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Reversing preemption, one reg at a time

Following up on yesterday's post about the Obama Administration's intent to reverse preemption language in Executive Branch regulations, which noted its banishment from the National Highway Traffic Safety Administration's rule on roof crush standards, we searched the 2009 Federal Register for similar language in other rules, that is, the term "implied preemption." Here are the relevant results, i.e., rules that specifically reject preemption.

  • fr12my09R Federal Motor Vehicle Safety Standards; Roof Crush Resistance;
  • fr03mr09R Federal Motor Vehicle Safety Standard; Air Brake Systems
  • r20jy09R Federal Motor Vehicle Safety Standards; Door Locks and Door
  • fr13au09R Federal Motor Vehicle Safety Standards; Controls, Telltales and
  • fr04mr09P Federal Motor Vehicle Safety Standard; Rearview Mirrors

(We originally had links here, but they appeared to be temporary urls. To find the entries, just repeat the search.)

Typical is the language from the rule on review mirrors:

[The] Supreme Court has recognized the possibility of implied preemption: State requirements imposed on motor vehicle manufacturers, including sanctions imposed by State tort law, can stand as an obstacle to the accomplishment and execution of a NHTSA safety standard. When such a conflict is discerned, the Supremacy Clause of the Constitution makes the State requirements unenforceable. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000). NHTSA has considered today's ANPRM and does not currently foresee any potential State requirements that might conflict with it. Without any conflict, there could not be any implied preemption.

UPDATE (11:10 a.m.): More discussion of FDA preemption at the FDA Law Blog, April 29, "Change in FDA Preemption Position? New Rule Largely Eliminates Preemption Discussion"

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.