[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



 
                         EVALUATING THE EFFECTIVENESS OF
                       DOT'S TRUCK AND BUS SAFETY PROGRAM
=======================================================================

                               (112-104)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                          HIGHWAYS AND TRANSIT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               ----------                              

                           SEPTEMBER 13, 2012

                               ----------                              

                       Printed for the use of the
             Committee on Transportation and Infrastructure







                    EVALUATING THE EFFECTIVENESS OF
                   DOT'S TRUCK AND BUS SAFETY PROGRAM












                    EVALUATING THE EFFECTIVENESS OF
                   DOT'S TRUCK AND BUS SAFETY PROGRAM

=======================================================================

                               (112-104)

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                          HIGHWAYS AND TRANSIT

                                 OF THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 13, 2012

                               __________

                       Printed for the use of the
             Committee on Transportation and Infrastructure


         Available online at: http://www.gpo.gov/fdsys/browse/
        committee.action?chamber=house&committee=transportation

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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                    JOHN L. MICA, Florida, Chairman

DON YOUNG, Alaska                    NICK J. RAHALL II, West Virginia
THOMAS E. PETRI, Wisconsin           PETER A. DeFAZIO, Oregon
HOWARD COBLE, North Carolina         JERRY F. COSTELLO, Illinois
JOHN J. DUNCAN, Jr., Tennessee       ELEANOR HOLMES NORTON, District of 
FRANK A. LoBIONDO, New Jersey        Columbia
GARY G. MILLER, California           JERROLD NADLER, New York
TIMOTHY V. JOHNSON, Illinois         CORRINE BROWN, Florida
SAM GRAVES, Missouri                 BOB FILNER, California
BILL SHUSTER, Pennsylvania           EDDIE BERNICE JOHNSON, Texas
SHELLEY MOORE CAPITO, West Virginia  ELIJAH E. CUMMINGS, Maryland
JEAN SCHMIDT, Ohio                   LEONARD L. BOSWELL, Iowa
CANDICE S. MILLER, Michigan          TIM HOLDEN, Pennsylvania
DUNCAN HUNTER, California            RICK LARSEN, Washington
ANDY HARRIS, Maryland                MICHAEL E. CAPUANO, Massachusetts
ERIC A. ``RICK'' CRAWFORD, Arkansas  TIMOTHY H. BISHOP, New York
JAIME HERRERA BEUTLER, Washington    MICHAEL H. MICHAUD, Maine
RANDY HULTGREN, Illinois             RUSS CARNAHAN, Missouri
LOU BARLETTA, Pennsylvania           GRACE F. NAPOLITANO, California
CHIP CRAVAACK, Minnesota             DANIEL LIPINSKI, Illinois
BLAKE FARENTHOLD, Texas              MAZIE K. HIRONO, Hawaii
LARRY BUCSHON, Indiana               JASON ALTMIRE, Pennsylvania
BILLY LONG, Missouri                 TIMOTHY J. WALZ, Minnesota
BOB GIBBS, Ohio                      HEATH SHULER, North Carolina
PATRICK MEEHAN, Pennsylvania         STEVE COHEN, Tennessee
RICHARD L. HANNA, New York           LAURA RICHARDSON, California
JEFFREY M. LANDRY, Louisiana         ALBIO SIRES, New Jersey
STEVE SOUTHERLAND II, Florida        DONNA F. EDWARDS, Maryland
JEFF DENHAM, California
JAMES LANKFORD, Oklahoma
REID J. RIBBLE, Wisconsin
CHARLES J. ``CHUCK'' FLEISCHMANN, 
Tennessee
VACANCY

                                  (ii)

  


                  Subcommittee on Highways and Transit

                JOHN J. DUNCAN, Jr., Tennessee, Chairman

DON YOUNG, Alaska                    PETER A. DeFAZIO, Oregon
THOMAS E. PETRI, Wisconsin           JERROLD NADLER, New York
HOWARD COBLE, North Carolina         BOB FILNER, California
FRANK A. LoBIONDO, New Jersey        LEONARD L. BOSWELL, Iowa
GARY G. MILLER, California           TIM HOLDEN, Pennsylvania
TIMOTHY V. JOHNSON, Illinois         MICHAEL E. CAPUANO, Massachusetts
SAM GRAVES, Missouri                 MICHAEL H. MICHAUD, Maine
BILL SHUSTER, Pennsylvania           GRACE F. NAPOLITANO, California
SHELLEY MOORE CAPITO, West Virginia  MAZIE K. HIRONO, Hawaii
JEAN SCHMIDT, Ohio                   JASON ALTMIRE, Pennsylvania
CANDICE S. MILLER, Michigan          TIMOTHY J. WALZ, Minnesota
ANDY HARRIS, Maryland                HEATH SHULER, North Carolina
ERIC A. ``RICK'' CRAWFORD, Arkansas  STEVE COHEN, Tennessee
JAIME HERRERA BEUTLER, Washington    LAURA RICHARDSON, California
LOU BARLETTA, Pennsylvania           ALBIO SIRES, New Jersey
BLAKE FARENTHOLD, Texas              DONNA F. EDWARDS, Maryland
LARRY BUCSHON, Indiana               EDDIE BERNICE JOHNSON, Texas
BILLY LONG, Missouri                 ELIJAH E. CUMMINGS, Maryland
BOB GIBBS, Ohio                      NICK J. RAHALL II, West Virginia
RICHARD L. HANNA, New York, Vice       (Ex Officio)
Chair
STEVE SOUTHERLAND II, Florida
JOHN L. MICA, Florida (Ex Officio)
VACANCY

                                 (iii)




                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................   vii

                               TESTIMONY

Anne Ferro, Administrator, Federal Motor Carrier Safety 
  Administration.................................................     5
Steve Owings, President and Cofounder, Road Safe America (RSA)...     5
David L. Palmer, Assistant Chief, Texas Department of Public 
  Safety, on behalf of the Commercial Vehicle Safety Alliance 
  (CVSA).........................................................     5
Scott A. Mugno, Vice President of Safety, Fedex Ground Package 
  System, Inc., on behalf of the American Trucking Associations 
  (ATA)..........................................................     5
Ruby L. McBride, Vice President of Corporate Systems, Colonial 
  Freight Systems, Inc., on behalf of the Alliance for Safe, 
  Efficient and Competitive Truck Transportation (ASECTT)........     5
Bruce Johnson, Director of Carrier Services, C.H. Robinson, on 
  behalf of the Transportation Intermediaries Association (TIA)..     5
William Gentry, President, Gentry Trailways, on behalf of the 
  American Bus Association and United Motorcoach Association.....     5

           PREPARED STATEMENT SUBMITTED BY MEMBER OF CONGRESS

Hon. Nick J. Rahall II, of West Virginia.........................    49

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Anne Ferro.......................................................    51
Steve Owings.....................................................    69
David L. Palmer..................................................    76
Scott A. Mugno...................................................    88
Ruby L. McBride, including ASECTT's position paper and appendices 
  A-G............................................................    98
Bruce Johnson....................................................   202
William Gentry, including supplemental material provided by the 
  United Motorcoach Association..................................   214

                       SUBMISSIONS FOR THE RECORD

Hon. Nick J. Rahall II, a Representative in Congress from the 
  State of West Virginia, request to submit statement for the 
  record of Todd Spencer, Executive Vice President, Owner-
  Operator Independent Drivers Association.......................    23
Anne Ferro, Administrator, Federal Motor Carrier Safety 
  Administration, responses to questions from:

        Hon. John J. Duncan, Jr., a Representative in Congress 
          from the State of Tennessee............................    65
        Hon. Sam Graves, a Representative in Congress from the 
          State of Missouri......................................    67
        Hon. Bill Shuster, a Representative in Congress from the 
          State of Pennsylvania..................................    67
Commercial Vehicle Safety Alliance (CVSA), statement for the 
  record.........................................................   233
Ruby L. McBride, Vice President of Corporate Systems, Colonial 
  Freight Systems, Inc., on behalf of the Alliance for Safe, 
  Efficient and Competitive Truck Transportation (ASECTT), 
  request to submit:

        Additional information...................................   238
        Irwin Shires, Panther Expedited Services, Inc., 
          ``Position Paper on Percentile Scoring in SMS 
          Methodology,'' September 26, 2012......................   245
        Chart of actual groupings of carriers in the unsafe 
          driving category of BASIC..............................   247

                        ADDITIONS TO THE RECORD

Cynthia Hilton, Executive Vice President, Institute of Makers of 
  Explosives, letter to Hon. John J. Duncan, Jr., and Hon. Peter 
  A. DeFazio, September 10, 2012.................................   250
John Lannen, Executive Director, Truck Safety Coalition, letter 
  to Hon. John J. Duncan, Jr., and Hon. Peter A. DeFazio, October 
  3, 2012, and five case studies which provide examples of 
  incorrect and incomplete Police Accident Reports...............   257
Lee Brown, Executive Director, California Construction Trucking 
  Association and its interstate conference, Western Trucking 
  Alliance, statement for the record.............................   288
National Association of Small Trucking Companies, statement for 
  the record.....................................................   292
Roy Crawford, P.E., Fellow of the National Academy of Forensic 
  Engineers; and Kentucky and West Virginia Volunteer 
  Coordinator, Truck Safety Coalition; and Administrator, 
  Underride Network, request to submit:

        Letter to Hon. John J. Duncan, Jr., and Hon. Peter A. 
          DeFazio, a Representative in Congress from the State of 
          Oregon, October 1, 2012................................   297
        Police Accident Report from the fatal truck collision of 
          Mr. Crawford's son, Guy................................   300
        Roy Crawford, P.E., National Academy of Forensic 
          Engineers, ``The Reconstruction of Eastern Kentucky 
          Rear Coal Truck Crashes,'' June 1999...................   302
Snack Food Association, statement for the record.................   313

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                    EVALUATING THE EFFECTIVENESS OF
                   DOT'S TRUCK AND BUS SAFETY PROGRAM

