Tag Archives: Secretary of Transportation

PBS/Frontline Underride Documentary & Petition to Secretary Pete

Recent months have brought progress in the right direction to solve the truck underride problem. A PBS/Frontline documentary focused on underride will be aired on Tuesday, June 13, 10/9 Central. See the trailer here, America’s Dangerous Trucks. Spread the word! Breakout stories and articles:

  1. We are launching a new online petition to take advantage of the national attention this broadcast will bring to the hidden problem of underride. Please sign & share: Secretary Pete, It’s Past Time To End Death By Underride! These signatures & comments will be submitted to NHTSA.
  2. In April, the National Highway Traffic Safety Administration (NHTSA) announced members of the Advisory Committee on Underride Protection. The first ACUP meeting was on May 25. This diverse group, with both industry and safety advocates represented, will be making recommendations to Secretary Pete/NHTSA about how to end Death By Underride.
  3. At the same time, NHTSA published an Advance Notice of Proposed Rulemaking (ANPRM) for a potential side guard regulation. Add your voice to our message. Submit a Public Comment (by July 20) here in support of requiring side guards on all new trucks. Help us to bring this long-overdue rule across the finish line.

Thank you for being a part of TEAM Underride!

@SecretaryPete, Will you fix flawed underride analysis or let deaths continue?

In 2020, I became aware of further proof that underride regulatory analysis was both flawed and non-transparent. For some reason, in 2017, the FMCSA contracted with the Volpe National Transportation Systems Center to carry out a Study of Truck Side Guards to Reduce Pedestrian Fatalities. Originally the study goals were listed on the website like this:

Five key tasks are included in this project: (1) study interaction of a potential side guard with other truck parts and accessories (e.g., fuel tanks, fire extinguisher, exhaust system) and the implications for a new Federal Motor Carrier Safety Regulation; (2) investigate applicable international side guard standards; (3) perform a preliminary cost-benefit analysis of truck side guard deployment; (4) propose recommendations; and (5) propose means for voluntary adoption.“  

When I found out that there were no plans to publish the completed study results, I made multiple inquiries at DOT and Congress. Some months later, after Departmental multimodal review, the results were whittled down to a literature review and finally published here:

A Literature Review of Lateral Protection Devices on Trucks Intended for Reducing Pedestrian and Cyclist Fatalities

When I realized that the majority of the report was missing, I submitted a FOIA Request asking for a copy of the entire report but was denied due to Exemption 5:

Exemption 5 protects the integrity of the deliberative or policy-making processes within the agency by exempting from mandatory disclosure opinion, conclusions, and recommendations included within inter-agency or intra-agency memoranda or letters. Exemption 5 also exempts from disclosure draft documents and recommendations or other documents that reflect the personal opinion of the author rather than official agency position.  Finally, Exemption 5 exempts from disclosure deliberative records that may cause public confusion where the information were not the basis for an agency’s action or final report .

Any reasonable person could look at the conclusions from the published study and compare the data to the literature referenced and realize that there were problems. Here’s a fact sheet outlining the apparent flaws in the report published by FMCSA in May 2020:

Fact Sheet on FMCSA Side Guard (LPD) Report

A flawed conclusion and inconsistent crash analysis cut the apparent Vulnerable Road User safety benefit of side guards by approximately half.

This is bad. This is wrong. In the first place, the error leads to a flawed cost benefit analysis for underride rulemaking. In the second place, even the undercounted underride deaths for Vulnerable Road Users (pedestrians, cyclists, motorcyclists) – to the best of my knowledge – have not been included with data on underride deaths in prior NHTSA underride regulatory analysis. Really flawed cost benefit analysis.

Logic says that a flawed cost benefit analysis will lead to a faulty conclusion. The conclusion from multiple underride rulemaking efforts in the past has been that a regulation is not cost effective. In other words, those lives which could have been saved by underride regulations were not deemed worth the cost.

And, by the way, what exactly was the rationale behind leaving out information from the original study? What was DOT concerned about revealing? Would it have actually justified a side guard regulation, which would, of course, have not been looked on very favorably by many in the trucking industry? Would the study have provided a broader look at additional advantages of side guards, including their ability to increase aerodynamic fuel savings, spray reduction, wind stability, GHG reduction, or other accompanying side guard benefits?

As far as I can tell, NHTSA’s faulty analysis has resulted in “guidance” to the industry which effectively turned a blind eye to the fact that trucks with a dangerous design indisputably allow cars and Vulnerable Road Users to go under trucks and sentence thousands of road users to Death By Underride.

