In working on the General Motors (GM) defective ignition switch litigation, I am reminded about the important role of a number of people who have worked extremely hard attempting to make sure products are safe, and that the public is notified of potential hazards and dangers in a timely manner. Unfortunately, in the case of GM, both the automobile manufacturer and the organization charged with overseeing public safety – the National Highway Traffic Safety Administration (NHTSA) – have dropped the ball. Not only did GM intentionally hide the defect for years, but NHTSA simply missed it. But in its defense, their missing the defect was assisted by intentional misdirection from GM.
The GM litigation prompted me to think about my longtime friend Joan Claybrook, who was head of NHTSA from 1977 to 1981 during President Jimmy Carter’s administration. Joan went on to serve as president of Public Citizen from 1982 until 2008. I got to know Joan through Public Citizen. Recently, I asked Joan how she felt GM would have fared under her administration as head of NHTSA. I knew, without asking, that there would have been earlier recalls and many fewer deaths and injuries caused by GM’s incompetence and wrongdoing if Joan had been at the helm at NHTSA from 2001 through 2010.
In reply to my query, Joan sent me a very nice note, which also included some insightful thoughts about product safety and some of the important issues she dealt with while at NHTSA. With her permission, I’d like to share an excerpt from Joan’s note, without any edits, about some of these interesting situations:
Yes, I was a tough regulator. The tougher I was with companies, the better it was – not only for the public but for the companies. I believe in enforcing the law. And my team at NHTSA would not have allowed such a serious stalling/airbag safety defect to be ignored for 13 years. In fact, I was the first Administrator of NHTSA to require a recall for a stalling defect in the Chrysler Valore in 1978. It was quite a battle. But I knew about the dangers first-hand because my sister-in-law’s vehicle had stalled on a highway exit and she had to climb out of the vehicle with her tiny baby and find help. For GM to suggest that stalling is a “customer satisfaction” issue and did not involve safety as they stated yesterday at the Senate GM hearing chaired by Senator McCaskill is ludicrous.
During my four years in office, I met every week with the chief of compliance and reviewed every case and its status when I was administrator. I inherited over 200 old cases from my predecessor, who did not like to bother with enforcement. I hired six young attorneys for one year to clean them up and get as many recalled as possible (the statute of limitations was eight years at that time; now its 10 years). One-year appointments did not count against our maximum number of employees and we were already maxed out.
I also put out “Consumer Alerts” to the public, which were covered by the press, and did endless radio programs, asking the public to inform NHTSA if they had a problem with their vehicles, and asked for specific feedback on particular problems we were investigating so we could get real-time data. (We didn’t have any computers, of course, or the internet!)
We also held auto safety town meetings around the country, which we publicized and for most about 1,000 people attended. Citizens were encouraged to discuss their vehicles, any defects, and what they wanted to see improved in auto safety. We held nine of them.
I also held meetings with dealers (who are rarely given policy information by the manufacturers (the factory in their terms)). I met with them in groups of about 10 each for a full day. At each one someone spoke out about what a revelation it was to learn about the purpose and importance of the federal safety program. Unfortunately, I thought to do this late in my fourth term and held only six such meetings. But they were important because the dealers are the political arm of the manufacturers and can be a positive force as well as negative.
I also used NHTSA’s subpoena power (the current acting Administrator told the Senate NHTSA did not have subpoena power until his chief counsel corrected him!) to demand information under oath from the companies we were investigating. My first subpoena was sent to Lee Iacocca because Ford had announced a recall but then did nothing for five months. A week after I was sworn in I sent the subpoena and the next day a vice president of Ford was in my office to explain it had designed the wrong part for the fix and had to start again. Subpoenas are so important because if the respondent lies under oath he/she can go to jail. In controversial safety-defect investigations I did not hesitate to use them.
When Ford designed the correction for the Pinto fuel tank in 1978, I insisted it be crash-tested to see if it worked. I said NHTSA would do the test if Ford did not want to. Ford agreed to conduct the test and, bingo, the vehicle failed to contain the gasoline. The correction had to be redesigned.
