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[Federal Register Volume 87, Number 127 (Tuesday, July 5, 2022)]
[Notices]
[Pages 39899-39901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14165]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

[Docket No. NHTSA-2022-055]

Denial of Motor Vehicle Defect Petition, DP21-004

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation.

ACTION: Denial of petition for a defect investigation.

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SUMMARY: This notice sets forth the reasons for the denial of a 
petition submitted to NHTSA on September 14, 2021, requesting that the 
agency investigate whether a defect related to motor vehicle safety 
exists in van-type or box semi-trailers due to a lack of side underride 
guards. On November 17, 2021, NHTSA opened Defect Petition DP21-004 to 
evaluate petitioners' request. After a review of the petition and other 
information, NHTSA has concluded that the issues presented by the 
petitioners will be examined in work undertaken pursuant to 
congressional direction under the Bipartisan Infrastructure Law. 
Accordingly, the agency has denied the petition.

FOR FURTHER INFORMATION CONTACT: Mr. Nate Seymour, Medium and Heavy 
Duty Vehicle Division, Office of Defects Investigation (ODI), NHTSA, 
1200 New Jersey Ave. SE, Washington, DC 20590. Telephone: 202-366-2069. 
Email: [email protected].

SUPPLEMENTARY INFORMATION: In a letter dated September 14, 2021, 
Marianne and Jerry Karth, Eric Hein, and Lois Durso (petitioners) 
petitioned the National Highway Traffic Safety Administration (NHTSA) 
to initiate a defect investigation into van-type or box semi-trailers 
for a lack of side underride guards (SUGs). NHTSA's Office of

[[Page 39900]]

Defects Investigation (ODI) assessed the information provided by the 
petitioners, as well as additional information that ODI gathered from 
other relevant sources.
    The petitioners allege there is a known safety hazard and defect 
where passenger vehicles or other vulnerable road users (pedestrians, 
bicyclists, or motorcyclists) collide with van-type or box semi-
trailers resulting in death and significant injuries due to a lack of 
SUGs. The petitioners state that at least 500 deaths and 5,000 serious 
injuries occur annually due to side underride crashes. They also say 
that a known solution is currently available.
    The subject vehicles are van-type or box semi-trailers operated in 
the United States. The trailers range from twenty-eight feet (28') to 
fifty-three feet (53') in length. They are typically eight feet (8') to 
eight and a half feet (8.5') wide and up to thirteen and a half feet 
(13.5') tall. Most have one fixed axle, or two axles mounted in tandem 
on a sliding rail system at the rear. This allows for proper axle 
weight distribution as per U.S. Bridge Laws, as well as increased 
maneuverability when needed. Gross Vehicle Weight Ratings (GVWR) are 
typically up to 68,000 pounds. All subject vehicles are currently 
required to have rear underride protection as per Federal Motor Vehicle 
Safety Standard (FMVSS) 224. The load floor height is approximately 
four feet (4') above the ground. The space between the ground and floor 
is often used for sliding tandems (axles), fuel tanks, air hoses, spare 
tire carriers, and other optional fixtures. Additionally, many trailers 
are now equipped with lightweight skirts to improve aerodynamics to 
increase fuel efficiency.
    SUGs are intended to prevent a vehicle from underriding the trailer 
in the event of a collision (an ``underride'' crash).\1\ The concept is 
that a barrier of sufficient strength extends downward from the trailer 
side to fill the space between the trailer floor and the ground.
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    \1\ While petitioners allege that a lack of SUGs also poses a 
safety hazard to vulnerable road users (e.g., pedestrians), that 
results in death and injury, SUGs--the lack of which petitioners 
assert constitutes a defect here--are devices that are specifically 
intended to prevent a vehicle (not necessarily a vulnerable road 
user) from underriding a trailer.
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    ODI has received three (3) complaints, other than those from the 
petitioners, related to trailer underride. All three of these 
additional complaints involve vehicles older than Model Year 2006 and 
were submitted by the same individual more than 11 years ago. Although 
NHTSA's Early Warning Reporting (EWR) regulations do not have a 
specific code for underride, searching the Death and Injury (D&I) EWR 
data identified five (5) reports citing underride. The following table 
summarizes the report year and the Model Year of the semi-trailer 
involved.

