[Senate Hearing 114-92]
[From the U.S. Government Publishing Office]





                                                         S. Hrg. 114-92

                SURFACE TRANSPORTATION REAUTHORIZATION_
OVERSIGHT AND REFORM OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

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

                                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 FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 4, 2015

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation



[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]




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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                   JOHN THUNE, South Dakota, Chairman
ROGER F. WICKER, Mississippi         BILL NELSON, Florida, Ranking
ROY BLUNT, Missouri                  MARIA CANTWELL, Washington
MARCO RUBIO, Florida                 CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR, Minnesota
TED CRUZ, Texas                      RICHARD BLUMENTHAL, Connecticut
DEB FISCHER, Nebraska                BRIAN SCHATZ, Hawaii
JERRY MORAN, Kansas                  EDWARD MARKEY, Massachusetts
DAN SULLIVAN, Alaska                 CORY BOOKER, New Jersey
RON JOHNSON, Wisconsin               TOM UDALL, New Mexico
DEAN HELLER, Nevada                  JOE MANCHIN III, West Virginia
CORY GARDNER, Colorado               GARY PETERS, Michigan
STEVE DAINES, Montana
                    David Schwietert, Staff Director
                   Nick Rossi, Deputy Staff Director
                    Rebecca Seidel, General Counsel
                 Jason Van Beek, Deputy General Counsel
                 Kim Lipsky, Democratic Staff Director
              Chris Day, Democratic Deputy Staff Director
       Clint Odom, Democratic General Counsel and Policy Director
                                 ------                                

      SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT MARINE 
                  INFRASTRUCTURE, SAFETY AND SECURITY

DEB FISCHER, Nebraska, Chairman      CORY BOOKER, New Jersey, Ranking
ROGER F. WICKER, Mississippi         MARIA CANTWELL, Washington
ROY BLUNT, Missouri                  CLAIRE McCASKILL, Missouri
KELLY AYOTTE, New Hampshire          AMY KLOBUCHAR, Minnesota
JERRY MORAN, Kansas                  RICHARD BLUMENTHAL, Connecticut
DAN SULLIVAN, Alaska                 BRIAN SCHATZ, Hawaii
RON JOHNSON, Wisconsin               EDWARD MARKEY, Massachusetts
DEAN HELLER, Nevada                  TOM UDALL, New Mexico
STEVE DAINES, Montana













                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on March 4, 2015....................................     1
Statement of Senator Fischer.....................................     1
Statement of Senator Booker......................................     2
Statement of Senator Nelson......................................    34
    Prepared statement...........................................    34
Statement of Senator Cantwell....................................    37
Statement of Senator Klobuchar...................................    41
Statement of Senator Daines......................................    42

                               Witnesses

Hon. T.F. Scott Darling III, Acting Administrator, Federal Motor 
  Carrier Safety Administration, U.S. Department of 
  Transportation.................................................     4
    Prepared statement...........................................     5
Joseph W. Come, Deputy Principal Assistant Inspector General for 
  Auditing and Evaluation, U.S. Department of Transportation.....    10
    Prepared statement...........................................    12
Susan A. Fleming, Director, Physical Infrastructure Issues, U.S. 
  Government Accountability Office...............................    17
    Prepared statement...........................................    19
Hon. Christopher A. Hart, Acting Chairman, National 
  Transportation Safety Board....................................    23
    Prepared statement...........................................    25

                                Appendix

Response to written question submitted to Susan A. Fleming by:
    Hon. Deb Fischer.............................................    45
    Hon. Kelly Ayotte............................................    45
    Hon. Cory Booker.............................................    45
Response to written questions submitted to Hon. T.F. Scott 
  Darling III by:
    Hon. Richard Blumenthal......................................    46
    Hon. Cory Booker.............................................    48
Response to written questions submitted by Hon. Maria Cantwell to 
  Hon. Christopher A. Hart.......................................    55

 
                         SURFACE TRANSPORTATION
                     REAUTHORIZATION--OVERSIGHT AND
       REFORM OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION

                              ----------                              


                        WEDNESDAY, MARCH 4, 2015

                               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 10:06 a.m. in 
room SD-253, Russell Senate Office Building, Hon. Deb Fischer, 
Chairman of the Subcommittee, presiding.
    Present: Senators Fischer [presiding], Booker, Nelson, 
Ayotte, Daines, Cantwell, and Klobuchar.

            OPENING STATEMENT OF HON. DEB FISCHER, 
                   U.S. SENATOR FROM NEBRASKA

    Senator Fischer. Good morning. The hearing will come to 
order.
    I am pleased to convene the Senate Subcommittee on Surface 
Transportation and Merchant Marine Infrastructure Safety and 
Security for our third hearing entitled ``Surface 
Transportation Reauthorization: Oversight and Reform of the 
Federal Motor Carrier Safety Administration.'' I also would 
like to take a moment to note that this is our first official 
hearing, with Senator Cory Booker as the Subcommittee's Ranking 
Member.
    Welcome, Senator. It is just such a pleasure to have you as 
Ranking Member and I look forward to working with you on these 
issues.
    Our nation's economy depends upon safe, timely, and 
efficient trucking. Nearly 500,000 truckers operate on 
America's roads today. From globally recognized companies to 
smaller owner-operators with a single truck, America's truckers 
move billions' worth of goods and materials each year.
    Established in 2000, the Federal Motor Carrier Safety 
Administration plays a vitally important role in promoting 
safety on our Nation's roads. Along with many of my colleagues 
and the trucking industry, I share the FMCSA's commitment to 
increasing the safety of our Nation's roads. We must never lose 
sight of this goal.
    At the same time, Members of Congress, independent agencies 
including the GAO, the NTSB, and the DOT Inspector General, and 
stakeholders, have expressed serious concerns with the agency's 
flawed approach in a number of areas. Some of the FMCSA's 
actions over the past several years, however, challenge our 
shared goal of enhancing safety.
    For example, FMCSA issued the final 34-hour restart rule in 
2013 with complete disregard for congressionally mandated 
requirements for the study on the rule's impact. When the study 
was eventually issued several months late, the sample size was 
not representative of this diverse industry. In addition, 
serious concerns were raised about the rule's perverse impact 
on safety because, in effect, it pushed drivers onto the roads 
during workers, students, and families' mornings commute.
    In 2014, the GAO investigated the methodology behind 
FMCSA's Compliance, Safety and Accountability program. 
Inaccurate CSA scores, publicly available online, have cost 
company contracts and raised insurance rates; all of this has 
occurred without a clear correlation to increasing highway 
safety.
    When confronted with these findings, FMCSA completely 
disregarded GAO's recommendations to address flaws in CSA's 
implementation. Major stockholders, including law enforcement, 
requested that FMCSA remove CSA scores from the public view.
    As Chairman of this Subcommittee, I intend to author 
legislation to reform the FMCSA and ensure that the process is 
more inclusive of Congress and stakeholders. My efforts to 
reform the FMCSA's regulatory process will include two major 
principles. First, guidance review. FMCSA should complete a 
periodic review of its current technical and programmatic 
guidance and provide transparency to the public on this review.
    Second, regulatory framework going forward. FMCSA must 
conduct a more robust cost-benefit analysis that represents 
carriers from a wide variety of business models. If necessary, 
the agency should also conduct a real-world study of the 
proposed regulation.
    Most importantly, throughout its process, FMCSA must 
demonstrate more transparency to Congress and stakeholders. We 
have to keep that in mind. As the agency is funded through the 
Highway Trust Fund, transparency is particularly important with 
regard to funding for the agency's rulemaking.
    Though the burden of FMCSA's mission is immense, Congress 
must reform the agency to ensure higher levels of trust, 
collaboration, and ultimately more effective regulations to 
keep our Nation's roads safe.
    I would now like to invite my Ranking Member, Senator 
Booker, to offer opening remarks.

                STATEMENT OF HON. CORY BOOKER, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Booker. Thank you very much, Senator Fischer. And I 
am thrilled, frankly, to have you as the Chair of this 
Subcommittee and know that we can have a robust partnership 
because we share so many of the same goals.
    I think any American shares the goals of making the 
trucking industry, which is so vital to our nation's economy, 
not just good and not just meeting minimum standards but, 
frankly, see what we can do to make it even more robust as a 
more central aspect of our economy. And this is why I share 
with my Chair a number of strong feelings, from figuring out 
ways to look at technology and how that can aid and impact and 
improve the industry, to even looking at substantive ways to 
improve our infrastructure so that the industry and consumers 
and all of us reap the benefit.
    Trucking is simply a vital component of our transportation 
network. And I look forward to doing everything possible to 
supporting an effort to make sure that goods are shipped 
efficiently and safely throughout the entire distribution 
network. In my state, alone, it is very critical because it 
provides over 180,000 jobs and contributes upwards of $700 
million in state and Federal taxes. That is a good thing.
    Now, with all of that importance and all the opportunities 
to seize, there are still serious issues about truck safety. I 
am looking forward to the conversation today and working with 
my Chair to get to the bottom of very key issues and questions.
    We all know what happened in New Jersey last year that 
brought a lot of this into the spotlight. It was a high-profile 
accident that occurred, killing one person and injuring several 
others. According to the NTSB preliminary report on the 
accident, the truck was traveling 20 miles per hour over the 
speed limit, and the driver was very close to hitting his daily 
hours of service limit. There have also being reports that the 
driver may have been awake for more than 24 hours. This 
accident brought a flurry of media attention, but we all know 
this is just one example of so many heartbreaking accidents 
that involve trucks and the incredible impact they have in 
devastating people's lives as well as costing the greater 
public tremendous, tremendous cost.
    I live in the Northeast Corridor and this is where New 
Jersey resides. It is home to one of the most heavily traveled 
stretches of highway in the country. Each year, nationally, 
nearly 4,000 people are killed in truck crashes and over 
100,000 people are injured. That is unacceptable to every 
American.
    From 2009 to 2012, truck crashes, crash injuries, increased 
by 40 percent. Increased by 40 percent. And, fatalities 
increased by 16 percent. This is absolutely unacceptable. This 
cannot simply be the cost of doing business. We shouldn't just 
resign ourselves to this harsh and difficult and tragic 
reality. There are steps that we can take, reasonable steps, 
common sense stuff, that we can take to address this. There is 
no place on our roads for tired truckers. And I applaud the 
Department of Transportation for working to overcome, working 
really for over a decade, to overcome the challenges that 
result in fatigue. The rules that we put in place were a 
compromise and a balance of vital safety objectives. I was 
against an appropriation rider that was added, frankly, to 
strip some of those enforcement rules. We must focus on making 
sure that we are doing the right thing for safety.
    I also have other concerns, which I hope we will get to as 
well, on there. Concerns about the longer and heavier trucks on 
a road, the minimum insurance levels, and even driver pay; just 
to name a few.
    But I want to thank the Chair, Senator Fischer, for calling 
this hearing. And I really look forward to hearing from our 
witnesses today about how we can address these issues and 
achieve our common goals and aspirations not only in the Senate 
but, really, aspirations that are common for all Americans.
    Thank you.
    Senator Fischer. Thank you, Senator Booker. I do thank you 
for your comments. You and I share many of the same goals, and 
I know that we can work together and reach a compromise that is 
going to make our roads safer, and also use common sense 
measures so that we don't penalize businesses when they are 
providing a service and are providing a safe service. So I look 
forward to that.
    Senator Booker. For that, I wore my red tie today.
    Senator Fischer. I appreciate that. Go big red.
    [Laughter.]
    Senator Fischer. Next, I would like to welcome the panel. I 
will give the introductions and then we'll start with your 
information that you have for us.
    First, we have Mr. Scott Darling III. Mr. Darling is the 
Acting Administrator of the Federal Motor Carrier Safety 
Administration in the U.S. Department of Transportation.
    Next, Mr. Joseph Come?
    Mr. Come. Correct.
    Senator Fischer. Mr. Come is the Deputy Principle Assistant 
Inspector General for Auditing and Evaluation in the Office of 
Inspector General.
    Ms. Susan Fleming. Ms. Fleming is the Director of the U.S. 
Government Accountability Office.
    And, the Honorable Christopher Hart. Mr. Hart is the Acting 
Chairman of the National Transportation Safety Board.
    Welcome to you all.
    And Mr. Darling, if you could start with your comments 
please?

