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Thursday, June 05, 2008

Preemption Provision in Roof Strength Rule Criticized

In August 2005, the Department of Transportation proposed a badly-needed update to its 1971 standard for roof strength in passenger vehicles. According to the nonprofit group Public Citizen, the regulation would save 13 to 44 lives every year (out of about 10,000 rollover-related deaths).

The proposed rule is weak on its merits. Critics charge the rule is too weak to make a marked improvement in vehicle safety and does not require automakers to adopt readily available technology that would significantly increase roof strength. (Check out Public Citizen for more.)

But a troubling provision in the proposal makes it even worse by limiting the rights of all rollover crash victims. DOT's National Highway Traffic Safety Administration (NHTSA) included language that would preempt the rights of victims to bring damages claims against automakers.

Yesterday, a Senate panel grilled a NHTSA official on the preemption language, and senators from both parties urged the agency to abandon it. Congress Daily (subscription) reports:

Sen. Claire McCaskill, D-Mo., charged that pre-emption language had been cropping up "like spring flowers" in Bush administration rule-making proposals over the past year, and added that "we in Congress are pretty upset about it."

Sen. Tom Coburn, R-Okla., appeared as a witness at the hearing. He chided NHTSA for not offering "any explanation for why the rights of a vehicle purchaser to seek a common-law remedy for harm done to them should be taken away."

Federal agencies are responsible for enforcing the positive law enacted by Congress. However, even when positive laws and regulations work, citizens must have an opportunity to seek legal redress if a product causes harm. Tort law provides that opportunity by allowing citizens to seek damages from the makers of those products.

When the Bush administration tries to preempt tort law through regulation, as it has frequently attempted, it is conflating two different types of law — and doing so to the detriment of the public.

NHTSA may finish work on the rule as early as July 1.