Congress Turns to the GAO, after NHTSA Blows Deadlines

Last Wednesday, a trio from the House Energy and Commerce Committee, including its powerful chair Frank Pallone Jr. (D-NJ) asked the Government Accountability Office (GAO) to find out why the National Highway Traffic Safety Administration has dragged its feet in completing nearly 20 Congressionally mandated rulemakings and reports in the last seven years.

The 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21) and the 2015 Fixing America's Surface Transportation Act (FAST Act) required NHTSA to complete 69 rulemakings, technical research projects, reports to Congress, technical studies, and grant program changes and regulations.

But many key rulemakings are still pending, leading Pallone Jr, and Congresswoman Lisa Blunt Rochester, (D-DE) and Jan Schakowsky (D-IL) to request that the GAO conduct a study of the agency’s “research and rulemaking process to identify factors contributing to delays and recommendations to ensure NHTSA completes rulemakings, reports, and research initiatives mandated by Congress by their statutory deadlines.” In an October letter to NHTSA, Blunt characterized these delays as an obstacle to public safety:

“This blatant disregard for Congressional directives not only endangers the lives of all who travel on our roads, but also suggests that NHTSA may face institutional challenges that hinder its ability to fulfill its safety-critical mission,” she wrote. “With approximately 39,000 motor vehicle deaths and 4.4 million serious injuries every year, it is imperative that NHTSA takes decisive actions to issue and improve its safety standards in a timely manner. This includes, but is not limited to, meeting Congressionally set deadlines. NHTSA must have the capacity, expertise, and resources not only to promptly and effectively carry out Congressional directives, but also to ensure the safe deployment of sophisticated transportation technologies, such as autonomous vehicles.”

On April 11, 2019 The Safety Record published a rough analysis of an agency suffering from mission malaise in the wake of the departure of NHTSA Administrator Mark Rosekind. (Read With Rosekind Gone, NHTSA Retreats) We pointed out that the number of NHTSA investigations had drastically dipped, that civil penalties had all but ceased, and that the agency had all but stopped trying to make any significant rules, and had been sued twice for failing to meet a statutory deadline.

Six days later, Pallone Jr. and Schakowsky, Chair of the Subcommittee on Consumer Protection and Commerce, sent a letter to Deputy Administrator Heidi King seeking the status of open rulemakings, petitions, applications, complaints, investigations, requests, reports and other initiatives. Specifically, the pair asked for explanations for the stalled progress on rulemakings regarding:

  • Side impact performance standards for child restraint systems
  • Frontal impact test parameters
  • Improvement of child restraint anchorage systems
  • Rear seat belt warning systems
  • Encouraging consumers to report vehicle defects
  • Electronic notice of vehicle recalls
  • Corporate responsibility for NHTSA reports
  • Measures to prevent tampering with tire pressure monitoring systems
  • Crash avoidance information on manufacturer stickers
  • Tire fuel efficiency standards
  • Registration of independent tire sellers
  • Whistleblower incentives and protections
  • Retention of motor vehicle safety records

They also sought answers about the volume and responses to FOIA requests, vacancies in each NHTSA division, diversity hires, and letters from members of Congress that went unanswered.

On June 12, Adam J. Sullivan, the DOT’s Assistant Secretary for Governmental Affairs, wrote back, submitting a 143-page response, which addressed some – but not all of their questions. For example, the Committee asked for “a list of all overdue rulemakings that are required by statute, provide an explanation for why each rule has not been completed, and projected timeline for all necessary actions necessary to achieve full compliance with the statutory provision.” They got the list, but not explanations for each individual mandate still to be completed. Rather, NHTSA declared that diligent effort had been applied – leading to the completion of 40 of them. Nine had no deadline attached (including rulemakings pertaining to unattended passenger reminders, rental car recalls, tire registration by independent tire dealers, recall vehicle age, and the creation of a tire recall database). As for the remaining 19 rulemakings, NHTSA argued that these were complex undertakings in various stages of completeness.

“NHTSA is always mindful of the potential for unintended adverse safety consequences, the responsibility to engage in robust public dialogue under the Administrative Procedure Act, and the need to promulgate rules supported by data and measurable safety benefits in accordance with law.”

Dissatisfied with that less-than complete response, Blunt Rochester, followed up with a second letter to NHTSA Acting Administrator James C. Owens, again asking for a detailed explanation for missed deadlines. This letter, signed by Rep. Bobby Rush (D-IL), Tony Cardenas  (D-CA) Jerry McNerney (D-CA) , Kathy Kastor (D-FL) and Nanette Diaz Barragan (D-CA) again asked why each rulemaking had not been completed by the statutory deadline, what NHTSA had done, what it planned to do, what was needed, and when it expected to complete the requirement. They also requested NHTSA's methodology for prioritizing rulemakings, reports, and research initiatives and how statutory deadlines factored into that.

In a March 11, 2020 letter, Sullivan responded with the kind of fact-less, anodyne statement The Safety Record has come to know and love. In other words, Sullivan made no attempt to address the specifics. His two-page response simply said that NHTSA will make rules when it is ready to do so, legislative deadlines be damned.

Thus, the frustrated members of the House E&C committee turned to the GAO to get the answers.

Their letter comes of the heels of an August 11 announcement by the U.S. Department of Transportation’s Office of the Inspector General, that it planned to audit how well NHTSA is enforcing the Federal Motor Vehicle Safety Standards.

So, presumably, sometime in 2021, we’ll all get to know how NHTSA’s been spending its time.

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