Quote is from Ride for Sylvia – Cleveland – 2020

To compound the problem, at least in recent years, underride rulemaking has been assigned to the Crashworthiness Standards division of NHTSA in the USDOT. In my opinion, that is not a good fit. The majority of rulemaking done by NHTSA has to do with the auto industry, whereas FMCSA is the agency charged with motor carrier safety.

Furthermore, underride protection doesn’t fit the definition of crashworthiness, namely, the ability of a car or other vehicle to withstand a collision or crash with minimal bodily injury to its occupants. Underride protection is installed on trucks but does not protect truck occupants. So the trucking industry gets away with claiming they’re not responsible to take care of the problem. And it isn’t a feature of the car whose occupants need to be protected, so the automakers don’t have any responsibility. Consequently, underride protection doesn’t truly fit into the current NHTSA division of responsibilities as far as  I can tell. The result: on top of industry opposition, underride rulemaking seems doomed because, organizationally, it falls between the cracks.

It appears to me that this complex issue would be better suited as a multimodal collaborative project under the coordination of the Office of the Secretary rather than buried at NHTSA without suitable input from other agencies and the yet-to-be-established Advisory Committee On Underride Protection. Maybe then the Underride Initiative would get the priority status it requires and All Road Users would finally be protected from Death By Underride.

Oh, look, DOT just published their priority Innovation Principles, including this one:

The Department should identify opportunities for interoperability among innovations and foster cross-modal integration. In addition, DOT’s posture must remain nimble, with a commitment to support technologies that further our policy goals.

Will the U.S. DOT let the flawed analysis stand? Or will the coming year see significant progress in underride rulemaking? Secretary Pete, the final determination will be in your hands. Will you decide that comprehensive underride protection is warranted?

Congressman Price Questions Secretary Chao About DOT’s Plan To Address GAO Truck Underride Recommendations

What is DOT going to do about deadly truck underride? That is the question.

On February 27, 2020, at an Appropriations Subcommittee Hearing on DOT’s 2021 Budget Request, Congressman David Price (D-NC) asked Secretary of Transportation Elaine Chao about DOT’s plans to address the GAO truck underride recommendations. Here’s her reply:

“We actually just talked about this just yesterday. So this is a priority. We understand it. We do have a timeline & we want to get that to you.”   @SecElaineChao

I’m looking forward to seeing DOT’s timeline for addressing GAO Truck Underride Recommendations. I’m hoping that it will reflect a decision to make underride a priority. After all, rear underride regulations have not been updated since 1996, we’ve been waiting for DOT to act on side underride regulations for fifty-one years, and there’s been radio silence on front underride/override.

And it may well be more as underride deaths are vastly undercounted.

Underride can happen to anyone at any time anywhere.

Has FMCSA Done Due Diligence To Appropriately Address Trucking Minimum Liability Insurance Question?

After a truck crash killed our daughters, AnnaLeah (17) and Mary (13) on May 4, 2013, we discovered that there were many problems with truck safety, including inadequate trucking liability insurance. In 1980, Congress set the level of liability insurance for trucking companies at a MINIMUM of $750,000. If that were adjusted for inflation, it would be $2,225,643 in 2017. Yet, DOT has not once raised that level in 37 years — thereby jeopardizing the safety of the traveling public.

In fact, on June 5, 2017, the FMCSA withdrew the Advanced Notice of Proposed Rulemaking (ANPRM) on the Appropriateness of the Current Financial Responsibility and Security Requirements for Motor Carriers, Brokers, and Freight Forwarders, which was intended to raise that minimum. The history of that rulemaking is summarized below.

Prior to that ANPRM, the FMCSA issued a Report in April 2014 , as required (actually one year late). They are required by Congress to issue reports every four years, which means another report should have been completed by April 4, 2017 (or thereabouts). “Section 32104 of MAP-21. . . directed the Secretary [of Transportation] to determine the appropriateness of these requirements every 4 years beginning April 4, 2013.”

