Motor Carrier Safety Standards: Parts and Accessories Necessary For Safe Operation; Lighting Devices, Reflectors, and Electrical Equipment



[FHWA Docket No. MC-94-1; FHWA-1997-2222]
RIN 2125-AD27

Citizens for Reliable and Safe Highways

September 9, 1998

CRASH submits these comments in response to the June 19, 1998 Federal Highways Administration (FHWA) request in its Notice of Proposed Rulemaking (NPRM) for comments related to the application of conspicuity treatments to trailers manufactured prior to December 1, 1993. December 1, 1993 was the effective date of the final rule 59 FR 2811 by the National Highway Traffic Safety Administration (NHTSA) on trailer conspicuity. CRASH applauds the FHWA for taking the initiative of extending retro-reflective taping requirements to all trailers. The FHWA poses specific questions in the NPRM that we address in these comments. The FHWA also makes a general request that the public submit comments, which are relevant to the rulemaking. In response to this general request, we have included comments, which reflect the perspective of CRASH members who have been personally affected by the conspicuity issue. It is imperative that those families and individuals who have suffered as a result of trucks' low visibility contribute to this rulemaking.

In the NPRM the FHWA states that, "it is generally difficult to identify a specific accident and state with certainty that the use of retro-reflective tape would have prevented the accident." Beth Hall, who lost her father Carl Hall, of Doylestown, Pennsylvania, on December 19, 1993, believes her father's crash was preventable. Carl Hall struck a tractor-trailer without retro-reflective tape markings that was backing across local Route 313 into a private driveway. Beth's brother Carl Hall, Jr. describes his father's death as, "senseless, needless and utterly irrevocable. If reflective tape or paint had been present on that trailer, he would be alive and with us today."

The FHWA estimates the safety benefits (fatalities and injuries prevented) and economic benefits (property damage prevented) that will result from retrofitting trailers manufactured before 1993 at $741 million. Over a ten-year period the new rule will prevent at least 258 fatalities and 4,224 injuries resulting from passenger cars colliding with inconspicuous trailers. In addition, this rule would prevent approximately 5,300 accidents that result in property damage. CRASH agrees with the FHWA that the safety benefits in terms of accidents prevented and lives saved far outweighs the economic burden on the motor carrier industry.

In fact the projected safety benefits of trailer conspicuity material that meets the NHTSA requirement are too low because many rear and side underride crashes caused by truck invisibility are not reported as such. Previous to 1994, FARS coded only catastrophic underride crashes with passenger compartment intrusion as "underride" in the Fatal Accident Reporting System (FARS). In 1994 the National Center for Statistics and Analysis (NCSA) within NHTSA changed FARS so that it would include underride without passenger compartment intrusion in the data elements. However, according to Insurance Institute for Highway Safety (IIHS), "these crashes are still being substantially undercounted." IIHS has shown that FARS reflects only a small portion of the fatal underride crashes recorded in independent databases such as NASS and CDS. A comparison of IIHS' estimated 248 rear fatal underride crashes each year from 1988 to 1993 to Nita’s estimate of 60 shows that FARS is undercounting rear underride fatalities by a factor of 4. The National Center for Statistics and Analysis has, "examined and confirmed the assertions made by IIHS." The benefits of taping trailers are higher than estimated by the FHWA.

The cost of applying tape to trailers is negligible compared to the lives it will save. If a motor carrier operates 20, 45-53 foot trailers and has annual receipts of $18.5 million, the total economic impact would be less than one-tenth of one percent of the private motor carrier's annual receipts. CRASH agrees with the Haw’s assessment that the proposed rule would not have a significant impact on large carriers. The economic impact on each of the motor carriers would vary depending on the number of trailers that the carrier would be responsible for retrofitting by the end of a 4-year phase-in period, and the size of those trailers. If a carrier only operates one 45-53 foot trailer, for example, the total economic impact would be $316. If the carrier operates 20 such trailers that have to be retrofitted, the total economic impact would be $6,320." The costs per trailer for small entities would be $263 for 28-foot trailers, $293 for 40-42 foot trailers, $316 for 45-53 foot trailers. It is extremely important to note that the costs would only apply to trailers that were manufactured before December 1, 1993, and have not already been retrofitted with red and white tape that would satisfy the proposed requirements. Furthermore, the costs would only be applicable if the companies intend to continue to operate these older trailers after the proposed four-year grace period.

