[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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \3\ H-09-21. To FMCSA: To Develop an evaluation component to 
determine the effectiveness of its New Applicant Screening Program.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \3\ Presentation at 2011 Commercial Vehicle Safety Alliance Spring 
Workshop by Jack Van Steenburg, Director, Office of Enforcement and 
Compliance, FMCSA, April 2011.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \9\ Companion bill in the House of Representatives is H.R. 1619, 
introduced by Rep. James McGovern (D-MA).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.)
---------------------------------------------------------------------------
    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.''
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \62\ 73 FR 73226 (Dec. 26, 2008).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \71\ 76 FR 40436.
    \72\ Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \80\ MCSIA, Sec. 3(2).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.

                                  
