Well, now I have found out about an interesting requirement for regulatory rulemaking related to safety standards.
“National Technology Transfer and Advancement Act The National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104– 113, Section 12(d) (15 U.S.C. 272), directs agencies to use voluntary consensus standards in regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standard bodies, such as SAE. NTTAA directs agencies to provide Congress explanations when they decide not to use available and applicable voluntary consensus standards.” TRANSPORTATION RESEARCH CIRCULAR E-C117 The Domain of Truck and Bus Safety Research
Now here’s a question: How would the National Technology Transfer and Advancement Act be interpreted and applied in the case of underride regulatory standards?
First, let’s look at an example related to seat belt assembly compliance testing:
The agency identified an ISO technical report (TR 1417-1974) and an SAE International standard (J384, Rev. JUN94) that have testing recommendations for vehicle seat belt anchorages. Both recommend the use of body blocks, similar to those currently specified in FMVSS No. 210, for applying the required test loads. The alternative strategy the agency is now considering in this SNPRM would continue the use of the FMVSS No. 210 body blocks. Accordingly, the alternative strategy employing the current body blocks is consistent with the ISO report and SAE standard. However, NHTSA has tentatively determined that the ISO report and SAE standard, among other matters, do not specify the positioning of the body blocks referenced in both with sufficient specificity to achieve the goals of this rulemaking. Thus, NHTSA has decided to base this SNPRM on the existing FMVSS No. 210 body blocks rather than explore using new ones, and to develop possible test procedures that make clear how the body blocks are to be positioned during FMVSS No. 210 compliance testing. Federal Motor Vehicle Safety Standards: Seat Belt Assembly Anchorages
Now, let’s look at what the current proposed underride rule for rear impact protection on trailers says:
This NPRM proposes to adopt requirements of CMVSS No. 223, as discussed later in this section. NHTSA’s consideration of CMVSS No. 223 accords with the principles of NTTAA, in that NHTSA is considering an established, proven standard, and has not had to expend significant agency resources on the same safety need addressed by CMVSS No. 223. Rear Impact Guards, Rear Impact Protection,
So, does this mean that NHTSA is choosing to adopt an existing underride standard (Canadian’s rear underride standard) rather than explore existing or future research, or standards from other countries, which might prove that stronger, more effective guards could be manufactured and thus save more lives?
Pourquoi? What would qualify as “available and applicable voluntary consensus standards”? Is this an attempt to avoid having to provide Congress, through OMB, with an explanation? If so, would they have to give an explanation for:
Why they decide to use standards not already being implemented elsewhere? OR
Why they decide not to use proven underride technology?
And what does ” inconsistent with applicable law or otherwise impractical” mean? Is this an insurmountable barrier? For example, does “impractical” refer to the cost/benefit analysis restrictions of Executive Order 12866 which we are asking to be addressed with a Vision Zero Executive Order?
I’m confused. Can this Technology & Transfer Act allow us to make use of advances in technology? Can we not move beyond what someone else has already used as a regulatory standard? Why would we settle for less than the best?
Here’s to hoping this question can get addressed and that the upcoming Underride Roundtable at IIHS on May 5, 2016, will serve as a “voluntary consensus standard body” to clearly and definitively delineate state-of-the-art technical voluntary consensus standards to provide the best possible underride protection in the whole wide world!
And call it the Dragon Underride Protector in honor of my son (who suggested that name and who, as a passenger, endured the same truck/car crash as his sisters and witnessed their deaths due to underride) and in memory of his sisters, AnnaLeah (forever 17) and Mary (13).
If you have not already signed the petition, it will remain open until a Vision Zero Rulemaking Policy is adopted. So sign here: Save Lives Not Dollars: Urge DOT to Adopt a Vision Zero Policy. Then share the petition with someone who has not yet heard about it.
Then, contact President Obama online and ask him to read the Vision Zero Petition Book, which was delivered to him at the White House yesterday.
