While we were getting set up for a side guard crash test this morning, I was taking photos of the tractor-trailer that was part of the test. I noticed an Annual Motor Vehicle Inspection form on the trailer. I looked it over trying very hard to find a line item by which the inspector and truck owner/driver would be reminded to check the condition of the rear underride guard which is required by law to be installed and maintained.
I could not find anything listed about underride guards.
Actually, I had picked one of these forms up in a truck stop previously and couldn’t find anything related to inspection of underride guards in the past. Just thought I would check again.
This Saturday morning found us helping out at Aaron Kiefer’s third crash test of his side guard prototype. We managed to complete two crash tests–both successful with no Passenger Compartment Intrusion (PCI). People in the car would probably have survived.
The first crash resulted in the car bouncing back with no part of the vehicle going under the truck. We concluded that the car being in neutral allowed it to be sent backward after the collision. If the car had been in gear, then it probably would not have done that. Because the hood was bent, we took off the broken front bumper to get the hood up in order to charge the battery on the car to prepare it for the second test.
The second crash still had no PCI but the side guard tore at two points–quite likely from sharp parts of the car where the bumper had been taken off. Because the guard tore, it allowed the car to go under the truck up to the point of the A-pillar–although still leaving the passenger compartment totally intact.
Another successful crash test day with promising results for future underride protection which can be manufactured for trailers and single unit trucks. Aaron envisions kits for retrofitting existing trucks, at around 200 pounds for maybe $1,000/truck.
The biggest failing of the day was my crash test video on the first crash; I held my camera at the wrong angle so you’ll have to tip your head to view it properly (audio also seemed to be muted at some points). Thankfully, my bloopers had no impact on the success of the underride prevention technology!
After participating in the Underride Roundtable, I would like to offer these additional comments (also attached as pdf with clickable links):
1. When the Karth family petitioned Secretary Foxx on May 5, 2014, we requested an upgrade in rear underride guards. At the time, we requested that the U.S. guards meet or exceed the Canadian standard. Since that time, having done extensive online research, we have come in contact with researchers who have shown that much more is possible given existing or proposed underride research.
2. One of the questions raised at the Underride Roundtable was whether underride protection could be produced to prevent underride at higher speeds. In the Preliminary Regulatory Evaluation of the NPRM, NHTSA requested information about underride guard crash tests at higher speeds (than the 35 mph currently being proposed). In fact, underride research has been conducted for decades which has demonstrated that it is possible to prevent underride crashes at higher speeds. It is research which has been available and known to regulators and the industry. For example, the Monash University Accident Research Centre (MUARC) in Australia tested energy-absorbing guards to 75 km/h or 47 mph in the early 1990s. http://www.monash.edu/__data/assets/pdf_file/0006/216924/muarc026.pdf
3. The image of a MUARC energy-absorbing underride guard can be seen in the attachment.
4. The U.S. final underride rule should, at minimum, copy the new Australian/New Zealand proposed rule published in April 2016 as the next underride guard rule rather than the present Canadian rule which is 11 years old. The Australian rule mentions test speeds under the heading Test Requirements on p. 60, Clause G7.3: “Current vehicle crashworthiness technology indicates that occupants will not suffer serous injury in an equivalent frontal impact speed of up to around 64 km/h into a deformable barrier if the car is a modern five star Australian New Car Assessment (ANCAP) vehicle. . . The development of effective energy absorbing TUBs [Truck Underrun Barrier] would both reduce the serious injury to vehicle occupants and increase the effect frontal impact speed DeltaV above the 70 km/h test speed compared with a rigid TUB.”
5. It is technically feasible to develop an improved underride guard in less than a year, as the VA Tech Students demonstrated.
6. The consumers of the trailers have requested and received, from 4 of the trailer manufacturers (Wabash, Manac, Vanguard, Stoughton) improved underride guards.
7. Four of the major trailer manufacturers were more than willing to step up and provide a better underride guard (successfully tested at 35 mph for a 30% offset crash).
