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:
- Links on The Rulemaking Process: https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf, excerpts below. . .
- 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.
- 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.