[Senate Hearing 112-345]
[From the U.S. Government Publishing Office]
S. Hrg. 112-345
MAKING OUR ROADS SAFER: REAUTHORIZATION OF THE MOTOR CARRIER SAFETY
PROGRAMS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON SURFACE TRANSPORTATION
AND MERCHANT MARINE INFRASTRUCTURE,
SAFETY, AND SECURITY
of the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
JULY 21, 2011
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas,
JOHN F. KERRY, Massachusetts Ranking
BARBARA BOXER, California OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida JIM DeMINT, South Carolina
MARIA CANTWELL, Washington JOHN THUNE, South Dakota
FRANK R. LAUTENBERG, New Jersey ROGER F. WICKER, Mississippi
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri ROY BLUNT, Missouri
AMY KLOBUCHAR, Minnesota JOHN BOOZMAN, Arkansas
TOM UDALL, New Mexico PATRICK J. TOOMEY, Pennsylvania
MARK WARNER, Virginia MARCO RUBIO, Florida
MARK BEGICH, Alaska KELLY AYOTTE, New Hampshire
DEAN HELLER, Nevada
Ellen L. Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce H. Andrews, General Counsel
Todd Bertoson, Republican Staff Director
Jarrod Thompson, Republican Deputy Staff Director
Rebecca Seidel, Republican General Counsel and Chief Investigator
------
SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT MARINE
INFRASTRUCTURE, SAFETY, AND SECURITY
FRANK R. LAUTENBERG, New Jersey, ROGER F. WICKER, Mississippi,
Chairman Ranking Member
DANIEL K. INOUYE, Hawaii JIM DeMINT, South Carolina
JOHN F. KERRY, Massachusetts JOHN THUNE, South Dakota
BARBARA BOXER, California JOHNNY ISAKSON, Georgia
MARIA CANTWELL, Washington ROY BLUNT, Missouri
MARK PRYOR, Arkansas JOHN BOOZMAN, Arkansas
CLAIRE McCASKILL, Missouri PATRICK J. TOOMEY, Pennsylvania
AMY KLOBUCHAR, Minnesota MARCO RUBIO, Florida
TOM UDALL, New Mexico KELLY AYOTTE, New Hampshire
MARK WARNER, Virginia DEAN HELLER, Nevada
MARK BEGICH, Alaska
C O N T E N T S
----------
Page
Hearing held on July 21, 2011.................................... 1
Statement of Senator Lautenberg.................................. 1
Statement of Senator Wicker...................................... 2
Statement of Senator Ayotte...................................... 3
Statement of Senator Pryor....................................... 4
Statement of Senator Boozman..................................... 5
Statement of Senator Snowe....................................... 68
Witnesses
Hon. Anne S. Ferro, Administrator, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation.............. 5
Prepared statement........................................... 7
Hon. Christopher A. Hart, Vice Chairman, National Transportation
Safety Board................................................... 13
Prepared statement........................................... 15
Daniel England, Vice Chairman, Board of Directors, National
Trucking Associations and Chairman of the Board and President,
C.R. England................................................... 22
Prepared statement........................................... 24
Joe Rajkovacz, Director of Regulatory Affairs, Owner-Operator
Independent Drivers Association................................ 32
Prepared statement........................................... 33
Jacqueline S. Gillan, Vice President, Advocates for Highway and
Auto Safety (Advocates)........................................ 39
Prepared statement........................................... 41
Appendix
Response to written questions submitted to Hon. Anne S. Ferro by:
Hon. Claire McCaskill........................................ 75
Hon. Amy Klobuchar........................................... 75
Hon. John Thune.............................................. 76
Hon. Roger F. Wicker......................................... 79
Response to written questions submitted to Daniel England by:
Hon. Claire McCaskill........................................ 79
Hon. Roger F. Wicker......................................... 81
Response to written questions submitted to Joe Rajkovacz by:
Hon. Claire McCaskill........................................ 82
Hon. Roger F. Wicker......................................... 83
Response to written question submitted by Hon. Amy Klobuchar to:
Jacqueline S. Gillian........................................ 85
MAKING OUR ROADS SAFER:
REAUTHORIZATION OF THE MOTOR CARRIER SAFETY PROGRAMS
----------
THURSDAY, JULY 21, 2011
U.S. Senate,
Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:34 p.m. in
room SR-253, Russell Senate Office Building, Hon. Frank R.
Lautenberg, Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thank you. We're going to bring this
hearing to order.
I welcome everyone to today's hearing on reauthorizing the
FMCSA--Federal Motor Carrier Safety Administration, which helps
protect the public by making sure that commercial buses and
trucks share our roads safely.
In 2009, trucking companies transported more than 16
billion tons of freight, certainly making trucks a major part
of our economy. Intercity buses represent an important mode of
transportation. Motorcoaches provided more than $720 million in
passenger trips in 2009. And while most drivers and companies
put safety first, crashes are still happening, and when they
do, the consequences can be devastating.
In 2009, 70 people a week, on average, lost their lives;
3,600 people died in truck and bus-related accidents. Just this
past weekend, a tour bus headed from Washington, D.C. to
Niagara Falls crashed into a wood median in New York, killing
two and injuring 35 people.
This has been a bad year, one of the worst, for bus
crashes, with 7 major crashes that have killed 27 people. And
the loss of these lives is unacceptable, and we've got to do
something to stop that from occurring, and we've got to do more
to help FMCSA protect Americans from dangers on our roadways.
And that's why I'm soon going to introduce a bill to
strengthen safety regulations by making sure that only the
safest motor carriers and drivers enter the industry, improving
the laws and the regulations that govern drivers and vehicles,
and giving the government the tools it needs to take unsafe
drivers and carriers out of the industry. My bill would require
drivers to receive more training before they're granted a
license to drive a truck or bus, and it would require more
companies to demonstrate that their drivers understand the
rules before they hit the road.
In addition, this bill would keep unsafe drivers from
getting behind the wheel by requiring buses and trucks to have
electronic onboard recorders to do better monitoring, and
manage the amount of time that drivers spend on duty. We must
not permit unqualified drivers, drivers that are not fully
trained, qualified, and alert. They should not be on the road.
And, finally, my bill would also give the FMCSA the tools
it needs to kick out bad actors, and to identify and remove so-
called reincarnated carriers that change their companies' names
but do nothing to improve their safety.
The bottom line is that trucks and buses remain essential
parts of our transportation network, but we must work harder to
make sure that safety never takes a back seat.
And I look forward to hearing from today's witnesses about
how we can work together to make our roads safer, not only for
the drivers and the passengers aboard our trucks and buses, but
for all the travelers who share the road with them.
And, with that, I call on Senator Ayotte. Did I pronounce
it right?
Senator Ayotte. Ayotte. But, it's----
Senator Lautenberg. Ayotte.
Senator Ayotte. It was, yes. Thank you.
Senator Lautenberg. I didn't want to do it, well, the more
we meet like this, the more familiar I'll become.
Senator Ayotte. Exactly. Thank you, Chairman.
Senator Lautenberg. Please.
Senator Ayotte. I appreciate it.
Senator Lautenberg. If you would.
Senator Ayotte. And, I think the Ranking Member is here, so
I would defer to the Ranking Member.
Senator Lautenberg. In his own--present. All right.
Senator Ayotte. Yes.
Senator Lautenberg. That's respect.
[Laughter.]
Senator Lautenberg. Thank you.
Ranking Member, Mr. Wicker.
Senator Wicker. Are we in the----
Senator Lautenberg. We're----
Senator Wicker.--opening statement phase?
Senator Lautenberg. Yes. We haven't heard yet from the
witnesses. Yes.
STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Well, thank you very much. And I'm, I had
sent word that I'd be a few moments late, but expected the
hearing to go ahead. I don't know if it's respect on the part
of Senator Ayotte, but I'll take it, if it, indeed, amounted to
that.
Thank you for calling this hearing today, Senator.
This is my first hearing as Ranking Member of this
subcommittee, and I look forward to examining a very important
issue involving the safety of the Nation's trucking industry.
The trucking industry is vital to the health of the
American economy. According to the American Trucking
Association, there are 3 million large trucks on the roads of
the United States, and the industry employs 8.9 million
workers.
Trucks carry 69 percent of the total U.S. freight tonnage,
and commercial trucking represents a staggering $645 billion
industry. Without a well-functioning trucking industry,
commerce in this country would suffer severe repercussions.
The trucking industry is not only large, it is very
diverse. Trucking companies range from multi-billion dollar
international companies like FedEx and UPS, to small
independently-owned businesses that may own only a single
truck. New rules can have dramatically different impacts on
each. And this dichotomy is important to bear in mind when we
make changes to the regulatory framework. To that end, I'm glad
we have representatives from both ends of the trucking industry
spectrum to hear from today.
Truck safety is important to everyone, because we all share
the same roads. While we can always do more to prevent
accidents, the trucking industry safety record is strong, and
it continues to improve, with the incidents of fatalities
falling to 1.64 per 100 million miles, as opposed to more than
4.5 per 100 million miles in the 1970s--a major achievement.
The Federal Motor Carrier Safety Administration, which was
created only a little more than a decade ago, has certainly
helped keep the focus on safety, and extended the strong safety
record. The Federal Government has an important and necessary
role to play when it comes to promoting transportation safety,
and truck safety deserves our attention.
However, Congress must take great care when creating new
regulatory frameworks to allow also for economic growth and
productivity. Make no mistake--our actions as policymakers are
felt across the economy, and that is why it is essential that
we strike an appropriate balance between these dual goals.
So, Chairman Lautenberg, again, thank you for holding this
hearing, and I look forward to hearing from our distinguished
panel.
Senator Lautenberg. Thank you.
Senator Ayotte.
STATEMENT OF HON. KELLY AYOTTE,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Ayotte. I want to thank the Chairman, and
certainly, the Ranking Member. It was out of respect, I want
you to know.
I appreciate the witnesses being here today. This is a very
important topic, and certainly, motor carrier safety is
extremely important to my constituents, and all of us.
We have at least 3,000 small trucking businesses operating
across New England, and I look forward to hearing,
particularly, from the small truck operators today, as their
expertise is critical when we look at Federal safety standards.
I appreciate what the Ranking Member said in terms of the
impact of regulations being different based on the size of the
carrier. And, representing over 93 percent of the industry,
small business motor carriers have a vested interest in highway
safety. Any safety-related incidents could cost them not only
their lives, but their entire livelihood, of course. And many
of the Federal safety regulations, while well-intentioned, have
been much more burdensome on the small trucking community.
And an estimated 73 percent of the value of all freight
shipped throughout our country is transported by trucks, and
these trucks service 80 percent of our Nation's communities.
Economic strain on this delivery system can affect our entire
economy, and so this is why it's so important that we get the
balance correct in terms of regulations that we pass.
I also am concerned about a couple of proposals that have
been brought forward. One of them would mandate both speed
limiters and electronic onboard recorders. I think that there
are issues that have to be addressed in terms of speed limiters
having the potential to, in some instances, decrease safety on
the road by taking away control from the driver, and also
preventing the safe flow of traffic, in some instances.
Electronic onboard recorders may cost a significant amount of
money to install, and questions remain in terms of whether--in
some instances--they provide more safety than traditional
written records. I think these are very important issues.
Before we mandate these types of products from Congress, these
issues must be addressed.
I'm also concerned about the proposed changes to the hours
of service rules. Under current rules, truck-related injuries
and fatalities have dropped more than 30 percent, to the lowest
levels in recorded history. The proposed changes in the hours
of service rules, in my view, fail the Federal Motor Carrier
Safety Administration's own cost-benefit analysis, and could
result in significant productivity loss to the tune of $2
billion annually, according to the Department of
Transportation.
So, what I'm interested in hearing about today is, we all
certainly support efforts for safety and responsibility, but we
need to do so in a way that also allows a very important
industry, the motor carrier industry, to be able to thrive, and
particularly, that we don't put an undue burden on our small
businesses, which are very, very important in my state and, I
know, across the country.
So, thank you. I want to thank all the witnesses for being
here today, and I look forward to hearing from you.
Senator Lautenberg. Thank you.
We'll go side to side.
So, Senator Pryor.
STATEMENT OF HON. MARK PRYOR,
U.S. SENATOR FROM ARKANSAS
Senator Pryor. Thank you, Mr. Chairman, and thank you for
holding this hearing.
I would like to say that this is a very important and
timely hearing here in Congress, to try to work on a multi-year
surface transportation reauthorization bill. I look forward to
reviewing the FMCSA and the industry's efforts to improve
commercial motor vehicle safety, the NTSB recommendations, and
how states have assisted in motor carrier safety efforts.
So, I'm just interested, and, all the things that we have
talked about--we've been talking about a database for drug
testing, which we think would be important, an important
improvement, and we have some other ideas.
So, I look forward to being part of this dialogue, Mr.
Chairman. Thank you for doing this hearing today.
Senator Lautenberg. Thank you.
Senator Boozman.
STATEMENT OF HON. JOHN BOOZMAN,
U.S. SENATOR FROM ARKANSAS
Senator Boozman. Thank you, Mr. Chairman and Senator
Wicker, for bringing us this important hearing today.
I'd also like to thank our witnesses for being here and
testifying.
Motor carrier safety is an extremely important issue for
Arkansas and for the Nation as a whole. Arkansas is home to
several large trucking companies, and also many small owner-
operators.
One of these owner-operators, Michael Caswell, of
Centerton, Arkansas, was recently recognized by one of the
groups testifying today--the Owners-Operators Independent
Drivers Association--for 18 years of safe, accident-free
driving of a commercial tractor-trailer. And so, I'd like to
extend my congratulations, and I know Senator Pryor also would
like to extend his congratulations for this feat.
Senator Lautenberg, you and I listened to testimony this
morning at the EPW committee hearing on highway funding and
reauthorization issues, and I look forward to listening again
this afternoon as we talk about reauthorization of the Motor
Carrier Safety Program.
I yield back. Thank you.
Senator Lautenberg. Thank you very much.
And now we turn to our witnesses. We have a distinguished
group of witnesses here.
And, now, Ms. Ferro, we'll call on you first.
STATEMENT OF HON. ANNE S. FERRO, ADMINISTRATOR,
FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION
Ms. Ferro. Thank you, Mr. Chairman, Ranking Member Wicker,
and members of the Committee, the Subcommittee. Thank you very
much for inviting me to speak today.
Eleven years ago, some of you noted, when Congress
established the Federal Motor Carrier Safety Administration, it
recognized that our Nation needed a consistent and strong set
of standards to bring commercial vehicle operations to the
safest level possible. By design, FMCSA is not about
Washington. It's about the front lines in our states and
hometown communities, where the overwhelming majority of our
employees are boots-to-the-ground in partnerships with State
and local law enforcement, because that's where the commercial
vehicle activity is.
We take our safety-first mission with complete commitment,
passion and enthusiasm, because we know that lives are on the
line. Death and injury from crashes with commercial motor
vehicles come at a very high price--over $60 billion each year
in costs that include health, medical, emergency services, lost
wages and productivity, pain and suffering. And FMCSA does its
best to leverage just under 1,100 employees nationwide to
oversee an industry of more than 500,000 discrete companies,
trucking companies, and 12,000 bus companies, and more than 5
million commercial vehicle drivers.
Given this challenge, as we look forward we must advance
our partnerships with our state and local law enforcement
agencies to achieve that highest level of safety. We also need
enforcement tools that allow us to do our jobs as effectively
as possible. And today, I respectfully urge you to consider key
technical assistance that we submitted for the record for the
next surface reauthorization bill. That technical assistance
focuses on the biggest challenges facing commercial vehicle
safety. It consists of recommendations built out of extensive
discussions with our investigators nationwide, our program
managers, stakeholders, over the course of several years, and
analysis of cases against high-risk operators who continue to
put the public at risk.
The underlying purpose of that assistance, our technical
recommendations, is to improve the tools we use to prevent and
deter unsafe operators, drivers and carriers, and to better
screen and remove the least safe from the roadways.
It's also about closing statutory gaps through which unsafe
carriers and drivers are able to move out of our reach, and
it's about making sure our state grantees have access to grant
programs that are more efficient and effective.
Our purpose in recommending these changes is not to impede
safe companies and safe drivers. The vast majority of the over
500,000 companies we regulate make safety part of their
operating values and practices every day. But it remains the
fact that about 10 percent of the carriers operating are high-
risk. They have violation numbers and frequency out of the
norm. And it's that 10 percent that directly correlates, and
has involvement in, over 40 percent of the serious and fatal
crashes involving commercial vehicles.
Again the focus is to get at those bad actors, not the vast
majority of operators. When crafting these initiatives, we pay
close attention to the principles that govern this agency--the
essentiality of raising the bar to come into the industry, the
importance of maintaining high safety standards if you're
operating as a commercial vehicle operator, and ensuring that
we and our state partners, employers, the public at large, have
the tools they need to get the bad actors off the road.
So, Mr. Chairman, members of the Subcommittee, Ranking
Member Wicker, again, we are a very relatively small agency. We
are very much on the front lines working side-by-side with your
states as our partners to improve truck and bus safety, and
together we need the tools to get the critical job done.
I speak for our employees nationwide when I say that we are
looking forward to working with the subcommittee on the
technical assistance in the reauthorization work you are doing.
And we do believe that through this work we can significantly
further reduce crashes and fatalities involving commercial
vehicles.
I'll be happy to answer any questions you may have.
[The prepared statement of Ms. Ferro follows:]
Prepared Statement of Hon. Anne S. Ferro, Administrator, Federal Motor
Carrier Safety Administration, U.S. Department of Transportation
Good afternoon Mr. Chairman, Ranking Member Wicker and Subcommittee
Members. Thank you for this opportunity to speak to you today about
reauthorization of the motor carrier safety program. I appreciate the
Subcommittee's steadfast dedication to making our Nation's roads as
safe as possible by ensuring that only the safest motor carriers and
commercial motor vehicle (CMV) drivers operate over our roads, and
providing enhanced enforcement tools to the Federal Motor Carrier
Safety Administration (FMCSA) and its State partners.
As Secretary Ray LaHood has said many times, ``Safety is my number
one priority. Nothing else even comes close.'' FMCSA's 2011-2014
Strategic Plan, for which we are now seeking public comment, is based
on a strategic framework that is shaped by three core principles: raise
the bar to enter the motor carrier industry; maintain high safety
standards to remain in the industry; and remove high-risk carriers,
drivers, and service providers from operation. In preparing technical
assistance for legislative policy proposals for motor carrier safety,
the Department paid close attention to suggested provisions that
advance one or more of our three core principles.
With the help of SAFETEA-LU, we have achieved significant success
in reducing crashes, injuries, and fatalities over the past six years,
but no one can dispute that additional efforts are necessary to achieve
our paramount goal of safety in motor carrier transportation. The
Agency must be strategic in its use of resources to target identified
compliance weaknesses and correct them. Through the technical
assistance, we strove to close statutory gaps that place unsafe
carriers, drivers and vehicles outside our grasp. At the same time, our
goal was to ensure a level playing field without over-regulating the
industry. We believe that these changes, taken together, and increasing
Agency efficiency and effectiveness, will dramatically increase motor
carrier safety without unduly burdening States or industry. I would
like next to discuss our key technical assistance for reauthorization
policy proposals.
CSA Proposals
For nearly seven years, FMCSA has been working to develop a new
enforcement business model, which we call Compliance, Safety,
Accountability or CSA. We have undertaken this with an unprecedented
level of stakeholder input, analysis, and planning, including public
meetings, webinars, over 350 live presentations, numerous meetings with
Congressional staff and the National Transportation Safety Board
(NTSB), and a 30-month/9-State Operational Model Test. Through this
process, FMCSA worked with our partners to develop a new and improved
enforcement model. CSA allows FMCSA to more effectively and efficiently
target poor safety performers and take the necessary steps to either
improve that performance or get the carrier off the road.
We have included in our technical assistance a number of statutory
revisions and additional authorities needed to bring CSA to fruition.
For example, we are requesting flexibility to allow an investigator's
credentials to be displayed in writing rather than in person. This will
allow FMCSA and its investigators--with clear statutory authority to
conduct enforcement interventions--to display credentials and formally
demand that a motor carrier provide records, without traveling to the
motor carrier's business location. This is vital to expanding FMCSA's
and our State partners' enforcement repertoire to include off-site
reviews and investigations.
We also provided language to update the requirement, adopted in
SAFETEA-LU, that the Agency perform compliance reviews on motor
carriers rated as category A or B for 2 consecutive months under the
Agency's old SafeStat measurement system. Under CSA, the Agency
replaced SafeStat with a new, more accurate carrier safety metric and
established our Safety Measurement System (SMS), which uses more data,
and completes a more targeted assessment of the carrier. The Agency is
committed to continuing to prioritize the carriers with the highest
safety risk. However, we need to use the new, improved metrics rather
than the category A or B system to identify problem carriers.
As the centerpiece of CSA, the Agency is currently developing a
proposed rule to revise its procedures for issuance of motor carrier
safety fitness determinations. We anticipate issuing that proposed rule
by the end of 2011. Longer term, FMCSA anticipates adopting comparable
safety fitness determination procedures for individual drivers, and we
have proposed a new statutory section to grant express authority for
that rule. This authority would strengthen FMCSA's ability to identify
high-risk commercial drivers and to remove them from service.
The final CSA policy proposal would help ensure that the roadside
enforcement data, which takes on heightened importance under CSA, is
based on nationally uniform criteria for selecting vehicles for
roadside inspections. Consistency in State-operated inspection
selection systems is vital to preserving the integrity of the SMS. The
FMCSA's language would, therefore, authorize FMCSA to withhold a
portion of a State's Motor Carrier Safety Assistance Program (MCSAP)
grant funds if the State's inspection selection system does not use a
methodology FMCSA has approved.
Reincarnated/Affiliate Carrier Proposals
In recent years, FMCSA has witnessed a disturbing practice--
carriers that commit safety violations and then slightly change their
corporate identity or ``reincarnate'' to either continue operating
after being placed out of service, avoid paying civil penalties, or to
otherwise avoid the regulatory consequences of poor safety performance.
More recently, unsafe carriers, particularly motorcoach companies, have
attempted to avoid FMCSA enforcement by creating closely affiliated
entities under common operational control. Our investigations have
found that these companies quickly shift customers, vehicles, drivers,
and other operational activities to an affiliated company when FMCSA
places one of them out-of-service. These practices of ``reincarnating''
as a supposedly new motor carrier or simultaneously operating
affiliated companies to circumvent Agency enforcement actions result in
the continued operation of high-risk carriers and create an
unacceptable safety risk to the traveling public.
Our policy proposals would confront this problem from a number of
angles. First, the technical assistance would expressly authorize the
Secretary to withhold, suspend, amend, or revoke a motor carrier's
registration if the carrier failed to disclose its adverse safety
history or other material facts on its application, or if the Secretary
found that the applicant was a successor or closely related to another
company with a poor compliance history within the preceding 5 years.
Another proposed section would amend existing law to authorize the
Secretary to withhold, suspend, amend, or revoke the registration of a
motor carrier, employer, or owner or operator if the Secretary
determined that: (i) there was a common familial relationship to avoid
compliance or to mask non-compliance; or (ii) the company engaged in a
pattern or practice of avoiding compliance or masking non-compliance
within the preceding 5 years. Both of these proposals would require
that, before taking action on such carriers' registration, the
Secretary provide the carrier due process in the form of notice and an
opportunity for a proceeding.
Second, the Secretary would also be authorized to take steps, after
notice and an opportunity for a proceeding, against individual
officers, directors, owners, chief financial officers, safety
directors, or other persons who exercise controlling influence over the
operations of a motor carrier, if those persons intentionally,
knowingly, or recklessly engage in a pattern or practice of violating
CMV safety regulations or assist companies in avoiding compliance or
concealing non-compliance. Sanctions against such individuals would
include a prohibition on associating with other motor carrier
companies, including temporary or permanent suspension of any
individual registration and a temporary bar on association with any
registered motor carrier. A related proposal would increase the current
civil penalty ten-fold, up to $5,000 per violation, for attempted
evasion of motor carrier regulations.
Third, FMCSA's policy proposals would clarify that a uniform,
Federal legal standard applies to determinations of whether one motor
carrier is liable for the acts of a predecessor or closely related
carrier. Under this Federal standard, the Secretary would be authorized
to determine, after notice and an opportunity for a proceeding, that
the officers, financial arrangements, equipment, drivers, and general
operations of the company were closely related to those of another
motor carrier. The Agency's technical assistance lists 12 factors for
consideration and includes a limited, express preemption of State law
that is narrowly restricted to Federal motor carrier regulations.
Application of the Federal standard would not affect State corporation
laws, such as debtor/creditor rights, taxes, tort liability, director
and officer liability or other rights between private parties. The
Agency is very mindful that it is proposing a limited intrusion into
what is traditionally State authority. However, without this Federal
standard, the Secretary lacks clear authority to prevent unscrupulous
motor carriers from using State corporation laws to avoid Federal
penalties and out of service orders.
Finally, some of the Agency's registration proposals would also
assist in identifying and tracking reincarnated carriers by authorizing
the Secretary to refuse a USDOT number to applicants that are not fit,
willing, and able to comply with applicable regulations. In addition to
granting the Secretary new authority to deny operational licenses to
private motor carriers, the USDOT number provision would grant the
Secretary express authority to refuse to issue the USDOT number if the
applicant company is, or was, a close affiliate or successor to a motor
carrier that is not or was not fit, willing, and able to comply with
the regulations. The Secretary would also be authorized to revoke or
suspend the USDOT number on these grounds. Again, such a determination
would require notice and an opportunity for a proceeding. The
registration provision would also require motor carriers to update
their registrations annually, as well as within 30 days of a change of
certain essential information.
Imminent Hazard Orders
The FMCSA has current authority to place a motor carrier, vehicle
or driver out of service immediately if the Agency determines that
regulatory violations create an imminent hazard to safety. The Agency's
policy proposals include a number of modifications to this emergency
authority. Currently, imminent hazard orders apply expressly to
operations of CMVs in interstate commerce. The Agency's proposal would
clarify that such orders also apply to the intrastate operations of
such interstate carriers.
In addition, the technical assistance, if adopted, would require
that the Secretary revoke the operating authority registration of any
motor carrier determined to constitute an imminent hazard. Under
current law, operating authority is revoked for only passenger
carriers, not for property carriers, determined to constitute an
imminent hazard.
Finally, the proposal would partially harmonize the two Acts of
Congress that granted the Secretary imminent hazard authority by
redefining ``imminent hazard'' in one section of the United States Code
to encompass hazards other than those dealing with hazardous materials.
As a result, the Secretary will have the authority under section 31310
of title 49, United States Code, to disqualify any driver whose
continued operation of a CMV substantially increases the likelihood of
death, serious injury or illness, or a substantial endangerment to
health, property, or the environment.
Driver Penalty Provisions
Through our work developing CSA, FMCSA confirmed that focusing on
the motor carriers can advance safety only to a certain point. To take
the next significant step, we need to focus on drivers. We want to make
being an unsafe driver impossible. To this end, our proposal would
require the State licensing agencies to take action against commercial
driver's license (CDL) holders based on a Federal disqualification,
regardless of whether the same offenses would lead to action on the CDL
under State traffic laws. This would result in unsafe CDL holders
having their State-issued licenses suspended or revoked by the State
following a Federal disqualification. This change is necessary because
States are not currently required to take certain actions against a
driver's CDL if the individual has been disqualified by FMCSA from
operating a CMV. To assist the Agency, we need Congressional
affirmation that disqualifications imposed by FMCSA must be reported in
the CDL Information System (CDLIS).
The proposal also includes a requirement to disqualify an
individual from operating a CMV when that individual has not paid a
civil penalty or complied with a settlement agreement resulting from a
Federal enforcement action. This would apply to all drivers of CMVs,
whether they hold a CDL or not.
Currently, the Secretary is required to disqualify a driver for
driving a CMV when the driver's CDL is revoked, suspended or canceled.
The Secretary is not authorized to disqualify such a driver, however,
if the underlying offense that led to the revocation, suspension or
cancellation occurred while the individual was operating a non-CMV.
This means that a CDL holder whose license was suspended following a
DUI in his personal vehicle, but who continued to operate a CMV during
the suspension, would not be subject to disqualification. Our policy
proposal would plug this regulatory hole. Under the proposal, we would
disqualify an individual from operating a CMV for 1 year for the first
violation, and for life for committing two or more such violations.
The Secretary is required to establish programs to improve CMV
driver safety and may access the safety data and driving records of
drivers who hold a CDL. Drivers who drive CMVs that weigh less than
26,001 pounds or that transport less than 16 passengers, however, do
not need a CDL. To close an existing information gap, we need authority
to access safety data and driving records of non-CDL holders who
operate CMVs. We included such a proposal in our submission.
Penalty Provisions
To ensure compliance with our regulations, the Agency needs to make
penalties for non-compliance significant enough that they are not
simply a cost of doing business. To this end, we recommend several
increases to existing minimum penalties, including:
Raising the minimum penalty per day for general reporting
and recordkeeping violations from $500 to $1,000.
Changing the minimum penalty for passenger carriers
operating without the necessary registration from $2,000 per
violation, and $2,000 for each subsequent day of violation, to
a flat minimum penalty of $25,000. A $25,000 minimum penalty
would be the same as the current minimum penalty for
transporting household goods without operating authority
registration, and certainly passengers are more important than
cargo.
We also propose a new penalty of $10,000 per violation for
operating without required registration.
The proposal also calls for an increase from $20,000 to
$25,000 for transporting hazardous wastes without the necessary
registration.
Even in the face of the best regulations, there remain carriers
that consciously choose to defy the requirements. As a result, we
suggest that the maximum penalty for continuing to operate after an
unfit safety rating be increased from $11,000 to $25,000. Our current
authority applies to drivers and not the motor carriers. This loophole
needs to be closed.
In this same vein, we also propose raising the penalty for
violating an imminent hazard out of service order from $16,000 to
$25,000. These out of service orders are issued only where the
continued transportation presents a substantially increased likelihood
of serious injury or death, and a motor carrier's violation of such
orders obviously poses a grave safety risk. We need the authority for
stronger penalties to ensure that these carriers do not continue to do
business illegally and unsafely while under such a serious order.
Under our current penalty structure, motor carriers with sufficient
capital can take corrective action, pay their penalty and not otherwise
be impacted by the enforcement action. We would like to see a greater
impact to the operations of unsafe carriers. To that end, the proposal
would prohibit carriers from operating for at least ten days if they
receive an unfit or unsatisfactory safety rating. This provision would
increase the consequences to motor carriers that allow their safety
performance to deteriorate to the point of becoming unfit, and would
encourage carriers to address safety problems earlier, to avoid this
rating.
In addition, as noted previously, we recommend increasing the
penalty for evading compliance through reincarnation, and we would also
expand the scope of the penalty to apply to evasion of the Hazardous
Materials Regulations and statutes. This additional penalty is
necessary to deter rogue motor carriers, and those who assist them,
from, for example, re-registering under a different identity after
issuance of hazardous materials and other safety violations and
enforcement orders or imposition of civil penalties.
Taking legal action against unsafe motor carriers is often
complicated by the fact that they disobey subpoenas or requirements to
produce witnesses or records. As a result, we have proposed that motor
carriers that fail to provide access to records and equipment in
response to investigators' demands be placed out of service. Our
proposal includes new authority for the Secretary to suspend, amend or
revoke the registration of a motor carrier, broker or freight forwarder
for failing to obey an administrative subpoena.
However, despite our legal actions and penalties, some carriers
continue operating unsafely, sometimes with unsafe drivers and/or
unsafe vehicles. To combat this, we seek express authority for FMCSA
and authorized State grant officials to impound or immobilize
commercial motor vehicles. This provision would give the Agency an
additional enforcement tool when motor carriers refuse to comply with
out of service orders, and continue operating vehicles that are safety
risks to the vehicle's passengers, the traveling public, and the
driver.
While one of the Agency's key goals is to remove unsafe carriers,
drivers and vehicles from the roadways, we do recognize that some
carriers or drivers make honest mistakes. Our proposal, therefore,
includes clarifying language that would allow the Agency, even for
violations relating to transportation of household goods, to accept
lesser amounts of money, suspension of penalties, payment over time or
investment in training or other activities or equipment to improve
regulatory compliance. Such strategies are additional tools that can be
used to improve motor carrier compliance with applicable rules, to
promote the public interest and to respond with enforcement flexibility
as justice requires. We do not want to put a carrier out of business;
we want them to comply.
Registration
As noted in my earlier remarks regarding reincarnated carriers, the
Agency is proposing to revamp some of its motor carrier registration
provisions. Under the jurisdictional structure FMCSA inherited from the
Interstate Commerce Commission, only for-hire motor carriers are
subject to a statutory requirement to register with the Secretary.
Other motor carriers, including private carriers operating equally
large motor vehicles, are not statutorily required to register. To
enhance the Agency's authority to ensure the safety of private motor
carriers before they begin operating, we offered technical assistance
that would require all motor carriers that operate CMVs subject to
FMCSA's safety jurisdiction to apply for and receive a USDOT number
before beginning operations.
As explained above, under FMCSA's technical assistance proposal,
the Secretary would be authorized to refuse a USDOT number to any
carrier if the motor carrier is unfit, unwilling or unable to comply
with the Federal Motor Carrier Safety Regulations or the Hazardous
Material Regulations. The proposed language would also authorize the
Secretary to revoke or suspend a USDOT number if the Secretary
determines that a motor carrier is unfit, unwilling, or unable to
comply with the requirements or refuses to submit to a new entrant
safety audit.
The Agency is completing its Unified Registration System rulemaking
that would consolidate the existing operating authority registration
(or MC Number) and its USDOT number systems. However, FMCSA is
currently limited by statute to charging a maximum fee of $300 for
registration. The costs associated with registering and vetting new
carriers exceed the $300 cap. Our technical assistance would allow the
Agency to increase this fee to cover the costs of processing the
registration.
Medical Programs
The Agency has made significant strides in the past three years
with rulemakings related its medical programs, including a proposed
National Registry of Certified Medical Examiners and the requirement
for medical certificate information on the CDL driver's record. To make
the next large step forward in this area, we offered assistance that
would require States to develop and maintain the capacity to receive
electronic copies of the medical certificates prepared by certified
medical examiners for each CDL holder who intends to operate in
interstate commerce. The availability in the State database of an
electronic report prepared by the certified medical examiner will
greatly reduce the incidence of fraudulent medical examination reports.
The DOT policy proposal would make available up to $1,000,000 in
each of Fiscal Years 2013 and 2014 to help the States pay for the
information technology improvements needed to receive medical
examiners' reports. The funding is front-loaded to ensure that the
States upgrade their driver information systems by the time the
National Registry of Certified Medical Examiners and associated
requirements become operational.
The Agency receives several hundred applications for vision and
diabetes exemptions each year. Medical exemption requests currently
must be published in the Federal Register, but the number of these
requests, and the requirement for not one, but two, publications in the
Register creates administrative and financial burdens for FMCSA. As a
result, we suggest publishing these notices on a dedicated FMCSA
website. Using the Internet will be simpler and cheaper for the Agency,
will produce quicker results for applicants and will improve public
access to these exemption requests. A statutory change is needed to
effect this program improvement.
The FMCSA would also like to make improvements in the delivery of
information regarding medical exemptions to roadside law enforcement.
Our proposal would require MCSAP agencies to transmit exemption
information to their roadside enforcement staff. This will ensure that
enforcement officers have the means to verify any exemption claimed by
a driver stopped at roadside and reduce the opportunities for fraud.
Household Goods Provisions
The Agency's technical drafting assistance includes additional
provisions relating to household goods transportation. One proposal
would allow persons injured by unscrupulous moving companies to seek
judicial relief to compel the companies to release household goods held
hostage. A second proposal would authorize FMCSA to assign all or a
portion of the penalties it receives from non-compliant moving
companies to the aggrieved shipper. FMCSA also recommends that the
Agency be authorized to order moving companies to return household
goods held hostage.
Drug and Alcohol Clearinghouse
Another significant set of Agency proposals would authorize the
establishment of a national controlled substances and alcohol
Clearinghouse. The provision would clarify the Secretary's authority to
conduct a rulemaking and authorize funding for an electronic repository
for records on alcohol and controlled substances testing of CMV
operators. This new Clearinghouse would improve both driver and
employer compliance with DOT's alcohol and controlled substances
testing program and would provide employers important information about
drivers before hiring them.
Miscellaneous
The DOT policy proposals include a variety of additional,
miscellaneous recommendations including:
A representative from a nonprofit employee labor
organization would be added to the Motor Carrier Safety
Advisory Committee.
The Unified Carrier Registration Plan would be restructured
to limit DOT's participation and to operate as a not-for-profit
corporation.
The current statutory provision allowing motor carriers to
submit proof of qualification as a self-insurer in lieu of the
bond, insurance policy or other security would be eliminated.