        STATEMENT OF HON. T.F. SCOTT DARLING III, ACTING

          ADMINISTRATOR, FEDERAL MOTOR CARRIER SAFETY

       ADMINISTRATION, U.S. DEPARTMENT OF TRANSPORTATION

    Mr. Darling. Good morning, Chairman Fischer and Ranking 
Member----
    Oh, I'm sorry.
    Good morning, Chairman Fischer and Ranking Member Booker 
and members of the Subcommittee. It is an honor to be here 
today with you to discuss the GROW AMERICA Act and truck and 
bus safety.
    Safety is the Department of Transportation's top priority. 
Since FMCSA was established 15 years ago, the number of lives 
lost in large truck and bus-related crashes has decreased 24 
percent. While this represents significant progress, more must 
be done. Because this is my first appearance before you, let me 
offer my vision. Simply put, I want every bus driver to 
transport their passengers safely and every truck driver to 
make their runs safely before returning home to their families.
    To achieve FMCSA's safety mission to reduce crashes and 
fatalities involving commercial motor vehicles, we are guided 
by three core principles. First, to raise the bar to entry into 
the motor carrier industry. Second, to require high safety 
standard to remain in the industry. And third, to remove high-
risk carriers and drivers from our roadways.
    We know there is no one-size-fits-all approach to 
overseeing more than a half a million interstate motor carriers 
and almost 6 million commercial motor vehicle drivers that 
operate on our roadways. That is why provisions in the GROW 
AMERICA Act are crucial to enhancing our enforcement tools and 
streamlining our grant programs. We look to these proposals to 
give us, and our law enforcement partners, increased 
flexibility and to tailor funding to conditions on the ground. 
The act builds on FMCSA's continued motor carrier safety 
efforts by one, expanding locations where inspections may occur 
and two, employing more effective investigation methods in 
strengthening the agency's oversight authority.
    The GROW AMERICA Act will also allow us to prosecute motor 
carriers that knowingly and willingly violate an Imminent 
Hazard Out-of-Service Order issued to protect the traveling 
public from harm. Because enforcement is important, we are 
working to focus our limited resources on identifying unsafe 
carriers from the vast majority of safe ones.
    One of the key tools in our toolbox is the Compliance 
Safety and Accountability program, or CSA. CSA features the 
Safety Measurement System, or SMS, that helps us prioritize 
carriers for enforcement interventions. The idea is to 
intervene with an at-risk carrier to bring them into compliance 
with safety regulations, or take them off the road before a 
crash occurs. We have been working with our stakeholders to 
make sure that CSA and SMS data is thorough and complete.
    Finally, we have a number of key safety initiatives 
underway to ensure that commercial truck and bus drivers are 
medically fit and free of alcohol and drugs. Nearly 40,000 
health officials today are listed on the National Registry of 
Certified Medical Examiners. We are well underway toward 
establishing a Drug and Alcohol Clearinghouse to help carriers 
ensure that drivers and employers are compliant and safe.
    We will also soon publish a final rule on electronic 
logging devices to reduce paperwork and improve efficiency for 
both carriers and law enforcement officers at the roadside.
    Thank you, Chairman Fischer and Ranking Member Booker, for 
this opportunity to be here today. I look forward to having a 
full and open discussion with you and my fellow panelists about 
the common sense ways we can work toward improving highway 
safety and saving lives.
    I look forward to answering your questions.
    [The prepared statement of Mr. Darling follows:]

       Prepared Statement of Hon. T.F. Scott Darling III, Acting 
   Administrator, Federal Motor Carrier Safety Administration, U.S. 
                             Department of 
                             Transportation
    Chairman Fischer, Ranking Member Booker, and Members of the 
Subcommittee, thank you for the opportunity to speak to you today on 
the Administration's proposal to reauthorize the commercial motor 
vehicle (CMV) safety program, included in the GROW AMERICA Act.
    Safety is the Department of Transportation's top priority. Since 
the Federal Motor Carrier Safety Administration (FMCSA) was established 
in 2000, the number of lives lost in large truck and bus related 
crashes has decreased 24 percent, from 5,620 in 2000 to 4,251 in 2013. 
While this represents significant progress, more must be done. Every 
life is precious and the Department is committed to reducing the number 
of crashes, injuries and fatalities involving commercial motor 
vehicles.
GROW AMERICA Act
    The provisions proposed in the GROW AMERICA Act build on the 
Agency's three core safety principles: (1) raise the bar to enter the 
motor carrier industry; (2) require high safety standards to remain in 
the industry; and (3) remove high-risk carriers, drivers, and service 
providers from the industry.
    The GROW AMERICA Act includes measures that will empower State and 
local communities to help achieve our shared goals through more 
streamlined and efficient grant programs. The Act will also build on 
FMCSA's continued, unprecedented motorcoach safety efforts by expanding 
locations where inspections may occur and will provide new authority 
over brokers who arrange passenger transportation. Furthermore, FMCSA 
proposes to promote safety while also easing the economic stress on 
long-distance truck and bus drivers, including thousands of small 
businesses, by ensuring they receive fair compensation for the hours 
they work.
Motorcoach Safety
    Bus travel is increasingly popular because it is a convenient, 
inexpensive option for many people, including students, groups and 
families. FMCSA is committed to raising the bar for safety in this 
highly competitive and rapidly changing industry by employing more 
effective investigation methods and strengthening the Agency's 
oversight authorities. Last year, FMCSA stepped up its enforcement 
efforts, shutting down more than 50 unsafe bus companies that put 
passengers at risk. FMCSA also increased its efforts to educate the 
public on safe motorcoach travel.
    Expands Locations for Motorcoach Inspections: To build on this 
unprecedented motorcoach safety effort, the GROW AMERICA Act will 
clarify and expand the locations at which motorcoach inspections may 
occur. The GROW AMERICA Act will clarify that inspectors may inspect 
motorcoaches at designated sites equipped with adequate food, shelter 
and sanitation facilities to accommodate passengers during the process.
    Provides Jurisdiction Over Motorcoach Brokers: The GROW AMERICA Act 
will also provide FMCSA with jurisdiction over brokers of passenger 
transportation. This provision will enhance FMCSA's ability to prevent 
unsafe bus companies from reorganizing themselves as unregulated 
``brokers.'' Additionally, requiring bus brokers to comply with the 
DOT's commercial registration requirements will help ensure that they 
are authorized to operate safely in interstate commerce. The change 
will also provide greater transparency for consumers who are booking 
bus travel.
    Allows Criminal Prosecution for Unscrupulous Carriers: Finally, the 
GROW AMERICA Act will take stronger steps to prevent unscrupulous motor 
carriers from skirting FMCSA enforcement actions by allowing for 
criminal prosecution of a person who knowingly and willfully violates 
an imminent hazard out-of-service (OOS) order issued to prevent the 
death or serious physical harm to the public.
    Safety-Based Improvements to Compensation for Long-Distance Truck & 
Bus Drivers: Many over-the-road truck and bus drivers are compensated 
by the mile or on a fixed-rate per load. As a result, they are not paid 
for extended periods of time while waiting for shipments to be loaded 
or unloaded at shippers' or receivers' facilities. Similarly, over-the-
road motorcoach drivers are often not compensated through an hourly 
wage. As a result, they often face pressure to drive beyond hours-of-
service limitations as a matter of economic necessity, risking driver 
fatigue and jeopardizing highway safety in the process. The GROW 
AMERICA Act addresses these problems by providing the Secretary 
authority to issue regulations that would require motor carriers to 
compensate drivers for detention time and other similar non-driving 
work periods at a rate that is at least equal to the Federal minimum 
wage.
Improvements to the Motor Carrier Safety Grants
    The GROW AMERICA Act will also streamline and consolidate FMCSA 
safety grant programs--a change that will reduce redundant grant 
application submissions, reviews, awards approvals, vouchering and 
oversight time, and thus increase dramatically efficiencies not only 
for FMCSA but for its State partners. Among other changes, the Motor 
Carrier Safety Assistance Program (MCSAP) will be restructured to 
include the current New Entrant and Border Enforcement grant programs. 
While the high-priority program will continue under MCSAP, the current 
safety data improvement grant program will be absorbed into the high-
priority program to avoid duplication. In addition, the Commercial 
Vehicle Information Systems and Networks (CVISN) grant program will be 
replaced with a new Innovative Technology Program, and additional 
flexibility will be available to address eligible activities under the 
Commercial Driver's License program improvement grant program.
    As a condition of full MCSAP funding, every state will be required 
to participate in the Performance and Registration Information Systems 
Management Program (PRISM) within three years of enactment, thus 
expanding the number of states that can suspend or revoke the vehicle 
registration of carriers subject to FMCSA out-of-service orders. States 
will also gain the ability to use MCSAP funds to conduct reviews of 
household goods carriers, brokers, and freight forwarders, protecting 
the public from predatory practices. The Act will provide a new minimum 
Federal share of 85 percent, a funding level applied to each of FMCSA's 
grant programs. The Agency will also have the ability to withhold 
incremental amounts of MCSAP funding for State non-compliance with 
grant conditions, rather than being required to withhold either the 
full amount or none at all. This added tool will allow FMCSA to address 
compliance issues while allowing states sufficient funds to continue 
critical safety activities.
MAP-21 Implementation and Other Priorities
    FMCSA is working to implement the provisions of the Moving Ahead 
for Progress in the 21st Century Act (MAP-21), as well as advance core 
safety initiatives including the Compliance, Safety, Accountability 
(CSA) program, and hours-of-service (HOS) research.
Compliance, Safety, Accountability
    CSA is the cornerstone of FMCSA's compliance model to improve CMV 
safety and reduce large truck and bus crashes, injuries, and fatalities 
on our Nation's highways. CSA consists of its Safety Measurement System 
(SMS) to identify companies for enforcement interventions, a wide array 
of interventions that target carriers' safety performance and 
compliance problems, and a new methodology (to be proposed in future 
rulemaking) to determine the safety fitness of motor carriers.
    Given the size of our Federal workforce and the very limited 
resources of our State enforcement partners relative to our regulated 
population, it is imperative that we apply our resources efficiently. 
The Agency, therefore, utilizes SMS to identify noncompliant and unsafe 
companies to prioritize them for enforcement interventions. FMCSA 
continues to improve SMS to identify those motor carriers that pose the 
greatest risk to safety. Our responsiveness to industry, safety 
advocates, oversight agencies and Congress continually prompts new and 
revised policies, reports, and changes to the SMS. Last year, we 
announced changes to our adjudicated violations process. Since August 
2014, motor carriers and drivers have been able to request updates to 
their data through the DataQs process to reflect when the driver or 
carrier is found not guilty or a violation is changed or dismissed in 
court.
    This spring, the Agency will announce additional changes to SMS. 
These changes will strengthen our ability to identify companies for 
investigation before they are involved in a crash. We will publish 
these changes in the Federal Register and provide the public an 
opportunity to comment before finalizing.
    Recently, we announced the results of our crash weighting research, 
which addressed the feasibility of using a motor carrier's role in 
crashes as an indicator of future crash risk. The study considers the 
use of police accident reports in determining crash accountability and 
the reliability of using crash involvement or crash weighting as an 
indicator of future crash risk. We are currently receiving comments on 
this issue and will determine next steps based on that feedback. We 
published the notice in January, and the comment period runs through 
March 25.
    We continue to work toward publication of a proposed rule that 
would increase the use of inspection data in making safety fitness 
determinations for motor carriers. The Safety Fitness Determination 
proposal will include a fixed, non-relative failure standard and will 
take into account recommendations for larger amounts of data to make 
accurate determinations of a carrier's fitness to operate.
    Importantly, as is shown by the figure below, carriers identified 
as having one or more areas above the established thresholds in SMS 
have crash rates significantly higher than carriers that aren't 
identified. As the number of Behavior Analysis and Safety Improvement 
Categories (BASICs) over threshold increase, so does the crash rate.


