NHTSA closed the Public Comment Period on the Advance Notice of Proposed Rulemaking (ANPRM) for side underride guards on July 20, 2023. NHTSA asked commenters to respond to these nine questions. Here’s where the comments are posted: Advance Notice of Proposed Rulemaking for Side Underride Guards. To make it easier to read through the thousands of comments, I’m providing pdfs and/or links to many of them — although it’s not an exhaustive compilation.
The majority of comments (over 1,000) posted from June 16 through June 23 were from individuals and organizations which support the requests in the Public Comment from the League of American Bicyclists – calling for pedestrians and bicyclists to be included in the data for side guard regulatory analysis. (Motorcyclists are vulnerable to underride as well.)
According to the federal rulemaking process, the next step is for NHTSA (and that will include the Advisory Committee on Underride Protection)to begin reviewing and evaluating the comments which have been submitted from the public. Now is the time for the development of a recommendation to the Secretary of Transportation as to whether a side guard regulation would be cost effective.
In other words, now is the time to finally determine that safety is an acceptable cost of doing business and Death By Underride is an unacceptable, unreasonable, and preventable risk for all road users. At least, that’s what I think.
I’d like to see an overhaul of the current federal guidelines for evaluating the cost-effectiveness of safety countermeasures. And it probably needs to start with an Executive Order. Without such a decisive action, we are likely to see a continuation of compromise which will pile up more senseless and preventable traffic-related deaths.
In the aftermath of a horrific truck crash on May 4, 2013, which I survived, I discovered that the major factor which stole my daughters’ lives — underride — was, is, and probably will continue to be woefully underreported. In fact, recent searching, of the NHTSA Fatality Analysis Reporting System (FARS) files on truck crashes, has revealed the shocking extent of the agency’s failure to record underride deaths as such. Yet, the known-to-be-undercounted data on underride deaths is heavily factored into the formula for underride regulatory analysis.
Order 12866 requires agencies to conduct an analysis of the benefits and costs of rules and, to the extent permitted by law, directs that regulatory action shall only proceed on the basis of a reasoned determination that the benefits of a regulation justify the costs. President Obama issued Executive Order 13563 “Improving Regulation and Regulatory Review,” on January 18, 2011, to reaffirm and supplement Executive Order 12866 to further improve rulemaking and regulatory review. About OIRA
The federal government took 28 years and three months to get its underride guard rule out the door. By then, nearly 9,000 more people had died the same way Mansfield had, by sliding under a big semi.
Why was three decades’ deliberation necessary to impose such a commonsense safety precaution? Because Mansfield met her fate just as the economics profession was advancing, like an occupying army, into noneconomic agencies of the federal government. The result was a mindset—an ideology, really—that dominates public policymaking to this day. The Marxists (of whom I am not one) have an excellent term for this ideology: Economism. At a time of extreme political polarization, an Economicist bias (pronounced eh-co-nom-i-sist) is practically the only belief that Democrats and Republicans share.
Brilliant observation. Of course, the stranglehold on underride rulemaking is much worse than he realizes (and I told him so via Twitter).
Noah follows that opening with a very lengthy discussion of how this mindset has affected many issues we face today. Then he closes off his comments by returning to the topic of underride:
Because Economism is out of control. Those Mansfield bars? In 2015, NHTSA proposed a regulation requiring that underride guards meet a higher standard of strength and energy absorption, because every year more than 200 people die, on average, the same way Jayne Mansfield did more than half a century ago. Still. The final rule came out this past July, but only after New York Democratic Senator Kirsten Gillibrand inserted into the infrastructure bill language telling NHTSA to get off the dime.
It’s progress of a sort to wait seven years for a safety regulation instead of 28 years, and 1,400 deaths is fewer than 9,000. But when the new regulation was finally published, Joan Claybrook, who was NHTSA administrator in the 1970s, said it was wholly inadequate—“an affront to the families of underride victims.” Other safety advocates seemed to agree. Why wasn’t the Mansfield bar rule stronger? Because, the economists tell us, a human life is worth only so much.
Where will we go from here? Can we hope that the present Administration will issue a new Executive Order that takes a different approach to regulatory analysis? Or should we plan on more of the same — somebody getting away with murder? Rest assured, countless lives depend on this.
