Underride Roundtable Phase 2: Crafting Recommendations to Present to NHTSA For Final Rule

Excerpt from a previous post: Avoid an impasse: Follow-up Underride Roundtable with Negotiated Rulemaking Meeting

It is my hope that we can pursue a recommendation, made by a participant of the Underride Roundtable during the afternoon panel discussion, and organize a group of affected individuals and organizations/companies to meet together and develop a proposal to take to NHTSA in order to bring about a comprehensive negotiated rulemaking.

Yesterday, I sent out an email to participants of the Underride Roundtable–asking them to attend Phase 2 of the Underride Roundtable. I am getting some positive response and also some request for clarification of my goal for this meeting. So, the remainder of this post will serve to clarify what I am proposing.

Basically, the point is that NHTSA–now that the formal Public Comment period has ended for the Rear Underride NPRM–is in the process of reviewing those comments and crafting a final underride rule. Once that “final” rule is published, we will need to determine if it would be an adequate rule.

My thought is that now is the time to be hammering out an agreement–amongst ourselves (trucking industry, manufacturers, consumers, safety advocates, engineers, underride victims)–about what is an acceptable underride rule rather than wait until after NHTSA has already prepared a final rule. This agreement would include all aspects of underride protection.

We want to see it taken care of now and not wait for years to get any additional significant improvement/saved lives. Then, too, from the trucking industry perspective, such a strategy could avoid a situation of continuous changes down the road when solutions are known to be possible now.

Actually, this is what I had hoped would come out of the original Roundtable–a specific recommendation to NHTSA. Since that did not occur, my suggestion is that we go ahead now and hold a second meeting which would allow us to prepare a proposal to present to NHTSA as a petition for a new, comprehensive underride rule.

I am prepared to work to get this organized and underway as soon as possible. I have already had quite a few people get back to me to let me know that they would like to participate in this meeting, which would not strictly speaking be Negotiated Rulemaking but a Facilitated Crafting of Best Practice Recommendations for Underride Protection.

I’m sure that some will react with skepticism that this could ever work. But I am willing to put the effort into pursuing an impossible dream with hopes of realizing an actually-attainable outcome–making underride crashes be a thing of the past.

And if you wonder what makes me think that I (our family) has the authority to bring this about. . . the other day, I was reviewing the OMB Circular A-4. a document from the White House Office of Management & Budget to the heads of Executive Agencies with guidelines for the analysis of proposed regulatory actions.

Basically, a federal regulation should be issued when there has been a failure of the private market to protect the public (decades of underride fatalities and serious injuries). There should be an assessment of the significance of the problem (hundreds of deaths/year–decade after decade), and it should be shown that a government intervention is likely to do more good than harm (industry has complied with previous rules & research has shown that stronger underride protection/rules is/are possible to save more lives ):

Before recommending Federal regulatory action, an agency must demonstrate that the proposed action is necessary. . . Executive Order 12866 states that “Federal agencies should promulgate only such regulations as are required by law, are necessary to interpret the law, or are made necessary by compelling need, such as material failures of private markets to protect or improve the health and safety of the public, the environment, or the well being of the American people. . .”

Executive Order 12866 also states that “Each agency shall identify the problem that it intends to address (including, where applicable, the failures of private markets or public institutions that warrant new agency action) as well as assess the significance of that problem.”. . . If the regulation is designed to correct a significant market failure, you should describe the failure both qualitatively and (where feasible) quantitatively. You should show that a government intervention is likely to do more good than harm. For other interventions, you should also provide a demonstration of compelling social purpose and the likelihood of effective action. OMB Circular a-4.pdf

Well, then, because the private market has failed to protect us from deadly underride and, furthermore, the government has failed to adequately regulate this safety defect, then it behooves me, as a citizen of this country, to initiate action to rectify this tragic oversight.

Note: If anyone would like to host this meeting at their facility, please let me know as soon as possible so we can get this underway.

Notes on the Rulemaking Process:

  1.  Links on The Rulemaking Process:  https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf, excerpts below. . .
  2. How do public comments affect the final rule? The 
notice and comment 
process 
enables 
anyone 
to 
submit 
a 
comment 
on 
any 
part 
of 
the
 proposed
 rule.
 This 
process
 is 
not 
like
 a 
ballot 
initiative 
or 
an 
up or down
 vote
in 
a 
legislature.

 An
 agency
 is 
not 
permitted
 to 
base 
its 
final 
rule 
on 
the
 number 
of
comments in 
support 
of 
the rule 
over 
those 
in 
opposition 
to 
it. 
At 
the 
end
 of
 the 
process, 
the 
agency 
must 
base 
its
 reasoning 
and
 conclusions 
on 
the 
rulemaking 
record, 
consisting 
of 
the 
comments, 
scientific
 data, 
expert 
opinions,
 and
 facts
accumulated 
during 
the
 pre‐rule 
and
 proposed 
rule
 stages.

 To 
move 
forward
 with 
a 
final 
rule, 
the
 agency
 must 
conclude 
that 
its 
proposed
 solution 
will 
help
 accomplish 
the 
goals 
or 
solve 
the 
problems
 identified. 

It 
must 
also 
consider 
whether 
alternate
 solutions 
would
 be 
more 
effective 
or 
cost 
less.

 If 
the 
rulemaking
 record
 contains persuasive 
new
 data 
or 
policy 
arguments,
 or 
poses 
difficult
 questions
 or 
criticisms, 
the 
agency 
may 
decide 
to 
terminate 
the 
rulemaking. 

Or, 
the 
agency
 may
 decide 
to 
continue
 the 
rulemaking
 but 
change 
aspects 
of 
the
 rule to 
reflect
 these 
new
 issues. 

If 
the 
changes 
are 
major, 
the 
agency 
may
 publish 
a 
supplemental 
proposed
 rule. 

If 
the
 changes 
are
 minor, 
or 
a 
logical 
outgrowth
 of 
the 
issues 
and
 solutions
 discussed 
in
 the
 proposed
 rules, 
the
 agency
 may
 proceed
 with 
a
 final 
rule.
  3. What is the role of the President in developing a final rule? In 
the 
same 
way 
that 
the
President 
and 
the 
Office 
of 
Information 
& 
Regulatory
 Affairs 
(OIRA) review 
draft
proposed 
rules 
prior 
to 
publication, 
the 
President 
and 
OIRA 
analyze 
draft 
final
 rules
when 
they
 are
 “significant” 
due 
to 
economic 
effects 
or 
because 
they 
raise 
important
 policy 
issues.

 The 
Presidential 
level 
review 
takes 
place 
before 
the 
final 
rule 
is
published 
in 
the
 Federal 
Register. 

OIRA’s 
final 
analysis
 of
 estimated 
costs 
and
benefits 
may take 
into
 consideration any 
comments 
and
 alternate 
solutions
suggested 
in 
public 
comments. Agencies 
may 
also
 use 
this 
review 
and 
analysis 
phase 
to 
consult 
with
 other 
agencies who 
share
 responsibility 
for 
issues 
covered 
by
the 
rule. 

In
 some 
cases,
 interagency 
review 
is 
mandatory.

Negotiated Rulemaking

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