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Senators Question Roof Strength Safety Rules

Congress may step in if safety agency doesn't take action

By Joseph S. Enoch
ConsumerAffairs.com

June 4, 2008

On July 1, NHTSA is expected to enact the first significant upgrade to its so-called "216 Rule" since it was created in 1973. The rule requires a vehicle to withstand at least 1.5 times the weight of the vehicle, slowly applied to one side of the vehicle by what is called a “static crusher.”

The new proposal would increase that standard to 2.5 times the weight of the vehicle – possibly to both sides -- and might include a controversial preemption clause that would essentially keep consumers from filing lawsuits against automakers whose vehicles kill or injure those in rollovers.

Although rollovers comprise less than five percent of all crashes, 25 percent of all vehicle fatalities are from rollovers – approximately 10,000 every year, according to the campaign website for Ralph Nader, the longtime consumer advocate who is running for president as an independent.

Although the upgraded standard is expected to save some lives, many believe it won't save enough and that NHTSA needs to spend more time testing to find a better standard.

“I don't think it's as important they get it done in July 2008 as it is they get it done right,” said Sen. Tom Coburn (R-Okla.), who visited this morning's Senate subcommittee on Consumer Affairs, Insurance, and Automotive Safety hearing as a panelist.

Coburn said he was moved by the story of Kevin Moody, a constituent whose 18-year-old son died when his Ford explorer rolled in 2003. Coburn, who admitted to shying away from the government meddling in industrial affairs, said NHTSA needs more transparency.

“NHTSA did not provide any information as to why it chose 2.5 over any other ratio,” Coburn said. He also said the new rule should include the results of roof crush tests on the stickers of vehicles at car lots.

Congress may step in

Coburn suggested Congress step in and set the rule if NHTSA cannot do it properly on July 1.

“If we have a little increase in roof strength that has a little effect on fatalities, then we've done nothing,” he said.

For its part, NHTSA argues that increasing the standard too much might actually decrease the margin of safety.

James Ports, NHTSA's Deputy Administrator, said, “increasing roof resistance too much could increase the propensity to flip the car over and raise the center of gravity.”

Ports, who appeared extremely nervous and timidly dodged questions from senators, said the 2.5 ratio is part of a “three-pronged approach” that also includes a separate requirement for all vehicles to have electronic stability control by 2012 and tougher requirements for safety belts and door latches that will keep occupants in the vehicle during a rollover.

“Our main goal is to decrease rollovers,” Ports said.

Right to sue

Ports did not answer repeated pointed questions from Sen. Claire McCaskill (D-Mo.) on the proposal's preemption clause.

“What does this (proposal) have to do with wiping out everyone's right to use their state courts?” an obviously frustrated McCaskill asked. “Is this coming from the White House? Where are these boilerplate preemption rules coming from?”

Ports answered almost every question by meekly thanking McCaskill for the question and saying some variation of “we included it as part of the public discussion. It may not appear in the final ruling.”

Sen. Mark Pryor (D-Ark.), chair of the subcommittee, warned Ports that NHTSA is “overstepping (its) bounds.”

“If you pursue this preemption language, I think you'll get bipartisan opposition to it,” Pryor said.

David Garcia, who became a quadriplegic after his Ford Escort flipped, said he could not have finished his doctorate or lived any sort of satisfying life had it not been for his right to to sue Ford for what the courts determined to be a design flaw.

Under the Bush administration these preemption clauses have appeared in many of the rulemakings for NHTSA and other regulatory agencies.

“There's preemption language popping up everywhere like Spring flowers,” McCaskill said.

Stronger is safer

Stephen Oesch, senior vice president of the independent Insurance Institute for Highway Safety said their tests reveal that the new standard will save lives by 28 percent and that increasing that standard only increases the percentages of lives saved.

“There is a direct correlation of increased roof strength and decreased risk of injury,” Oesch said.

Joan Claybrook, president of the not-for-profit consumer advocacy group Public Citizen and former director of NHTSA said an overall increased roof strength acts like a strong chassis that keeps the car safe in rollovers and durable during other crashes as well.

Claybrook said the agency should also test vehicles with a dynamic test that would put a vehicle through a realistic simulation of a test – similar to the tests many luxury European car manufacturers such as Volvo and BMW already perform.

But one automaker lobbyist said dynamic tests yield unrepeatable results.

“If the test gives us three different answers, which one of those do we use?” Robert Strassburger, vice president at the Alliance of Automobile Manufacturers, asked Claybrook. “Dynamic testing is not repeatable.”

Claybrook said the Jordon Rollover System (JRS), which has been used by insurance companies for years, accurately details roof strength within a few degrees of separation for each test.

Ports said NHTSA examined JRS test results but would not share what they concluded or why the agency refuses to use dynamic tests.

Pryor said the committee will keep the dialogue going on the issue of roof safety. While the options vary from giving NHTSA more time to develop a more substantial rule, to Congress passing a law to trump the agency's efforts, one thing seemed clear: NHTSA has few allies in Congress on the issue.

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