(Note: When the Contact Form asks you for a Subject, click on Transportation.)
Please email President Obama today and ask him to read the Vision Zero Petition Book and act upon it. Help us to let him know how important the traffic safety problem is in this country and that he can do something about it.
On Friday, March 4, we left a copy of our Vision Zero Petition Book with policy officials at the Department of Transportation which they promised me they would deliver to President Obama today.
The Public Comment was asking for NHTSA to extend underride protection to the sides of trucks and mentioned that it was the original intent of the underride rulemaking in 1969. This is what the Federal Highway Administration said at that time,
It is anticipated that the proposed standard will be amended, after technical studies have been completed, to extend the requirement for underride protection to the sides of large vehicles.
Imagine! In 1969.
And NHTSA said this, in response to our petition request in 2014 to add side guards:
By initiating rulemaking to consider enhancing related safety standards, this notice grants the part of the petition for rulemaking submitted by Ms. Marianne Karth and the Truck Safety Coalition (Petitioners) requesting that the agency improve the safety of rear impact (underride) guards on trailers and single unit trucks. Based on the petition, available information, and the agency’s analysis in progress, NHTSA has decided that the Petitioners’ request related to rear impact guards merits further consideration. Therefore, the agency grants the Petitioners’ request to initiate rulemaking on rear impact guards. NHTSA is planning on issuing two separate notices—an advanced notice of proposed rulemaking pertaining to rear impact guards and other safety strategies for single unit trucks, and a notice of proposed rulemaking focusing on rear impact guards on trailers and semitrailers. NHTSA is still evaluating the Petitioners’ request to improve side guards and front override guards and will issue a separate decision on those aspects of the petition at a later date.
This was the original intent of NHTSA rulemakers in the 1969 NPRM, Docket No. 1-11; Notice 2.
Imagine. . . when I was 13 years-old in 1969, DOT was doing proposed rulemaking on underride and “anticipated that the proposed Standard will be amended, after technical studies have been completed, to extend the requirement for underride protection to the sides of large vehicles.”
And what has happened between now and then? Certainly not any mandated, and very little voluntary, side guard protection on trucks.
UPDATE, August 21, 2020: Perry Ponder who made this Public Comment and has invented the AngelWing side guard, recently submitted another Public Comment to NHTSA.
I am having a difficult time getting this post started. I shared about it briefly here and Russell Mokhiber graciously shared our story as well. Now I want to give a more in-depth report of our trip to Washington, DC, on March 3 and 4 to deliver over 20,000 Vision Zero Petitions. I want to be able to report that I am hopeful about the impact of our Vision Zero Petition. But I am mostly frustrated and angry.
There were some encouraging meetings with legislative offices. But there were no commitments, no promises of action to be taken. Traffic safety is not high on their list of priorities. And, despite the almost 33,000 traffic crash deaths in our country each year, Traffic Safety/Vision Zero is not even on the list of Issues on whitehouse.gov.
During our time in Washington, after sharing the story of our crash time after time, we got into a discussion with someone who has observed and testified about the underride crash problem countless times. We actually ended up, as a result, getting hold of some photos of the underride guard which failed to guard our car from riding under the trailer in front of us when another truck hit us and spun us around and hit us again backwards into that truck. We had not previously seen those photos.
And they were disturbing–adding fuel to the fire of my frustration at the utter lack of genuine responsibility on anyone’s part to protect us from Death by Underride. And that includes the three branches of our government: Legislative; Executive/Administrative; and Judicial.
In fact, while we were in Washington on March 3 and 4, we made the rounds of the Legislative branch–visiting with Senator Johnny Isakson (R-GA) as well as staff of several other legislators. I am not putting much stock in them taking immediate positive action to advance traffic safety. But we have knocked on those doors and appreciate the time they took to listen to us. We will continue to follow up with our contacts and ask them to stand up with us for safety.
