Finally, we’re getting someplace in our efforts to make trucking safer. Legislation is being considered which looks promising to address the issues from our AnnaLeah & Mary Stand Up For Truck Safety Petition in 2014.
You can become part of the solution by making a quick phone call or send an email to U.S. Representatives on the House Transportation & Infrastructure Committee (T&I). They will be considering the INVEST in America Act on Wednesday, June 17, at 10:00 a.m. in a live hearing.
Use this website link to search for your U.S. Representative, or ones from your state who are on the T&I Committee. Send these two simple messages in your own words — asking them to make trucking safer by:
Supporting the Cohen Amendment 089 to strengthen the Underride legislation in the INVEST in America Act by directing NHTSA to do a pilot program in order to prove that underride protection is effective and technically feasible.
Supporting the Garcia Amendment 062 which will raise the Minimum Insurance Liability for truck companies from $750,000 – an amount set in 1980 – to $2 million in a simple adjustment for inflation. This needed change has been neglected for decades and will help not only truck crash victims but also truck drivers, who are often victims of truck crashes. It creates a financial incentive to enforce safety.
Watch this short video which vividly tells the story of Mike, a truck crash victim who was impacted by the woefully-low insurance requirement:
Thank you for taking action. Share this message with your friends so we can make a significant impact at a crucial time.
The current underride rulemaking was issued as a Notice of Proposed Rulemaking (NPRM) on December 16, 2015. Over four years ago. It’s time to take care of business. People continue to die horrific, violent, unimaginable underride deaths.
Is it time to move forward with negotiated rulemaking to hammer out practical, effective solutions for the deadly underride problem? Is it doable? Would this process enable us to overcome the stalemate between industry and safety advocates — to get the current underride rulemaking out of limbo?
NOTES ON NEGOTIATED RULEMAKING:
Declares that any agency may consult with the Administrative Conference of the United States and other individuals and organizations for information and assistance in forming a negotiated rulemaking committee and conducting negotiations.
Authorizes the Chairman of the Conference to pay, upon request of an agency head, all or part of the expenses of convening and conducting a negotiated rulemaking proceeding.
{NOTE: Apparently, this ability was later taken away from the ACUS and they are no longer able to assist in this way with negotiated rulemaking. Oh, well. Back to SQUARE ONE!}
The negotiated rulemaking process is unique in several ways from both listening sessions and advisory committees. . . a negotiated rulemaking committee’s goal is to make binding, enduring decisions that will resolve the underlying issues and, if present, disputes.
Compared to participation in hearings/meetings and advisory committees, the role of non-Agency participants in interacting with the Agency through the negotiated rulemaking process is often far more robust, expansive, and issue-focused.
An SNPRM may be issued if a proposed rule has been substantially changed from the original notice of proposed rulemaking. The supplemental notice advises the public of the revised proposal and provides an opportunity for additional comment. To give the public a reasonable opportunity to become reacquainted with a rulemaking, a supplemental notice may also be issued if considerable time has elapsed since publication of a notice of proposed rulemaking. An SNPRM contains the same type of information generally included in an NPRM. § 1.05-40 Supplemental notice of proposed rulemaking (SNPRM).
What are we waiting for?
The AnnaLeah & Mary Stand Up For Truck Safety Petition was delivered to DOT on May 5, 2014 — one year after our crash. It called for comprehensive underride rulemaking. We’ve uncovered a lot more information since then; we’re well-equipped to participate in this process. Let’s get on with it.
When supporters of the STOP Underrides! Act of 2019 first hear the news about DOT’s new “rule on rules,” they might moan and sigh and scramble to figure out what next. On December 5, Transportation Secretary solidified the Trump administration’s approach to rulemaking:
Transportation Secretary Elaine Chao announced she has signed a “rule on rules” that will ensure the department’s regulations aren’t too complicated, out of date or contradictory.
When it comes to investigating suspected wrongdoing and enforcing its regulations, the new rules also require the department “where feasible, foster greater private-sector cooperation in enforcement.”
On the one hand, there are hints of good things there in calling for rules that are not out of date, cooperation from the private sector, and greater transparency. But those who have been around the block in safety advocacy are right to be skeptical and devoid of hope for future traffic safety rulemaking.