FMCSA has determined that the self-insurance program does not
further motor carrier safety, and administration of the program
for the fewer than 50 motor carriers that participate is
unreasonably burdensome and costly to taxpayers.
Existing authority under the Motor Carrier Safety
Improvement Act of 1999 to include a proficiency examination
would be broadened to include tests on new entrant carriers'
knowledge not only of safety regulations, but of applicable
commercial regulations and regulations relating to
accessibility for disabled persons. By granting the Secretary
authority to develop an examination covering these areas to
administer to applicant motor carriers, knowledge of and
compliance with these regulations will be increased.
All of these changes will have significant impacts on the Agency's
resources and programs.
Grant Program Changes
We could not complete our safety mission without our State partners
who are the boots on the roadways through our grant programs. In this
policy proposal, FMCSA identified ways to improve the efficiency and
effectiveness of our grant programs. We focused on streamlining the
Agencies' grant programs, improving the States' flexibilities in
applying for FMCSA financial assistance and increasing the Agency's
flexibilities in using funds to maximize their safety impact. Through
reauthorization, FMCSA is seeking to consolidate 10 existing grants
into 3 umbrella grant programs. These changes will not only improve the
flexibility of the funding, but will also ease the administrative
burden on States in applying for Federal financial assistance by
allowing States to apply for multiple projects in one application, if
they choose to do so. This structure will also allow the Agency to be
responsive to new initiatives and priorities by allocating
discretionary funds based on expected improvements to safety.
The 3 umbrella grant programs set forth in our policy proposal on
grant programs are: CSA Grants, Driver Safety Grants, and Safety Data
and Technology Grants.
The CSA Grants would provide funding primarily to State and local
law enforcement agencies to continue successful enforcement programs
and promote new motor carrier programs that improve the safety of the
industry and protect consumers. The CSA umbrella grant program would
continue to provide formula grants for the MCSAP Basic and Incentive
grants so that the States would be confident that their cornerstone
safety initiatives would be maintained. In addition, the proposal would
allow the Agency to provide discretionary grants for New Entrant safety
audits, border enforcement, safety data improvement and other high
priority programs to address National safety priorities. The CSA
program would also include new Agency funding priorities such as
household goods enforcement and hazardous materials safety and
security. The requested flexibility in these grants programs is
essential because enforcement priorities can change due to national
events, such as 9/11, which drove the need for increased security
reviews, due to the development of new technologies, such as electronic
on board recorders, or as the result of new safety initiatives, like
distracted driving. The CSA program goals would allow the Agency to
target the funding appropriately in a dynamic environment.
The second umbrella grant program, Driver Safety Grants, is
intended to prioritize driver issues by directing funds specifically to
programs that impact commercial drivers. Similar to CSA, Driver Safety
would consist of existing program goals, such as continued funding for
CDL programs and systems, including covert and overt fraud
investigation, and CMV operator training. It would also include new
initiatives, such as prioritized funding for CDL coordinators and
funding for States to notify employers of their drivers' CDL
violations.
The Safety Data and Technology grant program, the third umbrella
grant program under our policy proposal, is intended to provide
financial assistance to promote the efficient and effective exchange of
CMV and CDL data among the States. Tying vehicle registration to
carrier safety data and maintaining a consistent national IT
infrastructure improves the quality and safety value of roadside
inspections and assists law enforcement officers in targeting unsafe
vehicles and drivers.
The proposed changes to our grant programs will allow the States to
request the funds they need for other initiatives based on where the
State stands with its safety initiatives. In addition, this model
rewards the best/safest States by allowing them to request funding for
new initiatives that will make a difference in their State.
To assist the States, we have suggested changes to the match
requirements to create more consistency between the grant programs; we
suggested that unused MCSAP formula grant funds be redistributed after
August 1 to States that can use the funding; and we requested a change
in the Maintenance of Effort requirements for MCSAP Basic and
Incentive. Under SAFETEA-LU, the maintenance of effort level changed
annually--creating an increasing obligation for the States in a time of
economic duress. To this end, we suggest that the levels be established
once at the start of the authorization period and remain constant. In
addition, we have provided language that would provide the Agency
authority to waive maintenance of effort requirements for a period of 1
year and in limited circumstances such as a natural disaster or
economic hardship.
To maximize the flexibility of the States, we have also suggested
that the States be allowed to request redistribution of awarded funds
under each umbrella grant program, provided that the State shows that
it is unable to expend funds within 12 months prior to expiration and
the State has a plan to spend funds within the remaining period of
expenditure on programs with comparable safety benefits.
These changes will allow both the Agency and the States to be more
responsive to safety issues and problems, while simplifying the
administration of the grants. As a result, these changes make the
programs more effective and allow them to be implemented more quickly.
Closing
As you can see, FMCSA has thoughtfully considered gaps in its
statutory authorities and ways to enhance its enforcement efforts and
program delivery capabilities. Mr. Chairman, we look forward to
continuing to work closely with the Subcommittee in its reauthorization
efforts to make significant strides to improve safety, reduce crashes
and save lives.
I thank you for the opportunity to discuss our policy proposals. I
would gladly answer any questions at this time.
Senator Lautenberg. Forgive me for neglecting to remind the
gather that Ms. Ferro is the Administrator of the Federal Motor
Carrier Safety Administration. We had some significant
conversations when you were up for appointment, and I'm pleased
to say it's worked very well. And we like what we see you
doing. And thank you for your consciousness about the safety
factor. It agrees totally with what we're looking at.
Mr. Hart.
Mr. Hart is Vice Chairman of the National Transportation
Safety Board. He'll tell us, we believe, about the agency's
recommendations to improve safety after investigating recent
truck and bus accidents.
Mr. Hart.
STATEMENT OF HON. CHRISTOPHER A. HART, VICE CHAIRMAN, NATIONAL
TRANSPORTATION SAFETY BOARD
Mr. Hart. Thank you.
Good afternoon, Chairman Lautenberg, Ranking Member Wicker,
and members of the Subcommittee. Thank you very much for the
opportunity to appear before you today.
The National Transportation Safety Board has recently
launched investigative teams to several major highway crashes
involving both trucks and motorcoaches.
Less than a month ago, on June 24, a tractor-trailer
hauling two empty dump trailers collided with an Amtrak train
near Marion, Nevada, resulting in the deaths of the truck
driver, a train crew member, and four train passengers.
On May 31, a motorcoach ran off the road and overturned on
I-95 near Doswell, Virginia, causing four fatalities and
numerous injuries. This accident closely followed three other
motorcoach accidents that occurred in March in New York, New
Jersey, and New Hampshire.
In an effort to learn more about the issues specific to
truck and bus safety, the NTSB hosted a two-day truck and bus
forum in May during which many open recommendations and their
underlying safety issues were discussed by witnesses from DOT,
safety advocates, and the motor carrier industry.
My written statement addresses a number of areas where we
believe more effective FMCSA oversight could lead to crashes
prevented and lives saved. But, for my oral statement today, I
will focus on three issues that are especially important: new
entrants, motor carrier oversight, and fatigue.
With respect to the new entrant process, in 2003 the NTSB
recommended that FMCSA require new motor carriers to
demonstrate their safety fitness prior to obtaining new entrant
operating authority. The recommendation came as a result of our
investigation into the collision of a tractor-trailer with a
Greyhound bus in which we found that the truck operator had
falsified key information in order to obtain operating
authority. In response to this recommendation, FMCSA developed
the New Applicant Screening Program, which screens new
applicants of prospective motor carriers before they receive
operating authority. Unfortunately, unscrupulous motor carriers
are still able to circumvent the New Applicant Screening
Program.
As a result of subsequent investigations, we have
recommended that FMCSA develop a system to evaluate the
effectiveness of the program and to seek additional authority
to revoke the operating authority of those unscrupulous
carriers.
With respect to oversight, the NTSB has expressed its
concerns for many years regarding the effectiveness of FMCSA's
motor carrier rating system. For example, the two most
important factors related to safe motor carrier operations in
FMCSA's six-factor rating system are vehicle condition and
driver performance. Except when found to be an imminent hazard,
however, operators must be found to be unsatisfactory in at
least two of the six rating factors in order to be
disqualified.
The NTSB has recommended that FMCSA emphasize both driver
performance and vehicle condition as critical elements in its
compliance reviews, and that an unsatisfactory rating in either
the vehicle area or the driver area should disqualify the
operator. To date, FMCSA has not completed action on this
recommendation, but they are in the process of completing their
Compliance, Safety and Accountability, CSA Program, which may
have some of these components. To make a final evaluation, the
NTSB is waiting on FMCSA's rulemaking on its safety fitness
determination methodology.
Finally, I would like to discuss some of the issues
relating to fatigue. The slides you are seeing now show just a
few of the commercial vehicle accidents that we have
investigated over the years involving fatigued drivers.
One of the issues related to fatigue is hours of service
rules. FMCSA's recent ANPRM proposed changing the hours of
service rules for truck drivers, but not for bus drivers. The
NTSB believes that hours of service rules must also be updated
for bus drivers in order to reduce the potential risk to the
passengers and to the driving public.
Another issue is electric onboard recorders, EOBRs. EOBRs
allow for better monitoring of hours of service and driver
fatigue. The NTSB is encouraged that FMCSA's most recent NPRM
on EOBRs corrects many of the inadequacies, and expands the
scope of the new role to cover most carriers.
Fatigue management is another important component in the
reduction of fatigue accidents. In 2008, the NTSB asked the
FMCSA to develop a methodology to assess the effectiveness of
fatigue management plans that are implemented by the motor
carriers. In 2010, the NTSB asked FMCSA to require that all
motor carriers adopt a fee, fatigue management program, and
create educational materials on fatigue and fatigue
countermeasures and make them available in different formats.
These safety issues and accidents are a reminder that there is
much to be done to improve the safety of commercial highway
operations. We need to do better.
Again, thank you for this opportunity to appear. I would be
pleased to take any questions.
[The prepared statement of Mr. Hart follows:]
Prepared Statement of Hon. Christopher A. Hart, Vice Chairman,
National Transportation Safety Board
Good morning, Chairman Lautenberg, Ranking Member Wicker, and
members of the Subcommittee. Thank you for the opportunity to appear
before you today on behalf of the National Transportation Safety Board
(NTSB) regarding the reauthorization of the Federal Motor Carrier
Safety Administration (FMCSA).
The NTSB is charged by Congress to investigate major transportation
accidents to determine their probable cause and make recommendations to
prevent similar accidents from happening again. Unfortunately, our
highway investigators have been quite busy with a number of major
highway tragedies. Less than a month ago, on June 24th, a truck tractor
hauling two empty dump trailers collided with an Amtrak train near
Miriam, Nevada, resulting in the deaths of the truck driver, a train
crewmember, and four train passengers.
In another accident, on May 31, a motorcoach ran off the road and
overturned on I-95 near Doswell, Virginia, causing four fatalities and
numerous injuries. This accident closely followed three similar
motorcoach accidents that occurred in March. In the first of these,
during the early morning hours of March 12, a motorcoach traveling
southbound on I-95 toward New York City struck a guardrail, swerved,
and rolled over on its side, cutting the bus in half as it struck a
signpost. Fifteen people were killed in this accident and the other 18
occupants were injured. Within 3 weeks of that accident, two other
motorcoach accidents occurred: one in East Brunswick, New Jersey, on
March 14 that killed two, and one in Littleton, New Hampshire, on March
21 that injured all 25 occupants.
The NTSB has also investigated highway accidents involving large
trucks. In June 2009 in Miami, Oklahoma, the fatigued driver of a
tractor-semitrailer failed to stop for a line of vehicles that had
slowed and stopped behind a minor traffic accident, causing a
multivehicle collision that killed 10 and injured 6. Just four months
later, in October 2009, a truck with an 11,600-gallon cargo tank
carrying liquefied petroleum gas (LPG) struck a guardrail while
traveling south on Interstate 69 in Indianapolis, Indiana, resulting in
the release of the LPG, which vaporized and ignited. The ensuing fires
involved eight other vehicles and injured at least five people.
In an effort to learn more about the issues specific to truck and
bus safety, NTSB hosted a 2-day Truck and Bus Safety forum in May at
which many open recommendations and their underlying safety issues were
discussed by stakeholders from the U.S. Department of Transportation
(DOT), safety advocates, and the motor carrier industry. Some of the
safety issues examined included
Carrier oversight and the determination of carrier safety
fitness by Federal, state, and industry organizations;
Aspects of carrier operations, including electronic onboard
recorders, hours of service, safety culture, vehicle size and
weight, and operating models;
Training and licensing of commercial drivers, including
commercial learner's permits, employer notification systems,
graduated licensing, and data collection;
Driver safety;
Driver health and wellness programs and medical oversight
for interstate commercial drivers;
Enhanced vehicle technologies, including electronic
stability control and collision avoidance systems;
Advances in crash mitigation, such as passenger restraints,
vehicle crashworthiness, vehicle compatibility, and highway
barrier systems.
Although the NTSB can investigate only a fraction of the tens of
thousands of highway accidents that occur, we have made hundreds of
recommendations over our 42-year history to improve the safety of
highway transportation. We currently have 166 open highway safety
recommendations issued to the DOT, the National Highway Traffic Safety
Administration (NHTSA), the FMCSA, the Federal Highway Administration
(FHWA), the Pipeline and Hazardous Material Safety Administration
(PHMSA), and the states. Fifty-five of those open recommendations are
addressed to the FMCSA.
Motor Carrier Safety Oversight
Rating Methodology
The FMCSA rates the safety of motor carriers in six areas. The two
most important related to safe motor carrier operations are the
condition of the vehicles and the performance of the drivers. Except
when found to be an ``imminent hazard,'' operators must be found to be
unsatisfactory in at least two of the six rating factors to be
disqualified. In other words, they can be unsatisfactory in either the
vehicle or driver areas and still be allowed to operate.
A good illustration of how this system fails to protect the
traveling public occurred in 1999 when a motorcoach rolled over in
Indianapolis, Indiana, killing 2 passengers and injuring 13. The
accident motorcoach had only 50-percent braking efficiency, and a post-
accident compliance review of the operator by the FMCSA resulted in all
10 of the carrier's vehicles being placed out of service. The company
had been inspected nine times between 1987 and 1995. In 1994, even
though fully 63 percent of the vehicles met the criteria for being
placed out of service, the operator received a ``conditional'' rating
for the vehicle factors. Because all the other factors were rated
``satisfactory,'' the operator was given an overall rating of
``satisfactory'' and was thus able to continue to operate with unsafe
vehicles. As a result of our investigation of this accident, the NTSB
recommended that the FMCSA emphasize both of these critical elements in
its compliance reviews, and that an unsatisfactory rating in either the
vehicle area or the driver area should disqualify the operator.\1\ To
emphasize our concern over this issue, we added this recommendation to
our Most Wanted List in 2000.
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\1\ H-99-6. To FMCSA: Change the safety fitness rating methodology
so that adverse vehicle or driver performance based data alone are
sufficient to result in an overall unsatisfactory rating for a carrier.
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In years following, we investigated additional motorcoach accidents
that involved the same issue: a 5-fatality motor coach accident in
Victor, New York, in 2002; a 23-fatality motorcoach fire near Wilmer,
Texas, in 2005; a 17-fatality motorcoach accident in Atlanta, Georgia,
in 2007; and a motorcoach rollover accident in Victoria, Texas, in
2008. FMCSA says these concerns will be addressed with full
implementation of its Compliance, Safety and Accountability (CSA)
program. However, to date, action that would satisfy this
recommendation has not been completed.
New Entrants and Reincarnated Motor Carriers
In 2002, the NTSB investigated an accident involving a tractor-
semitrailer collision with a Greyhound bus in Loraine, Texas, which
resulted in three deaths. Our investigation revealed that, when the
trucking company owner submitted his application, he lied about his
knowledge of regulations and his systems to comply with the
regulations, and he failed to disclose a drug conviction for possession
of large amounts of marijuana the year prior to his application. The
owner also failed to maintain any records on his drivers or vehicles,
to have a drug and alcohol program, and to conduct background checks of
his drivers. Further, he dispatched the accident driver knowing that
the driver had neither a commercial driver's license nor a medical
certificate.
At that time, the owner of a truck or bus company needed merely to
fill out an online form and pay a small fee to receive operating
authority from the FMCSA and become a motor carrier. Further, the FMCSA
conducted essentially no review or follow up of new entrant motor
carriers.
As a result, the NTSB recommended that the FMCSA require new motor
carriers to demonstrate their safety fitness prior to obtaining new
entrant operating authority.\2\ In response to this recommendation, the
FMCSA developed the New Applicant Screening Program, under which a new
motor carrier operating in interstate commerce is subject to an 18-
month safety monitoring period and receives a safety audit sometime
after its first 3 months of operation but before it completes the 18-
month monitoring period.
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\2\ H-03-2. To FMCSA: Require all new motor carriers seeking
operating authority to demonstrate their safety fitness prior to
obtaining new entrant operating authority by, at a minimum: (1) passing
an examination demonstrating their knowledge of the Federal Motor
Carrier Safety Regulations; (2) submitting a comprehensive plan
documenting that the motor carrier has management systems in place to
ensure compliance with the Federal Motor Carrier Safety Regulations;
and (3) passing a Federal Motor Carrier Safety Administration safety
audit, including vehicle inspections.
---------------------------------------------------------------------------
In 2008, the FMCSA began its New Entrant Safety Assurance Program,
under which the agency identified 16 regulations that constitute
essential, basic safety management controls necessary in interstate
commerce. It made a carrier's failure to comply with any of these 16
regulations an automatic failure of the safety audit. Additionally, if
certain violations are discovered during a roadside inspection, the new
entrant is subject to expedited actions to correct these deficiencies.
Unfortunately, unscrupulous motor carriers still use the new
entrant program to evade an enforcement action, or an out-of-service
order, by going out of business and then reincarnating themselves as if
they were a brand new motor carrier. The NTSB found that the motorcoach
operator involved in the Sherman, Texas, accident had engaged in this
subterfuge. After losing its authority to operate because of an
unsatisfactory compliance review rating, the operator subsequently
applied for new operating authority, as a new entrant, under a new
name. The NTSB concluded that the FMCSA's processes were inadequate to
identify the operator as a company that was simply evading enforcement
action. Thus, we recommended that the FMCSA evaluate the effectiveness
of its New Applicant Screening Program.\3\
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\3\ H-09-21. To FMCSA: To Develop an evaluation component to
determine the effectiveness of its New Applicant Screening Program.
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We found additional deficiencies with the FMCSA's new entrant
program during our investigation of a 2008 accident in which the driver
fell asleep and the motorcoach overturned in Victoria, Texas, killing
one person. The FMCSA failed to notice that the operator reincarnated
into a new operator shortly after the accident. As a result, the NTSB
issued recommendations to the FMCSA that asked the agency to develop
methods to identify reincarnated carriers and seek authority to deny or
revoke their operating authority.\4\ The FMCSA's Motor Carrier Safety
Advisory Committee echoed the NTSB's position that new entrants should
be evaluated before being allowed to operate in a September 2, 2009,
letter to the Acting Deputy Administrator of FMCSA.
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\4\ H-09-34. To FMCSA: Seek statutory authority to deny or revoke
operating authority for commercial interstate motor carriers found to
have applications for operating authority in which the applicant failed
to disclose any prior operating relationship with another motor
carrier, operating as another motor carrier, or being previously
assigned a U.S. Department of Transportation number.
H-09-35. To FMCSA: Apply the evasion detection algorithm process
against all interstate passenger carriers that obtained Federal Motor
Carrier Safety Administration operating authority, after the New
Entrant Safety Assurance Program began in 2003 but before the program
began vetting those carriers, to verify that those new entrant carriers
do not have a concealed history of poor safety management controls
because they were able to reenter interstate commerce undetected as
reincarnated carriers.
H-09-36. To FMCSA: Establish a requirement to review all passenger
carrier lease agreements during new entrant safety audits and
compliance reviews to identify and take action against carriers that
have lease agreements that result in a loss of operational control by
the certificate holder.
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Drivers and Fatigue
In the 1990s, the NTSB conducted two safety studies of commercial
truck accidents \5\ and found that fatigue was the most frequently
cited probable cause or factor in investigated crashes that had been
fatal to the driver. Based on these studies, the NTSB recommended that
the FMCSA use science-based principles to revise the hours-of-service
regulations for commercial drivers, ensure that the rule would enable
drivers to obtain at least 8 hours of continuous sleep, and eliminate
sleeper berth provisions that allow for the splitting of sleep periods.
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\5\ (a) Fatigue, Alcohol, Drugs, and Medical Factors in Fatal-to-
the-Driver Heavy Truck Crashes, Safety Study NTSB/SS-90/01 (Washington,
D.C.: NTSB, 1990); (b) Factors that Affect Fatigue in Heavy Truck
Accidents, Safety Study NTSB/SS-95-01 (Washington, D.C.: NTSB, 1995).
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In December, 2010, the FMCSA issued an NPRM proposing to change the
hours-of-service rule for truck drivers, but this proposed rule does
not apply to passenger carriers. The NTSB supports those provisions
that are scientifically based and would reduce continuous duty or
driving time, encourage the taking of breaks, promote nighttime sleep,
and foster scheduling patterns that are predictable and consistent with
the normal human diurnal circadian rhythm. However, we are opposed to
providing exceptions for buses, motorcoaches, and other groups because
of the potential increased risk such exceptions pose to the passengers
and the driving public.
Of course, no hours-of-service rule is adequate unless it is
enforceable. Since 1977, the NTSB has advocated the use of electronic
on-board recorders (EOBRs) to allow better monitoring of hours of
service and driver fatigue. Again in 2007, the NTSB asked the FMCSA to
require EOBRs for hours-of-service monitoring for all interstate
commercial carriers, following our investigation of a tractor-trailer
accident that had occurred in Chelsea, Michigan.\6\ The NTSB believes
that the FMCSA's April 2010 final rule on EOBRs did not adequately
address this safety issue, and we are encouraged that the FMCSA's new
NPRM, issued in January 2011, corrects many of the inadequacies and
expands the scope of the new rule to cover most carriers, as originally
recommended by the NTSB.
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\6\ H-07-41. To FMCSA: Require all interstate commercial vehicle
carriers to use electronic on-board recorders for hours of service.
H-07-42. To FMCSA: As an interim measure, until industry-wide use
of recorders is mandated, prevent log tampering by requiring motor
carriers to create audit control systems for their paper logs.
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In addressing the issue of fatigue, hours-of-service regulations
are important, and tamperproof EOBRs will help enforce those rules. But
fatigue management is another critical strategy. In 2008, following
three fatigue-related bus accidents that occurred in Osseo, Wisconsin;
Lake Butler, Florida; and Turrell, Arizona; in which a total of 27
people died and 60 were injured, the NTSB asked the FMCSA to develop a
plan to deploy technologies in commercial vehicles to reduce fatigue
related accidents \7\ and to develop a methodology to assess the
effectiveness of the fatigue management plans implemented by motor
carriers.\8\ The Miami, Oklahoma, accident, which involved a fatigued
truck driver, prompted the NTSB to reiterate these recommendations and
make an additional recommendation to require all motor carriers to
adopt a fatigue management program.\9\
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\7\ H-08-13. to FMCSA: to develop and implement a plan to deploy
technologies in commercial vehicles to reduce the occurrence of
fatigue-related accidents.
\8\ H-08-14. To FMCSA: to develop and use a methodology that will
continually assess the effectiveness of the fatigue management plans
implemented by motor carriers.
\9\ H-10-9. To FMCSA: Require all motor carriers to adopt a fatigue
management program based on the North American Fatigue Management
Program guidelines for the management of fatigue in a motor carrier
operating environment.
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A problematic and often undiagnosed sleep disorder that can
exacerbate fatigue is obstructive sleep apnea (OSA). The NTSB has
investigated several accidents in which OSA contributed to the fatigue
of the driver, pilot, mariner, or train operator. As a result, the NTSB
issued recommendations to the FMCSA in October 2009 addressing this
safety problem. In particular, the NTSB recommended that the FMCSA (1)
require drivers with a high risk for OSA to obtain medical
certification that they have been appropriately evaluated and, if
necessary, effectively treated for that disorder,\10\ and (2) provide
guidance for commercial drivers, employers, and physicians about
identifying and treating individuals at high risk of OSA.\11\ The NTSB
is aware that the FMCSA continues to address this issue, consulting the
expertise of various medical and industry groups, as well as its own
Medical Review Board, to better understand OSA and its risks in order
to develop appropriate guidance for medical examiners, motor carriers,
and CDL drivers.
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\10\ H-09-15. To FMCSA: Implement a program to identify commercial
drivers at high risk for obstructive sleep apnea and require that those
drivers provide evidence through the medical certification process of
having been appropriately evaluated and, if treatment is needed,
effectively treated for that disorder before being granted unrestricted
medical certification
\11\ H-09-16. To FMCSA: Develop and disseminate guidance for
commercial drivers, employers, and physicians regarding the
identification and treatment of individuals at high risk of obstructive
sleep apnea (OSA), emphasizing that drivers who have OSA that is
effectively treated are routinely approved for continued medical
certification.
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Another problem for operators is overlooking or not detecting
serious preexisting medical conditions in their drivers. The NTSB has
seen this issue in many accident investigations, the most tragic
example of which was the 1999 Mother's Day motorcoach accident in New
Orleans, Louisiana. A motorcoach driver lost consciousness while
driving on an interstate highway and crashed into an embankment,
killing 22 passengers and injuring 21. At the time of the accident, the
driver suffered from multiple previously known, serious medical
conditions, including kidney failure and congestive heart failure, and
he was receiving intravenous therapy for 3 to 4 hours, 6 days a week.
Although the FMCSA has taken important steps to address medical
issues, including publishing a final rule on merging the commercial
driver's license with the medical certificate, much still remains to be
done. For example, the FMCSA needs to ensure that medical certification
regulations are updated periodically \12\ and examiners both are
qualified and know what to look for when conducting physical exams.\13\
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\12\ H-01-19. To FMCSA: Ensure that medical certification
regulations are updated periodically to permit trained examiners to
clearly determine whether drivers with common medical conditions should
be issued a medical certificate.
\13\ H-01-17. To FMCSA: Ensure that individuals performing medical
examinations for drivers are qualified to do so and are educated about
occupational issues for drivers.
H-01-20. To FMCSA: Ensure that individuals performing examinations
have specific guidance and a readily identifiable source of information
for questions on such examinations.
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FMCSA has published an NPRM proposing to create a national registry
of certified medical examiners. We believe that the proposed registry
needs to include a tracking mechanism for driver medical
examinations.\14\ Such a registry and mechanism would reduce the
current practice of drivers ``doctor shopping'' to find one who will
sign their medical forms. Likewise, a second level of review is
necessary to identify and correct the inappropriate issuance of medical
certification.\15\ The FMCSA must establish a system for reporting
medical conditions that develop between examinations.\16\ Finally, the
FMCSA needs to develop a system that records all positive drug and
alcohol test results and refusal determinations, and require
prospective employers and certifying authorities to query the system
before making hiring decisions.\17\
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\14\ H-01-18. To FMCSA: Develop a tracking mechanism be established
that ensures that every prior application by an individual for medical
certification is recorded and reviewed.
\15\ H-01-21. To FMCSA: Develop a review process prevents, or
identifies and corrects, the inappropriate issuance of medical
certification.
\16\ H-01-24. To FMCSA: Develop mechanisms for reporting medical
conditions to the medical certification and reviewing authority and for
evaluating these conditions between medical certification exams;
individuals, health care providers, and employers are aware of these
mechanisms.
\17\ H-01-25. To FMCSA: Develop a system that records all positive
drug and alcohol test results and refusal determinations that are
conducted under the U.S. Department of Transportation testing
requirements, require prospective employers to query the system before
making a hiring decision, and require certifying authorities to query
the system before making a certification decision.
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Also of concern is the lack of information available to commercial
drivers about the side effects and interactions of various drugs, and
the impact these drugs may have on driving ability. Such interactions
can present serious problems for drivers with diagnosed medical
conditions who are being treated with prescription or over-the-counter
medications. For example, in 1998 a motorcoach driver and six
passengers were killed when the driver drove into the back of a parked
tractor-trailer near Burnt Cabins, Pennsylvania. The NTSB found that
the accident had been caused, in part, by the driver's use of an over-
the-counter antihistamine, which negatively affected his alertness,
performance, and judgment. As a result, the NTSB recommended that FMCSA
help drivers understand which medications are appropriate for use when
driving,\18\ provide guidance to drivers on specific medications that
may be hazardous,\19\ ensure that drivers are aware of the hazards of
using specific medications,\20\ and establish toxicological testing
requirements.\21\
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\18\ H-00-12. To FMCSA: Establish, with assistance from experts on
the effects of pharmacological agents on human performance and
alertness, procedures or criteria by which highway vehicle operators
who medically require substances not on the U.S. Dept. of
Transportation's list of approved medications may be allowed, when
appropriate, to use those medications when driving.
\19\ H-00-13. To FMCSA: Develop, then periodically publish, an
easy-to-understand source of information for highway vehicle operators
on the hazards of using specific medications when driving.
\20\ H-00-14. To FMCSA: Establish and implement an educational
program targeting highway vehicle operators that, at a minimum, ensures
that all operators are aware of the source of information described in
Safety Recommendation H-00-13 regarding the hazards of using specific
medications when driving.
\21\ H-00-15. To FMCSA: Establish, in coordination with the U.S.
Department of Transportation, the Federal Railroad Administration, the
Federal Transit Administration, and the U.S. Coast Guard, comprehensive
toxicological testing requirements for an appropriate sample of fatal
highway, railroad, transit, and marine accidents to ensure the
identification of the role played by common prescription and over-the-
counter medications. Review and analyze the results of such testing at
intervals not to exceed every 5 years.
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The Miami, Oklahoma, accident investigation raised two other
interesting aspects of fatigue-related accidents. First, because
fatigue is very difficult to identify as a causal factor, fatigue-
related accidents are likely underreported in accident statistics:
There is no ``blood test'' for fatigue, as there is for alcohol.
Second, motor carriers are increasingly installing video cameras that
capture images both outside and inside the vehicle. These cameras are
not only documenting drivers falling asleep, they are also documenting
a number of unsafe driver behaviors and distractions. More importantly,
some motor carriers are increasingly using these cameras as a training
tool to coach their drivers about safe driving habits. In fact, the
NTSB found that some companies have seen reductions in accidents by
about 30 percent to as much as 50 percent when using these cameras as a
coaching tool.
Truck and bus driving are two occupations where it is nearly
impossible for a supervisor to directly observe and supervise an
employee's behavior. Operators of trucks and buses have no copilots,
additional engineers, or conductors that pilots and train engineers
have. Therefore, to help prevent future fatigue accidents like the one
that occurred in Miami, Oklahoma, or similar accidents involving bad
driver behavior, the NTSB recommends the installation of video event
recorders in commercial vehicles \22\ and asks that motor carriers be
required to use these tools to improve driver behavior.\23\
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\22\ H-10-10. To FMCSA: Require all heavy commercial vehicles to be
equipped with video event recorders that capture data in connection
with the driver and the outside environment and roadway in the event of
a crash or sudden deceleration event. The device should create
recordings that are easily accessible for review when conducting
efficiency testing and system-wide performance-monitoring programs.
\23\ H-10-11. To FMCSA: Require motor carriers to review and use
video event recorder information in conjunction with other performance
data to verify that driver actions are in accordance with company and
regulatory rules and procedures essential to safety.
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Cell Phone Use
The NTSB issued its first recommendation about cell phone use by a
commercial driver in 2004, following an accident in Alexandria,
Virginia, in which an experienced motorcoach driver, engaged in a
heated conversation on his hands-free cell phone, failed to move to the
center lane to avoid striking the underside of an arched stone bridge
on the George Washington Memorial Parkway. Our investigation found that
the driver had been familiar with the route and had received numerous
cues to change lanes at the appropriate time to have enough clearance
for the height of the bus. In fact, not only was the driver familiar
with the road, but he also was following another bus that had
appropriately moved to the center lane. Yet, this driver did not notice
the well-marked signage or any other cues as he approached the arched
stone bridge. The accident was clearly caused by this driver's
cognitive distraction, caused by his use of a hands-free cell phone.
The NTSB recommended that the FMCSA \24\and 50 states \25\ enact
laws to prohibit cell phone use by commercial drivers while driving
passenger-carrying commercial vehicles or school buses. We also
recommended that motorcoach associations, school bus organizations, and
unions develop formal policies to prohibit cell phone use by commercial
drivers, except in emergencies.\26\ Unfortunately, the current FMCSA
NPRM, issued in December 2010, proposes to limit cell phone
restrictions to only hand-held devices and does not address the
cognitive distraction posed by the use of hands-free devices.
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\24\ H-06-27. To FMCSA: Publish regulations prohibiting cellular
telephone use by commercial driver's license holders with a passenger-
carrying or school bus endorsement, while driving under the authority
of that endorsement, except in emergencies.
\25\ H-06-28. The National Transportation Safety Board makes the
following recommendation to the 50 States and the District of Columbia:
Enact legislation to prohibit cellular telephone use by commercial
driver's license holders with a passenger-carrying or school bus
endorsement, while driving under the authority of that endorsement,
except in emergencies.
\26\ H-06-29. The National Transportation Safety Board makes the
following recommendation to motorcoach industry, public bus, and school
bus associations and unions: Develop formal policies prohibiting
cellular telephone use by commercial driver's license holders with a
passenger-carrying or school bus endorsement, while driving under the
authority of that endorsement, except in emergencies.
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Vehicles
The NTSB has also taken issue with the FMCSA's oversight of vehicle
inspections. Following the eight-fatality Tallulah, Louisiana,\27\
motorcoach accident and the 17-fatality Sherman, Texas,\28\ motorcoach
accident, the NTSB recommended that the FMCSA provide adequate
oversight of private inspection garages. However, these recommendations
remain open.
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\27\ H-05-04. To FMCSA: Conduct a study on the safety effectiveness
of the self-inspection and certification process used by motor carriers
to comply with annual vehicle inspection requirements and take
corrective action, as necessary.
\28\ H-09-20. To FMCSA: Require those states that allow private
garages to conduct Federal Motor Carrier Safety Administration
inspections of commercial motor vehicles, to have a quality assurance
and oversight program that evaluates the effectiveness and thoroughness
of those inspections.
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In accidents involving a school bus in Mountainburg, Arizona, and
another involving a dump truck in Glen Rock, Pennsylvania, the NTSB
found that the FMCSA lacked adequate oversight of pre-trip brake
inspections \29\ and oversight of the qualifications of brake
inspectors; \30\ we also found a need for formal training of these
inspectors.\31\ The Glen Rock, Pennsylvania, accident prompted the NTSB
recommend in 2006 that the FMCSA require drivers to demonstrate
proficiency in air-braked vehicles and to understand the dangers of
adjusting automatic slack adjusters.\32\
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\29\ H-02-15. To FMCSA: Revise 49 Code of Federal Regulations
396.13, Driver Inspection, to require minimum pre-trip inspection
procedures for determining brake adjustment.
\30\ H-02-17. To FMCSA: During compliance reviews, rate companies
as unsatisfactory in the vehicle factor category if the mechanics and
drivers responsible for maintaining brake systems are not qualified
brake inspectors.
\31\ H-02-18. To FMCSA: Revise 49 Code of Federal Regulations
396.25, Qualifications of Brake Inspectors, to require certification
after testing as a prerequisite for qualification and specify, at a
minimum, formal training in brake maintenance and inspection.
\32\ H-06-02. To FMCSA: Require drivers of commercial vehicles that
weigh less than 26,000 pounds and are equipped with air brakes to
undergo training and testing to demonstrate proficiency in the
inspection and operation of air-braked vehicles; the training should
emphasize that manually adjusting automatic slack adjusters is
dangerous and should not be done, except during installation or in an
emergency to move the vehicle to a repair facility.
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The NTSB has also found problems with commercial vehicle tires. For
example, some tires have a speed restriction because they are not meant
for highway speeds. If a speed-restricted tire is used in service at
speeds above 55 mph for extended periods, a catastrophic failure can
result. Although the tires did not cause the motorcoach accident in
Tallulah, LA, the inspection process had never identified the speed-
restricted tires installed on this vehicle, even though it was being
operated on major highways. The NTSB made recommendations to correct
this deficiency.\33\
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\33\ H-05-03. To FMCSA: Revise the Federal Motor Carrier Safety
Regulations Appendix G to Subchapter B, Minimum Periodic Inspection
Standards, Part 10: Tires, Sections A(5) and B(7), to include
inspection criteria and specific language to address a tire's speed
rating to ensure that it is appropriate for a vehicles intended use.
