Draining the Swamp at the U.S. Transportation Department

12/16/2016 03:34 pm ET

Draining the “Swamp” at the U. S. Transportation Department

Secretary of Transportation designee Elaine Chao’s Senate confirmation hearing is likely to be the fastest of all the Trump appointees because her husband is Senate Majority Leader Mitch McConnell. And of all the Trump appointees, moreover, she has the most experience in Government and probably best understands the D.C. swamp that the President –Elect has promised to drain.

Thus if President Trump truly wants to make good on this promise, then cleaning up the Department of Transportation’s National Highway Traffic Safety Administration (NHTSA) is the perfect place for Chao and the new Administration to start. It’s in the middle of a little-noticed lobbying scandal that should scare every motorist on the road.

First, some quick background on NHTSA: Created by legislation that turns 50 this year, it’s supposed to keep an eye on private transportation companies and make sure all cars and motorcycles sold in the United States are safe. It doesn’t. It has instead developed the worst revolving-door problem in the Beltway. It sends a steady stream of its officials into private practice as automotive lobbyists and is far too friendly with the companies it should be regulating. Members of Congress have even accused NHTSA of quietly constructing legal defenses for the companies it oversees, protecting them from litigation filed by taxpaying consumers.

Just last week, Memphis-based public-safety blogger Fergus Nolan appears to have caught NHTSA in the act. He posted a blood-boiling story about NHTSA’s close ties to motorcycle manufacturer Harley-Davidson and the agency’s 2010 report on antilock brake systems (ABS), which reads as if it was made-to-order for the company. NHTSA had announced only the year before that it was close to mandating the technology on all American motorcycles, but it pulled a U-turn with the report, which claimed ABS provided no real safety benefits. That killed the proposed mandate and shocked those who had been following the process.

Harley and its competitors had to be pleased. Motorcycle ABS works in the same way antilock brakes do in cars—preventing wheel lock-up during emergency stops—and big motorcycle companies bundle it with other add-ons and sell it as part of an expensive luxury package. If government regulators had forced them to install it, they would have lost a major profit center. (That’s why Harley and a grassroots group they support reached out to NHTSA soon after it began studying the technology in 2002, publicly attacking the effort.)

Harley might have had another reason for opposing NHTSA’s ABS research and mandate, something Nolan may not realize: In January, the company will be going to trial in the latest of a series of lawsuits by accident victims claiming the manufacturer has been negligent in refusing to install the technology on all its bikes. Sure enough, Harley is relying on NHTSA’s 2010 report as its main defense.

When NHTSA released that report, concluding that ABS does nothing to reduce crash risk, the insurance industry was quick to respond. It has to pay bikers’ claims after accidents, and it knows how valuable ABS can be on a motorcycle, which almost always goes down in the event of wheel lock-up. An insurance industry-supported research group called NHTSA’s 2010 report “flawed” and argued it did nothing to downplay previous studies showing the technology would save the lives of 1,500 Americans a year if made mandatory.

That body of pro-ABS research is extensive, and many of the most compelling studies were actually conducted by NHTSA itself. Hundreds of pages’ worth of results show that motorcycle ABS “prevents wheel lock-up from occurring,” (NHTSA, 2001), that it eliminates “any possibility of crashing because of locked wheels” (Promocycle Foundation, 2003), that “there are more than sufficient scientific-based proofs to support [its installation] on all motorcycles” (Rizzi, et al., 2013), and more.

NHTSA’s 2010 report is flimsy by comparison. In a mere 10 pages, it disposed of decades of research proving this technology’s lifesaving capabilities. It examined a miniscule number of motorcycle accidents, failed to sample wrecks randomly, and even included a disclaimer that new data could very well change its conclusions. Nonetheless, NHTSA dropped its entire study of the technology as a result.

If Harley pushed NHTSA into doing so, its network of lobbyists no doubt played a major role. Nolan’s reporting shows the company had a small army of them at the ready while NHTSA was considering the ABS mandate, and many had close ties to the agency.

Harley lobbyist Steven Palmer had once served as the Department of Transportation’s assistant secretary for government affairs, and Simon Gros left Palmer’s government-relations firm in order to fill that same position at the agency. Attorney Kirk Van Tine managed federal lobbying for a Harley-retained law firm after serving as the Department of Transportation’s deputy secretary. And the company would have had access to two NHTSA chief counsels who had left the agency: Paul Jackson Rice worked at a lobbying firm that sent regulators Harley material arguing for more latitude in ABS testing, and Jacqueline Glassman was a regulatory-relations specialist at a law firm retained by the manufacturer.

Even former Transportation Secretary Ray LaHood may have gotten in on the act. After NHTSA reversed course and killed its ABS mandate, he took a high-dollar lobbying job at a law firm that has defended Harley in the same sort of litigation that the company faces early next year.

The lower-level NHTSA staffer who signed her name to the report left the agency almost immediately after releasing it, but she didn’t follow the well-worn path to lucrative lobbying work. She now sits on the board of a nonprofit group calling for a worldwide mandate on motorcycle ABS as part of a United Nations-backed road safety campaign.

Was she pressured to produce the report’s anti-ABS findings? Was she so embarrassed by the process that it drove her out of NHTSA? Did Harley engineer the whole thing in order to protect itself from legal action by riders? We may never know the answer to these questions, because the agency has refused to comply with all public-information requests Nolan has made focusing on the report.

In case you were wondering, that’s a breach of federal law.

When Elaine Chao faces senators in her confirmation hearing, Chao must ensure them she will hold the Department of Transportation to a higher standard than exists now. Senators need to ask her pointed questions about the role lobbyists should play in regulatory matters such as these, and whether laws need to be tightened to prevent the creeping influence of Harley-Davidson and other powerful companies.

If confirmed, Chao needs to withdraw NHTSA’s 2010 ABS report on day one, order the agency to release all relevant documents to Nolan and the public at large, and then see that the government’s consideration of a nationwide mandate on motorcycle ABS is reopened.

Why does transportation safety matter so much to me? My brother was killed in an auto accident in 1962 in a car whose manufacturer did not even offer seat belts as an option.

The point today is that the lives of thousands of Americans are at stake by whatever NHTSA does or does not do.

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Pat Choate is the author of the books Agents of Influence and Dangerous Business, both of which examined Washington’s revolving door between public office and special interest lobbying.

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