Tag Archives: underride

Supplemental Underride Rulemaking Can Create Loophole In New DOT “Rule On Rules” Just Signed By Secretary Chao

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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Chao announced she has signed a “rule on rules” that will ensure the department’s regulations aren’t too complicated, out of date or contradictory.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.”

“This effort enhances the Department’s regulatory process by providing greater transparency and strengthening due process in enforcement actions,” Chao said in a statement. Transportation Department cements Trump administration’s deregulatory policies with a ‘rule on rules’

On the one hand, there are hints of good things there in calling for rules that are not out of date, cooperation from the private sector, and greater transparency.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.)

What Will Come Next in the Timeline of Underride Regulatory History?

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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?

Underride-timeline

Rear Reinforcement Attachment: an aluminum device installed at outer edges of a trailer’s rear underride guard to strengthen it

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Aaron Kiefer readies his Rear Reinforcement Attachment, an aluminum device installed at the outer edges of a trailer’s rear underride guard to strengthen it — preventing underride to make truck crashes more survivable & save lives.

Making plans for an upcoming crash test in North Carolina. Stay tuned as we work hard to #STOPunderrides!

Why is this needed? See the difference between a weak and strong rear underride guard:

Hundreds of North Carolina State Fairgoers Sign STOP Underrides! Petition

Safety Advocacy, Truck Safety, , ,

The fabulous Fall weather brought out thousands of people to the North Carolina State Fair on Saturday, October 26. At the Governor’s Highway Safety Association (GHSA) SAFETY TENT, we were ready for the hundreds of people who stopped at our booth. We seized the opportunity to share with them underride stories, photos, and crash test videos.

We didn’t actually keep track, but I would venture a guess that well over 90% of those who took the time to listen to us, and often ask questions, were glad to hear that there was a specific action which they could take after hearing about the horror of underride and how they and their families are vulnerable to this preventable traffic safety problem.

In fact, after they learned that Congress could take action to mandate that available engineering solutions be installed on all large trucks, 263 people were more than willing to sign a paper copy of our STOP Underrides! Petition.

One young woman got tears in her eyes as she was gazing at our poster:

We learned that some years ago, when she was 12, she and her mom crashed into the side of a trailer and were spared complete underride when a piece of the trailer floor somehow lodged into their car preventing it from going any further. She had no idea that underride happens to others and found it a relief to be able to sign the petition.

She wrote in a comment on her petition: The most important piece of legislation!

North Carolina U.S. legislators would do well to pay heed to this clear call from their constituents:

We Want You To STOP Underrides!

On September 3, 1969, Congress discussed UNDERRIDE. How many more people have to die before Congress lays down the law?

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On September 3, 1969, U.S. 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! Pass the STOP Underrides Bill into law already!

Too many people have already paid the price since that public Congressional discussion which took place fifty years ago on September 3, 1969. No more.

The standard should be applicable to all vehicles and trucks so that the risk of damage and fatalities resulting from nonmatching bumper guards is permanently and forever removed from American highways.
. . . I hope that your committee will issue a mandate for this regulation next year [1970].
. . . the unsafe conditions resulting from the use of high-front bumpers on heavy trucks are to be evaluated for eventual development of a regulation.

Congressional Record for September 3, 1969

See relevant excerpts from pp. 13-14 and more details in this post:

Congressional Record on Underride 9.3.1969 pp. 13-14

Congress, Act Now To End Deadly Truck Underride! PETITION

Jury Found Trailer Manufacturer Negligent In Side Underride Death

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A New Mexico jury found a trailer manufacturer “negligent” yesterday in a side underride fatality. “The family hopes the verdict ‘sends a message’ to the truck-trailer industry to take measures to prevent underride crashes.” Read more here.

Everyone, please call Congress at this D.C. phone no. and ask for your U.S. Senators and Representatives. When you get transferred to their office, simply tell the staffer that you want their boss to cosponsor the STOP Underrides Bill (S.665 and HR.1511): (202) 224-3121.

Thank you, Eric Hein and family. Thinking of you and all underride victims. Precious ones gone too soon. Never forgotten. 

#STOPunderrides Enough is enough!

Let’s manufacture new trucks that don’t have an underride problem, but let the existing ones stay in operation – as is. Excuse me?!