                              ----------                              


                      THURSDAY, SEPTEMBER 13, 2012

                  House of Representatives,
              Subcommittee on Highways and Transit,
            Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:00 a.m. in 
room 2167, Rayburn House Office Building, Hon. John J. Duncan, 
Jr. (Chairman of the subcommittee) presiding.
    Mr. Duncan. We are going to go ahead and call this hearing 
to order today. The subcommittee is convening to receive 
testimony from the Federal Motor Carrier Safety Administration, 
the trucking and bus industry, law enforcement officials, and 
safety advocates on the Administration's Compliance, Safety, 
Accountability program, or what is commonly referred to as CSA. 
I think everyone will agree that decreasing fatalities and 
injuries resulting from truck and bus crashes is the most 
important goal the Federal Motor Carrier Safety Administration 
is charged with.
    With this goal in mind, FMCSA implemented CSA in December 
of 2010. CSA was designed to maximize the agency's resources by 
compiling carrier violations from inspections and crash reports 
in order to determine the future crash risk of a truck or bus 
company. This data is used to create a type of safety profile 
for truck and bus companies so consumers can make educated 
choices when selecting companies.
    However, in July of last year, I spoke to a group that is a 
member of the Alliance for Safe, Efficient and Competitive 
Truck Transportation, and I heard numerous people from around 
the Nation who raised concerns related to the methodology used 
in CSA, specifically in the Safety Measurement System, or what 
is referred to as SMS. Some of these concerns arise from the 
fact that 40 percent of the 500,000 active truck and bus 
companies generate a score in at least 1 of the 7 SMS 
categories, which are called ``BASICs.'' The number of 
companies that generate a score in all BASICs is unknown. A 
comprehensive understanding of a carrier's safety is difficult 
to achieve with this lack of data.
    In addition, not all States report every violation to 
FMCSA, so the SMS methodology is only as good as the data 
flowing into the system. These data problems present a 
significant challenge for small trucking companies, in 
particular, which make up the majority of commercial motor 
vehicles. Since many of these small companies generate little 
or no data into the SMS, their scores can fluctuate 
dramatically. And the small companies that generate no score 
are misconceived sometimes as being unsafe.
    Questions have also been raised over the relationship of 
some violations and whether they are indicators of future crash 
risk. Scores generated in certain BASICs may not have the core 
relation to future crash risk, and may inadvertently focus 
FMCSA's enforcement measures on the wrong carriers. Problems 
also sometimes result in companies becoming more vulnerable to 
lawsuits than they should be.
    Shippers and brokers are also left wondering how to 
evaluate the safety fitness of carriers with a score in only 
one BASIC, or no score at all. Recent court rulings have 
established duty of reasonable care requirements that brokers 
and shippers must meet when hiring a carrier in order to avoid 
negligent hiring lawsuits. Brokers and shippers are now in the 
position to determine whether a carrier is sufficiently safe to 
hire, based on incomplete or misleading scores. And this 
sometimes results in wrong or unfair decisions in that regard.
    The intentions behind CSA are good, but it is not a perfect 
system. We are holding this hearing today to identify where we 
can improve CSA and how we can reduce fatalities and injuries 
while keeping the engine of our economy moving. This country 
could be booming beyond belief today if we would allow it to do 
so. But in many ways we are holding it back through over-
regulation of different types.
    I hope this hearing will help Members and interested 
parties better understand these concerns that have been raised 
from around the country, and generate proposals to make CSA a 
more effective tool.
    I want to thank all of the witnesses for taking time out of 
their busy schedules to be here with us today. I want to say on 
a personal note that in my 24 years in Congress I think I have 
participated probably in maybe 1,000 hearings, congressional 
hearings. In only a very small number of those have we had one 
witness from Tennessee. In this--and only about five or six 
witnesses have ever been from my particular district. But on 
this very distinguished panel of seven people I have two 
witnesses here not only from Tennessee, but two of whom are 
from my district, and both of whom happen to be personal 
friends of mine: Ruby McBride and Bill Gentry. And they are 
both very active in our community and are very respected 
people, not only in business, but in civic and cultural 
affairs. And it is certainly an honor and a privilege for me to 
have two of my most distinguished constituents here. I tell 
people all the time I have 750,000 bosses. I have got two of my 
main bosses here today.
    With that, we are--I am very pleased and honored--we also 
have the ranking member of the full committee, my friend 
Congressman Rahall from West Virginia, here. And I would like 
to turn to him for any comments he wishes to make at this time.
    Mr. Rahall. Thank you very much, Mr. Chairman, and thank 
you for conducting this oversight hearing on the Federal Motor 
Carrier Safety Administration's motor carrier safety program. 
Certainly advancing safety on our highways is a paramount 
concern of all involved, from those who get behind the wheel, 
to local law enforcement, to Federal regulators.
    In this regard, a decision was made during the George W. 
Bush administration to move away from the resource-intensive 
and ultimately inadequate strategy of relying on compliance 
reviews to the development of the compliance, safety, and 
accountability system--in essence, a technological leap similar 
to the move away from the corded wall phone to the smart phone.
    Today, however, 8 years after CSA started to emerge as a 
new enforcement and compliance model, the question remains just 
how smart is GSA--CSA, sorry. While the old adage of ``garbage 
in, garbage out'' does not completely apply here, there are 
questions about the reliability and integrity of the data 
utilized under CSA's safety management system and the effect of 
the scores that it assigns to trucking companies and 
independent truckers with respect to their relationship with 
freight brokers, shippers, and insurers.
    I would also note, in conclusion, that this entire system 
has been and continues to be developed without formal 
rulemakings. Collaborative efforts are to be applauded, 
certainly. But there are some issues which more properly lend 
themselves to a rulemaking process so that the public has the 
opportunity to formally comment.
    Again, I thank you, Mr. Chairman, for this hearing. And I 
look forward to the witnesses' testimony today.
    Mr. Duncan. Thank you very much. I understand Mr. Crawford 
does not wish to make an opening statement. Mr. Holden doesn't, 
either. Ms. Richardson, do you want to? Mr.--well, thank you 
very much. Mr. Cummings, I understand, wants to make a 
statement----
    Mr. Cummings. Thank you very much, Mr. Chairman. I will be 
brief. Chairman Duncan, Ranking Member DeFazio, for convening--
I want to thank you for convening this hearing to examine the 
safety of commercial vehicles on our Nation's roadways.
    Deaths from accidents involving large commercial vehicles 
have fallen. Administrator Ferro's testimony records the 
decline as 26 percent from 2006 to 2010. That said, 
approximately 100,000 people are still injured annually in 
crashes involving commercial vehicles, while thousands more die 
in such accidents. Any death or injury is one too many. And, 
therefore, I look forward to learning today what more can be 
done to reduce these numbers.
    Our hearing will focus on the Federal Motor Carrier Safety 
Administration's new compliance, safety, and accountability 
system, which is intended to give the FMCSA a wide and deep 
overview of safety in the commercial vehicle industry to enable 
it to identify firms that are not compliant with regulations 
and that pose a safety risk. This system relies on assessments 
of a firm's performance in seven categories called the Behavior 
Analysis and Safety Improvement Categories, or the BASICs. 
There appears to be ongoing debate about how data is collecting 
to populate the BASIC assessments, and on how certain data is 
weighed and scored.
    I look forward to the hearing from--I look forward to 
hearing from today's witnesses on the data collection process 
can be improved, and how we can ensure that the assessments 
made through the BASIC process more accurately identify the 
risks posed by individual carriers. That said, any refinements 
must be informed by objective studies and analysis, and must 
not be allowed to undermine what appear to be the clear 
benefits of the use of the CSA system, which has demonstrably 
expanded the FMCSA's reach over the commercial vehicle 
industry, as well as the extent of the data it is able to 
assess.
    After implementation of the CSA system, violations 
identified through roadside inspections have fallen, and 
studies have found that carriers that have unacceptable scores 
in BASIC assessments such as unsafe driving and fatigued 
driving have higher crash risks, a finding that confirms the 
system is able to properly identify those carriers that pose 
high risks on our Nation's highways.
    I look forward to hearing from today's witnesses, 
particularly Mr. Ferro--Ms. Ferro, the former administrator of 
the Maryland Motor Vehicle Administration. And with that, I 
yield back.
    Mr. Duncan. Thank you very much. Mr. Shuster, would you 
like to--all right. Mr. Boswell, you wish to make an opening 
statement?
    Mr. Boswell. I do want to participate when we get the panel 
going.
    Mr. Duncan. All right.
    Mr. Boswell. But I think I will hold on that so we can move 
forward.
    Mr. Duncan. We will be joined by other Members. But we will 
not have any other opening statements, except for I understand 
that the ranking member of the subcommittee, Mr. DeFazio, is on 
his way.
    We have a very distinguished panel, and we have Ms. Anne 
Ferro, who is the administrator of the Federal Motor Carrier 
Safety Administration; Mr. Steve Owings, who is the cofounder 
of Road Safe America; Mr. David Palmer, who is assistant chief 
of the Texas Department of Public Safety; Mr. Scott A. Mugno, 
who is the vice president of safety for FedEx Ground; Ms. Ruby 
McBride, who is vice president of corporate systems for 
Colonial Freight Systems on behalf of the Alliance for Safe, 
Efficient and Competitive Truck Transportation; Mr. Bruce 
Johnson, director of carrier services for C.H. Robinson; and 
Mr. Bill Gentry, who is president of Gentry Trailways, 
testifying on behalf of the American Bus Association and the 
United Motorcoach Association.
    We appreciate all of you being here, and your full 
statements will be placed in the record. We do ask that you try 
to limit your opening statements to 5 minutes. If you run a 
little bit over, that is all right, but roughly that amount of 
time.
    And we will now be pleased to hear from Administrator 
Ferro.

 TESTIMONY OF ANNE FERRO, ADMINISTRATOR, FEDERAL MOTOR CARRIER 
 SAFETY ADMINISTRATION; STEVE OWINGS, PRESIDENT AND COFOUNDER, 
  ROAD SAFE AMERICA (RSA); DAVID L. PALMER, ASSISTANT CHIEF, 
TEXAS DEPARTMENT OF PUBLIC SAFETY, ON BEHALF OF THE COMMERCIAL 
VEHICLE SAFETY ALLIANCE (CVSA); SCOTT A. MUGNO, VICE PRESIDENT 
OF SAFETY, FEDEX GROUND PACKAGE SYSTEM, INC., ON BEHALF OF THE 
  AMERICAN TRUCKING ASSOCIATIONS (ATA); RUBY L. MCBRIDE, VICE 
PRESIDENT OF CORPORATE SYSTEMS, COLONIAL FREIGHT SYSTEMS, INC., 
 ON BEHALF OF THE ALLIANCE FOR SAFE, EFFICIENT AND COMPETITIVE 
   TRUCK TRANSPORTATION (ASECTT); BRUCE JOHNSON, DIRECTOR OF 
       CARRIER SERVICES, C.H. ROBINSON, ON BEHALF OF THE 
 TRANSPORTATION INTERMEDIARIES ASSOCIATION (TIA); AND WILLIAM 
GENTRY, PRESIDENT, GENTRY TRAILWAYS, ON BEHALF OF THE AMERICAN 
       BUS ASSOCIATION AND UNITED MOTORCOACH ASSOCIATION