Jennifer Tierney, who lost her father in a 1983 crash with a large truck, has a unique perspective on the cost-benefit ratio retrofitting has. "I have been working on this issue for two decades. Every time we have Christmas without my father, every time his birthday passes, I miss him. The industry has made one objection after another to doing this simple, cheap thing to make trucks safer. If we had gotten reflective tape onto all trailers by 1993, we could have prevented Carl Hall's death and hundreds of others.' We could have prevented losses in thousands of families."

"It is the responsibility of the FHWA to put safety first. We should not have to lobby our highway safety agencies for 20 years to convince them of the obvious fact that taped trucks are safer -- that is the agency's job. I see why they have to do cost-benefit analyses to justify a new rule to those who carry it out. Yet even if the benefits did not outweigh the costs of a safety rule -- which is far from the case with this issue -- the agency should put safety first. If motorists can see the trucks, they are less likely to hit them." Reflecting on her father's death, Jennifer Tierney says, "Is my dad worth $300 in retro-reflective tape and a couple hours to put it on? If I thought too long about someone seriously considering that question, I would go crazy."

The FHWA has shown in the NPRM that industry has inflated its estimates of what it will cost to retrofit trailers. The cost of retrofitting trailers that do not already have tape may be even lower than estimated by the FHWA. Landstar System, Inc. found an efficient way to rotate their trailers out of service for retrofitting and accomplished the task at a cost of $125 to $135 apiece. But even the cost per trailer estimated by the FHWA is small in comparison to the number of lives that the rule will save.

Trucking industry representatives have fought a federal requirement for taping trailers for decades, though the return on this investment in lives saved, prevented injuries, and prevented property damage is proportionally high. The industry's opposition is particularly distressing given that we cannot, as it claims, trust it to improve its own safety record. Large trucks are over-involved in fatal crashes per vehicle miles traveled by 53 percent. The national average for large-truck-related-fatalities was 2.6 per 100 million truck vehicle miles traveled in 1996; this compared to all motor vehicle fatalities measuring 1.7 deaths per 100 million vehicles miles traveled (vmt). Of the fatalities that resulted from crashes involving large trucks (gross vehicle weight greater than 10,000 pounds), 79 percent were occupants of another vehicle, 8 percent were non-occupants, and 12 percent were occupants of a large truck. In 1996, 296,000 crashes involving large trucks caused property damage at a rate of 162 per 100 million vehicle-miles traveled. These numbers have varied only slightly from year to year since 1978.

It is with this safety record in mind that CRASH recommends a post-rule taping period of four years or less. Millions of trailers that will be affected by this rule travel the roadways each year. A measure that will make these trailers substantially safer by making them more visible at night and during inclement weather should be a priority. The amount of time estimated by the FHWA that trailer will be out of service while tape is applied is minuscule. Tierney states on this issue, "waiting ten years for trailers to become defunct is too long. I've been hammering away on this issue for decades, and another ten years is intolerable. For each year that the FHWA extends the grace period, dozens of people will crash into trucks they cannot see." *The FHWA proposes allowing the use of alternative colors during a 10-year period and regulatory language that "encourages," but does not require, motor carriers to retrofit their trailers with a conspicuity system that meets all of the requirements applicable to trailers manufactured on or after December 1, 1993, including the use of retro-reflective sheeting or reflex reflectors in a red and white pattern. Motor carriers that do not retrofit their trailers to the NHTSA standard (for example by using an alternative color pattern) during the 10-year period would be required to comply with FHWA's rules concerning the locations and colors. The FHWA should require that trailer owners install conspicuity treatments in locations consistent with the NHTSA standards under Federal Motor Vehicle Safety Standards (FMVSS) No. 108.

