NHTSA Issues Improved Final Roof Crush Rule; Drops Preemption
Reprinted from The Safety Record, Volume 6, Issue 2, March/April 2009
WASHINGTON, D.C. – Not bad – considering. With a few variations, that’s largely the reaction to the National Highway Traffic Safety Administration’s final roof crush rule published earlier this month. Nearly four years after deciding to amend the antiquated standard, after howls of protest from automakers and consumer advocates, and after the Insurance Institute for Highway Safety substantially raised the bar to include roof a strength standard for a Top Safety Pick rating, the agency delivered a rule that was better than many expected.
The final version of the rule is notably different from its first proposal in August 2005 on four key points:
The new strength to weight ratio (SWR) for passenger vehicles with a Gross Vehicle Weight Rating of 6,000 pounds is 3.0;
The applicability of the standard now extends to vehicles in the 6,000 to 10,000, which will have to a meet a SWR of 1.5;
A two-sided roof test is required for all vehicles.
The provision to preempt state laws was dropped.
Also for the final rule, the agency maintained an intrusion limit of 5 inches of platen travel as well as adopting a headroom requirement, but the agency decided to require a headform positioning fixture instead of a test dummy. NHTSA said that it was basing the headroom requirement on new data that established a statistically significant relationship between intrusion and injury for belted occupants.
The new roof crush standard will be phased in over a three-year period, beginning in September 2012.
The proposed preemption provision – a widespread inter-agency practice during the administration of President George W. Bush – drew the ire of several groups. Plaintiffs’ attorneys argued it would abrogate consumers’ rights. States’ attorneys general interpreted preemption as a usurpation of state’s rights. Congress members chastised the agency saying that it had no authority to circumvent its intent in passing safety laws.
In the final rule, the agency gave its decision to drop the provision a passing mention: “We have reconsidered the tentative position presented in the NPRM. We do not foresee any potential State tort requirements that might conflict with today’s final rule. Without any conflict, there could not be any implied preemption.”
Don Slavik, an attorney with Habush, Habush & Rottier, S.C. in Milwaukee, was among a group that coordinated the objections to preemption. Slavik credits the team of lawyers and safety advocates for pressing the administration and explaining the fallacy of preemption to agency officials. The opposing philosophies of the new Obama administration didn’t hurt either, he said. “Attorneys and consumer advocates assisted in getting out the word and enlisting the others to comment,” he added. “Of particular importance were comments from legislators and senators saying that they did not intend to preempt in this area and NHTSA was wrong. If you persevere, Congress warned that they would re-legislate specifically in this area.”
As for the rule itself, close observers, such as Don Friedman, co-inventor of the Jordan Rollover System, a repeatable rollover test device, said that the 3.0 strength-to-weight ratio would actually result in automakers building stronger roofs. Variability in the test, coupled with variability in roof strengths among the same models built at different plants, means that automakers will have to build in an ample margin to ensure their vehicles pass the compliance test. Ford, in particular, told the agency that the variability could be as much as 30 percent.
“If you understand that, then the standard as written is really a standard of 3.9,” he said. “It is also the standard we predicted from JRS dynamic testing. This is a standard that will reduce the rollover injury rate by half.”
An IIHS spokesman also deemed it “a pretty good standard.”
“It’s hard to know right now how this plays out in terms of what the automakers will actually have to do, but clearly roofs will get much stronger,” said Russ Rader of the IIHS. “Our main criticism is that the phase-in is just way too long, because we’ve heard from some automakers they will meet our 4.0 very quickly. Also, NHTSA still woefully underestimated the benefits of the standards, but at least they got past that and made it more stringent than we thought it was going to be.”
Several months ago, the institute announced that beginning in 2010, automakers who want IIHS’s coveted Top Safety Pick designation would have to build vehicle roofs with a 4.0 strength-to-weight ratio – far above the timid 2.5 ratio the government has been contemplating for its amended standard. The IIHS estimated that vehicles that could meet this new strength standard could reduce injury risk to occupants by 40-50 percent. In January, the insurance advocacy group informed manufacturers about its new requirement for vehicle roofs to win its highest honor.
The entity most publicly disappointed with the requirements of the new rule was Public Citizen, which released a statement jabbing the rule as falling “far short of mandating vehicle improvements that will significantly reduce the 10,500 annual fatalities from rollover crashes.” Public Citizen criticized the old 1.5 SWR for larger vehicles as inadequate but its biggest beef was the standard’s continued reliance on a quasi-static test. The advocacy group accused NHTSA of ignoring the 2005 congressional intent to consider a dynamic test that could mimic real-world conditions.
NHTSA said that it developed its upgrade with the results of their research program in mind. The agency testing program included full vehicle dynamic rollover testing, inverted vehicle drop testing, and comparing inverted vehicle drop testing to a modified FMVSS No. 216 test. After considering the results of the testing, the agency concluded that the quasi-static procedure provided enough of a suitable representation of the real-world roof dynamic loading conditions. Rollovers were too complex and chaotic to develop a dynamic test suitable for a safety standard.
“NHTSA agrees, however, with pursuing a dynamic test as our ultimate goal. We would like to have one for rollover crashes just as we do for front and side crashes. Unfortunately, we cannot adopt or even propose one now because of issues related to test repeatability, a dummy, and lack of injury criteria. We are pursuing further research for a dynamic test, but we expect that it will take a number of years to resolve these issues. In the meantime, we do not want to delay a significant upgrade of FMVSS No. 216 that will save 135 lives each year,” the agency said.
Friedman was sanguine about another delay in adopting a dynamic test. He has made several public demonstrations of how the JRS can measure the injury and ejection potential of vehicles in rollovers and can definitively identify vehicle safety component defects and their causal relationship to death and injury in accidents. He has also been presenting the Jordan Rollover System test data to NHTSA officials since 2003. With the final rule published, Friedman is looking ahead.
“It’s all good. I think the next thing is the dynamic test as the NCAP (New Car Assessment Program) test,” he said.