    Ms. Ferro. Chairman Duncan, Ranking Member Rahall, members 
of the subcommittee, thank you for the opportunity today to 
discuss how the Federal Motor Carrier Safety Administration's 
improved compliance and enforcement model is furthering highway 
safety. That model is known as Compliance, Safety, 
Accountability, or CSA, for short, as the chairman indicated.
    America's roads and highways are safer today than they have 
ever been. In fact, as Congressman Cummings indicated, truck-
related deaths were reduced 26 percent between 2006 and 2010. 
And this is good news. It is the result of very deliberate 
action and hard work by a number of stakeholders on this issue, 
some of whom are here in this room today.
    But the fact is our roads can, and they must, be safer. 
Almost 4,000 people die, and over 100,000 people are injured in 
large truck and bus crashes each year. While trucks make up 5 
percent of all registered vehicles, 10 percent of all vehicle 
miles traveled, they account for 12 percent of all fatal 
crashes.
    CSA is FMCSA's safety enforcement platform designed to 
improve compliance and safety in truck and bus operations so 
crashes can be prevented. It is a safety performance 
measurement system that analyzes inspection and crash data to 
help us identify and focus our resources on the higher risk 
carriers. The purpose of the program is to improve our ability 
to help all stakeholders prevent crashes and save lives.
    CSA is a three-part program. It is a system, a process, and 
a rule. The system is the safety measurement system that most 
everybody sees today on our Web site, which uses all inspection 
and crash data to give priority to high-risk and noncomplying 
carriers for inspection and investigation. The process element 
of the program refers to the range of intervention tools we use 
once we have analyzed and applied the data, so that we can 
engage more carriers in understanding their compliance and 
safety performance. It is a process that helps us and carriers 
get at why a pattern of violations is occurring--not just what 
is happening--but why it is happening.
    And finally, the rule refers to the safety fitness 
determination rule that we will be proposing early next year 
that would replace today's compliance review, which is the only 
way we have today of establishing an official safety rating. 
The safety fitness rating proposal will incorporate the 
analysis that is in the SMS today, again, and apply it in a 
proposed rulemaking standard using certain threshold analyses.
    CSA enables FMCSA and its State safety enforcement partners 
to identify and address compliance and safety deficiencies of a 
larger segment of carriers. The SMS system, which is, again, 
the first component of the CSA program, has sufficient data to 
assess nearly 200,000 companies out of the 525,000 active motor 
carriers operating on our highways on an interstate basis 
today. And even more importantly, those 200,000 carriers are 
involved in 90 percent of all fatal crashes. It is the right 
group to be looking at.
    Since carrying out the first two components of CSA--that is 
the system and the process--we have seen improvements in truck 
and bus safety operations. A component of the program known as 
warning letters, which have been sent to tens of thousands of 
carriers who have first begun to first show signs of safety 
problems, are a critical element of the program. It allows a 
company to take action on their performance matters before any 
sort of situation gets worse.
    Preliminary crash estimates for 2011 show a 4-percent 
reduction in fatalities in truck and bus crashes over 2010. 
Also in 2011, as Congressman Cummings indicated, roadside 
violation rates have decreased dramatically. Eight percent in 
driver violation rates, and--8 percent for all carriers, 10 
percent for driver violation rates. These are unprecedented 
drops in violation patterns, something we haven't seen in a 
decade.
    Our agency initiated this program over 6 years ago through 
demonstrating a commitment to listening to stakeholders and 
building the improved process, to responding to that and being 
very transparent in our analysis. Just last month we announced 
modifications based on analysis and testing of recommendations 
that came from all these various stakeholders: carriers, 
drivers, the general highway public, brokers, law enforcement, 
and other stakeholders of this program.
    This is a program that we are driven and committed to 
routinely seek feedback about, and routinely fine tune. But it 
is a program that is working. It is a program that is here at 
the right time, doing the right things, and elevating the 
discussion about safety in commercial vehicle operations like 
nothing anyone has seen before. And it is a program that 
carries through on our commitment to be transparent and 
responsive, all the while driving towards putting safety first 
in CMV operations on our Nation's highways.
    Mr. Chairman, that concludes my remarks, and I thank you 
for the time.
    Mr. Duncan. Thank you very much.
    Mr. Owings.
    Mr. Owings. Good morning, Chairman Duncan, Ranking Member 
DeFazio, and members of the subcommittee. I am Steve Owings, a 
businessman who became concerned about truck safety through a 
tragedy. So I am here as president and cofounder, with my wife, 
Susan, of Road Safe America. I am speaking today on behalf of 
RSA, the Truck Safety Coalition, Parents Against Tired 
Truckers, and Citizens for Reliable and Safe Highways. We all 
work together on behalf of the tens of thousands of people who 
have become victims of preventable truck crashes each year, and 
are committed to improving truck safety and making America's 
roads safer. Thank you for the opportunity to testify before 
you today on FMCSA's Compliance, Safety, Accountability, or 
CSA, program.
    The CSA program is a significant improvement over the 
previous SAFESTAT program, and is enabling the FMCSA to make 
more efficient and effective use of its very limited resources. 
It has been credited as inspiring ``the start of a cultural 
change in the industry by forcing carriers to focus on the 
details of safety management.''
    As changes continue to be made to improve the CSA program, 
it is essential that the program continues to be efficient, 
cost effective, and fair. My testimony will comment on changes 
being considered to the Crash BASIC, and the need to preserve 
public access to CSA information.
    My family's introduction to our Nation's truck safety 
challenges began on December 1, 2002, the Sunday after 
Thanksgiving that year, when our sons, Cullum and Pierce, were 
hit from behind while stopped in holiday congestion by a 
tractor trailer truck that was speeding 8 miles per hour over 
the posted speed limit using cruise control. That evening, 
Susan and I were waiting to get the call that the boys were 
safely back at school. But instead, got the call from Pierce, 
in an ambulance, telling us that his big brother and hero had 
just died in his arms.
    That night Pierce was too upset to speak with the State 
trooper in charge of the scene, so the trooper spoke only to 
the truck driver. The truck driver lied about the circumstances 
leading to the crash, and the trooper took the driver's word, 
of course. And that is the version of the crash reflected on 
the police accident report, or PAR. Since Pierce miraculously 
survived, thank God, the truth was quickly discovered. However, 
in order to prove Pierce's account of the crash, Susan and I 
had to hire a private investigator to find other eye witnesses, 
all of whom verified our son's version. If we had been limited 
to the PAR, the truth would not have been discovered or proven.
    Now, the FMCSA is considering changes to the way the CSA 
Crash BASIC treats crash data. Currently, all crashes are 
counted in the crash data because truck crashes, in and of 
themselves, and regardless of fault, are very effective 
predictors of future crashes. Studies confirm this, noting that 
a past truck crash increased the likelihood of a future truck 
crash by 87 percent.
    The change being considered would classify crashes as 
preventable or nonpreventable, based solely on the PAR. Crashes 
deemed nonpreventable would then be removed from the carrier's 
Crash BASIC score. Not only are these changes completely 
unnecessary to predicting crash risk, they have the potential 
to corrupt existing crash data. Furthermore, it is disingenuous 
to say that the current system is unfair and that some trucking 
companies are being blamed for crashes that they did not cause. 
Fault is not and never has been a part of this process, a 
process intended to predict future crash risk, enabling FMCSA 
to intervene and prevent another crash from ever happening.
    It is also a critical mistake to consider classifying 
crashes based solely on the PAR. PARs do not even include 
information on crash preventability. My own family's crash is 
just one of many examples of how PARs may lack complete and 
accurate information. A recent Illinois DOT study found that 
more than 70 percent of crash reports filled out by Chicago 
police were missing data, and 30 percent had errors.
    Now, our police officers do a tremendous job at the scene 
of crashes. But they are limited in their ability to 
investigate beyond the BASIC information. Should FMCSA pursue 
changes to classify crash data as default in spite of all these 
issues, cost and inefficiency would quickly overwhelm them. The 
FMCSA simply does not have the resources to develop and 
maintain a reliable system to do this. My written testimony 
explains this in more detail.
    Finally, continued public access to CSA program information 
and improvements is essential to maintaining a fair, 
transparent process. This information is disseminated by public 
agencies, relates to crashes that occur on public roads, is 
paid for by taxpayer dollars, and ultimately affects public 
health and safety. Public access has already resulted--and 
perhaps CSA's greatest influence. The trucking industry and its 
safety record have the highest public visibility ever.
    Thank you for the opportunity to testify this morning, and 
thank you for your part in passing the truck safety 
improvements included in MAP-21, the best legislation for truck 
safety in the past 30 years.
    Mr. Duncan. Thank you very much.
    Mr. Palmer.
    Mr. Palmer. Good morning, Mr. Chairman, Ranking Member 
Rahall, members of the subcommittee. Thank you for holding this 
important hearing, and for inviting me to testify. I am 
Assistant Chief David Palmer of the Texas Department of Public 
Safety, and the president of the Commercial Vehicle Safety 
Alliance.
    The Alliance represents State, provincial, and local 
agencies tasked with enforcing motor carrier safety and 
hazardous material regulations. At the outset I think it is 
important to say, from the enforcement community's perspective, 
that CSA program is working much more effectively than the 
previous approach. Overall, inspectors and investigators are 
pleased with their experience and, most importantly, the 
results.
    Quite frankly, CSA has brought commercial vehicle safety to 
the forefront of industry and enforcement like no other program 
in my time before it. And I would like to commend Administrator 
Ferro and her team at FMCSA for their transparent and 
collaborative approach.
    CSA is meeting its goals of improved targeting of high-risk 
operators and increased contact with carriers, which ultimately 
allows enforcement to leverage its limited resources. The 
improvement is partly due to the new intervention process, 
which is comprised of a suite of tools giving enforcement 
increased flexibility to focus specifically on carrier 
compliance issues, as well as behaviors that are factors in 
crashes, making their contacts with carriers and drivers more 
effective.
    However, we have a few recommendations for improvement. 
First, CVSA members see a need for additional training and 
outreach, both for enforcement and industry. It is critical 
that those using CSA and those being evaluated fully understand 
how the system functions. Otherwise, it won't matter whether or 
not CSA works. If people cannot understand and implement it 
effectively or appropriately, it cannot realize its fully 
potential.
    In Texas, since the CSA launch, we have seen a dramatic 
increase in phone calls, emails, and questions, as well as 
requests for our troopers to visit safety meetings to talk 
about CSA and regulatory compliance. Carriers want to learn 
more about what CSA means, what the scores indicate, and how to 
improve them. As a result, we are doing more outreach than ever 
before. And that is a good thing. It means people are focusing 
more closely on regulatory compliance and safety, which can 
only benefit industry and the general public.
    All this additional outreach, however, draws on already 
strained resources. As FMCSA continues to implement CSA, States 
need the resources to meet the increasing demand for 
information, not just externally with the regulated community, 
but internally, as well, so their enforcement personnel have 
the most current and complete information.
    We encourage you to work with your colleagues in Congress 
and with FMCSA to ensure that the agency has enough funding to 
create and maintain comprehensive training and outreach 
programs for inspectors, investigators, drivers, and carriers.
    Second, data is the foundation of CSA. And for it to 
function effectively, that data must be accurate, timely, and 
complete. Compliance and safety performance data is used to 
determine where the enforcement community should focus its 
limited resources. While it is important to note that overall 
commercial vehicle data quality has improved significantly 
since 2004, it is imperative that the data entering the system 
be as accurate as possible.
    Our third recommendation deals with the DataQ system, which 
is the process by which the carrier can challenge a violation 
they believe is inaccurate. One issue with the DataQ process is 
the lack of uniformity from State to State in how challenges 
are reviewed. FMCSA has provided some guidance, but the final 
process is left up to each State. We believe that feedback from 
FMCSA on how the DataQ program is working from a national 
perspective, along with information on best practices, should 
provide for a more uniform and equitable system.
    States are also seeing a high number of incomplete or 
inappropriate DataQ submissions. FMCSA should provide carriers 
and drivers with comprehensive, ongoing education about DataQs, 
focusing on when a challenge is appropriate, and what 
information should be included.
    Third, as CSA is evaluated and improved, it is critical to 
make sure that regulatory compliance remains a cornerstone of 
the program. The focus of CSA is to reduce crashes and save 
lives. And therefore, behaviors that can be linked to crash 
risks must take precedence. However, CVSA members strongly 
believe that regulatory compliance is also a critical factor. 
Those in industry who choose to ignore regulations, or perhaps 
are not in compliance because they do not understand them, pose 
a risk to highway safety, and CSA must continue to monitor and 
factor in motor carriers' level of regulatory compliance.
    Finally, I would like to mention the issue of crash 
accountability. Currently, CSA incorporates all crashes that a 
motor carrier is involved in, regardless of fault. In order to 
ensure that the scores are most closely tied to high-risk and 
unsafe operators, CVSA believes it is critical for FMCSA to 
address the crash accountability issue as quickly and 
comprehensively as possible.
    Again, thank you for holding this hearing and for inviting 
me to participate, and I am very happy to answer questions.
    Mr. Duncan. Thank you very much.
    Mr. Mugno.
    Mr. Mugno. Good morning, Chairman Duncan, members of the 
subcommittee. I am Scott Mugno, vice president of safety at 
FedEx Ground Package System of Pittsburgh, Pennsylvania. Though 
I am testifying today on behalf of the American Trucking 
Associations, I would like to note that FedEx Ground currently 
holds the highest DOT safety rating a company can achieve and 
maintains an exceptionally favorable crash history.
    However, despite FedEx Ground's high safety rating, 
favorable crash history, and longstanding commitment to safety, 
our CSA score in the driver fitness category is above FMCSA's 
set threshold. Many ATA member carriers with excellent safety 
records and low crash rates, like FedEx Ground, find themselves 
singled out due to high CSA scores that erroneously reflect 
unsafe performance. FMCSA's own analysis confirms that scores 
in certain CSA measurement categories, including the driver 
fitness category, do not reliably identify those carriers that 
are more likely to have future crashes.
    ATA has been supportive of the objective of CSA, to reduce 
commercial motor vehicle crashes, injuries, and fatalities, 
since the program's inception. However, ATA has significant 
concerns with the program in its current form. ATA is 
frustrated by Federal Motor Carrier Safety Administration's 
unwillingness to acknowledge the program's weaknesses and 
correct them.
    Since the release of FMCSA's analysis, a growing number of 
researchers and credible organizations, including analysts from 
Wells Fargo and a researcher from the University of Maryland, 
have cast further doubt on the relationship between carriers' 
CSA scores and crash risk. These analyses have led ATA to 
believe the system creates flawed carrier safety measurement 
scores that undermine the efficient use of Federal resources to 
identify and impact unsafe carriers and drive third parties to 
make improper safety-related business decisions.
    The limitations that impact CSA fall into two distinct 
categories: one, problems with the underlying data that feed 
the system; and two, problems with the system's methodology 
used to assign scores.
    The principal data weakness is the lack of information upon 
which to measure carrier safety performance. FMCSA only has 
adequate data to score 40 percent of active motor carriers in 
at least one of the measurement categories, but does not report 
how few carriers are scored in all or even most categories.
    CSA scores are also impacted by a number of methodology 
problems. Perhaps the single biggest problem is that CSA 
measures motor carriers on all crashes they are involved in, 
regardless of fault. In other words, a carrier that is rear 
ended while stopped at a red light is perceived as being just 
as unsafe as one that rear ends another motorist. FMCSA should 
direct its limited resources where they would be most effective 
in preventing future crashes by focusing on unsafe carriers 
