Before any automobiles in the United States can be sold to the public, the manufacturer of that car must certify that the car passes all of the Federal Motor Vehicle Safety Standards (FMVSS) applicable to passenger vehicles. Congress’ desire in passing these standards was “to specify only the minimum standards for motor vehicle safety, with the expectation that market factors would encourage manufacturers to develop higher safety performance.” FMVSS do not establish the state of the art or an optimal level of performance, but rather a minimum level of performance that the manufacturer must meet to sell its product. The standards do not govern all aspects of design and manufacture of a vehicle. Most design aspects are left to the discretion of the manufacturer. FMVSS covers only a limited number of items on a car and only a limited number of aspects of the car’s performance.
The standards, and the process by which they are adopted, are deeply flawed. Joan Claybrook, the former Administrator of the National Highway Traffic Safety Administration, summed up the problem in a November 28, 1980 letter to the then-President of General Motors:
Our Federal safety standards are and were intended by Congress to be minimum standards. The tragedy is that many manufacturers have treated the standards more like ceilings on safety performance rather than floors from which to improve safety.
That is a sad commentary on the attitude of car manufacturers – to design cars just to meet the bare minimum requirements of performance. Yet that is exactly what has become commonplace in this country. NHTSA has failed to do the job required to protect the public from unsafe vehicles.
Many of the current FMVSS standards applicable to cars today were issued in the late 1960s or 1970s. Think about that. There have been great technological advancements made in this world since the late 60s – cell phones, internet, and computers the size of dimes. Despite all of these advancements, the federal government still only requires car manufacturers to make its cars pass certain performance requirements founded on technology from over 30-40 years ago. It is a scary thought. Yet, those are the standards that exist.
The reason standards from the 60s and 70s are still applicable to cars today is because the rule-making process to upgrade and improve the standards is a painfully slow process that is influenced greatly by the ever-changing political winds. FMVSS are issued by NHTSA through a rule-making process. The rule-making process proceeds at a glacial pace. It typically takes several years from the initial notice of a proposed rule change to final rule. Rule-making through NHTSA is also a quasi-legislative power. The head of the agency is a political appointee. Major rule-making proposed by NHTSA must be approved by the Office of the Secretary of Transportation and also by the Office of Management and Budget, which is part of the Executive Office of the President. When there is a change in the White House, there is a change most times in the direction of any proposed changes, upgrades, or improvements to the standards. Major controversial decisions on issuing, amending, and/or rescinding FMVSS standards are generally made by political appointees, not by NHTSA’s expert career technical staff. These political appointees are obviously influenced by the favored “constituents” of the White House. And, for the most part, history reflects that the most important constituency unfortunately is the motor vehicle industry itself. The car manufacturers greatly influence NHTSA’s rule-making. In fact, NHTSA has been considerably dependent upon the industry for technical information. The cozy and close relationship between NHTSA and the automobile industry is highlighted by the fact that many former employers of the regulatory agency, upon leaving their position with NHTSA, go to work for the car manufacturers.
Another problem with the reliance on FMVSS is that NHTSA does not approve the safety of the products before they are sold. The process of certification with the FMVSS is one of self-certification. The manufacturer or distributor itself certifies that its vehicle is compliant with FMVSS by a label or tag permanently fixed to the vehicle. NHTSA does not “approve” or “certify” that vehicles and equipment meet FMVSS, or that they are “safe.” This is unlike the FDA which must approve pharmaceuticals before they can be sold.
Clearly, defective vehicles have been sold in the history of auto making, despite the fact that they were self-certified to meet applicable FMVSS standards. At times, recalls have been issued on vehicles that were certified to meet all applicable FMVSS requirements due to the discovery of a safety-related defect. FMVSSs are not intended to define what a safe product is under all circumstances, or to relieve a manufacturer from its responsibility to design a safe product.
As mentioned earlier, most of the FMVSS were initially issued in the late 1960s and 1970s. Many NHTSA safety standards are very lenient in terms of the state of the art, and in terms of the ability of the industry to provide higher levels of safety to avoid or ameliorate crashes and injuries and deaths resulting from crashes. They do not cover every aspect of performance of motor vehicles. Thus, NHTSA has stated that, although the safety standards meet the need for safety, they do not necessarily attempt to solve the full extent of a particular safety problem.
NHTSA has repeatedly urged manufacturers to design their products to do more than merely meet the minimum “floor” required in NHTSA’s standards. Former NHTSA Administrator, Dr. Ricardo Martinez, wrote that “mere compliance with the minimum requirements of the standard is not enough; minimum standards should not be the most in safety design that manufacturers provide.” The message here to the public is don’t be deceived by manufacturers who boast of how their vehicles meet and exceed the federal standards. The standards are weak and are the results of a political process designed to water them down. If you would like more information on this subject, contact Dana Taunton, a lawyer in our firm who is extremely well-versed in this area of law. She can be reached at 800-898-2034 or by email at Dana.Taunton@beasleyallen.com.
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