8. It is cost-effective to design and build a better underride guard.
9. The Cost/Benefit Analysis (CBA ) used in this rulemaking is faulty as clearly demonstrated by some of the manufacturers’ willingness to step up and provide a better underride guardeven without regulation. (Truck Safety Marketplace)
10. It is possible to bring all of the parties involved into the process, to have meaningful conversation, and to make progress.
When I read Lou Lombardo’s Care for Crash Victims email this morning, it reminded me of what I keep thinking about the proposed underride rule. . . the regulatory analysis needs to include the cost of the lives lost (and injuries sustained) in the past — all the years of too-weak or non-existent guards even when they knew that better could be made — and all the lives which could be saved into the future.
What conclusions would the analysts then draw? Would they deem spilled blood too great a price to pay?
Dear Care For Crash Victims Community Members:
As we think about Benefits and Costs we need to think about Who gets the Benefits and Who gets the Costs. People’s lives vs. Corporate monies.
Think about the power of Presidents and their responsibilities as OMB is a key arm of government in the White House.
Imagine an Executive Order directing the Justice Department to require all settlement agreements to include payments to the government commensurate with the costs in lives lost in the past and projected into the future – and the benefits of sentencing executives to the elimination of vehicle violence forevermore – Vision Zero.
Lou
Thanks, Lou, for your always-thoughtful questions and comments.
Jerry submitted his original public comment regarding the proposed underride rulemaking on February 16, 2016. Here is an excerpt from that which addresses NHTSA’s preliminary cost/benefit analysis:
I would like to respond to the utilitarian logic approach that NHTSA has appeared to have applied to this issue. Their utilization of a cost/benefit analysis (called for by Executive Order 12866) is sadly lacking moral and ethical depth on the benefits side.
This type of logic was applied in 2000 by the Philip Morris Company in the Czech Republic when they funded a research study on the costs/benefits of smoking in the Czech Republic. http://www.mindfully.org/Industry/Philip-Morris-Czech-Study.htm The study concluded that it would be more beneficial for the people of the Czech Republic to smoke than not. What was this startling conclusion based on? A cost/benefit analysis.
The results are summarized in Figure 1:
Figure 1: The public finance balance of smoking in the Czech Republic in 1999 is estimated at +5,815 mil. CZK
Income and positive external effects
21,463 mil CZK
Savings on housing for elderly
28,mil CZK
Pension & soc. expenses savings due to early mortality
That’s how much a study sponsored by Philip Morris said the Czech Republic saves on health care, pensions and housing every time a smoker dies.
photo: American Cancer Society full-page SF Chronicle advertisement 2aug01
In comparison, let’s look at how this approach could be applied to the underride issue. This type of cost/benefit analysis could lead us to conclude that it is not beneficial to require stronger underride guards because the benefits of keeping weak and ineffective standards for underride guards are greater than the cost of upgrading them to the best possible protection. What might those benefits be?
Save the trucking industry money by holding down manufacturing and installation costs.
Save the consumer money by holding down shipping costs.
Reduce medical costs by killing people at a younger age (and avoiding costly medical costs of the elderly population).
Preserve the Social Security fund by decreasing the number of people who draw from their account due to early Death by Motor Vehicle.
Improve the job market due to the decrease in the workforce from the elimination of workers through Death by Motor Vehicle.
In both cases, the conclusions lack common sense. I hope that we can agree upon that.
In other words, this kind of analysis could potentially require that we decide whether we are willing to fork over money to protect people from Death by Motor Vehicle. It forces us to choose between saving a life or saving costs. When that life is one of your loved ones, what would you choose?
In contrast, a cost-effectiveness approach may be a better solution because it compares the relative costs and outcomes (effects) of two or more courses of action. “Cost-effectiveness analysis is distinct from cost-benefit analysis, which assigns a monetary value to the measure of effect.” https://en.wikipedia.org/wiki/Cost-effectiveness_analysis In this situation, the desired outcome of both courses of action would be an underride guard which did not fail upon collision with a vehicle. The two solutions could be compared based upon cost, but a performance standard of a successful crash test would guarantee that lives would be saved.
