If there are people dying from an automotive defect, would we want those cars to be fixed or left as is? If there are people dying from a dangerous truck design, would we want those trucks to be fixed or left as is — knowing that if we leave the millions of trucks on the roads as is, we are sentencing countless people to death by underride?

Is there any precedent for issuing a recall on unsafe trucks, in other words, doing a retrofit of safety equipment on an existing truck? I’m glad you asked. Yes, there is.

The first one I’ll mention is conspicuity or reflective tape. NHTSA issued a mandate for retro reflective tape to be installed on trucks and trailers to increase their visibility to nearby motorists. FMCSA issued a mandate for retrofitting of existing trucks and trailers with this safety countermeasure.

These requirements were set up by the FMCSA to help improve visibility in low light conditions and help reduce potentially fatal motor vehicle crashes into the sides or back of stopped or parked trucks and tractor trailers at night or in poor visibility.

On December 10, 1992, the National Highway Traffic Safety Administration or NHTSA published a final rule requiring that trailers manufactured on or after December 1, 1993, which have an overall width of 80 inches or more and a gross vehicle weight rating (GVWR) of more than 10,000 pounds, (with the exception of pole trailers and trailers designed exclusively for living or office use) be equipped on the sides and rear with a means for making them more visible on the road. The NHTSA ruling allows trailer manufacturers to install either red and white retro reflective tape or sheeting or reflex reflectors. This tape is commonly referred to as DOT C2 reflective tape and is thus marked for easy identification. https://ifloortape.com/requirements-for-conspicuity-dot-c2-reflective-tape-for-trucks-tractor-trailers-to-meet-federal-dot-fmcsa-nhtsa-regulations/

RETROFIT requirement for retro reflective tape on tractor trailers: Under federal requirements, trailers and semi-trailers manufactured prior to December 1, 1993 must be retrofitted with retroreflective tape or an array of reflex reflectors. The final date for compliance is June 1, 2001. . . Trailers built after the 1993 date are delivered from the factory with reflective tape and do not need to be retrofitted. Bulk Transporter, March 22, 2001, Deadline Approaches for Reflective Tape Retrofit

Another example of a retrofit involving tractor trailers, or in this case a recall, is the Strick Trailers recall of faulty rear impact guards in 2016:

Strick Trailers is recalling certain single-axle 28-foot van trailers for a rear-impact guard issue, according to a National Highway Traffic Safety Administration document. More specifically, 2005-2009 van trailers manufactured July 25, 2004, to Feb. 3, 2009, and equipped with rear-impact guards using gussets 55997 and 55998 are affected. Gussets on affected trailers can increase the chances of injury during a crash, thereby violating Federal Motor Vehicle Safety Standard No. 223, “Rear Impact Guards.” Owners will be notified by Strick to have reinforcements installed to the rear-impact guards at no cost. For more information, contact Strick’s customer service at 260-692-6121. The recall was set to begin on June 17.

Side by side with the notice of the Strick recall in the Landline Magazine in May 2016 was another notice announcing that the FMCSA had issued a safety advisory for one manufacturer’s tankers due to “inadequate accident damage protection:”

Affected TYTAL tankers are unauthorized, according to the FMCSA, until repairs and testing have been completed. Effective June 1, enforcement and fines will be given to owners and drivers operating any of the above tankers that have not made necessary repairs. TYTAL has notified known customers, and repairs have begun free of charge.

It seems to me that these examples demonstrate the existence of a precedent for recalls and retrofitting rules to correct dangerous designs in Commercial Motor Vehicles which could, if uncorrected, result in death and/or injury in the event of a crash.

Clearly, a truck that does not have effective and comprehensive underride protection is a safety concern. After all, the warning label which is found on the horizontal bar of a rear underride guard specifically says so:

Failure to comply with Federal Motor Vehicle Safety Act Standards FMVSS 223/224 (US) or FMVSS 223 (Canada) could result in injury to occupants of another vehicle in the event of a rear end collision with the trailer which, if not avoided, could result in death or serious injury.

Who will pay for the cost of the retrofitting? The ATA made the assertion, in their Letter of Opposition, that if Congress mandated the STOP Underrides Act — which includes a retrofitting requirement — then the trucking industry would be put out of business and the U.S. economy would be adversely affected:

Equipping the estimated 12 million trailers with a side underride guard, identified in Mr. Young’s testimony as costing approximately $2,900 including shipping, would equate to approximately $34.8 billion spent on underride guards. That staggering figure would result in what is likely the largest unfunded mandate on a private sector industry in U.S. history. Furthermore, when combined with the expected cost of labor in installing these guards, would exceed the industry’s annual net revenue, essentially putting trucking out of business, and grinding our economy to a screeching halt.

ATA Stop Underrides Act Follow Up Opposition Letter 6.19.19

RESPONSE to ATA Stop Underrides Opposition Letter

On what basis (what facts and formula) do they make such an exaggerated claim? The fact is that mass production will bring the costs down from the current price of retrofit kits (now at very low voluntary production). Furthermore, the industry should be well aware that adjustments can be made to spread the cost over multiple parties and multiple years.

Take as an example the increased manufacturing costs of trailers due to the tarriff on aluminum and steel and the ability of the manufacturers to share those costs with their customers.

Besides which, there are numerous other reasons to expect that this mandate provides many benefits to the trucking industry and the U.S. economy, including protecting the livelihood of truck drivers. Side guards will add additional fuel savings to that provided by side skirts. Production and installation of this technology will create jobs. Liability risk will go down. IRS Section 179 allows for tax deduction for equipment.

In the end, if we do not retrofit, there will continue to be many underride deaths for years to come. We then have to face the question, What is the acceptable number of underride deaths? And, who should decide that question? Congress, the ball is in your court.