Safety Advocacy, Truck Safety, ,

I’m a survivor of a truck crash (because my part of the car did not go under the truck) and the mom of two daughters who needlessly lost their lives to preventable rear underride. So I know what I’m saying when I tell you that every part of the STOP Underrides! Act will correct a specific aspect of the underride problem.

It is a comprehensive bill; if any part is left out, it will mean senseless deaths will continue. Any compromise made will be a compromise in human lives — a costly price paid by underride victims, survivors, their families, and all of society in the costs incurred.

Would Congress say, “When you manufacture new airplanes, make sure that they don’t have the problems of the 737 MAX,” and allow the existing ones to stay in operation — as is? In my mind, the question is the same for the underride problem. Will Congress say, “When you manufacture new trucks, make sure that they don’t have the underride problem,” and allow the existing ones to stay in operation — as is?

That would be to knowingly sentence countless people to sure Death By Underride over the next couple of decades until the existing trucks — which have a 10-15 year life — are no longer in service.

It will take an Act of Congress to bring about this needed change in the trucking industry.

Underride Retrofit; or, What is an acceptable number of underride deaths?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ATA Stop Underrides Act Follow Up Opposition Letter 6.19.19

RESPONSE to ATA Stop Underrides Opposition Letter

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

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

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

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


Rebuttal to Concerns Raised By the ATA About Proposed Underride Legislation

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From the very beginning of our journey to make truck crashes more survivable with the installation of effective underride protection, we have been reaching out to members of the trucking industry — manufacturers, transport companies, truck drivers, industry associations, and engineers among others. We have found some who are cooperative and many who are committed to working on solutions. However, we have also observed a reluctance to move forward with R&D — not to mention installation of solutions.

Beyond industry hesitation, we have also read about and listened to outright opposition. While I appreciate that they would find it important to express concerns they might have about the legislation and the technology, I do not find it helpful if their statements are not backed up with facts or documentation — especially when there is little openness to sit down together and discuss how to address those concerns collaboratively.

I remain hopeful that we can yet reach that point where we will be able to hold conversations through the process laid out in the STOP Underrides Act for a Committee On Underride Protection. It holds the potential for cooperation, transparency, and accountability which could help us reach the goal of ending preventable death by underride in a timely fashion.

Meanwhile, because I have been unable to get them to participate in a meeting to discuss these concerns, I am going to share two documents here:

  1. A letter which the American Trucking Associations emailed to Members of the Transportation & Infrastructure Committee’s Highway & Transit Subcommittee on June 19, 2019, following the trucking hearing on June 12, 2019. The ATA letter outlines their concerns about, and opposition to, the STOP Underrides! Act. ATA Stop Underrides Act Follow Up Opposition Letter 6.19.19
  2. A rebuttal to that letter — detailing what we have discovered over the last several years regarding those concerns. RESPONSE to ATA Stop Underrides Opposition Letter

May we allow nothing to interfere with reaching the goal of protecting all travelers from the unimaginable injuries and grief which all too often come about when we don’t equip our trucks with underride protection so that passenger vehicles and vulnerable road users cannot go under them.

Rose, Star Wars: The Force Awakens

Underride Legislation Discussed at T&I Hearing on The State of Trucking In America

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At last, truck underride was brought to the table at the June 12, 2019, Transportation & Infrastructure Hearing entitled, Under Pressure: The State of Trucking in America.

Congresswoman Eleanor Holmes Norton, Chair of the Highways & Transit Subcommittee, mentioned underride in her opening remarks (at 6:59 in this video):

Truck safety advocate, Andy Young, also talked about underride in both his written and verbal testimony to the Subcommittee members.

In this video excerpt, Chris Spear (ATA) makes a statement (at 1:09.48) in the hearing about his understanding that side guards have only been tested at 35 mph (not true):

Andy Young corrects that information (at 3:22.15 in the hearing video) and mentions that the AngelWing side guards have been successfully tested at the Second Underride Roundtable on August 29, 2017, at the Insurance Institute for Highway Safety (IIHS) at 40 mph:

The AngelWing side guards have also been successfully tested elsewhere at 47.2 mph:

Congressman Steve Cohen, who led the way in the House when he re-introduced the STOP Underrides Act on March 5, 2019, also spoke about underride:


The truth about truck underride should speak for itself. For too many decades, the facts have been hidden; motorists and vulnerable road users have not been adequately protected from becoming underride victims.

Enough is enough! Congress, the ball is in your court. It’s time to act.