Additionally, we have petitioned the Executive branch–both through President Obama and the White House, as well as the administrative arm of DOT/NHTSA. Though, of course, I think that the problem needs to be addressed inter-departmentally to acknowledge and address traffic fatalities and serious injuries as a public health and labor problem, as well as transportation, through a White House Vision Zero Task Force.
We delivered the 20,000+ Vision Zero Petition signatures both in the form of the Vision Zero Petition Book to each DOT policy official with whom we met and via a binder with all of the signatures and the letter to Secretary Foxx (the latter printed for us by the Care2 Petition Site).
Director Donovan, Office of Management & Budget (OMB)
Secretary Foxx, Department of Transportation
Administrator Rosekind, National Highway Traffic Safety Administration (NHTSA)
Administrator Darling, Federal Motor Carrier Safety Administration (FMCSA).
With President Obama’s copy of the Vision Zero Petition Book, we enclosed a letter which our granddaughter had decided that she wanted to write to the president when she saw the stack of books at our house and asked what we were going to do with them. Here is her letter (dictated to me):
(I thought it was interesting that Vanessa’s drawings of her aunts had no mouths. In fact, it is all-too-true that they cannot speak up on their own behalf. Also, she wanted to see photos of AnnaLeah and Mary to make sure that she got their hair and eye color correct.)
We talked with DOT policy officials about our petition in which we pleaded, along with over 20,000 other individuals, that they address the extensive traffic safety and public health problem of crash fatalities and serious injuries. At an average of 33,000 crash deaths each year, Death by Motor Vehicle is one of the leading causes of death. We requested that they adopt a Vision Zero Rulemaking Policy and that they seek such authority from the White House through action from President Obama, whom we are asking to:
Set a National Vision Zero Goal.
Establish a White House Vision Zero Task Force to guide us in achieving that goal as a nation.
Sign a Vision Zero Executive Order to ensure that DOT can adopt Vision Zero rulemaking policies, which would allow them to issue and enforce rules and safety standards that genuinely protect human life.
Blair Anderson, Byron Bloch, Andy Young, Bryna Helfer, Jerry Karth, Marianne Karth, John Lannen, Isaac Karth
Included in our Petition Letter to Secretary Foxx was our request that they apply such a rulemaking policy specifically in two ways–which will address two safety problems of particular concern to us, as well as set the stage for more effectively addressing countless other traffic safety issues. These are the three petition requests:
1. Change rulemaking policy to move away from a cost/benefit model and adopt a more humanistic, rational Vision Zero safety strategy model which will impact all DOT safety regulations;
2. Apply Vision Zero principles initiating rulemaking to require forward collision avoidance and mitigation braking on all new large trucks; and
3. Apply Vision Zero principles by requiring crash test-based performance standards for truck side and rear underride guards.
Due to the circumstances of our crash, we have a particular interest in promoting the improvement of underride protection on trucks so that–upon the collision of a smaller vehicle with a truck–the geometrical mismatch of the two does not lead to the smaller vehicle riding under the truck so that the truck itself intrudes into the passengers’ survivable space. In simple terms, our goal is to bring an end to what should be survivable crashes but which all-too-often lead to horrific injuries and tragic death.
It is our observation and conclusion, based upon investigation into the facts that, whether DOT is actually hampered by a previous Executive Order (12866) or merely assumed to be so, NHTSA generally issues rules that are less stringent than what existing technology has shown to be possible (read that: weak and ineffective).
It was for that reason that we have petitioned for a Vision Zero Executive Order and specifically discussed with DOT policy officials, on March 4, 2016, the preferable means of analyzing the pros and cons of a proposed rule through Cost Effectiveness Analysis (CEA) vs the more-commonly used Cost Benefit Analysis (CBA)–which assigns an economic value to human life.
At least it appeared to me that DOT intends to keep their promise to deliver the Petition Books for us. At the end of our meeting, they asked me to sign each book with a personal message to the recipient. I gladly did so, asking them to consider our petition for the sake of AnnaLeah and Mary.