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    The issue of data sufficiency has received a lot of attention 
recently. Based upon studies completed by the Agency and independent 
researchers, the SMS is effective at identifying carriers that are 
engaging in behaviors likely to cause a crash. FMCSA, our State 
partners, the Government Accountability Office (GAO), the Office of 
Inspector (OIG), and the National Transportation Board (NTSB) all share 
a common goal of finding the most effective tools for identifying high 
risk carriers and taking appropriate enforcement actions. While we all 
share that goal, we have also had clear differences over specific 
methodologies for prioritizing a carrier as higher crash risk and for 
taking action. For example, a February 2014 GAO study recommended that 
the Agency revise the SMS to account for what it sees as data 
limitations. The GAO developed a methodology that only considers 
carriers that have at least 20 inspections or 20 vehicles and 
eliminates the use of safety event groups. That approach runs counter 
to the goals of SMS, which identifies dangerous violation patterns much 
earlier. The overwhelming majority of motor carriers--more than 90 
percent of our regulated population--never reach the 20 observation 
level during the relevant measurement period. Under GAO's approach to 
SMS, the safety performance of all these companies would be simply 
ignored. The public demands a proactive approach, rather than waiting 
for 20 -observation--or a crash--before we intervene.
    The SMS is effective at identifying carriers that are more likely 
than others to crash because the carriers are engaging in risky 
behaviors. The Agency is working hard to intervene with those carriers 
exhibiting high risk behaviors in the most efficient manner possible 
and to engage the companies before they have a crash.
Hours-of-Service
    Due to the importance of driver fatigue as a safety risk, we issued 
new rules regarding drivers' hours of service in 2011. The final rule 
required truck drivers who use the ``34-hour restart'' provision to 
maximize their weekly work hours to limit the restart to once a week 
and to include in the restart period at least two nights off duty from 
1:00 to 5:00 a.m., when our 24-hour body clock needs and benefits from 
sleep the most. The provision was included in response to research 
showing that drivers who routinely work overnight schedules and sleep 
during the daytime tend to ``switch their sleep clocks'' on weekends 
while they are with their families, doing errands, and so on. As a 
result, they often get only one night of sleep during the 34-hour 
break--which research shows is insufficient to eliminate fatigue--
before climbing back into the truck Sunday evening.
    The rule was structured with flexibility such that each driver 
would use the restart based on his or her specific schedule for the 
week which would establish the point at which the driver would 
determine whether a 34-hour restart was needed, and if so, when it 
would begin and end.
    As mandated by MAP-21, the Agency conducted a field study which 
expanded upon the results of the laboratory-based study relating to CMV 
driver fatigue. This research was conducted between January and July 
2013, and not as an aspect of our regulatory process. MAP-21 did not 
require the study to address the impact of the new rule on the volume 
of truck traffic during daytime hours. However, the Agency is not aware 
of study results or data that suggests the 2011 rule forced drivers to 
shift their work schedules from nighttime operations to daytime 
operations.
    On December 16, 2014, the Congress enacted the Consolidated and 
Further Continuing Appropriations Act, 2015, which included provisions 
restoring the pre-2013 restart rule, pending further study of the post-
2013 rule. In particular, the once-a-week limitation on the use of the 
restart and the requirement for two nights off duty were suspended 
until the end of this fiscal year. FMCSA issued a notice in the Federal 
Register on December 17 suspending the 2013 restart provisions. Those 
restart provisions have no force or effect from the date of enactment 
of the Appropriations Act through the period of suspension, and have 
been replaced with the previous restart provisions that were in effect 
on June 30, 2013. FMCSA notified motor carriers and commercial drivers, 
and trained thousands of State Motor Carrier Safety Assistance Program 
grant recipients, and other law enforcement personnel on these 
immediate enforcement changes.
    The Agency selected the Virginia Tech Transportation Institute 
(VTTI) to conduct the study mandated by Congress. We have worked 
diligently to reach out and recruit potential drivers from all segments 
of the trucking industry as the statute requires. VTTI has a solid 
national reputation for conducting vehicle-related safety and driver 
fatigue research. VTTI pioneered the use of naturalistic driving 
studies and has successfully carried out similar FMCSA projects for the 
past 10 years. As required by Congress, the study methodology is now 
undergoing review by the DOT Office of Inspector General. This driver 
restart study is the largest naturalistic study of its kind that FMCSA 
has ever undertaken. We anticipate releasing the findings later in the 
year.
Electronic Logging Devices
    MAP-21 included a provision mandating the use of electronic logging 
devices (ELD) for those CMV drivers who are required to keep a record 
of duty status under the HOS regulations. FMCSA is preparing to issue 
its final rule on ELDs this fall. The ELD rule will require CMV drivers 
who are now required to keep a record of duty status under the HOS 
regulations to maintain these records electronically. ELDs will 
automate HOS tracking, making it easier for drivers to log hours and 
more difficult to conceal violations of the hours-of-service rules. 
Once promulgated, the rule will help businesses cut paperwork and will 
increase the efficiency of law enforcement personnel and safety 
inspectors. The rule will also ensure that the devices are not used to 
harass drivers. By improving HOS compliance, ELDs are expected to 
prevent approximately 1,400 crashes, 20 fatalities, and more than 400 
injuries each year, with a net economic savings of close to $450 
million.
National Registry of Certified Medical Examiners
    In May 2015, FMCSA will celebrate the first anniversary of the full 
implementation of the National Registry of Certified Medical Examiners 
(National Registry). As mandated by SAFETEA-LU and MAP-21, the National 
Registry rule requires all Medical Examiners (ME) who conduct physical 
examinations and issue medical certifications for interstate CMV 
drivers to complete training on FMCSA's physical qualification 
standards, pass a certification test, and demonstrate competence 
through periodic training and testing. Currently, all CMV drivers whose 
medical certification expires must use MEs on the National Registry for 
their examinations.
    Between May 2014 and November 2014, more than 2.4 million 
examinations of commercial motor vehicle drivers were conducted by 
healthcare professionals on the National Registry. We anticipate 
receiving data for December 2014 and January 2015 by the end of March. 
The National Registry has been a great success. To date, we have 
reached our goal of 40,000 certified MEs on the National Registry. 
Drivers can now find MEs throughout the Nation who can competently 
perform their medical examination. Any physician or other qualified 
medical professional (such as a physician's assistant or an advanced 
practice nurse) licensed by a State to conduct physical examinations 
can be listed on the National Registry if they are trained, tested, and 
certified.
    With the help of the OIG and our State law enforcement partners, we 
have identified and prosecuted uncertified MEs and others who have 
committed fraud or otherwise abused the physical qualifications 
process.
    We are preparing to issue a follow-on ``National Registry 2'' 
rulemaking that will require MEs to submit the medical certificate 
information for CMV drivers to FMCSA on a daily basis. The Agency will 
then be able to promptly transmit medical certificate information 
electronically to the State Driver Licensing Agencies for the CDL 
holders. This will dramatically decrease the chance of drivers 
falsifying medical cards and will lessen the amount of paperwork 
required currently.
Drug and Alcohol Clearinghouse
    To further prevent crashes, we must ensure that CDL holders are 
sober and drug-free. We published a Notice of Proposed Rulemaking 
(NPRM) on the Drug and Alcohol Clearinghouse (Clearinghouse) to 
implement the MAP-21 provision on this subject. The Clearinghouse would 
require truck and bus companies (and other entities responsible for 
managing DOT drug & alcohol testing programs) to report verified 
positive drug and alcohol test results, test refusals, negative return-
to-duty test results and follow-up testing. This information would 
populate the Clearinghouse database with positive drug and alcohol test 
information on CDL holders. This information would remain in the 
Clearinghouse for a requisite period of time after the CDL-holder 
completes the return-to-duty rehabilitative process, which allows the 
driver to become re-qualified to operate a CMV. Once the Clearinghouse 
is fully implemented, employers would be required to conduct pre-
employment searches in the repository as part of the hiring process for 
CDL drivers and annual searches on current employee drivers. The final 
rule is in development and is scheduled to be published later this 
year.
Entry-Level Driver Training Requirements
    MAP-21 directed the Agency to issue final regulations to require 
entry-level training for drivers who require a CDL and for those 
upgrading from one class of CDL to another. The Agency's rulemaking 
must address knowledge and skills for safe operation and other issues. 
In 2013, the Agency held listening sessions and asked our Motor Carrier 
Safety Advisory Committee (MCSAC) to provide recommendations on ELDT. 
These sessions and the MCSAC gave the Agency substantial information 
about training for entry-level CDL applicants. In August, the Agency 
engaged the services of a convener to assess the feasibility of 
conducting a negotiated rulemaking (Reg Neg) to implement this 
provision. The convener recommended that the Agency proceed with a Reg 
Neg on ELDT. In February, the Agency announced the appointment of 26 
stakeholders to participate in the negotiated rulemaking committee. 
Known as the Entry-Level Driver Training Advisory Committee (ELDTAC), 
the Committee held its first meeting last week, on February 26-27. The 
Department plans an accelerated Reg Neg to reach consensus among these 
key stakeholders so that we can issue a Notice of Proposed Rulemaking 
(NPRM) by fall 2015 and a final rule by 2016.
    We hope these changes will make it easier for all of our 
stakeholders, from drivers and carriers to enforcement partners, to 
work together toward our shared safety goals.
Conclusion
    Thank you, Chairman Fischer and Ranking Member Booker, for the 
opportunity to discuss Federal motor carrier safety programs. We look 
forward to working with you on enacting the next surface transportation 
bill to improve safety, reduce crashes, prevent injuries, and save 
lives on our Nation's highways.

    Senator Fischer. Thank you, Mr. Darling.
    Mr. Come.

         STATEMENT OF JOSEPH W. COME, DEPUTY PRINCIPAL

            ASSISTANT INSPECTOR GENERAL FOR AUDITING

       AND EVALUATION, U.S. DEPARTMENT OF TRANSPORTATION

    Mr. Come. Chairman Fischer, Ranking Member Booker, and 
members of this Subcommittee, thank you for inviting me to 
testify today.
    I will focus on three things. First, what the Federal Motor 
Carrier Safety Administration has done and what it still needs 
to do to address our work in the IG's Office on the Compliance 
Safety Accountability program, or CSA. Second, challenges with 
addressing reincarnated carriers. And third, our ongoing work 
to bolster FMCSA's enforcement of motor carrier safety 
regulations.
    CSA is intended to target enforcement intervention, such as 
onsite reviews, on higher risk motor carriers. CSA's success 
depends in part on complete, correct data reporting from the 
carriers and the states. We reported last March that about half 
of roughly 800,000 carriers had not updated their data between 
January 2011 and February 2013 as required. To respond to this 
longstanding concern on carrier-reported data, FMCSA began to 
automatically take action against carriers for not updating 
their data. And by April 2014, the agency had deactivate over 
20,000 U.S. DOT numbers for carriers with outdated data.
    Information systems play a key role in CSA's operations. In 
response to weaknesses we identified, such as incomplete 
documentation for CSA's IT validation and testing processes, 
FMCSA developed complete system requirements and a 
configuration management plan. However, sustained attention in 
this area is important to ensure effective control as staff 
turns over and systems change.
    Despite these actions, timely and effective implementation 
of enforcement interventions within CSA remains a challenge 
largely due to delays in developing CSA's intervention 
software. At the time of our March 2014 report, only 10 states 
had implemented all interventions and FMCSA does not expect to 
fully deploy the intervention software needed until 2016; more 
than 3 years passed the first estimated release date. In the 
meantime, the extent to which FMCSA and its state partners can 
monitor and correct higher risk carriers will be reduced.
    In regards to reincarnated carriers, these carriers who 
often use aliases, or different business addresses to evade 
out-of-service orders and other enforcement actions, continue 
to be a concern. A number of our criminal investigations have 
prompted legal action and resulted in jail time and fines, but 
there are legal and procedural barriers to prosecuting cases.
    For example, one reincarnated carrier case was recently 
declined for prosecution because a criminal penalty related to 
the Title 49 violation being charged was only a misdemeanor 
provision which is less likely to result in jail time. The 
improper use of third parties to complete applications for DOT 
authority may also present complications to prosecution.
    To detect higher risk carriers before they reincarnate, 
FMCSA has tested new screening tools and it plans to roll out 
an enhanced process to vet applicants for Federal operating 
authority. Timely implementation of an enhanced vetting process 
will help FMCSA more efficiently identify and, where 
appropriate, remove carriers.
    Our criminal investigators also continue to identify 
carriers who commit fraud and violate FMCSA's regulations in 
other areas. Through our partnership with FMCSA on the criminal 
side we have uncovered fraud committed by household good movers 
and in drug and alcohol testing programs, as well as shut down 
illicit commercial driving license schemes.
    We also have a lot of work underway to respond to 
congressional mandates including a review related to FMCSA's 
34-hour restart study. Congress suspended enforcement of the 
restart rule and required FMCSA to conduct the study of the 
rules, operational safety health and fatigue impacts. Our 
office is in charge of reviewing FMCSA's plans and final 
results for the study to ensure the review complies with the 
act.
    Finally, Congress has directed us to assess FMCSA's 
Mandatory Compliance Review process including determining 
whether FMCSA's investigations are adequate to detect the 
violations. NTSB has raised similar concerns. This will be an 
important issue for us to address.
    This concludes my prepared statement. I'd be happy to 
answer any questions you or other members of the Subcommittee 
may have.
    [The prepared statement of Mr. Come follows:]