The American people, whether they know it or not, have already waited too long for DOT to take decisive action to stop underride tragedies. That’s why it’s encouraging to see Congress putting DOT on notice to move forward with the Underride Mandate. Yesterday, they sent a letter to Secretary Buttigieg:
Congressman Steve Cohen (TN-09) and Senator Kirsten Gillibrand led 25 of their colleagues in a letter urging Department of Transportation (DOT) Secretary Pete Buttigieg to swiftly execute the provisions from their Stop Underrides Act, which passed in the Infrastructure Investment and Jobs Act.press release
The letter encourages DOT to act swiftly to release the Final Rear Underride Guard rule with IIHS TOUGHGuard strength and issue an Advanced Notice of Proposed Rulemaking (ANPRM) in order to allow the Public to comment on side guards, as well as urging them to, “expeditiously establish the Advisory Committee on Underride Protection and to complete the life-saving side guard research which we hope will lead to a proposed rule on side guards. Together these provisions will help save lives and aim to prevent passenger compartment intrusion from crashes with trucks.”
Senator Gillibrand summarized it well, “Every day we don’t act, we are losing an opportunity to save the lives of innocent Americans.”
Fifty-three years ago, the Department of Transportation published their intention to add underride protection to the sides of large vehicles after the completion of technical studies. That was on March 19, 1969. In less than a week, 19,358 days will have passed. Surely there’s been enough time to complete research on this long-overdue rulemaking.
So I’m thinking that it isn’t unreasonable to expect NHTSA to make the Underride Initiative a high priority — especially since President Biden signed a bill on November 15, 2021, which included a requirement for the Secretary of Transportation to complete side guard research within a year and then to make a determination as to whether a side guard regulation is warranted.
It might even be a good idea for NHTSA to issue a Request for Comments (RFC) right away — to give the Public a chance to comment on the costs and benefits of adding side underride protection to large trucks. Shouldn’t Secretary Buttigieg want access to as much information as possible when he makes his decision by November 15, 2022? It is, after all, a matter of life & death.
“In both tests, a midsize car struck the center of a 53-foot-long dry van trailer. In the AngelWing test, the underride guard bent but didn’t allow the car to go underneath the trailer, so the car’s airbags and safety belt could properly restrain the test dummy in the driver seat. In the test with no underride guard for protection, the car ran into the trailer and kept going. The impact sheared off part of the roof, and the sedan became wedged beneath the trailer. In a real-world crash like this, any occupants in the car would likely sustain fatal injuries.“March 2017 IIHS Side Crash Tests at 35 mph; 8/29/17 40 mph crash test
In 2020, I became aware of further proof that underride regulatory analysis was both flawed and non-transparent. For some reason, in 2017, the FMCSA contracted with the Volpe National Transportation Systems Center to carry out a Study of Truck Side Guards to Reduce Pedestrian Fatalities. Originally the study goals were listed on the website like this:
Five key tasks are included in this project: (1) study interaction of a potential side guard with other truck parts and accessories (e.g., fuel tanks, fire extinguisher, exhaust system) and the implications for a new Federal Motor Carrier Safety Regulation; (2) investigate applicable international side guard standards; (3) perform a preliminary cost-benefit analysis of truck side guard deployment; (4) propose recommendations; and (5) propose means for voluntary adoption.“
When I found out that there were no plans to publish the completed study results, I made multiple inquiries at DOT and Congress. Some months later, after Departmental multimodal review, the results were whittled down to a literature review and finally published here:
When I realized that the majority of the report was missing, I submitted a FOIA Request asking for a copy of the entire report but was denied due to Exemption 5:
Exemption 5 protects the integrity of the deliberative or policy-making processes within the agency by exempting from mandatory disclosure opinion, conclusions, and recommendations included within inter-agency or intra-agency memoranda or letters. Exemption 5 also exempts from disclosure draft documents and recommendations or other documents that reflect the personal opinion of the author rather than official agency position. Finally, Exemption 5 exempts from disclosure deliberative records that may cause public confusion where the information were not the basis for an agency’s action or final report .
Any reasonable person could look at the conclusions from the published study and compare the data to the literature referenced and realize that there were problems. Here’s a fact sheet outlining the apparent flaws in the report published by FMCSA in May 2020:
A flawed conclusion and inconsistent crash analysis cut the apparent Vulnerable Road User safety benefit of side guards by approximately half.
