The U.S. Senate Judiciary Committee’s Subcommittee on Oversight, Federal Rights and Agency Action held a hearing titled, “Updated: Justice Denied: Rules Delayed on Auto Safety and Mental Health.” Witnesses included The Honorable Patrick J. Kennedy, former U.S. representative (RI-1) and founder of the Kennedy Forum in Brigantine, N.J.; Cathy Morelli of Southington, Conn.; Thomas McGarity, chairman of Joe R. and Teresa Lozano Long Administrative Law at the University of Texas School of Law in Austin, Texas; Clarence Ditlow, executive director at the Center of Auto Safety in Washington, D.C.; and Cary Coglianese, an Edward B. Shils Professor of Law at the University of Pennsylvania in Philadelphia, Pa.
The hearing discussed the shortcomings of the National Highway Traffic Safety Administration (NHTSA) as a rulemaking agency, while others defended the agency. Some argued that it has failed to do what it was originally designed to do, according to a report from the Automotive Service Association (ASA).
According to McGarity, “The National Highway Traffic Safety Administration 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 Many of the original standards such as seat back strength and head restraints are woefully out of date.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.”
According to ASA's report, Ditlow also expressed concern about the lack of initiative NHTSA has been taking, saying, “Failure to issue effective rules result in large recalls that cost the auto industry lost profits and the public lost lives.” He also expressed concerns regarding NHTSA’s safety recalls for software changes: “What NHTSA does not have in the way of safety standards, which FAA has and which voluntary standard organizations like IEEE have, is a process safety standard to ensure the validity and safety of computer code used in electronic systems with safety critical functions. The increasing number of NHTSA safety recalls for software changes indicates the need for a software verification standard.”
He concluded stating, “The federal government through the National Highway Traffic Safety Administration should lead the way to vehicle safety and not clean up afterward.”
Coglianese argued points made by witnesses and defended NHTSA, saying, “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. 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.”
To view full testimony from this hearing, visit the Automotive Service Association’s legislative website at www.TakingTheHill.com