---------------------------------------------------------------------------
Following the Sherman, Texas, motorcoach accident, which had been
caused by low air pressure on one of the front tires, the NTSB found
that even small reductions in air pressure can cause commercial tires
to be overloaded, to overheat, and to fail. This potential overloading
problem is especially true for the front tires of motorcoaches where,
even with proper air pressure, these tires may be close to their
maximum load rating. Therefore, the NTSB made recommendations to NHTSA
and the FMCSA to require tire pressure monitoring systems \34\ and to
require commercial drivers to check their tire pressure with a
gauge.\35\
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\34\ H-09-22. To NHTSA: Require all new motor vehicles weighing
over 10,000 pounds to be equipped with direct tire pressure monitoring
systems to inform drivers of the actual tire pressures on their
vehicles.
\35\ H-09-19. To FMCSA: Require that tire pressure be checked with
a tire pressure gauge during pretrip inspections, vehicle inspections,
and roadside inspections of motor vehicles.
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Illegal Motorcoaches
The NTSB discovered another oversight issue as a result of the
motorcoach accident in Victoria, Texas. This motorcoach had been
imported from Mexico, and it repeatedly crossed the border into Texas.
It should never have been allowed into the United States because it was
not built to meet NHTSA's Federal Motor Vehicle Safety Standards
(FMVSS). Therefore, the NTSB made several recommendations to the FMCSA
and NHTSA to develop a database of FMVSS-compliant buses \36\ and
verify that operators are using FMVSS-compliant vehicles.\37\ The NTSB
also recommended that the FMCSA train law enforcement to detect non-
FMVSS-compliant vehicles,\38\ and to obtain the authority to put
operators out of service if they use such illegal vehicles.\39\
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\36\ H-09-37 & H-09-30. To FMCSA and NHTSA, respectively: Assist
the National Highway Traffic Safety Administration in developing a Web-
based database of FMVSS-compliant passenger-carrying commercial motor
vehicles that can be utilized by federal, state, and local enforcement
inspection personnel to identify non-FMVSS-compliant passenger-carrying
commercial motor vehicles so that these vehicles (other than exempted
vehicles) are placed out of service and cease operating in the United
States. Implement a process to periodically update this database.
H-09-38. To FMCSA: Require that Federal and state inspectors
utilize the database requested in Safety Recommendation H-09-37 during
both roadside and compliance review inspections of passenger-carrying
commercial motor vehicles to identify and place out of service non-
FMVSS-compliant vehicles.
H-09-31. To NHTSA: When the database requested in Safety
Recommendation H-09-30 is completed, make the database known and
accessible to state vehicle registration agencies and to Federal,
state, and local enforcement inspection personnel for their use during
roadside inspections and compliance reviews to identify non-FMVSS-
compliant passenger-carrying commercial motor vehicles.
\37\ H-09-40. To FMCSA: Require that passenger motor carriers
certify on their OP-1(P) forms--(Application for Motor Passenger
Carrier Authority) and initial MCS-150 form (Motor Carrier
Identification Report [Application for USDOT Number]) and subsequent
required biennial submissions that all vehicles operated, owned, or
leased per trip or per term met the FMVSSs in effect at the time of
manufacture.
\38\ H-09-39. To FMCSA: Institute a requirement for Federal and
state enforcement officials to obtain training on a procedure to
physically inspect passenger-carrying commercial motor vehicles for an
FMVSS compliance label, and work with the Commercial Vehicle Safety
Alliance to develop and provide this training.
\39\ H-09-41. To FMCSA: Seek statutory authority to suspend,
revoke, or withdraw a motor carrier's operating authority upon
discovering the carrier is operating any non-FMVSS-compliant--
passenger-carrying commercial motor vehicles, a violation of the FMVSS-
compliant certification requested in Safety Recommendation H-09-40.
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Closing
The safety issues and accidents discussed today are a reminder that
there is much to be done to improve the safety of commercial highway
operations. Accidents--although often tragic and costly--provide a
unique opportunity to identify real world issues and to learn from our
mistakes. Frustrating to the NTSB is that many of the issues discussed
today have been identified as causal to truck and bus accidents for a
number of years, yet NTSB investigators continue to see these factors
again and again. Transportation safety is too important for the well-
being of our citizens, our industry, and our economy to continue to
repeat past mistakes. We need to do better.
Senator Lautenberg. Thank you.
Now we have Mr. England. And, Mr. England is First Vice
Chairman of the American Trucking Association. We look to
hearing the industry's views on improving the Federal
Government's truck safety programs.
Thank you for being here.
STATEMENT OF DANIEL ENGLAND, VICE CHAIRMAN, BOARD OF DIRECTORS,
NATIONAL TRUCKING ASSOCIATIONS AND CHAIRMAN OF THE BOARD AND
PRESIDENT, C.R. ENGLAND
Mr. England. Chairman Lautenberg, Ranking Member Wicker,
and members of the Subcommittee, I am Dan England.
I am Chairman of the Board and President of C.R. England, a
family owned and operated business headquartered in Salt Lake
City. It was founded in 1920. We have more than 5,500 drivers,
4,000 tractors, and 6,000 trailers.
Today I appear on behalf of ATA, where I currently serve as
Vice Chairman of the Board. Thank you for the opportunity to
testify today.
First, I want to stress the need to strengthen the
requirements for new carriers entering the industry, since they
have significantly higher violation and crash rates.
Regrettably, 41 percent of these carriers fail their initial
safety audits, and 24 percent ultimately have their authority
revoked.
To address this problem, ATA urges that every new entrant
be required to successfully complete comprehensive online
training and an examination prior to initiating operations.
Further, the initial safety audit should occur sooner--within 6
months of the carrier start date, not 18 months, the current
standard.
To prevent unsafe drivers from entering the industry,
Congress should enact S. 754, legislation sponsored by Senator
Pryor, to create a clearinghouse for drug and alcohol test
results, which would help carriers identify and better screen
applicants that have violated the drug and alcohol regulations.
I would like to thank Senator Pryor, as well as cosponsors
Boozman, Snowe, Vitter and Wicker, for their support of this
important measure.
Finally, the Federal Government should allow hair testing
in order to meet the drug and alcohol testing requirements.
Motor carriers are increasingly relying on hair testing as a
means to identify unsafe drivers.
Once drivers are permitted to enter the industry, both
FMCSA and motor carriers need the tools to assure their
continued safety. ATA fully supports improving safe operations
through a Federal mandate for electronic logging devices,
including S. 695, legislation sponsored by Senators Pryor and
Alexander. An EOBR mandate should be coupled with retention of
the current rules governing the hours of service of truck
drivers.
The industry safety record has improved dramatically since
the current regulations were put into place in 2004, even
though truck mileage has increased. Given these improvements,
the most appropriate course of action is to mandate electronic
logging devices to improve compliance with the current rules,
rather than change them.
Other tools to improve safety include a national system to
promptly notify employers of drivers' convictions for moving
violations; two, a mandate that speed limiters on large trucks
be set at 65 miles per hour at time of manufacture; three, a
national 65 mile-per-hour speed limit for all vehicles; and,
four, improvements to FMCSA's new CSA program.
ATA shares Congress's strong desire to remove unsafe
drivers and carriers from the industry. CSA represents an
important means to this end. However, the system's ability to
reliably identify unsafe carriers and drivers is hindered by
underlying data and methodology issues. To correct erroneous
data, ATA strongly encourages Congress to expand motor carrier
safety assistance program funding dedicated to adding State
data correction personnel.
Perhaps the most pressing area of improvement for the CSA
program is how the system measures carriers' crash involvement.
Currently, the system does so using all carrier-involved
crashes, including those for which the motor carrier could not
reasonably be held accountable. As a result, carrier scores in
this are less meaningful and reliable. In order to more
accurately identify unsafe carriers, FMCSA should only measure
performance on crashes for which motor carriers can reasonably
be held accountable.
In closing, meaningful solutions to truck safety require a
focus on the primary causes of crashes, and require an
acknowledgment of the role that other motorists play in truck
crashes. FMCSA should devote resources to programs that address
the role of passenger vehicles in car-truck crashes.
Truck safety regulations are important, and we support
them. However, regulations alone are insufficient to achieve
optimum results. Employing more creative solutions and tools to
leverage the mutual interest of the industry and government to
improve highway safety will bring about even greater safety
gains.
Thank you for the opportunity to offer ATA's views on how
best to collaboratively improve highway safety. I would be
happy to answer any questions you may have.
Thank you.
[The prepared statement of Mr. England follows:]
Prepared Statement of Daniel England, Vice Chairman, Board of
Directors, National Trucking Associations and Chairman of the Board and
President, C.R. England
Introduction
Chairman Lautenberg, Ranking Member Wicker, and members of the
Subcommittee, my name is Dan England, and I am the Chairman of the
Board and President C.R. England, a nationwide transportation company
specializing in the movement of temperature-controlled products.
Founded in 1920, we are a family-owned business employing more than
4,600 drivers and operating 3,500 trucks.
I also currently serve as Vice Chairman of the American Trucking
Associations (ATA). ATA is the national trade association for the
trucking industry, and is a federation of affiliated State trucking
associations, conferences and organizations that together have more
than 37,000 motor carrier members representing every type and class of
motor carrier in the country. Thank you for the opportunity to testify
before the Subcommittee today.
Mr. Chairman, today I have been asked to speak about ways to ensure
that only safe motor carriers and drivers are able to enter the
industry; steps to strengthen laws and regulations governing drivers
and vehicles that are permitted to operate; and the tools Federal and
State authorities need to remove unfit drivers and carriers from the
industry. I will also address a number of other opportunities to
improve highway safety later in my testimony.
The Industry's Safety Record
It is important to point out that the trucking industry has long
supported sensible and effective measures to improve highway safety.
Because the highway is our workplace, we are concerned whenever any
motorist--professional truck driver or passenger vehicle operator--
engages in risky behavior behind the wheel. ATA was an early advocate
of mandatory drug and alcohol testing for drivers and the ban on radar
detectors in trucks. More recently, we successfully petitioned the
National Highway Traffic Safety Administration (NHTSA) to initiate a
rulemaking to mandate that speed limiters in all large trucks be set at
time of manufacture to no more than 65 mph. In addition, we have
published an 18-point Safety Agenda, a series of policy recommendations
that, if implemented, would go a long way to further improving highway
safety.
We have seen a truly incredible improvement in truck safety,
especially over the last decade. In fact, in 2009 the number of
injuries and fatalities in truck-involved crashes reached its lowest
level in recorded history. Some may try to discredit these
accomplishments by attributing them to the recession. However, these
crash reductions have occurred even though truck mileage has increased.
As a result, the rate of trucks involved in fatal and injury crashes
has also reached a record low level. Charts depicting these
improvements can be found at the end of my testimony.
Preventing Unsafe Motor Carriers and Drivers From Entering the Industry
New Entrant Requirements
In order to continue the positive trends in truck safety, FMCSA
must further strengthen the requirements for new motor carriers
entering the industry. As a study conducted by the Volpe National
Transportation Systems Center (Volpe Center) demonstrated, new motor
carriers have significantly higher violation and crash rates. For
instance, the violation rate of critical safety regulations for new
entrants was 206.3 per 1,000 drivers compared to 11.8 per 1,000 drivers
for experienced carriers. Similarly, the violation rate of acute safety
regulations for new entrants was found to be 128.8 per 1,000 drivers
versus 34.1 for experienced carriers.\1\ Not surprisingly, the rate of
crashes for new carriers was found to be higher as well. The crash rate
for carriers in their first year of operation was 0.505 per million
vehicle miles traveled, compared to 0.411 for carriers with more than a
year of operating experience.\2\
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\1\ Acute regulations those where a single violation is indicative
of a breakdown in, or lack or, safety management controls. Critical
violations are those a pattern of violations (e.g., more than 10
percent of records check) is indicative of a breakdown in, or lack of,
safety management controls.
\2\ Background to New Entrant Safety Fitness Assurance Process,
John A. Volpe National Transportation Systems Center, March 2000.
---------------------------------------------------------------------------
Despite these risks, FMCSA currently grants operating authority to
new motor carriers without any demonstration of the carrier's
understanding of, or compliance with, Federal safety regulations.
Instead, an initial new entrant safety audit occurs up to 18 months
after a carrier has commenced operations. Regrettably, 41 percent of
carriers fail these initial safety audits and 24 percent ultimately
have their authority revoked.\3\
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\3\ Presentation at 2011 Commercial Vehicle Safety Alliance Spring
Workshop by Jack Van Steenburg, Director, Office of Enforcement and
Compliance, FMCSA, April 2011.
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Clearly, more needs to be done to ensure the safety of new entrants
before they begin operating, and new entrant safety audits must be done
sooner. As the Subcommittee may be aware, the Motor Carrier Safety
Improvement Act (MCSIA) of 1999 directed the Secretary of
Transportation to ``consider the establishment of a proficiency
examination for applicant motor carriers. . .to ensure such applicants
understand applicable safety regulations before being granted operating
authority''. However, in implementing the new entrant program, the
Federal Motor Carrier Safety Administration (FMCSA) opted not to
require such an exam but instead created a self-certification process.
Carriers merely had to answer ``yes'' or ``no'' to a series of
questions about whether they complied with Federal safety regulations.
In March 2003, the National Transportation Safety Board (NTSB)
criticized the new entrant safety assurance process in its safety
recommendations stemming from a tragic motorcoach accident. NTSB noted
that the self-certification process ``. . . does little more to screen
new motor carrier applicants than the previous new entrant form
requirements did. . . . In other countries and territories, the new
applicant process is more stringent. . . . In all member countries of
the European Union, a new motor carrier must take an examination to
ensure that he knows the rules and regulations. . . . The Safety Board
therefore concludes that FMCSA's New Entrant Safety Assurance Process
lacks meaningful safeguards to ensure that a motor carrier is aware of,
understands, and has a safety management system in place to comply with
the FMCSRs (Federal Motor Carrier Safety Regulations).''
In a rulemaking completed in 2008, FMCSA subsequently eliminated
the self-certification process, noting that ``Many carriers were
discovered to have falsely certified having such knowledge, and
commenters urged the Agency to remove this requirement. The Agency
concluded that enhanced educational materials and technical assistance
materials would provide most carriers with sufficient knowledge of
applicable regulations and of how to comply with such regulations. . .
.''
With the elimination of the self-certification process, there is
now no means to effectively ensure knowledge and compliance with the
regulations by new entrants before they begin operations. ATA
recognizes that strengthening the new entrant safety assurance process
is a large task for FMCSA to tackle. Over 40,000 new motor carriers
file for authority to operate annually, but FMCSA must focus its
limited resources on auditing existing carriers that present known
safety risks. However, it is clear that the new entrant process must be
improved.
ATA urges mandatory minimum training requirements, pre-authority
proficiency exams, and accelerated initial safety audits as components
of highway reauthorization legislation. Specifically, every new entrant
should be required to successfully complete comprehensive on-line
training on compliance with the Federal Motor Carrier Safety
Regulations and an examination prior to initiating operations. Further,
FMCSA should conduct the initial safety audits sooner, specifically,
within 6 months of the carrier's start date.
Drug and Alcohol Clearinghouse
There are also steps FMCSA can take to prevent unsafe drivers from
entering the industry. In particular, FMCSA can leverage the industry's
shared desire to prevent these drivers from operating by providing
motor carriers with tools to more effectively screen driver applicants.
For instance, the creation of a clearinghouse for drug and alcohol test
results would help carriers identify applicants that have violated the
drug and alcohol regulations. The clearinghouse would represent a major
step toward closing a known loophole that allows unsafe drivers to
evade the consequences of their actions by simply failing to disclose
to hiring carriers the names of motor carrier they worked for when they
committed drug or alcohol violations.
Driver Safety Measurement System Scores
FMCSA could also leverage the power of the industry to remove
unsafe operators from the industry by providing carriers with driver
applicants' Driver Safety Measurement System (DSMS) scores. These
scores are generated by the agency's new safety Measurement System and
represent each driver's safety performance reflected as a percentile
ranking compared to all other drivers. Currently, these scores are only
accessible by agency enforcement officials.
Hair Testing For Drugs
Finally, the Department of Transportation (DOT) should work with
the Department of Health and Human Services to develop standards for
the acceptance of hair testing as a component of the Federal Workplace
Drug Testing program. Motor carriers are increasingly relying on hair
testing as a means to identify unsafe drivers who make drug use part of
their lifestyles. These carriers have found that hair is far superior
to the only currently accepted specimen--urine--in its ability to
detect drug use. Specifically, they have found that hair tests are up
to 30 percent more likely to reveal drug use. Further, hair testing is
less subject to subversion than urine and has a longer window of
detection time--up to 30 days.
However, carriers that employ hair testing must still conduct
redundant urine tests. Also, they are prohibited from sharing positive
hair test results with former drivers' prospective employers. As a
result, a driver who is terminated for testing positive on a hair test
can merely apply for employment with another motor carrier without fear
that the new employer will learn of his failed drug test.
Improve Laws and Regulations that Govern Drivers and Vehicles
Employer Notification System
Once drivers are permitted to enter the industry, both FMCSA and
motor carriers need the tools to assure their continued safety. One
such tool that is desperately needed is a system to proactively notify
employers of drivers' convictions for moving violations and of other
licensing actions (e.g., license suspensions). Such systems have been
shown to function effectively in several states and could serve as
models for a Federal program.
Research has repeatedly shown the strong predictive value of moving
violations. One such study, an April 2011 analysis published by the
American Transportation Research Institute \4\ (ATRI), showed that
drivers convicted of moving violations are far more likely to be
involved in future crashes. For instance, drivers convicted of improper
passing, improper turns or improper/erratic lane changes are over 80
percent more likely to be involved in a future crash than those who
have not. More timely notification of such violations would improve
safety by revealing problem driving behavior promptly so that
corrective action (e.g., training, progressive discipline) can be taken
more quickly.
---------------------------------------------------------------------------
\4\ Predicting Truck Crash Involvement: A 2011 Update; American
Transportation Research Institute, April 2011.
---------------------------------------------------------------------------
Consistent with ATRI's findings, a 2004 FMCSA study Driver
Violation Notification Service Feasibility concluded that a national
ENS could save approximately 15 lives and avoid up to 373 injuries and
6,828 crashes per year. More recently, two States--Colorado and
Minnesota--participated in an ENS pilot program mandated by Section
4022 of the Transportation Equity Act for the 21st Century (TEA-21).
Nearly 1,100 drivers participated in the pilot which generated 229
notifications to the drivers' employers. In its final report on the
pilot, FMCSA estimated that a national DRNS system would prevent
between 2,500 and 3,500 crashes and generate $240.5 million in societal
safety benefits annually.
Under the current Federal process, motor carriers often do not
learn of drivers' convictions in a timely manner. Employers are
required to check drivers' records annually, however these records may
reveal violations committed up to 11 months earlier. Similarly, CDL
holders are required to notify their employers of violations within 30
days of a conviction, but are often reluctant to do so fearing
repercussions. FMCSA estimates that at least 50 percent of drivers do
not notify employers of convictions and licensing actions (e.g.,
suspensions, revocations) within the required time-frames.
For these reasons, ATA strongly advocates swift development of a
national employer notification system. DOT can deploy such a system
relatively quickly and easily by endorsing a hybrid approach--combining
the capabilities and expertise of a third parties with strong Federal
guidance.
Electronic Logging Devices
FMCSA could also better ensure safe operation of commercial motor
vehicles by moving forward with its proposed mandate for electronic
logging devices. ATA supports mandating such devices as a means to
improve compliance with the hours of service rules. FMCSA's data
generated in the context of its Compliance, Safety, Accountability
(CSA) program, shows a very strong correlation between compliance with
the current hours of service rules and safe operation. Hence, the
proper course of action is to improve compliance with the rules, rather
than change them.
Moreover, FMCSA's proposed changes to the hours of service rules
are unnecessary and unjustified. Truck safety has improved to
unprecedented levels since 2003 when the basic framework for the
current hours of service regulations was first published. The numbers
of truck-related injuries and fatalities have both dropped more than 30
percent to their lowest levels in recorded history.
Also, the productivity losses and other negative impacts of the
proposed rule would be dramatic. Past estimates by DOT placed the net
cost to society of similar changes at over $2 billion annually. In
fact, FMCSA's own cost benefit analysis acknowledges that the safety
benefits of the proposed rule do not outweigh the costs. Only by
applying creative ``driver health'' benefits can the agency justify
making these changes. However, the agency mischaracterized the findings
of the research upon which it makes this tenuous claim.
Given these many reasons, the best course of action is for FMCSA to
abandon its proposal, retain the current hours of service regulations,
and devote attention to improving compliance with the rules by, among
other things, mandating electronic logging devices.
Speed Limiters
Perhaps one of the most effective means to ensuring continued safe
operation is to reduce the speed of vehicles. As the Subcommittee may
know, in 2006 ATA petitioned FMCSA and NHTSA to require speed limiters
be set at time of manufacture. Also, ATA subsequently recommended a
maximum national speed limit to 65 miles-per-hour for all vehicles.
NHTSA recently agreed to grant ATA's petition and will initiate a
rulemaking on this matter. However, the agency has delayed its planned
initiation of this rulemaking until the end of 2012. Including this
mandate in the safety title of reauthorization would raise the
visibility and priority of this issue causing NHTSA to begin its
rulemaking process sooner.
Tools to Remove Unsafe Drivers and Carriers From the Industry
ATA shares Congress' strong desire to remove unsafe drivers and
carriers from the industry. Perhaps the most important part of that
process is the accurate identification of bad actors. Fortunately,
FMCSA's new CSA program represents an important means to this end. By
design, the system uses real-time performance data, measures relative
crash risk, and creates scores of comparative performance. These scores
are then used to identify the most unsafe actors (carriers and drivers)
and prioritize them for enforcement intervention.
Data Quality Issues
ATA has supported CSA from the outset since it is generally
performance-based, provides real time measurements, and has the
potential to distinguish responsible carriers from those that may not
share their commitment to safety. However, the integrity of the system
is hindered by underlying data quality issues. As such, its use as a
system to reliably identify unsafe carriers and drivers is somewhat
limited.
Given the heightened impact of safety data (roadside inspection
results, crashes) on carriers' performance measurements, carriers are
increasingly scrutinizing their data and challenging erroneous records.
These challenges are made through a program called DataQs, which
channels correction requests to the appropriate state agencies.
However, since the launch of CSA, DataQ correction requests have
skyrocketed, challenging the states' abilities to correct erroneous
reports in a timely fashion. To help resolve this data crisis, ATA
strongly encourages Congress to expand Motor Carrier Safety Assistance
Program (MCSAP) funding dedicated to State DataQ resources. At a
minimum, each state will need to add a full time employee (or two) in
order to keep pace with the increasing demand for data corrections.
Scoring Methodology Improvements
It is also necessary for FMCSA to make some changes to the
methodology CSA uses to develop carriers' scores. Most importantly,
FMCSA should modify the severity weights or ``points'' assigned to
violations so that they more accurately correspond to relative crash
risk. Several, if not many, of the violation severity weights are
illogical and inappropriate, in that they do not accurately reflect
relative crash risk. As a result, the system targets the wrong
carriers--those that may not present the greatest crash risk.
For instance, a tire with less than 2/32nd tread on the trailer
bears the same weight (8 points on a scale of 1--10) as a tire in the
same condition mounted on the steering axle. Naturally, these two
mounting positions present very different relative risks. Also, failing
to have all four hazardous materials placards mounted horizontally
bears the same weight (5 points) as having no placards mounted at all.
To develop these severity weights, FMCSA initially relied on data
generated through a crash risk analysis. However, the agency later
modified the weights based on ``subject matter expert input'' and is
now in the process of seeking recommendations for additional changes
based on the opinions expressed by members of the agency's Motor
Carrier Safety Advisory Committee. In order to ensure that the system
accurately identifies drivers and carriers that represent the greatest
crash risk, FMCSA should carefully weight each violation on its
statistical relationship to crashes.
Crash Accountability
Perhaps the most pressing area for improvement with the CSA program
is with respect to how the system measures carriers' crash involvement.
Currently, the system measures carrier performance by considering all
carrier involved crashes, including those for which the motor carrier
could not reasonably be held accountable. Accordingly, a carrier
involved in a number of crashes for which it was not responsible is
seen as just as safe/unsafe as a like-sized carrier who was involved in
the same number of crashes--but caused the majority of them.
As a result, safe carriers are erroneously labeled as crash prone
and targeted for interventions and roadside inspections. Conversely,
unsafe carriers (those with a pattern of causing crashes) with slightly
fewer crashes may appear safer by comparison and escape scrutiny.
Undoubtedly, one of the best predictors of future crash involvement
is a carrier's past at-fault crash involvement. However, because the
current system does not consider crash accountability, carriers' scores
in this area are less meaningful and reliable. Hence, in order to use
the system to its fullest potential as a means to target unsafe drivers
and carriers for intervention and potentially remove them from the
industry, FMCSA should only measure carrier performance based on
crashes for which they could reasonably be held accountable.
Additional Opportunities to Improve Safety
While dedicating attention to the enforcement and regulatory issues
discussed above is important, doing so is restrictive and will yield
limited results for two primary reasons. First, this approach focuses
exclusively on motor carriers and drivers, despite the fact that the
majority of car/truck crashes are initiated by actions committed by
other motorists. Second, it emphasizes enforcement and compliance as
the primary means to improve safety. Though enforcement programs are
necessary and important, seeing them as the only avenue to improving
highway safety is severely limiting and discounts the potential of
other solutions that would leverage the power of the industry to
achieve additional improvements.
Focuses On A Small Part of the Problem
As the Committee is well aware, FMCSA is primarily focused on
regulating only part of the highway safety equation: motor carriers and
commercial motor vehicles. Yet the single largest factor impacting
truck safety is the behavior of other motorists. Hence, focusing almost
exclusively on motor carriers and their drivers directs attention to a
small part of the equation.
FMCSA's own research shows that in the majority of large truck/
passenger vehicle crashes, the driver of a passenger vehicle was the
sole party cited for a related factor (e.g., speeding, failure to
yield).\5\ Numerous additional studies have analyzed crash data and
arrived at similar conclusions. For instance, a University of Michigan
Research Institute (UMTRI) study of 8,309 fatal-car truck crashes
examined driver factors in these crashes and found that car drivers
made errors in 81 percent of these crashes and trucks drivers 26
percent of them. In addition, two recent studies conducted by the
Virginia Tech Transportation Institute (VTTI) collected data on 210
car/truck incidents using both video and non-video data. The evidence,
much of it video, showed that 78 percent of these incidents were
initiated by car drivers, while the remaining 22 percent were initiated
by truck drivers.\6\ In fact, the VTTI study said:
---------------------------------------------------------------------------
\5\ Department of Transportation: Federal Motor Carrier Safety
Administration, Report to Congress on the Large Truck Crash Causation
Study, (2006).
\6\ Virginia Tech Transportation Institute, A Descriptive Analysis
of Light Vehicle-Heavy Vehicle Interactions Using In Situ Driving Data,
(2006).
``. . . the current study lends further credibility to the
hypothesis that light vehicle drivers are responsible for a
substantial proportion of the light vehicle/heavy vehicle
interactions and that addressing this problem should include
focusing on the light vehicle driver.'' \7\
---------------------------------------------------------------------------
\7\ Ibid.
Since meaningful solutions to commercial motor vehicle safety
require a focus on the primary causes of crashes, FMCSA should devote
its awareness and education resources and promote traffic enforcement
programs to address the role of passenger vehicles in car/truck
crashes. Due to the agency's statutory limitation on regulating only
commercial motor vehicles, the agency must continue find new and
creative ways to address this part of the truck-involved crash problem.
FMCSA's Ticketing Aggressive Cars and Trucks (TACT) program is one such
program, albeit a small one, aimed directly at the high risk
behaviors--those that cause crashes--of both car and truck drivers.
This program that has been evaluated and shown to be effective. As a
result, FMCSA should work to implement it as part of each state's motor
carrier safety assistance program.
Motor carriers recognize that the key to reducing crashes is
finding ways to prevent them, regardless of fault. Congress and FMCSA
must adopt this approach as well. In order to further reduce commercial
motor vehicle crashes, we must acknowledge the primary causes of these
crashes and accept the need to initiate programs that will address
them.
The Regulatory Compliance and Enforcement Model
Again, ATA recognizes that truck safety regulations are important
and we support them. However, regulations alone are insufficient to
achieve optimum results. Employing more creative solutions and
employing tools to leverage the mutual interest of the industry to
improve highway safety will bring about even greater safety
improvements. I have already mentioned a few of these tools such as a
drug and alcohol clearinghouse, an employer notification system and
access to DSMS scores. They represent good examples of ways to provide
the industry with the means to help achieve our mutual goals. To
achieve the fullest potential, Congress and FMCSA should explore
additional tools that will bring about safety gains.
Incentives for Safety Technologies
Congress and FMCSA should consider tax and/or regulatory incentives
for carriers to adopt systems and programs with potential safety
benefits. For instance, FMCSA might consider providing positive credits
in the CSA scoring methodology for carriers that voluntarily adopt
emerging safety technologies. Also, ATA strongly supports passage of S.
1233/H.R. 1706, legislation that would provide a tax credit equal to 50
percent of the cost of qualified advanced safety systems, including
brake stroke monitoring systems, lane departure warning systems,
collision warning systems, and vehicle stability systems. These
technologies are very promising, but their relative risks and benefits
are not fully known. Hence, mandating their use on every truck in all
segments of the industry would be premature. However, providing
incentives for voluntary use would promote real world testing of the
devices to provide data in support of a potential future mandate.
Further, such incentives could driver carriers to adopt the devices
sooner, since such voluntary incentives can be introduced more quickly
than a regulatory mandate.
More Productive Trucks
ATA supports giving states more flexibility to adjust their truck
size and weight regulations in order to address local needs. More
productive vehicles would produce important environmental benefits by
reducing vehicle miles traveled, fuel consumption, and greenhouse gas
emissions. Use of these vehicles could reduce fuel usage by up to 39
percent, with similar reductions in criteria and greenhouse gas
emissions.\8\ More productive trucks can be as safe as or safer than
existing configurations. Furthermore, because fewer truck trips will be
needed to haul a set amount of freight, crash exposure--and therefore
the number of crashes--will be reduced.\9\ \10\ In order to take
advantage of the benefits that productivity increases can deliver,
Congress must reform its laws to give states greater flexibility to
change their size and weight regulations.
---------------------------------------------------------------------------
\8\ American Transportation Research Institute, Energy and
Emissions Impacts of Operating Higher Productivity Vehicles, March
2008.
\9\ See for example: Campbell, K.L., et al., ``Analysis of Accident
Rates of Heavy-Duty Vehicles,'' University of Michigan Transportation
Research Institute (UMTRI), Report No. UMTRI-88-17, Ann Arbor, MI,
1988.; Transportation Research Board, National Research Council,
``Truck Weight Limits,'' Special Report 225, Washington, D.C., 1990;
Cornell University School of Civil and Environmental Engineering,
``Economic and Safety Consequences of Increased Truck Weights,'' Dec.
1987; Scientex, ``Accident Rates For Longer Combination Vehicles,''
1996; Woodrooffe and Assoc., ``Longer Combination Vehicle Safety
Performance in Alberta 1995 to 1998,'' March 2001.
\10\ Though ATA expects truck traffic to increase as the economy
grows, productivity increases will slow the rate of this growth.
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Conclusion
Mr. Chairman, I appreciate the opportunity to offer ATA's views on
how best to collaboratively improve highway safety. The trucking
industry is justifiably proud of its recent safety accomplishments, but
recognizes there is much more that needs to be done. Please know we
strongly support your desire to improve the safety of our workplace, as
demonstrated by our broad safety agenda. We share your interest in
preventing unsafe carriers and drivers from entering the industry and
means to ensure that rogue operators are effectively identified and
removed from the roadways.
As I mentioned earlier, further meaningful improvements will
require a departure from the traditional approach to truck safety. The
government must acknowledge the role other motorists play in truck
crashes and identify the programs we can put in place to prevent these
crashes. Further, we must be more creative in our approach to improving
driver and carrier safety. Providing carriers will safety tools will
leverage the size and power of the industry to achieve the mutual
objective of improving highway safety.
Thank you and I would be happy to answer any questions you may
have.
Large Truck Fatality and Injury Rates--1998-2009
Senator Lautenberg. Thank you very much.
Mr. Rajkovacz, the Director of Regulatory Affairs for Owner
Operator Independent Drivers Association, an international
trade organization that represents truck drivers and
independent truck operators.
We're looking forward to hearing from you. Please.
STATEMENT OF JOE RAJKOVACZ,
DIRECTOR OF REGULATORY AFFAIRS,
OWNER-OPERATOR INDEPENDENT DRIVERS ASSOCIATION
Mr. Rajkovacz. Thank you.
Good afternoon, Chairman Lautenberg, Ranking Member Wicker,
and members of the Subcommittee. Thank you for the opportunity
to testify this afternoon.
As a former truck driver and current representative of the
small business trucking community, I can tell you that matters
discussed this afternoon are extraordinarily important to the
thousands of men and women who work hard every day behind the
wheels, of driving commercial vehicles.
First, I would like to say that it is of the utmost
importance that members of this committee and other policy
decisionmakers recognize that one cannot simply divorce safe
operations and safety compliance from the economic realities
that truckers must face every day.
With that said, the U.S. trucking industry has never been
safer. From a peak of 6,702 fatal accidents involving
commercial motor vehicle safety in 1979, the industry had a
record low of 3,380 in 2009. FMCSA statistics clearly show a
continuous improving trend over the course of three plus
decades.
Additionally, it is important to recognize that interstate
trucking is not at fault in the majority of the involved
accidents.
Many take credit for these dramatic improvements.
Unfortunately, we rarely hear credit given to those most
responsible--the men and women who actually drive trucks.
Small business truckers dominate the industry; yet, their
business model is under assault from larger motor carrier
interests that have cleverly crafted and support initiatives,
like EOBR speed limiters in heavier trucks, under well-
sounding, but false, safety and environmental arguments. We
hear the repeated mantra from large motor carriers that
leveling the playing field is necessary. That is nothing more
than sloganeering for initiatives designed to drive their
competitors from the marketplace.
It's ironic that probably the most significant safety issue
affecting compliance with hours of service regulations, which
is the excessive amount of time drivers are detained at loading
docks by shippers and receivers. It is viewed by larger motor
carriers as something better off left to market forces alone to
deal with. Yet, they think government mandating a wide array of
onboard safety systems, from EOBRs to speed limiters, is
necessary to level he playing field. Where is the logic in
that?
Here are some interesting safety statistics that have
resulted from FMCSA's new and more comprehensive Motor Carrier
Safety Measurement System, which replaced the old SafeStat
system, and is a key component of CSA. Small business motor
carriers look pretty good when compared to their big business
counterparts.
Under SafeStat, large motor carriers--those with more than
500 trucks--showed up as deficient in one or more of the safety
evaluation areas only 22.1 percent of the time. Within the new,
more detailed system, the number of large motor carriers having
an alert or warning in at least one category jumped to 51.4
percent. Conversely, under the increased scrutiny of the new
system, for motor carriers with five trucks or less, safety
deficiency only increased by three-tenths of a percentage, from
7.1 to 7.4; and for carriers with 6 to 15 trucks, their safety
record actually improved by 6 percent.
Those small business motor carriers represent over 80
percent of all registered nationally. Clearly, owner-operator
small business motor carriers and their drivers are doing
something right.
During the past 9 months, this industry has dealt with
dozens of rulemakings from different Federal agencies, every
one of them coming at additional cost to small businesses who
are unable to get cost recovery in this economy. I hear
constantly from owner-operators, drivers, and small business
owners that they've had enough. Far too many are looking to
exit the industry.
Today's significant safety gains can, and will be, lost if
policies are implemented that cause a rush to the exits by
veteran, experienced operators. We think today's tremendous
safety achievements can be improved upon, but not if safety is
viewed through the same prism of only applying more screws to
drivers out on the road. We should not be advancing regulations
that reduce driver flexibility for no clear safety benefit,
while ignoring those outside of trucking who share
responsibility for compliance issues.
Minimum driver training standards which are the most
effective and least costly manner for improving safety should
be given greater attention than simple reliance on mandating
technological solutions. There is a real disconnect between the
executive suite and the driver's seat on how to improve highway
safety, and we cannot afford to ignore the real-life
experiences and opinions of the men and women who are on the
road every day.
Chairman Lautenberg, Ranking Member Wicker, and members of
the subcommittee, on behalf of small business truckers who live
in every community in our nation, thank you for the opportunity
to testify. And I look forward to responding to your questions.
[The prepared statement of Mr. Rajkovacz follows:]
Prepared Statement of Joe Rajkovacz, Director of Regulatory Affairs,
Owner-Operator Independent Drivers Association
Good morning, Chairman Lautenberg, Ranking Member Wicker and
distinguished members of the Subcommittee. Thank you for inviting me to
testify on matters which are extremely important to our Nation's small
business truckers and professional truck drivers.