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 comprehensivenegotiated rulemaking.
I am willing to do the organizing necessary to bring this meeting about. First of all, we need a location for the meeting and therefore I am asking if anyone would like to step forward and host this Negotiated Rulemaking Underride Roundtable. Once that is arranged, then we can proceed with selecting a date, developing an agenda, and sending out the notice.
After our family was instrumental in getting underride rulemaking initiated in July 2014, I realized that, though we had made it over one hurdle, in reality the battle had only begun. I became concerned that the cost/benefit analysis, which had so often compromised past underride rulemaking, was still a very real threat.
The participants, of the May 5, 2016, Underride Roundtable at IIHS, would be qualified to help meet the mandate given to NHTSA to prepare a thorough Cost Effectiveness Analysis (CEA) of the underride issue: The Office of Management and Budget (OMB) recently issued Circular A-4 guidance on regulatory analyses, requiring federal agencies to “prepare a CEA for all major rulemakings for which the primary benefits are improved public health and safety to the extent that a valid effectiveness measure can be developed to represent expected health and safety outcomes.” Appendix G–Health Based Cost Effectiveness Analysis.pdf
A Negotiated Rulemaking Underride Roundtable could provide a format for development of a more effective and comprehensive underride rule, which would cover all the bases with existing and proposed technology to save as many lives as is humanly possible. It would also get the manufacturing companies out of limbo so that they can make long-term plans and move forward with designing and producing safer products. Win/Win. N’est-ce pas?
Now that the formal comment period is over for the NPRM on Rear Underride on Trailers, the next step is for NHTSA to review the comments and develop a final rule. Let’s strike while the iron is hot and present them with a unified recommendation to enhance their efforts. Before it’s too late.
Let’s send the message to NHTSA that we are all willing to do the work to bring about an acceptable, all-inclusive underride rule.
Virginia Tech underride guard installed by Senior Design Team, April 2016
NHTSA, in the Preliminary Regulatory Evaluation of the NPRM issued in December 2015 for Rear Underride on Trailers, requested information about underride guard crash tests at higher speeds (than the 35 mph currently being proposed). This is what they said,
We recognize, however, that benefits may accrue from underride crashes at speeds higher than 56 km/h (35 mph), if, e.g., a vehicle’s guard exceeded the minimum performance requirements of the FMVSS. NHTSA requests information that would assist the agency in quantifying the possible benefits of CMVSS No. 223 rear impact guards in crashes with speeds higher than 56 km/h (35 mph) . See: NPRM Rear Impact Guards, Rear Impact Protection December 2015 document; A Summary of Some of the Highlights
Here are some additional links to underride research around the world which should be taken into consideration when developing improved underride designs and standards.
Here’s a little side note on the cost/benefit analysis (CBA) debate from around the globe in Australia:
The fallacy behind the Australian Federal Government’s CBA is that the cost to the tax payer is minimal to introduce a new mandatory standard requiring crashworthy underrun barriers.
The cost is in effect born by the truck manufacturers which the industry accepts.
That’s the irony of the situation.
At most it might add a fraction of a cent to the cost of your Corn Flakes which I am sure if presented to consumers, they would gladly pay if it saved lives.
The disgusting truth to the Australian Federal Regulator’s CBA is that a ‘virtual’ cost has been added by them, i.e. cost to the industry.
That is being touted by the Federal Government as being more important than the well-being or life of a human being.
After we were instrumental in getting underride rulemaking initiated in July 2014, I realized that, though we had made it over one hurdle, in reality the battle had only begun. I became concerned that the cost/benefit analysis which had so often compromised past underride rulemaking was still a very real threat. It was then that I surmised that a Vision Zero Executive Order to modify the regulatory analysis process might well be necessary. Thus the Vision Zero Petition was birthed.