Yet I remain hopeful knowing that the STOP Underrides Act fits the bill by calling for a Committee On Underride Protection (COUP), whose role is to gather a diverse group of stakeholders to collaboratively keep DOT truly transparent and progressing in underride rulemaking. Will the COUP be included in the upcoming FAST Act language? I’m doing everything that I can to make it a reality.
Now, understandably, it could cause concern that, “The new Transportation Department action formalized a Trump administration requirement that for each regulatory step a department takes, it has to undertake two deregulatory moves.” However, I’m not worried because I know that it would be procedurally acceptable for the National Highway Traffic Safety Administration (NHTSA) to remove the existing 1996 rear underride rules, (two of them — FMVSS 223 & 224), which would satisfy that requirement.
Then, NHTSA could issue a Supplemental Notice of Proposed Rulemaking (SNPRM) as a revision of the December 2015 NPRM underride rulemaking, which was intended to update the 1996 rear underride guard rule. In fact, SNPRMs are a valid means of improving a NPRM — based on Public Comments and new information received subsequent to the initially issued proposed rule.
No one can argue that there has not been plenty of new information on underride which has come to the surface in the last seven years. In fact, the STOP Underrides! Act nicely packages straightforward rules, based on performance standards, to address every form of deadly underride and can easily lead to an Underride SNPRM — all with the help of the Committee On Underride Protection to mold it into the best possible underride protection.
So, in this season of expectant hope, let us eagerly continue a national conversation on the elimination of preventable underride tragedies. Let our goal be to change the face of the trucking industry by making truck crashes more survivable, thus promising a better chance that more people will be home for the holidays.
Members of Congress, Secretary Chao, trucking industry, eager engineers, and families of underride victims, let’s do this together.
(p.s. Let’s also appoint a National Traffic Safety Ombudsman so that motorists and vulnerable road users — victims of every form of traffic violence — can count on a strong voice to authoritatively advocate on their behalf.)
People have died under trucks since passenger vehicles and trucks have shared the road. What changes have we seen in underride protection? Here is a Timeline put together by the Insurance Institute of Highway Safety for the first Underride Roundtable on May 5, 2016.
What’s next? What will the future hold for underride rulemaking? More of the same or significant progress in preventing underride tragedies?
Tell me again why we are letting the flawed data on underride deaths determine the Cost Benefit Analysis — and thus the decision on underride regulations. We already knew the FARS data was underreported; we just discovered additional disturbing evidence of that fact.
At the end of August, I obtained the FARS field dump data for the Joshua Brown Tesla deadly crash in Florida when his car went completely under the side of a tractor trailer and out the other side on May 7, 2016. In the field which has to be filled out related to underride, it is listed as “No Underride or Override Noted.”
What?! Imagine that! A clear-cut, well-known side underride crash — investigated by the NTSB — and NHTSA got it wrong. In 2016.
And that’s not the only one I received. I also requested the FARS data on Roya Sadigh’s crash (daughter of Lois Durso) on November 24, 2004 — one that we know is a side underride with clear evidence of Passenger Compartment Intrusion (PCI). Again, “No Underride/Override.” See p.3:
We had already received FARS data on our own crash on May 4, 2013. It says “Passenger Compartment Intrusion Unknown.” And the Georgia FARS report for 2013 at the Rear of trailers lists one underride — despite two daughters having died under the truck.
In response to a request for explanation of a recent withdrawal of the underride rulemaking for Single Unit Trucks, Senator Gillibrand received a letter from NHTSA in August explaining that they had used TIFA (trucks in fatal accidents) data rather than FARS data. However, upon closer examination one will discover that the TIFA data is based upon the FARS data. How reliable is that?
Scene of crash testing of Aaron Kiefer’s SafetySkirt. How silly is it to ignore solutions to prevent side underride tragedies?!
UPDATE, February 11, 2023: The Joshua Brown crash has been updated in the FARS data to indicate that it was an Underride with Passenger Compartment Intrusion.