My name is Joe Rajkovacz. I am Director of Regulatory Affairs for
the Owner-Operator Independent Drivers Association and serve on the
association's Board of Directors. Prior to my current position with
OOIDA, I was an owner-operator for more than two decades operating my
own equipment and leasing my services to a motor carrier. You have
asked today for OOIDA's input on reauthorizing highway safety programs
and as someone who spent nearly thirty years behind the wheel of a
truck, and spent the past decade listening to the safety concerns and
complaints from active truckers, I am happy to provide you with my
unique perspective.
As you are most likely aware, OOIDA is a not-for-profit corporation
established in 1973, with its principal place of business in Grain
Valley, Missouri. OOIDA is the national trade association representing
the interests of independent owner-operators and professional drivers
on all issues that affect small-business truckers. The more than
152,000 members of OOIDA are small-business men and women in all 50
states who collectively own and operate more than 200,000 individual
heavy-duty trucks. The Association actively promotes the views of
small-business truckers through its interaction with state and Federal
regulatory agencies, legislatures, the courts, other trade associations
and private entities to advance an equitable business environment and
safe working conditions for commercial drivers.
The majority of trucking in this country are small-business,
approximately 93 percent of all motor carriers have 20 or less trucks
in their fleet and roughly 86 percent of carriers have fleets of just 6
or fewer trucks. In fact, one-truck motor carriers represent nearly
half of the total number of registered motor carriers operating in the
United States. These small-business motor carriers have an intensely
personal and vested interest in highway safety as any safety related
incident may not only affect their personal health, but also
dramatically impact their livelihood. As such, OOIDA sincerely desires
to see further improvements in highway safety and significant progress
toward the highway safety goals of the Subcommittee and U.S. Department
of Transportation.
With that said, during this reauthorization process, Congress has
the potential to accomplish great things with the drafting of a
``Highway Bill''. However, in light of the current economic conditions
and the regulatory assault under which America's small-business
truckers are currently operating, some proposed legislation passed
under the guise of safety could cause irrevocable harm to this
significant portion of the industry and their contributions to the
unprecedented levels of highway safety we are currently experiencing.
Detention Time
One cannot simply divorce safe operations and safety compliance
from the economic realities that truckers must face every day. While
truck drivers certainly should be held accountable for their actions,
the same should be true for the stakeholders who often have more
control over truckers' schedules and activities than the drivers
themselves.
The excessive, uncompensated time truckers spend waiting to be
loaded or unloaded at shipping and receiving facilities represents one
of the greatest examples of how lacking regulatory enforcement and
economic pressures within the industry can negatively impact a
trucker's ability to comply with safety regulations. Detention time has
been a growing problem in the trucking industry for many years,
according to a study performed by the FMCSA, detention representing
more than 3 billion dollars in waste to the industry and over 6 billion
dollars to society. Unless and until the problem of excessively
detaining drivers at loading/unloading facilities is addressed, most
safety regulations pertaining to hours-of-service (HOS) of drivers will
be undermined.
Repeatedly, time spent waiting to be loaded or unloaded has been
identified by drivers and small motor carriers in studies, as well as
at FMCSA's public listening sessions, as a major factor that must be
addressed in order to have effective HOS regulations. The pressure to
violate HOS regulations will not fade away even with an electronic on-
board recorder mandate (EOBRs).
Under current HOS regulations, the daily 14-hour clock begins to
tick for a trucker when the driver performs any on-duty activity,
including those duties related to loading and unloading. However,
unlike other industrialized nations throughout the world, most U.S.
based drivers are not compensated by the hour but rather based upon the
number of miles driven. This translates into a drivers' time having
essentially no value, particularly to shippers and receiver which fall
outside of FMCSA's authority and are not held accountable for their
actions related to HOS violations by drivers.
Shippers and receivers routinely make truckers wait for
considerable amounts of time before they allow them to load or unload
their trucks and drivers routinely arrive at the same facilities with
little or no idea how long they will be there. Known in the industry as
``detention time,'' most shippers and receivers do not pay for this
time and have little financial or regulatory incentive to make more
efficient use of drivers' time. It is common for a driver to pull into
shipping or receiving facilities with no idea of whether he or she will
be there for 2 hours or for 10. In certain segments of our industry, it
is not unusual for drivers to wait up to 24 hours before receiving a
load. During this waiting time, it can be nearly impossible for a
driver to rest. Often, the driver must wait in line or be ``on call,''
ready to take the load and make the ``just-in-time'' delivery.
As a driver and owner-operator I contended with excessive detention
time on a daily basis, for example: for over two decades I hauled
refrigerated food products between the Midwest and the west-coast--
primarily California. The receivers I frequented most were grocery
wholesalers. Appointments would be set, I'd show up on-time and the
games would begin. I'd be lucky to be immediately assigned a door to
begin unloading. There was always some excuse such as ``we over-
booked'' appointments and ``we'll get to you when we can''. Often, I
had other scheduled appointments to make and this first delay caused a
cascading effect that would cause every other appointment to be missed.
Increasingly, the other receivers would assess non-negotiable ``late
fees'' in order to unload the product they ordered. None of these
receivers would compensate me for unwarranted detention time that was a
result of their inefficiency but they were not shy about taking from me
both my time and hard earned money in extortionate unloading fees.
Once I was empty, I'd begin the return trip by loading produce.
Contrary to what many people may believe, this is not a process where
I'd simply go to one shipper, get loaded and hit the road. Most produce
shipments involve multiple pick-ups. Each shipper could take anywhere
from 1 hour to more than 24 hours to complete loading. As a driver, I'd
have to constantly monitor my C.B. radio for the call from the shipper
to head to the loading dock. If I had the misfortune to fall asleep and
missed the call, I was marked as a ``no-show'' and the process would
start all over.
None of these massive delays were ever recorded against my
available HOS. The hours were logged as ``off-duty'' time because it
would have been financial suicide for me to burn as much as half my
available weekly time for zero compensation (as an aside, EOBR's will
not change this dynamic). Nobody in the supply chain cared about how
their actions complicated my ability to comply with the HOS
regulations.
From OOIDA's perspective, if the time spent by drivers waiting to
be loaded or unloaded is contemplated and if compensation for excessive
detention time begins to be negotiated or if shippers and receivers are
held accountable under FMCSA regulations, the trucking industry and the
American public would benefit from more efficient freight movement and
dramatically improved highway safety--because drivers will no longer be
incentivized to hide their actual on-duty hours. Furthermore, if the
compensation structure for drivers were to be changed from mileage
based pay to a form of hourly compensation many safety concerns would
be alleviated.
We appreciate that within FMCSA's draft Strategic Plan (2011-2016),
the agency recognizes that in order to truly ``raise the safety bar''
for our industry, under Goal1, Strategy 1.1 the agency proposes to
``Identify gaps in current legislative and regulatory authorities that
prevent FMCSA from reaching certain elements of the CMV transportation
life-cycle (e.g., entities touching roadway movement of passengers and
freight: shippers, receivers, brokers, freight forwarders) who may have
a deleterious effect on safety through their actions.'' Without full
supply chain accountability related to drivers HOS, many strategies
designed to improve highway safety will find that achieving that goal
remains elusive.
Speed Limiters
For years, many safety advocates and large corporate interests have
been advocating for the government to impose restrictions on the engine
speed of heavy-duty commercial vehicles despite the fact that the use
of ``speed limiters'' is not widely researched or an act grounded in
safety or sound scientific principle. Large motor carriers
traditionally have opted to use speed limiters as a business decision
and fleet management tool and as such support an industry wide mandate
in an effort to level the playing field against small businesses which
are perceived to have a competitive advantage because engaging a speed
limiter is often not necessary of a small trucking operation. The
limited research that has been conducted on speed limiters has
demonstrated mixed and controversial results including results showing
they are highly dangerous and offer very little economic or
environmental benefit, particularly to small motor carriers despite the
promoted misconception that they will improve upon fuel efficiency and
highway safety.
Speed limiters are costly, ineffective, easily tampered with, and
dangerous as they can cause speed differentials and disrupt the on-
going flow of traffic. Highway safety engineers have long recognized
that highways are safest when all vehicles are traveling at the same
speed regardless of the speed limit. This is clearly evidenced by the
well documented fact that accident rates are lower on interstate
highways than on other roads because of access control, wider lanes,
shoulders and the steady movement of traffic. Indeed, notwithstanding
higher speeds, the interstate highway system experiences accidents and
fatality rates two to five times less than the primary road system it
replaced. It is well established that deviations from the mean speed of
traffic in the negative as well as positive direction contribute
significantly to accidents. For example, it has been found that for
every 1 kilometer per hour increase in speed differential the
casualties increase by 270.
Forcing heavy-duty trucks to drive slower than the flow of traffic
will lead to frequent lane changes, passing and weaving maneuvers as
well as tailgating by other faster moving vehicles. Indeed, traffic
safety statistics produced by NHTSA in 2011 show that an average of 423
people die each year and 5000 are injured where the passenger vehicle
rear ends the truck. In addition, other studies have shown that almost
1 in 5 fatal accidents involving a truck include a vehicle striking the
rear end of truck. Removing trucks from the free flow movement of
traffic exacerbates the potential for more passenger vehicles colliding
with the back of slower moving trucks.
Safety is compromised when drivers lack full control of their
vehicles. A study produced in Great Britain found that drivers of
vehicles with external speed controls had a tendency to travel as fast
as the speed limiter would allow, even when speed was too fast for the
driving conditions. Further, OOIDA's research has shown that drivers
have a tendency to drive over the speed limit in lower speed zones to
make up for the effects of the speed limited truck. While prevailing
highway research shows that one of the major contributors to truck
accidents is driving too fast for conditions, there are situations
where extra power and speed are essential. When a speed limited truck
is trying to pass another truck efficiently, speeds higher than 68 mph
may be required to avoid what is known in our industry as an ``elephant
race.'' In addition, truck drivers are trained to know that during a
tire blow out, one must accelerate to attempt to maintain control of
the truck with a speed limited truck a driver may have limited ability
to have the control necessary to regain control.
OOIDA believes that in order to ensure safety, efforts must be made
to keep all traffic flowing at the same rate of speed and drivers must
have the power and ability to maneuver around impediments on the road.
The best way to keep traffic flowing smoothly and safely is through
increased enforcement of existing speed limits. Any Highway Bill which
seeks to compromise the safety and livelihood of small business
trucking operations will face considerable opposition by our membership
considering it is small-business truckers, who have their skin and
bones on the line and should have the right to stay safe behind the
wheel.
Although, we are here to primarily discuss safety, I would be
remiss if I didn't mention at least some of the disproportionate impact
speed limiters would have economically on small business trucking
operations. Among the many illustrations two of the most frequent
concerns by owner operators include: (1) the ability to spec the truck
to the necessary business model and (2) the method of enforcement. As a
small business owner, trucks are ``speced'' to match the demographics
of the route, the weight, the loads being hauled etc. This often
requires changing the gear ratio, tires, and other relevant equipment
on a truck to obtain optimal performance. An operator forced to operate
a speed limited truck may not be able to make these changes and as a
consequence the truck may not be running as efficiently and therefore
costing the operator money and compromised compliance. Also, many
drivers have concerns about enforcement as the only way for law
enforcement to monitor speed limited compliance is to port into the
engine of a truck which, if done incorrectly can disable the entire
vehicle. This is a problem OOIDA has already been experiencing with its
membership in speed limited provinces in Canada. It is a problem that
can cost small business truck operators thousands of dollars to fix.
We would also like to point out that the FMCSA's Large Truck Crash
Causation Study (LTCCS) did not record a single truck involved fatality
above 75 mph. Additionally, states have set speed limits within their
borders based upon traffic engineering studies establishing the safest
speeds for vehicles to operate upon their highways. Any Federal action
to require speed limiters on commercial motor vehicles would act as a
de facto national speed limit.
Finally, not allowing trucks to operate at posted speed limits will
reduce trucking productivity thus requiring MORE trucks to haul the
same amount of freight as is currently hauled thus increasing car-truck
interactions. From personal experience, I could legally drive from
Salinas, California to Milwaukee, Wisconsin in 33 total hours of
driving time--without violating posted speed limits. Arbitrarily speed
limiting my truck to 62 mph would add 14.13 hours to the trip and one
less day of shelf-life for perishable commodities.
Large truckload motor carriers who are proponents of speed limiting
trucks also historically experience triple digit turn-over rates among
their drivers. Our average member spends over 200 nights away from
their families. I personally averaged 280 days away from my family for
over 20 years. For an industry that has difficulty retaining drivers,
further increasing the time they must spend away from their families
through reduced productivity is simply counter-intuitive to encouraging
good, safe drivers to remain in the industry.
Electronic On-Board Recorders
The FMCSA is currently in the process of another effort to require
truckers engaged in interstate commerce to install EOBRs on their
trucks. If EOBRs could prevent the manipulation of a driver's work
schedule and respect drivers' privacy rights, OOIDA would consider
supporting their use for HOS reporting. But for now, OOIDA's opposition
to EOBRs remains unchanged. OOIDA remains convinced that EOBRs are no
more a reliable or accurate record of a driver's compliance with the
HOS regulations than paper log books. In our collective mind there
remains no rational basis for the economic burden and unreasonable
imposition to personal privacy presented by requiring drivers to be
monitored by EOBRs.
The theory behind the use of EOBRs for HOS enforcement is that the
devices will provide an accurate, tamper-proof record of a driver's
duty status and therefore ensure compliance with the HOS rules which in
turn will make for a safer trucking industry. This theory is undermined
by the fact that EOBRs cannot capture, without the driver's input, data
related to the time a driver spends conducting on-duty, non-driving
activities. The HOS rules require a record to be kept of both driving
time and all non-driving work activity (waiting to load and unload,
inspecting/repairing the truck, performing the loading and unloading,
looking for the next load, receiving a dispatch, doing paperwork,
performing compensated work at another job, etc.). Even though an EOBR
can record how long someone has operated a truck, if the driver does
not manually enter his non-driving work time into the EOBR, the EOBR
will show the driver as available to drive when he actually has no
available time under the HOS rules. In fact, EOBRs will still permit
someone to perform compensated work for the motor carrier to continue
driving, without showing a violation.
The EOBR's reliance on driver input means they provide a no more
accurate or tamper-proof record of a driver's HOS compliance than paper
log books. The substantial costs of EOBRs, costs that would be
especially burdensome to small-business, cannot be justified by any
perceived improvement in compliance. The costs also include those to
personal privacy. The truck cab is the home away from home of most
long-haul truck drivers. They sleep, eat and conduct personal business
in the truck while not driving. They have a legitimate expectation of
privacy that must be afforded to them.
OOIDA is also certain that EOBRs will make it easier for motor
carriers to harass drivers. Congress required FMCSA to ensure that such
devices would not be used to harass truck drivers. Unfortunately, the
EOBR rule that was recently issued seems to ignore this requirement. As
the agency knows, it must ensure that its safety regulations do not
have a deleterious effect on the physical condition of drivers. The
only evidence on the record regarding the potential health effects of
EOBRs are the studies that show that electronic monitoring of employees
can increase the stress of workers. EOBRs can be used to exacerbate
driver fatigue as carriers will be able to notice whenever a driver has
stopped their truck during their on-duty time. Perhaps the driver has
decided to take a break and get rest. Such breaks do not suspend the
running of the 14-hour work-day under the HOS rules. The carrier will
be able to instantly instruct the driver to return to the road and
maximize his or her driving time. Carriers will also be able to
instruct drivers, whenever they want, to log their on-duty, not-driving
work as off-duty, thereby preserving their on-duty driving time. Both
practices remove what little discretion drivers have today to resist
the economic pressure discussed above.
OOIDA encourages lawmakers to seek solutions to motor carrier
safety issues that are much less intrusive and much more effective such
as mandating comprehensive driver training, resolving problems at the
loading docks, revising methods of driver compensation, creating more
flexible HOS rules, and providing adequate truck parking in those areas
around the country where drivers who wish to rest cannot find such
parking today.
Driver Training
An adequately trained driver is the key to any advances in safety
goals. To this end, OOIDA has consistently been a strong proponent of
Federal government efforts to develop and impose mandatory driver
training and licensing requirements for entry-level truck drivers.
During the recent HOS rulemaking process, the ATA published a
whitepaper stating that ``Finally, by restricting truck driver
productivity and forcing the use of more inexperienced drivers, the
revised rules are likely to result in more highway crashes--new drivers
present more than 3 times the risk of crashes than their more
experienced counterparts.'' It is simply mystifying that we still have
no meaningful training standards for entry-level drivers, but instead a
continual push for more on-board safety technology.
At present, FMCSA regulations require entry-level drivers to be
trained in only four subjects--driver qualifications, hours-of-service,
driver wellness and whistle blower protection--all of them unrelated to
the hands on operation of a commercial motor vehicle. The Notice of
Proposed Rulemaking published in 2008 would expand the required
training for Class A drivers to include a minimum of 44 hours behind
the wheel training in addition to 76 hours of classroom training,
nearly all of it involving subjects pertaining directly to the safe
operation of a commercial motor vehicle. The rulemaking also proposes
the accreditation of driver training schools offering entry-level
courses as well as the establishment of standards for ensuring that
instructors at such schools are qualified to teach those courses. The
goal of these regulatory revisions is to enhance the safety of
commercial motor vehicle operations on the Nation's highways.
Based upon on our continuing, firm belief that minimum training
requirements for entry-level drivers will improve highway safety for
all motorists, private as well as commercial, OOIDA very much supports
the FMCSA's proposal to establish minimum training requirements that
require a specified amount of behind-the-wheel training for entry-level
drivers. OOIDA also believes that the effectiveness of such a training
program can be ensured only if all facilities providing entry-level
driver training programs are accredited by independent agencies and the
instructors providing the training are required to meet relevant
qualification standards. Accordingly, OOIDA also supports the agency's
proposal to regulate training providers.
We sincerely hope FMCSA will soon move forward with its rulemaking
on driver training.
New Entrant Safety Assurance
As a part of its Congressionally mandated efforts to beef up its
New Entrant Safety Assurance efforts, FMCSA is conducting safety audits
of new entrant motor carriers within 18 months of their being granted
operating authority. OOIDA believes that instead of conducting safety
audits well after the granting of operating authority, FMCSA should
focus its limited resources on gathering information during the initial
application process to determine an applicant's ability to comply with
regulations. Prior to granting operating authority, FMCSA can derive
plenty of data regarding an applicant's ability to perform safely and
comply with regulations from evidence of work experience, training,
and/or knowledge of the industry. FMCSA should also enhance current
protest procedures to encourage industry stakeholders, including
States, to provide data and other information that could lead to a more
informed authorization process. This larger body of information could
be checked against existing DOT databases to identify ``chameleon''
carriers and brokers as well as other problem applicants and to deny
them new authority.
OOIDA believes it is wrong to lump all new applicants together
either for pre-qualification testing or later safety audit purposes.
OOIDA's experience assisting its members to obtain their operating
authority has shown that the majority of these new applicants are
experienced commercial motor vehicle drivers with excellent safety
records. They are stable business owners who have for many years been
driving a truck as an owner-operator or employee driver and have,
throughout those years, learned much about applicable safety
regulations and effective safety management procedures.
There's a strong correlation between a carrier's future performance
and its past accident record. Thus, FMCSA should expand the application
form to collect information that will help the agency to identify those
applicants with poor crash history records and safety practices.
All owners (whether individuals, partners or shareholders) as well
as key personnel, especially including, but not limited to, those who
will be responsible for safety compliance and management should be
identified. Their past training, experience, and work histories should
be listed on the application. This information should go back at least
5 years, and should not be limited to trucking experience as all work
experience will help determine whether the applicant possesses the
character and integrity to conduct safe trucking operations.
FMCSA could also enhance this pre-qualification review process by
modifying current protest procedures to take full advantage of third-
party information about applicants. FMCSA's current practice is to post
in the Federal Register a summary of the application (49 C.F.R.
Sec. 365.109(b)), which contains only the applicant's name and address,
its designated representative, assigned number, the date of filing, and
the type of authority requested. Interested parties, including States
who would have a direct interest in keeping applicants with poor
driving and accident records from receiving new authority, then have
only ten days to request the full application and file a formal
protest.
It is our understanding that close to 40,000 applications for
operating authority are filed with FMCSA each year. Thus, the ten-day
review and protest period is far too short to allow stakeholders an
opportunity to contribute in a meaningful way to the decision making
process.
All names, businesses, and equipment identified in an application
or by protesters could then be checked against the substantial pool of
information currently collected in DOT's various computer databases,
such as MCMIS, PRISM, and CDLIS, to confirm past performance and crash
history. Certain types of information, such as evidence that the
applicant is simply seeking to evade prior enforcement actions or out-
of-service orders, or has a history of the 16 types of violations that
now result in denial of permanent authority when discovered in a new
entrant safety audit, should result in automatic denial of authority.
The proposed pre-qualification investigation is analogous to that
currently conducted and effectively used by the Federal Maritime
Commission in its licensing process for ocean transportation
intermediaries. Applicants must demonstrate not only that they possess
the ``necessary experience'' in related activities but the ``necessary
character'' to render such services. 46 C.F.R. Sec. Sec. 515.11(a)(1)
and 515.14. Further, the Federal Maritime Commission investigates the
accuracy of the information, the integrity and financial responsibility
of the applicant, the character of the applicant and its qualifying
individuals, and the length and nature of the applicant's relevant
experience, before granting a license.
Such a thorough pre-qualification review process should eliminate
problem applicants long before the current application and safety audit
procedure might find them.
Conclusion
OOIDA firmly believes that it is in the best interest of the
industry and highway safety for Congress to continue the practice of
passing multi-year reauthorization Highway Bills. However, due to
economic and regulatory uncertainty, Congress must be careful how the
bill is funded and what legislative priorities are passed into law.
Instituting a massive new private infrastructure funding configuration
will result in additional taxation upon the traveling public and the
shipment of goods, risking our economy even further. Costly mandates
such as EOBRs and speed limiters are not in the best interest of the
small-business trucking community. Moreover, mandates such as speed
limiters will cause small business truckers to actively work to oppose
the overall bill. Congress however has an opportunity to effectuate
great and much needed change in the industry, and significantly help
drivers and small-business truckers, through the pursuit of mandatory
detention time, improved training, and most importantly, a refocused
Federal investment that will improve the flow of interstate commerce
and increase highway safety.
Thank you again for this opportunity and I look forward to
answering any questions that you may have.
Senator Lautenberg. Thank you.
Ms. Gillan is Vice President of Advocates for Highway and
Auto Safety. She's a tireless advocate that will discuss the
importance of critical safety provisions to prevent tragic
crashes.
Ms. Gillan. Thank you very much.
Senator Lautenberg. Ms. Gillan.
STATEMENT OF JACQUELINE S. GILLAN, VICE PRESIDENT, ADVOCATES
FOR HIGHWAY AND AUTO SAFETY (ADVOCATES)
Ms. Gillan. Thank you, Chairman Lautenberg, Ranking Member
Wicker, and members of the Subcommittee, for the opportunity to
testify this afternoon on motor carrier safety issues.
This subcommittee has a long history of advancing many
important motor carrier safety laws that are preventing
crashes, saving lives, and saving dollars, including recent
committee action on the Motorcoach Enhanced Safety Act. The
FMCSA authorization bill presents a unique opportunity to build
upon these achievements.
In the past 10 years there have been more than 48,000
people killed in truck crashes--an average of 4,000 people
annually. This is both unacceptable and unnecessary.
While Advocates welcomes the news that truck crash deaths
have decreased these past 2 years, there is still an unfinished
and overdue motor carrier safety agenda that needs to be
adopted if we are serious about achieving significant and
steady reductions in truck crash deaths and injuries.
I have submitted to the record a very detailed statement
identifying some of the most critical motor carrier safety
issues we face and recommendations for action, but let me
briefly highlight some of these.
Large trucks are dramatically over-represented each year in
severe crashes, especially fatal crashes. Large, overweight
trucks are more dangerous for truck drivers and the public.
They destroy our roads and bridges, and they undermine the
national goal of a balanced intermodal freight transportation
system.
A major step forward in truck safety is to enact S. 876,
the Safe Highways and Infrastructure Preservation Act,
sponsored by Chairman Lautenberg. This bill will stop the
deadly race in states for bigger, heavier and longer trucks,
where the public and truck drivers are always the losers. Over
85 consumer health, safety, and law enforcement groups support
this common sense bill.
Driver fatigue remains a serious and deadly problem in the
trucking industry. Two important strategies for addressing
truck driver fatigue is an hours-of-service rule that advances
safety and better enforcement by requiring electronic onboard
recorders instead of paper log books.
Advocates urges passage of S. 695, the Commercial Driver
Compliance Improvement Act sponsored by Senator Pryor, to
guarantee efforts by Congress and safety groups to require
EOBRs will finally be completed and I also want to recognize
the work of the Chairman in pushing for a universal requirement
for electric onboard recorders.
Keeping unsafe motor carriers and unsafe drivers off of our
highways is essential to everyone's safety.
FMCSA has fallen short in meeting both of these goals. We
recommend that FMCSA adopt a stronger requirement for motor
carriers entering the industry, such as a preauthorization
safety audit, or a proficiency exam for new entrants. We also
urge FMCSA to issue a strong entry-level driver training
requirement for commercials drivers of trucks as well as
motorcoaches.
Another bill that Advocates supports is S. 754, sponsored
by two members of this subcommittee, Senator Pryor and Senator
Boozman. This bill implements a GAO recommendation that DOT
establish a national clearinghouse for records relating to
alcohol and controlled substance testing of commercial drivers.
One of the major challenges facing the agency is ensuring
rigorous oversight of the motor carrier industry and
enforcement of safety laws and regulations. FMCSA has recently
implemented the CSA program to achieve this goal.
Unfortunately, although it has the potential to improve
monitoring and oversight of the industry, it is difficult at
this point to accurately assess its effectiveness, and our
testimony includes several key recommendations that echo NTSB
concerns on driver and vehicle violations, as well as the need
for additional evaluations by GAO, and continued oversight by
Congress.
As Chairman Lautenberg stated, every week of the year the
number of people killed in truck crashes is equivalent to a
major airplane crash. Furthermore, driving a truck is one of
the most dangerous occupations in the United States.
There are several overdue actions we urge this subcommittee
to consider. These include speed governors for trucks supported
by safety groups and the ATA, stronger actions by the agency to
identify and punish reincarnated motor carrier companies, as
well as giving law enforcement the tools they need to inspect
curbside motorcoach companies.
Advocates is closely monitoring, and still has concerns
outlined in our testimony about the implementation of the new
cross-border pilot program to ensure the safety of Mexican
trucks entering and traveling throughout the United States.
Trucking is vital to our economy. But truck crashes extract
an enormous financial and human cost in terms of deaths and
injuries, and we can do better. We urge the subcommittee to
continue its oversight and provide clear direction to the
agency in the reauthorization legislation to continue our
efforts to reduce truck crash deaths and injuries. Advocates
looks forward to working with you on this lifesaving
legislation.
Thank you very much.
[The prepared statement of Ms. Gillan follows:]
Prepared Statement of Jacqueline S. Gillan, Vice President,
Advocates for Highway and Auto Safety (Advocates)
Introduction
Good morning Chairman Lautenberg, Ranking Member Wicker, and
members of the Senate Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security. I am Jacqueline
Gillan, Vice President of Advocates for Highway and Auto Safety
(Advocates). Advocates is a coalition of public health, safety, and
consumer organizations, and insurers and insurer agents that promotes
highway safety through the adoption of safety policies and regulations,
and the enactment of state and Federal traffic safety laws. Advocates
is a unique coalition dedicated to improving traffic safety by
addressing motor vehicle crashes as a public health issue.
This Subcommittee has been responsible for many important motor
carrier safety improvements that have been accomplished over the years,
including establishment of a uniform commercial driver license (CDL)
program, mandates for U.S. Department of Transportation (DOT) action on
numerous safety rulemakings, strong oversight of the Federal Motor
Carrier Safety Administration (FMCSA) plans and programs and recently,
full Committee approval of the Motorcoach Enhanced Safety Act, S. 453,
a bipartisan bill that has now received the endorsement of safety
groups, crash victims and their families, as well as Greyhound Lines, a
leading national motorcoach operator.
I welcome this opportunity to appear before you today to emphasize
that there is still an unfinished safety agenda that needs your
attention and your leadership.
This Subcommittee and Congress will play a critical role in leading
our Nation to a safer, more rational use of its transportation
resources. It will take leadership by Congress to implement a national,
uniform approach to truck size and weights on our federally-assisted
National Highway System (NHS) in order to enhance safety and protect
highway infrastructure; to stop enactment of piecemeal special interest
exemptions from crucially important Federal safety requirements; and to
ensure that the Federal regulatory safety agency, the FMCSA, which has
rededicated its efforts to making safety its highest priority, issues
regulations that improve motor carrier safety and implements strong
enforcement policies.
The Annual Death Toll from Large Truck Crashes Remains Unacceptable
Over the decade from 2000 through 2009, there were 48,317 people
killed in truck-involved crashes, averaging 4,832 fatalities each
year.\1\ At the beginning of my testimony is a national map that
indicates the fatalities in the last decade by state. In 2009, one of
every 10 people killed in a traffic crash was a victim of a large truck
crash.\2\ Annual deaths in large truck crashes are disproportionately
represented in our annual traffic fatality data, with large truck
deaths still accounting for about 11 percent of all annual highway
fatalities, although large trucks are only about four percent of
registered motor vehicles.\3\
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\1\ Large Truck and Bus Crash Facts 2009, FMCSA-RRA-10-060, Federal
Motor Carrier Safety Administration (FMCSA) (Oct. 2010).
\2\ Traffic Safety Facts 2009, DOT HS 811 402, National Highway
Traffic Safety Administration (NHTSA) (2010), available at http://www-
nrd.nhtsa.dot.gov/pubs/811402ee.pdf.
\3\ Large Truck Fatality Facts 2009, Insurance Institute for
Highway Safety (IIHS), http://www.iihs.org/research/
fatality_facts_2009/largetrucks.html.
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Large, heavy trucks are dramatically overrepresented each year in
severe crashes, especially fatal crashes. Although truck crash
fatalities have declined in 2008 and 2009, this reduced death toll is
strongly linked with a major decrease in truck freight demand,
including substantially reduced truck tonnage starting in the latter
part of 2007 and continuing through 2009.\4\ Industry data verifies
this decline in freight tonnage. According to published reports, for-
hire tonnage fell in June 2009 by 13.6 percent over the freight
transported in 2008, and freight analysts did not believe that the
decline would stop until the second half of 2010 at the earliest.\5\
This is consistent with previous tonnage declines associated with
economic recessions. Recent data indicating that freight tonnage
increased by 5.7 percent in 2010 \6\ as compared with 2009 may well be
a harbinger of future increases in truck crash fatalities and injuries.
---------------------------------------------------------------------------
\4\ See, e.g., http://www.glgroup.com/News/Leading-Indicator_2008-
North-America-Freight-Market_Truck-Build-Numbers-Down_2009-Predicted-
To-Be-Worse-With-2010-30689.html, demonstrating 7 consecutive quarterly
declines in truck freight tonnage through the third quarter of 2009.
Also see, http://www.ttnews.com/articles/
basetemplate.aspx?storyid=22609, ``ATA's Costello Hopeful Freight
Levels Have Bottomed Out,'' Transport Topics, Aug. 27, 2009, and a
similar, earlier report in Transport Topics, March 2, 2009.
\5\ Freight Tonnage Continues to Decline, Martin's Logistics Blog,
Aug. 3, 2009. http://logistics.about.com/b/2009/08/03/freight-tonnage-
continues-to-decline.htm. Also see, e.g., http://www.glgroup.com/News/
Leading-Indicator_2008-North-America-Freight-Market_Truck-Build-
Numbers-Down_2009-Predicted-To-Be-Worse-With-2010-30689.html,
demonstrating 7 consecutive quarterly declines in truck freight tonnage
through the third quarter of 2009. Also see, http://www.ttnews.com/
articles/basetemplate.aspx?storyid=22609, ``ATA's Costello Hopeful
Freight Levels Have Bottomed Out,'' Transport Topics, Aug. 27, 2009,
and a similar, earlier report in Transport Topics, March 2, 2009.
\6\ ``January Truck Tonnage Hits 3-Year High,'' Transport Topics.,
Feb. 23, 2011, available at http://www.ttnews.com/articles/
basetemplate.aspx?storyid=26177.
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In terms of annual fatalities, I have included a chart at the
beginning of my testimony that shows the strong relationship between
economic recessions and declines in total highway deaths since 1971.\7\
As pointed out by several authorities, including the Honorable David
Strickland, Administrator of the National Highway Traffic Safety
Administration (NHTSA), which collects and analyzes national fatality
data, the unprecedented decline in deaths and injuries among all types
of motor vehicles over the last few years is strongly linked to the
recent downturn in the economy.\8\ Just as personal travel will likely
increase as the economy continues to improve, freight traffic will also
resume its upward trend, which means more truck miles of travel each
year that will likely translate into an increase in truck fatalities.
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\7\ U.S. Recession Periods and Motor Vehicle Fatalities, 1971-2009,
Advocates for Highway and Auto Safety (2010).
\8\ ``While these latest trends are encouraging, we do not expect
them to continue once the country rebounds from its current economic
hardships.'' Administrator Strickland emphasized that with an improving
economy, more driving will result with high crash risk exposure. Budget
Estimates Fiscal Year 2011, Statement from the Administrator, at 1-2,
National Highway Traffic Safety Administration (Jan. 2010).
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While the safety community welcomes the news of recent declines in
truck crash fatalities it is not a reason to delay, defer or discard
pressing forward with a strong, life-saving motor carrier safety
agenda.
The Safe Highways and Infrastructure Protection Act (SHIPA) Will
Improve Safety, Protect Infrastructure, Conserve the
Environment,
Enhance Intermodalism
It is up to Congress to take action now that will improve safety,
protect the long-term national investment in our crumbling highway and
bridge infrastructure while also protecting the environment and
providing a more level playing field for intermodal freight
transportation. We are at a crucial juncture in highway and motor
carrier safety in this Congress. The debate over future funding for
road and bridge construction and repair make conservation and
preservation of the existing highway infrastructure an essential part
of any plan to protect taxpayer investment in continued surface
transportation mobility and safety.
A pending Senate bill, S. 876, the Safe Highways and Infrastructure
Preservation Act, or SHIPA, sponsored by Chairman Lautenberg, has the
potential, if enacted, to dramatically improve the safety landscape for
all motorists, including truck drivers, and to protect our economic
investment in highway and bridge infrastructure. SHIPA will stop the
relentless cycle of demands and pressure imposed on the states by the
trucking interests for increased tractor-trailer lengths. If truck
lengths are increased again beyond the industry ``standard'' of 53
feet, it would trigger a cascading effect of negative outcomes for
safety, environmental protection, infrastructure preservation, fuel
use, the Highway Trust Fund, and a balanced national transportation
freight strategy.\9\
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\9\ Companion bill in the House of Representatives is H.R. 1619,
introduced by Rep. James McGovern (D-MA).
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SHIPA is crucial for curtailing the growth of large trucks and
their expansion to more and more highway miles off the Nation's
Interstate system, on the NHS. One of the two main objectives of the
legislation is to freeze the length of truck trailers at a maximum of
53 feet. Promoters of much bigger, heavier trucks, such as supporters
of current H.R. 763,\10\ would allow trucks weighing up to 97,000
pounds and more throughout the country and melt the 1991 freeze on
longer combination vehicles (LCVs).\11\ The bill buys into the specious
argument that trucking will become safer because bigger, heavier trucks
will mean fewer trucks on the road. But increases in truck size and
weights have never resulted in fewer trucks. In fact, allowing super-
sized heavy trucks on more highways will make our roads and bridges
more dangerous, not safer, and inevitably there will be more, not
fewer, trucks than ever before.
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\10\ Safe and Efficient Transportation Act of 2011, introduced by
Rep. Michaud (D-ME).
\11\ Title 23 U.S.C. Sec. 127(d).
---------------------------------------------------------------------------
Since the enactment of the 1982 Surface Transportation Assistance
Act (STAA) \12\ Federal law mandates certain minimum truck sizes,
weights, and configurations but, unfortunately, does not restrict the
length of trailers and semi-trailers in truck combinations.\13\ This
has had two particularly pernicious consequences.
---------------------------------------------------------------------------
\12\ P. L. No. 110-53.
\13\ Title 23 U.S.C. Sec. 127.
---------------------------------------------------------------------------
First, the states are pressured endlessly by the special interests
to increase the length of the semi-trailers used in tractor-trailer
combinations. This situation has resulted in repeated increases in the
length of the standard semi-trailer from 45 feet in the 1960s and
1970s, to 48 feet by the time the 1982 STAA was enacted, to 53 feet by
the end of the 1990s, with many states now allowing trailers that are
57 feet long and a few states even permitting 59- and 60-foot long
trailers.