Speaking of AnnaLeah and Mary. . . this gets me back to my earlier reference to our particular crash, which was, of course, due to the failure (for whatever reason) of a truck driver to maintain lane and hitting our car so that it went backwards under another truck. Because the underride guard failed to do its intended job, Mary and AnnaLeah experienced an untimely and unnatural end to their lives.
My question is: Should someone be held accountable for the failure of that federally-required piece of equipment which resulted in two deaths? Is the manufacturer liable to prevent someone from being killed when they collide with a truck? And, mind you, expecting them to do so would not be some pie-in-the-sky kind of expectation. It has been proven that protection is possible from much worse circumstances than are currently required.
Yet, the Judicial third branch of the government has provided little hope for ensuring that the truck/trailer manufacturer will be held responsible for the failure of their product, upon collision with it, to prevent horrible, unnecessary death. I have been reminded of that unfortunate reality again this week as the topic came up again related to our crash.
In fact, upon a simple search of the internet, I found this example of the difficulty of pinning liability upon the manufacturer:
Defendant . . . avers that despite the truth of these facts, it owed no duty to persons such as plaintiff’s decedent who crash into the rear of its trailers. . . . maintains that there is no duty to design, manufacture and sell a trailer which is “accident-proof” that is, able to protect “invaders” or “trespassers” who run into the trailer and later seek legal redress U.S. District Court for the Middle District of Alabama – 816 F. Supp. 1525 (M.D. Ala. 1993) March 26, 1993.
What?! So there you have it. At least some manufacturers are willing to fight for their right to avoid ethical responsibility for designing their product to be safe to travel around.
the manufacturer is obliged to secure the occupants of only its vehicle from that foreseeable harm: the manufacturer does not owe a duty to protect those who collide with its vehicle. See Mieher, 301 N.E.2d at 308-10; but see id. at 310-11 (Goldenhersh, J. dissenting) (arguing that the duty of care should extend to prevent unreasonable risk to occupants, other drivers, and pedestrians).
In my mind, the question remains: Does the manufacturer owe travelers on the road the duty to exercise reasonable care in designing its motor vehicle?
One author takes a look at this question:
Does a vehicle manufacturer owe a duty to design a vehicle with which it is safe to collide? The Illinois Supreme Court said no in the case of an underride accident, where one vehicle rear-ended a truck and proceeded unimpeded under its bed. The decision unleashed an ongoing debate over the concept of “enhanced injury,” where a manufacturer can be liable for defects in its vehicle that cause injuries over and above those that would have occurred from the accident but for a defective design.Illinois vehicle manufacturers have no duty to protect non-occupants who collide with their vehicles
As it stands, it appears to me that, in general, the manufacturing community is prone to protect themselves from legal impunity rather than protect travelers on the road. I would welcome the opportunity to hear differently.
So, how then do we bring about a more responsible solution to this solvable underride problem? In addition to considering how we might impact each of the three branches of our government, we have also sought for, and encouraged, voluntary action on the part of truck/trailer manufacturers–which has met with some limited success. For the most part, the manufacturers tend to take a wait-and-see attitude–particularly when NHTSA is in the midst of rulemaking–rather than take the initiative to simply go ahead and design the best possible protection.
We have worked with the Insurance Institute for Highway Safety (IIHS) and the Truck Safety Coalition (TSC) to bring all interested parties together in an Underride Roundtable this Spring when, on May 5, 2016, we will attempt to cooperatively address this problem–for the sake of all travelers–in memory of those who have already lost their lives needlessly and for those of us who are vulnerable to being the next potential victim of a “roving guillotine.”
In fact, when we were in Washington this week, we met at IIHS with some of the members of the planning group for the Underride Roundtable (Russ Rader, IIHS; John Lannen, TSC, Andy Young, truck litigation attorney/truck driver/truck company owner; Jerry, Isaac, and myself)–taking the opportunity to get some work done in person. One of the ideas, which we were throwing around when brainstorming about how to shape our Panel Discussion, was the need for creating Best Practices for Underride Protection and re-visiting the issue on an ongoing basis.