that are causing them. Doing so would help better meet the 
objective of CSA, which is to reduce crashes, injuries, and 
fatalities.
    ATA has become increasingly concerned with CSA's serious 
flaws like this one, and by FMCSA's unwillingness to 
acknowledge and fix them. Rather than acknowledging that scores 
often don't relate to crash risk, the agency points to the 
importance of highlighting compliance with regulations, even 
those that do not have a statistical relationship to safety. 
There is no doubt that FMCSA's intent in designing the CSA 
system was to identify carriers that are less safe.
    The current program does not meet that intent. ATA 
questions the merits of assigning a higher priority to carriers 
with compliance issues than those that are actually less safe. 
Since the intent of the system is to prioritize carriers for 
Government oversight, less safe carriers should be assigned 
higher scores than safe carriers that have paperwork-related 
violations that are not safety-related.
    While ATA takes issue with certain specific elements of 
CSA, there is an overarching theme: CSA scores must reflect 
future crash risk. If they did, ATA would support the system, 
since it would provide a means for responsible fleets to 
distinguish themselves from those that do not share their 
commitment to safety, to properly leverage third parties to 
drive carriers to invest in safety, and to make better use of 
Federal enforcement resources.
    To achieve these benefits, FMCSA must take three very 
specific steps. First, FMCSA must acknowledge that CSA scores 
are often not a reliable predictor of future crash risk. 
Second, the agency must confirm that CSA's highest priority 
should be to focus on the least safe carriers. And finally, 
FMCSA must establish a specific plan to develop and implement 
the changes necessary to ensure that the system functions as 
intended.
    Mr. Chairman, thank you for the invitation. Thank you for 
the time today.
    Mr. Duncan. Thank you very much. We have now been joined by 
the ranking member, Mr. DeFazio. I earlier announced we would 
stop and allow him to give an opening statement, if he wished, 
but he wants to proceed with the panel.
    But we also have been joined by several other Members: Mr. 
Walz, Mrs. Capito, and Mr. Coble. So, we will go ahead with the 
panel at this time, and Mrs. McBride.
    And I earlier said you were here for the American Trucking 
Association. Mr. Mugno is here for the trucking association. 
You are here testifying on behalf of the Alliance for Safe, 
Efficient and Competitive Truck Transportation. Thank you very 
much.
    Mrs. McBride. Good morning, Chairman Duncan, Ranking Member 
DeFazio, Congressman Rahall, and members of the subcommittee, 
thank you for the opportunity to speak on behalf of ASECTT, the 
Alliance for Safe, Efficient and Competitive Truck 
Transportation.
    ASECTT is a coalition of more than 600 carriers, brokers, 
shippers, and others concerned about the effect of compliance, 
safety, and accountability program is having on the trucking 
industry. We believe FMCSA must afford regulated carriers due 
process, and the shipping public needs certainty that certified 
carriers can be chosen based upon routes, rates, and service 
alone, without vicarious liability concerns.
    Colonial is a private, family-owned business based in 
Knoxville, Tennessee. My father-in-law, C.E. McBride, founded 
Colonial in 1943. We currently run between 250 and 280 power 
units, primarily owner-operators, in 48 States. Many of our 
contractors have been with us for more than a decade. Some more 
than 30 years. Many of them have logged over 1 million miles 
without a single chargeable accident. Some over 3 million 
miles. Colonial is self-insured, and has been for more than 25 
years. We were one of the first motor carriers in the industry 
to become self-insured. Colonial has an excellent safety 
record.
    Current regulations require a carrier, after accounting for 
nonpreventable accidents, to have fewer than 1.5 accidents per 
million miles driven in order to keep a satisfactory rating. 
Colonial travels about 40 million miles per year. Our reported 
crash ratio, including nonpreventable accidents, is 0.4 per 
million miles, less than 28 percent of the regulatory limit. 
When nonpreventability is considered, our accident ratio drops 
to 0.2 per million. Based on Colonial's experience, I am 
convinced the CSA program, one, doesn't accurately measure 
carrier safety performance and, two, its progressive 
intervention goals aren't being realized.
    The FMCSA says its goal is to reduce crashes, injuries, and 
fatalities. We agree. However, CSA's methodology is flawed. 
Also, the data used to label motor carriers includes factors 
having absolutely nothing to do with actual safety risk.
    Among CSA's numerous systemic flaws, the one that affects 
us the most is the so-called fatigued driving BASIC. Colonial's 
percentile ranking in this BASIC hovers around 80 percent, 15 
percentage points above the agency's artificial threshold. This 
high percentile ranking has nothing to do with fatigue. CSA 
groups carriers who use paper logs with local carriers and 
others exempt from that requirement. Over half of the points 
that feed the percentile ranking in the fatigued driving BASIC 
come from paperwork violations. These violations have no actual 
effect on fatigue, much less crash risk.
    Notwithstanding the agency's sole obligation to certify 
carriers as safe to use, and our satisfactory safety rating, 
published CSA rankings mislead some shippers into believing 
that carriers like Colonial are unsafe. Some feel they cannot 
rely on the agency's safety fitness determination to trump 
negligent selection lawsuits. Our firsthand knowledge of how 
the CSA program actually works differs from the progressive 
monitoring the agency purports.
    When the CSA program was launched in December of 2010, 
FMCSA told the industry the intervention process would occur in 
steps. First, a warning letter would notify a motor carrier of 
any identified deficiency in a particular BASIC. The motor 
carrier would then have an opportunity to address the 
deficiency prior to an on-site audit. This is not what happened 
with Colonial. The FMCSA Nashville field office called on 
Thursday afternoon, August 11, 2011, saying they would be in 
our office on Monday morning, August 15th, to begin a focused 
audit. There was no warning letter or opportunity to address 
the concern.
    The first week, the investigator spent 4 days in our 
corporate office requesting multiple documents on 19 drivers. 
On August 29th, the investigator returned with a second 
investigator. They remained at Colonial until the audit was 
completed on September 2nd. The final report dated September 
26, 2011, left Colonial's satisfactory rating unchanged. And 
the report was labeled, ``This review is not rated.'' To 
justify its methodology, the agency has said that focused 
audits are less time consuming than compliance reviews, which 
result in safety ratings and require an average of 3 to 4 days. 
Well, the agency spent 9 work days auditing Colonial. However, 
we are still branded as a high-risk carrier in the fatigued 
driving BASIC. We are losing opportunities to transport 
shipments because some shippers are frightened by agency 
pronouncements implying that they can be sued if they don't 
self-credential each carrier using SMS rankings.
    Had Colonial received a conditional or unsatisfactory 
rating, our 25-year self-insurance program would have been in 
jeopardy. We would likely have been faced with closing our 
doors after almost 70 years of running one of the safest 
companies in the industry. Yet we are thankful this didn't 
happen. Yet we hear this has happened at countless other 
trucking companies throughout the country. We have firsthand 
experience of CSA's anticompetitive effects. We ask Congress to 
stop FMCSA from publishing the misleading SMS scores, and 
urging shippers and brokers to rely on them.
    Mr. Chairman, thank you again for inviting me today. I am 
happy to answer questions.
    Mr. Duncan. Thank you very much, Mrs. McBride.
    Mr. Johnson.
    Mr. Johnson. Thank you. Chairman Duncan, Ranking Member 
DeFazio, and members of the Transportation and Infrastructure 
Committee, thank you for the invitation and the opportunity to 
testify at today's oversight hearing. My name is Bruce Johnson, 
I am the director of carrier services for C.H. Robinson and a 
member of the TIA board of directors. My remarks today are 
geared towards the significant impact the CSA initiative is 
having on the carrier eligibility process that freight brokers 
and shippers conduct to ensure the hiring of safe, legally 
registered, and properly insured motor carriers.
    As one of the Nation's largest freight transportation 
brokerages, C.H. Robinson has seen the risk of negligent hiring 
lawsuits based on carrier selection grow significantly since 
2004. I am here to communicate to you the tremendous confusion 
exists in the industry about the risks of carrier eligibility 
and selection, and what the BASIC data and safety ratings mean 
for those hiring motor carriers. This confusion has added cost 
to the brokers and the industry. In addition, it has added 
legal risk to any entity that hires a motor carrier.
    While the BASIC data is used as a compass to guide 
enforcement actions by FMCSA, safety rating is widely seen as 
the safety seal of approval for those who hire trucks. 
Currently, the BASIC data is not directly linked to the safety 
rating, and the agency is waiting for a rulemaking to draw 
clear lines and correlations between the two.
    When FMCSA implemented the BASICs in December 2010, many in 
the industry anticipated that a rulemaking linking BASIC data 
directly to the safety rating would occur quickly. What was 
supposed to be temporary, however, continues to be delayed by 
the agency, and every day that goes by without a fair and 
accurate safety fitness determination, the transportation 
industry will continue to be negatively impacted.
    We encourage FMCSA to be clear and consistent with shippers 
and brokers on which carriers and which information should be 
used to select motor carriers to haul Freight. What the 
industry needs is a bright line differentiation of which 
carriers are unsafe.
    Since 2004, a series of court cases have established a new 
interpretation of responsibility for shippers and brokers known 
as the Duty of Reasonable Care. Subsequent court cases expanded 
and redefined the responsibilities of parties engaging 
independent contractors, and settlement and/or jury awards have 
grown substantially. In almost every case, the motor carrier's 
public liability insurance is exhausted, the carrier has filed 
bankruptcy, and brokers or shippers are sought to fill the loss 
and make the injured person or family whole.
    A common theme used by plaintiffs' lawyers is--in most 
negligent hire cases--is that brokers and shippers should 
second-guess the FMCSA's decision of which carriers are safe to 
operate by examining the detailed safety record of each carrier 
before use. This second-guessing scenario is why the 
conflicting interpretations of BASIC data and safety rating are 
of such great importance to freight brokers.
    Until FMCSA provides firm guidance on what BASIC thresholds 
constitute a safe carrier, differing opinions will proliferate, 
and the courts will arbitrate those opinions. There can be no 
question that the brokerage industry seeks to promote higher 
safety standards for our Nation's highways. That being said, 
the brokerage industry is displeased with the current state of 
affairs, with the courts holding brokers and shippers to an 
ever-changing standard in carrier selection.
    Congress and the FMCSA can reset this standard to one that 
is more reasonable and static. It should not be the 
responsibility of industry stakeholders without having access 
to all of the information to determine which carriers are safe 
to operate on American highways. It should be the sole 
responsibility of the agency charged with issuing licenses to 
carriers and making sure those carriers adhere to safety 
standards established by the agency to tell the public which 
carriers are safe to use and which carriers are not.
    The only way to accomplish this task is for the FMCSA to 
complete the new safety fitness determination rulemaking and 
fully link the BASIC data to the safety rating. However, we do 
not want the FMCSA to develop a safety fitness determination 
prior to addressing industry concerns regarding the methodology 
used to evaluate carriers' BASIC scores and percentages.
    Until this safety fitness determination rulemaking is 
developed for public comment and ultimately developed into a 
final rule, we would recommend the following.
    One, that FMCSA should immediately add the current 
compliance review-based safety rating to all screen shots that 
display a carrier's BASIC data, so there is no confusion about 
the two systems.
    Two, that FMCSA should remove any language from its Web 
site and outreach that encourages shippers, brokers, or the 
public to use the BASIC data for their own purposes.
    And, three, that Congress develops legislation that would 
create a uniform standard against liability without fault by 
preempting State vicarious liability laws imposing liability on 
non-negligent transportation brokers and shippers.
    In conclusion, we fully support FMCSA and its mission to 
improve motor carrier safety on the Nation's roadways. TIA and 
C.H. Robinson look forward to productively working with 
industry participants, FMCSA, and Congress to ensure that FMCSA 
publishes a safety fitness determination for all motor carriers 
that is based on accurate and fair data, and that does not 
discriminate based on carrier, size, or type. Thank you.
    Mr. Duncan. Thank you very much.
    Mr. Gentry.
    Mr. Gentry. Good morning, Chairman Duncan, Ranking Member 
DeFazio, and members of the subcommittee. Thank you for this 
opportunity to testify on behalf of the members of the 
American----
    Mr. Coble. Mr. Chairman, I am still having difficulty----
    Mr. Duncan. We are still having trouble hearing some of the 
witnesses. I guess you will have to put that real close to you, 
and maybe it will work better.
    Mr. Gentry. Test.
    Mr. Duncan. Real close. OK.
    Mr. Gentry. All right. Chairman Duncan, Ranking Member 
DeFazio, and members of the subcommittee, thank you for this 
opportunity to testify on behalf of the members of the American 
Bus Association and the United Motorcoach Association. My name 
is Bill Gentry, and I operate Gentry Trailways in Knoxville, 
Tennessee. We have operated school bus service for Knox County 
schools since 1953, and provide charter and tour service with 
over-the-road motorcoaches. We take great pride in serving our 
community safely and economically for nearly 60 years.
    When CVSA launched, hopes were high that it would afford 
new tools to better predict the likelihood of the commercial 
motor vehicle crashes. Unfortunately, at this point, evidence 
suggests that CSA may fall severely short of its intended 
goals. We do not believe the current data fed into the CSA 
program and the current prioritization scheme will result in a 
significant reduction in crashes.
    Studies indicate that vehicle defects are responsible for 
less than 2 percent of commercial motor vehicle accidents, 
while driver error is responsible for over 95 percent of the 
commercial motor vehicle accidents. All of the highest 
indicators of an increased propensity for an accident relate to 
basic traffic law enforcement. The industry has urged the 
enforcement community to issue citations when drivers violate 
basic traffic laws, and insist that courts avoid reducing or 
modifying the original charges.
    Another issue with CSA is that it does not account for 
carriers that terminate drivers for poor driving records, as 
good companies do. CSA scores do not reflect the elimination of 
the risk when that driver is dismissed. The carrier must endure 
the punitive scores associated with this violation for 2 years. 
Meanwhile, the dismissed driver simply finds another carrier 
that is more tolerant for his traffic infractions. And there is 
no effect on that carrier's score.
    Perhaps CSA's most controversial subject is to issue--is 
the issue of crashes. Simply stated, all crashes, regardless of 
accountability, are the number one indicator that a commercial 
motor vehicle company and/or driver will incur another crash. 
However, the CSA system contains no information regarding the 
severity or the accountability of a crash. Unfiltered, this 
information cannot serve as credible consumer information upon 
which a carrier selection can be made.
    While we believe the crash data serves a critical role in 
the predicting of carriers' propensity for an accident, the 
information in its current form is inappropriate and--for 
consumers, and should be restricted to enforcement in motor 
carrier views only.
    Congress recently passed legislation that would require 
FMCSA to develop an easy-to-understand writing system for 
consumers of passenger carrier services. We feel the 
development of this system should be the highest priority by 
FMCSA. CSA also fails to recognize the vast differences in the 
level of State participation for inspection activity. We also 
have a concern that FMCSA advising States that inspections can 
occur at the weight stations, where there is not any safe 
accommodations for the passengers.
    The leadership at FMCSA has been responsive to our 
recommendations on improving CSA, and we applaud their 
leadership for willingness to listen to the industry. We have 
two final recommendations for the--improving CSA.
    First, we recommend that the GAO encourage the services--or 
engage the services of the American Academy of Actuaries in an 
effort to move--effectively explore the links between the most 
significant causes of motor vehicle crashes and the CSA safety 
measurement system.
    Second, under CSA, carriers are inappropriately placed into 
peer groups with carriers such as long-haul truckers. Passenger 
carriers should be rated with other passenger carriers, oranges 
to oranges, to more readily identify those that need the 
interventions.
    In conclusion, we believe that CSA is well-intended, but 
has room for significant improvement. And we look forward to 
working with the committee and FMCSA to achieve its intended 
goals. On behalf of the members of the American Bus Association 
and United Motorcoach Association, I appreciate this 
opportunity to express our views, and am pleased to answer any 
questions at this time.
    Mr. Duncan. Thank you very much, Mr. Gentry. And thanks to 