   Prepared Statement of Joseph W. Come, Deputy Principal Assistant 
   Inspector General for Auditing and Evaluation, U.S. Department of 
                             Transportation
    Chairman Fischer:

    Thank you for inviting me to testify on the Federal Motor Carrier 
Safety Administration's (FMCSA) oversight programs and on issues 
impacting the Subcommittee's work on the Agency's reauthorization. As 
you know, FMCSA is responsible for ensuring a safe U.S. motor carrier 
industry, which comprises over half a million passenger and commercial 
carriers and more than 5.6 million commercial motor vehicle drivers. 
While fatalities involving large trucks and buses have decreased over 
the last 10 years, they remain high; in 2013, fatalities totaled nearly 
4,300, and injuries nearly 83,000.
    To improve safety across the vast motor carrier industry, FMCSA 
launched its Compliance, Safety, Accountability (CSA) program in 2010, 
which aims to target FMCSA and State enforcement interventions--such as 
roadside inspections and on-site reviews--to motor carriers that pose a 
higher risk of violating safety rules. FMCSA has faced significant 
scrutiny from carriers and industry groups who have expressed concern 
that relative safety rankings generated by the CSA program, most of 
which are available to the public, do not accurately reflect safety 
risk.
    My testimony today focuses on (1) the status of FMCSA's CSA 
program; (2) challenges with addressing reincarnated carriers; and (3) 
our efforts to complement FMCSA's enforcement program, as well as our 
ongoing work on motor carrier safety.
In Summary
    FMCSA has taken action to improve CSA data quality and system 
development, such as enhancing its efforts to monitor and correct 
State-reported data on crashes and inspections, and implementing a 
process for deactivating USDOT numbers \1\ for carriers with outdated 
data. However, nationwide implementation of timely and effective 
enforcement interventions remains a challenge, largely due to delays in 
contractor development of software for assessing and monitoring 
interventions. Ensuring compliance with safety regulations also remains 
a challenge for FMCSA, although continued collaborative efforts with 
our office and law enforcement partners have proven effective at 
removing carriers and drivers intent on breaking the law, including 
reincarnated carriers. Key actions to keep reincarnated carriers off 
the road include effective vetting of carriers' applications and 
prosecuting those companies that are caught violating the law. 
Collaboration has also been a major factor in successfully pursuing 
household goods carriers and brokers that hold consumer belongings 
hostage, commercial driver's license fraud, and fraud in drug and 
alcohol programs.
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    \1\ Companies that operate commercial vehicles transporting 
passengers or hauling cargo in interstate commerce must have a USDOT 
number, which serves as a unique identifier for collecting and 
monitoring a company's safety information.
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FMCSA Has Taken Action To Improve Its CSA Program, But 
        Implementation of Enforcement Interventions is Incomplete
    FMCSA has taken several actions we recommended to improve CSA data 
quality and system development controls, which are fundamental to 
ensuring this safety initiative achieves its aim--to reduce truck and 
bus related injuries and fatalities by focusing enforcement efforts on 
carriers that pose a higher safety risk. However, nationwide 
implementation of enforcement interventions remains a challenge, 
largely due to delays in updating software for collecting documentation 
and monitoring interventions.
FMCSA Has Taken Action To Improve Data Quality and System Development
    To identify high-risk carriers, FMCSA evaluates data with the 
Carrier Safety Measurement System (CSMS) \2\ and calculates relative 
rankings for carriers' on-road performance. Accurate rankings depend, 
in part, on complete, correct data. Because FMSCA uses certain census 
data (such as vehicle miles traveled and number of motor vehicles) to 
calculate carrier performance rankings, missing or outdated data can 
lead to incorrect computations and, ultimately, hamper safety 
monitoring and enforcement activities.
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    \2\ CSMS analyzes carrier data uploaded monthly from roadside 
inspections, crash reports from the last 2 years, and investigation 
results. It also uses self-reported census information about the 
carriers' operations.
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    In 2006, we reported that more than one-quarter of the over 700,000 
existing motor carriers did not update census data every 2 years, as 
required. While FMCSA stated that it had taken over 2,000 enforcement 
actions since 2006, such as levying fines, against carriers that did 
not comply with its census data requirements, we reported in our March 
2014 assessment \3\ that about half of the roughly 803,000 active 
interstate carriers had not updated their census data between January 
2011 and February 2013.
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    \3\ OIG Report MH-2014-032, Actions Are Needed To Strengthen 
FMCSA's Compliance, Safety, Accountability Program, Mar. 5, 2014. OIG 
reports are available on our website at: www.oig.dot.gov. The 
Government Accountability Office (GAO) reported separately on the 
effectiveness of CSA's algorithm: GAO Report GAO-14-114, Modifying the 
Compliance, Safety, Accountability Program Would Improve the Ability to 
Identify High Risk Carriers, Feb 3, 2014.
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    In response to recommendations we made last March, FMCSA has taken 
action to improve the data used by CSMS. Specifically, FMCSA enhanced 
its efforts to monitor and correct State-reported data on crashes and 
inspections. This included revised guidance on its data correction 
process, including treatment of dismissed violations. To respond to 
longstanding concerns about missing and inaccurate carrier-reported 
census data, FMCSA began to automatically deactivate USDOT numbers for 
carriers that do not update their census data every 2 years. By mid-
April 2014, 20,500 USDOT numbers were deactivated.
    Our March 2014 review also determined that FMCSA had limited 
documentation demonstrating that it followed information technology 
system development best practices \4\ and Federal guidance--which 
emphasize thorough documentation of information technology system 
components and controls--while developing and testing CSMS. 
Specifically, FMCSA's documentation of key processes--such as 
validation and testing--was incomplete. For example, FMCSA lacked 
documentation to show that it conducted testing for four of the changes 
made to the system since its nationwide implementation in 2010. 
Insufficient documentation impedes FMCSA's ability to maintain 
effective control of the system in the event of staff turnover and 
further changes made to the system. In response to our recommendations, 
FMCSA developed complete system requirements and a configuration 
management plan for properly recording testing and validation results.
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    \4\ Because CSMS is a Department of Transportation information 
technology system, industry best practices and Federal internal control 
standards are applicable to its development, testing, and validation. 
These best practices and standards include the Department's Integrated 
Program Planning and Management Governance and Practitioners Guides and 
guidance from the National Institute for Standards and Technology and 
GAO.
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Timely and Effective Implementation of CSA Enforcement Interventions 
        Nationwide Remains a Challenge
    While FMCSA has made progress to improve data quality and improve 
system development, implementation of CSA enforcement interventions 
remains a concern, largely due to delays in developing updated Sentri 
software for collecting documentation and monitoring interventions.\5\ 
At the time of our report, only 10 states (which were part of FMCSA's 
pilot or already had software) had fully implemented all 
interventions,\6\ and FMCSA does not expect to complete nationwide 
implementation until 2016. Without full implementation of all of CSA's 
interventions, FMCSA and its State partners cannot monitor and correct 
as many high-risk carriers as it otherwise could.
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    \5\ Sentri is the Safety Enforcement Tracking and Investigation 
System, and its primary users are FMCSA field officials and enforcement 
officials. The next version of Sentri is intended to combine roadside 
inspection, investigative, and enforcement functions into a single 
interface and replace all other legacy systems.
    \6\ All states have implemented seven of the nine interventions 
except for off-site investigations and cooperative safety plans.
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    Because of the incomplete implementation of enforcement 
interventions to date, we have not fully assessed the interventions' 
effectiveness. However, based on our initial observations, FMCSA faces 
two key challenges to fully implement CSA interventions in the 
remaining 40 states and the District of Columbia: (1) developing and 
deploying software training for the states in a timely manner and (2) 
working with its Division Offices and their State partners to ensure 
states effectively apply the interventions.
    To fully implement CSA enforcement interventions, we recommended 
that FMCSA develop a comprehensive plan that includes an estimated 
completion date and milestones for releasing Sentri software, 
developing and delivering training, and using the enforcement 
interventions. While FMCSA currently expects to receive the software 
from the contractor by November 2015, its release has been postponed 
several times. More than 3 years have passed since the first estimated 
release date.
Despite Progress, Challenges Remain with Addressing Reincarnated Motor 
        Carriers
    A longstanding safety concern in the motor carrier industry is the 
practice of reincarnated carriers--carriers that attempt to operate as 
different entities in an effort to evade FMCSA's enforcement actions. 
To circumvent out-of-service orders, these carriers often assume 
aliases or use different business addresses. Key actions to keep 
reincarnated carriers off the road include effective vetting of 
carriers' applications and taking meaningful civil enforcement actions 
against carriers who continue to violate the law. The Office of 
Inspector General's (OIG) criminal investigations bolster FMCSA's 
enforcement efforts.
    We are seeing an increase in criminal cases of carriers blatantly 
disregarding safety laws and regulations, including attempts to 
reincarnate. In one particularly egregious case, a Georgia man 
continued to drive trucks for a company that had been issued an out-of-
service order following a fatal crash that killed seven in Alabama. The 
man was sentenced to 6 months incarceration and 12 months supervised 
release for his participation in the conspiracy to violate the out-of-
service order. In another case, the owner of a Tennessee trucking 
company continued commercial motor carrier operations under the name 
and authority of a second company after FMCSA issued an out-of-service 
order for unacceptable safety practices. Subsequently, FMCSA 
categorized the second company as a continuation of the first and 
placed it under an out-of-service order as well. The owners of the 
trucking companies pleaded guilty to out-of-service order violations.
    Prosecuting carriers that attempt to evade FMCSA's out-of-service 
orders can be challenging. While a number of our investigations of 
alleged reincarnated carriers have prompted legal action, there are 
some legal and procedural barriers to prosecuting cases. For example, 
one reincarnated carrier case was recently declined for prosecution 
because the criminal penalties under Title 49 U.S.C. Section 521 
contain only a misdemeanor provision, which is less likely to result in 
jail time. In the Tennessee case, a District Court Judge similarly 
ruled that violating an out-of-service order under Title 49 U.S.C. 
Section 521, was a civil--not a criminal--offense. Finally, we have 
started to see on the West Coast that third parties are completing 
applications for DOT authority and falsely representing that the 
applicant has no prior affiliation with another carrier. This practice 
not only violates FMCSA's instructions for completing the Application 
for Motor Carrier Property Carrier and Broker Authority form but 
complicates the Department of Justice's ability to prosecute bad 
actors. Criminal prosecution of these cases can send a strong message 
that blatant disregard of FMCSA enforcement actions or out-of-service 
orders will not be tolerated.
    Thoroughly vetting applicants for Federal operating authority is 
key to detecting high-risk carriers before they reincarnate. To help 
focus investigative resources on the highest risk passenger carriers, 
FMCSA established a screening tool initially used only for vetting new 
passenger carrier applicants. The tool identifies matches between 
applicants' data and suspect carriers \7\ and generates a score based 
on the matches. Theoretically, the higher the score, the greater the 
likelihood that an applicant and a suspect carrier are a match, 
warranting further review by FMCSA staff. However, as we reported in 
April 2012,\8\ the tool produced unreliable scores and, in some cases, 
assigned low scores to carriers who were likely to be reincarnations.
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    \7\ A suspect carrier is a carrier who is applying for new 
operating authority but whose owner's name, address, or some other 
information matches with a carrier put out of service or facing other 
major violations.
    \8\ OIG Report MH-2012-087, Timely and Targeted FMCSA Action Is 
Needed To Fully Address National Transportation Safety Board 
Recommendations for Improving Passenger Carrier Oversight, Apr. 17, 
2012.
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    Upon discovering this flaw, FMCSA began manually reviewing all 
applicants with matches to pre-existing carriers. Since then, FMCSA has 
made progress in developing an effective, more automated screening 
tool. In June 2013, FMCSA tested a data-driven, risk-based prototype 
screening methodology--which it plans to phase in and fully implement 
this year for all new applicants--and centralized the vetting process 
within a new office, the Office of Registration and Safety Information. 
After testing, FMCSA identified some flaws with the methodology, but it 
plans to continue screening tool development and potentially 
incorporate it into its new electronic, online registration system, the 
Unified Registration System, by October 2015.
    FMCSA plans to roll out its enhanced vetting process to all motor 
carriers--commercial as well as passenger--but the process is not yet 
fully implemented. Given that passenger carriers make up a small 
portion of the companies regulated by FMCSA, expanding use of the tool 
to all motor carriers will pose a significant challenge. FMCSA has the 
authority to detect, deter, and implement vigorous enforcement actions 
against carriers that seek to reincarnate.\9\ To carry out this 
authority, FMCSA established procedures for issuing out-of-service 
orders to reincarnated motor carriers. The procedures provide for an 
administrative review of carriers with a history of failing to comply 
with statutory or regulatory requirements before an out-of-service 
order takes effect. The rule also establishes a process for 
consolidating FMCSA records of reincarnated companies with their 
predecessor entities. Carriers can no longer unilaterally terminate an 
enforcement proceeding by making full payment of the civil penalties 
levied without an admission of liability. Timely implementation of 
targeted and risk-based actions like these will help FMCSA more 
efficiently identify carriers that pose safety risks and keep them off 
the road.
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    \9\ 49 Code of Federal Regulations Sec. 386.73.
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OIG Actions to Combat Fraud and Address Congressional Mandates 
        Support FMCSA Efforts to Oversee the Motor Carrier Industry
    OIG remains dedicated to complementing FMCSA's enforcement program 
through criminal investigations of egregious violators of FMCSA's 
regulations. In addition, our audit efforts continue to identify 
opportunities to improve the effectiveness and efficiency of motor 
carrier safety programs. We have had success in the past and continue 
to partner with FMCSA to prevent household goods fraud, commercial 
driver's license fraud, and fraud in drug and alcohol programs. We also 
have work under way to address congressional mandates concerning 
FMCSA's hours-of-service restart study and high-risk carrier 
investigative practices.
Combating Household Goods Fraud
    According to FMCSA, approximately 5,000 moving companies transport 
the household goods of 1.6 million Americans each year, and FMCSA 
receives about 3,000 consumer complaints annually regarding household 
goods movers. Our investigations target complaints of egregious 
offenses, particularly those involving suspect household goods brokers 
and carriers that hold customers' belongings hostage while attempting 
to extort significantly greater sums of money above the original quotes 
than are legally permissible. To carry out this extortion, brokers and 
carriers engage in other illegal activities that include conspiracy, 
wire fraud, mail fraud, money laundering, and falsification of bills of 
lading and shipment weight documents.
    While FMCSA is responsible for the civil enforcement of the 
consumer protection and economic regulations governing interstate 
household goods transportation, combating household goods fraud to 
protect consumers from rogue companies is an OIG investigative 
priority. In addition to actions FMCSA has taken to protect consumers--
including requiring moving companies to provide customers with FMCSA's 
booklet on consumer rights and responsibilities when they move--OIG 
investigations, and the resulting criminal prosecutions and sanctions, 
are strong deterrents to violators who consider civil penalties simply 
a cost of doing business.
    The vast majority of the allegations against rogue household goods 
companies we investigate have come from FMCSA and Operation Boxed Up, a 
proactive, cooperative initiative that OIG launched in March 2011 to 
target groups of carriers and brokers engaged in household goods fraud 
schemes. By analyzing databases from FMCSA's household goods regulatory 
program, we identified consumer complaints on the most egregious 
actions by these carriers and brokers. In the past 5 years, we have 
opened 38 investigations, and have conducted 21 arrest warrants and 20 
search warrants. Our work has resulted in 20 indictments, 22 
convictions, over 45 years of jail time, and approximately $2.8 million 
in financial recoveries. The lion's share of these results has come 
from our Operation Boxed Up initiative.
    In conjunction with Operation Boxed Up, we launched a Wanted 
Fugitives Web page in September 2012 to make the public aware of 
individuals with active arrest warrants who have fled the court's 
jurisdiction. The site currently identifies 37 defendants charged with 
transportation-related crimes--all but 1 of which involves household 
goods fraud. In April 2014, the first fugitive was captured after more 
than 2 years on the run. Wanted on charges related to a large-scale 
household goods fraud scheme in Texas and under increasing pressure, 
the defendant turned himself in at the Federal Courthouse in 
Philadelphia, PA. He and his two accomplices used 11 different company 
names to defraud dozens of customers. The three men were sentenced 
collectively to 30 years imprisonment and over $470,000 in restitution 
to their victims.
Other Efforts To Combat Fraud and Help Ensure Motor Carrier Safety
    We continue to partner with FMCSA to combat commercial driver's 
license and drug and alcohol testing fraud.
    CDL Fraud: States are responsible for developing a knowledge and 
skills test that confirms drivers understand and can follow Federal 
motor carrier safety laws. However, weaknesses in the CDL program 
continue to allow individuals and third-party testers to exploit the 
program, resulting in hundreds of fraudulently issued licenses. In 
2011, FMCSA issued new regulations to tighten controls over CDL 
testing. Historically, however, FMCSA has had difficulty ensuring 
states swiftly and effectively implement new regulations. Since 2011, 
our office has opened 10 CDL fraud investigations in 6 states. In a 
recent case, the owner-operators of a driving school pleaded guilty to 
a test-taking scheme to provide answers to an estimated 500 New York 
State CDL applicants on the written exam. In a separate case, multiple 
individuals pleaded guilty, including New York Department of Motor 
Vehicle (DMV) employees, in a CDL test-taking conspiracy involving five 
DMV test centers in the New York City area. The investigation revealed 
that CDL applicants paid facilitators between $1,800 and $2,500 in 
return for CDL test answers and assistance through DMV processes. Fraud 
schemes included the use of pencils containing miniaturized encoded 
test answers and the use of a Bluetooth headset as a communication 
device to relay CDL test answers.
    Drug and Alcohol Testing Fraud: Since the early 1990s, FMCSA and 
its predecessor agency have established drug and alcohol testing rules 
and regulations for employees who drive commercial trucks and buses 
that require a CDL. These regulations identify who is subject to 
testing, when they are tested, and in what situations. Our agents' 
investigations of parties who have fraudulently circumvented these 
regulations have resulted in recent convictions. In one case in 
Pennsylvania, the owner of a drug testing company pleaded guilty to 
defrauding several commercial motor carrier employers and drivers by 
using the signature of a medical review officer who had not worked for 
the drug testing company for many years to certify test results. In 
another case in California, the owner of a drug testing company was 
charged in a scheme to defraud 80 trucking companies that employed 
commercial drivers in conjunction with the provision of random and pre-
employment drug testing services by allegedly falsifying specimen tests 
results required by and provided to FMCSA.
Ongoing Efforts To Address Recent Congressional Mandates
    Congress recently directed us to assess FMCSA's hours-of-service 
restart study and its high-risk carriers' investigative practices. We 
have work under way to respond to these congressional mandates to 
improve motor carrier safety.
    Hours-of-Service Study: To keep fatigued drivers off public 
roadways, FMCSA requires drivers of large, heavy trucks to comply with 
its hours-of-service regulations, which limit when and how long drivers 
can operate.\10\ Effective in 2013, FMCSA required drivers to comply 
with a revised 34-hour restart rule to reset the weekly driving limit. 
The revised rule required a driver to be off duty for 34 consecutive 
hours, which must include two 1 a.m. to 5 a.m. periods. After the rule 
went into effect, concerns were raised about the rule's unintended 
consequences, such as increased congestion during daytime traffic 
hours. In the Consolidated and Further Continuing Appropriations Act of 
2015, Congress suspended FMCSA's enforcement of the 34-hour restart 
rule and required the Agency to conduct a study of the rule's 
operational, safety, health, and fatigue impacts. The act mandated that 
we review FMCSA's plan for conducting the study, as well as the study's 
final results, to determine whether they comply with the requirements 
of the act. FMCSA has provided us its plan for the restart study, which 
we will brief out mid-March. We will issue our findings on FMCSA's 
final report 60 days after its issuance, as required by the act.
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    \10\ The hours-of-service regulations are found in Part 395 of the 
Federal Motor Carrier Safety Regulations. States may have identical or 
similar regulations.
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    High-Risk Carriers: FMCSA conducts on-site reviews of motor carrier 
compliance with safety rules--such as those related to vehicle 
maintenance and inspection, commercial driver qualifications and 
licensing requirements, drivers' hours of service, financial 
responsibility, hazardous materials transport, and other transportation 
safety rules--as well as reviews any accident records. These compliance 
reviews may be conducted in response to a request to change a carrier's 
safety rating, to investigate potential violations of safety 
regulations by motor carriers, or to investigate complaints or other 
evidence of safety violations, and may result in enforcement actions. 
Concerned that unsafe carriers may be operating on our roadways due to 
untimely investigations, Congress directed us to assess FMCSA's 
mandatory compliance review process to ensure motor carriers flagged 
for investigation are being investigated in a timely manner and to 
determine whether the type of investigations FMCSA conducts is adequate 
to detect violations.
    This concludes my prepared statement. I will be happy to answer any 
questions you or other members of the Subcommittee may have.

