA appealed.
As the rule stands today, only death and injury and property damage
claims filed with the government through EWR are supposed to be made
public. But NHTSA has refused to release any of the data until RMA’s appeal is resolved.
In the meantime, the death toll in Ford Explorer, tire-related crashes
rose in 2005, at the rate of about one death per week, and other potential
safety problems loom without public knowledge.