all the witnesses for their very helpful testimony. And since 
he was not here to give an opening statement because he had to 
be on the floor, I am going to turn now to Ranking Member 
DeFazio for any statement or questions that he wishes to make 
at this time.
    Mr. DeFazio. Thank you, Mr. Chairman. I think it is just a 
little bit more than 2 years since, prior to implementation, we 
held a hearing in this subcommittee regarding this new system. 
And at that time we expressed a number of concerns that still 
endure. The system was implemented before results of a study 
and concerns about, in particular, the crash issue was raised 
at that time, and they seem to still be outstanding.
    I will probably have a couple of rounds of questions. But 
first, I want to get to a couple of things.
    Mr. Johnson, you raised the issues about TIA and wanting a 
bright line. I am going to ask Ms. Ferro about that in a 
moment. But I heard another concern which is that, you know, 
basically, only about 40 percent of the carriers have some sort 
of a rating. Sixty percent haven't had a violation or roadside 
inspection or anything. And I have heard that some of your 
members are reluctant to utilize people--those people, because 
they are essentially unknown. I mean--we do know they haven't 
had a violation, but we don't know much else about them. Is 
that true?
    Mr. Johnson. Yes, I believe that is true.
    Mr. DeFazio. So 60 percent of the carriers out there are, 
at this point, somewhat disadvantaged by this system because 
they are not in the system because they haven't had a violation 
or roadside inspection.
    Mr. Johnson. Yes. I don't know the exact number or the 
percentage, but I know there is a significant amount. And it is 
the smaller carriers that aren't getting any inspection data. 
So then it is left to the broker or the shipper around how much 
fare they have, or tolerance for risk in what a court may do to 
them if someone like that were to have an accident and they 
would know that they had no data. So there is fear around using 
those, for sure.
    Mr. DeFazio. OK. Ms. Ferro, we talked about this the other 
day, and I suggested some ideas about how we might get people 
into the system in a benign way. And we sort of speculated--he 
is saying it is a real problem. And this is 60 percent of the 
industry. I mean how are we going to deal with this? I mean 
this is--I mean there are many problems we need to discuss 
today, but this is one that was new to me.
    Ms. Ferro. Well, let me--let's talk real quickly about the 
database of active carriers. We are all using the standard of a 
525,000 active carriers in operation today. About 60 percent of 
those are private carriers. So there is really--so, right off 
the bat--now, what I don't have is the breakout on the 200,000. 
But I do want to clarify that all 325,000 carriers that you 
just identified as having insufficient data to actually be 
analyzed within those BASICs, many of those, very many of 
those, are private carriers. So they wouldn't be in competition 
for some of the shipping services that Mr. Johnson is speaking 
about. Because, again, they are moving their own products.
    Now, that aside, when it comes to ensuring that as many 
carriers as possible are touched in some way by an inspector or 
an investigator to be sure we do have adequate data to monitor 
their safety performance, we are taking a couple different 
approaches. One you and I discussed: Is it feasible to allow 
carriers to go through weigh stations in a cooperative way, as 
we see happens periodically in Oregon, to get additional 
inspections?
    More importantly, the process that we have been working 
with the Commercial Vehicle Safety Alliance on is ensuring that 
when a carrier goes through a weigh station or is inspected at 
roadside, and the inspector chooses to wave the carrier on 
because everything looks good, to be sure that we are turning 
that into an inspection, recorded inspection that is uploaded 
into the system. Today, out of 3.5 million inspections that are 
carried out each year, one-third are clean inspections. It is 
very important that we touch all carriers that are operating on 
our highways.
    Keep in mind one last piece, as well. Of those carriers 
that are not within the CSA analysis today, they haven't come 
on our radar because they haven't had a crash, as well. So 
there are a number of factors indicating that those carriers 
may be doing very well. Many of them are private carriers. But 
we also are increasing both the inspection strategies to ensure 
we are touching everybody, and randomizing some of the 
automated bypass systems to ensure those with no data are being 
pulled in for an inspection.
    Mr. DeFazio. And then the crash which was an issue 2 years 
ago----
    Ms. Ferro. Yes.
    Mr. DeFazio [continuing]. And still is an issue today, we 
also discussed that. And it is my understanding that the agency 
is moving towards some sort of a crash weighting system 
because--what I still find extraordinary about the data, and I 
don't know whether the study--you know, what their sample had 
and, you know, and whether they drilled down to at fault, not 
at fault, or anything, they just said any kind of a crash is an 
88 percent indicator of future problem.
    I still find it hard to believe if, you know, one person or 
one company had one incident where they were legally, properly, 
you know, stopped, and someone crashed into them, by their 
entire negligence, that that is an indicator that somehow that 
person is going to be involved in a future crash. I mean I am 
still having trouble with that, you know, the validity of that 
conclusion from that study.
    But my understanding, in part, you are going to deal with 
that with crash weighting. Do you want to address that?
    Ms. Ferro. I will. Thank you, thank you, Ranking Member 
DeFazio.
    We are all familiar with instances like you describe, where 
there seems to be clear evidence that the crash was not 
preventable on the part of the commercial vehicle operator. But 
all of our analysis and the American Transportation Research 
Institute analysis indicates that past crash experience is a 
strong predictor of future crash risk.
    We recognize some of the--that the aggregate number is--
includes data such as the example that you just described. And 
so, in the first phase of this program, we have kept the crash 
indicator, which, again, is an indicator for us of potential 
crash risk, which we need to take into consideration. But we 
have kept it available to enforcement in the motor carrier 
community, or the individual motor carrier themselves, not 
available to the public, again, just on the basis of fairness.
    At the same time, we initiated a process to figure out how 
we could determine whether a crash was or was not preventable, 
what data could we use to use it, how valuable or valid or 
uniform and consistent are police accident reports that would 
provide the foundation of that inquiry, and then how do we set 
up a process that looks at all 100,000-plus reportable crashes 
in a fair way, so that we are not doing this on onesies and 
twosies, and skewing the data outcome and the comparative 
nature of this program, but actually doing it comprehensively.
    So, we did a preliminary analysis of a police accident 
record report, and how well it can be used to determine 
preventability, and we are now analyzing the question of how to 
set up a process that could manage all reportable crashes, 
analyze preventability in a fair manner. And, at the end of 
that process, does it, in fact, make CSA a sharper and more 
focused tool in examining who we need to be looking at? Our 
premise is that it could, and that it does, but we need to 
prove it out.
    So, we expect to have the results of this study by early 
summer of next year, 2013. We have got the schedule for the 
study and the basis and elements for the analysis on our Web 
site, so it is available to everybody to look at. And, frankly, 
we look forward to reporting out on the results of that 
analysis and identifying what our next steps would be with 
regard to crash weighting. The underlying premise is that a 
nonpreventable crash would have a very low weighting, a 
completely preventable crash would have the highest weighting.
    Mr. DeFazio. OK. You said not available to the public. But 
do brokers ask shippers to provide--or not shippers--ask the 
carriers to provide that data sometimes?
    Mr. Johnson. My company does not ask motor carriers for 
that. But maybe some of the motor carriers could use their 
experiences to see if they have been asked that before.
    Mr. DeFazio. Yes, OK. Anybody--I mean since--I am just 
wondering. Just because it doesn't appear on the screen or on 
the rating system as exists, is it being utilized by some of 
the shippers? Anybody have any experience with that?
    Mrs. McBride. I did speak with someone----
    Mr. DeFazio. Mrs. McBride, we are still--try the other one, 
there.
    Mrs. McBride. Is this one on?
    Mr. DeFazio. Be personal with the microphone.
    Mrs. McBride. OK. I apologize.
    Mr. DeFazio. Yes.
    Mrs. McBride. I spoke with a carrier last week in my area 
who did tell me that he had been refused freight because the 
broker asked for a copy of his crash history.
    Mr. DeFazio. OK.
    Mr. Mugno. Yes. I can confirm that ATA members have been 
asked that question by brokers on occasion, without a doubt.
    Mr. DeFazio. OK. And that is--but that is just now the raw 
data, where we can't attribute fault or no fault.
    Mr. Mugno. Correct.
    Mr. DeFazio. OK. All right. Thank you. I will have another 
round of questions.
    Mr. Duncan. All right, thank you very much, Mr. DeFazio. We 
will go first on our side to Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman. Good hearing, good 
panel. You put together a good----
    Mr. Duncan. Thank you.
    Mr. Coble [continuing]. [Inaudible] today. Ms. Ferro, I am 
told that there is no impartial appeals process for DataQs 
challenges. And, if so, that is different from any other 
administrative penalty system within the Government, where 
motorists could be hit with a violation, to have the ability to 
appeal that to an administrative law judge. Why does not the 
Federal Motor Carrier Safety Administration have such a process 
in place?
    Ms. Ferro. Let me just put it in the context of the 
population of violations we are talking about. So I mentioned 
earlier that, through our State law enforcement partners and 
our commercial vehicle safety grant program, 3\1/2\ million 
commercial vehicle inspections are carried out each year. The 
number of appeals, as you described, which we call DataQs, 
number 34,000.
    Mr. Coble. And you call them what?
    Ms. Ferro. They are called a data query.
    Mr. Coble. OK.
    Ms. Ferro. In effect, an appeal of a violation----
    Mr. Coble. Got you.
    Ms. Ferro [continuing]. Or of an inspection. So it is just 
1 percent of the total body of inspections that are carried out 
each year. And that is under the new CSA program. This is not 
counting prior to CSA, when very few data queries were made.
    So, out of those 34,000 queries, there--we have established 
guidelines. We were very sensitive to the concern that you 
raised, because these are the result of a sort of a record of 
inspection of a carrier, they are not taking away a right of 
any kind. And so they are not in that adjudication process that 
you described on an appeals--sort of an administrative 
adjudication appeals process.
    But we did set up a DataQs process whereby, when a carrier 
requests a specific inspection be reviewed, the carrier appeals 
either the data in that inspection or the validity of the 
inspection results. It is put through the DataQ process very 
quickly, reassigned to the State where the inspection was 
carried out, and the State commercial vehicle enforcement team 
reviews the inquiry and determines what action needs to be 
taken, whether to grant it, to correct data, if in fact it was 
a violation applied to the wrong carrier, or actually remove 
the violation because of the information and the substance that 
the carrier reported.
    Out of the 34,000 data queries that occurred in 2011, 
roughly half were actually acted upon. Either data was updated 
and corrected or removed. But it--so, in fact, what we have 
provided is a clear set of guidelines for States to follow, to 
take into account all information the carrier presents, and be 
both respectful of the process, respectful of the inspector's 
work, and give it a fair analysis and make a determination.
    Mr. Coble. I thank you. I thank you for your response.
    Mr. Johnson, as a business owner who is obviously concerned 
about safety, what information could the FMCSA provide that 
would help you to make good decisions, decisions good for 
safety, good for your customers, good for the economy in 
general?
    Mr. Johnson. What we really need, we just need a clear 
picture of who is not safe. If FMCSA was able to tell us who is 
not safe, our industry would not use those motor carriers, and 
they would fail at that point. But by having very much--many 
gray areas--and if you ask FMCSA to tell you who is a safe 
carrier and who is not, they can't really tell you that today, 
based on their own data. And also, much of the data is not made 
public.
    So, just clear up the confusion. Give us a clear 
distinction of who is unsafe. And our industry will stop using 
those carriers.
    Mr. Coble. I thank you, sir. I yield back, Mr. Chairman.
    Mr. Duncan. Thank you very much, Mr. Coble. And I will save 
all my questions until everybody else has a chance. But I did 
want to clear up one thing when you responded to Mr. Coble. 
Does the--when it--something is appealed, does it go back to 
the same officer who issued the violation?
    Ms. Ferro. It generally goes to that officer's commander, 
and whatever team or individual the commander has established 
to analyze those data queries. And that individual generally 
does ask the officer their perspective. That is absolutely 
correct.
    And we will say we use this process as an improvement 
process, because there are times--as I said, about half--are 
acted upon. The other half are preserved, as they----
    Mr. Duncan. So my staff was wrong when they said it goes 
back to--the appeal goes back to the same person who issued the 
violation.
    Ms. Ferro. No, your staff is right to the extent that, 
invariably, the team or the individual officer assigned to 
handle the data inquiry in the State does ask the officer----
    Mr. Duncan. But that officer doesn't decide the--make the 
decision. It goes to--the commander makes the decision, or 
somebody--is that correct?
    Ms. Ferro. If I may suggest that Chief Palmer address that 
for the specific operation in Texas--in our--in many cases that 
we see, it goes back to the person responsible for managing the 
DataQ process, which may be the commander, it may be a staff 
support person. But not the officers, per se, not the 
individual officer.
    Mr. Palmer. Mr. Chairman, it--in some cases it--in Texas, 
for example, which is, I think, fairly consistent across the 
enforcement community, as a general rule in Texas, when we get 
that DataQ from a motor carrier, then what we do is we put it 
together and we send that, all the information, the supporting 
documents, to the--in our case, the captain of that particular 
district in the State. And then it is that captain's 
responsibility to look into that DataQ and then make a decision 
as to what to do. They do speak with the original officer, in 
case there is additional information that is not included on 
the inspection report, or, especially in the cases of a crash 
report, which can be very complex, then they do speak with 
them. But the final decision rests with that officer's 
immediate supervisor.
    Mr. Duncan. All right, all right. We will go next to 
Ranking Member Rahall.
    Mr. Rahall. Thank you, Mr. Chairman. Mr. Chairman, I have a 
statement from Mr. Todd Spencer, the executive vice president, 
the Owner-Operator Independent Drivers Association, and I ask 
unanimous consent it be made part of the record.
    [No response.]
    Mr. Duncan. Without objection, so ordered.
    [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. Rahall. Then, quoting from that testimony, I have a 
question for Administrator Ferro. According to Mr. Spencer's 
testimony--and I quote--``Small carriers are less likely to be 
inspected as often as a carrier who has hundreds, if not 
thousands, of trucks, so it is difficult for them to show a 
score, much less the positive scores demanded by shippers and 
brokers.''
    And this question follows up on concerns raised earlier by 
Mr. DeFazio, and that is it almost seems like one must commit a 
crime and then receive a full pardon just to get into the 
system. Your thoughts on that?
    Ms. Ferro. My immediate response would be that is not the 
case, that is not correct. Let me again walk through the 
numbers.
    Out of the 525,000 active carriers, 85 percent are 5 trucks 
or fewer. We have such a significant impact on small business, 
we are very sensitive to it. That is about 425,000 to 450,000 
carriers out of the 525,000. Those numbers are well represented 
within the 200,000 carriers on whom we have data, because there 
is only 75,000 others with 6 or more trucks in that mix, and 
actually, a far fewer number of really large carriers.
    The reason large carriers have a high number of inspections 
is they generally are operating far more equipment and have a 
higher exposure rate on our highways. We do work very hard to 
ensure that we are also inspecting--law enforcement across the 
country works on inspecting all vehicles that identify a risk 
to them that come their way, for one reason or another, either 
there is a weight issue or they have pulled it in through some 
of the randomized systems that we have identified through the 
inspection selection process.
    So, while--do all small or owner-operators--have all of 
them had an inspection? Maybe not in the past 2 years. Probably 
yes, some time in the past several years, if they are 
operating. But this system works off of 2 years of data.
    Mr. Rahall. OK. Let me ask you another question, another 
concern expressed by OOIDA. They have expressed concerns over 
alleged--how alleged violations are handled under CSA. A 
citation issued at roadside is reflected in CSA, even though it 
may be challenged and overturned in court. How does CSA handle 
these type of situations?
    Ms. Ferro. In our guidance to the States on the DataQ 
process, we identify the matter of a State charge along with a 
violation and the State charge being dropped, and to again 
recommend to the commanding officer or the DataQ contact in 