    The Chairman. Thank you, Mr. Come.
    Ms. Fleming. 

            STATEMENT OF SUSAN A. FLEMING, DIRECTOR,

                PHYSICAL INFRASTRUCTURE ISSUES,

             U.S. GOVERNMENT ACCOUNTABILITY OFFICE

    Ms. Fleming. Madam Chairman, Ranking Member Booker, Ranking 
Member Nelson, and members of this Subcommittee, thank you for 
the opportunity to discuss FMCSA's efforts to conduct oversight 
of commercial motor carriers and; more specifically, to reduce 
crashes which cause thousands of injuries and fatalities each 
year.
    With over 500,000 active motor carriers on our nation's 
roads, FMCSA must strategically direct its resources to 
identify and target those carriers presenting the greatest risk 
for crashing in the future. Although our recent work shows that 
FMCSA has taken some important steps in this direction, my 
testimony reports on two aspects of its efforts that present 
serious challenges: the reliability of the key component of 
CSA, the Safety Measurement System, or SMS, in predicting 
crashes; and FMCSA's ability to determine the prevalence of 
chameleon carriers, carriers that use a new identity to operate 
illegally on the road.
    Let me begin with the Safety Measurement System. Two 
shortcomings make SMS an unreliable predictor of crashes. 
First, most of the safety regulations used in SMS to identify 
high-risk carriers were violated too infrequently to provide a 
meaningful association at the carrier level.
    Second, FMCSA does not have sufficient safety data on most 
carriers to compare them with other carriers and reliably 
assess their likelihood of a crash. About two-thirds of 
carriers operate fewer than four vehicles and the vehicles of 
the carriers with small fleets were inspected too infrequently 
to produce reliable safety data. We believe this may be why the 
majority of carriers SMS identifies as having a high risk of 
crashing never actually crash. SMS does hold promise, however. 
FMCSA could improve its effectiveness by limiting its focus to 
carriers with more vehicles and more inspections. In other 
words, carriers with more safety information.
    In our work, we illustrate that this approach better 
identifies carriers that crash. We realize this would involve a 
tradeoff. Fewer carriers would be scored with SMS but it would 
produce a more reliable indicator of potential crash risk. 
Based on these concerns, we recommended that FMCSA revise the 
SMS methodology to better account for limitations we identified 
and carrier safety performance information.
    FMCSA officials did not concur with our recommendations 
stating that SMS, in its current state, is sufficient to 
prioritize carriers for intervention. However, we believe that, 
without the modifications we recommend, FMCSA will fall short 
of its mission established by Congress nearly 15 years ago to 
ensure the safety of commercial motor vehicles, drivers, and 
the traveling public.
    Now, I would like to turn to chameleon carriers. FMCSA 
cannot readily determine the number of chameleon carriers on 
the road though they present a serious danger to the public. 
FMCSA has established a vetting program to identify possible 
chameleon carriers but only for bus operators and moving 
companies. FMCSA has chosen to vet these two types of carriers 
because they pose the highest safety and consumer protection 
concerns and there are not enough resources to apply the 
vetting program to the much larger freight carrier population.
    While FMCSA's focus on these carriers limits the vetting 
program to a manageable number, our analysis found that, of the 
more than 1,100 new motor carrier applicants in 2010 that had 
chameleon attributes, the vast majority were freight carriers 
not bus and moving companies. To address chameleon carriers we 
recommended a data-driven approach to its screening process.
    In June 2013, FMCSA began implementing a risk-based 
methodology that closely follows the methodology in our report. 
Preliminary analysis indicate that it is generally successful.
    In conclusion, FMCSA plays an important role in identifying 
and removing unsafe commercial carriers from the roadways. We 
agree with FMCSA that a data-driven approach is critical for 
accomplishing this mission. However, we do not believe the 
agency has developed the most effective methods for using its 
data to target carriers presenting the greatest safety risk.
    Madam Chairman, this concludes my statement. I would be 
pleased to answer any questions you or members of this 
subcommittee might have.
    [The prepared statement of Ms. Fleming follows:]