Some of the warning signs that the Cost/Benefit Analysis (CBA) bugaboo might be lurking around the corner can be seen in the Preliminary Cost/Benefit Analysis for the current underride rulemaking:
To avoid making this post too-lengthy, I will provide the link to my initial reactions when the proposed rule was published in December 2015: A Mom’s Knee-Jerk Reaction to NHTSA’s Proposed Rule to Improve Rear Underride Protection with an excerpt here–“NHTSA’s comments in the NPRM indicate that they do not want to compromise safety in the more common crash scenario and so have proposed to concentrate on making that area of the trailer safer and do nothing, at least at this stage in the game, about the other weaker area where crashes are reportedly less common. (See p. 44, ” NHTSA is not convinced that improved protection in the less frequent 30 percent overlap crashes should come at the cost of adequate protection in the more common 50 and 100 percent overlap crashes.”)I just have to ask, Is it really an Either/Or situation? Are we sure that we cannot reasonably address both problems?”
Hey, I forgot about this: They are asking for information about higher (than 35 mph) speeds. We recognize, however, that benefits may accrue from underride crashes at speeds higher than 56 km/h (35 mph), if, e.g., a vehicle’s guard exceeded the minimum performance requirements of the FMVSS. NHTSA requests information that would assist the agency in quantifying the possible benefits of CMVSS No. 223 rear impact guards in crashes with speeds higher than 56 km/h (35 mph) . What are we waiting for?!
Based on their proposed requirements, their CBA comes up with a figure which is very close to the current Value of a Statistical Life (VSL), $9.4 million–which tells me that if more improvements were added to the proposed rule, that figure would go up and they would then say that such a counter-measure was “not cost-effective.” Get it? p. 55 The agency estimates that the net cost per equivalent lives saved is $9.1 million and $9.5 million discounted at 3 percent and 7 percent, respectively.
See what I mean? p. 55 “We have tentatively decided not to require used trailers be retrofitted with CMVSS No. 223 compliant rear impact guards. Our analysis indicates such a retrofitting requirement would be very costly without sufficient safety benefits.
Of course, they aren’t figuring in (that I can see) the additional lives which would be saved with better protection or adequately considering undercounted lives–like AnnaLeah and Mary. Our FARS report said, “Compartment Intrusion Unknown.”
Why on earth, anyway, are they playing God and deciding that it isn’t worth it to save a certain number of lives? Besides, have they taken into account the fact that the underride victims are not the consumer of the product (improved guards on trailers)? The consumer is the trailer buyer who has already shown a willingness to seek safer trailers. And the manufacturers have responded to that by producing safer trailers (to a degree). See my recent comment on the Federal Register: Public Comment on the NPRM by Marianne Karth
When it gets right down to it, I want to just throw the cost/benefit analysis out the window. It is downright unethical and considers profit over people. Jerry says that the Cost Effectiveness Analysis would be more appropriate and is, in fact, mentioned in OMB Circular A-4 as a regulatory requirement. Circular A-4, “Regulatory Impact Analysis: A Primer”
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. The result could more quickly bring about a more effective underride rule which would cover all the bases to save as many lives as is humanly possible through improved technology. It would also get the manufacturing companies out of limbo so that they can make long-term plans and move forward with designing and producing safer products. Win/Win. N’est-ce pas?