------------------------------------------------------------------------
                                                           Model year of
                 Year reported to NHTSA                       trailer
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2021....................................................            2019
2021....................................................            2015
2013....................................................            2007
2006....................................................            1998
2018....................................................         Unknown
------------------------------------------------------------------------

    In early December 2021, ODI sent an Information Request letter to 
eight (8) manufacturers asking for information related to side 
underride. Letters were sent to the following trailer manufacturers: 
Great Dane; Hyundai Translead; Kentucky Trailer; Stoughton; Strick 
Trailers; Utility Trailer Manufacturing; Vanguard; and Wabash. ODI 
received separate responses from each manufacturer by January 14, 2022, 
and a supplemental response from Hyundai Translead on April 14, 2022.
    Each manufacturer was asked about its market share of the subject 
vehicles. Most replied with a range, as the share varies from year to 
year. ODI concluded that the eight manufacturers surveyed represent 
nearly 100% of the subject vehicle population. Additionally, ODI asked 
each manufacturer for its assessment of the current in-service subject 
vehicle population. Based on the responses, the total vehicle 
population is estimated to be 2.45 million trailers.
    The responses from the eight manufacturers identified over 20 
events that may relate to underride from 2006 to 2022, including events 
that involved death or injury. ODI was able to locate 19 of the events 
within its databases. Title 49 of the Code of Federal Regulations (CFR) 
Part 579 requires the trailer manufacturers to report whenever they 
receive an allegation that a defect resulted in a death or injury. The 
manufacturers responded that they are typically unaware of underride 
events unless legal action is brought against them, or as in one case, 
the trailer is brought in for repairs.
    ODI reviewed additional sources to better understand the 
petitioners' claim that at least 500 deaths and 5,000 injuries occur 
annually due to side underride crashes. A 2012 article by Matthew 
Brumbelow titled ``Potential Benefits of Underride Guards in Large 
Truck Side Crashes'' included a statistical analysis of Trucks Involved 
in Fatal Accidents (TIFA).\2\ Between 2006 and 2008, 7,250 passenger 
vehicle occupant deaths were recorded in two-vehicle crashes with large 
trucks (tractor-trailers and single unit trucks). Using the 2006-2008 
TIFA data, Brumbelow estimated that approximately 530 passenger vehicle 
occupants died annually in two-vehicle crashes in which the passenger 
vehicle struck the side of a large truck. Brumbelow noted that 20 
percent of the side-impacted trucks were straight trucks, and those 
remaining were tractor-trailers or tractors without trailers. However, 
TIFA data files did not provide information on the impact location 
(impact with tractor, between tractor and trailer, between front and 
rear axles of the trailer, or behind the trailer rear wheels) and 
whether the passenger vehicle underrode the truck. Brumbelow noted that 
not all fatalities and injuries were due to vehicle underride and that 
not all injuries in crashes with side underride could be mitigated by 
side underride guards, because of the impact location, lack of 
restraint use, high deceleration levels, and other factors. Using 2008-
2017 fatal crash data, NHTSA estimated that there were 212 light 
passenger vehicle occupant fatalities annually in crashes into the 
sides of tractor-trailers.
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    \2\ Matthew L. Brumbelow, Potential benefits of underride guards 
in large truck side crashes, 13 Traffic Inj. Prevention 592-99 
(2012).
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    In their petition, petitioners identify patents for side underride 
guards held by two semi-trailer manufacturers that they state indicates 
that the industry has already designed and tested a solution to the 
alleged defect. The petitioners further state that another underride 
guard, designed outside of the industry, has been successfully crash 
tested and proven to stop a car from going under a semi-trailer in a 
collision up to 40 mph. Multiple manufacturers have conducted testing 
of various SUG devices, and some of the manufacturers queried by NHTSA 
tested that guard on their trailers. According to the manufacturers, in 
certain cases, either the trailers and/or the guard experienced 
structural damage when the guard was fitted to a trailer and subjected 
to the manufacturer's validation testing. The guard failed the 
validation test, in other words. In one case, the testing was limited 
to a floor endurance test as defined by the Truck Trailer Manufacturers 
Association (TTMA) Recommended Practice 37-07 (RP 37-07). The 
manufacturer reported that, while the guard-equipped trailer passed two 
of the three tests, it failed the overload portion. This manufacturer

[[Page 39901]]