Second, increasing trailer length and, therefore, volume leads to
special interest demands for higher state and Federal weight limits in
order to take advantage of the increased size of bigger, longer
trailers. Since fully loaded trailers may not always exceed the Federal
axle and gross weight limits on the Interstate highway system,\14\ or
the even higher maximum weight limits allowed in many states on their
non-Interstate highways, the trucking industry has persistently sought
higher truck weight limits. This incessant drum beat to raise truck
weight limits has been part of the strategy to simultaneously pressure
lawmakers at both state and Federal levels raise weight limits. Truck
weight increases adopted in one state put pressure on neighboring
states to do likewise, and eventually special interests besiege
Congress seeking higher, uniform national weight limits. This strategy
to continually ``ratchet'' upwards legal truck weight limits has been
successfully practiced by special interests for decades.
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
The main argument used by proponents of longer, heavier trucks is
that it will result in fewer trucks. Nothing is further from the truth.
Since 1974, every time truck sizes and weights have been increased by
state or by Federal mandate, the result has been more trucks than
before.\15\ In fact, from 1972 to 1987 alone, the number of for-hire
trucks increased by nearly 100 percent.\16\ During this era an
increasing number of states adopted longer, wider, heavier trucks and
trailers on their state highways and also interpreted their Interstate
grandfather rights broadly in order to grant more overweight permits to
extra-heavy trucks.\17\
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\15\ For example, the states began to allow bigger, heavier trucks
on their non-Interstate highways in the early 1970s. The Federal-Aid
Highway Act in 1978, Pub. L. 95-599 (Nov. 6, 1978), authorized the
states to allow substantial increases in truck weights on Interstate
highways and bridges. Subsequently, the Surface Transportation
Assistance Act of 1982 (1982 STAA), Pub. L. 97-424 (Jan. 6, 1983), pre-
empted state size and weight restrictions both on and off the
Interstate systems by enacting new, higher Federal size and weight
limits. Those new limits applied to a designated National Network
consisting of several hundred thousand miles of interconnected, primary
highways, most of which had never had any Federal control on truck size
and weight. Many states gave up fighting after this sweeping act of
Federal pre-emption and simply extended the new, higher weight and size
limits to all or most of their highways. Many other exemptions from the
Interstate weight restrictions were enacted in the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (STURAA),
Pub. L. 100-17 (April 2, 1987); the Truck and Bus Safety and Regulatory
Reform Act of 1988, Pub. L. 100-690 (Nov. 18, 1988); and the Motor
Carrier Safety Act of 1990, Sec. 15, Sanitary Food Transportation Act
of 1990, Pub. L. 101-500 (Nov. 3, 1990); and the Motor Carrier Safety
Act of 1991, Title IV, Intermodal Surface Transportation Efficiency Act
of 1991 (ISTEA), Pub. L. 102-240 (Dec. 18, 1991).
\16\ Truck Inventory and Use Survey, U.S. Bureau of the Census,
1974, 1982, 1987.
\17\ This increasingly liberal interpretation of grandfather rights
in many states was the result of a major amendment in the 1982 STAA
that excluded the Federal Highway Administration from overseeing and
enforcing state weight limits on the Interstate highway system. The
amendment allowed the states to determine for themselves the force and
effect of their grandfather rights to vary axle and gross weights, and
bridge load formulas, from the requirements of 23 U.S.C. Sec. 127.
---------------------------------------------------------------------------
The result was predictable: trucks were bigger and heavier than
ever before, and there were more of them than ever before. The total
increase in the number of trucks by 1992 was 128 percent over the
number of registered trucks on our highways in 1972.\18\ Longer,
larger, heavier trucks have kept multiplying. By 1997, the number of
large trucks had grown to 174 percent more than 1972, and by 2002, the
number of for-hire trucks had increased by 228 percent over the 1972
figure.\19\ According to the Federal Highway Administration (FHWA) the
number of trucks on the road today is at least 250 percent higher than
the comparable 1972 figure.\20\
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\18\ Truck Inventory and Use Survey, op. cit., 1992.
\19\ Vehicle Inventory and Use Survey (formerly the Truck Inventory
and Use Survey), U.S. Bureau of the Census (1997).
\20\ Highway Statistics 2008, Federal Highway Administration (FHWA)
(Jan. 5, 2010).
---------------------------------------------------------------------------
Evidence of the negative effects of raising Interstate highway
weight limits can be found in the data from the Maine pilot program
that allowed trucks weighing up to 100,000 pounds to operate on the
northern portion of I-95 that is normally subject to the Federal 80,000
pound limit for Interstate highways. Congress permitted the weight
limit increase for a one-year period from late 2009 through late
2010.\21\ About 600 six-axle trucks used the I-95 corridor in Maine
each week before the higher weight limits were permitted, 400 of these
trucks used I-95 (presumably loaded only to the 80,000 pound legal
limit), and 200 trucks used a parallel state route (on which loads up
to 100,000 pounds were legal). However, once the weight limit was
raised on I-95 the increase in the number of trucks entering I-95 after
the pilot program began was startling. More than 1,000 six-axle trucks
used that route most weeks with more than 1,200 trucks using I-95 in
some weeks.\22\ Thus, the number of heavy trucks using the Interstate
route tripled from 400 to 1,200 and the total number of these heavy
trucks using the corridor doubled from 600 to 1,200 during the
experiment with increased truck weight limits. This clearly shows that
raising Federal weight limits increases the heavy truck traffic on
Interstate highways. Moreover, assuming these trucks were loaded to
100,000 pounds, the gross weight loads on the highway also increased
dramatically, placing greater stress on highway bridges and degrading
roadway pavement at an even faster rate.
---------------------------------------------------------------------------
\21\ Sections 194(a) and 194(d), Fiscal Year 2010 Transportation,
Housing, and Urban Development Consolidated Appropriations Act of 2009,
P.L. 111-117 (Dec. 16, 2009).
\22\ Maine and Vermont Heavy Truck Interstate Pilot Program, 6
Month Report, p. 10 (FHWA). See also subsequent chart ``Impacts to
Sidney I-95 NB, Vassalboro Rte. 201 NB & So. China Rte 3/9/202 EB (Year
2010)'' (FHWA).
---------------------------------------------------------------------------
The two actions of limiting truck lengths and freezing existing
state weight practices for the entire NHS are complementary and both
are crucial to achieving SHIPA's goal. In order to protect the national
investment in our highways and bridges, SHIPA extends the current state
and Federal weight limits on the Interstate system to the non-
Interstate highways on the NHS and prohibits any further increases.
This not only puts a ceiling on truck weights at their current levels,
but it also recognizes and protects the states' existing grandfathered
rights to allow certain differences in truck axle and gross weights
from the maximum weight figure in Federal law. SHIPA restores FHWA to
its traditional position as steward of Federal size and weight limits
for public safety and infrastructure protection.
Recommendation:
Congress should enact S. 876, the SHIPA bill.
Special Interest Exemptions Jeopardize Safety and Compromise
Enforcement
Over the years, Congress has granted numerous statutory special
interest exemptions from Federal safety regulations including
exemptions from the maximum driving and on-duty limits, as well as the
logbook requirements, for motor carriers under the hours of service
regulations, and from commercial driver physical and medical
qualifications.\23\ These exemptions pose safety issues because they
are untested and unproven deviations from established Federal safety
requirements. Enactment of exemptions on a piecemeal basis bypasses
careful investigation and findings on the impact of these exemptions on
safety. In addition, it creates a patchwork quilt of disparate
regulatory exemptions that makes it nearly impossible for enforcement
authorities to determine the status of exempt drivers and vehicles and
to effectively enforce Federal safety requirements.
---------------------------------------------------------------------------
\23\ See, e.g., Transportation Efficiency Act for the 21st Century
(TEA-21), P.L. 105-178 (June 9, 1998) (eliminated major Federal safety
regulations governing drivers of utility service vehicles); National
Highway System Designation Act of 1995, P. L. 104-5 (Nov. 28, 1995)
(exempted drivers transporting agricultural commodities and farm
supplies from maximum driving time, maximum duty time, and minimum off-
duty time hours of service requirements, and allowed drivers of ground
water well drilling rigs, of construction materials and equipment, and
of utility service vehicles to use a 24-hour restart for each new work
week rather than the minimum required layover time after a tour of
duty).
---------------------------------------------------------------------------
Advocates is gravely concerned that these exemptions, which deviate
from established safety requirements, are not based on research and
scientific analysis, and pose increased safety risks for commercial
operators and the public. The FMCSA openly decried the exemptions
practice concluding that the multiple existing exemptions were not
compatible with reform of the drivers' hours of service rule.\24\ These
exemptions are also opposed by the Commercial Vehicle Safety Alliance
(CVSA) which represents state law enforcement officials who are charged
with ensuring compliance with Federal motor carrier safety rules.
Because the exemptions were established by statute, rather than
regulation, there has been no thorough examination of the safety
consequences of these exemptions. It is time for the U.S. DOT to
conduct a comprehensive evaluation of each statutory exemption from
safety rules.
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\24\ 65 FR 22540 (May 2, 2000). See, e.g.: ``The FMCSA has found no
sleep or fatigue research that supports any of the current exceptions
or exemptions, including the 24-hour restart provisions authorized by
the NHS Act.'' Id. at 25559.
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Even U.S. DOT severely criticized the statutory adoption of
exemptions only a few years ago because of the harm it does both to
highway safety and infrastructure protection. In a massive 2004 study
of the effects of overweight and extra-long tractor-trailer trucks, DOT
determined that LCVs damage bridges more severely than ``18-wheelers''
and could have substantially more serious safety consequences. U.S. DOT
concluded that a patchwork quilt of size and weight exemptions for
specific states undermined a coherent, national policy of size and
weight limits.\25\
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\25\ Western Uniformity Scenario Analysis, U. S. Department of
Transportation (April 2004).
In recent years a number of ad hoc, State-specific exemptions from
Federal truck size and weight laws have been enacted. For instance,
TEA-21 contained special exemptions from Federal size and weight limits
in four States, Colorado, Louisiana, Maine, and New Hampshire. The
Department does not support this kind of piecemeal approach to truck
size and weight policy. It makes enforcement and compliance with truck
size and weight laws more difficult, it often contributes little to
overall productivity, it may have unintended consequences for safety
and highway infrastructure, and it reduces the willingness to work for
more comprehensive solutions that would have much greater benefits.
Id. at XI-3.
---------------------------------------------------------------------------
Congress has also granted similar special interest exemptions for
truck size and weight limits. Most recently, Maine and Vermont were
granted special legislative exemptions which, as already discussed,
allowed the operation of 100,000-pound trucks on the northern section
of Maine's I-95 to the Canadian border, and of 99,000-pound trucks on
all of Vermont's Interstate highways.\26\ These exemptions were adopted
despite reams of reliable evidence concerning the adverse safety
effects and increased infrastructure damage that such excessively heavy
combination trucks inflict on roads and bridges.
---------------------------------------------------------------------------
\26\ Sections 194(a) and 194(d), Fiscal Year 2010 Transportation,
Housing, and Urban Development Consolidated Appropriations Act of 2009,
P.L. 111-117 (Dec. 16, 2009).
---------------------------------------------------------------------------
Safety organizations opposed these and other motor carrier safety
exemptions. Granting special interest requests for specific exemptions
from the Federal axle, and both gross weight and bridge formula weight
limits in Federal law, as well as special interest exemptions to exceed
limits on maximum driving and working hours, undermines national
uniformity and constitutes a serious and unacceptable threat to the
traveling public who must operate their small passenger cars next to
these unstable, overweight combination trucks that are, in some cases,
operated by tired truckers.
Fortunately, the mechanism for review of these types of exemptions
already exists in Federal law. In 1998, Congress required U.S. DOT to
review regulatory exemptions from safety requirements using reasonable,
recognized screening criteria.\27\ Under this provision, many special
interest exemption requests addressing motor carrier safety regulations
are reviewed using the expertise of DOT and FMCSA, rather than the
lobbying clout of special interests. The process enacted by Congress
allows the agency to carefully consider the safety requirements and
implications of a proposed exemption and to determine if the exemption
poses a problem for law enforcement.
---------------------------------------------------------------------------
\27\ TEA-21, Sec. 407, codified at 49 U.S.C. Sec. 31315(b).
---------------------------------------------------------------------------
Recommendations:
U.S. DOT and FMCSA should be required to review all
existing statutory exemptions from the Federal motor carrier safety
regulations to determine whether they are safe and enforceable, have
contributed to increased risk of deaths and injuries, and to make
recommendations to Congress about exemptions that pose an increased
public safety risk; and,
Congress should pass legislation similar to Section 49
U.S.C. Sec. 31315 but that requires U.S. DOT to review requests for
truck size and weight exemptions on an ongoing basis.
Congressional Oversight and Direction Is Essential to Ensure Effective
Safety Rules
Let me turn now to an analysis of FMCSA's performance and an
appraisal of its first decade as a Federal agency. The agency was
established in 2000 with motor carrier safety as its primary mission
and highest priority.\28\ Over its first 10 years the agency compiled a
poor track record that was at odds with its safety mission. Until
recently, the FMCSA exhibited a stark failure of leadership and
oversight of the motor carrier industry, an inability to issue
effective safety regulations, and an inadequate enforcement policy.
---------------------------------------------------------------------------
\28\ The Motor Carrier Safety Improvement Act of 1999 (MCSIA), P.
L. 106-159 (Dec. 9, 1999), codified at 49 U.S.C. Sec. 113(b).
---------------------------------------------------------------------------
While we see clear signs that the current FMCSA leadership is
finally taking truck safety regulation and enforcement more seriously,
Advocates is closely watching for evidence that the initiatives and
final rules it adopts will fulfill the agency's mission to make safety
its number one priority. While Secretary LaHood and the agency
leadership team are headed in the right direction, Congressional
oversight and guidance will continue to be needed in order to ensure
that the performance of the agency remains on course.
FMCSA Safety Oversight Issues
Failure to Implement NTSB Safety Recommendations
One strong indication of FMCSA's job performance is whether the
agency has implemented the numerous motor carrier safety
recommendations issued by the National Transportation Safety Board
(NTSB). Since it began issuing recommendations in 1968, NTSB has
repeatedly called for commonsense and urgent safety actions by FMCSA
and its predecessor agency, FHWA. NTSB has issued dozens of
recommendations that address vehicle operating systems, equipment,
commercial drivers, and motor carrier company safety administration and
oversight. However, many of the recommendations remain unfulfilled and
others have been closed out in exasperation by NTSB because there was
no agency response or the agency response was inadequate or
unsatisfactory.
The NTSB's current list of ``Most Wanted Transportation Safety
Improvements'' includes a number of safety recommendations for
commercial motor vehicles.\29\ FMCSA's failure to implement some
recommendations has led the NTSB to formally categorize the agency's
actions as ``Unacceptable Response''. For example, in 1977, NTSB first
issued its recommendation on the use of on-board recording devices for
commercial vehicle hours of service compliance. NTSB then urged FHWA to
mandate the use of on-board recorders in a 1990 safety study, after
concluding that on-board recording devices could provide a tamper-proof
mechanism to enforce the HOS regulations.\30\ That request for a
mandate has been re-issued periodically by NTSB and the recommendation
is currently listed as open but with an ``Unacceptable Response'' from
FMCSA.\31\ The safety recommendation to require all interstate
commercial vehicle carriers to use electronic on-board recorders is
included on the NTSB's 2011 list of Most Wanted safety improvements.
Only this year has FMCSA proposed a general EOBR requirement.
---------------------------------------------------------------------------
\29\ Available at http://www.ntsb.gov/safety/mwl.html. The current,
2011 Most Wanted Transportation Safety Improvements for motor carriers
include the following issues:
Addressing Human Fatigue
Bus Occupant Safety
Electronic Onboard Recorders
Addressing Alcohol-Impaired Driving for Commercial Motor
Vehicles.
\30\ Fatigue, Alcohol, Drugs, and Medical Factors in Fatal-to-the-
Driver Heavy Truck Crashes, NTSB (1990).
\31\ National Transportation Safety Board Recommendation H-07-041
issued Dec. 2007. http://www.ntsb.gov/safetyrecs/private/
QueryPage.aspx.
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Recommendation:
Congress should direct FMCSA to fulfill major NTSB safety
recommendations on the current Most Wanted List and review and adopt
previously issued NTSB motor carrier safety recommendations that have
not yet been implemented.
FMCSA Has Not Required Adequate State Vehicle Inspection Programs
The Secretary of Transportation is required to prescribe standards
for annual inspection of motorcoaches and of trucks greater than 10,000
pounds gross vehicle weight in interstate commerce, or approve state
inspection programs that are equally effective.\32\ FMCSA last publicly
addressed the state inspection system in a 2008 Federal Register notice
indicating that 23 states and the District of Columbia have approved
periodic inspection programs for trucks.\33\
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\32\ 49 C.F.R. Part 396; MCSIA, Sec. 210, codified at 49 U.S.C.
Sec. 31142.
\33\ 73 FR 63040 (Oct. 22, 2008). See also, 66 FR 32863 (June 18,
2001); 63 FR 8516 (Feb. 19, 1998).
---------------------------------------------------------------------------
FMCSA has not issued reports that evaluate how comprehensive the
commercial motor vehicle inspection programs are in each of the 23
states and the District of Columbia that have approved inspection
programs. Audits of the state programs have not been performed and
timely information on state truck and motorcoach inspection programs is
not available to the public on FMCSA's website.
Furthermore, while FMCSA allows motor carriers to ``self-inspect''
and annually certify that the mechanical inspection has been performed,
the agency does not conduct routine audits to evaluate a representative
sample of these state self-inspection programs.
It should be stressed that the minimum period for the required
inspection is only once a year.\34\ Since it is well known that
inspection of commercial motor vehicles needs to be much more intensive
and frequent than for personal or light motor vehicles, a once-a-year
inspection regime is clearly no guarantee of safe trucks and
motorcoaches. While reputable carriers may conduct more frequent
inspections, others do not. Many companies, even in states that have
inspection programs, can come into compliance just for an annual
inspection, only to allow major mechanical and safety features of their
vehicles to fall into dangerous disrepair soon after passing the annual
inspection.
---------------------------------------------------------------------------
\34\ 49 U.S.C. Sec. 31142.
---------------------------------------------------------------------------
Although commercial motor vehicles are subject to random roadside
inspections, trucks and motorcoaches can go for long periods of time
without being stopped for inspection. Relying on roadside inspections
to detect mechanical defects that pose threats to public safety and
then place them out of service is simply too late--it allows vehicles
that should never have been on the road from the start to operate on
our highways.
One example of the serious consequences that can occur as a result
of weak oversight of state-run, state-approved, company self-inspection
programs is the deadly 2008 Sherman, Texas motorcoach crash in which 17
people died and 39 were injured. The motorcoach was operated by Angel
Tours, Inc., which had been stopped from operating by FMCSA just weeks
earlier, but continued to operate under anther name, Iguala Busmex.
The NTSB's investigation of the crash found, among other Federal
violations, that the proximate cause of the crash was a failure of one
of the retreaded tires on the front steering axle of the motorcoach.
The retreaded tire failed, destabilizing the motorcoach, making it
difficult to control, and facilitating its crash into the overpass
guardrail. NTSB speculated that either the tire was not inspected
properly by an extremely perfunctory pre-trip inspection, or that the
tire was punctured during the trip prior to the crash. NTSB found that
the motorcoach had been inspected by a Texas state government-certified
private inspection company called ``Five-Minute Inspection, Inc''.\35\
The private inspection cost $62.00, but failed to detect a number of
mechanical defects including the retreaded tires on the steer axle,
under-inflated tag-axle tires, wrong tag-axle wheels mounted, and a
grossly contaminated brake assembly.
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\35\ R. Accetta, Motorcoach Run Off Bridge and Rollover Sherman,
Texas, August 8, 2008, Power Point Presentation, Office of Highway
Safety, NTSB, Oct. 30, 2009, available at http://www.ntsb.gov/events/
2009/sherman-tx/introduction.pdf.
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The Texas commercial motor vehicle state inspection program was
approved federally in 1994. NTSB concluded that there was no quality
control evaluations of agency-approved state programs, and no state
oversight of the certified inspection companies.
We commend the Senate Commerce, Science and Transportation
Committee for approving S. 453, the ``Motorcoach Enhanced Safety Act of
2011,'' introduced by Senators Brown (D-OH) and Hutchison (R-TX). This
legislation, when enacted, will address some of the inspection
oversight concerns with respect to motorcoaches. Similar action is
needed regarding state inspection programs for trucks.
Recommendations:
Congress should direct FMCSA to:
establish specific standards for state-authorized,
state-operated inspection programs to determine how well
they meet the requirements of the Federal Motor Carrier
Safety Regulations;
conduct annual inspections of a sample of state-
authorized or state-operated truck inspection programs to
determine their effectiveness; and
audit motor carrier self-inspection programs in each
state to determine how well trucks are being inspected and
maintained for safe mechanical condition.
En-Route Inspections of Motorcoaches
Under current law, aside from imminent or obvious safety hazards,
inter-city buses and motorcoaches cannot be regularly inspected except
at planned stops and terminals along the bus route.\36\ This affords
highly favorable treatment to motor carriers of passengers and
insulates motorcoaches from routine roadside inspections required by
law for other commercial motor vehicles. Recently, U.S. DOT conducted
3,000 ``surprise'' passenger carrier safety inspections and placed 442
unsafe buses and drivers out-of-service.\37\ This represents 15 percent
of the motorcoaches subject to the ``surprise'' inspections. This shows
that motorcoaches need to be subject to more frequent and routine
random roadside inspections at convenient locations but not just at bus
terminals and planned stops along the scheduled route.
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\36\ 49 U.S.C. Sec. 31102(b)(X).
\37\ Obama Administration Has Stepped Up Action Against Unsafe
Motorcoach, Trucking Companies, News Release, DOT 90-11, July 19, 2011,
available at http://www.fmcsa.dot.gov/about/news/news-releases/2011/
Obama-Administration-Action-Against-Unsafe-Motorcoach-Trucking-
Companies.aspx.
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Recommendation:
Congress should amend Federal law, Title 49 U.S.C.
Sec. 31102(b)(X), to allow roadside safety inspections of motorcoaches
at more times and additional locations.
FMCSA Regulatory Issues
Electronic On-Board Recorders Are Needed To Reduce Fatigue and Fraud
It has been more than 15 years since Congress in 1995 directed the
Secretary of Transportation to address the issue of Electronic On-Board
Recorders (EOBRs).\38\ After all this time, FMCSA has produced only a
weak and ineffective remedial final rule that requires carriers that
fail two consecutive compliance reviews (CR) to install EOBRs, a
measure the agency itself admits will apply to less than one percent of
motor carriers.\39\
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\38\ Sec. 408 of the Interstate Commerce Commission Termination Act
of 1995, P.L. 104-88 (Dec. 29, 1995).
\39\ Electronic On-Board Recorders for Hours-of-Service Compliance,
Final Rule, 64 FR 17208 (Apr. 5, 2010). FMCSA's remedial final rule
will take effect in 2012 and will require only about 5,700 motor
carriers to install and use EOBRs--but only after an hours of service
(HOS) violation is discovered in the course of a Compliance Review
(CR). Because FMCSA annually conducts CRs on only two percent of motor
carriers registered with the agency, the chances of being caught
violating HOS requirements are very remote, and the detection of
violations will be based on examination of logbooks recording duty
status, which are widely known to be regularly falsified by a large
percentage of commercial drivers to conceal violations.
In addition, the remedial rule has numerous other shortcomings
including the following:
The EOBR Global Positioning System (GPS) function will
record only at 60 minute intervals rather than at one minute
intervals--a serious problem that allows carriers to evade fixed weigh
stations, use illegal hazardous materials routes, and traverse bridges
posted for reduced loads, without detection.
Carriers required to install and use EOBRs will not have
to provide certain supporting record of duty status (RODS) documents--
which reduces the documentation that enforcement personnel need to
determine whether drivers using sleeper berths complied with minimum
off-duty time.
The EOBRs default to ``on-duty not driving status'' when
a commercial vehicle has been stationary for only five minutes. This
allows time during intermittent vehicle movement in traffic congestion
or while waiting in loading dock lines, to be recorded as non-driving
time. As a result it will extend the drivers' shift beyond the maximum
11 consecutive hours allowed by regulation.
EOBRs will not collect speed data thereby reducing the
deterrent effect on speeding by commercial drivers and undermining the
effectiveness of speed limit enforcement by public authorities.1
FMCSA thoroughly fails to address the need for specific
fail-safe controls to ensure that EOBRs are tamper-proof, and are
protected with adequate, security control measures to limit access only
to appropriate users.
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The FMCSA has, however, earlier this year proposed a much broader
requirement that would apply to all motor carriers of drivers that are
required to maintain records of duty status (RODS), that is, driver
logbooks.\40\ The pending proposed rule responds to numerous calls for
an EOBR mandate. At a hearing before this Subcommittee held May 1,
2007, on the topic of EOBRs,\41\ Chairman Lautenberg said in his
opening statement: ``We need electronic on-board recorders in every
truck on the road to ensure the safety of our truck drivers and our
families who travel on the highways.'' \42\ Similar sentiments were
expressed by the President of CVSA.\43\ The current Chair of NTSB,
Deborah Hersman, has also repeatedly emphasized the need for a U.S. DOT
requirement for EOBRs on all commercial motor vehicles.\44\ As noted
above, NTSB is resolute in continuing to list an EOBR mandate on its
Most Wanted list and still classifies the agency's previous responses
as ``Unacceptable.''
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\40\ Electronic On-Board Recorders and Hours of Service Supporting
Documents, 76 FR 5537 (Feb. 1, 2011).
\41\ U.S. Senate Committee on Commerce, Science and Transportation.
Subcommittee on Surface Transportation and Merchant Marine
Infrastructure, Safety, and Security. Electronic On-Board Recorders
(EOBR's) and Truck Driver Fatigue Reduction. 110th Cong. Washington:
May 1, 2007.
\42\ Sen. Lautenberg, Frank. Statement to the U.S. Senate Committee
on Commerce, Science and Transportation. Subcommittee on Surface
Transportation and Merchant Marine Infrastructure, Safety, and
Security. Electronic On-Board Recorders (EOBR's) and Truck Driver
Fatigue Reduction. 110th Cong. Washington: May 1, 2007.
\43\ ``EOBR technology is proven. More than 50 countries have
mandated Electronic Data Recorders for driving and standby time
recording and/or speed and distance recording.'' Captain John E.
Harrison. Statement to the U.S. Senate Committee on Commerce, Science
and Transportation, Subcommittee on Surface Transportation and Merchant
Marine Infrastructure, Safety, and Security. Electronic On-Board
Recorders (EOBR's) and Truck Driver Fatigue Reduction. 110th Cong.
Washington: May 1, 2007.
\44\ Chairman Deborah Hersman, statement to the Transportation and
Infrastructure Committee, Subcommittee on Highways and Transit, Motor
Carrier Safety: The Federal Motor Carrier Safety Administration's
Oversight of High Risk Carriers, 110th Cong. Washington: July 11, 2007.
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Moreover, pending legislation, the Commercial Driver Compliance
Improvement Act, S. 695, introduced and cosponsored by Senators Pryor
(D-AR) and Alexander (R-TN), would require the completion of the
pending rulemaking within 18 months of enactment. Passage of this bill
would ensure that the 16-year-long effort by Congress to adopt modern
technology for truck safety enforcement would reach closure in the near
future. Advocates supports S. 695 as do many safety organizations, law
enforcement groups and leading segments of the trucking industry.
It is time for Congress to act. As mentioned before, this Committee
has approved the MESA safety bill that includes a mandatory requirement
for EOBRs on all motorcoaches.\45\ Congress should mandate EOBRs for
all interstate commercial vehicles operated by drivers who are required
to maintain logbooks to ensure the FMCSA final rule is an effective
rule.
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\45\ S. 453, Sec. 12(a).
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Recommendations:
Congress should pass:
S. 695, the Commercial Driver Compliance Improvement
Act, to direct the FMCSA to issue a universal EOBR
requirement for all commercial motor vehicles operated in
interstate commerce by drivers who maintain records of duty
status logbooks; and,
the Motorcoach Enhanced Safety Act of 2011 mandating
EOBRs on all passenger-carrying commercial motor vehicles
under FMCSA jurisdiction.
Truck Driver Hours of Service and Fatigue
A revised Hours of Service (HOS) rule is nearing completion. The
FMCSA has committed to issuing a new HOS rule by the end of October,
2011. While Advocates is hopeful that the agency will finally issue a
safer rule, returning to the traditional limit of 10 consecutive hours
of driving and restricting the use of the 34-hour restart, we await the
final decision this fall.
There are important reasons for the agency to revise the HOS rule.
The current, unsafe HOS rule adopted in 2003 substantially increased
maximum daily and weekly driving and working hours for truckers.\46\
Driving time for each shift was increased from 10 to 11 consecutive
hours. Driver fatigue from this excessively long driving shift is
increased further by allowing an additional three or more hours in each
shift for other work including the loading and unloading of trucks.
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\46\ Hours of Service of Drivers; Drivers Rest and Sleep for Safe
Operations; Final Rule, 68 FR 22455 (Apr. 28, 2003).
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The danger posed by these provisions to the health and safety of
truck drivers and the motoring public are made even worse by the weekly
``restart'' provision. The restart undermines what previously was a
``hard number'' 60-hour weekly driving cap (or 70 hours for drivers on
an 8-day schedule). Instead, the rule permits drivers to reset their
accumulated weekly driving hours to zero at any point during the work
week after taking only a 34-hour off-duty break, and then start a new
tour of duty. This permits drivers who use the restart provision to
cram an extra 17 hours of driving into a 7-day schedule, actually
operating their trucks for a total of 77 hours in seven calendar days
instead of the limit of 60 hours. Drivers operating on an 8-day
schedule can drive an extra 18 hours in 8 days for a total of 88
driving hours instead of the limit of 70-hours.
The restart permits companies to squeeze these excessive ``bonus''
driving hours out of drivers. Instead of having a full weekend of 48 to
72 hours off duty for rest and recovery, which was required under the
previous HOS rule, the restart permits motor carriers to compel drivers
to cash in their rest time for extra driving hours. This dramatically
increases truck driver crash risk exposure, yet FMCSA rationalized this
dramatic increase in daily and weekly driving and work hours as being
just as safe as the previous HOS rules, even though drivers had more
end-of-week rest time under the previous rule.
The current HOS rule was issued by FMCSA despite the findings of
fact by the agency, and its predecessors, that crash risk significantly
increases after eight consecutive hours of driving, and that long
driving and work hours promote driver fatigue. FMCSA also failed to
properly take into account driver health impacts and scientific
findings showing that more driving and working hours are dangerous and
lead to an increased risk of crashes, especially among workers in
industries with long hours of shiftwork who have little opportunity for
rest and recovery. Advocates meticulously documented the science
showing that long periods of work and cumulative fatigue drastically
effect driver performance. The agency's selective use of research
findings was designed to justify a predetermined regulatory outcome,
and the agency cherry-picked research data in order to justify its
expansion of driver working and driving hours.
These concerns were echoed by the U.S. Court of Appeals in two
separate, unanimous decisions that vacated the current HOS rule and
remanded the rule to the agency for changes. In each case, the Court
questioned the basis for the agency's decision-making in allowing
longer driving hours despite the safety threat, adverse health effects
and the increased crash risk posed by the rule, indicating that the
current HOS rule was not based on sound reasoning.\47\ Despite back-to-
back judicial decisions overturning the rule in each case, FMCSA
refused to make changes to the maximum daily and weekly driving and
work hours allowed by the rule.
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\47\ Owner-Operator Independent Drivers Ass'n v. FMCSA, 494 F.3d
188 (D.C. Cir. 2007); Public Citizen v. FMCSA, 374 F.3d 1209 (D.C. Cir.
2004).
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On December 19, 2007, this Subcommittee held a hearing on the HOS
rule. The record of that hearing documents the safety concerns about
the HOS rule and its precarious legal status. In 2008, the FMCSA
nevertheless defiantly reissued the same flawed HOS rule for a third
time and, in 2009, Advocates, Public Citizen, the Truck Safety
Coalition and the International Brotherhood of Teamsters filed a third
lawsuit challenging the rule.\48\
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\48\ Petition for Review, filed March 2009, Public Citizen et al.,
v. FMCSA, No. 09-1094 (D.C. Cir.)
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In an effort to expedite the issuance of what safety advocates hope
will be a new, safer HOS rule, and to allow the new Administration to
determine the right course on this issue, safety and labor
organizations agreed to hold the lawsuit in abeyance while FMCSA
develops a revised HOS rule. Under the terms of the settlement \49\ the
agency has committed to issuing a final rule by October 31, 2011.\50\
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\49\ Id., see Settlement Agreement dated Oct. 26, 2009 and Order
dated March 3, 2010.
\50\ 76 FR 26681 (May 9, 2011).
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Recommendation:
The Committee should continue rigorous oversight of the
HOS rulemaking activity and efforts of FMCSA to comply with the HOS
legal settlement and to issue a new rule that enhances the health and
safety of truck drivers and the traveling public.
FMCSA's New Entrant Motor Carrier Program Lacks Critical Safeguards
In the Motor Carrier Safety Improvement Act of 1999 (MCSIA),\51\
the law that established the FMCSA, Congress directed the new agency to
establish minimum requirements to ensure that new motor carriers are
knowledgeable about the Federal motor carrier safety standards
(FMCSRs).\52\ It also required consideration of the need to implement a
proficiency examination.\53\ National safety organizations called on
the agency to require, prior to making a grant of temporary operating
authority, a proficiency examination to determine how well new entrant
motor carriers understand and are capable of complying with the FMCSRs
and Hazardous Materials Regulations (HMRs), and whether they can
exercise sound safety management of their fleet, drivers, and
operations.
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\51\ P. L 106-159 (Dec. 9, 1999).
\52\ Section 210 of MCSIA added 49 U.S.C. Sec. 31144(g) which
directed the establishment of regulations requiring each owner or
operator with new operating authority to undergo a safety review within
18 months of starting operations.
\53\ MCSIA, Sec. 210(b).
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FMCSA's new entrant final rule lacked many important aspects of
appropriate agency oversight of new truck and motorcoach companies,
especially the need to mandate an initial pre-authorization safety
audit of new carriers before awarding them temporary operating
authority, and performing a compliance review (CR) at the end of the 18
month probationary period of temporary operating authority along with
assigning the carrier a safety fitness rating.\54\ Advocates and other
safety organizations strongly urged FMCSA to adopt these and other
stringent oversight and enforcement mechanisms as part of the new
entrant program, but these suggestions were largely ignored or
rejected.
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\54\ 73 FR 76472 (Dec. 16, 2008).
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The pre-authorization safety audit and proficiency exam are
intended to screen out carriers that are obviously not fit to start
operating on our Nation's highways. The CR inspection after 18 months
is essential to evaluate whether actual carrier operations are unsafe
in practice. Both types of inspections are needed to ensure public
safety.
Because the agency rule did not implement the statutory directives
in the MCSIA, and rejected other reasonable safeguards for new
entrants, Advocates filed a petition for reconsideration with the
agency on January 14, 2008.\55\ The petition emphasized that the final
rule contains no data or other information demonstrating that the new
entrant review procedure adopted by FMCSA will improve the operating
safety of new entrants through their knowledge about and compliance
with the FMCSRs and HMRs. The petition also pointed out that the rule
did not include an evaluation of the merits of a proficiency
examination for new entrants, even though the MCSIA required the agency
to consider the need for such an examination.
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\55\ Advocates for Highway and Auto Safety, Jan. 14, 2008,
``Petition for Reconsideration Filed with the Federal Motor Carrier
Safety Administration Regarding the Order Issued on New Entrant Motor
Carriers Safety Assurance Process, 49 CFR Parts 365, 385, 386, and 390,
73 Federal Register 76472 et seq., December 16, 2008.''
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FMCSA granted Advocates' petition and issued an advance notice of
proposed rulemaking (ANPRM) asking for preliminary data, views, and
arguments on the need for a new entrant proficiency examination.\56\
While this is a positive step, FMCSA continues to insist that its
efforts to determine the capabilities of new entrants are adequate, and
that the agency has fulfilled the statutory direction to ensure that
applicants for the new entrant program are ``knowledgeable about
applicable safety requirements before being granted New Entrant
authority.'' \57\ In fact, the agency has no verification of a new
entrant's knowledge of or capability to comply with the FMCSR and HMR
because it doesn't ask for any demonstration by the applicant prior to
starting operation. The only way to ensure that high-risk carriers are
not allowed to start operating is to test their knowledge and check
their equipment and drivers to prevent them from threatening public
safety.
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\56\ New Entrant Safety Assurance Process; Implementation of
Section 210(b) of the Motor Carrier Safety Improvement Act of 1999,
advance notice of proposed rulemaking, 74 FR 42833 (Aug. 25, 2009).
\57\ Id. at 42834 (emphasis supplied).