CRASH is against allowing alternate colors and patterns of tape despite our sympathy with the FHWA's observation that the safety-conscious companies who outfitted their trailers with conspicuity treatments on their trailers in the mid-80's seem to be penalized. If the carriers in question are safety conscious, they will embrace the opportunity to make their trucks safer. CRASH disagrees with the FHWA that requiring such carriers to install new tape will have the effect of discouraging motor carriers from exploring innovative approaches to improving safety. The cost involved in replacing the tape is, as the FHWA accurately states in the NPRM, "negligible." CRASH disagrees with FHWA's claim that it would be, "inappropriate to immediately prohibit the use of other colors of conspicuity material on trailers manufactured prior to December 1, 1993, because it would require motor carriers to remove reasonable conspicuity treatments of other colors from older trailers. Such a regulation would penalize motor carriers who had taken steps to retrofit their vehicles prior to the establishment of Federal standards." Retro-reflective tape applied in the way the NHTSA's final rule stipulates is one of the most obvious ways to start making improvements in the safety record of the trucking industry. If the trucking industry wants to lower the number of deaths each year due to crashes with large trucks in the least expensive way, it should seize this opportunity.

The proposed rule would not only improve safety for passenger car occupants on the road; it would help to protect and serve company truck drivers. The comments submitted by the Owner Operator Independent Driver Association (OOIDA) to the ANPRM, among other comments, highlight some benefits. Truck drivers fatigued from long hours at the wheel have as much trouble distinguishing the back of a trailer parked in a dark area of a truck stop as a car driver. Truck drivers are safer on the job if cars strike trucks less often. This is especially so if a truck driver is sleeping in a berth or making a repair en route. Too many accident reports indicate that car drivers did not see the trailer that they hit until moments before impact; this is indicated by the brake-marks beginning a few feet before the point of impact.

Data in the NPRM itself highlights the importance of a short grace period for taping. The FHWA has acknowledged that retro-reflective tape could lead to a 25 percent reduction in rear end collisions and a 15 percent reduction in side impact collisions (we argue that IIHS data reveals that NHTSA's estimates are much too low, so the benefit of retrofitting will be substantially higher). According to NHTSA, tractor-trailer combinations are involved annually in about 11,000 accidents in which they were struck in the side or rear at night. Within this group of accidents, about 8,700 injuries and about 540 fatalities occurred. NHTSA indicated that the conspicuity requirements, when fully implemented, will prevent 2,113 of these accidents per year. 1,315 fewer injuries and about 80 fewer fatalities would occur. The ratio of lives saved to costs incurred is higher the sooner trailers are retrofitted with red and white tape in the pattern specified in NHTSA's final rule. Four years is ample time for carriers to rotate each trailer out of service for the few hours required to remove old tape and apply new tape.

CRASH is against a rule that allows the use of non-red-and-white patterned retro-reflective tape on older trailers instead of the red and white pattern that proved most conspicuous is controlled tests. The color schemes and levels of reflectivity of the tape used on the older trailers differing from the NHTSA requirements for trailers manufactured on or after December 1, 1993 are not the most visible, and hence not the safest. NHTSA's controlled tests resulted in observations that clearly showed a certain combination of colors in a certain pattern yielded the most visible results. The object of the rule that the FHWA is considering is to prevent rear and side underride crashes into trailers. The FHWA should not pass a rule that allows trailers to move with sub optimal conspicuity treatments because the motoring public must share the road with large trucks -- vehicles up to sixty times the mass of a passenger vehicle -- and are at risk from these vehicles in proportion to their visibility.

Moreover, requiring that all trailers have the same conspicuity treatments is that enforcement will be simplified. All trailers should conform to the red and white pattern at the same intensity level described in NHTSA's final rule 57 FR 58413-17. NHTSA's research shows that the high-reflectivity red and white pattern (using a 3 to 2 ratio of red to white) was the only configuration that received high rankings during both daytime and nighttime conditions. According to the FHWA's own summary, "the next best patterns, in terms of the test subjects' reactions, were high-reflectivity blue and white, and green and white (using 3 to 2 ratio of the darker color to the white) . . . While the findings indicate the red and white pattern was the most effective in terms of hazard." The FHWA states in the NPRM that NHTSA's findings do not, "imply that other color schemes or patterns had no value or effect." We readily agree that other color schemes or patterns may have some value or effect, but it is clear from NHTSA's findings that the value and effects are lower than the patterns and colors specified in the final rule. Analogously, blue or green or yellow brake lights on cars would presumably have some desirable effect on following drivers; however, non-standardized brake light color would be a disaster for highway safety.