has had three customer inquiries about SUGs in the past ten years. The 
manufacturer stated that at a customer's request it would install an 
SUG. One other manufacturer noted that it offers a prototypical side-
impact guard as optional equipment where specifications are consistent 
with a side-impact guard and it is determined the guard will not result 
in an unsafe condition.
    Multiple manufacturers also reviewed the IIHS crash test of the 
guard to which petitioners refer. Manufacturers expressed concerns over 
various aspects of testing. Manufacturer responses indicated that the 
trailer was not loaded in a typical manner, in that the load on the 
trailer was concentrated in the back instead of being evenly 
distributed across the entire floor (as it would be in a real-world 
operation). For comparison, FMVSS 223 testing for rear underride 
requires the test structure/trailer to be fixed so that it does not 
move. One manufacturer conducted a separate crash test of the guard on 
what it described as a properly loaded trailer, and noted the trailer 
was displaced approximately three inches (3'') compared to over one 
foot (12'') in the IIHS test scenario with the same make/model crash 
vehicle and impact speed. The manufacturer described that in the IIHS 
test, energy was dissipated when the trailer flexed and slid (reducing 
the amount absorbed by the guard). The manufacturer had reservations 
about performance of the guard, given that the weighting and loading 
criteria in the IIHS test was not the same as that used for IIHS rear-
impact tests, and also expressed concern about exposure to real-world 
conditions, including with regard to damage to the trailer and 
attendant safety risks. One manufacturer also noted that the IIHS test 
involved only a perpendicular impact at the center of the SUG. For 
comparison, FMVSS 223/224 requires testing along multiple locations of 
the rear guard. Crash data also shows a significant number of real-
world events involve collisions at acute and obtuse angles, and no such 
tests are known to have been conducted with this guard.
    The petitioners claim that since 2010, this guard has been 
installed on a small number of semi-trailers that logged over one 
million miles of use delivering loads without negative road clearance 
issues, structural deficiencies or issues with loading or unloading at 
docks. A manufacturer response indicated that this statement is based 
on one trailer operating a dedicated route. This is typical mileage for 
such an operation, as most trucks average 100,000 miles per year. A 
dedicated route means the trailer sees the same loading and unloading 
facilities and travels the same terrain. Furthermore, this manufacturer 
response stated that this unit is part of a multi-trailer fleet, and 
that the fleet has not added additional of these guards to the rest of 
its trailers.
    More broadly, certain manufacturers noted that SUGs may be 
compatible with some trailer and fleet operations, although there was 
the suggestion that a ``one size fits all'' approach is not possible in 
the U.S. commercial vehicle market, where vehicles are designed and 
purchased for specific operations or for versatility necessitated by 
the fleet's operation. Multiple manufacturers are working on SUG 
designs, and several manufacturers have filed patents for their 
designs, although trailer manufacturers pointed out challenges. One 
manufacturer noted it had not, to date, identified a feasible design to 
prevent underride while not compromising the structural or operational 
capabilities of the trailer. Another manufacturer developing a 
prototype observed that testing is scheduled, but cited potential 
material shortages and shipping delays. Furthermore, it appears there 
is a hesitancy on the part of at least some manufacturers in the 
industry to develop SUGs without research from NHTSA on their 
effectiveness and cost.
    NHTSA is authorized to issue an order requiring notification and 
remedy of a defect if the agency's investigation shows a defect in the 
design, construction, or performance of a motor vehicle that presents 
an unreasonable risk to safety. 49 U.S.C. 30102(a)(9), 30118. Factors 
the agency may consider when deciding whether to grant or deny a defect 
petition ``include, among others, allocation of agency resources, 
agency priorities and the likelihood of success in litigation which 
might arise from the order.'' 49 CFR 552.8. The above discussion 
illustrates that the complex issues that the petitioners present would 
benefit from additional information and data. NHTSA does not prescribe 
a specific remedy even where a safety defect is identified, but the 
agency may set performance standards for equipment--and recognizing a 
need for further research and evaluation of SUGs, Congress included in 
section 23011 of the Bipartisan Infrastructure Law (BIL) (November 15, 
2021) several provisions that relate to side underride issues.
    Among these is a requirement that the Secretary of Transportation 
``complete additional research on side underride guards to better 
understand the overall effectiveness of side underride guards'' and, 
``if warranted, develop performance standards for side underride 
guards.'' The Secretary is also required to publish findings of an 
assessment of the ``feasibility, benefits, and costs of, and any 
impacts on intermodal equipment, freight mobility (including port 
operations), and freight capacity associated with, installing side 
underride guards on newly manufactured trailers and semitrailers with a 
gross vehicle weight rating of 10,000 pounds or more,'' and after 
taking public comment, submit to Congress a report that includes, among 
other things, ``a determination as to whether the Secretary intends to 
develop performance requirements for side underride guards, including 
any analysis that led to that determination.'' In addition, the 
Secretary must establish an Advisory Committee on Underride Protection 
``to provide advice and recommendations to the Secretary on safety 
regulations to reduce underride crashes and fatalities relating to 
underride crashes.''
    Based on the available information and agency experience, ODI 
believes the issues raised by the petitioners are best addressed 
through the congressionally-directed evaluation of SUGs under section 
23011 of the BIL. As the issues presented by the petitioners are being 
addressed pursuant to such direction, NHTSA has decided not to open a 
defect investigation, and the petition is denied. The denial of this 
petition does not foreclose the agency from taking further action if 
warranted or making a future finding that a safety-related defect 
exists based upon additional information the agency may receive.
    Authority: 49 U.S.C. 30162(d); delegations of authority at CFR 1.95 
and 501.8.

Anne Collins,
Associate Administrator, Enforcement.
[FR Doc. 2022-14165 Filed 7-1-22; 8:45 am]
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