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In addition, careful safety evaluation of new entrant applicant
motor carriers before the start of operations and prior to an award of
temporary operating authority will help the agency screen for
``chameleon'' or ``reincarnated'' motor carriers. These are companies
that, as discussed below, went out of business or were forced to cease
operations, but return under the guise of being ``new entrants.'' These
carriers conceal the fact that they are continuing operations with the
same officers and equipment under a false identity.
Recommendations:
Congress should:
explicitly require the FMCSA to adopt a proficiency
examination to determine how well a new entrant knows the
FMCSRs and HMRs, and how capable it is to conduct safe
operations; and
mandate that FMCSA conduct a pre-authorization safety
audit of new entrant motor carriers to determine the
quality of their safety management, drivers, and equipment
before awarding temporary operating authority.
FMCSA Still Needs to Issue A Strong Entry-Level Driver Training
Standard
Congress originally directed the FHWA to establish training
standards for entry-level drivers in 1991.\58\ There followed a long
and tortured history of intermittent rulemaking and two lawsuits, the
first for failing to issue a rule,\59\ and the second for issuing an
entirely inadequate, illegal final rule in 2004.\60\ In the second
case, the U.S. Court of Appeals rendered a judgment against the FMCSA,
taking the agency to task for issuing a training standard that did not
include any on-the-road, behind-the-wheel training.\61\
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\58\ ISTEA, Sec. 4007(a).
\59\ See settlement agreement dated February, 2003, In Re Citizens
for Reliable and Safe Highways v. Minetta, No. 02-1363 (D.C. Cir.
2003).
\60\ Advocates v. FMCSA, 429 F.3d 1136 (D.C. Cir. 2005).
\61\ Id.
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FMCSA reopened rulemaking with a new proposed rule published on
December 26, 2007,\62\ 16 years after the original deadline for agency
action. While the proposed rule represents a minimal improvement over
the unacceptable final rule, it is seriously flawed and fails to
improve the knowledge and operating skills of entry-level commercial
motor vehicle drivers in several respects.
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\62\ 73 FR 73226 (Dec. 26, 2008).
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First, without explanation the FMCSA reduced the minimum number of
hours of instruction recommended in the 1985 Model Curriculum,\63\
developed for the FHWA, from the 320 hours or more of instruction to
only 120 hours. Second, the agency provides no justification in the
proposal of the content of the curriculum or the minimum number of
hours of instruction that would be required by the proposed curriculum.
Third, the agency requires the same curriculum for drivers of
motorcoaches as for drivers of straight trucks. The mounting number of
motorcoach crashes emphasizes the need for special training
requirements for these buses which operate and handle differently than
trucks. Moreover, all curriculum content is indexed to truck driving,
with no specific training and skills for motorcoach operators such as
responsibilities for passenger safety management including emergency
evacuation and combating fires.
---------------------------------------------------------------------------
\63\ Model Curriculum for Training Tractor-Trailer Drivers, FHWA
1985.
---------------------------------------------------------------------------
Finally, FMCSA's proposal impermissibly restricts the scope of the
entry-level driver training in two ways. First, it restricts the
mandatory training requirement only to operators of interstate trucks,
buses, and motorcoaches that have commercial driver licenses (CDL).
Nothing in the law itself or the legislative history indicates any
intent by Congress to exempt entry-level CDL holders who operate
exclusively in intrastate commerce from driver training.\64\ Second,
the proposed rule applies only to entry-level CDL holders. Again, there
is nothing in the law itself, or the statutory history, permitting
FMCSA to exclude entry-level drivers of commercial vehicles who do not
have or need a CDL from the training required for other commercial
drivers.\65\
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\64\ The original legislation creating the commercial driver
license (CDL) explicitly required that CDLs must be issued to both
interstate and intrastate commercial drivers. FMCSA has no statutory
basis for the unilateral exclusion of intrastate CDL holders from
required entry-level driver training. In addition, Congress has
specifically emphasized the need for greater uniformity in motor
carrier safety regulation in Sec. 203 of the Motor Carrier Safety Act
of 1984.
\65\ The provision in the Intermodal Transportation Efficiency Act
of 1991 and accompanying legislative history cannot be construed to
abbreviate the scope of required entry-level training only to drivers
of commercial motor vehicles who also have CDLs.
---------------------------------------------------------------------------
Recommendation:
Congress should direct FMCSA to issue a final rule on
driver training that requires a more comprehensive training curriculum
and includes all entry-level commercial motor vehicle drivers
regardless of whether they have CDLs or operate in interstate or
intrastate commerce.
Other Regulatory Issues
Establish a Clearinghouse for Positive Controlled Substance and Alcohol
Tests
Establishment of a mandatory national clearinghouse for records
relating to alcohol and controlled substance testing of commercial
drivers is critical to ensuring highway safety. Today, drivers who have
tested positive for drugs and alcohol are on the road operating
commercial motor vehicles. Many applicants for CDLs fail to disclose
previous drug or alcohol violations and motor carriers may conduct only
partial background checks on new employees. This allows applicants with
positive drug and alcohol tests in their background to be licensed and
hired to operate commercial vehicles.
Legislation introduced by Senators Mark Pryor (D-AR) and John
Boozman (R-AR), the Safe Roads Act of 2011, S.754, would require the
Secretary to establish a national clearinghouse for records relating to
alcohol and controlled substances testing of commercial motor vehicle
operators within two years of the date of enactment. The bill would
prohibit employers from hiring individuals who have tested positive,
unless they have subsequently completed the return-to-duty process. The
Government Accountability Office (GAO) supported the creation of a
national database for positive alcohol and drug test results and test
refusals in a 2008 recommendation to Congress.\66\ The establishment of
a national clearinghouse will make it easier for employers to ensure
that they hire safe drivers and will prevent unsafe drivers from
operating commercial motor vehicles on our Nation's highways. Advocates
supports the enactment of the Safe Roads Act of 2011.
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\66\ ``Motor Carrier Safety: Improvements to Drug Testing Programs
Could Better Identify Illegal Drug Users and Keep them Off the Road,''
Government Accountability Office Report to Congressional Requesters.
GAO-08-600. May 2008. http://www.gao.gov/new.items/d08600.pdf.
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Recommendation:
Congress should enact S.754, the Safe Roads Act of 2011.
The Need to Require Speed Limiters on Commercial Motor Vehicles
Another action that will help reduce the severity and frequency of
commercial motor vehicle crashes is requiring speed limiters on all
class 7 and 8 trucks. In 2006, Road Safe America and nine motor
carriers petitioned the FMCSA and NHTSA to require devices to limit the
speed of heavy trucks.\67\ Although this issue is in the jurisdiction
of the NHTSA, the outcome will have a direct impact on the safety of
motor carriers. Early this year the NHTSA granted the petition but a
proposed rule is not expected before 2012 at the earliest.\68\
Advocates wants the Subcommittee to be aware of the fact that the
petition has been granted and that action is expected on an issue that
is closely related to the safety initiatives that are part of the
Subcommittee's jurisdiction.
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\67\ Road Safe America Petition dated Sept. 8, 2006. A similar
petition was later filed by the American Trucking Association dated
Oct. 20, 2006. See 72 FR 3904 (Jan. 26, 2007).
\68\ 76 FR 78 (Jan. 3, 2011).
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Event Data Recorders (EDRs)
Likewise, the installation of Event Data Recorders (EDRs) on all
commercial motor vehicles will provide long-term safety benefits for
commercial motor vehicles. EDRs are devices that record several seconds
of valuable vehicle information in the moments before and during a
crash. In addition to the potential use of this date to provide
immediate, accurate crash information to emergency medical responders
through Automatic Crash Notification (ACN) systems, the objective data
collected in EDRs is invaluable to ensure accurate crash reconstruction
and provide research data that can be used to improve crash avoidance
and crashworthiness countermeasures for commercial vehicles. Although
this is also an issue within the jurisdiction of the NHTSA, the
Subcommittee should be aware that progress on requiring EDRs on trucks
is being pursued. I would also point out that the MESA bill on
motorcoach safety includes an EDR mandate to improve the safety of
motorcoaches and their passengers.
Pilot Program on NAFTA Long-Haul Trucking Provisions
The Safety of Mexican Trucks Entering the U.S. Must Be Assured
Despite the fact that the FMCSA has provided additional information
and has made the new version of the NAFTA Long-Haul Trucking Provisions
Pilot Program \69\ more transparent, a number of serious safety
concerns remain. For example, it is not at all clear whether all
appropriate and pertinent violations data needed in the license
database used by enforcement authorities will be available when the
pilot program begins. The most recent report of the Department of
Transportation (DOT) Office of Inspector General (OIG) cited the need
to improve the monitoring of drivers with Mexican Federal licenses
operating in the U.S., especially timely reporting and data
inconsistencies among U.S. states, and the reporting and matching of
different categories of traffic convictions, including convictions in
non-commercial vehicles and convictions using various types of Mexican
licenses by Mexican authorities.\70\ Under U.S. law, states are not
currently required to report convictions of Mexican or Canadian
drivers, so even FMCSA has noted that reporting of convictions by
foreign drivers has been voluntary and inconsistent. Such reporting
needs to be made mandatory before the pilot program begins.
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\69\ 76 FR 40420 (July 8, 2011); 76 FR 20807 (Apr. 13, 2011).
\70\ Follow-Up Audit on the Implementation of the North American
Free Trade Agreement's Cross-Border Trucking Provisions, p. 31, FMCSA,
MH-2009-068, Office of the Inspector General, U.S. DOT (Aug. 17, 2009).
---------------------------------------------------------------------------
In addition, FMCSA has indicated that in order to document the
prior violation records of Mexican drivers that participate in the
pilot program to determine whether they have disqualifying violations
in personal vehicles on their personal licenses, the drivers will be
asked to voluntarily provide their personal licenses to FMCSA
officials. This leads to several additional problems. First, each
driver is asked to voluntarily provide their personal license or
driving history, but it is not a mandatory part of the pilot program so
drivers can refuse to cooperate. Second, drivers may have multiple
personal licenses from one or more states in Mexico. The voluntary
submission of a single or even several state licenses does not ensure
that all personal licenses have been handed over. Third, the license
databases of the 31 Mexican states have never previously been reviewed
for accuracy and data quality. Only the database of the Mexican Federal
license has been subject to scrutiny. Without a review and audit of
these new databases there can be no certainty that the licenses
voluntarily provided by drivers participating in the pilot program, or
the resulting driving histories, are accurate and complete.
Another as yet unresolved issue is the fact that Federal agencies
in the U.S. do not have the authority to disqualify a driver licensed
by a foreign jurisdiction. Currently, a foreign driver who commits
violations in the U.S. can be placed out-of-service (OOS) but cannot be
disqualified from driving by U.S. authorities. The driver can be
disqualified by the foreign state or foreign Federal authority. But,
if, the foreign jurisdiction refuses to disqualify the driver the U.S.
has no power to disqualify the driver. This should be changed by
statutory amendment to allow the FMCSA to disqualify a foreign driver
before the commencement of the pilot program.
One more issue has been raised by the FMCSA in terms of data
collection in the pilot program. The agency states that ``violation
rates based on inspection data will be used to assess the safety
performance of each participating motor carrier.'' \71\ This statement,
however, does not indicate whether the agency will properly and fairly
use the same type of inspection data for comparison purposes. First,
there are three levels of commercial vehicle inspection intensity,
Level 1 being the most intense and Level 3 being least intense. If the
pilot program data is drawn largely from low-intensity level 3
inspections, that would not present a fair basis for comparison with
trucks operated in the U.S. While the agency asserts that it
``anticipates that inspections performed on the program participants'
trucks will be, on average, as thorough and rigorous as those performed
on U.S. motor carriers[,]'' \72\ this is not the same as a commitment
to using the same percentages of each level of inspection for
comparison purposes between pilot program and U.S. trucks.
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\71\ 76 FR 40436.
\72\ Id.
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Likewise, the location of the inspection matters a great deal in
terms of credibility of the comparison between truck fleets. Pilot
program trucks are expecting to be inspected at the U.S. border so the
inclusion of port-of-entry border inspections should be eliminated from
the data pool. Equally critical, inspection data should not be drawn
from inspections conducted within the commercial border zones because
the pilot program vehicles in the border zones may have driven
relatively few miles from their home base to get to the border zone.
Inspections conducted in the border zones may be far less indicative of
long-haul operating conditions than inspections conducted at locations
throughout the 48 contiguous states and Alaska. Moreover, if the pilot
program is truly a test of whether Mexican carriers can operate safely
on long-haul trips throughout the U.S., then the inspection data must
be drawn from roadside inspections conducted outside of the commercial
border zones and, preferably, from inspections conducted in non-border
states. Inspections conducted at a distance from the U.S.-Mexican
border will provide the most accurate measure of the safety of drivers,
vehicles and motor carrier operations on long-haul trips within the
U.S. Since the overwhelming majority of trips taken by participating
motor carriers in the previous cross-border pilot program were
completed in the border zones (85 percent),\73\ reliance on similar
data collected from border zone inspections in the proposed pilot
program would not provide a valid basis for comparison. In addition, a
large percentage of the trips beyond the border zone by participating
carriers were completed in the four (4) border states. In order to
obtain data that accurately compares long-haul operations of pilot
program participants with long-haul operations in the U.S., only
inspections conducted beyond the border zones, and typically after a
trip of at least 250 miles, should be considered for inclusion in the
data collection from the subject pilot program vehicles.
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\73\ U.S.-Mexico Cross-Border Trucking Demonstration Project,
Independent Evaluation Panel Report to the U.S. Secretary of
Transportation, p. 12 (Oct. 31, 2008).
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Recommendations:
Congress should amend Federal law to:
require states to report violations by foreign
commercial motor vehicle drivers to the Secretary of
Transportation, and
include foreign commercial motor vehicle drivers among
the listed disqualifications provided under 49 U.S.C.
Sec. 31310;
FMCSA should evaluate the NAFTA long-haul pilot program
based on inspections:
which compare violations determined based on similar
percentages of Level 1,2 and 3 inspections as are conducted
on U.S. trucks; and
that are conducted outside the U.S. commercial border
zones and do not include inspections conducted at ports of
entry at the U.S. border.
FMCSA Enforcement Issues
Compliance, Safety, Accountability--Results Are Uncertain, Evaluation
Is Needed
FMCSA has argued that enforcement rigor will be substantially
increased as the new enforcement methodology, Compliance, Safety,
Accountability (CSA), is fully implemented. Because CSA for the first
time will include roadside inspection data as part of the monitoring
and oversight of motor carrier enforcement, there is reason to believe
that this may improve the agency's previously limited, bureaucratic
approach to motor carrier enforcement interventions.
However, since CSA was only implemented at the beginning of this
year, the information needed to assess the effectiveness of the CSA
program is incomplete and not available to the public. CSA is supposed
to provide more data from roadside inspections and the new Safety
Measurement System (SMS) uses crash reports and violations grouped into
seven (7) safety-related categories, called BASICs (Behavior Analysis
Safety Improvement Categories), to conduct its safety analysis.\74\
While more data is being collected and made available to the public in
some of the seven safety categories of interest under CSA, many
carriers have little or no data in some or a majority of these critical
areas at this time. So the CSA program remains a potentially positive
initiative but there is insufficient information available at this time
to permit either the public to make reliable decisions based on the
incomplete motor carrier safety information data, or for Advocates and
other organizations to assess the impact of the CSA program on motor
carrier safety.
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\74\ CSA relies on the Safety Measurement System (SMS) which
quantifies the on-road safety performance of carriers and drivers to
identify candidates for interventions, determine the specific safety
problems the a carrier or driver exhibits, and to monitor whether
safety problems are improving or worsening. The SMS weighs the
violation data collected in seven areas called the Behavior Analysis
Safety Improvement Categories, or BASICs: unsafe driving; fatigued
driving (hours of service); driver fitness; controlled substance/
alcohol; vehicle maintenance; cargo-related; and crash indicators.
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It is important to note, however, there are several safety concerns
regarding a bias that is built into the agency's new methodology on
which CSA relies that will skew the resulting enforcement efforts. The
new system will still not ensure that mechanical problems will have
parity with driver violations for stopping dangerous carriers from
operating unsafe trucks or motorcoaches. FMCSA's decision to place
heavy emphasis on driver behavior as the core principle behind CSA \75\
ignores the fact that mechanical defects are dramatically under-
reported. Even though in 2010 the OOS rate for vehicles (large trucks)
was 20.3 percent, and the OOS rate for drivers (large trucks) was just
5.2 percent,\76\ the CSA BASICs includes four driver-related violation
categories but only one category for vehicle maintenance
violations.\77\
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\75\ See, 71 FR 61131 (Oct. 17, 2006). Also see,
www.csa2010.fmcsa.dot.gov. Primary data sources available to
researchers and enforcement authorities contain very little information
on vehicle mechanical condition, but lots of detailed information about
driver condition and behavior. In addition, available crash data
systems are not designed to support any analysis of how mechanical
defects played a role in CMV crashes. All well-known crash data sets,
such as the Fatality Analysis Reporting System (FARS), the General
Estimates System (GES), and state crash files maintained and sent to
FMCSA as part of each state's requirements under its State Enforcement
Plan to qualify for Motor Carrier Safety Improvement Program (MCSAP)
funds, are based on police reports. These data sets, unsurprisingly,
contain very low percentages of various mechanical defects as
contributing to reported crashes.
Officers on crash scenes do not engage in forensic work to detect
mechanical failures. Police crash reports concentrate overwhelmingly on
supposed driver errors or violations as the proximate reasons for the
crash occurrences. If a report does contain mechanical or equipment
failure information, it probably will involve an obvious, catastrophic
failure and not deterioration of performance in key vehicle operating
systems that cannot be detected at the crash scene. This disregard of
mechanical defect involvement in CMV crashes is even more likely in
injury or property-damage-only crashes.
Empirical data highlights the paradox of the radical under-
reporting of CMV mechanical defects: roadside inspections, such as the
annual Commercial Vehicle Safety Alliance (CVSA) Roadcheck repeatedly
and consistently show high rates of mechanical defects and out-of-
service (OOS) orders issued for such defects. For example, CVSA's
Roadcheck 2009 found an average of 1.12 vehicle violations in every
roadside inspection, and 26.1 inspected trucks were placed OOS for
mechanical/equipment violations. http://www.cvsa.org/news/
2009_press.aspx. Severe under-reporting of mechanical defects that
contribute to crashes has been borne out by several investigations.
(Massie and Campbell 1996). Without special, in-depth studies keying on
mechanical defects, crash data sets available for research cannot
accurately gauge the role of mechanical problems in large truck
crashes.
\76\ Roadside Inspections and Out-of-Service (OOS) Rates for
Commercial Motor Vehicles, Commercial Motor Vehicle Facts, FMCSA
(April, 2011) available at http://www.fmcsa.dot.gov/documents/facts-
research/CMV-Facts.pdf.
\77\ See CSA BASICs website available at http://csa.fmcsa.dot.gov/
about/basics.aspx.
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Studies \78\ show that of the nearly 1,000 truck crashes
investigated by FMCSA, fully 55 percent of them had one or more
mechanical problems, and almost 30 percent had at least one condition
that would trigger an OOS order, that is, a directive to the truck and
driver to stop operating. It was also found that just a brake OOS
violation increased the odds of a truck being assigned the critical
reason for precipitating the crash by 1.8 times. For this reason,
Advocates has criticized FMCSA's policy of only issuing an OOS order
when both driver and vehicle violations exceeded the required levels
under the previous Safety Management System (SafeStat). Advocates
believes that either driver or vehicle violations, if serious enough,
should require the issuance of an OOS order. The NTSB likewise issued a
safety recommendation calling for the same treatment of driver or
vehicle safety violations.\79\ The implications are clear: FMCSA's new
approach under CSA, which includes four driver BASICs but only a single
BASIC related to vehicle maintenance may well result in the same
unbalanced, excessive emphasis on driver as opposed to vehicle
violations.
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\78\ A. McCartt, et al., ``Use of LTCCS Data in Large Truck
Underride Study,'' Insurance Institute for Highway Safety, Society of
Automotive Engineers 2010 Government/Industry Meeting, Washington,
D.C., Jan. 26-29, 2010.
\79\ NTSB Rec. H-99-6, issued Feb. 26, 1999. to FMCSA (``Change the
safety fitness rating methodology so that adverse vehicle and driver
performance-based data alone are sufficient to result in an overall
unsatisfactory rating for the carrier'').
---------------------------------------------------------------------------
The over-emphasis on driver behavior over mechanical defects has
another collateral consequence when it comes to hours of service
enforcement. Because of the current necessity to rely on the use of
driver logbooks that are so often falsified that they are known as
``comic'' books, violations of HOS rules are often missed in roadside
inspections. A high percentage of drivers are able to repeatedly
conceal hours of service violations by manipulating the entries in
their logbooks. Even with supplementary documents available to law
enforcement, such as toll and fuel receipts, truck drivers can still
make their logbook entries appear to be valid. If the CSA BASICs are
overly reliant on driver violations, and enforcement personnel remain
unable to accurately detect this major source of violations, then the
data and accuracy of CSA will be questionable, and its capability to
adequately address ongoing driver and carrier violations suspect.
For this reason, Advocates reiterates the need for Congressional
action to direct FMCSA adoption of a universal EOBR regulatory
requirement. Only the use of EOBRs can address this potential problem
in the CSA approach.
Recommendations:
FMCSA should be directed to:
re-evaluate the imbalanced approach to motor carrier
violations in CSA that relies too heavily on driver
violations as part of the BASICs; and,
implement NTSB safety recommendation H-99-6 so that
either driver or vehicle violations alone can trigger
issuance of an out-of-service order.
Congress should direct the GAO to assess:
the accuracy and deterrent value of safety performance
findings from the SMS;
the progress of CSA and whether the effort is
proceeding in the right direction;
whether safety performance will be evaluated in a more
timely and meaningful manner than the previous compliance
review-oriented regime; and
whether the system will detect a significantly higher
percentage of dangerous motor carriers that either need major,
immediate reforms to their safety management or must stop operating.
FMCSA Should Impose the Maximum Penalties Allowed by Law on Violators
FMCSA has a history of avoiding the imposition of maximum penalties
on serious motor carrier violators but we hope there will be a change
under the new agency leadership. There has been no recent update on
whether the agency has increased average penalties and is imposing
sufficiently tough penalties in order to send a message to all truck
and motorcoach companies that the agency means business. Congress
indicated in the agency's authorizing law that civil penalties had not
been sufficiently used to deter violations.\80\ Stiffer penalties
levied against offending motor carriers would provide a strong
deterrence to prevent other companies from committing serious
violations.
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\80\ MCSIA, Sec. 3(2).
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FMCSA administers civil penalties allowed under the civil penalties
section of the transportation code.\81\ Despite the fact that this
section has been amended a number of times in an effort to strengthen
the legally allowed penalties, the statute affords the agency
considerable discretion in setting the amount of penalties to be
imposed and the maximum penalties are set too low. Motor carriers--the
trucking, motorcoach, and bus companies--are liable for a maximum
penalty of $10,000 for each offense, while the motor carrier employees
who are actually responsible for committing the violations are subject
to no more than a fine of $2,500 per offense.\82\
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\81\ 49 U.S.C. Sec. 521(b).
\82\ Id. at Sec. 521(b)(2)(A).
---------------------------------------------------------------------------
In the past, the agency has through its policies and
interpretations limited the penalties it has imposed. For example,
Congress made it clear in the agency's enabling legislation that FMCSA
was supposed to assess maximum financial penalties for commission of
certain acute or chronic motor carrier safety regulatory violations
after the commission of two offenses or a pattern of violations.\83\
However, the GAO found that the agency did not assess maximum fines for
a pattern of violations.\84\ The same GAO report also found that the
agency misinterpreted the statutory basis for imposing maximum fines,
assessing maximum fines only after a third violation rather than
following a second violation.
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\83\ MCSIA, Sec. 222 states:
(b) ESTABLISHMENT.--The Secretary--* * *
(2) shall assess the maximum civil penalty for each violation of a
law referred to in subsection (a) by any person who is found to have
committed a pattern of violations of critical or acute regulations
issued to carry out such a law or to have previously committed the same
or a related violation of critical or acute regulations issued to carry
out such a law.
\84\ Motor Carrier Safety: Federal Agency Identifies Many High-risk
Carriers but Does not Assess Maximum Fines as often as Required by Law,
GAO-07-584, Aug. 2007.
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FMCSA has conceded that it cannot determine whether the changed
penalty structure and amounts of fines have a beneficial effect on
motor carrier violation rates and on motor carrier safety.\85\ Part of
the problem is that the agency has imposed substantially different
amounts of fines from year to year. Even after the maximum penalty
amount was increased, average non-recordkeeping penalties plummeted
from $5,066 in 2000 to $2,938 in 2006.\86\ The latter figure is only a
little more than 29 percent of the maximum permitted by law. It is
clear that raising penalty ceilings in Federal legislation while
allowing broad agency discretion in the amounts of penalties actually
imposed does not ensure that violations trigger stiff penalties or
promote deterrence.
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\85\ FMCSA states in its study of civil penalties:
[I]t was determined during the original analysis that it is not
possible to isolate the effects of the revisions to the civil penalty
schedule on carrier behavior from other elements of the CR program or
other FMCSA programs (e.g., the roadside inspection program). Other
actions that could be taken against a carrier as a result of a CR
include: placing a carrier OOS for reasons other than nonpayment of
fines, and determining that a carrier is unfit to operate. Also, it is
not possible to isolate the effects of TEA-21 penalty revisions from
other civil penalty revisions that follow in later years. Therefore,
the 2004 study focused primarily on the impact of the changes in the
revised civil penalty schedule on the dollar amount of the fines
assessed to the carrier and on the number of violations assessed.
Analysis of FMCSA's Revised Civil Penalties (1995-2006): A Follow-
up Study, FMCSA, U.S. Department of Transportation, Aug. 2009, at v.
\86\ Id., Table 4, at 11.
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While FMCSA has recently announced the issuance of OOS orders to
several motor carriers, prior recent failures by the FMCSA to impose
stiff penalties has had deadly consequences. Just two months ago, on
May 11, 2011, a horrific motorcoach crash occurred in Caroline County,
Virginia in which four people were killed and over 50 injured when the
fatigued driver ran off the side of the road and the motorcoach
overturned and landed on its roof. The motorcoach operator, Sky
Express, had 46 violations for fatigued drivers, 17 violations for
unsafe driving, and 24 violations for driver fitness in the past two
years.\87\ The company was among the worst in the industry and FMCSA
had proposed an ``Unsatisfactory'' safety rating for the company in
April 2011. The rating meant that FMCSA could have shut down Sky
Express after 30 days,\88\ three days before the crash occurred on May
28, but the agency chose to extend the carrier's response and operating
time for an additional 10 days.\89\ Had FMCSA cracked down on Sky
Express for its dozens of violations and poor fitness rating and shut
the operator down, the crash could have been prevented. Secretary
LaHood has stated that the practice of allowing additional time would
not occur again.\90\ Advocates questions whether any motor carrier,
especially a passenger-carrying operation, should be allowed to
continue operations on public highways once the determination has been
made that its operations are unsafe.
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\87\ Federal Motor Carrier Safety Administration Safety Measurement
System for Sky Express, USDOT# 1361588.
\88\ 49 U.S.C. Sec. 31144(e)(2).
\89\ Safety Agency Rebuked in Deadly Bus Crash, USA Today, June 2,
2011, available at http://www.usatoday.com/news/nation/2011-06-01-bus-
crash-lahood_n.htm?loc=interstitialskip#.
\90\ ``LaHood Ends Extended Appeals After Fatal Bus Crash,'' AP/
NBC. 1 Jun 2011. http://www.nbcwashington.com/news/local/DC-Fed-Agency-
Was-Set-to-Suspend-Bus-Company-Before-Crash-122972973.html.
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Recommendations:
Congress should request a GAO study of FMCSA's imposition
of penalties for motor carrier safety violations to determine:
whether the current maximum penalty amounts are
actually deterring motor carriers from committing
violations;
the extent to which FMCSA has reduced or compromised
penalty amounts in a manner that results in lower penalties
per violation and per motor carrier;
the extent to which motor carriers regard current
levels of imposed penalties as acceptable costs of doing
business rather than as a deterrent;
whether setting statutory minimum required penalties
is necessary and appropriate, and to recommend such minimum
amounts;
whether motor carriers given ``Unsatisfactory'' safety
ratings by FMCSA should be allowed to continue operations
while challenging or trying to improve the safety fitness
determination .
FMCSA Lacks A Reliable Method to Detect ``Reincarnated'' Motor Carriers
At present, it is simply unknown what is the number of illegally
operating carriers that have restarted their trucking and motorcoach
companies as new entrants to mask prior operations, and to avoid paying
large fines and complying with OOS orders.
It has become increasingly apparent that FMCSA's methods of
detecting whether a motor carrier is legitimately registered with the
agency and has legal operating authority are unreliable and unsafe.
Thousands of motor carriers subject to heavy fines from repeated, past
violations and even given stop operation orders sink out of sight and
then re-appear as new entrants seeking registration and initial
operating authority from FMCSA.
In 2008, the horrific crash of a motorcoach in Sherman, Texas,
resulted in the deaths of 17 passengers and injuries to the driver and
the other 38 passengers. As referenced previously in this testimony,
the motorcoach was operated by Angel Tours, which had been stopped from
operating by FMCSA just weeks prior to the crash but continued to
operate under the new name Iguala Busmex. Angel Tours had an extremely
poor safety record and had been ordered by the agency to cease
operations.\91\
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\91\ Highway Accident Report--Motorcoach Run-Off-The-Bridge and
Rollover, Sherman Texas, Aug. 8, 2008, NTSB/HAR-09/02, http://
www.ntsb.gov/publictn/2009/har0902.htm.
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The NTSB investigation found that the numerous safety violations of
the motorcoach and its drivers were a continuation of the company's
exceptionally poor safety record when it registered with FMCSA as a new
company. NTSB determined that FMCSA processes for vetting new entrant
carriers through the use of its New Applicant Screening Program were
inadequate for identifying the motorcoach company as an operation that
had deceptively re-incorporated--a ``reincarnated'' or ``chameleon''
carrier--to evade agency enforcement actions. That failed screening
process had allowed hundreds of motorcoach and trucking companies to
escape detection as illegal, new motor carriers.
In a separate study, GAO tried to determine the number of
motorcoach carriers registered with FMCSA as new entrants in FY2007 and
FY2008 that are substantially related to previous companies or are, in
fact, the same companies that have ``reincarnated'' themselves as new
operations. GAO found 20 motorcoach companies that had re-appeared as
new companies from old companies, representing about nine percent of
220 interstate motorcoach companies that FMCSA placed out of service
during those two Fiscal Years. (These 220 companies are part of the
approximately 4,000 motorcoach companies registered with FMCSA in FY
2008.) According to GAO, this percentage is probably an underestimation
of the number of ``chameleon'' carriers in operation that have
disguised their prior, unsafe operations to hide their reincarnation
from the agency.
FMCSA officials admitted to GAO that until the 2008 motorcoach
crash in Sherman, Texas, reincarnating was easy to do and hard to
detect. In fact, five of the 20 carriers identified by GAO were still
operating in May 2009, and GAO referred them to the agency for
investigation. GAO also found another 1,073 trucking companies that
appeared to be reincarnated ``chameleon'' carriers, which FMCSA had not
detected.\92\ FMCSA's new process for detecting such carriers has not
been evaluated by GAO.
---------------------------------------------------------------------------
\92\ Motor Carrier Safety: Reincarnating Commercial Vehicle
Companies Pose Safety Threat to Motoring Public--Federal Safety Agency
Has Initiated Efforts to Prevent Future Occurrences, GAO-09-924 (July
2009).
---------------------------------------------------------------------------
A follow-up study is needed to determine whether FMCSA's new
procedures for detecting ``reincarnated'' carriers has made substantial
inroads on the number of illicit trucking and motorcoach companies
currently operating as new companies.
Recommendations:
Congress should direct:
FMCSA to require the principal officers of each new
entrant motor carrier to declare, on the new entrant
application, under penalties for perjury, that the new
entrant is not a reincarnated or previously operating motor
carrier with a different DOT registration number; and,
GAO to conduct a follow up investigation to assess
whether the FMCSA's new process for detecting
``reincarnated'' carriers is effective.
Conclusion
Creation of a new Federal agency to oversee motor carrier and
motorcoach safety has not yet resulted in the rigorous oversight and
enforcement that Congress directed and the public expected. In the
past, safety goals had not been met but merely changed, rulemakings
were routinely overturned in legal challenges because of faulty
reasoning and illegal underpinnings, enforcement was sporadic and weak,
and unsafe carriers and drivers operated with near impunity. Every year
thousands are killed and over 100,000 injured in truck crashes, every
month on average there is a serious motorcoach crash, and every day
tough safety regulations to combat driver fatigue, improve enforcement
and train new commercial drivers still go uncompleted. While the new
leadership team at DOT has addressed some of these issues, and shows
signs of revitalizing the FMCSA's safety mission, it is still necessary
for Congress to conduct constant oversight and provide clear direction
to this agency if we expect any strong and sustained progress in
reducing deaths and injuries. Advocates thanks you for your leadership
and looks forward to working with you on advancing motor carrier
safety.
Senator Lautenberg. Thank you very much.
Well, the one thing that is obvious here is that we all
feel the responsibility to make it safer out there on the
highways, and to make sure that companies and individuals are
equipped to do their jobs with safety in mind.
Now, Ms. Gillan and Mr. England, electric onboard recorders
help prevent driver fatigue by ensuring that the drivers comply
with our service requirements. FMCSA has a rule that goes into
effect next year that only requires electronic onboard
recorders for bus companies with a history of hours of service
violations.
Might not the safety be improved by expanding this rule to
require EOBRs on all commercial vehicles? First, Mr. England?
Mr. England. Certainly I agree with you 100 percent, and
that's why the ATA supports electronic onboard recorders. We
believe that a combination of the electronic onboard recorder,
plus the current hours of service regulations, will prove to,
will show that safety rates, the number of fatalities, will
continue to decline.
Now, we also believe that there are various kinds of
technologies and solutions in meeting this EOBR need. There
shouldn't be just a one-size-fits-all.
And finally, I'd just like to say, our company has been
operating with electronic logs now for 2 years. And we have
seen, gosh, our violations, 70 hours, 14 hours and so forth,
literally drop off the chart. And drivers have accepted it
well. Studies have shown that there is a strong correlation
between compliance there as to service regulations and safety.
And we believe that electronic logs are essential, really, to
meeting that end.
Senator Lautenberg. Thank you.
Ms. Gillan, how do you see the need for the EOBRs, you
know, recorders on all commercial vehicles?
Ms. Gillan. Well, we feel that electronic onboard recorders
are about 10 or 15 years overdue. They're already required in
Western European countries, in South America. And we have a
problem with enforcement of hours of service, and we know that
fatigue is a factor in up to 30 percent of all crashes. Right
now, law enforcement has to rely on paper log books which, even
within the trucking industry are referred to as comic books.
There's no question that electronic onboard recorders are
needed. This will not only help to ensure that truck drivers
comply with hours of service, but it will also help law
enforcement enforce those laws. And I think that electronic
onboard recorders will actually help truck drivers, who are
constantly being pushed by shippers and their employers to
exceed hours of service. And the electronic onboard recorders
will monitor that. It will be an accurate representation of how
many hours that truck has been on the road. And it will
definitely improve safety, not only for the public, but for the
truck drivers as well.
Senator Lautenberg. Thank you.
Ms. Ferro, NTSB found that fatigue is the primary factor in
30 to 40 percent of large truck crashes. Is the latest fatigue
research and safety data being incorporated in FMCSA's hours-
of-service rulemaking?
Ms. Ferro. Mr. Chairman, yes. We certainly incorporated
fatigue research, both workplace as well as other studies, into
building the hours-of-service proposal that went through the
public notice and comment period and is now under the final
edits to submit through the rest of the process. So, the simple
answer is yes.
Senator Lautenberg. Mr. Hart, a new motor carrier must
self-certify that it understands and will abide by Federal
safety regulations. However, FMCSA does not verify the carrier,
that the carrier's capable of complying with regulations until
its first safety audit, which can be up to 18 months after the
motor carrier begins operation.
What can we do to improve FMCSA's registration process to
ensure that new motor carriers comply with safety regulations?
Mr. Hart. Thank you, Mr. Chairman.
The issue you have highlighted is the reason we made
recommendations that were based on our recent investigation of
a collision of a tractor-trailer with a Greyhound bus. In that
accident, there was considerable falsification of the
information by the owner, which led to our recommendation that
the scrutiny and the examination of the carrier be completed
before the carrier enters into service.
Senator Lautenberg. Ms. Ferro, 18 months is a long time to
wait for a safety audit. What resources might FMCSA need to
speed up these reviews?