                             GAO Highlights
    Highlights of GAO-15-433T, a testimony before the Subcommittee on 
Surface Transportation and Merchant Marine Infrastructure, Safety and 
Security, Committee on Commerce, Science, and Transportation, U.S. 
Senate
Why GAO Did This Study
    FMCSA's primary mission of reducing crashes, injuries, and 
fatalities involving large trucks and buses is critical to the safety 
of our Nation's highways. However, with more than 500,000 active motor 
carriers operating on U.S. roadways, FMCSA must screen, identify, and 
target its resources toward those carriers presenting the greatest risk 
for crashing in the future.
    FMCSA has recently taken some steps in this direction by, among 
other actions:
   Establishing its oversight program--the CSA program--based 
        on a data-driven approach for identifying motor carriers at 
        risk of presenting a safety hazard or causing a crash, and
   Establishing a vetting program designed to detect potential 
        ``chameleon'' carriers--those carriers that have deliberately 
        disguised their identity to evade enforcement actions issued 
        against them.
    This testimony provides information on both of these programs, 
based on two recent GAO reports on the oversight challenges FMCSA faces 
in identifying high risk motor carriers for intervention (GAO-14-114), 
and chameleon carriers (GAO-12-364), respectively.
                                 ______
                                 
Motor Carrier Safety 
Improvements to Data-Driven Oversight Could Better Target High Risk 
        Carriers
What GAO Found
    The Federal Motor Carrier Safety Administration (FMCSA) has taken 
steps toward better oversight of motor carriers by establishing the 
Compliance, Safety, Accountability (CSA) and chameleon carrier vetting 
programs; however, FMCSA could improve its oversight to better target 
high risk carriers. The CSA program oversees carriers' safety 
performance through roadside inspections and crash investigations, and 
issues violations when instances of noncompliance with safety 
regulations are found. CSA provides FMCSA, state safety authorities, 
and the industry with valuable information regarding carriers' 
performance on the road.
    A key component of CSA--the Safety Measurement System (SMS)--uses 
carrier performance data collected from inspections and investigations 
to calculate safety scores for carriers and identify those at high risk 
of causing a crash. The program then uses these scores to target high 
risk carriers for enforcement actions, such as warning letters, 
additional investigations, or fines. However, GAO's 2014 report 
identified two major challenges that limit the precision of the SMS 
scores and confidence that these scores are effectively comparing 
safety performance across carriers.
    First, SMS uses violations of safety-related regulations to 
calculate a score, but GAO found that most of these regulations were 
violated too infrequently to determine whether they were accurate 
predictors of crash risk. Second, most carriers lacked sufficient data 
from inspections and violations to ensure that a carrier's SMS score 
could be reliably compared with scores for other carriers. GAO 
concluded that these challenges raise questions about whether FMCSA is 
able to identify and target the carriers at highest risk for crashing 
in the future. To address these challenges, GAO recommended, among 
other things, that FMCSA revise the SMS methodology to better account 
for limitations in available information when drawing comparisons of 
safety performance across carriers. FMCSA did not concur with GAO's 
recommendation to revise the SMS methodology because it believed that 
SMS sufficiently prioritized carriers for intervention. Therefore, 
FMCSA has not taken any actions.
    GAO continues to believe that a data-driven, risk-based approach 
holds promise, and efforts to improve FMCSA's oversight could allow it 
to more effectively target its resources toward the highest risk 
carriers, and better meet its mission of reducing the overall crashes, 
injuries, and fatalities involving motor carriers.
    GAO's 2012 report found that FMCSA examined only passenger and 
household goods carriers as part of its chameleon carrier vetting 
program for new applicants. GAO found that by modifying FMCSA's vetting 
program, FMCSA could expand its examinations of newly registered 
carriers to include all types of carriers, including freight carriers, 
using few additional staff resources. GAO recommended that FMCSA 
develop, implement, and evaluate the effectiveness of a data-driven, 
risk-based vetting methodology to target carriers with chameleon 
attributes. FMCSA concurred with GAO's recommendation and has taken 
actions to address these recommendations.
                                 ______
                                 
      Prepared Statement of Susan A. Fleming, Director, Physical 
      Infrastructure Issues, U.S. Government Accountability Office
Motor Carrier Safety
Improvements to Data-Driven Oversight Could Better Target High Risk 
        Carriers

    Chairwoman Fischer, Ranking Member Booker, and Members of the 
Subcommittee:

    I am pleased to be here today to discuss oversight of the U.S. 
Department of Transportation's (USDOT) Federal Motor Carrier Safety 
Administration (FMCSA). The commercial motor carrier industry is large 
and diverse, with more than 500,000 active motor carriers operating on 
U.S. roadways. FMCSA's primary mission of reducing crashes, injuries, 
and fatalities involving large trucks and buses is critical to the 
safety of our Nation's highways. To accomplish this mission, FMCSA 
engages in a range of activities designed to screen, identify, and 
target its resources toward the motor carriers that demonstrate 
characteristics or behaviors that increase the risk of crashing. Among 
these activities are new entrant safety audits and identification, or 
vetting, of ``chameleon'' carriers--motor carriers that have registered 
and been operating illegally in interstate commerce by using a new 
identity in an effort to disguise their former identity and evade 
enforcement actions issued against them by FMCSA.
    FMCSA's oversight program--the Compliance, Safety, Accountability 
(CSA) program--is based on the Safety Measurement System (SMS), a data-
driven approach for identifying motor carriers at risk of presenting a 
safety hazard or causing a crash.\1\ SMS uses information collected 
during Federal and state roadside inspections and from reported crashes 
to calculate scores across seven categories that quantify a carrier's 
safety performance relative to other carriers.\2\ The precision and 
accuracy of these scores is vital because FMCSA investigators and their 
state partners use SMS results to focus their resources on higher risk 
carriers and, through interventions, help reduce the number of motor 
carrier crashes, injuries, and fatalities. FMCSA currently posts most 
of the scores publicly on its website for use by industry stakeholders 
and the public.\3\ FMCSA has indicated that a future rulemaking will 
include some of the information used to calculate SMS scores to help 
determine a carrier's overall fitness to operate motor vehicles.
---------------------------------------------------------------------------
    \1\ FMCSA was required under section 4138 of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU) to ``ensure that compliance reviews are completed on motor 
carriers that have demonstrated through performance data that they pose 
the highest safety risk.'' Pub. L. No.109-59, Sec. 4138, 119 Stat. 
1144, 1745 (2005).
    \2\ Safety data obtained primarily from roadside inspections as 
well as from crash reports are sorted into six Behavior Analysis and 
Safety Improvement Categories (BASIC)--Unsafe Driving, Hours-of-Service 
Compliance, Driver Fitness, Controlled Substances and Alcohol, Vehicle 
Maintenance, and Hazardous Materials--associated with unsafe 
performance. In addition to the six BASICs, SMS also incorporates data 
based on a carrier's crash involvement.
    \3\ See http://ai.fmcsa.dot.gov/sms/
---------------------------------------------------------------------------
    My statement today presents highlights from our two recent reports 
on the oversight challenges FMCSA faces in identifying high risk motor 
carriers.\4\ Each of these reports contains detailed information on our 
objectives, scope, and methodology for performing this work. The work 
on which this statement is based was performed in accordance with 
generally accepted government auditing standards. Those standards 
require that we plan and perform the audit to obtain sufficient, 
appropriate evidence to provide a reasonable basis for our findings and 
conclusions based on our audit objectives. We believe that the evidence 
obtained provides a reasonable basis for our findings and conclusions 
based on our audit objectives.
---------------------------------------------------------------------------
    \4\ GAO, Federal Motor Carrier Safety: Modifying the Compliance, 
Safety, Accountability Program Would Improve the Ability to Identify 
High Risk Carriers, GAO-14-114 (Washington, D.C.: Feb 3, 2014); GAO, 
Motor Carrier Safety: New Applicant Reviews Should Expand to Identify 
Freight Carriers Evading Detection, GAO-12-364 (Washington, D.C.: Mar 
22, 2012).
---------------------------------------------------------------------------
    In summary, our recent work on FMCSA oversight found that the 
establishment of the CSA program and chameleon carrier vetting program 
are steps toward better oversight of motor carriers. Through the CSA 
program, FMCSA can provide the agency, state safety authorities, and 
the industry with valuable information regarding carriers' performance 
on the road and reach more carriers through interventions. However, 
while we continue to believe that a data-driven, risk-based approach 
holds promise, our work identified several major challenges that limit 
the precision of SMS scores and confidence that these scores are 
effectively comparing safety performance across carriers. These serious 
challenges raise questions about whether CSA is able to identify and 
target the carriers at highest risk for crashing in the future. In 
addition, our recent work on FMCSA's chameleon carrier vetting program 
found that using data analysis for targeting new applicants would allow 
FMCSA to expand its examinations of newly registered carriers to 
include new applicants of all types rather than just passenger and 
household goods carriers, using few or no additional staff resources. 
FMCSA has taken actions to address our recommendations related to the 
vetting of chameleon carriers; however, it has not taken action to 
address our recommendations to better account for limitations in the 
CSA program.
FMCSA's Method Does Not Effectively Identify High Risk Carriers
    As we reported in our February 2014 report, since CSA was 
implemented nationwide in 2010, it has been successful in raising the 
profile of safety in the motor carrier industry and providing FMCSA 
with more tools to increase interventions with carriers. We found that 
following the implementation of CSA, FMCSA was potentially able to 
reach a larger number of carriers, primarily by sending them warning 
letters. Law enforcement officials and industry stakeholders we 
interviewed generally supported the structure of the CSA program, in 
part because CSA provides data about the safety record of individual 
carriers, such as data on inspections, violations, crashes, and 
investigations, that help guide the work of state inspectors during 
inspections. However, despite these advantages, our report also 
uncovered major challenges in reliably assessing safety risk and 
targeting the riskiest carriers.
    First, according to FMCSA, SMS was designed to use all safety-
related violations of FMCSA regulations recorded during roadside 
inspections. For SMS to be effective in identifying carriers at risk of 
crashing, the violation information that is used to calculate SMS 
scores should have a relationship with crash risk. However, we found 
that the relationship between the violation of most of these 
regulations and crash risk is unclear, potentially limiting the 
effectiveness of SMS in identifying carriers that are likely to crash. 
Our analysis found that most of the safety regulations used in SMS were 
violated too infrequently over a 2-year period to reliably assess 
whether they were accurate predictors of an individual carrier's 
likelihood to crash.\5\ Specifically, we found that 593 of the 754 
regulations we examined were violated by less than one percent of 
carriers.\6\ Of the remaining regulations with sufficient violation 
data, we found 13 regulations for which violations consistently had 
some association with crash risk in at least half the tests we 
performed, and only two regulations had sufficient data to consistently 
establish a substantial and statistically reliable relationship with 
crash risk across all of our tests.
---------------------------------------------------------------------------
    \5\ FMCSA uses inspection and crash data for a carrier over a 2-
year period to calculate a SMS score.
    \6\ While SMS includes approximately 800 of FMCSA's regulations, 
our analysis looked at the 754 regulations available for the time frame 
of our analysis in order to limit violations to those that had 
sufficient violation data to examine over time. To conduct our 
analysis, a regulation needed to be present both during our analysis 
observation period, December 2007 to December 2009, and our evaluation 
period, December 2009 to June 2011.
---------------------------------------------------------------------------
    Second, most carriers lack sufficient safety performance data, such 
as information from inspections, to ensure that FMCSA can reliably 
compare them with other carriers. SMS scores are based on violation 
rates that are calculated by dividing a carrier's violations by either 
the number of inspections or vehicles associated with a carrier. The 
precision and reliability of these rates varies greatly depending on 
the number of inspections or vehicles a carrier has. Violation rates 
calculated for carriers with more inspections or vehicles will have 
more precision and confidence than those with only a few inspections or 
vehicles.\7\ This statistical reality is critical to SMS, because for 
the majority of the industry, the number of inspections or vehicles for 
an individual carrier is very low. About two-thirds of carriers we 
evaluated operated fewer than four vehicles and more than 93 percent 
operated fewer than 20 vehicles.\8\ Moreover, many of these carriers' 
vehicles were inspected infrequently. Carriers with few inspections or 
vehicles will potentially have estimated violation rates that are 
artificially high or low and thus not sufficiently precise for 
comparison across carriers. This creates the likelihood that many SMS 
scores do not accurately or precisely assess safety for a specific 
carrier. FMCSA acknowledged that violation rates for carriers with few 
inspections or vehicles can be less precise, but the methods FMCSA uses 
to address this limitation are not effective. For example, FMCSA 
requires a minimum level of data (i.e., inspections or violations) for 
a carrier to receive an SMS score. However, we found that level of data 
is not sufficient to ensure reliable results.
---------------------------------------------------------------------------
    \7\ Rate estimates become more precise with each additional 
observation. Estimates based on 10 to 20 observations are more precise 
than those based on 1 to 5 observations. However, the amount of data 
required in practice depends on the degree of imprecision the user is 
willing to accept for a given purpose. This trade-off, in turn, depends 
on how the user considers the consequences of inaccuracy.
    \8\ Our analysis included nearly 315,000 U.S.-based carriers that 
were under FMCSA's jurisdiction and, with reasonable certainty, were 
active during the period from December 2007 through June 2011. We 
considered a carrier active during this period if it received a state 
or Federal inspection, was involved in a crash, or reported the number 
of vehicles it operates to FMCSA. Information on inspections, 
violations, and crashes from December 2007 through December 2009, our 
observation period, was used to calculate SMS scores. We used crash 
information from the remaining 18 month period--from December 2009 
through June 2011--referred to as our evaluation period, to determine 
these carriers' subsequent crash rates and involvement in crashes.
---------------------------------------------------------------------------
    Our analysis of the effectiveness of FMCSA's existing CSA 
methodology found that the majority of the carriers that SMS identified 
as having the highest risk for crashing in the future did not actually 
crash. Moreover, smaller carriers and carriers with few inspections or 
vehicles tended to be disproportionately targeted for intervention. As 
a result, FMCSA may devote intervention resources to carriers that do 
not necessarily pose as great a safety risk as other carriers. In our 
2014 report, we illustrated that when SMS only considered carriers with 
more safety information, such as inspections, it was better able to 
identify carriers that later crashed and allowed for better targeting 
of resources. An approach like this would involve trade-offs; fewer 
carriers would receive SMS scores, but these scores would generally be 
more reliable for targeting FMCSA's intervention resources. FMCSA could 
still use the safety information available to oversee the remaining 
carriers the same way it currently oversees the approximately 72 
percent of carriers that do not receive SMS scores using its existing 
approach.
    Given the limitations of safety performance information, we 
concluded that it is important that FMCSA consider how reliable and 
precise SMS scores need to be for the purposes for which they are used. 
FMCSA reports these scores publicly and is considering using a 
carrier's performance information to determine its fitness to operate. 
FMCSA includes a disclaimer with the publicly released SMS scores, 
which states that the data are intended for agency and law enforcement 
purposes, and that readers should draw conclusions about a carrier's 
safety condition based on the carrier's official safety rating rather 
than its SMS score. At the same time, FMCSA has also stated that SMS 
provides stakeholders with valuable safety information, which can 
``empower motor carriers and other stakeholders. . .to make safety-
based business decisions.'' \9\ As a result, some stakeholders we spoke 
to, such as industry and law enforcement groups, have said that there 
is a lot of confusion in the industry about what the SMS scores mean 
and that the public, unlike law enforcement, may not understand the 
limitations of the system.
---------------------------------------------------------------------------
    \9\ CSA, CSMS Methodology, Version 3.0.1 Motor Carrier Preview, 
Revised August 2013.
---------------------------------------------------------------------------
    Based on the concerns listed above, in our 2014 report we 
recommended that FMCSA revise the SMS methodology to better account for 
limitations in available information when drawing comparisons of safety 
performance across carriers. We further recommended that FMCSA's 
determination of a carrier's fitness to operate should account for 
limitations we identified regarding safety performance information. 
FMCSA did not concur with our recommendation to revise the SMS 
methodology because, according to FMCSA officials, SMS in its current 
state sufficiently prioritizes carriers for intervention purposes. 
However, FMCSA agreed with our recommendation on the determination of a 
carrier's fitness to operate, but has not yet taken any actions. As I 
will discuss later in my statement, we continue to believe that FMCSA 
should improve its SMS methodology.
FMCSA Cannot Readily Determine the Number of Chameleon Carriers
    As we reported in our March 2012 report, FMCSA also faces 
significant challenges in determining the prevalence of chameleon 
carriers, in part, because there are approximately 75,000 new 
applicants each year. As mentioned earlier, chameleon carriers are 
motor carriers disguising their former identity to evade enforcement 
actions. FMCSA has established a vetting program to review each new 
application for operating authority submitted by passenger carriers 
(intercity and charter or tour bus operators) and household goods 
carriers (hired by consumers to move personal property). According to 
FMCSA officials, FMCSA vetted all applicants in these groups for two 
reasons: (1) these two groups pose higher safety and consumer 
protection concerns than other carrier groups and (2) it does not have 
the resources to vet all new carriers. While FMCSA's exclusive focus on 
passenger and household goods carriers limits the vetting program to a 
manageable number, it does not account for the risk presented by 
chameleon carriers in the other groups, such as for-hire freight 
carriers,\10\ that made up 98 percent of new applicants in 2010.
---------------------------------------------------------------------------
    \10\ FMCSA oversees two main groups of interstate motor carriers: 
(1) private carriers, who run an internal trucking operation to support 
a primary business in another industry, such as a retail store chain, 
and (2) for-hire carriers that sell their trucking services on the open 
market. Private and for-hire motor carriers seeking to operate in 
interstate commerce must register with FMCSA. For-hire carriers are 
also required to obtain operating authority from FMCSA, which dictates 
the type of operation the carrier may run and the cargo it may carry.
---------------------------------------------------------------------------
    We found that using data analysis to target new applicants would 
allow FMCSA to expand its examinations of newly registered carriers to 
include new applicants of all types using few or no additional staff 
resources. Our analysis of FMCSA data found that 1,136 new motor 
carrier applicants in 2010 had chameleon attributes, of which 1,082 
were freight carriers.\11\ Even with the large number of new applicant 
carriers and constraints on its resources, we concluded in 2012 that 
FMCSA could target the carriers that present the highest risk of 
becoming chameleon carriers by using a data-driven, risk-based 
approach.
---------------------------------------------------------------------------
    \11\ For the purposes of our analysis, we defined chameleon 
attributes as those that met two criteria: (1) They submitted 
registration information that matched information for a previously 
registered carrier; (2) The previously registered carrier had a motive 
for evading detection, such having as a history of safety violations or 
having filed for bankruptcy.
---------------------------------------------------------------------------
    As a result of these findings, we recommended that FMCSA use a 
data-driven, risk-based approach to target carriers at high risk for 
becoming chameleon carriers. This would allow expansion of the vetting 
program to all carriers with chameleon attributes, including freight 
carriers. FMCSA agreed with our recommendations. In June 2013, to help 
better identify chameleon carriers, FMCSA developed and began testing a 
risk-based methodology that implemented a framework that closely 
follows the methodology we discussed in our report. FMCSA's preliminary 
analysis of this methodology indicates that it is generally successful 
in providing a risk-based screening of new applicants, which it plans 
to use as a front-end screening methodology for all carrier types 
seeking operating authority. By developing this risk-based methodology 
and analyzing the initial results, FMCSA has developed an approach that 
may help keep unsafe carriers off the road.
    To further help Congress with its oversight of FMCSA and motor 
carrier safety, we also have on-going work on FMCSA's hours-of-service 
regulations, DOD's Transportation Protective Services program,\12\ and 
commercial driver's licenses.\13\ This work is in various stages, and 
we expect to issue the final reports later this year.
---------------------------------------------------------------------------
    \12\ DOD's Transportation Protective Services program uses 
commercial motor carriers to transport hazardous and sensitive 
materials such as arms, ammunition, and explosives, and certain 
classified shipments.
    \13\ FMCSA conducts ongoing verification of State CDL program 
compliance and catalogs the results.
---------------------------------------------------------------------------
    In conclusion, the commercial motor carrier industry is large and 
dynamic, and FMCSA plays an important role in identifying and removing 
unsafe carriers from the roadways. With over 500,000 active motor 
carriers, it is essential to examine ways to better target FMCSA's 
resources to motor carriers presenting the greatest risk. To 
effectively do this, FMCSA must use a number of strategies to identify 
and intervene with high risk carriers. We continue to believe that a 
data-driven, risk-based approach for identifying high risk carriers 
holds promise. FMCSA's preliminary steps to implement a risk-based 
screening methodology have the potential to identify more high risk 
chameleon carriers. However, without efforts to revise its SMS 
methodology, FMCSA will not be able to effectively target its 
intervention resources toward the highest risk carriers and will be 
challenged to meet its mission of reducing the overall crashes, 
injuries, and fatalities involving large trucks and buses.
    Chairwoman Fischer, Ranking Member Booker, and Members of the 
Subcommittee, this concludes my prepared remarks. I would be pleased to 
answer any questions you or other Members may have at this time.

    Senator Fischer. Thank you, Ms. Fleming.
    Mr. Hart.