This is bad. This is wrong. In the first place, the error leads to a flawed cost benefit analysis for underride rulemaking. In the second place, even the undercounted underride deaths for Vulnerable Road Users (pedestrians, cyclists, motorcyclists) – to the best of my knowledge – have not been included with data on underride deaths in prior NHTSA underride regulatory analysis. Really flawed cost benefit analysis.
Logic says that a flawed cost benefit analysis will lead to a faulty conclusion. The conclusion from multiple underride rulemaking efforts in the past has been that a regulation is not cost effective. In other words, those lives which could have been saved by underride regulations were not deemed worth the cost.
And, by the way, what exactly was the rationale behind leaving out information from the original study? What was DOT concerned about revealing? Would it have actually justified a side guard regulation, which would, of course, have not been looked on very favorably by many in the trucking industry? Would the study have provided a broader look at additional advantages of side guards, including their ability to increase aerodynamic fuel savings, spray reduction, wind stability, GHG reduction, or other accompanying side guard benefits?
As far as I can tell, NHTSA’s faulty analysis has resulted in “guidance” to the industry which effectively turned a blind eye to the fact that trucks with a dangerous design indisputably allow cars and Vulnerable Road Users to go under trucks and sentence thousands of road users to Death By Underride.
To compound the problem, at least in recent years, underride rulemaking has been assigned to the Crashworthiness Standards division of NHTSA in the USDOT. In my opinion, that is not a good fit. The majority of rulemaking done by NHTSA has to do with the auto industry, whereas FMCSA is the agency charged with motor carrier safety.
Furthermore, underride protection doesn’t fit the definition of crashworthiness, namely, “the ability of a car or other vehicle to withstand a collision or crash with minimal bodily injury to its occupants.“ Underride protection is installed on trucks but does not protect truck occupants. So the trucking industry gets away with claiming they’re not responsible to take care of the problem. And it isn’t a feature of the car whose occupants need to be protected, so the automakers don’t have any responsibility. Consequently, underride protection doesn’t truly fit into the current NHTSA division of responsibilities as far as I can tell. The result: on top of industry opposition, underride rulemaking seems doomed because, organizationally, it falls between the cracks.
It appears to me that this complex issue would be better suited as a multimodal collaborative project under the coordination of the Office of the Secretary rather than buried at NHTSA without suitable input from other agencies and the yet-to-be-established Advisory Committee On Underride Protection. Maybe then the Underride Initiative would get the priority status it requires and All Road Users would finally be protected from Death By Underride.
Oh, look, DOT just published their priority Innovation Principles, including this one:
The Department should identify opportunities for interoperability among innovations and foster cross-modal integration. In addition, DOT’s posture must remain nimble, with a commitment to support technologies that further our policy goals.
Will the U.S. DOT let the flawed analysis stand? Or will the coming year see significant progress in underride rulemaking? Secretary Pete, the final determination will be in your hands. Will you decide that comprehensive underride protection is warranted?
We’ve been waiting 52+ years for DOT to move forward with side guards on large trucks — not to mention improving rear guard regulations and adding front underride protection. After numerous petitions, comprehensive underride rulemaking still has not made it the onto the DOT Unified Regulatory Agenda.
A public commitment to Vision ZERO is lip service when it does not result in substantive action. What would constitute tangible progress?
2013 & 2014 Petitions for Comprehensive Underride Rulemaking2016 Petition for Comprehensive Underride RulemakingD.C. Underride Crash Test less than a mile from DOT, March 26, 20192021 Petition for Comprehensive Underride Rulemaking
Perry Ponder, who first brought the 1969 DOT discussion of side underride protection to my attention in 2016 and has invented the AngelWing side guard, recently submitted another Public Comment to NHTSA. He addresses industry concerns about side guards — providing thorough documentation.
IIHS Side Guard Crash Test, March 20, 2017
An excerpt of Ponder’s 2020 comments: Continuing to allow truck and trailer induced PCI in rear and side underride crashes to occur at otherwise survivable crash speeds (delta-V’s of 45mph and beyond) discards years of crashworthiness efforts and wastes the safety benefits we have come to expect and pay for in our cars.
From an engineering perspective the need for vehicle crash compatibility in the form of adequate heavy truck underride guarding is apparent in order to protect against the hazard of PCI which exposes the vulnerable head and neck region to severe, potentially fatal or crippling injury. This hazard is easily remedied by readily available materials and simple structural analysis. Read more here.