that State that they take into account whatever information the 
individual driver or company owner presented to the court that 
resulted in the decision of dismissing the particular case, and 
to use their best judgment in making their final decision. We 
do not today direct States to drop a violation if, in fact, a 
State charge was dropped.
    This is a matter that continues to be of real importance to 
the carrier community and the enforcement community. And one of 
the ways we have ensured that we are going to have an ongoing 
forum to have these kinds of discussions and address these kind 
of issues is we created a CSA subcommittee within the Motor 
Carrier Safety Advisory Committee, just created last month when 
the Motor Carrier Safety Advisory Committee met. And I feel 
fairly certain that the CSA subcommittee is going to have 
this--actually, I know that it is already on their list of 
issues that they want to discuss, this matter of how do you 
handle a violation in the DataQ process if the State conviction 
has been dropped, or the State charge. So that one I think will 
continue to get some attention, and probably some additional 
recommendations.
    Mr. Rahall. Any other member of the panel wish to comment 
on either question?
    [No response.]
    Mr. Rahall. OK. Thank you, Mr. Chairman.
    Mr. Duncan. Thank you very much. We are always honored to 
have a former chairman of the full committee. And, Mr. Young, I 
don't know whether you want a few minutes to catch your breath, 
or do you have something you wish to say at this point, or--you 
just got here, so----
    Mr. Young. Mr. Chairman, I never have to catch my breath.
    [Laughter.]
    Mr. Young. Mr. Chairman, first let me say I appreciate 
having this hearing, because--and for the chairman, Ms. Ferro, 
and the rest of you at this table, the reason we have these 
hearings--we are beginning to get complaints. And my biggest 
concern, Mr. Chairman, is I have watched over the years 
agencies that lose contact with what they are trying to do 
through--I call it gobbledygook. I love that word, 
gobbledygook.
    Bureaucrats that have a paycheck which really don't 
understand why they get it, but they are doing it because they 
can, and that disturbs me. And I just--that is my comment.
    Now, questions. And, by the way, Mr. Chairman, I do believe 
I will ask you respectfully to have an audit of the CSA and see 
where they arrived at the decisions they have arisen at. You 
know, the formula--let me give you an example. The formula they 
used in CSA was written by the FMCSA. And is that correct, that 
is what was--that is the formula, right?
    Ms. Ferro. The analysis----
    Mr. Young. I can't hear you, by the way.
    Ms. Ferro. Pardon me. Yes.
    Mr. Young. Oh, it was written--so that means the chicken 
was telling the fox what they are supposed to do. Or vice 
versa. It is my understanding that these formulas mean that 
scores were reduced based on time passed since the violation, 
the number of clean inspections since that violation. Is that 
correct?
    Ms. Ferro. Could you repeat that question? I am not 
understanding----
    Mr. Young. It was the--it is my understanding that the 
formula means that scores are reduced based on time passed 
since the violation and a number of clean inspections since the 
violation was--the violation. Is that correct?
    Ms. Ferro. Well, let me clarify. This is not a scoring 
system. It is a set of algorithms and analysis that was 
developed with the assistance of the Volpe Transportation 
Center and with input from all of these stakeholders here over 
the course of 6 years.
    Mr. Young. Was their input listened to?
    Ms. Ferro. Absolutely.
    Mr. Young. Oh, absolutely.
    Ms. Ferro. Absolutely.
    Mr. Young. There may be difference of opinion on that. So, 
let's say a large carrier has hundreds of trucks, and we will 
see their score go down faster than a small carrier with one or 
two trucks. Simply by nature, they are going to see more 
inspections. Is that correct?
    Ms. Ferro. That is not correct. Again, the system uses 
clean inspections, as well as inspections with violations over 
the course of a 2-year period.
    Mr. Young. So you think your formula is good?
    Ms. Ferro. We have a very sound system. Is it perfect? No, 
and I----
    Mr. Young. Then why are we having this hearing if it is so 
sound? Someone doesn't think it is sound. Mr. Chairman, is that 
correct?
    Mr. Duncan. There is a lot I can say about that, Mr. 
Chairman--I mean we have been getting a lot of complaints 
around the Nation. And I was going to get into this later, but 
you----
    Mr. Young. Well, that is what I am saying. Madam Chairman--
and just cool it for a while, OK? I am not hostile yet. I can 
get hostile. I guarantee you that. But I am--as I mentioned in 
my opening statement, there are complaints. I have complaints. 
And there is a reason those complaints are coming forth.
    Now, you may not be hearing it. It may be just from your 
staff alone. That is why I do think, Mr. Chairman, if you don't 
do it, I will ask for a GAO report, just to make sure that 
there is some understanding where we are going in this program.
    I think that, you know, this is supposed to be a working 
program, work together. And I have always been one to try to 
make sure you understand just because you get a paycheck, that 
you have a responsibility to those you are serving, to make 
sure it works correctly, not because you have an illusion on 
how it should work. You have to listen to those that you serve 
on the bureaucratic system.
    That is wrong with our Government today, Mr. Chairman. We 
are not being run by a legislative process. We are being run by 
bureaucrats. The President. Not just this President, all 
Presidents. And it is our responsibility to review, find out if 
there is a problem. And if there is a problem, you will fix it. 
If you don't, we will. That is very simple.
    Mr. Chairman, I have no other questions at this time. I may 
have some later on.
    Mr. Duncan. All right. Thank you very much. Mr. Holden.
    Mr. Holden. Thank you, Mr. Chairman. Administrator Ferro, 
in addition to the CSA program, your agency administers the 
HMSP program, which covers less than a half percent of the 
estimated 525,000 active carriers on the agency's roll. And 
this program operates as a fitness determination standard for 
this universe of motor carriers.
    Congress included provisions in MAP-21 to prompt rulemaking 
addressing flaws in the CSA program. It is my understanding 
that your agency has stated that the HMSP rulemaking must wait 
publication of the CSA safety fitness determination final rule.
    I believe that lessons learned from the hazmat safety 
program would be helpful to your goal to transition CSA into 
the agency safety fitness determination standard. Would it not 
be a better course of action to perfect the hazmat safety 
program with its smaller client base first, then use that to--
template to anticipate the larger CSA population?
    Ms. Ferro. It very well could, just as you describe, 
because again, the hazardous material operators in many ways 
already demonstrate, by virtue of their obligations and their 
cargo, a high degree of safety in operations.
    There is a challenge within our rules themselves that sets 
the safety fitness determination as driven by, today, a 
compliance review. That element of the rules that we operate 
under needs to be changed first, before we can incorporate 
these performance elements in the CSA program into a safety 
fitness rating. But we will go back and again examine if there 
is a way that we can carve out a smaller piece. In the meantime 
we are pressing forward. We understand the importance of 
putting a safety fitness determination rule on the street, and 
we are very eager to have a proposed rule published early next 
year. But we will absolutely go back and examine the approach 
that you described.
    Mr. Holden. OK. Thank you. Thank you, Mr. Chairman.
    Mr. Duncan. Thank you. Mr. Boswell?
    Mr. Boswell. Well, thank you, Mr. Chairman, and for having 
this hearing.
    I guess I would first like to start off with a compliment. 
It is a good panel, good discussion. The time is right we need 
to be doing this. And I thank all of you for participating. I 
think you came with a desire to participate and appreciate 
that. The criticism is I would like to see somebody on the 
panel in the future from the--as Mr. Rahall just made a comment 
about the Owner-Operator Independent Drivers Association. If 
they represent 90 percent of the carriers out there, those 1, 
2, 3-truck owners, I would like to have one on the panel. And I 
would just like to leave that for your consideration.
    I took some interest in the comments made by some of the 
panel--well, all of you, in fact--but some of the comments made 
by Mr. Mugno about the small trucking firms. I thought a very 
good point was made by Mr. Rahall. In order for that individual 
trucker to receive a score, he must first receive a violation. 
And in order to receive a violation, you must be inspected. And 
to--a bad score, obtaining as many clean scores as possible is 
the objective. Small carriers are off the radar, and those who 
have negative scores have little opportunity to cure. I think 
it points out a problem. And we ought to really try to do 
something about it. And I trust that is what we will try to do. 
So I am going to encourage we do that.
    I think it has been brought out--it would be redundant for 
me to repeat what Mr. DeFazio said, and Mr. Rahall, or others. 
And we see a need. And I ask that, one, we put members of the 
Owner-Operators on panels in the future, if we possibly can. I 
wouldn't know why not. I would like to be able to ask him or 
her that is out there trying to make a living and do something 
you like to do and something I used to do a little bit. And I 
have a lot of small operators, one or two rigs, in my district 
that haul grain and farm supplies and all those things that go 
with it. And I would like to include them in the process more.
    I appreciate the fact that, Mr. Mugno, that you kind of 
referred to those folks, and thank you for doing that. 
Appreciate it, Mr. Johnson and others. And they are very part 
of our economy and we need to take them into mind.
    So, with that, I will just yield back and anticipate what 
we can do to, as you said, Ms. Ferro, make it better. That is 
what we are all about. I don't know why we didn't have 
opportunities when we went through the process to have a little 
more time, but I think we are doing the right thing. But we got 
to do it right, and I think we have opportunity to do it 
better. And I will encourage that. I yield back.
    Mr. Duncan. Thank you very much. Mr. Walz?
    Mr. Walz. Well, thank you, Mr. Chairman. And again, I want 
to thank all of you for being here. It is obvious that 
everybody here's goal is the same of working toward zero deaths 
and safety amongst all, and making sure our operators are able 
to do what they need to do to create those jobs that are so 
important. So I am very grateful for that.
    I spent August at several carriers, got out in preparation 
to talk about this issue, went out and talked to our folks. I 
represent a rural agricultural district. This time of year it 
gets pretty busy on our roads. Lots of things moving. And 
people are very cognizant of this. And I can tell you, in every 
one of those carriers, safety is the top concern for them. 
Their families are on the road. Their kids are going to school 
in the morning. They understand this probably more so than 
those of us who might be blissfully ignorant of some of the 
gaps that are there. So, I think it is there, and I have no 
doubt that the Administration wants to do everything possible 
to this.
    I just had several questions. I mean it seems like it 
always comes down to this. The vast majority of our good actors 
end up getting caught up for what the bad actors do, and 
everybody gets caught in that same net. And we are not 
necessarily doing what we all want to do, is to reduce 
specifically where those problems are.
    And I think Mr. Gentry brought up a really good point that 
we have to focus on. The issue many times comes down to 
drivers. It is not necessarily equipment. We have done much on 
that. We had many hearings in here on wetlines, on the 
transport of fuel and flammable materials, and how some of that 
happens.
    I just had a question on this. This is one of the things--
this is for you, Mr. Ferro--that my carriers ask me if it is 
possible to do. They want to hire the best drivers, but they 
believe--they don't have access--and I am very cognizant of 
personal privacy and everything else, but they want access to 
that driver safety record, including access to drug/alcohol 
testing, and the driver's accident history. They believe if 
that could be maintained by you, accessed by them prior to 
hiring practices, they would be better off.
    I know this is a big can of worms. But they are convinced 
that, if all the things we do, if they have that opportunity--
they are being accountable for the liability of that driver. If 
that knowledge is out there, someone has it, and it impacts 
their performance, can you explain to me maybe the legal--or 
the concerns with that? And I say that because they are very 
honest about this. They want to follow the rules, but they 
think the biggest thing stopping them is that they don't have 
that.
    Ms. Ferro. Yes. Well, so, quick things. It is all about the 
driver. And 9 out of 10 crashes are the result of something a 
driver did or didn't do. Consequently, out of the seven BASICs, 
really, four of them are very specific to driver behavior: 
unsafe driving, driver fitness, drug and alcohol compliance, 
and hours of service compliance. That is CSA. Your constituents 
are right on target. They need a tool to prescreen before they 
make a hiring decision.
    We have a program that we rolled out about the same time as 
CSA that was mandated by Congress called the pre-employment 
screening program, or PSP. And it provides employers access to 
a driver's violation history for 5 years, a 5-year period--
actually, 3 years on violations, 5 years on crashes. And an 
employer, with the sign-off from a perspective employee, can 
access the system, obtain that violation history record, and 
use it in their pre-employment decisionmaking. And many 
employers are using that today. It has been a very----
    Mr. Walz. And the thought is if the person didn't allow 
them to sign off, that there was a reason they weren't allowing 
them to sign off?
    Ms. Ferro. That would be an indicator. And I think most 
drivers who are applying for a job with a company will sign off 
on that acknowledgment. It is not a new acknowledgment 
requirement on any kind of a record access. So that is one 
important piece.
    The second piece you mentioned: drug and alcohol 
compliance. And we are proceeding with a proposed rule on--to 
establish a drug and alcohol clearinghouse that would allow 
employers to determine if a driver-applicant or a current 
driver, actually, has tested positive somewhere else, either 
with another job they had applied for, or while they were 
working part-time somewhere else while under that individual's 
employ.
    We are fairly close in completing a proposed rule, in terms 
of it still has to go over to OMB. But--and at the same time--
again, Steve Owings mentioned MAP-21. MAP-21 includes a mandate 
for us to put forward a drug and alcohol clearinghouse rule and 
system. And so we are very excited about that. We are pressing 
forward on it.
    Mr. Walz. For some of the carriers I have just a little bit 
of time left. Is this a legitimate concern they are talking 
about--that help you, if there is more access to those records 
before you make hiring decisions? I don't know if anybody wants 
to tackle that. Mr. Gentry?
    Mr. Gentry. Yes, sir. Absolutely. It is almost like it 
would be good if you had a eligibility roster on the Federal 
level to where somebody comes in my door and they are asking 
for a job, I can go online, I can look and see if they are 
eligible. Because if they have been fired from another 
position, from another job, if they had failed drug screens or 
if they had accidents and they were fired, see, there is 
nothing that protects----
    Mr. Walz. Right.
    Mr. Gentry. Well, let me put it this way. They can leave my 
company and, as bad as the need is for drivers, somebody is 
going to hire that person if they are breathing and they have 
got their CDL.
    Mr. Walz. Yes.
    Mr. Gentry. As long as they pass their pre-employment drug 
screen, they pass their background check. But it doesn't tell 
us that they were just involved in, you know, three crashes 
that were last week or----
    Mr. Walz. Yes, I feel very strongly about that. I think 
that is right, because they want to make the right decision. 
And I would have to say, Ms. Ferro--and I certainly know the 
commandment to getting this right--but I think Mr. Young is 
right. I am certainly hearing this out there. And it is not 
done in a combative manner, it is done in a ``We want to be 
your partners in making this safe, but please listen to us when 
we tell you some of the things that aren't working.'' So I am 
very appreciative of all of you here expressing that. And I 
yield back.
    Mr. Duncan. Thank you very much. I didn't know Mr. Barletta 
had come back a few minutes ago. But Mr. Barletta?
    Mr. Barletta. Thank you, Mr. Chairman. Ms. Ferro, could you 
please explain to me the connection that exists between crash 
risk and violations like having an inoperative license plate 
light or the sleeper berth not having a blanket?
    Ms. Ferro. The--let's walk through the BASICs. The seven 
elements of analysis in the CSA system are not all highly 
correlated to crash risk. The ones that are the strongest are 
unsafe driving, which would not incorporate the two items that 
you identified, the crash indicator, and hours of service 
compliance--today known as the fatigue BASIC, but will soon be 
the hours of service compliance BASIC.
    The others are all indicators of compliance, and compliance 
is a core component of ensuring not just that you are following 
the Federal Motor Carrier Safety Regulations, but that you are 
demonstrating the behaviors to be a safe carrier. That is why 
those rules are in place and established through Federal 
mandate and the rulemaking process.
    What we have found, and what our analysis shows, is that on 
those BASICs that are compliance-specific, say in some of the 
vehicle maintenance areas, there is a--generally, three out of 
four carriers that are high in one of the compliance BASICs, 
specifically the driver fitness--three out of four of those 
carriers are going to have another BASIC where they are 
