Senate Holds Hearing on Roof Strength; NHTSA Grilled on Pre-emption

WASHINGTON, D.C. - The chairman of the Senate Consumer Affairs, Insurance and Automotive sub-committee has urged the Secretary of Transportation to extend the July 1 deadline for a final roof crush rule and to drop the pre-emption clause from the regulation.

"With less than a month to the deadline established in SAFETEA-LU, we are deeply concerned with the direction currently taken by the NHTSA in this rulemaking," wrote U.S. Senator Mark Pryor (D-Arkansas) to Transportation Secretary Mary E. Peters. "It is our belief that the current proposed rule largely ignores Congressional intent by continuing to rely on outdated one-sided tests and insufficient applied force standards and would fail to significantly reduce injuries and deaths. Furthermore, we believe the proposed rule would lessen remedies available to victims and remove all legal liability for automobile manufacturers in state courts for the manufacture of faulty products. The NHTSA's reluctance to discuss specific decisions related to estimates of lives saved, stringency of the requirements, or other issues related to the final rule only exacerbate these concerns. This lack of transparency in the NHTSA rulemaking process is simply unacceptable and runs counter to the notion of open government and the development of sound safety policy."

The June 19 letter followed a hearing on the roof crush rule two weeks earlier, during which sub-committee members emphatically told National Highway Traffic Safety Administration officials they would be working hard to bring the era of boilerplate pre-emption clauses in safety standards to a swift end.

Pryor presided over the June 4 hearing to consider the biomechanics of a rollover, the relationship between vehicle roof strength and occupant injury risk, the history of the roof strength standard, and to review the January Supplemental Notice of Proposed Rulemaking for roof strength. But amid the expected testimonies from consumer groups and manufacturers on the details of the roof crush proposal, was a lively exchange on pre-emption.

NHTSA's Deputy Administrator James Ports made a presentation on the current proposal, which would increase the roof strength-to-weight ratio from 1.5, established in 1973, to 2.5 times a vehicle's weight in a rollover crash. The agency, which has been working since 2005 on the first upgrade to the roof strength regulation in three decades, faces a July 1 deadline to revamp the standard. As part of the proposed rule, the agency inserted language which would preempt accident victims from suing any manufacturers who meet this minimum standard. Ports attempted to explain the pre-emption clause as a trial balloon floated out to the public for comment and an attempt to insulate manufacturers against litigation if the increased roof strength inadvertently makes vehicles more prone to rollovers.

"Increasing the roof resistance too much could potentially increase a vehicle's rollover propensity if we added weight to the roof structure," Ports said, of the some of the industry comments on the proposal. "Other things being equal, raising the roof's center of gravity could upset the balance between efforts of increasing the roof strength and the rollover propensity, defeating the purpose of this rule."

The three senators at the hearing, who either raised questions or made comments on the proposal, weren't buying. Sen. Pryor told Ports that NHTSA could "save everybody a lot of headaches" if the agency would drop pre-emption clauses from regulatory language. Sen. Claire McCaskill (D-Missouri) aimed all of her fire on pre-emption - in this proposed rule and others the agency had promulgated in the last few years:

When did NHTSA decide to crush the rights of states? Where did this come from?" she demanded several times. "I'm not trying to be mean to you, but I'm far from satisfied with the answers I'm getting today. It looks like this is, frankly, being railroaded through in a way that people can't comment. I am one of many in the Senate who feels very strongly on this.

Senator Tom Coburn, (R-Oklahoma) criticized NHTSA's current proposal for its lack of stringency and for containing a pre-emption provision. Coburn noted that 26 state attorney generals had sent a letter to NHTSA protesting pre-emption as "a major setback to motor vehicle safety." Coburn also took the agency to task for conducting a rulemaking process that lacked efficacy and transparency. He noted that NHTSA had failed to present "clear and precise evidence" of how safety standards were promulgated and that the current proposal did not go far enough.

"If we have a little increase in roof strength that doesn't result in a major decrease in injuries and fatalities, we've done nothing," he said.

Safety advocates Joan Claybrook of Public Citizen and Jacqueline Gillian of Advocates for Highway & Auto Safety lobbied for the same improvements outlined in their rulemaking comments, including a dynamic roof strength test and a higher strength-to-weight ratio standard. Stephen Oesch of the Insurance Institute for Highway Safety presented the results of their roof crush studies in which showed the relationship between increased roof strength and reduced injury risk in rollover s and suggested that the proposal be strengthened to require a strength-to-weight ratio of at least 3.0.

"Prior to our recent research on roof strength, several studies had reported no relationship between roof strength and injury risk in rollover crashes. These earlier findings defy logic because, as I just explained, in every other crash configuration - whether front, side, or rear - the basic principles of occupant protection dictate that the compartment be designed to resist intrusion so lap/shoulder safety belts and airbags can provide protection to occupants," Oesch said. "There is no logical reason to assume that in a rollover crash, you would design a vehicle to permit excessive intrusion. This is the reason NASCAR vehicles are equipped with roll bars to prevent roof crush in violent rollover crashes such as the one experienced by Michael McDowell at the Texas Motor Speedway in 2008. He walked away from this crash uninjured."

On the industry side, Robert Strassberger of the Alliance of Automobile Manufacturers and Michael Stanton of the Association of International Automobile Manufacturers re-stated their opposition to dynamic testing and to two-sided roof testing. Strassberger reiterated the company line that roof strength bore no relation to injuries in a rollover crash.

On one thing, most of the commenters agreed: NHTSA should take more time, if necessary to propose a well-crafted roof crush amendment, rather than rush to make the July 1 deadline.

"It's more important to get this thing done right, than get it done fast," Pryor said.

Copyright © Safety Research & Strategies, 2008

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