The U.S. Senate Judiciary Committee’s Subcommittee on Oversight, Federal Rights and Agency Action took shots at NHTSA during a Nov. 25 hearing, with some members calling the agency ineffective.
They held a hearing titled, “Updated: Justice Denied: Rules Delayed on Auto Safety and Mental Health.”
The auto safety-oriented hearing featured a range of witnesses, including law professors, former legislators and Clarence Ditlow, executive director at the Center of Auto Safety in Washington, D.C.
The hearing discussed NHTSA’s shortcomings as a rulemaking agency. Some defended the agency, while others argued that it has failed to do what it was originally designed to do.
Most obviously on that list, from a tire industry standpoint, is the well overdue, final rulemaking on the tire testing, labeling and consumer education program that became law with the Energy Bill of 2007.
According to witness Thomas McGarity of the University of Texas law school, “NHTSA has effectively given up on rulemaking unless specifically required by statute, focusing instead on its statutory power to force the recall of motor vehicles that contain ‘defects’ related to safety performance. The move away from rulemaking to adjudication gives the agency the flexibility to allow policies to evolve through the gradual process of stare decisis.”
Ditlow voiced similar opinions toward NHTSA throughout his testimony. He said: “NHTSA is a wonderful agency with a vital mission but it is woefully underfunded … During the first five years after its creation in 1966, NHTSA issued more safety standards than it did in the next 40 years. Many of the original standards such as seat back strength and head restraints are woefully out of date. With rare exception, revision of the original standards or issuance of major new standards came from Congressional mandates. Today, standards issued by NHTSA on its own tend to be relatively minor or without significant industry opposition such as low-speed vehicles, wheel chair lifts and alternative fuel systems.”
Ditlow also expressed concern about the lack of initiative NHTSA has been taking. “Failure to issue effective rules result in large recalls that cost the auto industry lost profits and the public lost lives,” he said.
On the other side, Cary Coglianese of the University of Pennsylvania law school, defended NHTSA. “Despite widespread acceptance by virtually every major scholar of administrative law, the claim that NHTSA has retreated from rulemaking and shifted instead to recalls does not bear the weight of scrutiny. NHTSA has continued to issue a substantial body of new regulations even in wake of judicial losses that have been thought to have been paralyzing to the agency. Its recalls did not increase in the aftermath of either the agency’s losses in rulemaking challenges or its wins in recall litigation.
“When a broad sweep of NHTSA’s litigated cases is considered, it is clear that NHTSA has not been beleaguered by high levels of judicial invalidations,” he continued. “The way that NHTSA rules declined after an initial flurry of regulatory activity appears more likely explained by the life cycle of implementing a new statute, diminished public support for auto safety regulation, or changing patterns in the agency’s operations and research budget.”