The National Highway Traffic Safety Administration (NHTSA) has proposed a stricter federal standard for roof strength in passenger vehicles that would prohibit any action on roof safety at the state level — including damages claims brought by victims in state courts. During a June 4 Senate hearing, senators from both parties and auto safety advocates aired their complaints about the proposal.

In August 2005, NHTSA proposed a revision to the federal standard for vehicle roof crush resistance. The standard exists to help ensure the structural integrity of vehicles during rollover crashes and, in turn, prevent injuries and fatalities. NHTSA reopened the proposal for public comment in January 2008.

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 tort law has drawn the most scrutiny. 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.

Senators complained about the preemption language during the hearing of the Senate Commerce Committee Subcommittee on Consumer Affairs, Insurance, and Automotive Safety. Sen. Claire McCaskill (D-MO) claimed NHTSA would err by eliminating "every American's right to go to their courthouse in their state and have people from their community decide whether somebody has messed up or not."

Sen. Mark Pryor (D-AR), chair of the panel, encouraged NHTSA Deputy Administrator James Ports to abandon the preemption language when finalizing the rule. Pryor 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."

The preemption language has become a boilerplate provision included in many vehicle safety rules — an invention of President Bush's NHTSA. For example, in a February 2007 final rule on door locks and retention, NHTSA argued its regulation prohibits positive law at the state level. An April 2007 final rule mandating electronic stability control for vehicles used identical language.

McCaskill said, "All of the sudden preemption language is popping up like spring flowers" and expressed suspicion "that there is a plot somewhere in this administration to see if they can't wipe out the right of Americans across this country to access their local courts."

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. The act expressly states that NHTSA rules should be the floor, not the ceiling, for safety standards. The act permits states to adopt their own rules, so long as they are more stringent than the federal standard. On the issue of tort law, the act states, "Compliance with a motor vehicle safety standard" enforcing the law "does not exempt a person from liability at common law." (See sidebar.)

Ports testified that NHTSA has not yet decided if it will pursue preemption when finalizing the rule.

The Bush administration has been criticized for inappropriately including preemption language in a variety of other public health and safety standards. For example, the Food and Drug Administration included tort preemption language in rules for prescription drug labeling, and the Consumer Product Safety Commission included a preemption clause in a rule to reduce the risk of mattress flammability.

In addition to the preemption language, critics of the roof crush proposal say it would not go far enough in protecting drivers. The rule would tighten the existing roof crush standard, which has not been updated since it was first promulgated in 1971. However, the rule does not meet the requests of safety advocates and would lead to relatively small increases in driver safety.

The crux of the roof crush standard is the strength-to-weight ratio. Currently, a vehicle's roof must be able to withstand pressure of at least 1.5 times the vehicle's weight. The proposed standard would strengthen the ratio to 2.5.

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.

Other details of the rule also rile safety advocates. The rule would continue to require roof strength be tested by applying pressure on the vehicle using a metal plate, instead of attempting to model real-world situations in order to better understand the physics of rollover crashes. In testimony, Jacqueline Gillan, vice president of Advocates for Highway and Auto Safety, which represents consumer and public health groups and insurance companies, said some manufacturers are already using real-world modeling and urged NHTSA to require the technology for the safety testing of all vehicles.

Critics say the rule would also artificially inflate a roof's strength during crash testing by mandating the windshield remain intact and the side windows remain rolled up. In a crash, windshields may shatter or dislodge, and side windows may be rolled down.

NHTSA is updating the standard in response to legislation Congress passed in 2005, but Congress mandated a more aggressive approach to rollover safety, advocates say. "Despite legislative instruction to address the necessary safety measures in a coordinated manner to prevent deaths and severe injuries in rollover crashes, the sad truth is that NHTSA is taking an inadequate and piecemeal approach to rollover safety," Gillan said.

Congress mandated completion of the standard by July 1, 2008, but also gave NHTSA flexibility if the rule proved too difficult to complete by the deadline. During the hearing, Sen. Tom Coburn (R-OK) said NHTSA should give higher priority to eliminating the rule's flaws than to meeting the deadline. "If we have a little increase in roof strength that doesn't result in a major decrease in fatalities and injuries, we've done nothing," Coburn said.