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Camryn Hansen
Camryn Hansen
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The Other Bush Legacy: Preemptive Strikes at Home. Part III

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Part I and Part II of this series introduce the report recently released by The American Association for Justice (AAJ), which documents the erosion to states’ rights that has occurred over the course of the last eight years as a direct result of efforts by the Bush administration to give unprecedented (the AAJ says “unconstitutional”) power to regulatory agencies—and by extension, to the corporations under their increasingly lax jurisdiction—through the language of complete immunity preemption.

The AAJ report goes on to list every final as well as every proposed piece of new preemption legislation in seven different regulatory agencies. Final laws in 2007-2008 include:

January 12, 2007- The FDA issues a final rule that
expanded use of the nutrient content claim "lean" on
certain foods which contain preemption language in the
preamble that was not subject to notice and comment.
72 Fed. Reg. at 1458.

February 6, 2007 – NHTSA issues the first of many final
rules regarding federal motor vehicle safety standards
(door locks & door retention) which include boilerplate
preemption language (including cite to Geier v. Honda
Motor Co., 529 U.S. 861 (2000) in the preamble that was
not subject to notice and comment. 72 Fed. Reg. at 5397.

March 6, 2007- The FDA issues a final rule requiring
over-the-counter dandruff products to contain a combination
of 1.8% coal tar solution and 1.5 percent menthol.
This rule contains preemption language in the preamble
and was not subject to notice and comment. 72
Fed. Reg. at 9851.

March 29, 2007- The FDA issues a final rule on over the-
counter laxatives with preemption language in the
preamble that was not subject to notice and comment.
72 Fed. Reg. at 14673.

April 6, 2007 – NHTSA issues a final rule on electronic
stability control which includes boilerplate preemption
language in the preamble that was not subject to notice
and comment. 72 Fed. Reg. at 17300.

April 9, 2007 – DHS issues interim final rules regarding
chemical facilities, which continued to contain preemption
language, despite outrage from Congress. Congress
addressed this problem through the use of appropriations
bills.

May 4, 2007- NHTSA issues a final rule on head
restraints which includes boilerplate preemption language
in the preamble that was not subject to notice and
comment. 72 Fed. Reg. at 25512.

July 12, 2007 – NHTSA issues a final rule on tire pressure
monitoring which includes boilerplate preemption
language in the preamble. This language was not subject
to notice and comment and was not included when the
earlier version of the final rule was issued two years ago.
72 Fed. Reg. at 38023-24.

July 24, 2007- NHTSA issues a final rule on occupant
crash protection which includes boilerplate preemption
language in the preamble that was not subject to notice
and comment. 72 Fed. Reg. at 40257.

September 5, 2007- NHTSA issues a final rule regarding
side impact protection which includes boilerplate
preemption language in preamble that was not subject
to notice and comment. 72 Fed. Reg. at 50905.

September 11, 2007- NHTSA issues a final rule regarding
side impact protection for electric powered vehicles
which includes boilerplate preemption language in preamble
that was not subject to notice and comment. 72
Fed. Reg. at 51953.

September 17, 2007- The FDA issues an interim final
rule on dietary sweeteners with preemption language in
the preamble. 72 Fed. Reg. at 52788.

November 2, 2007- NHTSA issues a final rule regarding
occupant crash protection which includes boilerplate
preemption language in the preamble that was not subject
to notice and comment. 72 Fed. Reg. at 62139.

November 21, 2007- NHTSA issues a proposed rule
regarding school bus passenger seating and crash protection
which includes boilerplate preemption language. 72
Fed. Reg. at 65525.

December 4, 2007- NHTSA issues a final rule regarding
cargo carrying capacity which includes boilerplate preemption
language in the preamble that was not subject
to notice and comment. 72 Fed. Reg. at 68458.

December 4, 2007- NHTSA issues a final rule regarding
lamps, reflective devices, and associated equipment
which includes boilerplate preemption language in the
preamble that was not subject to notice and comment.
72 Fed. Reg. at 68265.