Last night, I decided to find out if anyone agrees with my opinion that cost/benefit analysis is inappropriate for rulemaking related to traffic safety matters of life and death. Here is what I am finding:
“Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking”* Michael S Baram ** “INTRODUCTION The use of cost-benefit analysis in agency decisionmaking has been hailed as the cure for numerous dissatisfactions with governmental regulation. Using this form of economic analysis arguably promotes rational decisionmaking and prevents health, safety, and environmental regulations from having inflationary and other adverse economic impacts. Closer analysis, however, reveals that the cost-benefit approach to regulatory decisionmaking suffers from major methodological limitations and institutional abuses. In practice, regulatory uses of cost-benefit analysis stifle and obstruct the achievement of legislated health, safety, and environmental goals. The Article concludes that if the health, safety, and environmental regulators continue to use cost-benefit analysis, procedural reforms are needed to promote greater accountability and public participation in the decisionmaking process. Further, to the extent that economic factors are permissible considerations under enabling statutes, agencies should conduct cost-effectiveness analysis, which aids in determining the least costly means to designated goals, rather than cost-benefit analysis, which improperly determines regulatory ends as well as means.” Cost-Benefit Analysis: An Inadequate Basis for Health, Safety, and Environmental Regulatory Decisionmaking*
“Since 1981, the Office of Information and Regulatory Affairs (OIRA) in the White House has reviewed significant proposed and final regulations for conformity with cost-benefit tests.3 Under a series of executive orders, OIRA has performed this role through Republican and Democratic presidencies.4 These policy reviews are controversial: Some claim that OIRA promotes the use of sound social-scientific reasoning; others see it as a front for business interests and a triumph of cold and heartless economic reasoning.” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 2 by Susan Rose-Ackerman
“President Barak Obama has continued the practice of regulatory review under the executive order originally issued by President Bill Clinton and kept in place by President George W. Bush. However, in January 2009, the Administration expressed an interest in revising the executive order. OIRA opened a comment period and received a broad response from the policy community.6 So far, nothing has happened. The comments seem to have fallen into a black hole. OIRA has not attempted a full-blown reconsideration of the executive order. It has concentrated instead on increasing the transparency of government, and especially, on the ease of access to regulatory information and data sets. Otherwise, it is “business as usual”—with the staff reviewing proposed and final rules with only an occasional flare-up over controversial issues, such as whether or not to designate coal ash as a hazardous waste.7 The failure to rethink the executive order is unfortunate—especially given the global trend to institutionalize something called impact assessment (IA).” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 3
“With no change in the executive order, CBA will continue to be enshrined as the ideal standard for regulation in the United States. Even if the actual cost-benefit studies performed by U.S. government agencies are highly variable in quality and often lack key components, the technique remains a benchmark for analysis.10 I seek to challenge the hegemony of CBA on two grounds. First, cost-benefit analysis should be used to evaluate only a limited class of regulatory policies, and even then it should be supplemented with value choices not dictated by welfare economics. Second, CBA presents an impoverished normative framework for policy choices that do not fall into this first category.” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p.4
“Here, the main problems are measurement difficulties that are sometimes so fundamental that better analysis or consultation with experts cannot solve them. I am thinking mainly of debates over the proper discount rate for future benefits and costs; efforts to incorporate attitudes toward risk; and the vexing problems of measuring the value of human life, of aesthetic and cultural benefits, and of harm to the natural world. Disputes over these issues turn on deep philosophical questions—for example, valuing future generations versus” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 5
“These issues do not have “right” answers within economics. They should not be obscured by efforts to put them under the rubric of a CBA. Politically responsible officials in the agencies and the White House should resolve them in a transparent way. ” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 6
“I review the limitations of CBA as a policy criterion and use my critique as a ground for proposing a revised executive order to the Obama Administration. The new executive order should continue to require both up-front consultation on the regulatory agenda and ongoing review of major regulations above some minimum level of importance. As Revesz and Livermore recommend, OIRA could play a larger role in overall agenda setting and policy coordination across agencies.13 Such review serves the interest of any president seeking to influence the overall regulatory environment. Hence, both consultation and review should be mandatory for core executive agencies, but, under my proposed framework, the executive order would only require agencies to carry out formal CBAs for a subset of regulations.” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 7
“To avoid conflicts with the political pressures facing the President, an advisory body independent of the White House should provide expert analytic advice to agency policy analysts and to OIRA. In this, I build on Stephen Breyer, who urges the creation of a separate expert agency with the mission of rationalizing regulatory policy across programs that regulate risk.14 Bruce Ackerman also recommends the creation of an integrity branch, concerned with transparency and limiting corruption, and a regulatory branch insulated from day-to-day political influences but required to justify its actions publicly.15 Either OIRA, or this new advisory body, should create a library of innovative tools for achieving regulatory goals that go beyond the much criticized command-and-control model. Agency policymakers could access this library as they look for innovative ways to achieve goals, as could those contemplating amendments to existing laws” Putting Cost-Benefit Analysis in Its Place: Rethinking Regulatory Review p. 7-8
Yesterday morning, I checked my email and saw that there was a new Public Comment posted on the Federal Register regarding the Notice of Proposed Rulemaking on Underride Guards.