Here is Perry’s 2016 Public Comment in which he asked 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.
Here is that 1969 document:
This was the original intent of NHTSA rulemakers in the 1969 NPRM, Docket No. 1-11; Notice 2.
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.)
The basic problem of truck underride is the fact that there is a geometric mismatch between the large trucks and the smaller passenger vehicles. Crush zones are structural areas in a vehicle that are designed to absorb energy upon impact in a predictable way.However,upon collision of a passenger vehicle with a truck, there is no opportunity for engagement of the passenger vehicle crush/crumple zone with a solid portion of the truck.
The result? The crashworthiness of the passenger vehicle is not initiated. The car is allowed to go under the truck and the first point of impact is in the Passenger Occupant Space. The passengers are left vulnerable to horrific injuries and violent deaths.
In fact, although underride deaths are vastly underreported and undercounted, FARS data from the NHTSA show that hundreds of people die every year from truck underride passenger compartment intrusion (PCI). NHTSA reported 4,006 underride deaths from 1994 to 2014.
The rear underride guards, which are installed on semi-trailers, are supposed to prevent underride. But the IIHS, in 2011 and 2013, conducted crash testing which proved that the guards of eight major trailer manufacturers, though designed the meet the 1998 federal standard, too often fail. Subsequently, improved rear underride guards and side guards have been crash tested by the IIHS; crash dummies emerge with survivable results.
The majority of the large trucks on the road either have weak, ineffective rear underride guards – even though they meet the current federal standard – or none at all (as in the case of exempt single-unit trucks) or improperly maintained rear guards (initially known as ICC bumpers, later as Mansfield bars, or sometimes as Rear Impact Guards or RIGs). In addition, there is currently no federal requirement for commercial motor vehicles to have side guards – despite the fact that there is normally 4 feet between the bottom of the trailer and the road. And, although Europe has standards for Front Underrun Protection, the U.S. does not.
There were 340,000 large trucks manufactured in 2015. The majority of those have weak rear guards and no side guards. Volvo Trucks produces tractors with front underride protection in Europe but not on their North American trucks. There are nearly 2 million semi trucks in operation in the U.S. and around 5.6 million semi trailers. These drive around every day on our roads putting travelers at risk of Death by Underride.
The truck industry has known about the problem of underride for over a century. In fact, a patent was filed for a side guard in 1913. In response to the rear underride death of actress Jayne Mansfield in 1967, we saw some improvement in rear underride protection with a 1998 standard – although you will notice that that took 31 years to achieve and it still falls short of what is technologically possible some 50 years after her death.
The government is also well aware of the side underride problem. On March 19, 1969, the FHWA indicated in the Federal Register, in an analysis on rear underride rulemaking, that they intended to extend underride protection to the sides of large trucks after further studies. However, DOT has not done so and the industry – despite some voluntary improvement in response to appeals from victim families armed with information on the IIHS crash testing – has not shown an ability or willingness to solve this problem on their own.
As David Ward recently said, at the Road to Zero Coalition October 2017 quarterly meeting, there will always be a strong need for regulation and/or fiscal incentives to break market failure. Only then will we see 100% adoption of comprehensive underride protection. In fact, trailer manufacturers have said that a mandate would lift the burden from them; they would no longer have to persuade their customers to buy safer trailers.
The underride problem has been documented in numerous studies. The IIHS petitioned NHTSA in 2011 and the NTSB made recommendations in April 2014 that NHTSA initiate underride rulemaking to address safety vulnerabilities. The Volpe National Transportation Systems Center has recognized the problem and has worked with numerous Vision Zero Cities to install side guards on city trucks in order to protect Vulnerable Road Users.
A comprehensive underride protection rule, STOP Underrides! —because it will include single-unit trucks — will make it easier for cities throughout the U.S. to protect vulnerable road users. Every truck that drives on their streets will be equipped with comprehensive underride protection – a significant victory in the battle to create safer mobility for pedestrians, cyclists, and motorcyclists, as well as passenger vehicles.
With comprehensive underride protection installed on the entire large truck fleet, we should see a significant decrease in the 4,000 truck crash fatalities/year (4,713 in 2016), along with a major reduction in debilitating injuries. Truck crashes can be made more survivable.
A senator’s Office recently asked me to provide them with a one-page history of reports and recommendations made on the truck underride problem in the U.S. Here it is (with clickable links):
