From Command and Control to Collaboration and Deference: The Transformation of Auto Safety Regulation

Abstract

Created in 1966 primarily as a rulemaking body empowered to force the technology of motor vehicle safety, by the late 1970's the National Highway Safety Administration (NHTSA) had largely abandoned its rulemaking mission in favor of the aggressive recall of "defective" motor vehicles. That first period adaptation was driven by devastating losses in pre-enforcement judicial review proceedings combined with enthusiastic judicial embrace of the agency's recall efforts. Congressional reaction mimicked the signals from the courts, and the Reagan administration's regulatory reform and relief programs of the 1980's further solidified NHTSA's revised agenda. Prodded by congressional mandates, beginning in1991, but largely of 21st century origin, NHTSA has returned to rulemaking in the last two decades, but in a largely illusory form. Rather than forcing new technologies, the agency has largely required the diffusion of existing technologies already in widespread use -- technologies that might well have reached universal deployment in the absence of the agency's rules. Recalls (which have no demonstrable effect on motor vehicle safety) have continued at increasingly high levels and have been combined with consumer information campaigns, the encouragement of state behavior modification efforts, and agency-industry agreements, to round out NHTSA's emerging model of "cooperative regulation". Whether or not this strategy has substantial effects in promoting motor vehicle safety, NHTSA's accommodating posture has resulted in congressional and OMB approval and industry acceptance without litigation. This article describes the evolution of motor vehicle safety regulation and interprets the agency's transformation as an almost perfect adaptation to a legal culture skeptical of ex ante coercive restraints on individual or firm conduct and accepting of post hoc compensatory or punitive action when that conduct fails to live up to broad social norms.