I quickly went to the site and saw that the Truck Trailer Manufacturers Association had posted a comment (see their comments in the PDFs below). Apparently our Underride Roundtable two weeks ago at IIHS has spurred them to spell out the steps which have been taken over the years to squash side guards from being mandated and manufactured to prevent smaller passenger vehicles from riding under trucks upon collision with the side of the larger vehicle.
Their rationale: Cost/Benefit Analysis shows that adding side guard to trucks is “not cost-effective”.
“In its 1991 Preliminary Regulatory Evaluation of proposed guards for rear underride, NHTSA’s Plans and Policy Office of Regulatory Analysis stated: “Combination truck side underride counter-measures have been determined not to be cost-effective.” [Docket I-11; Notice 9; Comment 002, page 15 (emphasis added) {by TTMA}].”
Translate that: Not enough people die from side underride crashes to justify the money it would take to add this safety feature. If this attitude and rulemaking policy is allowed to continue unabated, then innocent, unsuspecting travelers on our road will continue to experience preventable underride crashes and receive a Sentence of Death by Preventable Underride. And no one will be held responsible for that–not the trailer manufacturers, not the trucking companies, not the truck drivers (unless perhaps they were blamed for the collision itself), not the regulators, not the insurers; I repeat, no one!!! No one will be penalized for this despicable, unconscionable action–except, of course, the victims.
And, yes, TTMA is repeating the oft-heard industry argument that the solution is to concentrate on Crash Avoidance Technology instead–as if it were an either/or not a both/and question!
Meanwhile, people will continue to needlessly die — like AnnaLeah and Mary — and people like me will undergo tremendously traumatic ongoing grief multiplied exponentially by the anger and frustration of knowing that it might well have been prevented were it not for the endless opposition to implementing solutions which are readily available.
I helped roll up the side guard designed by Aaron Kiefer last month and it did not seem to weigh that much. I talked to Aaron yesterday and he estimates that his side guard, once in mass production, might weigh about 175 pounds. Currently, his prototype, when combining the weight of it on both sides of the truck, weighs in at around 300 pounds. And what percentage of the total allowed 80,000 lbs. is that anyway? (.4%?)
And, by the way, look at this amazing crash test of Aaron’s side guard, which I witnessed in North Carolina less than a month ago (April 30, 2016):
Somebody, please get me an audience with President Obama. I need him to tell me to my face that it is not a matter of life & death for him to adopt a National Vision Zero Goal, to establish a White House Vision Zero Task Force, and to sign a Vision Zero Executive Order which will pave the way for Vision Zero Rulemaking at DOT.
Of course, what I would really like to have happen is to speak with the President, have him catch the vision and promise me that he will actually take those actions. Wouldn’t that be exciting!
However, if President Obama does nothing about the traffic safety travesty, TTMA has clearly shown us what to expect: Continued opposition and resistance to efforts to make trucks safer to drive around.
I truly hope that I am wrong and that the outcome of the Underride Roundtable will have made a huge difference in the future of underride protection. However, it appears that, if TTMA has anything to say about it, we should expect that any new underride rule issued will either be opposed or be unchanged and, therefore, weak and ineffective. When it is Technologically Unnecessary for that to be so.
And then who will be ethically responsible for the continued carnage on the highways of this great country?! That’s what I want to know.
