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Wednesday, July 02, 2008

After Preemption Row, Roof Strength Rule Delayed

The National Highway Traffic Safety Administration (NHTSA) is temporarily delaying its revision to the national standard for roof strength in passenger vehicles, according to ConsumerAffairs.com. Safety advocates and lawmakers have criticized the agency for a host of flawed provisions in the proposed regulation.

NHTSA faced a statutory deadline of July 1 to complete the rule, but is also permitted to request from Congress an extension. A Senate panel urged NHTSA to ask for the additional time rather than issue the rule in its current form.

One of the major points of contention is preemption of state common law, which NHTSA has been pushing for. In the original notice, NHTSA claimed its final rule would prohibit states from enacting positive law – that is, laws passed by state legislatures and regulations developed by state agencies – different from the federal standard. NHTSA also claimed the rule would "preempt all conflicting State common law requirements, including rules of tort law," thereby eliminating a consumer's right to sue an automaker if the consumer is injured in a rollover crash.

NHTSA's decision to preempt state positive law and tort law through its regulation is in plain violation of the major federal law the agency enforces, the Motor Vehicle Safety Act. (Click here for details.) Sen. Mark Pryor (D-AR) has said preemption is not in the public's best interest, is outside of NHTSA's authority, and would result in "bipartisan opposition in the Senate."

Critics also say the proposal would not go far enough in protecting drivers. NHTSA estimates the rule change would result in 13 to 44 fewer rollover fatalities every year. Critics say a new rule should make significantly more progress than that. In 2007, more than 10,000 people died in rollover crashes. "Rollover crashes should be highly survivable," said Joan Claybrook, head of the consumer group Public Citizen, in testimony before the Senate subcommittee.

Hopefully, NHTSA will use the deadline extension to back away from the preemption provision and make the standard more protective. The new deadline is October 1. Stay tuned to Reg•Watch for updates.