The only patterns of tape should be red and white for the reasons FHWA itself points out. "A red and white pattern was chosen for standardization because it was already commonly associated with danger. This color combination is widely recognized and associated with highway hazard warning signs such as stop signs and railroad grade crossing gates." Highway users most often identify red on the back of other vehicles as an indication to stop, as with taillights. Cars have three taillights. All three are red because red is the color to which people are conditioned to respond with caution. Green, blue, yellow tape should not be allowed because they are colors that denote specific kinds of warnings or signals. There might be some safety benefit in motorists seeing, say, two red brake lights and some third green brake lights, but the effect would be sub optimal because of the specific uses of green. Tractor trailers with red brake lights and green or blue or yellow taping sends an ambiguous, sub optimal message to the approaching motorist. Moreover, taping trucks with variations on the red and white scheme will dilute the significance of green, yellow, orange, etc. when they appear elsewhere. The result of using color schemes other than standardized red and white will thus have two negative effects on safety.

The FHWA states in the NPRM that, it "is not proposing to allow the use of logos in lieu of retro-reflective material in the locations specified in FMVSS No. 108. However, logos may be used in addition to the retro-reflective material." However, it is CRASH's view that adding more reflective material near the markings will dilute the effect of the required markings; hence making the rule impose costs while not providing full safety benefits. The FHWA itself states in "Redesign and Evaluation of Selected Work Zone Sign Symbols," "in recent years symbolic designs have been used to improve the communication ability of traffic signs. Symbols have the advantage of being able to convey messages . . . Most symbols have become well known and readily understood. However, certain symbols, because of their infrequent use or abstract meaning, do not serve their intended purpose." Allowing alternate colors and patterns of taping will undermine the intended symbolic meaning of red and white stripes on the corners of trailers. Repeated exposure to alternate colors and patterns of taping by motorists will mean that the red and white stripe pattern has no special meaning at all, since it competes with numerous others for symbolic representation of the message, "this is the rear or side of a semi." In low light or low visibility conditions, reaction time is crucial to avoiding accidents. It is reasonable to infer from the data presented by the FHWA that the alternate patterns of taping will mean that as a motorist approaches a trailer taped with red and yellow, blue and white, or green and purple, etc. taping, recognition of the object taped will be delayed because the meaning of the tape is ambiguous.

We wish to respond to a particularly outrageous claim made by the American Trucking Association with respect to projected taping costs. The ATA states that, "with 3.8 million trailers on America's highways, the total cost of a federal mandate will exceed $1 billion. This figure includes costs for conspicuity materials, labor costs for preparing the trailers and applying the materials, and loss of use of trailer productivity while [the trailer is] being prepared/repaired and retrofitted." The ATA's estimate is dramatically different than FHWA's own and clearly implausible. As the FHWA aptly points out, the ATA's estimate is the worst case scenario; that is, it would apply only in cases in which a vehicle that has not been cleaned on a regular basis. Few trucks even in the category of flatbed and heavy hauler trailers would fit this description, hence for most motor carriers the $1,100 in repairs estimated necessary by the ATA would not apply. NHTSA estimates the cost of tape per foot of tape to $1.29 in its final regulatory evaluation. According to NHTSA, "The amount of tape required to retrofit a trailer varies with its size. For example, a 28-foot trailer would need 47 feet of tape: 14 feet of material per side (because the rule would require that at least 50 percent of the length of the trailer must be covered)."

The ATA also states that "there are already market forces pressuring motor carriers to retrofit their trailers with conspicuity materials and that a retrofitting rule is not necessary." Beth Hall's view is that the ATA has a conflict of interest in estimating the benefit of applying tape to trailers owned by their members. "We have a federal agency to decide what is safe because companies seldom think long term. Even though it has prevented costly crashes, hours of service regulations are constantly under attack by the industry, for example. Most companies trying to turn a profit think short term; that means cutting out any expenses possible, including retro-reflective tape," Beth said, "that's why so few trucks had tape prior to 1993!" CRASH considers the NHTSA's research results to be reliable indicators of the safety benefits of retro-reflective materials in preventing passenger cars from crashing into the sides or rear of trailers. The ATA has identified flaws in the research methodology for the NHTSA research on conspicuity effects of various taping patterns and colors performed between 1980 and 1985, or the work performed between 1990 and 1991. As the FHWA aptly points out, trucking "industry representatives claim that they have not experienced any benefits from using retro-reflective tape, but such a claim is unwarranted because it is the result neither of controlled test conditions nor unbiased observation."