exceeding a threshold and is an indicator that we need to go 
and look at them.
    But each of those violations, those violations you 
mentioned, probably have lower weights than others, because 
they are an indicator of compliance or lack of compliance, but 
not necessarily that safety risk that you identified. The 
system together is what we utilize for making decisions.
    Mr. Barletta. Do you think, for example, not wearing a seat 
belt gets a weight of seven, but following too close or 
improper lane change is a five. How do you justify that?
    Ms. Ferro. Not wearing a seat belt is a high indicator of a 
problem, if you are in a crash, not just for that driver--seat 
belts save lives--but the fact that a seat belt also keeps you 
in place if that--if you start losing control of that vehicle 
and you are not belted.
    Mr. Barletta. How about improper lane change, though? If 
you are driving on the mountains of Pennsylvania, I could tell 
you if I had to choose between somebody not wearing a seat 
belt, a truck driver, or an improper lane change, 10 out of 10 
of us are going to say an improper lane change is a much more 
severe violation than not wearing a seat belt, or following too 
close.
    You know, I am all for truck safety. My family was in the 
trucking business and construction business. But, you know, I 
think if we look at this practically, I don't know if there is 
anybody here would say that an improper lane change is less 
severe than not wearing a seat belt.
    Ms. Ferro. Well, if I could just--I mean your point is very 
well taken. And the whole concept of listening to the concerns 
that have come forward is very relevant to us. We had the Motor 
Carrier Safety Advisory Committee last year look at the 
weightings for this very reason, because, again, the concerns 
came up early in the process. We want to address them.
    So, it is part of the analysis that we have undertaken. The 
Advisory Committee recommended some changes to the weighting 
system. And we just announced in August, when we rolled out 
some of the changes, that the next round of changes we are 
analyzing include the weights and the relationship of weights 
to----
    Mr. Barletta. I just think it makes more sense to----
    Ms. Ferro. Yes.
    Mr. Barletta [continuing]. Really focus on driver error and 
driver abuse.
    Mr. Mugno, what are the biggest problems FedEx has 
experienced with CSA, and how do you recommend fixing the 
problem?
    Mr. Mugno. As I indicated in my statement, it is the lack 
of a relationship between the carrier's CSA score and crash 
risk. It is the underlying data that we have a concern with, 
and its inconsistency. And then it is the system's methodology. 
Almost got through today without pronouncing that word 
correctly.
    Mr. Barletta. Sorry about that.
    Mr. Mugno. What happens with those, then, it creates these 
symptoms that result from those. And it is an inefficient use 
of resources, not just for the agencies, State or Federal, but, 
quite frankly, for in-house safety programs of ATA carriers, as 
well. We too have to prioritize, we too have resources that we 
have to try to maximize as much as possible.
    And, obviously, we would like to put them where the 
priorities are. And, as we stated today, we think the priority 
ought to be on future crash risks, and reducing those as best 
we can. It is the use of the flawed scores by either the 
agencies--even ourselves--and focusing on that to change that, 
because that is what everybody is focused on, and/or these 
third parties that we are talking about, as well.
    And then, finally, one of the other symptoms that really 
bothers us--and it was talked about here today--is the DataQ 
system, the appeal process, and the amount of time and 
resources and efforts that go on there, the lack of consistency 
that is going on with those.
    I do want to also, though, say that there is--we want to 
end on a high note and good note here on this. We are very much 
in favor and positive on the CSA principle, in and of itself. 
Again, carriers are very supportive of that. We like the 
additional focus that has been put on this. We like the 
additional dialogue that we are having with law enforcement 
agencies, the agency itself, others, drivers, carriers, and all 
that. That is working. That is what attracted ATA and its 
members--for me, personally, when I went to my very first CSA 
2010 stakeholder meeting about 6-plus years ago, I guess it 
was, now. And doing that. So, I mean, all those things remain 
positive.
    The problem, obviously now, is that the new channel of 
dialogue is more focused, unfortunately, on these issues that 
we are talking about today, as opposed to, in our opinion, 
getting--taking care of the future crash risk that we really 
want to get to.
    Mr. Barletta. Thank you.
    Mr. Duncan. Thank you very much. Ms. Ferro, Administrator 
Ferro, the Wells Fargo study said there is no meaningful 
statistical correlation between BASIC scores and actual 
accident incidents. And Dr. Gimpel of the University of 
Maryland said for many carriers, the association between crash 
risk and the BASIC scores is so low as to be irrelevant. And 
Mr. Mugno earlier said scores don't relate to crash risk.
    Now, what do you say about those three different--that is 
coming at you from three different directions, all saying the 
same thing.
    Ms. Ferro. The analysis approach on CSA differs among the 
different parties doing the analysis. Our analysis that, again, 
validates this model, this model which uses inspection data--
folks have been carrying out inspections for 30 years, but much 
improved inspection data in the past 5 and 6 years--utilizing 
current inspection data to analyze and help us determine a 
company's performance so we can prioritize our resources. That 
is the underlying principle. And we have analyzed it across the 
entire body of carriers and inspection data.
    The two studies you mentioned use smaller populations of 
data, smaller populations of carriers, and not necessarily the 
full database that included smaller companies, as well. We have 
found--because we met with the Wells Fargo analyst--that we are 
coming at the analysis from different directions, which is OK, 
because if we keep talking we can continue to challenge 
ourselves in understanding how this model works, and 
reinforcing where it is working and how it is working well.
    So, in terms of our analysis on crash risk and compliance 
risk, we go back in time. We look forward at carriers that have 
had crashes, and go back in time with their compliance and 
inspection history, and determine where there is a corollary or 
a correlation in outcomes. In terms of the studies that you 
just described, they are using today's data to determine 
today's crash date, which is not one and the same. The whole 
focus of our work is to make sure we are intervening with 
carriers, where carriers are looking at their own information 
and taking the right actions before a crash occurs.
    So, from this perspective that it is both--it is a relative 
system but it is all driven on a preventative concept, that the 
warning letter concept, the focused review that Mrs. McBride 
mentioned, are all geared to have the conversation with the 
carrier where trends are going the wrong way to avoid something 
happening down the road, so that they can take the actions, 
understand the why, and perhaps modify their behavior.
    Mr. Duncan. What do you say to Mr. Gentry when he says he 
thinks it is unfair to keep on a Web site a violation by a 
company where they have fired a driver, and it is still on 
there 2 years later? What do you say about that?
    Ms. Ferro. I say that has been an ongoing discussion for 
all of us.
    Number one, we don't know when a company has or has not 
fired a driver, because we don't have drivers recorded with 
company. We can only tell after an inspection has happened 
through our PSP database what company they might be with on the 
day of that inspection. So we don't know when you have hired or 
fired a driver, to begin with.
    But also, the whole focus is on patterns. It is not a 
single violation that is going to put you in a threshold or 
above a threshold. It is patterns of violations. And firing a 
single driver may not be an indication that the company is 
changing its hiring practices. And that is why the data stays 
on for 2 years. It ages over time.
    And if it is of the severity or a pattern that prompts us 
to actually do a review with the company, it is going to result 
in a discussion as to what is the company doing, or what has 
the company done to modify its overall hiring practice, if 
there was a pattern. If it was a unique instance with that 
driver and they fired him and we are doing a safety rating 
review, it will probably be reflected in the safety rating.
    But again, it stays in the data because it is an element of 
looking for patterns. And those do age over time, if that--when 
that company--if, in fact, that was a unique or stand-alone 
instance.
    Mr. Duncan. What about his suggestion that you have an 
actuarial study done on this?
    Ms. Ferro. I like that. I wrote that one down. That is 
the--I think a very valuable discussion.
    Mr. Duncan. I want--before Chairman Young has to leave, I 
want Mrs. McBride to--we were having a little trouble with your 
microphone and he wasn't here, but you--your company, you said, 
started 70 years ago. And it has operated all that time, and 
has been one of the most respected, successful companies in the 
industry. And you said you have an accident rate of--was it--
that was your fault, was it .02 of--per million? Would you 
repeat that, exactly what that was?
    Mrs. McBride. 0.2, yes, sir. Basically----
    Mr. Duncan. We are having a lot of trouble with your 
particular microphones. I do not understand why. But anyway----
    Mrs. McBride. I apologize.
    Mr. Duncan. That--now we can hear you.
    Mrs. McBride. Much better, much better. Yes, sir. It is 
0.2. Wow.
    Mr. Duncan. Per million?
    Mrs. McBride. Per million miles.
    Mr. Duncan. And yet they came in with two inspectors who 
spent 9 days, is that correct?
    Mrs. McBride. That is correct.
    Mr. Duncan. And they were there full-time in all that time.
    Mrs. McBride. They spent 9 business days at----
    Mr. Duncan. Nine business days.
    Mrs. McBride [continuing]. At our office. Yes, sir.
    Mr. Duncan. And what--and tell Chairman Young about that.
    Mrs. McBride. They conducted a focused audit, and at the 
end of the time Colonial's satisfactory rating remained 
unchanged.
    I would like to, if I could, get into----
    Mr. Duncan. But before you go on, though--but you said that 
you would have--you came close to--you would have had to shut 
down, though, or almost. Explain that part, about your self-
insurance and so forth, what you said a while ago.
    Mrs. McBride. Colonial is self-insured, and has been for 
the past 25 years. And it is our understanding from the FMCSA, 
had we received a conditional or unsatisfactory rating, that 
our self-insurance program would have been in jeopardy. And 
this could have caused us to have to close our doors.
    Mr. Duncan. After 70 years.
    Mrs. McBride. After 70 years.
    Mr. Duncan. Anyway----
    Mrs. McBride. That is correct.
    Mr. Young. Mr. Chairman, if I may just follow through on 
that.
    Madam Chairman, where do these guys come from? They go in 
to an outfit that has gone that long and spend 9 days. Did 
someone complain about them?
    Ms. Ferro. It is actually a great example of how the 
process works. The data showed that this company in particular 
had a very high rate of noncompliance relative to companies 
that had a similar number of inspections.
    Mr. Young. After 70 years? And what was the percentage, 
Mrs. McBride, .02?
    Mrs. McBride. Yes.
    Mr. Young. Of a million miles? Now, there is people that do 
better than that?
    Ms. Ferro. So, again, it was hours of service. Hours-of-
service violations have a high correlation to crash risk. But 
here is where our investigators went in, they--the company 
data, their own records, their own performance, demonstrated 
their strong safety practices. It was an unrated review. They 
have got their satisfactory rating and we move on. But again, 
it was--we hope that the result of that discussion is that the 
company also is looking more closely at driver violations on 
their log books.
    Mr. Young. Again, if I can say, this is a classic example 
of an agency that doesn't answer to anyone.
    Mr. Chairman, again, this is what is wrong with our 
country. I want to ask all of you here. Let's say you are the 
trucking companies and I am a CDL holder. I drive a truck once 
in a while. I have to haul the nonsense out I create all the 
time. But having said that, I do not create the accident for 
the company I work for. Someone else creates it. Does that 
affect your rating?
    Mrs. McBride. Yes.
    Mr. Young. It does affect--even though the driver is not at 
fault, but it goes on their record and stays as an accident of 
your company?
    Mrs. McBride. Yes, sir. It does.
    Mr. Young. Now, even in the insurance company that doesn't 
happen. How come you can do that?
    Ms. Ferro. Well, to clarify, the accident--the crash 
actually does not affect her company's safety rating.
    Mr. Young. But it is registered. It is on the record.
    Ms. Ferro. It absolutely is on the system and the 
database----
    Mr. Young. Why?
    Ms. Ferro [continuing]. As a recordable crash.
    Mr. Young. Why?
    Ms. Ferro. Well, that is part of transparency in 
Government----
    Mr. Young. Transparency? When it is not their fault? And 
yet someone sees that record?
    Ms. Ferro. Well, down the road we are looking at this whole 
concept of preventability and nonpreventability. But that 
answer isn't with us today. But the crash event itself, the 
crash report, is on our database, and has been for many years.
    Mr. Young. Again, I go back. I drive a truck. It is not my 
accident. Some idiot is on a cell phone, drives under my truck, 
which has happened, and it is my fault? And it is my company's 
fault? Now, where is the rhyme behind that? Where is the logic?
    See, I have got a new idea, Mr. Chairman. I am a quasi-
inventor. I am going to invent a logic pill. And I am going to 
require every bureaucrat--and even every congressman; I will 
fit us in there--to take one logic pill a day or they can't 
serve. Logic. Solves problems, not adversarial position.
    Mr. Chairman, I have had enough of this. Thank you.
    Mr. Duncan. All right. Let me ask this. Mr. Palmer, if a 
carrier has a dismissed violation, I am told that that 
continues to be listed on the SMS as a violation. Is that 
correct?
    Mr. Palmer. When they have received a citation and it was 
dismissed, sir?
    Mr. Duncan. Yes.
    Mr. Palmer. In some cases it could. It is typically--and it 
is the Commercial Vehicle Safety Alliance's position and--
typically enforcements that--what we do is just because a 
violation is dismissed, we don't automatically say that it 
needs to come off. What we do is we still look at it, and we 
determine whether, based on its merit, whether or not it should 
still remain on that inspection report. If there is supporting 
documentation, if there is support to show that it should be 
off, then we absolutely take it off.
    But what we try to avoid is taking a violation off of an 
inspection report solely because of a technicality or some 
other reason. So we try to use--to Mr. Young's point, we try to 
use logic in that process.
    Mr. Duncan. All right. Let me ask this, and I will go back 
to Mr. DeFazio.
    Mr. Johnson, you all came and met with me, and you said 
that your company had the--was it $25 million in a lawsuit 
where you had hired a truck or something? Tell me about that.
    Mr. Johnson. Correct.
    Mr. Duncan. We didn't get into details about that in our 
meeting.
    Mr. Johnson. Correct. We had a juried judgment against us a 
couple of years ago for $25 million for a motor carrier 
accident with some passenger vehicles. And C.H. Robinson was 
found to be liable for the excess amounts beyond the carrier's 
insurance limit, and their ability to pay, just because it was 
the vicarious liability argument. So because we had hired the 
truck, or the motor carrier, we were found that they acted as 
an agent of ours. So it changed the whole independent 
contractor scenario for motor property brokers like ourselves.
    If you think about it, it is kind of similar to if you get 
in a taxi cab and you ask him to take you somewhere, if he hits 
a pedestrian along the way, should you, as the passenger, be 
found liable for those damages? Because you were the one that 
was telling him where to go. So----
    Mr. Duncan. Right. Mr. DeFazio?
    Mr. DeFazio. Thank you, Mr. Chairman. Administrator Ferro, 
let me see if I can--because Congressman Young raised the same 
concerns I raised earlier about at-fault crashes. And we 
discussed--I think he wasn't here at that point--that you are 
looking at working toward a rating system for fault, at fault.
    I think if you, you know, got from Congressman Young, there 
is a lot of focus and concern around this. And, you know, I 
raised it 2 years ago. And I mean it is not going to go away. 
You know, I think we have got to find that there is going to be 
a system that will work, that will attribute fault, no fault, 
and that--you know, otherwise it really is an unfair burden, I 
think, even though there may be some study that says there is a 
correlation when your truck is parked and, you know, you are 
sleeping, and someone crashes into it, that you are more likely 
to have a crash in the future, I just don't--I would question 
the basis for that.
    Anyway, so when--it is my understanding you are developing 
a--you know, there is going to be a final conclusion here. Mr. 
Johnson talked about they want a bright line. Are we going to 
have a bright line, or are we going to have the existing 
system, which is a--three part, which is, you know, 
satisfactory, conditional, unsatisfactory? What are we going to 
end up with? Are we going to end up with a safe, unsafe? What 
are you finally looking at? And you are going to go through a 
rulemaking when you come to that final point. Is that correct?
    Ms. Ferro. That is correct.
    Mr. DeFazio. OK. Could you tell us--is it going to be--are 
we going to get a bright line, or are we going to get, you 
know, two lines and a gray area? Or what are we going to get?
    And I guess three-part question, because I--you know, the--
there is--I am having--you know, I mean, obviously ending 
fatalities and deaths and unsafe driving is our ultimate 
objective, which I think is shared, despite some differences 
here. But is this ultimately a program whose objective is to 
