Senate Should Pass on Joan Claybrook’s Advice and Pass AV START Act

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Why are self-styled safety advocates opposing the first legislative step that could help usher in the greatest automotive safety improvements in history? This is a question to ask a handful of senators, led by Sen. Dianne Feinstein (D-CA), who are holding up Senate passage of the bipartisan AV START Act, which would establish the first nationwide regulatory regime for highly automated vehicles (HAVs), often called self-driving cars. The House’s companion bill, the SELF DRIVE Act, passed that chamber by voice vote in September 2017.

The opposition to this legislation is being led by groups associated with Ralph Nader (pictured above), along with trial lawyers who prefer to exploit a murky legal environment to develop their attorney fees in future settlements of frivolous litigation against HAV providers rather than having clear legal standards.

Most interestingly, these groups have been trotting out Joan Claybrook, who was President Carter’s administrator of the National Highway Traffic Safety Administration from 1977 to 1981. A protégé of Nader—and like Nader, a lawyer rather than an engineer or safety scientist—Claybrook initiated a campaign to mandate airbags as a substitute for seatbelts, an ideological quest that led to numerous preventable deaths—especially among young children.

As NHTSA administrator, Claybrook led an agency cover-up on airbag safety, which included withholding technical data raising these concerns from the public record and threatening to discipline a career agency scientist who publicized a NHTSA-commissioned cadaver study that suggested airbags might not be as effective as lap-shoulder belts in certain crashes. Congressional investigators later found her agency leadership engaged in “a systematic pattern of harassment” against this agency scientist after he publicized the study.

Claybrook was repeatedly warned by automakers that their research suggested airbags posed a special risk to young children and small adults. Claybrook was quoted in a 1979 Associated Press article mocking General Motors for supposedly “delaying installation of air bags on the basis of a ‘hurry up style’ finding that they hurt small children.” It wasn’t until two decades later NHTSA finally acknowledged that airbags were more likely to kill than save children under 10. Soon after, her former agency allowed automakers to install on-off switches for airbags as a safety improvement for light-duty vehicles without backseats, mainly pickups. Cars sold in the U.S. now carry federally mandated labels warning that airbags can kill or cause severe injury for children under 12.

This isn’t to say that airbags, coupled with seatbelts, didn’t and don’t save lives. They do. However, Claybrook worked to suppress evidence that airbags posed severe risks to certain subsets of the population and later denied responsibility. For that reason alone, her credibility as an auto safety expert should be deemed suspect. All of these facts, by the way, are documented in the archives of the Federal Register, in the automobile safety bible Traffic Safety by safety scientist Dr. Leonard Evans, as well as by my CEI colleague Sam Kazman. Below is archival news footage from 1983 and 1996 illustrating the dramatic flip-flop and attempt to rewrite history by Claybrook:

According to NHTSA, human error is responsible for 94 percent of vehicle crashes. In 2016, there were 37,461 auto fatalities in the U.S. Highly automated vehicles (HAVs) could greatly reduce fatalities while providing unprecedented mobility to the disabled, elderly, and other traditionally mobility-impoverished populations. HAVs aim to greatly reduce or eliminate human direction of automobiles, replacing them with computers and sensors that won’t speed, get drunk or distracted, or run red lights. Rather than focus on post-crash safety technologies, which Nader and Claybrook myopically pursued, the goal here is to prevent crashes from happening in the first place.

In the past, Claybrook has been quoted as saying “it is easier to get 20 companies to do something than to get 200 million Americans to do something.” So, why then would she be so strongly opposed to creating an initial federal regulatory framework for a safety technology that doesn’t require Americans to actively pursue their own safety?

In a USA Today op-ed published two weeks ago attacking the bipartisan AV START Act, Claybrook claims “[w]ithout an immediate course correction, this bill will allow unproven, immature technologies to be sold to the public without necessary protections.” As I pointed out in May, this assertion is easily demonstrated to be false if one bothers to read the actual bill.

Section 6 of the AV START Act does allow NHTSA to issue temporary exemptions from Federal Motor Vehicle Safety Standards (FMVSS) for HAVs and does raise the annual cap on those temporary exemptions for HAVs. But what it doesn’t do is change the manner in which exemptions can be granted. In order for a manufacturer to obtain approval for a temporary exemption from an FMVSS, it must meet one of four conditions.

The condition under which HAV developers would likely seek exemptions from FMVSS is for sale or consumer deployment. This condition at 49 U.S.C. § 30113(b)(3)(B)(iv) reads: “compliance with the standard would prevent the manufacturer from selling a motor vehicle with an overall safety level at least equal to the overall safety level of nonexempt vehicles” (emphasis added). Section 6 of the AV START Act does nothing to change this existing statutory requirement. The same safety equivalence requirement applies to manufacturers seeking a development or field evaluation exemption for a new safety feature under 49 U.S.C. § 30113(b)(3)(B)(ii).

So, contrary to what Claybrook suggests, the same safety equivalence requirement that has long applied to new technologies that conflict with outdated regulations remains in place. The onus is on the petitioning manufacturer to demonstrate that its new vehicle technology can achieve equal or greater safety than the old mandated technology.

Claybrook also states in her op-ed that senators should oppose passage of the AV START Act unless it is amended to “require[e] new minimum requirements for the vision capabilities of driverless vehicles.” Here Claybrook is hoping lawmakers have no idea how FMVSS are crafted by NHTSA.

As I detailed in a whitepaper earlier this year, Congress has required since 1996 that all regulatory agencies (including NHTSA), whenever possible, “shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.”

But even before 1996, NHTSA relied heavily on industry consensus standards in its rulemakings. The rationale for this policy is simple: the technical expertise outside government is far greater than the technical expertise inside government. So, when NHTSA is looking to promulgate a new rule or revise an existing rule, it first looks at nongovernmental standards-setting bodies, the top three being SAE International, American Society for Testing and Materials, and the American National Standards Institute.

Right now, very few HAV-related standards have been published. There is ongoing work taking place at standards-setting bodies around the world, but more time is needed to develop crucial technical standards. As this technology matures, we can expect to see a standard methodology to evaluate computer vision systems. But this should come from expert engineers generally employed in industry, not the government writing regulations before such standards even exist. If Congress were to listen to Claybrook on mandated vision tests for HAVs in the AV START Act, it would be ordering NHTSA to fly blind.

Finally, Claybrook in her op-ed uncritically regurgitates a claim made by trial lawyers, that the AV START Act “also limits the ability of consumers to seek legal remedies for serious injuries resulting from crashes involving driverless vehicles.” This is untrue. What this is getting at is trial lawyer opposition to arbitration clauses, which were recently in the news because of a May Supreme Court decision. The bill is silent on arbitration clauses, not supportive of them. What Claybrook really wants is additional limitations on future private contracts between HAV providers and customers to be included in the AV START Act. If Congress wishes to repeal its 1925 Federal Arbitration Act, that debate should happen in the open rather than trying to sneakily slide favors to the plaintiff’s bar in a narrow automotive safety technology bill.

If Joan Claybrook has demonstrated one thing in her career, it’s that her auto safety policy recommendations should be heavily discounted. From concealing the deadliness of airbags as NHTSA administrator to denying consumers potentially lifesaving highly automated vehicles in her retirement, she’s usually on the wrong side of safety. The Senate should pass on Joan Claybrook’s advice and pass the AV START Act because any unnecessary delay or increase in cost of this vital technology translates to more injuries and deaths that could otherwise be prevented on America’s roads.