When we were investigating the Firestone 500 radial tire I sent a subpoena because Firestone refused to provide the documents we requested. NHTSA sued Firestone and won – the first test of NHTSA’s subpoena power. Firestone provided the documents but amusingly provided one box that said “Already reviewed by NHTSA.” The attorney in charge of this case was irritated because no one else was assigned to handle the document request so he looked in that box first and, no kidding, it contained all the most damning documents, including that the Board of Directors were involved in the cover-up of the 500 tire defects. It was Firestone’s first radial tire and was intended to compete with Michelin. The company decided it could not afford to admit the defect, but initiated a recall of a small number from one plant to satisfy nosy NHTSA investigators. But we caught them.
As a result, the entire top corporate structure was fired including the CEO and the General Counsel. Twenty million tires were involved. By the time they agreed to a full recall in 1978, only eight million remained in use.
Without question my power derived from informing the public. I probably talked to one or more reporters every day. We helped to educate the public about what happens in a crash and how safety designs can prevent deaths and injuries. We outfitted 10 large Chevrolets with a retrofit air bag designed to inflate slowly to show how they worked (if a crash occurred). We gave one to each NHTSA regional director across the country to use for demonstrations and events. And we produced a “Research Safety Vehicle” produced by a contractor that was designed to crash safely at 50 mph frontal and 40 mph side that was beautiful. It looked like a Porsche with gull-wing doors, and a white plastic skin with blue and red trim. We produced about 20 of them and sent one to a number of countries under a research program in which these governments crash tested them to evaluate their performance. We publicized this vehicle and took one on a 52-city tour (on the back of a truck) to show off at state fairs and on television shows including NBC’s Today show. I also took it to Japan to show the Japanese companies who I visited that the USA could make a small very, very, safe car.
We also crash tested hundreds of cars each year and created the New Car Assessment Program (NCAP) to reveal to the public the safety or lack of safety of vehicles by make and model. To synthesize this crash test information we designed a Car Book for the public with the information on all the crash tests. I took it and the car on the Phil Donahue Show and 450,000 people requested copies of the book. The auto companies asked the Secretary of Transportation to quash the program but it was too late. The public loved it. It continues to this day, and has been improved. We got legislation in 2005 passed by Congress to require the crash test results for each make/model to be listed on the federal price sticker so new car buyers can see the information before buying the car. The program has spread internationally and is active in European countries, Japan, Australia, and is now being considered by China and South American countries.
My most difficult battle was in getting air bags designed into new cars. It took 20 years. The first rule was issued in 1971, was revoked by Richard Nixon, was reissued by DOT Secretary and me in 1977, was revoked by Ronald Reagan in 1981, who was overruled by the U.S. Supreme Court in a unanimous decision in 1983; it was reissued by Secretary Elizabeth Dole in 1984 with the proviso that it would be revoked if two-thirds of the population was covered by mandatory seat belt use laws by 1989. We got Willie Brown of California to pass a belt law saying it would be revoked if counted to revoke the air bag rule (taking 10 percent of the national population away from the mix). The two thirds was never reached by 1989 and the courts sustained by Dole rule against auto company attack. Air bags began being installed in passenger cars on the driver side in 1989 models. In 1991 we got legislation enacted requiring air bags in all new vehicles including not only cars but also vans, pickup trucks and SUVs by 1997.
Joan Claybrook was the ideal person to head up NHTSA. She was fair, independent, highly intelligent, and very tough. The automobile industry would be in much better shape today – as would their customers – if Joan had stayed on at NHTSA. I wish I had the pages to allow Joan to share more of her stories. It’s most important for folks to understand the critical role of regulatory agencies like NHTSA. We should demand higher standards at this agency, and that’s because our lives are at stake. In closing, we need more folks such as Joan Claybrook in charge of our regulatory agencies.
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