December 19, 2007- The FDA issues a final rule establishing
new warning statements and other labeling information
for over-the-counter contraceptives with preemption
language in the preamble that was not subject
to notice and comment. 72 Fed. Reg. at 71783.

February 13, 2008- The FRA issues a final rule on railroad
operating rules and responds to AAJ’s comments.
The FRA reiterates the language in the Railroad
Preemption Clarification, which they claim renders
AAJ’s comments moot. 73 Fed. Reg. 8456.

February 20, 2008- United States Supreme Court issues
decision in Riegel v. Medtronic, stating that federal law
preempts medical device claims.

February 25, 2008- The FDA issues an interim final
rule on soluble fiber with preemption language in the
preamble. 73 Fed. Reg. at 9944.

April 16, 2008- The FRA/ Pipeline Hazardous Materials
Safety Administration
jointly issue an interim final rule
enhancing rail transportation safety with preemption
language in the preamble. 73 Fed. Reg. at 20755.

May 1, 2008- The FDA publishes its final rule regarding
labeling for soluble fiber which contains preemption
language. 73 Fed. Reg. at 23952. This document also
includes the Administration’s first reference to the Riegel
v. Medtronic decision.

May 27, 2008- The FDA publishes its final rule regarding
labeling for dietary sweeteners which contains preemption
language. 73 Fed. Reg. at 30301. This document
also references the Riegel v. Medtronic decision.

June 9, 2008- NHTSA publishes a final rule/response to
petitions for reconsideration of its earlier rule regarding
side impact protection, to which AAJ had filed a petition
for reconsideration. NHTSA directly responded to the
petitions from several automakers, but the agency did
not respond to AAJ. The same preemption language was
included in this version. 73 Fed. Reg. at 32481.

June 16, 2008- The FRA issues its final rule regarding
railroad operating practices (first noticed in October
2006), which contains preemption language. 73 Fed.
Reg. at 33900.

July 7, 2008- NHTSA publishes a final rule (with
responses to petitions for reconsideration) regarding
power-operated windows, partitions, and roof-panel systems
which contains boilerplate preemption language.
73 Fed. Reg. at 38338.

August 5, 2008- NHTSA publishes a final rule on child
restraint systems. The SNPRM on this issue contained
boilerplate preemption language, and AAJ filed comments.
For the first time in the last year and a half,
NHTSA’s finally deviated from its boilerplate language
preempting state tort law. Instead, the agency went back
to using the language it has used prior to 2005, stating
that the rule did not have any impact on State and local
governments. 73 Fed. Reg. at 45357.

August 15, 2008- The FDA issues a final rule regarding
soluble fiber labeling which contains preemption language
and also references the Riegel decision. 73 Fed.
Reg. at 47829.

August 22, 2008- The FDA issues a final rule regarding
supplemental application used to proposed labeling
changes for drugs and medical devices which continues
to contain language in the preamble to preempt state law
claims. 73 Fed. Reg. at 49609. The text of the rule also
may operate to preempt failure to warn claims, because
the manufacturer can now argue it had no obligation to
update its rule.

August 28, 2008- NTHSA issues its revised final rule
regarding lamps, reflective devices, and associated equipment.
While the agency acknowledged that AAJ filed a
petition for reconsideration, the agency only decided to
extend the effective date upon reconsideration. The
agency also says the boilerplate preemption language
from the previous version still applies. 73 Fed. Reg. at
50730.

September 22, 2008- NHTSA issues a final rule regarding
electronic stability control systems which says that
preemption is a matter for the courts to decide. 73 Fed.
Reg. at 54536.

October 8, 2008- NHTSA issues a final rule regarding
designated seating positions. In response to comments
regarding the preamble to its proposed rule, NHTSA
included language in both the text and the preamble to
rule regarding the preemption of State tort law. This is
the first time that any agency has taken this action. 73
Fed. Reg. at 58894.

If you read through the whole list, congratulations. It’s of disturbing length–and by all accounts will not be easily or quickly shortened by our next president.