Jury Verdict $42 million in Riley Hein Side Underride Case: Found the Trailer Manufacturer Negligent — The jury found that Utility Trailer was negligent and that its negligence caused Riley Hein’s death. They determined the total damages to Riley’s estate and his parents was $42 million. However, the jury found that Utility Trailer was 45% at fault, while the truck driver was 55% at fault, so the total verdict against UTM is $18.9 million.
Joint Defense Agreement of the Truck Trailer Manufacturers Association — collaborating to defend themselves from lawsuits when people die under trucks — perfectly legal.
Great Dane Trailers 2016 Side Underride Case. Incriminating signs of industry lobbying efforts to prevent regulations which would have saved lives.
Meanwhile, what could the manufacturers have been doing instead of defending themselves for the last 50 years? (1969 DOT intention of adding a side guard regulation, 1970 DOT expectation that side guards would be developed, & 2019 Vanguard Trailers side guard patent application) If they had concentrated on R&D for the best possible underride protection instead of opposing underride regulations, imagine how many people could have been saved!
NHTSA not doing its job and continuing to undercount underride deaths: NHTSA says that the TIFA data is what they used in their regulatory analysis. Yet, FARS data is undercounted and TIFA data is based on FARS data! How does that make any sense?!
Here are 3 examples of errors in specific known underride crashes: #1– Roya’s FARS report says that there was NO underride; #2 — AnnaLeah & Mary’s FARS report shows that only 1 person died from REAR underride in Georgia in 2013 but 2 daughters died under the truck; #3 — In this well-known May 2016 side underride of a Tesla car under a trailer, the FARS report says “NO UNDERRIDE”. Joshua Brown/Tesla side underrideFARS Report
September 3, 1969: Congress was discussing the need to pass a law for improved rear, front, and side underride protection on all trucks to permanently remove this deadly problem from American roadways.
Congress, the ball is in your court. What more do you need to know to convince you to take action? Is it time for a Congressional Underride Hearing?
Last night, I was reading “Truck by Trailer”; The History of the Truck Trailer Manufacturing Industry, published by the Truck Trailer Manufacturers Association(TTMA) in 2017. It had come in the mail this week, and I thought that I would see what I could discover. What I discovered was that there was a photo of a May 29, 1969, Western Union Telegram from the Director of the National Highway Safety Bureau (equivalent of today’s NHTSA at DOT) to the TTMA. The message was:
THE TIME FOR COMMENT ON DOCKET 1-11–REAR UNDERRIDE PROTECTION–HAS BEEN EXTENDED UNTIL AUGUST 1, 1969.
That was referencing the rulemaking which was posted in the Federal Register on March 19, 1969, and in which DOT had stated their intention to add underride protection to the sides of large trucks. Interesting, I thought. So I started searching online to see if I could find a copy of that telegram to post online. After all, I was reading it 50 years later on August 1, 2019.
What I found instead was a Congressional Record from September 3, 1969, which included discussion of the National Traffic & Motor Safety Act of 1966 to fund, extend, & expand upon it. After some in-depth discussions about safety head gear and tire safety, Congressman Vanik from Ohio was given the floor. He made a lengthy statement, with noteworthy comments about underride protection, including the inadequacy of the proposed regulation for rear underride and the absence of regulations for smaller straight trucks, as well as protection on the sides and front of trucks.
Wait! What? Imagine! Fifty years ago, not only was DOT proposing rulemaking, but the U.S. Congress had become informed on this issue and wanted to see immediate action taken to make comprehensive and effective underride protection on all trucks THE LAW!
Are you listening, Congress? NOW is the time to act! What are we waiting for? Too many people — maybe well over 50,000 — have already paid the price since that public Congressional discussion which took place on September 3, 1969.
Mr. VANIK. . . I would like to take this time to ask the chairman of the committee whether any consideration was given in this proposed legislation to direct the Administrator to provide for regulations which would bring about uniformity of bumper levels. With the intermix of automobiles and trucks on our Interstate Highway System, I ride in terror, as does everyone else on the public highways, when approach is made to trucks which have no bumper levels to meet those of an automobile. The fear of telescoping under a truck is something that haunts every driver on our highways.
There are thousands of accidents and hundreds of deaths that occur every year as a result of the telescoping problem. Some people have been decapitated in this way. And, it seems to me that some definite action should be taken to provide for uniformity of bumper levels between all vehicles. . . I would like to ask, Mr. Chairman, whether or not your committee considered this matter in connection with this legislation?