The Motor Carrier Act of 1980 initially established the minimum level of financial responsibility for motor carriers:

The legislative history of the MCA shows that Congress included section 30 because “the issue of financial responsibility…is inextricably bound to the entry provisions of the legislation that directly concern the ‘fitness’ of the carrier to operate in interstate commerce.”11 Further, the legislative history of the MCA indicates that the purpose of section 30 was “to create additional incentives to carriers to maintain and operate their trucks in a safe manner as well as to assure that carriers maintain an appropriate level of financial responsibility.”12

The legislative history of section 30 indicates that setting minimum levels of financial responsibility would address two concerns. First, the minimum levels would “assure that public safety is not jeopardized” in connection with the increased entry to the industry due to deregulation.13 Second, the minimum levels would ease concerns that the largely deregulated industry would put pressure on safe operators to cut costs to meet the prices of their competitors, “some of which may cut costs by operating in violation of minimum safety standards.”14

https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Financial-Responsibility-Requirements-Report-Enclosure-FINAL-April%202014.pdf

Clearly, Congress intended for the insurance industry to be the gatekeeper of the motor carrier industry to ensure the safety of the American public.

MAP-21 continued the process to ensure that appropriate increases would be put in place. A summary of the April 2014 FMCSA Report, from the Executive Summary on page 1, sheds light on the matter:

On July 6, 2012, President Obama signed into law the Moving Ahead for Progress in the 21st Century Act (MAP-21; P.L. 112-141). Section 32104 of MAP-21 directed the Secretary of the U.S. Department of Transportation (DOT) to issue a report to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives on the appropriateness of the current minimum financial responsibility requirements for motor carriers of property and passengers, and the current bond and insurance requirements for freight forwarders and brokers.

Section 32104 also directed the Secretary to issue a report on the appropriateness of these requirements every 4 years starting April 1, 2013. The Secretary delegated the responsibility for this report to the Federal Motor Carrier Safety Administration (FMCSA).

Interstate motor carriers and transportation intermediaries, as well as certain intrastate hazardous materials carriers, are required by law to maintain minimum levels of financial responsibility. 2 This report explains the history of these requirements, examines the current minimum insurance levels for the different sectors, provides background on the motor carrier industry, and summarizes the findings of a recent FMCSA-sponsored study on the adequacy of the Agency’s current required minimum levels of financial responsibility, as well as findings from other reports on minimums. The report does not examine the current bond and insurance requirements for freight forwarders and brokers since MAP-21 mandated these requirements to be $75,000 effective October 1, 2013, and the Agency will report on the appropriateness of these levels after it has had the opportunity to observe their impacts.

The legislative history of minimum insurance requirements for commercial motor vehicles (CMV) indicates that Congress recognized that crash costs would change over time and that DOT would periodically examine the levels and make adjustments as necessary. A variety of recent studies indicate that inflation has greatly increased medical claims costs and related expenses. In conclusion, FMCSA has determined that the current financial responsibility minimums are due for re-evaluation. The Agency has formed a rulemaking team to further evaluate the appropriate level of financial responsibility for the motor carrier industry and has placed this rulemaking among the Agency’s high priority rules. The FMCSA will continue to meet with the stakeholders, including impacted industries, safety advocacy groups, and private citizens, as it moves forward with developing a proposed rule.

https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/Financial-Responsibility-Requirements-Report-Enclosure-FINAL-April%202014.pdf

Although the Secretary delegated the responsibility for this report to the FMCSA, Senator Richard Burr (R-NC) stated to us in person on August 12, 2013 – three months after our tragic truck crash – that the Secretary of Transportation has the authority to act administratively to increase the minimum financial responsibility levels.

In fact, FMCSA, subsequent to publishing their initial report in April 2014, issued an ANPRM on November 28, 2014, to continue study of this issue. Following that, FMCSA took these actions:

  1. The Agency formed a rulemaking team to evaluate the appropriate level of financial responsibility for the motor carrier industry and placed this rulemaking amontgthe Agency’s high priority rules.

  2. This study was discussed at the FMCSA Motor Carrier Safety Advisory Committee (MCSAC).

  3. FMCSA asked for Public Comments.

  4. FMCSA reportedly did not receive the substantive information — through the Public Comment process – which they have stated is necessary for them to do the required cost benefit analysis (according to their interpretation of EO 12866) in order to move the rulemaking process forward (for signature by the Secretary and approval by the OMB/OIRA).

  5. FMCSA asked for voluntary compliance from the insurance industry. However, there has been no information provided from the insurance industry to verify the claim that the insurance premiums for trucking companies would skyrocket to $20,000/year when the minimum liability levels are raised (as reported to independent owner-operators by the OOIDA, who is in fact an insurer for many OOIDA members http://www.landlinemag.com/Story.aspx?StoryId=29050 ) and that “the only winners would be trial attorneys and large motor carriers.” This allegation has never been substantiated.

