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?
- What is the role of the President in developing a final rule?
