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Letter to The Honorable Mary E. Peters, Secretary of Transportation


Location: Washington, DC

Pryor Urges Extension of Roof Crush Ruling

Senator Mark Pryor today called on U.S. Transportation Secretary Mary Peters to extend the current deadline for the National Highway Traffic Safety Administration's (NHTSA's) proposed rule (FMVSS 216) on vehicle roof strength. As Chairman of the Subcommittee on Automobile Safety, Consumer Affairs and Insurance, Senator Pryor held an oversight hearing on June 4, 2008 to review NHTSA's progress on the rulemaking and hear public comments on the proposed rule.

Pryor said thousands of Americans are killed and injured each year in motor vehicle accidents, including over 10,000 killed each year in rollover crashes. Roof safety standards are designed to protect passengers in the event of such accidents; however they have not been revised in over 30 years. NHTSA's deadline for issuing a new final rule is July 1, 2008, with a legally permissible extension if necessary.

"A smart standard could make the difference between life or death for thousands," said Pryor. "NHTSA should take all needed time to get this rulemaking right. Most importantly, the NHTSA should remove preemption provisions to ensure that vehicle manufacturers do not receive total immunity from claims brought by vehicle purchasers and users."

As a result of the oversight hearing in which Dr. Coburn testified, Senators Pryor, Coburn and Inouye (Chairman of the Senate Committee on Commerce, Science and Transportation) sent the following letter:

June 19, 2008

The Honorable Mary E. Peters
Secretary of Transportation
U.S. Department of Transportation
1200 New Jersey Avenue, SE
Washington, D.C. 20590

CC: The Honorable Nicole Nason
National Highway Traffic Safety Administration
U.S. Department of Transportation
400 Seventh Street, N.W.
Washington, D.C. 20590

RE: Federal Motor Vehicle Safety Standard (FMVSS) No. 216

Dear Secretary Peters:

We are writing to express our concerns with the National Highway Traffic Safety Administration's (NHTSA's) proposed rule on vehicle roof strength. We also write to encourage you to extend the current deadline for issuance of the final rule and set a new date for that purpose. After conducting our oversight hearing on June 4, 2008, to review the NHTSA's progress on the rulemaking and hear public comments on the proposed rule, we believe that an extension is necessary to best protect the American public.

As you know, Section 10301 of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law No. 109-59, directs the Secretary of Transportation to initiate rulemaking proceedings for the purpose of establishing rules or standards that will reduce vehicle rollover crashes and mitigate deaths and injuries associated with such crashes for motor vehicles with a gross vehicle weight rating of not more than 10,000 pounds. This section also calls upon the NHTSA to upgrade Federal Motor Vehicle Safety Standard (FMVSS) No. 216 relating to roof strength for both "driver and passenger sides." In addition, this section recommended that the NHTSA consider "dynamic tests that realistically duplicate the actual forces transmitted during a rollover crash." The deadline to complete the upgrade of FMVSS 216 is July 1, 2008, with a legally permissible extension with proper notification of Congressional Committees of jurisdiction.

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. We encourage you to extend your deadline to ensure a proper rulemaking that would maximize vehicle safety and significantly reduce deaths and injuries for passengers and drivers in vehicle rollover accidents. 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.

As we noted earlier, section 10301 of SAFETEA-LU required the NHTSA to promulgate a roof strength rule that would require vehicle manufacturers to test roof strength "for driver and passenger sides" of the vehicle. Two-sided testing is important to ensure that all vehicle passengers are protected no matter which way the vehicle rolls. The proposed rule as currently written only requires driver's side testing and lacks adequate testing and analysis of data related to two-sided sequential testing. Numerous studies have shown that damage to one side of a roof during a rollover accident affects the strength and integrity of the opposite side, thus risking the safety of passengers on the opposite side of the initial impact. In order to protect all vehicle occupants, we believe a two-sided test is necessary at a minimum.

The testimony presented at the hearing and comments to the rulemaking record raise further questions about the use of the 50th percentile male test dummy as proposed instead of a taller test dummy. The selection of this dummy in conjunction with the "no head-contact" criterion by the agency appears to place in jeopardy all drivers and passengers with a seated height greater than the 50th percentile male test dummy. We strongly urge the NHTSA to use a test dummy or test method that will not discriminate against taller vehicle occupants, but rather will ultimately provide proper protection to them.

In addition, we are concerned with the limited information provided in the proposed rule and in the June 4th hearing by the NHTSA with regard to its tentative selection of a 2.5 strength-to-weight ratio (SWR) as the baseline for consideration in developing the final rule. Given the lack of data and clear explanation from the NHTSA supporting the need for this SWR standard, it is difficult to think that the selection of this number was anything more than arbitrary. In addition to appearing to be an arbitrary choice, the minimal impact that such a test is estimated to have on saving lives is also of great concern to us. The NHTSA's own estimates are that a 2.5 SWR standard would only save between 13 to 44 lives a year. The NHTSA does not conduct similar estimates or analysis for other SWRs, such as 2.0, 3.0, 3.5, or 4.0. This lack of transparency on data and analysis detailing the research conducted by the NHTSA in establishment of a new SWR is obviously of great concern to us and many in the general public. We hope that you will provide additional data and analysis supporting the need for the final selected SWR standard and the rationale for selecting the final SWR standard over other potential SWR standards.

With regard to preemption, which was another item discussed during the hearing, the proposed rule's preamble currently states the NHTSA's intention to preempt all state authority including state common law. This usurping of states' rights is done without Congressional authority, and without complying with Executive Order 13132, which requires the NHTSA to consult with the states before proposing a rule that would substantially limit their authority. The agency's preemption provision, if accepted by the courts, also would reduce or eliminate manufacturer incentives to exceed the minimum standard, which the agency admitted will save only 13 to 44 lives of the 10,000 killed in rollover crashes annually. If this provision is included in any final rule, this would constitute an unprecedented incursion upon the constitutional rights of consumers, who will remain uncompensated for the needless deaths and injuries that occur due the foreseeable negligence of manufacturers. We firmly believe this proposal should be removed from the final rule in order to ensure that vehicle manufacturers do not receive total immunity from claims brought by vehicle purchasers and users.

In conclusion, we believe NHTSA can and must do better for the sake of the many people who can be saved. We urge you to take all needed time to correct these problems in the final rule and issue a strong and effective safety standard that follows Congressional intent and will significantly save lives and reduce injury. We look forward to reviewing any revised proposal published by the Agency, and upon that review, we will consider what further actions Congress may need to take.

Thank you for considering our request.


Senator Mark L. Pryor Senator Tom A. Coburn

Senator Daniel K. Inouye

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