Mr. STAGGERS. I might say that the Secretary and the agency or the bureau has this authority now. I am informed that they have probably been looking into it. We do not know whether they plan to come up with any recommendations. But this is their duty and I might say that we can call to their attention now the fact that they should come up with some recommendation in the manufacture of trucks and cars so that there might be, as nearly as possible, developed some safety device as the gentleman has suggested that will prevent these accidents in order to keep these vehicles from overlapping upon impact.
I think the gentleman has raised a very good point. When this bill was brought up in 1966 this authority was given to the Secretary and to the National Safety Bureau.
Mr. VANIK. . . I understand that the Department of Transportation has published, as of March 19, 1969, a proposed rule which would become effective as of January 1, 1971, to provide rear underride protection for trailers and trucks with gross vehicle weight of over 10,000 pounds. . . {this rule was actually not finalized and effective until 1998}
But the Department’s rule is inadequate. The rule does not “apply to truck tractors, or any vehicles with gross vehicle weight rating of 10,000 pounds or less.” What these smaller trucks lack in danger in weight they make up for in speed. The standard should be applicable to all vehicles and trucksso that the risk of damage and fatalities resulting from nonmatching bumper guards is permanently and forever removed from American highways.
All trucks should be covered under the ruling and the ruling should have the force of law behind it. If such a regulation is not adopted during this year, I hope that your committee will issue a mandate for this regulation next year.
Following is a letter which I received on this subject from Mr. Robert Brenner of the National Highway Safety Bureau on August 4, 1969:
U.S. DEPARTMENT OF TRANSPORTATION, Washington, D.C., August 4, 1969. Hon. CHARLES A. VANIK, House of Representatives, Washington, D .C.
DEAR MR. VANIK: This is in further reply to your letter of July 14, 1969, requesting that the Secretary of Transportation issue regulations to improve bumper surface relationships between heavy trucks and passenger cars.
We concur with your views on the benefits that can be realized in reducing highway injuries and collision damage by requiring improved performance capabilities from motor vehicle bumpers. The National Highway Safety Bureau is, in fact, in the midst of developing several regulations that should alleviate, to some extent, the problems created by mismatched vehicle bumpers. . .
For your added information, the unsafe conditions resulting from the use of high front bumpers on heavy trucks are to be evaluated for eventual development of a regulation. . .Sincerely, ROBERT BRENNER, Acting Director.
He then lists specifics of the proposed rear underride rule, including this statement which was also included in the March 19, 1969, Federal Register:
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.
The newly-released NTSB preliminary report describes June 3, 2019, Mississippi box truck/van crash with 8 fatalities: right front of the truck hit the right front of the van head-on. The truck OVERRODE the front of the van & penetrated the passenger compartment. Deadly PCI (Passenger Compartment Intrusion) occurred.
The driver of the van sat in a part of the van which did not go under the truck — no PCI (just like me). He walked away with minor injuries. The eight other van occupants all suffered fatal injuries.
On October 21, 2010, the NTSB issue a Truck Underride Safety Recommendation based upon the investigation of a 2009 crash in which a truck overrode 3 cars and 10 people died as a result. The Recommendation reads like this:
Since 2003, European Union countries have required front underride protection systems on all newly manufactured heavy-goods vehicles, which indicates that such a standard is feasible. The NTSB concludes that collisions between passenger vehicles and the front of single-unit trucks or tractor-trailers are common types of crashes that result in fatalities, and front underride contributes to crash severity. The NTSB therefore reiterates its prior recommendations that NHTSA. . . require all newly manufactured trucks with gross vehicle weight ratings over 10,000 pounds to be equipped with front underride protection systems. . .
That was 9 years ago. Tell me, how many people could still be alive today had NHTSA acted upon that safety recommendation? Congress, I’ll say it again: the ball is in your court. Will you act decisively to STOP all forms of truck underride? Front, side, rear, tractor-trailer, single-unit truck, passenger vehicle, pedestrian, cyclist, motorcyclist.
June 26, 2009 front override crash near Miami, Oklahoma. Investigated by the NTSB
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.
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.