  6. The next step by FMCSA, according to an email which we received on June 11, 2015, from an administrator in the FMCSA, was to try another tactic to get the information from the insurance industry:

    FMCSA does not have information to estimate the increase in insurance premiums if the Agency increased the current $750,000 limit (for property carriers transporting general freight) to $4.2 million. As part of the rulemaking process, the Agency would need to gather this type of information to determine the costs of requiring carriers to increase their coverage. We just published a rulemaking on “Confidential Business Information” to help encourage insurance companies to share some of their proprietary information with the Agency for our use in the rulemaking process, without disclosing to the general public the confidential information. Hopefully, the new rules on confidential information will help us get the data we need.        

  1. The final step was taken by the FMCSA to formally withdraw the ANPRM on June 5, 2017.

It should be noted that, if the Secretary of Transportation merely raised the minimum level to adjust for inflation, the $750,000 set in 1980, using the latest U.S. Government CPI data (http://www.usinflationcalculator.com/), would be equivalent to $2,225,643.20 in 2017. Additionally, the Value of Statistical Life set by the Department of Transportation is currently listed as $9.6 million as of August 8, 2016.

https://www.transportation.gov/sites/dot.gov/files/docs/2016%20Revised%20Value%20of%20a%20Statistical%20Life%20Guidance.pdf

It must therefore be asked, Has the FMCSA done due diligence to obtain the required information to do the study mandated by Congress? In fact, could they have gone a step further, as we have been told by a former DOT administrator, and issued a subpoena to the insurance industry to obtain this information? Could FMCSA even have requested Congress to hold a formal hearing – as we have requested numerous times — to obtain information from the insurance industry?

Where do we go from here? What are the options at this point for resolving this issue? Given that it has been over 30 years since the current level was set, and that the FMCSA has had adequate time to act and report on this supposedly priority rulemaking, it now seems prudent to:

  1. Call upon Elaine Chao, as the Secretary of Transportation, to do what no other Secretary since 1980 has done and act upon her authority to set a new minimum level of financial responsibility for the motor carrier industry and immediately raise it from $750,000 to $2,225,000.

  2. Following that decisive action, FMCSA should then:

  • Ask Congress to hold a public hearing to obtain the necessary information from the insurance industry;  OR

  • Subpoena the insurance industry to provide the required information.

  • Then immediately proceed with NPRM rulemaking – setting it as a top priority to determine future actions which should be taken to raise the minimum levels according to other calculations besides adjustment for inflation, both now and in the future as mandated by Congress.

If we do nothing to address this problem, then we will continue to expose the traveling public to greater risk of truck crash tragedies. Who should we hold responsible for the resulting deaths? And who will bear the economic burden of this negligence?

Jerry and Marianne Karth

June 4, 2017

Sign a Petition Asking for Immediate Action: Protect Vulnerable Travelers: Demand Immediate Increase in Trucking Liability Insurance

Demand for Due Diligence Action by FMCSA.pdf

Further Information on this issue: FMCSA will withdraw rule to raise truck min. liability ins. Who is responsible & who will pay the price?

Wondering whether new Sec. of Transportation will have a genuine & effective safety focus

The current Secretary of Transportation, Anthony Foxx, was my first experience with the challenges of making SAFETY truly a priority. His words to us on September 12, 2013, “I promise you will see tangible progress on these issues in a short period of time,” was the springboard for our AnnaLeah & Mary Stand Up For Truck Safety Petition delivered to Washington in May 2014 — one year after our tragic truck crash.

  1. https://www.facebook.com/permalink.php?story_fbid=497001560382363&id=464993830249803 
  2. http://www.wral.com/on-anniversary-of-daughters-deaths-mom-pushes-for-tougher-truck-safety-rules/13615053/
  3. https://www.facebook.com/464993830249803/photos/a.465869083495611.1073741828.464993830249803/514036842012168/?type=1&theater
  4. https://www.facebook.com/464993830249803/photos/a.465869083495611.1073741828.464993830249803/510268305722355/?type=1&theater

I wonder whether the next Secretary of Transportation will be motivated and allowed to have a genuine and effective SAFETY focus.

september-2013-069september-2013-070

Will the next Secretary of Transportation be authorized to carry out Vision Zero Rulemaking?