The ATA argues in the NPRM that no federal rule is required on conspicuity taping because the ATA's manual on recommended practice, Large Vehicle Conspicuity Markings, RP 722, recommends that carriers apply retro-reflective tape to trailers. CRASH concurs with the FHWA that such a publication has no relevance to this rulemaking since motor carriers are not required to comply with the recommended practice. The FHWA has aptly noted that summary observations of trailers currently in use reveals that a large number of motor carriers are, "either unaware of the ATA's recommended practice, or have chosen to ignore the recommendation." The large number of untreated trailers also suggests that the market forces that the ATA argues will push carriers to voluntarily apply retro-reflective tape have not, in fact, had any such effect.

CRASH agrees with the FHWA's statement that, "in response to the commenter who argues that the problem of passenger cars crashing into trailers is not severe enough to warrant a retrofitting requirement, the FHWA believes that the number of these collisions indicates that motorists have a major problem recognizing trailers at night and under other conditions of reduced visibility." The number of accidents, fatalities and injuries resulting from inconspicuous truck trailers demands a remedy. FARS data for 1994 indicates that nighttime collisions in which the passenger vehicle struck the side of a trailer at an angle resulted in 140 fatalities. FARS data for 1995 indicates that nighttime collisions in which the passenger vehicle struck the side of a trailer at an angle resulted in 136 fatalities. There were 200 nighttime crashes involving a passenger vehicle rear-ending a trailer. The result was 224 fatalities. Given NHTSA's findings regarding the improved visibility of trailers bearing red and white striped taping and the number of accidents, fatalities, injuries, and property damage associated with accidents resulting from inconspicuous trucks, it is clear that safety will improve if red and white stripes of tape are applied in a way consistent with NHTSA's 1993 final rule.

CRASH agrees with the recommendation by Advocates for Highway and Auto Safety that the retrofitting requirements established in a final rule by the FHWA apply to Canadian and Mexican vehicles. CRASH also advocates that the FHWA rule should apply not only to all trailers and semi-trailers manufactured prior to December 1, 1993, which have an overall width of 2,032 mm (80 inches) or more and a gross vehicle weight rating of 4,536 kg (10,001 pounds) or more, but also to single unit trucks. The FHWA claims that no one has provided data to prove that a retrofitting requirement for single-unit trucks would be a cost-effective solution to the problem of passenger vehicles colliding with single-unit trucks. The data is already presented in the FHWA notice; the same data that shows tractor-trailers are more visible with red and white tape on them proves that single unit trucks would be more visible with red and white tape on them.

The FHWA states in the NPRM that, "the 1995 nighttime accident statistics indicate that the frequency with which passenger vehicles strike the rear of trailers is double the frequency with which passenger vehicles strike the rear of single-unit vehicles. The frequency with which passenger vehicles strike the side of a combination vehicle is approximately 2.6 times the frequency with which passenger vehicles strike the side of a single-unit vehicle. The FARS data for 1995 show that frequency of fatal nighttime accidents involving a passenger vehicle striking the side of a combination vehicle is almost seven times the rate at which passenger vehicles strike the side of a single-unit commercial motor vehicle. The frequency of fatal nighttime accidents involving a passenger vehicle rear-ending a combination vehicle is four times the rate at which passenger vehicles strike the rear of a single-unit commercial motor vehicle.

As the FHWA itself states, "The difference between the nighttime accident involvement for combination vehicles and single-unit vehicles is especially important because the number of registered single-unit trucks (4,219,920) is 2.63 times the number of combination trucks (1,607,183). Therefore, combination vehicles represent approximately 27 percent of the fleet, but 70 percent (4,734 out of 6,761 cases) of nighttime accidents in which a passenger car struck the side or rear of a commercial motor vehicle. Looking at the fatal nighttime accidents, combination vehicles were involved in 82 percent (315 out of 382 cases) of the incidents in which a passenger vehicle struck the side or rear of a commercial motor vehicle. Based upon this data, the FHWA has decided to limit this rulemaking to semi-trailers and trailers." With this in mind, CRASH recommends that the period during which companies retrofit their older trailers extend no more than 4 years beyond the publication date of the final rule, and disallow the use of non-standard taping in place of the red and white pattern described by NHTSA in the final rule final rule 59 FR 2811.