really try and move people towards safer practices and 
companies towards safer practices, a self-help system? Or is it 
ultimately just going to be a rating system? Or is it going to 
be all things, somehow?
    Ms. Ferro. Well, let me go back to the question about the 
safety fitness determination process and rule, the proposal 
itself.
    Number one, absolutely. For us to change the way we 
establish a safety rating, we must go through a rulemaking 
process. Today the safe--the satisfactory--conditional, 
unsatisfactory are tied to an on-site compliance review. A full 
compliance review, not the focused, as was described by Mrs. 
McBride. That rulemaking is what we call a safety fitness 
determination rule. It should be--we expect it to be an NPRM on 
the streets for extensive comment next year, really in the 
first quarter of next year.
    Without going too far--I am a little bit in that cone of 
silence period with the rulemaking--but I can say one of the 
aspects of the rule will be that it will establish thresholds. 
Today, the SMS system which we use to prioritize our work, law 
enforcement uses to prioritize inspection work, is a relative 
measure. You are compared to others in your same grouping, and 
you are relatively good or bad or above or below, depending on 
it.
    Under the safety fitness determination rule concept, there 
will be thresholds, so a company really knows. Am I above or 
below? In terms of the actual ratings, that is the part that I 
won't move on to today, because that is still part of the rule 
under development.
    Mr. DeFazio. And that goes to another concern that has been 
expressed about how today you can have a static record. You 
know, you have been rated. But other people's performance 
changed. And then you move. You know, I mean it seems to me 
that somehow we ought to be able to--and I think you just 
addressed that, you said it is--now it is relative, i.e., you 
know, you can move up and down, you can end up below the 
threshold all of a sudden, even though you didn't have any 
further violations--that this will have something that is more 
stable.
    I mean I know you said you can't be specific, but will it 
be more stable, or are we still going to be rating everybody 
against everybody?
    Ms. Ferro. The safety rating itself----
    Mr. DeFazio. Within category.
    Ms. Ferro [continuing]. Will have a set threshold. And we 
think, yes, there will be that stability that comes along with 
am I in the right spot or am I not in the right spot. That we 
absolutely----
    Mr. DeFazio. Right.
    Ms. Ferro. Keep in mind where we came from. We are tied to 
a compliance review process today that allows us to do about 
16,000 safety ratings a year. We probably have only about 
50,000 carriers out of the 525,000 today that have a safety 
rating--satisfactory, conditional, unsatisfactory--because 
resources are so limited. And it is the very reason why 
Congress, over the years, has--and GAO--has said, ``Use the 
data you are collecting, performance data''--stakeholders have 
said the same--``to really hone in on where your resources can 
best be applied, and try and utilize that data to establish a 
broader method of rating carriers.''
    So, that is what that safety fitness determination rating 
capability will do, it will take us from rating 16,000 
companies a year to rating 200,000 companies in a year. And we 
need to be sure it is a very fair process, that the NPRM gets 
lots of room for comment, and that there are some clear 
thresholds for carriers, so they know--because that is a big 
change from what we are doing today.
    Mr. DeFazio. We did hear some testimony about--I mean we 
are focusing on how you are going to use the data that you 
receive. We have also discussed a little bit about the quality 
of that data. But in Mr. Mugno's testimony he said that 15 
percent of States report less than 75 percent of their crashes.
    Is that--Mr.--do you want to give us a citation on that, 
or--I mean where you are--and then I could ask her to--is that 
accurate? That is what I believe was in your testimony.
    Mr. Mugno. I can't----
    Mr. DeFazio. Yes, can't find it right now. I know. Whenever 
you----
    Mr. Mugno. I am sorry, I can't put my fingers on it right 
now, but we will certainly submit that----
    Mr. DeFazio. But does that sound right?
    Mr. Mugno. It does.
    Mr. DeFazio. OK. All right. How are we dealing with that?
    Ms. Ferro. We are dealing with it--through--actually, I 
think the number is much higher now. That is an older number. 
And we will provide a followup, for the record, to the--access 
to the data, which is on our Web site today.
    The safety data improvement process was started because of 
a number of concerns over the timeliness and accuracy of data 
that States were reporting on inspection reports, on crash 
reports. The process was started--the grant program was started 
under SAFETEA-LU, and it provides $3 million a year for States 
to apply for money to improve their reporting systems and their 
training for their reporting systems.
    And over the course of the 6 years that the program has 
been in place, we have seen a significant improvement in the 
quality of data and the timeliness of data, including fatal 
crash reporting. Injury crash reporting is still an area where 
there are some gaps, and that is why we have highlighted it in 
this past year for States, in terms of kind of, again, raising 
the bar on the quality and integrity and timeliness of the 
data. So, again, we--Mr. Mugno will also provide kind of the 
source of the data, and the distinctions that we are drawing.
    Mr. DeFazio. OK. That would be helpful. And then, the--that 
sort of basic question, because we did discuss a little bit 
about now we are finally getting the--you know, we are moving 
toward the drug, alcohol testing clearinghouse. We apparently 
now have an integrated database so someone who has had their 
license suspended or revoked in one State can't go to another 
without--you know, that these--we now are--we have--basically 
dealing with those problems.
    So the question becomes why wouldn't we be looking at a 
system that rates drivers individually, as opposed to aggregate 
companies? I mean maybe you need to do both.
    Ms. Ferro. And we have discussed doing both. We want to get 
the carrier measurement system in place before we take the next 
step in rating drivers. We have an internal mechanism we use 
when we are going out to look at a company that does give us--
one of the indicators may be a highlight, a driver measurement 
system using, again, the violation data I discussed earlier. 
But there is no project today, or plan today, to put a driver 
safety measurement system in place. It is absolutely something 
that we are very interested in.
    There was some component in our technical assistance that 
requested some clarification in our authorizing language to be 
sure we had the authority to do that. It wasn't adopted. But 
again, we will be pleased to report back as we move forward. 
But our first and primary goal is to put the carrier safety 
determination rating system in place on the heels of the SMS 
system.
    Mr. Duncan. OK----
    Mr. DeFazio. Well, thank you. Thank you, Mr. Chairman, for 
the generous amount of time.
    Mr. Duncan. Thank you, Mr. DeFazio. We were joined a few 
minutes ago by Mr. Hanna. And I certainly want to give him a 
chance to make any statement or ask any questions.
    Mr. Hanna. How can you do one without the other? In a State 
like I live in, in New York--and I was in heavy equipment 
business for many years--how can you separate, when we have 
third-party liability rules that are directly related to acts 
of an individual?
    I suggest to you that it is more important to do the 
individual than the trucking company, that you ought to think 
about that. And I don't think you can do one without the other. 
I mean every person that ever fell off a ladder knew what he 
was doing when he went up that ladder. And everybody who gets 
into a truck that has had drug--or has a drug or alcohol 
problem puts himself out there at a risk to the owner of the 
company, yet the company accepts the liability for that.
    So, I just throw this out as a comment, that I think you 
can't do one, even nearly correctly, without doing the other at 
the same time.
    Ms. Ferro. And if I may, I absolutely respect that point of 
view, and it is built into the CSA program today. It is why the 
majority of the analysis groups that we call BASICs are 
actually reflective of driver behavior.
    Companies have a very clear influence on what a driver can 
or can't do. They--and the level of support a driver has to do 
things the right way. And so, the first component of the system 
is moving towards how a carrier is handling the violations that 
drivers are incurring. But we absolutely incorporate driver 
behavior through the unsafe driving BASIC, again, the driver 
fitness BASIC, whether they have a license, proper medical 
qualifications, the drug and alcohol compliance BASIC. All of 
those do really reflect on how much a driver impacts that 
carrier's business.
    Mr. Hanna. No, I appreciate that. I would say, just from my 
own experience, the problem was always enforcement. All the 
liability and all the expenses and all the responsibility falls 
back on the owner of the vehicle. And there is precious little 
opportunity, other than threat of loss of your job, to control 
what individuals do, so that the information that you might 
accumulate over time--I suggest to you that can drive the 
outcome more for the company than how they actually do what 
they have control over. It is just a thought.
    But thank you, Chairman. I yield back.
    Mr. Owings. Mr. Chairman, may I jump in and say a couple of 
things on behalf of the safety community?
    Mr. Duncan. Sure.
    Mr. Owings. We heard a lot of talk about a couple of 
things. First of all, this whole fault issue. Again, the Crash 
BASIC is intended to be predictive of future crashes. The 
science says that if you count all of the crashes, they are 
predictive. And we have talked about fault versus 
nonpreventable. Those are two different things. They are not 
synonymous. We have civil courts that do a lot of work to try 
to figure out fault. Figuring out nonpreventable, which means 
the driver couldn't have made a reasonable decision or move to 
possibly prevent the crash, is a whole higher level of 
scrutiny. And the FMCSA does not have the resources to address 
that.
    Now, the second thing I would like to address is there has 
been a lot of discussion in here about the small businessmen 
who have trucking companies. I am a small businessman. And let 
me suggest that the most important thing that could be done to 
improve road safety in this country where trucks are concerned 
is to pay truck drivers like the professionals they are 
expected to be. They should not be paid by the hour, which 
incentivizes dangerous behavior. It is common sense, or--and 
the way they should be paid is an hourly wage or a salary for 
every hour they work, whether or not their truck is moving, and 
regardless at what speed.
    Mr. Hanna. Ma'am----
    Mr. Duncan. Mr. Hanna? Go ahead.
    Mr. Hanna. Thank you, Chairman. The way you work things is 
basically a bell curve, right?
    Ms. Ferro. That is correct.
    Mr. Hanna. I would suggest to you that you ought to be 
dealing with something that looks more like an algorithm. The 
whole process is much more complicated, and there are much 
more--many more factors, and many of them that people are 
graded on a bell curve, like the truckers, don't have control 
over. But I know you know that, it is just----
    Ms. Ferro. Well, and I appreciate that perspective. And we 
would be pleased to come and brief you. There are a host of 
algorithms underlying this system, and I think there are some 
opportunities to peer review it, so more extensively, again, 
following the discussion today. And we will be happy to brief 
you on it, if you have some time----
    Mr. Hanna. Thank you, ma'am. I yield back.
    Ms. Ferro. Thank you.
    Mr. Duncan. All right. Well, thank you very much. Let me 
see if I can sum up on a couple things.
    Number one, there is nobody who wants less to have a crash 
or an accident than the owners of the trucking and bus 
companies, because, first of all, they wouldn't have some goal 
to go out and hurt people, because there would be much easier, 
less expensive ways to do it than to crash trucks or buses into 
them. Secondly, they don't want to ruin their equipment. They 
don't want to unintentionally harm anybody. And above all, they 
know that they are likely to be sued.
    But, having said all that, we do need to have an agency 
like Administrator Ferro's. And I can tell you while there has 
been--I have been pleased that there have been four Members 
here today--Chairman Young and Mr. Rahall, Mr. DeFazio, and Mr. 
Coble, all of whom are more senior than me--I have been on this 
committee for 24 years. I can tell you that whether it has been 
led by Republicans or Democrats, while we have been concerned 
about the industry and various things that go on in this 
country, our number one concern for this committee has always 
been safety.
    Now, we have two witnesses, as I mentioned at the start--
very unusual--from my home town of Knoxville. And I am pleased 
to have them here. But if I thought this was just a Knoxville 
problem or a Tennessee problem, I would have never even agreed 
to have this hearing. I would have thought there was some other 
way to settle this thing. But I heard about this--I started 
hearing complaints from people all over the Nation before I 
heard about anybody from Tennessee having a problem with this. 
In fact, I still haven't met with Mr. Gentry about problems 
that he has had. I did have a meeting with Mrs. McBride and 
some other trucking company people, and they told me about some 
problems.
    We have got these studies saying there is problems with it. 
We have heard people testify here today there is problems with 
it. Nothing is perfect. It is not all bad. But it seems to me 
that there needs to be a little more flexibility in this 
program, Administrator Ferro, and there needs to be a quicker, 
easier, simpler way for a company to tell their side. If they 
get put on--listed as an unsafe company, there needs to be a 
quicker, easier, simpler way for them to defend themselves with 
you and your agency.
    So, I hope that over these next few months--I hope you 
won't punish--number one, most of all, I hope you won't try and 
do something to Mrs. McBride's wonderful company--because I can 
tell you they are a great company--because they have had the 
guts to come here and testify. We run into that sometimes. Some 
companies, they don't want to come testify, because they are 
afraid that they will get hit harder by these administrative 
agencies. But there needs to be a way for these companies to 
get delisted if they have been listed unfairly.
    And then too, you know, these violations--Mr. Barletta said 
something about a violation because a blanket wasn't in a cab. 
We need to not have things like that.
    But I thank everybody for coming. You want to kind of close 
out, Mr. DeFazio?
    Mr. DeFazio. Well, thank you, Mr. Chairman. First, a 
specific random question, again, on our data is only as, you 
know, so good. And this is from another hearing I held. I am 
pleased to see we are moving toward a drug-alcohol 
clearinghouse. But have we done anything to clean up the abuses 
in the testing system? And we had ample testimony on that, a 
Web site that we found that would sell you Whizzinators and 
things so you could cheat on the tests. And I mean, you know, 
it--there was no controls over the testing system, whatsoever.
    Have we done anything to improve the testing system? 
Because if we establish a database, you know, there is a 
question of the validity of the data that is in it.
    Ms. Ferro. I would like to respond as a followup on that 
one.
    Mr. DeFazio. OK.
    Ms. Ferro. I do not have specifics for you today.
    Mr. DeFazio. Sure, OK.
    Ms. Ferro. I will have to respond for the record.
    Mr. DeFazio. That was the----
    Ms. Ferro. Thank you.
    Mr. DeFazio [continuing]. Subject of another hearing. Well, 
I would just like to observe that, I mean, I think that the one 
common ground here is we have a common objective, and that is 
we want to improve the safety of the system, of the traveling 
public. And we--there is some questions about, you know, 
particulars of this approach. And I can only hope that, you 
know, some of the concerns that have been raised here will be 
taken to heart as you move into an actual rulemaking, where 
people will be able to formally comment, and there will be 
other additional scrutiny applied to how we finally establish 
the criteria, and how we apply the criteria, and then, 
hopefully, how the criteria might or might not be used.
    But also dealing with, you know, the issues of if we have 
only captured a part of the universe, that--you know, which I 
raised early on--that has to be thoughtfully approached, also. 
Because if you are going to establish a rating system that 
ultimately, through a rulemaking, people feel is valid and will 
be routinely used to determine who gets carriage and who 
doesn't, we have got to have a way to include everybody in it. 
And there was--you know, at one point you said that they were 
including clean inspections, but at another point you said we 
have got to make sure that they send along the data of clean 
inspections. Because many times they don't bother.
    And so, I mean, we--there is, I think, a lot yet to be done 
here. So that is--thank you, Mr. Chairman, for holding this 
hearing.
    Mr. Duncan. Well, thank you. I guess just to put in a 
plain, down-to-earth kind of way, east Tennessee way, we want 
the bad companies acted on, but we don't want good companies 
treated like they are bad companies. And most of the trucking 
and bus companies out there are good companies and doing good 
things for this country.
    Thank you very much. That will conclude this hearing. And I 
would like to ask unanimous consent that the record of today's 
hearing remain open until such time as our witnesses have 
provided answers to any questions that may be submitted to them 
in writing, and unanimous consent that the record remain open 
for 15 days for any additional comments and information 
submitted by Members or witnesses to be included in the record 
of today's hearing.
    [No response.]
    Mr. Duncan. Without objection, so ordered.
    Thank you again to all the members of the panel. That will 
conclude this hearing.
    [Whereupon, at 12:10 p.m., the subcommittee was adjourned.]
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