Byron Bloch had joined us for the meeting. One suggestion he made, during our Roundtable planning meeting, was that IIHS, who is well-known for that crash rating safety program for the automotive industry, develop a 5-Star Crash Rating Program for truck/trailer manufacturers as well.
That idea has grabbed our attention. After all, the IIHS crash testing of various major trailer manufacturers prior to our crash and continuing in the years following, was a source of revelation to us about the extent of the underride problem and the reality that it was/is a solvable problem.
Furthermore, as I continue to observe the crash testing of passenger vehicles, no matter how safe those vehicles are manufactured, their crashworthiness features are compromised and prevented from going into action when the vehicle collides with a larger vehicle and rides under it. In other words, auto safety improvements are compromised due to a truck safety flaw.
How about a cycle be set up–Jerry suggested this morning–for crash testing of trucks/trailers to assess the success of advances in underride protection? This would provide a means of reliable, comparative, and ongoing feedback to the manufacturers, as well as the buyers of trailers and single unit trucks, government officials, researcher engineers, safety advocates, attorneys, crash reconstructionists, injury prevention specialists, and travelers on the road.
I ask the question again: How will we address this problem of Death by Underride?
Due to the complexity of the issue, no one is currently held accountable, responsible, or liable for preventing these deaths which occur upon collision of a passenger vehicle with a larger commercial motor vehicle. Remember, we are not talking here about who was to blame for the collision occurring in the first place.
Can we possibly find our way to work together in our great nation through the Executive, Legislative, and Judicial branches of our government–in a cooperative, concerted effort with private industry, research engineers, safety advocates, and the insurance industry– to bring about the best possible protection for We the People?
Can we agree to share the costs of what the solution will require so that the burden of the problem is shifted from the victims, who experience life needlessly cut short or devastatingly changed by horrific injuries, and their families who are faced with unexpected, traumatic, too-often-bitter, and unending grief?
Right this minute, I must admit, I am discouraged right along with the many others who have tried to bring about change for decades. Nonetheless, I choose to remain hopeful that this is not insurmountable and that we are well on our way to victory as we continue to shed light on traffic safety problems and call for truth, justice, and mercy to prevail.
Jerry, Marianne, and Isaac in front of DOTAndy Young, Marianne Karth, Jerry Karth, John Lannen
(Note: All viewpoints expressed above are mine alone and are not meant to imply agreement by any individuals who may have been mentioned. Whether the analysis of the issues at hand are accurate–or unfairly tainted by the emotions of this grieving mother–are left to the reader to ferret out. Marianne Karth, March 6, 2016)
We arrived back home tonight after an intense two days of meetings in Washington, DC. We shared the highlights with family members who had not gone with us. But I am still sorting out how it went and will write a more in-depth report tomorrow.
Emotions were continuously at the surface–
from the compassion of policy officials as I shared with them how this morning I had reached in the pocket of my coat, which I had forgotten was once Mary’s, and unexpectedly discovered a folded piece of paper which was Mary’s sermon notes taken by her on a Sunday in March 2013–not too many weeks before the crash
to the numerous times when I would speak out with strong conviction about an area of traffic safety which needed to be understood and addressed.
Meeting with Senator Johnny Isakson (R-GA)
All in all, I am exhausted but thankful for those who joined with us and for the opportunity to have delivered 20,000+ signatures to government officials with the hope that they will heed our petition and act with compassion and wisdom.
We will be arriving at the Department of Transportation at 10:30 a.m. on Friday, March 4, at the West main entrance on 1200 New Jersey Avenue, S.E. , with media availability until shortly before our meeting with DOT policy officials at 11:00 a.m. to discuss our 20,000 petition signatures and our request for a better truck underride guard rule–which could have saved AnnaLeah and Mary if it had been implemented decades ago when research proved that it was possible to do so.