Ms. Ferro. Well, in today's environment, we complete the
new entry safety audits on all trucking company new entrants
within 12 months, as opposed to the 18, for the very reason
that you and Member Hart just stated, and for motorcoach
carriers within less than 5 months. We do feel the urgency, and
it underscores the technical assistance we submitted which is
recommending that motorcoach carriers go through a pre-
authority safety audit--let's not even wait for that new
entrant audit. Let's do it before they get their authority.
And we continue to advance a knowledgeability proposal for
any new entrant applicant, again, to get at the sense of that
knowledge and fitness before they get their authority.
Senator Lautenberg. Mr. Rajkovacz, Federal law prohibits
large trucks weighing more than 80,000 pounds, or that are
longer than 53 feet, from using interstate highways. What
effect might allowing heavier trucks have on the safety of
drivers and passengers on our highways who are already on our
stretched infrastructure?
Mr. Rajkovacz. We are not supporters of the longer and
heavier combination vehicles. Currently, longer and heavier
vehicles do selectively operate within this country. However,
often the drivers have to receive special training by
regulation. They are typically the most experienced and veteran
drivers in the industry. And they operate in primarily rural
interstates away from major urban areas. And those areas they
operate in typically have the lowest accident rates.
We've been to this rodeo before. When you increase size and
weight, one of the requirements, or one of the things that
would have to happen is, you would end up having to go to a
three-axle trailer. When we went from 45-footers to 48-footers
it became the industry standard, even though it wasn't mandated
by Congress. But it went from 48-footers to 53-footers. That
became the industry standard. You weren't going to get loaded
unless you showed up with a 53-footer. You increase the weight
to 97,000 pounds, three-axle configuration on the trailer.
One of the arguments made by the proponents is that it's
going to be environmentally friendly. We're going to save fuel.
You're going to have everybody dragging around a three-axle
trailer not at 80,000 pounds. It's significantly less. When all
of that weight, if it is at 97,000 pounds, is sitting on a
bridgedeck, the whole 97,000 pounds is on the bridgedeck. You
can't get around that. We have a crumbling infrastructure in
this country; there's not the money there; who knows when the
money's going to be there to replace it. That is sitting on the
bridge. We saw it in Minneapolis.
Senator Lautenberg. Thank you very much.
Senator Wicker.
Senator Wicker. Thank you.
Mr. England, you represent ATA. But your own company also
has some 4,600 drivers and 3,500 trucks. How many of those
trucks have these electronic devices on them?
Mr. England. Just a small correction. We operate 4,000
trucks. Maybe we made an error in the report we gave you. But,
yes, all of them do.
Senator Wicker. OK. All of them do. And, as far as you are
concerned, that's working pretty well?
Mr. England. Yes. It's been accepted well by drivers. We've
seen a slight deterioration in productivity, but only slight.
And we feel it's more than offset by the comfort that it gives
us that we are seeing greater compliance with the hours of
service regulations.
Senator Wicker. OK. And, do I take it, then, that if you
had your druthers, we'd just keep those devices on there, and
keep the hours of service rules as they are, rather than
changing them as they're proposed to be? Did I understand that
correctly?
Mr. England. That is correct.
Senator Wicker. Why is that?
Mr. England. Well----
Senator Wicker. Explain that to the Committee.
Mr. England.--the data speaks for itself in terms of
improvement. Over a period of time, when mileage has increased,
fatalities have continued to go down, as has the accident rate.
Our concern is that if the proposed changes were made to the
hours, such as an 11-hour driving period, the restart
provision, and so forth, it would require us to put more trucks
on the road and hire more drivers who would be less
experienced. And we just think the net effect would be a
deterioration in highway safety, rather than an improvement as
we've seen over recent years.
Senator Wicker. OK.
Now, Mr. Rajkovacz, I'm going to ask you to answer that
question also. What is your feeling, and the feeling of your
organization, about keeping the hours of service rules as they
currently are, rather than moving to the changes?
Mr. Rajkovacz. We do not believe there is any sound,
rational scientific justification for altering the current
hours of service. They have certainly proved, you know, in
real-world use that the industry has gotten safer under the
current hours of service that are in place.
We do think that if you reduce the productivity of the
industry by reducing the hours of service, you are likely to
see a less safe industry, because you're going to have to add
more trucks, more drivers, to handle the same amount of freight
that's hauled today. You're going to have a productivity issue.
More trucks on the highway means more car-truck interactions.
Senator Wicker. And then, let me ask both of you to explain
to the subcommittee this problem with detention time, and
comment about proposed solutions to this situation.
Mr. England, you can go first.
Mr. England. Well, as recently as January of this year, the
GAO issued a report showing there's really no nexus between
this issue of detention and safety. And so, we feel that if
regulation were to take place, it would be nothing more than
economic regulation. At our company, we pay our drivers
detention regardless of whether we get paid by the customer.
And we feel like these are transactions that should be handled
through negotiations between our customer and us. We really
don't believe in a one-size-fits-all sort of scenario.
Senator Wicker. So, do I understand--the proposals in the
legislation that would require contracts between shippers and
motor carriers, you're not really very excited about having
that included in the statute, are you?
Mr. England. We are not.
Senator Wicker. How about you, Mr. Rajkovacz?
Mr. Rajkovacz. The detention issue, delay of docks, is the
800-pound gorilla in any meaningful safety discussion in this
country. In my written testimony, I gave an actual example that
happened week after week, month after month, year after year.
It's not imagined. It's real. I disagree with the
characterization of the GAO report in saying that there's not a
nexus to highway safety. This is one of the reasons the
Association's not warm and fuzzy about EOBRs. There is a
tremendous amount of driver time spent at these docks that's
not being recorded. The EOBRs will never capture that. It's
there. It's for real. And if we don't address that, if we
ignore it, a lot of the rest of the safety discussion, really,
in many respects, becomes somewhat shallow.
Senator Wicker. Now, just to follow up, because my time is
gone, do you think the requirement of a contract dealing with
carrier detention time would be a good requirement to put in
the new statute?
Mr. Rajkovacz. Something clearly has to be done. My answer
to that's going to be a qualified yes. And the reason for that
is that small businesses do not have the economic power in the
marketplace to insist on any equitable treatment from large
shippers and receivers. It's take it or leave it. And so, you
face this coercion. I mean, within driver parlance, this
coercion is an everyday, real, actionable thing that happens to
small businesses and drivers.
Senator Wicker. OK. Well, let me give you a little time on
the record to supplemental your answer on behalf of your
Association as to what the best statutory solution would be.
Senator Wicker. And, thank you all.
Senator Lautenberg. Senator Pryor.
Senator Pryor. Thank you, Mr. Chairman.
Mr. England, let me start with you, if I may. You mentioned
in your testimony a few moments ago about hair testing. Tell me
the advantage of hair testing over other types of testing.
Mr. England. We found in our company that it's much more
reliable. Where we have a violation rate of, say, around 2
percent with urine testing, we find that, a violation of about
9 percent with hair testing. Where urine testing may be good
for 2 weeks or 3 weeks or something like that, maybe not that
long, but, really, hair testing is good for 60 to 90 days.
There's also a greater likelihood of subverting the system
with urine testing than there is with hair testing. And that
what, we just think it's one more means of ensuring safe
operations.
Senator Pryor. And, if the Congress is able to pass this
database proposal that I've offered, would that help you in
your hiring process, and how so?
Mr. England. Absolutely. I mean, we can buy all the
technology in the world, and many in our industry are doing
that. Weighing departure technology, roll stability systems.
There's just a whole array of technologies. It really comes
down, for the most part, to the person behind the wheel of that
truck. And if we don't have knowledge that a person that we're
putting behind the wheel of a truck had a positive drug test or
alcohol test somewhere back along the line that he or she
didn't report on their application, we're obviously handicapped
in knowing whether we're putting a safe person behind the
wheel.
Senator Pryor. Thank you.
And, I'm sorry. Help me with how to pronounce your name. Is
it Rajkovacz?
Mr. Rajkovacz. Rajkovacz.
Senator Pryor. Rajkovacz. OK. Well, bear with me as I
struggle with that. But, thank you. And I'm not sure in your
opening statement if you really told us your thoughts on the
data base, and whether that would help or hurt owner-operators,
in your opinion.
Mr. Rajkovacz. The drug and alcohol clearinghouse is
something that the Association--we've been discussing it. We
haven't taken an official stance on it. But I can say from
conversations I've had with small business owners, owner-
operators, they're very concerned about the placement of a
database like that in the hands of a third party, an
independent third party, not the government. We have seen way
too often where, once a third party has data on drivers, it's
not used in a very ethical manner.
When it comes to drug and alcohol testing, the Association
has, on numerous occasions in responses to the agency,
suggested changes to how drug and alcohol testing are performed
to be more effective. Right now, we as an industry test at a 50
percent rate on randoms, and, you know, you have drivers that
have been driving for 30 years. And they've never tested
positive. They'll never test positive. But they're caught up in
the whole system.
It seems to us to make more rational sense to allow those
who have never tested positive to go into a lower rate, thus
concentrating testing on those who haven't achieved a certain
level.
Senator Pryor. OK.
Mr. Hart and Ms. Ferro, I don't want you to feel like
you've been left out of this conversation so, let me ask, if I
may, a little bit about the data base, the drug and alcohol
testing. But also, what I'd like to focus on is something that
one of the witnesses said earlier about the idle time, the time
of loading and unloading, and what impact that does have on
safety, and how the current system handles that. I don't want
to call it downtime because that's probably not accurate. It
probably depends on what they're doing.
Mr. Hart, would you like to go first, or----
Mr. Hart. Thank you, Senator Pryor. I'm not aware that we
have any recommendations specific to that issue, because I'm
not aware that we've ever addressed that as a causal factor in
any of our accidents.
Senator Pryor. OK.
Ms. Ferro. So, from FMCSA's perspective on the detention
time component, we had done some research in the past where we
did identify the cost and correlation to safety. In addition,
our Motor Carrier Safety Advisory Committee following some of
the GAO work last year took it up as an issue and, under
consideration. It's a very broad-based advisory committee with
stakeholders from every major interest group that has a stake
in commercial vehicle safety. And the advisory committee
recommended to the agency that they wanted to continue looking
at the issue.
The correlation is that uncompensated time at a dock, which
is generally from our research, in many cases uncompensated
time puts pressure--not just economic pressure--on a driver,
but it also puts pressure on that driver's restricted operating
time. And by the time the driver may be released from that
site, that driver is invariably inclined to push the limit,
both on hours of driving--on hours of service, as well as the
stress and fatigue related with waiting. So, we get two safety
factors there.
Senator Pryor. OK. Thank you.
Mr. Chairman, I may have more questions for the record.
But, thank you.
Senator Lautenberg. Thank you very much.
Senator Boozman.
Senator Boozman. Thank you, Mr. Chairman.
Ms. Ferro, what were the results of the cost-benefit
analysis, of the safety benefit versus the cost of the proposed
change in the hours of service rules?
Ms. Ferro. Senator, that, we had several ranges based on
the different assumptions of minimum amounts of sleep,
moderate, and maximum, and I do not have the numbers in front
of me. I'd be pleased to submit them for the record.
Senator Boozman. Was it positive?
Ms. Ferro. The overall cost-benefit analysis did come out
positive in the context of both the tangible costs to industry,
and offset by the savings of lives under the hours-of-service
rules. So, yes, across the range of those options, it was a
positive outcome in terms of beneficial.
Senator Boozman. OK. I'd like to have a copy of those----
Ms. Ferro. I'd be pleased to provide a copy.
Senator Boozman. For sure.
Mr. Hart, you mentioned fatigue accidents. Those
accidents--were the people that were fatigued, were they
following in the current hours of service requirement?
Mr. Hart. I would have to get back to you with specifics.
But in general, the answer is no.
Senator Boozman. OK. So, if you change the hours of
service, those individuals were cheating anyway.
Mr. Hart. My understanding is that in most cases they were
fatigued for a number of reasons. But one of the reasons was
not following the hours of service.
Senator Boozman. Very good. Thank you.
Ms. Ferro, in the IG report, they noted that there was an
issue in the states, with the states stopping people, the
Mexican truck drivers, and having violations, and then it
wasn't getting reported back to you so that you would have that
on record and could do something about it. And I think they
recommended that something be done about that.
Can you tell us what has been done?
Ms. Ferro. Absolutely. Through our relationship with the
states as grantees in the Motor Carrier Safety Assistance
Program, we encourage all states to post moving violation
convictions of foreign drivers to the host record, so that
driver would, in fact, have a violation and conviction posted
and it would come through our Commercial Driver License
Information System. It's voluntary today.
In the context of that recommendation and our own
recognition of the importance of that data, we have proposed in
our technical assistance that it be mandatory, that states be
required to post those convictions.
Senator Boozman. Now, I'd very much like to encourage you
to make this mandatory starting as soon, as quickly as
possible.
I had experience with an interesting thing early on, when
meth was such a problem. Arkansas had a tremendous problem, and
yet it was not on record because it took a long time to fill
out the forms and send it to the government that there was a
problem. And so the government, the Feds, looked at that and
said, ``Well, you don't have a problem because it wasn't
reported.'' And so, I really would encourage--in fact, I'd
insist that we do that.
Ms. Ferro. Good.
Senator Boozman. If not, it's not going to get done,
because those people, like your agency, are working very hard,
and understaffed. And so, again, I think that's very, very
important.
Ms. Ferro. I appreciate that support.
Senator Boozman. So, will you follow up with that? And, I'd
like two things.
Ms. Ferro. Yes, sir.
Senator Boozman. The results of the cost analysis.
Ms. Ferro. Mm-hm.
Senator Boozman. And then, two, will you follow up with a
plan on getting the other implemented?
Ms. Ferro. Oh, absolutely. In terms of the conviction
reporting? Yes.
Senator Boozman. Yes.
Ms. Ferro. And the value----
Senator Boozman. Not just reporting, but----
Ms. Ferro. Mandatory.
Senator Boozman.--the, mandatory with teeth in it.
Ms. Ferro. Yes. We'll highlight that and forward that to
your committee, to your staff.
Senator Boozman. Thank you.
Ms. Ferro. Thank you.
Senator Boozman. Thank you, Mr. Chairman.
Senator Lautenberg. Thank you.
Senator Snowe.
STATEMENT OF HON. OLYMPIA J. SNOWE,
U.S. SENATOR FROM MAINE
Senator Snowe. Thank you, Mr. Chairman. And thank you for
allowing me to participate in this hearing, even though I am
not a member of this subcommittee. I appreciate it very much.
Ms. Gillan, I wanted to discuss comments raised in your
testimony, because truck weights are a critical issue for my
state, and presumably other states in this country. And it's
been a longstanding issue that is of paramount concern to our
state, to truckers, to industry, and to State government
officials, including the Governor and the Congressional
delegation. And that's why Maine had a pilot program, as you
know, and it operated for a year, in 2009.
You indicated in your statement, and I'd like to know on
what you based your assessment, of Maine's pilot program that
underscored concerns about safety. Because the Maine Department
of Transportation report concluded otherwise. I know you do it
on the basis of more trucks on the road. That may be true. But
the question is, on which roads? And, unfortunately, for Maine,
what's happening is, all of these trucks are now ending up on
secondary roads and it's proven to be a real hazard.
I've been fighting this issue for a long time in this
committee. And I'll tell you, it is an issue about which
truckers in Maine feel very passionately, because it's a very
dangerous issue. We have had accidents in some of the
communities back in the last few years because these trucks are
present on secondary roads when they should be on the
Interstate.
To give you an example; in Maine we can have a truck
traveling local roads, passing nine schools, more than 3,000
homes, through hundreds of intersections. A similar route on
the Interstate would have a truck pass 32 controlled access
ramps and exactly zero homes and schools.
Now, the Maine Department of Transportation said there were
14 fewer crashes--a 10 percent improvement--involving six-axle
trucks--because that's what we're talking about, six-axle
trucks, which are even safer because of the weight dispersion
and the extra brake system--on all Maine roads, due to
increased truck traffic on the safer roads, which is the
Interstate, there were 10 fewer crashes on the Interstate
involving six-axle trucks, possibly due to heightened safety
awareness for both trucks and cars. There were four fewer total
crashes on secondary roads, which is a positive result, because
we're seeing all of these trucks rumbling through some very
small towns, on narrow roads, and it makes it very hazardous in
these communities.
Even with the increased truck traffic on Maine's Interstate
system, during the pilot project there were no fatalities on
this safer road, either in 2009 or during the pilot in 2009-
2010.
Now, your comments reflected, you were referring to
combination trucks. We don't allow combination trucks in Maine.
And we don't allow them on State roads. Also, the fact that the
2000 Federal Highway Administration report entitled,
``Comprehensive Truck Size and Weight Study'' noted six-axle
configurations have less impact on pavements, and trucks
currently using five axles and distribute weight on fewer
points cause greater fatigue.
Those are some of the issues, among others. My concern is
that we have 27 states that already have exemptions, and Maine
desperately wants one above the 80,000-pound limit to travel
the Interstate, because it's safer. And somehow, we've
conflated the notion of what is safe, and what isn't. I would
invite you to come to the State of Maine to watch these trucks
coming through small towns. We have heavy industry. And our
road systems are designed to accommodate that. We used to have
Loring Air Force Base which housed B-52 bombers. We had
numerous other military facilities. We have the pulp and paper
industry. So, that's important to us and our economy.
So, I'm wondering, how we can reconcile some of these
issues. Because it's been going on for so long. I've introduced
a bill that would allow the Secretary of Transportation to have
a waiver authority based on a three-year pilot program within
the state, to certify that it would be safe, so they could
achieve a permanent exemption rather than coming to Congress.
It's not fair to our State of Maine not to be able to have this
exemption.
For example, just to give you an idea, if you're driving a
100,000-pound truck from Gary, Indiana, just outside of Chicago
to Portland, Maine, you'd be forced to unload the additional
weight to continue on the Interstate in Maine, or travel
through the state on local roads. Conversely, you can drive a
truck weighing 90,000 pounds all the way from Kansas City,
Missouri to Seattle, Washington exclusively on the Interstate
system.
That's our challenge. And I have had truckers down here
multiple times for many years, and we're trying to figure out,
what is the best way we can work with you, as a safety
advocate, to understand the challenge that we're facing in our
state in wanting that exemption? Our Department of
Transportation wants it; they've certified it; we've got our
documentation on the pilot program, and all of the evidence
suggests it's all moving in the right direction. It'll take 7.8
million vehicle miles off the roads with this exemption. It'll
save money--$300,000 in rehabilitation of bridges. It would
save more than a million dollars in pavement costs.
So, what could we do to sort through this, and figure out
if we can get to a mutual agreement on what works, and what
constitutes safety?
Ms. Gillan. Senator Snowe, I hate to be on the other side
of a safety issue with you, because we have worked so closely
on so many other issues, like the safety of 15-passenger vans,
and SUV rollover. But, on this one, I think we may have to
agree to disagree.
Advocates for Highway and Auto Safety opposes 100,000-pound
rigs on local roads, on the NHS system, and on the Interstate
system. And there are really important safety reasons.
First of all, 100,000-pound rigs take much longer to stop.
Right now, an 80,000-pound rig takes the length of a football
field to come to a complete stop. A 100,000-pound truck takes
25 percent longer than that.
We also know the argument of the industry, that if we allow
heavier trucks, there will be fewer trucks on the road. And
that has never, ever occurred in the history of the United
States, and it didn't occur in Maine. When we, Daphne Izer,
with Parents Against Tired Truckers, FOIA'd information from
Maine DOT, we found out that there actually was a 300 percent
increase in the number of heavy trucks that were using that
portion of I-95.
The other issue is that bigger trucks are more difficult to
maneuver. They have a higher propensity to roll over, and they
are unsafe. In fatal crashes involving a large truck and a
passenger car, 97 percent of the deaths are individuals in the
passenger cars.
And that's why it's not only Advocates, but we are joined
by the Independent Owner-Operators, and the Teamsters, who are
out there every day driving these big trucks.
There are also infrastructure issues. In some of the
documents that we were able to review, the Federal Highway
Administration raised the issue that there were a significant
number of bridges that will have their factor of safety reduced
significantly with the additional weights. And the issue of
heavy weights on bridges is really of paramount importance. We
saw what happened in Minnesota when the bridge collapsed.
So, there's not only the safety of driving the vehicle, and
its stopping distance, and the ability to maneuver, but it's
also the risk to the public when we allow these 100,000-pound
rigs to be on the interstate, particularly, bridges, when we
have such a tremendous backlog of bridge repair needs right
now.
So, again, we believe that these 100,000-pound trucks, they
don't have any business on the local roads. They don't have any
business on the NHS road. And they certainly shouldn't be on
the interstate. And the public doesn't want them. The trucking
interests are the only ones that want the big trucks.
Recently, we, with the Truck Safety Coalition, did a public
opinion poll. Three out of four respondents don't want bigger
trucks. And the American public will pay with their lives, and
with their wallets by having to do the repair, if we allow
these overweight trucks on all the roads.
Senator Snowe. Well, Ms. Gillan----
Ms. Gillan. And I'm happy to work with you----
Senator Snowe. Well, yes. But, you referred in your remarks
to trucks that are not operating in Maine. And that's the point
here, on the six-axle trucks, first of all. Second of all, it's
a matter of commerce, and when you have a pulp and paper
industry, it does require large trucks. And the question is,
which roads are safer?
There are 27 states that have exemptions currently. And why
is it fair that those 27 states have exemptions, and not the
State of Maine, or any other state that chooses to? Maybe not
every state chooses to. We would like the option, based on the
certification, based on the experience of a pilot program, and
certified by the engineers and other who are in a position to
certify that. That's how my legislation would be crafted. But,
it's a matter of commerce; it's a matter of jobs; it's a matter
of industry.
So, I just would hope that we could compare apples to
apples, and oranges to oranges, when it comes to this issue,
because it is a very important issue to our state. And, you
sound like it's a truckers interest. It's our economic
interests in our state, people desperately holding on to these
jobs that depend on the trucking industry. There's one mode of
transportation. And being on the Interstate system that has
been certified to be safer than on these local roads, that
traverse small communities where we've already had fatalities
as a result. That's the point here. It is a huge safety issue
for us, in the way we look at it and what's happened on the
thousands of miles of roads that we have in our state.
So, I hope that we can continue to have this conversation.
Thank you, Mr. Chairman.
Senator Lautenberg. Indeed. And we thank you for being with
us, even if we might not quite agree on allowing these heavier
trucks on the Interstate highway system. It's my view that
they're not safe on these roads. And that's, that we see, I
think it's fair to say, statistics that support that view. So,
we'd like to not encourage that. And I regret there is any
imposition on the industry that might use them. But the fact of
the matter is that we are, in this committee and subcommittee,
talking about safety and that's our focus.
Mr. Hart, a bus operator that crashed in New Jersey had a
driver safety record worse than 99.6 percent of all U.S. bus
companies, but FMCSA gave the company a satisfactory safety
rating.
Now, the NTSB has recommended that an adverse rating for
either vehicle or driver safety should result in an overall
unsatisfactory rating. Is that, if CSA makes sufficient
progress on this recommendation?
Mr. Hart. Thank you, Mr. Chairman. We're waiting to see
whether the CSA has implemented--and this will be dependent on
the rulemaking yet to be issued--we're waiting to see how FMCSA
addresses that issue. At this point we don't have an answer. We
don't know how it's going to be addressed.
Senator Lautenberg. And, I'll close with this.
Ms. Ferro, the DOT Office of Inspector General found that
FMCSA has chronic problems with data quality accuracy,
timeliness that must be addressed as the compliance safety
accountability initiative is implemented, or else it's not
going to be effective.
What's your agency doing to correct these deficiencies?
Ms. Ferro. In response to that Inspector General report
several years ago, the FMCSA advanced, and Congress enacted, a
Safety Data Quality Improvement Grant Program. It's an annual
$3 million-a-year grant program that we advanced. Through that
program we set certain data quality standards on inspection
reports, fatal crash reports, violation reports. And we rate
states on the integrity of the accuracy, the timeliness of
those reports.
Over the course of this SaDIP program, which is the acronym
for this grant program, the data quality on inspections and
violation and crash reports has improved dramatically. And we
continue to up the bar every year with our state partners.
The, one of the, as, the CSA program that's been referred
to several times this year really is being rolled out in three
components--a system, a process, and then the safety and
fitness determination rule.
The system is available today and the data, and basics or
factors that directly correlate crash risk formulated through a
carrier's violation history, are available today. And we use
them to prioritize who we look at. That data is driven from the
violation and inspection data at the roadside. This is a second
area through which we are continuing to improve the data
quality, through SaDIP, but also through the visibility that
the SMS system is giving to the inspection reports and the data
inquiries--or Data Qs, we call them--that carriers and others
are submitting on that data.
So again, the vast majority of that data is looking very
good. There is always room for improvement, and we have two
core programs that help us advance improvement in that data.
Senator Lautenberg. I thank you. That's an issue, too, that
must be carefully implemented in order to, for all of us to be
doing our jobs.
There is one more question I'd like to ask Mr. Rajkovacz.
Most truck drivers are paid by mile, not by the hour. If
they're delayed in loading their trucks, they have a strong
incentive to stay on the road longer and then violate hours of
service rules. How do we reduce this incentive for truckers to
stay on the road longer, even when they may be fatigued?
Mr. Rajkovacz. That's a $64,000 question. That's correct,
that most truckers are paid basically piece work, by the load,
by the mile; nothing by the hour. And that's what ends up
creating the reverse incentive that you hide a significant
amount of your on-duty not driving time. So often, when we have
a conversation about hours of service and fatigue, everybody
seems to one-dimensionally look at it as on-duty driving time.
There's this whole universe of on-duty not driving. And as long
as the driver is paid nothing for that, he is not incentivized
to ever report that. It is financial suicide. I said that in my
written comments.
That's how I lived for decades. That's a system that we've
created in this country. Have some couriers dealt with that?
Union carriers pay by the hour. They don't have a problem with
that. It is a significant issue that does compromise safety.
EOBRs aren't going to solve that problem. They're not going to
deal with it.
Senator Lautenberg. They may not solve the problem. What,
then, can be done about it?
Mr. Rajkovacz. There are those, certainly, hypothetically,
that think that this is an area that perhaps the Federal
Government actually should step into and regulate. But,
obviously, there's a significant amount of lack of interest in
the Government getting involved in economic matters like
contracting.
It, in some respects, is a Catch-22, for everybody. How do
you do something where, right now the supply chain's getting
something for nothing? The, you know, the free market emphasis
is on the word ``free'' right now when it comes to drivers'
time.
And, you know, I entered the industry in 1977, when we had
a federally mandated detention policy. And there are those who
didn't think it worked real well. It worked real well for me,
hauling beer out of the breweries in Milwaukee. And that
expired, I believe, in 1982. Why is it the driver's
responsibility to eat that time? We have a very--as efficient
as trucking is, this is one of the biggest inefficiencies in
our supply chain.
You know, just hypothetically, if somehow we dealt with it,
imagine how many less trucks we'd even need in the highway to
haul the existing amount of freight. I just talked with two of
our members last week--for four pallets and six pallets,
respectively, spent over 24 hours at a dock in Los Angeles
after they showed up on time. Nobody cares.
Senator Lautenberg. Mr. England, do you want to comment?
Mr. England. Yes, I'd gladly respond to that.
Senator Lautenberg. I'd be surprised----
Mr. England. I'm a fellow CDL holder, by the way.
But here's my contention. With the mandating of electronic
logs, and with strenuous auditing of falsification, these
issues can be overcome. When the DOT comes in and audits us,
they look for falsification. They compare times at which a
truck arrived at a loading facility, the times they left, and
so forth. But the job of doing that becomes tremendously eased
with the advent of the EOBR.
And I think we all want the same thing here. We want that
driver not being overworked. We want him to comply with the
hours of service. And the electronic log is a tremendous tool
in ensuring that that happens.
Ms. Gillan. Senator Lautenberg?
Senator Lautenberg. Yes.
Ms. Gillan. I was wondering if I could just add something.
Because earlier, in some of the question and answers, there was
a lot of discussion about the hours of service rule, and I
really feel compelled to state that the reason that the hours
of service rule is being revised right now is not because of
some frivolous exercise by the Department of Transportation.
It's because two U.S. Court of Appeals back-to-back
unanimous decisions overruled that hours of service rule,
because it was not based on science, and it was not based on
the research that shows that truck drivers are tremendously
fatigued, as well as all workers, when they're putting in these
extraordinary hours of work. And the research shows that after
the eighth hour of driving, the risk of a truck crash increases
dramatically.
The Bush administration issued a rule that, even though
truck driver fatigue was a major problem, would significantly
increase the number of hours that a truck driver could drive
during the week. They increased it by 25 percent.
So, this is the reason that revising this hours-of-service
rule is so important. And I know that in the last Congress you
chaired a hearing on this. But, this is really an important
rule that will do a great job in advancing safety, as well as
saving lives, if we look at that. And we have the research that
shows that the current hours-of-service rule is really an
invitation to fatigue for truck drivers around the country.
Thank you.
Senator Lautenberg. Thank you.
Is this a battlefield of sorts between safety and driver
income? Anyone want to pass an opinion on that? That is a
challenge, obviously. I mean, if safety is our mission--it has
to be our mission. What's the consequence of that if the system
was changed? I'm not talking about injecting about injecting
the Federal Government into that part of the decisionmaking.
But, what, is it a case of the seesaw being tipped one way,
without giving respect or response to how would the drivers
feel about this?
Mr. England. I'll comment on that. I would just say that if
these changes are implemented, the hours of service
regulations, a driver is going to make less. And, in a word, to
keep those drivers in our industry, we will need to pay them
more. And that's a cost, obviously, that will be passed on to
the consumer ultimately.
Do you want to say something?
Senator Lautenberg. No. It's just, to say, trying to keep
our program focused. What's the price of letting these hours be
ever longer, and the consequences? We agree that driver fatigue
is a significant factor in having a safe operation. So, it's a
dilemma. And how you resolve it is an important question that
I'm sure your industry and--are qualified drivers easily
available now, considering that the job market is as tough as
it is? Does that say there are people lined up wanting to come
in and----
Mr. England. No. Absolutely not. It's, obviously, as the
economy continues to improve, then we have the ever-increasing
problem of finding enough drivers to drive the trucks. One good
thing about the fact that our economy has sort of, is ramping
up rather slowly, is that that's helped with that problem. But,
ultimately, as the economy heats up again, we have a hard time
getting and keeping enough drivers in the industry.
Senator Lautenberg. So, well, I'll leave you, with all of
the experience that you have, to solve the problem. Our
objective is a safer condition for the citizens in the country.
Now, it's said that, all right, if we make it tougher, make
it more difficult to maintain reasonable conditions for
drivers, that they're going to make less money, and therefore,
it follows that casualties might continue to stay at a higher
level than they should be.
Thanks, everybody. I'll leave this question now to be
resolved in future discussions.
Thank each one of you for your excellent testimony.
And with that, this hearing is adjourned.
[Whereupon, at 4:05 p.m. the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Claire McCaskill to
Hon. Anne S. Ferro
Question 1. Concerns have been raised about the amount of time that
truckers are sometimes detained and loading and unloading facilities.
This can affect hours of service requirements and the timely movement
of goods. Do we have any research indicating how much time truckers
spend being detained at loading and unloading facilities?
Answer. The FMCSA does not have research data concerning the time
truck drivers are detained at loading and unloading facilities.
However, the Agency is planning to initiate a study in FY 2012 in
response to the United States Government Accountability Office's (GAO)
January 2011 report, ``Commercial Motor Carriers: More Could Be Done to
Determine Impact of Excessive Loading and Unloading Wait Times on Hours
of Service Violations'' (GAO-11-198). The report examines the impact of
excessive detention time on the ability of drivers to comply with
FMCSA's hours of service (HOS) regulations. The FMCSA study could
potentially help the Agency estimate the detention time at loading and
unloading facilities.
Question 2. I have previously stated that we should explore paying
truck drivers by the hour rather than by the mile. I know that this
would be a big change but it could eliminate some of the problems that
are currently created by excessive detention time. Moreover, paying
truckers by the hour could make the roads safer if drivers are not
driving at excessive speeds to make up distances lost by detention
time, traffic, or other issues. How would changing the compensation
structure address detention time? If drivers are paid by the hour, will
it bring about any other benefits within the industry? Conversely, what
are the potential problems that could be created by changing the
compensation structure?
Answer. The FMCSA does not have research data concerning driver
compensation and its impact on detention time and overall safety. Many
drivers, and most over-the-road drivers employed in the long-haul
industry, are compensated on a per-mile basis rather than a per-hour
basis. In addition, compensation often extends to payment of a
percentage of freight revenue, which is generally determined by a
combination of market factors such as weight, distance, and commodity
type. The University of Michigan Trucking Industry Program (UMTIP)
conducted a truck driver survey and found that 67 percent of all over-
the-road drivers earn mileage-based pay and 87 percent of these drivers
earn either mileage-or percentage-based compensation. In early FY 2012,
the Agency is initiating a study to evaluate the impact of compensation
on commercial vehicle safety. This study will collect information
regarding detention times and determine which drivers are compensated
for detention time. The causes of detention time are, however, very
complex and are likely highly influenced by the actions of shippers and
receivers and whether they are required to provide the motor carrier
detention pay. Once the research has been conducted the Agency will
have a better understanding of the issue of driver compensation.
______
Response to Written Questions Submitted by Hon. Amy Klobuchar to
Hon. Anne S. Ferro
Question 1. Administrator Ferro, on the same day Jacy Good
graduated from college in 2008 her car was struck by a tractor-trailer
that had swerved to miss a teen driver running a red-light because he
was distracted by his cell phone. Jacy Good survived, but her parents
died that night. Jacy now speaks to high school students and recently
joined you at an event to highlight the dangers of distracted driving
among novice drivers. Tragic stories like this are why Senator
Gillibrand and I introduced the STANDUP Act, which requires states to
adopt graduated drivers license programs that limit cell phone use for
novice drivers, preventing crashes like the one that killed Jacy's
parents. In December, FMCSA launched an effort to curb hand-held use of
cell phones for truck drivers. What has been the response by industry?
Answer. The legislation you introduced would help to ensure that
young drivers are more aware of the dangers of distracted driving. Upon
implementation by the States, the legislation would provide a means for
State and local enforcement officials and State licensing agencies to
take action against the unsafe practice of distracted driving.
Secretary LaHood's campaign to raise awareness of this critical
issue is producing results, not only among State legislatures but also
with drivers of all kinds of vehicles. Federal legislative efforts
would require the States to take action.
With regard to FMCSA's rulemaking concerning hand-held cell phones,
motor carrier stakeholders (including truck drivers) generally support
efforts to limit or restrict the use of handheld wireless telephones.
FMCSA has reviewed the docket comments responding to its proposed rule
and expects to issue a final rule later this year.
Question 2. Administrator Ferro, motor carriers usually use large
vehicles that are not responsive to quick changes in direction, and a
novice distracted driver may not recognize a dangerous situation until
it is too late. Will preventing hand held cell phone use of drivers in
trucks and buses and passenger vehicles help prevent these types of
situations?
Answer. Prohibiting the use of hand-held wireless telephones would
address an important source of distraction and help to prevent some of
the crashes attributable to driver distraction. Coupled with increased
public awareness on this issue, we believe Federal and State laws and
regulations would have a highly beneficial effect. FMCSA has completed
its review of the public comments to its proposal to ban the use of
hand-held wireless telephones by truck and bus drivers and expects to
issue a final rule later this year.
______
Response to Written Questions Submitted by Hon. John Thune to
Hon. Anne S. Ferro
Question 1. As you know, in May the GAO released a report, Improper
Motor Carrier Grant Obligations, detailing $23 million in errors that
occurred during FMCSA's implementation of the Commercial Vehicle
Information Systems & Networks (CVISN) program. Based on FMCSA's
approval, numerous states, including my home state of South Dakota,
began implementation of the CVISN plan. For South Dakota this meant
spending almost $1 million in funds that they believed would be
reimbursed by FMCSA. I am now told that FMCSA is asking for states to
``deobligate'' these grants and take the loss even though the error was
made by FMCSAs.
Can you explain how FMCSA incorrectly approved this $23
million in grants?
Do you think it is fair for states, many who are faced
with serious budget shortfalls, to take the financial hit for a mistake
that FMCSA made?
Will you pledge to fix the error impacting South Dakota?
What steps has FMCSA taken to ensure a similar situation
does not occur in the future?
Answer. Can you explain how FMCSA incorrectly approved this $23
million in grants?
FMCSA violated its statutory authority in Section 4126, Commercial
Vehicle Information Systems and Networks (CVISN) of the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users (SAFETEA-LU) by obligating funds in excess of the $2.5
million core deployment aggregate cap, obligating expanded funds in
excess of the $1 million annual cap, and obligating expanded funds
before the completion of core deployment. Additionally, FMCSA exceeded
the Agency's contract authority in FY 2007 by obligating CVISN funds in
excess of CVISN's annual contract authority of $25 million. Both the
Agency's internal review and externally conducted reviews of the CVISN
program in 2010 identified two primary causes of the Agency's CVISN
violations: (1) the Agency's failure to establish and maintain an
accurate core deployment financial baseline and (2) the dissemination
of an erroneous policy in 2008 encouraging States to apply for expanded
deployment funding before completion of core deployment. There is no
evidence of any personal gain or bad faith actions associated with
these violations.
I am now told that FMCSA is asking for states to ``deobligate''
these grants and take the loss even though the error was made by
FMCSAs.
After the release of the GAO report on the CVISN program, the FMCSA
Administrator and Agency invited all CVISN States to participate in a
teleconference regarding the GAO findings and potential resolutions of
the Anti-Deficiency Act (ADA) violations. FMCSA emphasized that most of
the resolutions were State-specific. As a result, the Agency held
additional teleconferences with each of the affected States to discuss
the findings and potential resolutions. These individual
teleconferences were completed on June 15, 2011. During each State
conference call, the States were presented with two options: (1)
deobligate funds not already dispersed or (2) wait for possible
legislative relief. FMCSA did not recommend one option over the other.
Do you think it is fair for states, many who are faced with serious
budget shortfalls, to take the financial hit for a mistake that FMCSA
made?
The FMCSA appreciates that there is a significant impact on the
affected States. However, based on the findings and applicable
legislation, there are limited legal options for resolving the
violations. Although FMCSA was responsible for the errors, the Improper
Payment Act requires states to reimburse funds they received
inappropriately. States may deobligate unexpended balances that
exceeded the statutory caps specified in Section 4126 of SAFETEA-LU.
Additionally, FMCSA provided technical assistance to our House and
Senate Appropriations and Authorizing committees that would provide a
solution for the issues in all CVISN States. If Congress enacted it as
proposed, the technical assistance language would hold the States
harmless for FMCSA's improper grant obligations and reimbursements,
thus allowing the States to retain any obligations or improper payments
awarded in violation of Section 4126 of SAFETEA-LU. Without this
authority, any reimbursement of obligations in violation of Section
4126 of SAFETEA-LU would result in an improper payment.
Will you pledge to fix the error impacting South Dakota?
FMCSA recognizes that South Dakota has expended funds in excess of
the statutory cap based on FMCSA's improper obligations. FMCSA
recognizes that there are no available funds left to deobligate in
order to cure FMCSA's violations. FMCSA is available to provide
assistance on this issue to reach resolution to the extent allowable.
What steps has FMCSA taken to ensure a similar situation does not
occur in the future?
FMCSA initiated a multi-year, multi-phased plan several years ago
to address internal control gaps in its grant making processes. FMCSA
consolidated management of its grant programs under the Agency's Office
of Safety Programs. FMCSA developed a comprehensive grants management
process to include standard policies and procedures, implemented an
electronic grants management system, initiated the development of
comprehensive grants management training, and requested resources to
create an FMCSA grants management office in its FY 2011 and FY 2012
budget requests.
Question 2. Since the Hours of Service rules were last changed in
2003, the trucking industry has seen both the number and rate of fatal
and injury accidents involving large trucks decline to their lowest
levels in recorded history, even as truck mileage increased by almost
10 billion miles.
Why did the FMCSA feel that these hours of services rules
needed to be changed?
When does FMCSA expect to have a final rule published?
When analyzing the rule does the FMCSA take into account
the fact that more stringent rules will mean more trucks on the road to
deliver the current amount of fright being transported?
Answer. The FMCSA initiated the Hours of Service (HOS) rulemaking
to seek public input on potential changes to reduce the prevalence of
fatigue-related crashes involving drivers of property-carrying
vehicles. While the existing rules represent a significant improvement
over the requirements that were in effect prior to the Agency's 2003
Final Rule, FMCSA determined that a new rulemaking was appropriate
based on research data and information reviewed since the publication
of the 2003 Final Rule, and on input from the Agency's Motor Carrier
Safety Advisory Committee. The Agency anticipates issuing a final rule
in October 2011.
With regard to the question about the rulemaking's impact of the
trucking industry, the Agency's regulatory analyses includes
consideration of whether the proposed changes would result in carriers
being forced to hire more drivers and purchase more trucks to deliver
the current amount of freight being transported on the Nation's
highways. The preliminary analyses indicate the safety, health and
economic benefits for the proposed rule exceed the economic costs.
BACKGROUND: The regulation of hours of service for the motor
carrier industry has been a controversial subject. Two final rules
issued previously by FMCSA, pursuant to Congressional direction, were
challenged in litigation and overturned, at least in part.
The first rule, issued in 2003, was vacated in its entirety by the
U.S. Court of Appeals for the D.C. Circuit in 2004 because the Agency
had not addressed the issue of driver health. Congress restored the
vacated rule for a year, allowing FMCSA to produce a new rule in 2005,
which discussed driver health at length.
On July 24, 2007, the D.C. Circuit vacated portions of the second
rule. Specifically, the Court indicated the Agency did not provide an
opportunity for public comment on the methodology of its driver-fatigue
model and failed to explain certain elements of the methodology. It
vacated two features of the rule dependent on that methodology, as used
in the cost-benefit analysis: a provision that retained the increase in
the daily driving limit from 10 to 11 hours and a provision that
retained drivers' ability to restart the calculation of the 60-or 70-
hour weekly on-duty period, in which driving is allowed by taking at
least 34 consecutive hours off duty (the so-called 34-hour restart).
Both provisions were established originally in the 2003 rule.
The FMCSA responded with an interim final rule in December 2007
that addressed both of the deficiencies identified by the Court, while
retaining the 11-and 34-hour provisions. The Agency published a final
rule in November 2008, making permanent the provisions of the interim
final rule, effective January 19, 2009. Two significant petitions for
reconsideration of the final rule were filed in December 2008. One was
submitted by the Advocates for Highway and Auto Safety (Advocates), the
International Brotherhood of Teamsters, Public Citizen, and the Truck
Safety Coalition, the other by the Insurance Institute for Highway
Safety. The FMCSA denied both petitions in lengthy responses dated
January 6, 2009.
On March 9, 2009, Public Citizen, Advocates, the Teamsters, and the
Truck Safety Coalition petitioned the D.C. Circuit to review the final
rule. The American Trucking Associations filed a motion to intervene on
March 12.
On October 26, 2009, Public Citizen, et al., (the Petitioners) and
FMCSA entered into a settlement agreement under which the petition for
judicial review of the November 19, 2008, Final Rule on hours of
service of drivers would be held in abeyance pending the publication a
Notice of Proposed Rulemaking (NPRM). The settlement agreement states
that FMCSA will publish a Final Rule within 21 months of the date of
the settlement agreement.
The settlement agreement did not include any guidance, directions,
or restrictions on the scope and content of the NPRM that was published
on December 29, 2010, or make any commitments on the outcome of the
notice-and-comment rulemaking process. FMCSA may reconsider provisions
of the August 25, 2005, Final Rule, if the Administrator determines
reconsideration of those requirements may provide an opportunity to put
into place a new HOS rule which promotes the safe operation of
commercial motor vehicles without disrupting the delivery of goods and
services to the American people.
The NPRM proposed seven changes from current requirements. First,
the proposed rule would limit drivers to either 10 or 11 hours of
driving time following a period of at least 10 consecutive hours off
duty; on the basis of all relevant considerations. Second, it would
limit the standard ``driving window'' to 14 hours, while allowing that
number to be extended to 16 hours twice a week. Third, actual duty time
within the driving window would be limited to 13 hours. Fourth, drivers
would be permitted to drive only if 7 hours or less have passed since
their last off-duty or sleeper-berth period of at least 30 minutes.
Fifth, the 34-hour restart for calculations of the maximum weekly on-
duty time would be retained, subject to certain limits: the restart
would have to include two periods between midnight and 6 a.m. and could
be started no sooner than 168 hours (7 days) after the beginning of the
previously designated restart. Sixth, the definition of ``on-duty''
would be revised to allow some time spent in or on the CMV to be logged
as off duty. Seventh, the oilfield operations exception would be
revised to clarify the language on waiting time and to state that
waiting time would not be included in the calculation of the driving
window.
On February 17, 2011, FMCSA held a Public Listening Session to
solicit comments regarding the HOS NPRM. The session was webcast for
Internet participants, and telephone call-in opportunities were
provided. On the same day, FMCSA conducted an Internet Question and
Answer Forum to receive additional on-line comments.
On May 9, 2011, FMCSA published a notice of availability of four
additional research reports concerning fatigue and commercial vehicle
drivers. These studies had not been completed at the time the NPRM was
published in 2010. The Agency requested public comment on the research
reports with a deadline of June 8 for the submission of comments.
On May 20, 2011, the settlement agreement was amended; FMCSA now
intends to publish a final rule on or before October 28, 2011. The
draft final rule is currently under review in the Office of the
Secretary.
______
Response to Written Question Submitted by Hon. Roger F. Wicker to
Hon. Anne S. Ferro
Question. FMCSA has issued a rulemaking that would require trucking
companies in the United States to install Electronic On-Board
Recorders, or EOBRs, on all of their vehicles. The cost of installation
would be the responsibility of individual carriers. Yet at the same
time the Federal government has agreed to finance EOBR installation on
Mexican trucks operating in the United States. Isn't such an
arrangement unfair to U.S. carriers?
Answer. Before initiating this program, Secretary LaHood engaged
members of Congress and other stakeholders for ideas and input for an
improved Cross-Border Long Haul Trucking program. FMCSA used that
information to develop a more robust program that is built on the
highest safety standards. As a result of the Congressional feedback,
FMCSA included a provision requiring Mexican trucks to be equipped with
electronic monitoring devices to allow DOT to track the vehicle and
investigate any hours of service or cabotage concerns. Stakeholders
felt strongly that we include this as an element of the new phased-in
program.
These devices are not currently required for United States carriers
and are not a cost of doing business in the United States. The EOBRs
are an additional safety measure specifically for the Cross-Border Long
Haul Trucking program. In order to have access to the cabotage and
hours of service information, therefore, DOT needs to own the
electronic equipment. The estimated cost of this equipment equates to
less than 0.1 percent of the annual tariffs that the Government of
Mexico was legally entitled to affect under NAFTA.
If the EOBR final rule is published and implemented during this
pilot program and EOBRs are required for U.S. carriers, we will require
the Mexican companies to provide their own equipment.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Daniel England
Question 1. Concerns have been raised about the amount of time that
truckers are sometimes detained and loading and unloading facilities.
This can affect hours of service requirements and the timely movement
of goods. Do we have any research indicating how much time truckers
spend being detained at loading and unloading facilities?
Answer. I share the concern about my drivers being detained
unreasonably when loading or unloading. For shippers where that has
been an issue or where we foresee that may be an issue, my company
negotiates detention charges. As I testified, we compensate our drivers
for detention time, regardless of whether the customer pays the
detention charges or not.
As you may be aware, the Government Accountability Office (GAO)
recently published a report on its investigation into the impact of
excessive loading and unloading wait times on hours of service
violations. The January 2011 report generally concluded that FMCSA does
not collect data to assess the extent to which detention time truly
contributes to hours of service violations and that further research is
necessary, noting that detention could be just one of many factors that
contribute to these types of violations. Specifically, GAO stated,
``[T]here are no data available that can provide any definitive
information on how often [detention time] occurs, how long detention
time lasts, or what types of carriers or facilities experience the most
detention time.'' In response to the GAO inquiry, FMCSA indicated that
it planned further research in the area.
With the increased implementation of technology, carriers have the
capacity to better track the time their drivers spend waiting for
loading and/or unloading. This data is helpful in negotiations with
shippers and helps carriers identify problem shippers with whom they
may not want to do business.
ATA agrees with the GAO recommendation that obtaining a ``clearer
industry-wide picture about how detention time contributes to hours of
service violations [w]ould help FMCSA determine whether additional
Federal action might be warranted.'' ATA notes, however, that
conducting a sound study is fraught with issues, such as agreeing upon
what constitutes detention time (an issue identified by GAO) and
determining the causal link to hours of service violations (as opposed
to delays caused by weather, congestion or some other reason). ATA
further agrees with GAO's cautionary note that ``Any additional Federal
actions to address issues associated with detention time beyond hours
of service would require careful consideration to determine if any
unintended consequences may flow from Federal action to regulate
detention time.''
Question 2. I have previously stated that we should explore paying
truck drivers by the hour rather than by the mile. I know that this
would be a big change but it could eliminate some of the problems that
are currently created by excessive detention time. Moreover, paying
truckers by the hour could make the roads safer if drivers are not
driving at excessive speeds to make up distances lost by detention
time, traffic, or other issues. How would changing the compensation
structure address detention time? If drivers are paid by the hour, will
it bring about any other benefits within the industry? Conversely, what
are the potential problems that could be created by changing the
compensation structure?
Answer. As discussed in the answer to your first question, ATA
agrees with the GAO conclusion that there currently is not sufficient
information to reliably understand the problems that may be created by
excessive detention time. Therefore, it seems premature to consider
changing longstanding, well-settled compensation practices in the
trucking industry as part of an effort, well-intentioned as it may be,
to improve safety. In the absence of data demonstrating otherwise, ATA
views detention time as an economic matter between a carrier and its
customer(s) that is not amenable to a one-size-fits-all regulatory
mandate.
Trucking is a very competitive business with very narrow profit
margins. Motor carriers generally must find ways to reward and
encourage initiative and hard work by their employees, including
drivers. In order to do so, motor carriers have employed a wide variety
of compensation systems. It would not be fair to characterize today's
compensation structure for drivers as a binary choice between per hour
or per mile. Attached, please find a chart summarizing some of the most
prevalent methods carriers who participated in ATA's Driver
Compensation Study utilize to compensate drivers. Oftentimes, carriers
utilize a combination of the approaches depicted.
Over the years, payment by the mile and pay based on a percentage
of the load revenue have become effective tools in getting drivers to
understand the value of their time and to work as efficiently as
possible. And, it's important to add that over time, trucking has also
become remarkably safer in its operations, no matter which compensation
system has been employed. Truck driving also requires a significant
amount of non-driving work (loading and unloading, fueling, equipment
inspection, and handling of paperwork). A driver paid by the hour has
no incentive to minimize those non-driving times and in fact, is
rewarded by dragging them out and getting paid for additional hours.
Consequently pay systems based on some indicia of actual work
accomplished (miles driven or percent of load revenue) encourages
efficiency and allows trucking company's to pass along the benefits of
these efficiencies to their shipping customers.
Since detention time is an economic issue between the carrier and
its customer(s), we do not see how changing the basis of compensation
for drivers from per mile to by the hour would address detention time.
Changing the compensation structure, by potentially adding more costs
for the carrier, may further incentivize carriers to seek charges from
shippers but the need to efficiently utilize a carrier's assets
provides incentive enough to address the issue where there is a
detention problem. The current hours of service rules, which became
effective in 2004, already provide an incentive. These rules addressed
detention head-on by reducing the maximum allowable on-duty time from
15 non-consecutive hours to 14 consecutive hours, and requiring that
all on-duty time count towards one's hours of service. Under the old
rules, drivers could extend their work day well beyond 15 hours to take
into account time spent waiting at pick up and delivery locations, and
other non-driving activity. This longer on-duty period under the old
hours of service rules facilitated driver fatigue and safety problems.
This is no longer the case today. Many shippers, recognizing that all
of a driver's time is now ``on the clock,'' have worked with their
partner carriers to improve scheduling and loading and unloading
procedures, thereby reducing detention times. These changes have also
made it easier for many, if not most carriers, to negotiate charges for
excessive detention time.
There are a number of potential negative consequences to switching
from per mile to an hourly compensation model. As mentioned above,
there would no longer be an incentive for a driver to efficiently do
the non-driving work. In fact, the incentive for a driver seeking to
maximize his/her wages would be to extend the on-duty time to all 14
hours and utilize all 11 hours of permissible driving time on a routine
basis. This would be a departure from current practice and could have a
negative effect on safety. A driver with no incentive to be efficient
would likely increase carriers costs--costs that would likely
ultimately be borne by the consumer.
ATA's members are committed to safety and compliance and invest
significant dollars and time in training to instill a culture of
adherence to the safety rules. Tougher driver training standards,
rigorous enforcement of hours of service rules, and the development of
a sincere safety culture within fleets have a far more direct impact
than any one compensation model. Further, ATA supports deployment of
speed governors on trucks set to limit speeds at 65 mph and, with some
common sense protections, the use of electronic logging devices. These
tools can better help ensure that carriers and drivers do not sacrifice
safety in exchange for meeting customer-driven deadlines resulting from
today's just-in-time, low inventory environment. These approaches are
proven to improve safety without taking from the trucking industry and
our economy the efficiencies that are associated with various pay
systems that reward work accomplished and not simply time spent
employed--regardless of how efficiently.
______
Response to Written Question Submitted by Hon. Roger F. Wicker to
Daniel England
Question. In the hearing, you noted that detention time is a
tremendous problem. What is your recommendation for an ideal solution?
Answer. First, I would like to clarify that I did not indicate that
detention time is a ``tremendous problem''. In response to your
question about detention at the hearing, I stated that the current
understanding is detention is an economic issue--not a safety issue. As
I responded, it is our policy at C.R. England to pay drivers for time
detained regardless of whether our customer pays us a detention charge.
I also indicated that I believe detention should be negotiated between
the shipper and the carrier, not addressed through regulation.
Detention is not a one-size-fits-all issue that can or should be dealt
with through a regulatory mandate.
This view is underscored by the findings of a January 2011 report
on detention time by the Government Accountability Office (GAO). The
report noted that FMCSA ``does not collect . . . information to assess
the extent to which detention time contributed to [hours of service]
violations,'' and further noted that FMCSA's ``ability to assess the
impact of detention time on hours of service violations, which may
affect driver safety, is limited.'' The GAO recommended obtaining a
``clearer industry-wide picture about how detention time contributes to
hours of service violations [w]ould help FMCSA determine whether
additional Federal action might be warranted.'' We agree with the GAO
report as well as its cautionary note that ``Any additional Federal
actions to address issues associated with detention time beyond hours
of service would require careful consideration to determine if any
unintended consequences may flow from Federal action to regulate
detention time.''
The current hours of service rules, which became effective in 2004,
addressed detention head-on by reducing on-duty time from 15 non-
consecutive hours to 14 consecutive hours, and requiring that all on-
duty time count towards one's hours of service. Under the old rules,
drivers could extend their work day well beyond 15 hours to take into
account time spent waiting at pick-up and delivery locations, and other
non-driving activity. This longer on-duty period under the old hours of
service rules made for increased driver fatigue and safety problems.
This is no longer the case. Many shippers, recognizing that all of a
driver's time is now ``on the clock,'' have worked to improve their
scheduling and loading and unloading procedures.
Unlike other factors that limit driver productivity over which the
carrier has no control, such as the latest proposal to change the
hours-of-service regulations and congestion on our nation's
deteriorating highway system, detention is an item carriers have some
control over. Carriers can and do sit down with their shipper customers
and negotiate charges for unreasonable detention time. Carriers are
best positioned to determine what makes sense for them from a business
standpoint, taking into account the frequency that unreasonable
detention time occurs, the causes for such detention and other
surrounding circumstances.
While the solution may not be ``ideal'' to some, the consequences
of the government re-regulating the economic relationship between
shippers and carriers, particularly in the absence of research or data
demonstrating a relationship with safety compliance or performance,
will likely be far worse for carriers, the shipping community and
ultimately for consumers. That said, if sound scientific studies
determine there is a causal connection between unreasonable detention
time and increased violations of the safety regulations, ATA would
reconsider the appropriateness of government intervention. FMCSA has
indicated plans to conduct relevant studies. Until the picture is
clearer, a government mandate would be proffering a solution without
knowing the problem, if any.
______
Response to Written Questions Submitted by Hon. Claire McCaskill to
Joe Rajkovacz
Question 1. Concerns have been raised about the amount of time that
truckers are sometimes detained and loading and unloading facilities.
This can affect hours of service requirements and the timely movement
of goods. Do we have any research indicating how much time truckers
spend being detained at loading and unloading facilities?
Answer. Much of the larger motor carrier community opposes any
Federal intervention attempting to address the complications associated
with excessive detention because they believe the market place is
capable of correcting the problem on its own. These same carriers
openly support significant and costly regulatory mandates so that they
can ``level the playing field'' to address the perceived competitive
advantage small businesses often have over larger motor carriers. While
OOIDA opposes the majority of these efforts, in the case of detention,
we support Federal intervention because the marketplace cannot address
this problem effectively.
In part, although studies have repeatedly acknowledged that
excessive detention is problematic, there is a reluctance to recognize
that the problem exists and it is having a deleterious effect on
safety. For example, during the hearing, ATA Vice Chairman, Dan England
stated that a GAO study \1\ on detention published earlier this year
showed no nexus between detention issues and highway safety. This is
inaccurate. In the ``Highlights'' (GAO-11-198) section of the study,
the following paragraph shows that there is a possible correlation:
---------------------------------------------------------------------------
\1\ Commercial Motor Carriers: ``More Could Be Done to Determine
Impact of Excessive Loading and Unloading and Unloading Wait Times on
Hours of Service Violations,'' U.S. Government Accountability Office
(January 2011).
---------------------------------------------------------------------------
The interstate commercial motor carrier industry moves thousands of
truckloads of goods every day, and any disruption in one truckload's
delivery schedule can have a ripple effect on others. Some waiting time
at shipping and receiving facilities--commonly referred to as detention
time--is to be expected in this complex environment. However, excessive
detention time could impact the ability of drivers to perform within
Federal hours of service safety regulations, which limit duty hours and
are enforced by the Federal Motor Carrier Safety Administration
(FMCSA). Emphasis added.
In addition to GAO's recommendation for further study, the FMCSA
has also promised to perform more analysis. Meanwhile, the majority of
the industry (predominately comprised of small-businesses) is left to
fend for itself in a market where they have little or no negotiating
power to secure detention provisions in the contract from shippers,
receivers, and brokers. In contrast, large motor carriers have
considerable leverage in negotiating contracts simply because of their
size and ability to engage in multi-faceted contracts utilizing more
trucks and higher volumes. The marketplace is set up to benefit large
carriers and with the support of technology mandates that would ``level
the playing field'' between small and larger carriers, and clearly
certain special interest groups are fighting to ensure it stays that
way. The argument that the marketplace can correct this and government
should not intrude in the interest of preserving private contracts
shows a lack of understanding of how the trucking industry works.
But, even if detention time is contemplated in a transportation
contract, shippers will often ignore payment of charges and because of
the hyper-competitive market for trucking services, motor carriers will
not press the issue for fear of losing a shipper, therefore the driver
loses out. Bloomberg News reported this dynamic in an article published
on May 18, 2011, ``Truckers' $4 billion of Wasted Time Revives Penalty
Push.''
A Department of Transportation study that surveyed drivers showed
that in cases even when shippers are working to reduce delays,
detention can often run upwards of six to seven hours per day, with
delays totaling upwards of 40 hours per week. The study went on to
highlight cases where at certain locations, such as steel mills,
drivers were routinely delayed from ten to 24 hours per day (Department
of Transportation, Federal Highway Administration, A Qualitative
Assessment of the Role of Shippers and Others In Driver Compliance with
Safety Regulations,''). The GAO study highlighted that almost 90
percent of the 300 drivers they interviewed had been detained long
enough for the detention to have impacted their ability to meet HOS
requirements, which limit drivers to 14 hours on-duty and a maximum of
11 hours driving.
FMCSA issued a report to Congress as required by Section 5503(d) of
the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A
Legacy for Users (P.L. 109-59) (SAFETEA-LU) that estimated the annual
loss to motor carriers from waiting in ports and time spent loading and
unloading at $4 billion annually. The indirect cost and gain to society
by dealing with these inefficiencies was estimated at $6.59 billion
annually. Clearly the ability of the marketplace to self-police itself
in a rational manner is absent; when something is free a market will
use it to excess regardless of the ramifications. The most serious and
hidden ramification is decreased highway safety.
Question 2. I have previously stated that we should explore paying
truck drivers by the hour rather than by the mile. I know that this
would be a big change but it could eliminate some of the problems that
are currently created by excessive detention time. Moreover, paying
truckers by the hour could make the roads safer if drivers are not
driving at excessive speeds to make up distances lost by detention
time, traffic, or other issues. How would changing the compensation
structure address detention time? If drivers are paid by the hour, will
it bring about any other benefits within the industry? Conversely, what
are the potential problems that could be created by changing the
compensation structure?
Answer. In Europe, drivers are paid either a salary (regardless of
time worked) or hourly. Payment methods that could encourage unsafe
driving behavior are not permitted. Clearly, if employee drivers in the
U.S. were paid by the hour, they would feel less compelled to maximize
most of their legally permissible hours for the single task of driving.
In addition to providing FMCSA new authority to address detention's
impacts on safety, there are other steps that can be taken to remove
legal distortions in the market that negatively impact highway safety.
Currently, truck drivers routinely work 70 hour work weeks. This is in
part because of the exemption for truckers from the Fair Labor
Standards Act (FLSA). While this area of law falls outside the
jurisdiction of the Commerce Committee, removal of that exemption would
rationalize the marketplace by placing a premium on any time past 40
hours spent working by employee drivers. Drivers don't chose to work 70
plus hours (when factoring the hidden time spent loading and
unloading), it's a result of market distorting policies such as the
exemption from the FLSA.
By affirmatively addressing this issue, the entire supply chain
would be forced to become more efficient in how they utilize capital
and labor. OOIDA's preference for solving the problem of detention
time, which is Federal legislation setting acceptable parameters for
detention, would not necessarily represent any cost increase for
shippers and receivers. They'd have every incentive to use
transportation resources wisely thus avoiding incurring additional
costs--exactly how a true marketplace should operate.
OOIDA and its members are sensitive to arguments about government
``over-regulation'' of the trucking industry--in fact we are the
leading, and sometimes only, voice in the industry objecting to
unwarranted, counter-productive, and intrusive rulemakings that have
nebulous links to improving highway safety. Paying drivers by the hour
would very likely mitigate any need for many other regulatory mandates
(e.g., reformed H.O.S. regulations, electronic-on-board-recorders, and
speed limiters).
______
Response to Written Question Submitted by Hon. Roger F. Wicker to
Joe Rajkovacz
Question. In the hearing, you noted that detention time is a
tremendous problem. What is your recommendation for an ideal solution?
Answer. Arriving at the ideal solution will take an acknowledgement
that a nexus does exist between highway safety and the wasted and
uncompensated time truckers spend waiting to load and unload at
shipping and receiving facilities. Dealing with the issue will
necessitate some sort of Federal intervention, focused around setting
meaningful but reasonable limits on the time shippers and receivers can
detain drivers, since the supply-chain has proven unwilling to
relinquish its addiction of abusing a truckers time. With few
exceptions, truckers, both drivers and motor carriers, only earn
revenue when the ``wheels are turning.''
There are many hidden direct and indirect costs to society from
abusing trucker's time, and all are negative. These delays at the dock
cost our economy more than $6.5 billion each year in inefficiencies,
but the safety costs are even greater. Fatigue increases as drivers are
coerced into hiding untold hours of uncompensated time in order to save
available hours for compensated activity. As a result of abuses built
into the system, veteran drivers often decide they have had enough and
leave the industry, increasing both driver turn-over and a reliance on
inexperienced replacement drivers, who have three times the crash
risk.\1\ Too often, a significant number of the trucks that should be
on the road are sitting in a shipping or receiving yard, acting as 18-
wheeled warehouses, forcing more trucks onto the road to take up the
slack. Each of these examples has a negative effect on highway safety,
and they all can be tied to the unaddressed inefficiency of detention
time.
---------------------------------------------------------------------------
\1\ American Trucking Association's White Paper on ``Truck Driver
Hours of Service Rules.'' (Page two, first paragraph, enclosed).
---------------------------------------------------------------------------
It is important to note that this tie between detention and highway
safety has been confirmed in the past. Importantly, the link was most
recently confirmed by the Government Accountability Office (GAO) in its
study on detention time released this year.\2\ The Vice Chairman of the
American Trucking Associations stated during the hearing that the GAO
study showed no nexus between detention issues and highway safety. This
is not accurate. Most clearly, the study states that ``excessive
detention time could impact the ability of drivers to perform within
Federal hours of service safety regulations.'' OOIDA hears these
complaints daily. It is a reality of the industry.
---------------------------------------------------------------------------
\2\ Commercial Motor Carriers: ``More Could Be Done to Determine
Impact of Excessive Loading and Unloading and Unloading Wait Times on
Hours of Service Violations,'' U.S. Government Accountability Office
(January 2011).
---------------------------------------------------------------------------
OOIDA and its members are sensitive to arguments about government
over-regulation of the trucking industry--in fact we are the leading,
and sometimes only, voice in the industry objecting to unwarranted,
counter-productive, and intrusive rule makings that have tenuous links
to improving highway safety. However, we believe that government can
play a role in certain areas. In this case, we believe that giving the
Federal Motor Carrier Safety Administration (FMCSA) the power to set
minimum acceptable standards for detaining drivers would not only serve
as an incentive to increase supply chain efficiency, but would also be
the most cost-effective and productive way to reduce commercial motor
vehicle (CMV) crashes and fatalities. Such an action, which should
occur following significant engagement by FMCSA with all segments of
the supply chain, represents a major step forward toward having
effective HOS regulations.
The majority of the industry, which is predominately comprised of
small-businesses, has little negotiating power to insist on equitable
treatment from shippers, receivers, and brokers in the contracting
phase for transportation. Large motor carriers have leverage in their
contracting simply because of their size. This is a tremendous benefit
to them in the marketplace as they negotiate major, national
transportation contracts with shippers.
Even when detention time is contemplated in a transportation
contract, shippers will often ignore payment of contractually mandated
charges. Because of the hyper-competitive market for trucking services,
smaller motor carriers will not press the issue for fear of losing
shipping cliental. Many small carriers, especially one-truck
operations, live load-to-load. If a carrier decides to push a shipper
for payment of detention charges, the shipper will just move on to
another carrier. Bloomberg News reported on this dynamic in an article
published this spring.\3\
---------------------------------------------------------------------------
\3\ ``Truckers' $4 billion of Wasted Time Revives Penalty Push.''
May 18, 2011.
---------------------------------------------------------------------------
The ability of shippers and receivers to pass on the costs of their
inefficiencies to truckers places significant costs on society. FMCSA
estimates the annual loss to motor carriers from waiting in ports and
time spent loading and unloading at $4 billion annually. \4\ The
indirect cost and gain to society by dealing with these inefficiencies
was estimated at $6.59 billion annually. Clearly the ability of the
marketplace to self-police in a rational manner is absent; when
something is free (e.g., a driver's time) a market will use it to
excess regardless of the ramifications. The most serious and hidden
ramification is decreased highway safety, a cost that does not show up
in the balance sheet of a shipper or a receiver but has significant
impacts on the American public.
---------------------------------------------------------------------------
\4\ Motor Carrier Efficiency Study, 2009 Annual Report to Congress.
http://www.fmcsa.dot.gov/documents/congress-reports/MCES-Annual-Report-
January-2011.pdf.
---------------------------------------------------------------------------
By affirmatively addressing this issue through a measured increase
in FMCSA's safety-related authority, the entire supply chain would be
forced to become more efficient in how they utilize capital and labor.
OOIDA's preference for solving the problem of detention time, which is
Federal legislation setting reasonable parameters for detention, would
not necessarily represent any cost increase for shippers and receivers.
They would have every incentive to use transportation resources wisely
thus avoiding incurring additional costs--exactly how a true
marketplace should operate. OOIDA and its members would prefer to never
see a dime in penalties or other costs related to detention paid out.
We simply want the elimination of this inefficiency within the supply
chain because of its impact on highway safety.
As highlighted above, many shippers and receivers and the
associations representing them view detention not as a safety issue,
but as a contractual issue alone with no highway safety implications.
This shows a clear misunderstanding of the important role they play in
ensuring highway safety. This misunderstanding is reinforced when
examining extra contractual policies that encourage unsafe behavior by
truck drivers. Many shippers and receivers across the country have
instituted unilateral, non-contracted receiving policies that assess a
wide assortment of fees on unsuspecting truckers once they arrive with
goods in interstate commerce.
Late arrival fees that amount to hundreds of dollars are
commonplace in certain segments of the transportation industry. They
cause an incredible amount of angst for drivers when they've been
delayed over issues they have no control (roadside inspections, traffic
accidents or road closures, and detention by another shipper or
receiver are just examples), and serve as an incentive for drivers to
engage in unsafe behaviors. Knowing one is facing a fine for ``late
delivery'' or rescheduling to another day causes unsafe driving
practices such as speeding. Yet, these same shippers and receivers who
have instituted these types of receiving policies will not pay a single
dime in detention fees for keeping a driver delayed for innumerable or
take proactive steps to reduce or eliminate driver detention at their
docks.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Jacqueline S. Gillian
Question. Ms. Gillian, as we have discussed, ensuring that new
drivers have the tools and knowledge necessary to be safe on the road
is critically important. Would graduated drivers' license programs,
like those promoted in the STANDUP Act help prevent these kinds of
situations?
Answer. Yes, graduated driver licensing (GDL) programs allow teens
to gain the skills and experience of operating a motor vehicle
gradually by limiting distractions and giving them additional
responsibility at each stage of the process. As a result, young drivers
in GDL programs are less likely to practice unsafe driving behaviors
and are less likely to be involved in fatal crashes. The STANDUP Act
establishes a three-stage licensing process with minimum requirements,
including prohibitions on nighttime driving, passenger restrictions,
prohibitions on non-emergency cell phone use, and sets a minimum age of
16 for issuance of a learner's permit and age 18 for a full license.
Research and experience show that these types of provisions are
extremely effective in reducing the crash risk of new teen drivers, and
the National Transportation Safety Board (NTSB) has placed teen driver
safety on its Most Wanted List and has recommended many of the
provisions in the STANDUP Act for years. For example:
Minimum Age of 16 Years for Learner's Permit--
A study published in 2010 by Traffic Injury Prevention
concluded that raising the learner permit age from 15 to 16
would reduce the fatal crash rate of 15-to 17-year old
drivers by approximately 13 percent.
Nighttime Driving Prohibition--
While only about 15 percent of the total miles driven
by 16-to 17-year-old drivers occurs between 9 p.m. and 6
a.m., about 40 percent of their fatal crashes take place
during these hours, according to a 1997 study published in
the Journal of Public Health Policy.
This provision is supported by NTSB Recommendation H-
93-9.
Teen Passenger Restrictions--
A study published in the Journal of American Medicine
in March 2000 found that driver death rates (per 10 million
trips) increased with the number of passengers in the
vehicle for drivers ages 16 and 17. The highest death rate
(5.61 deaths per 10 million trips) was observed among
drivers aged 16 years carrying 3 or more passengers.
This provision is supported by NTSB Recommendation H-
02-32.
Cell Phone Use Prohibition During Learner's and Intermediate
Phases--
A study released in 2009 by the Virginia Tech
Transportation Institute (VTTI) found that dialing a cell
phone made the risk of a crash or near-crash event 2.8
times as high as non-distracted driving. In addition, an
Australian study published in the British Medical Journal
in 2005 found that cell phone use while driving resulted in
a fourfold increase in crashes. These findings are
particularly dangerous for young drivers, who are both
inexperienced and have the highest reported level of cell
phone use while driving, according to NHTSA.
This provision is supported by NTSB Recommendation H-
03-08.
(Minimum) 6-Month Learner's Permit and Intermediate Stages--
According to the Insurance Institute for Highway
Safety (IIHS), an extended learner's permit period is
essential to provide the opportunity for extensive
supervised on-road practice in a variety of conditions. The
specified minimum length of time for the intermediate phase
is 1 year in Newfoundland; 1 year, 3 months in Manitoba; 1
year, 6 months in the Yukon; and 2 years in Nova Scotia.
The NTSB recommends that teen driver safety programs
include learner's permit and intermediate licensing stages
with mandatory holding periods.
Maintaining Restrictions Until Age 18--
Drivers aged 16-17 years have markedly higher risks
for fatal crashes than older drivers, according to a study
in the Journal of American Medicine in March 2000.
When these provisions are combined into comprehensive GDL laws, the
benefits are outstanding. For example, in 2007, Illinois passed a
comprehensive law that gave teens more time to gain driving experience
while supervised and limited in-car distractions. In the first full
year that the GDL law was in effect, teen driving deaths in Illinois
dropped by over 40 percent.
Unfortunately, not all states have followed the example set by
Illinois and, while most states have some elements of a GDL program,
every state needs to have all key components. Enacting the STANDUP Act
and encouraging state adoption of comprehensive GDL laws is a
commonsense solution to preventing the number one killer of American
teens--motor vehicle crashes.