    STATEMENT OF HON. CHRISTOPHER A. HART, ACTING CHAIRMAN, 
              NATIONAL TRANSPORTATION SAFETY BOARD

    Mr. Hart. Thank you.
    Good morning, Chairman Fischer, Ranking Member Booker, and 
members of the Subcommittee. Thank you for the opportunity to 
appear before you today on behalf of the National 
Transportation Safety Board.
    Far too many highway crashes involve large trucks and 
buses. This poses a disproportionate hazard to occupants in 
passenger vehicle crashes that in 2012 alone killed nearly 
4,000 people and injured more than 100,000. A recent upward 
trend in crashes involving large trucks prompted the NTSB to 
include strengthening commercial truck safety on its 2015 most 
wanted list of the most critical changes that are needed for 
transportation safety.
    While there has been progress since the establishment of 
FMCSA in 1999, this death toll is completely unacceptable. The 
NTSB has issued 126 safety recommendations to the FMCSA and 
more than half of them remain open. Their implementation would 
enable the FMCSA to have a more immediate and lasting effect on 
reducing highway deaths.
    Today, I will focus on three areas: fatigue, oversight, and 
technology. The NTSB has long made recommendations on reducing 
driver fatigue, including hours of service, electronic logging 
devices, diagnosis and treatment of obstructive sleep apnea, 
education and training, effective countermeasures, and risk 
management programs. We are currently investigating a major 
crash that the Ranking Member referred to last year involving a 
large truck near Cranbury, New Jersey where fatigue may have 
been an issue. Fatigue is a contributing factor in far too many 
truck and bus crashes, and our research finds that it is the 
most frequently sited probable cause in crashes that are fatal 
to the driver.
    The NTSB has made recommendations to FMCSA's predecessors 
and DOT to use science-based principles to revise hours of 
service regulations for commercial drivers; ensure that rule-
enabled drivers to obtain 8 hours of continuous sleep, and 
illuminate provisions that allow splitting of sleep periods. In 
2010, the FMCSA issued an NPRM to change the hours of service 
rule for truck drivers, but the NPRM unfortunately left 
passenger carrier rules unchanged.
    We support those provisions that are scientifically based 
to reduce continuous duty driving time, encourage breaks, 
promote nighttime sleep, and foster consistent schedules. We 
also support limiting use of the restart provision and require 
that the 34-hour restart interval include at least two 
consecutive off-duty periods during the nighttime circadian low 
point to increase opportunities for drivers to get adequate 
restorative sleep.
    The NTSB sees a disturbing trend of crashes involving 
fatigue drivers operating well in excess of hours of service 
limitations. We have long advocated using electronic logging 
devices for monitoring duty time. These enable tracking hours 
more effectively preventing violations and ensuring adequate 
time for restorative rest. The FMCSA must expeditiously issue 
the final electronic logging device rule to increase hours of 
service compliance for maximum safety.
    Regarding FMCSA oversight, many of the NTSB's 
investigations have identified shortcomings in FMCSA truck and 
bus company oversight in which a deficient compliance review 
program has allowed unsafe businesses to continue operating. 
The two most important safety areas are driver performance and 
vehicle condition. And the FMCSA should emphasize both of these 
reviews. An unsatisfactory rating in either area should 
disqualify operators.
    In 2011, we recommended that the FMCSA include safety 
measurement rating scores in its compliance review methodology 
for determining a carrier's fitness to operate. DOT has long 
plan changes to this process, and now, after long delays, 
predicts a rulemaking later this year. Any further delays will 
keep unsafe, high-risk carriers on our highways even longer 
endangering the motoring public.
    Finally, I would like to discuss promising new 
technologies. Technologies such as tested and proven life-
saving systems for speed limiting, forward collision warning, 
and electronic stability control, offer significant potential 
for reducing crashes. We urge the DOT Secretary to direct FMCSA 
and National Highway Traffic Safety Administration to expedite 
wider deployment of these technologies and to commercial motor 
vehicles.
    Crashes take far too many lives and forever change even 
more lives. Crashes also provide unique opportunities to 
identify safety issues. Unfortunately, too many of the problems 
outlined today have caused multiple crashes over a number of 
years and we keep seeing them over and over again.
    These must be addressed. Transportation safety is too 
important to continue repeating deadly mistakes and we must do 
better.
    Thank you for inviting me today to testify, and I am happy 
to answer any questions you may have.
    [The prepared statement of Mr. Hart follows:]

  Prepared Statement of Hon. Christopher A. Hart, Acting Chairman, On 
           Behalf of the National Transportation Safety Board
    Good morning, Chairman Fischer, Ranking Member Booker, 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 an independent Federal agency charged by Congress with 
investigating every civil aviation accident in the United States and 
significant accidents and incidents in other modes of transportation--
railroad, highway, marine, and pipeline. The NTSB determines the 
probable cause of accidents and other transportation events and issues 
safety recommendations aimed at preventing future accidents. In 
addition, the NTSB carries out special transportation safety studies 
and coordinates the resources of the Federal Government and other 
organizations to provide assistance to victims and their family members 
affected by major transportation disasters. Every day, there are 
thousands of accidents on our Nation's highways resulting in tens of 
thousands of fatalities each year. Unfortunately, far too many of these 
highway crashes involve large trucks and buses, and the number of 
crashes involving large trucks has been increasing for the last several 
years.
    Last month, the NTSB released its Most Wanted List of 
Transportation Safety Improvements for 2015. Each year, we develop our 
Most Wanted List to highlight safety issues identified from our 
accident investigations. One of the Most Wanted areas included this 
year is to ``Strengthen Commercial Trucking Safety.'' We rely on 
commercial trucks to deliver food and goods to our local grocery 
stores, medical supplies to our pharmacies and hospitals, and packages 
to our loved ones. But because of their sheer size, weight, and 
physical properties, commercial trucks introduce a disproportionate 
hazard to passenger vehicle occupants in a crash. We must not lose 
sight of some very alarming statistics concerning the staggering number 
of deaths and injuries that occur each year in crashes involving large 
trucks and buses. In 2012 alone, nearly 4,000 people were killed and 
more than 100,000 people were injured in such crashes.
    The primary mission of the FMCSA is to reduce crashes, fatalities, 
and injuries involving large trucks and buses. In the Motor Carrier 
Safety Improvement Act of 1999, the legislation establishing the FMCSA, 
among the stated Congressional findings in support of creating the new 
agency was the following statement: ``The current rate, number, and 
severity of crashes involving motor carriers in the United States are 
unacceptable.'' While there has been considerable reduction in the 
number of fatalities since the establishment of the FMCSA, much more 
needs to be done; the death toll is still unacceptable.
    Since 1999, the NTSB has issued 126 safety recommendations to the 
FMCSA, 65 of which are currently in an ``open'' status. Implementation 
of the ``open'' recommendations would strengthen the FMCSA's capability 
to have an immediate and lasting effect on reducing loss of life on our 
highways. My testimony will provide a brief overview of some of our 
recent crash investigations and safety recommendations. I will also 
discuss the NTSB's concern regarding the upward trend in crashes 
involving large trucks, the need for improved oversight and vehicle 
maintenance within the motor carrier industry, the importance of 
combatting driver fatigue and distraction, driver's medical fitness for 
duty, and the life-saving benefits of collision avoidance technology.
Recent Crashes and Accident Trends
    During the past two years, the NTSB launched investigative teams to 
16 major highway crashes involving large trucks, motorcoaches, and 
school buses.\1\ These crashes resulted in 50 fatalities and more than 
230 injuries. In 2014, the NTSB completed investigations involving a 
commercial truck with an oversized load that collided with the I-5 
bridge over the Skagit River in Mount Vernon, Washington, resulting in 
a bridge span collapse and bridge replacement costs in excess of $4 
million; and a truck-train collision in Rosedale, Maryland, resulting 
in the derailment of a freight train and a post-crash fire and 
explosion.
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    \1\ Crash locations and dates: Elizabethtown, KY (03/02/13); 
Irving, TX (04/11/13); Mount Vernon, WA (05/23/13); Rosedale, MD (05/
28/13); Murfreesboro, TN (06/13/13); Annapolis, MD (07/19/13); 
Naperville, IL (01/27/14); Centerville, LA (02/15/14); Orland, CA (04/
10/14); Anaheim, CA (04/24/14); Cranbury, NJ (06/07/14); Red Lion, DE 
(09/21/14); Davis, OK (09/26/14); Knoxville, TN (12/21/14); Queenstown, 
MD (01/10/15); and Penwell, TX (01/14/15).
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    Ongoing NTSB crash investigations that we will complete within the 
next year include the following: a truck-tractor trailer combination 
unit that crossed a median and collided with a motorcoach transporting 
high school students and adult chaperones in Orland, California, 
killing 10 people and injuring 37 others; a truck-tractor trailer 
combination unit that collided with a limousine van in a work zone in 
Cranbury, New Jersey, killing one person and injuring eight; a truck-
tractor trailer combination unit that crossed a median and collided 
with a mid-size bus transporting a college softball team in Davis, 
Oklahoma, killing four and injuring 13; and a truck-tractor trailer 
combination unit that collided with emergency vehicles assisting a 
disabled vehicle in Naperville, Illinois, killing an Illinois State 
Tollway worker and seriously injuring an Illinois State trooper.
    In addition to investigating crashes, the NTSB closely monitors 
highway accident statistics and examines trends in data. The NTSB is 
very concerned about the increase in fatalities and injuries, and the 
rate at which large truck crashes are occurring. In 2009, there were 
3,380 people killed in crashes involving large trucks; in 2010--3,686 
fatalities; in 2011--3,781 fatalities; and in 2012--3,921 fatalities. 
During this four-year period, not only did the death toll increase, but 
the rate of large truck crashes per vehicle miles traveled and per 
number of registered vehicles also increased.\2\
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    \2\ Pocket Guide to Large Truck and Bus Statistics, October 2014 
Update, Federal Motor Carrier Safety Administration, Office of 
Analysis, Research, and Technology.
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Motor Carrier Oversight
    The NTSB has a long history of making recommendations to the FMCSA 
and its predecessors to improve the safety of the motor carrier 
industry. Our investigations focus on identifying the underlying causes 
of accidents and the safety improvements necessary to prevent their 
recurrence. Many of our investigations have identified shortcomings in 
the FMCSA's oversight of truck and bus companies. We have repeatedly 
found instances in which deficiencies in the FMCSA compliance review 
program allowed companies with serious safety problems to continue 
operations.
    The two most important areas related to safe motor carrier 
operations are the performance of drivers and the condition of 
vehicles. The NTSB believes that the FMCSA should emphasize both of 
these critical elements in its compliance reviews and disqualify an 
operator that receives an unsatisfactory rating in either vehicle or 
driver areas. The current compliance review process is inadequate and 
limits the FMCSA's ability to remove unsafe carriers from our highways 
before they are involved in a catastrophic crash.
    The NTSB's original recommendation regarding this issue was made in 
1999 in response to a motorcoach rollover crash in Indianapolis, 
Indiana, that killed two passengers and injured 13. The motorcoach had 
only 50 percent braking efficiency and the FMCSA post-accident 
compliance review resulted each of the carrier's 10 vehicles being 
placed out of service. Because the company had been inspected nine 
times between 1987 and 1995, the issues with vehicle maintenance should 
have been obvious prior to the crash. In 1994, even though 63 percent 
of the operator's vehicles met the out-of-service criteria, it received 
a ``conditional'' rating for vehicle factors. Because all the other 
factors were rated ``satisfactory,'' the operator was given an overall 
rating of ``satisfactory'' and continued to operate. As a result of our 
investigation of this crash, the NTSB recommended that the FMCSA 
emphasize both driver performance and vehicle condition in its 
compliance reviews, and that an unsatisfactory rating in either area 
should prohibit the carrier from operating.\3\
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    \3\ H-99-6
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    In the years following, the NTSB investigated additional motorcoach 
accidents that involved this same issue: a five-fatality motorcoach 
crash in Victor, New York, in 2002, and a 23-fatality motorcoach fire 
near Wilmer, Texas, in 2005. Because of the FMCSA's lack of progress, 
the NTSB cited the agency in the probable cause of the Wilmer accident, 
stating: ``Contributing to the accident was the Federal Motor Carrier 
Safety Administration's ineffective compliance review system, which 
resulted in inadequate safety oversight of passenger motor carriers.''
    In 2007 and 2008, additional NTSB investigations continued to show 
that the FMCSA compliance review and oversight program was 
dysfunctional. In our investigations of a 17-fatality motorcoach crash 
in Atlanta, Georgia, in 2007, and a fatal motorcoach rollover crash in 
Victoria, Texas, in 2008, we continued to reiterate our previous 
recommendations for changes to the compliance review process.
    In 2008, the FMCSA launched an operational model test of the 
Compliance, Safety, Accountability (CSA) program (originally named the 
Comprehensive Safety Analysis 2010 initiative), which promised to be a 
complete revamp of the compliance review process. The measurement 
component of the CSA program is the risk-based Carrier Safety 
Measurement System (CSMS), which quantifies the on-road performance of 
motor carriers to prioritize enforcement resources. Since the 
implementation of the CSMS, the NTSB has found that the safety 
measurement scores will often accurately predict serious safety 
deficiencies in a company's operation. Unfortunately, however, in many 
of the crashes we investigated, there was insufficient intervention 
prior to the accident to remove the unsafe carrier from operation.
    In 2011, following the NTSB's investigation of a 15-fatality 
motorcoach crash in New York City, we recommended that the FMCSA 
include safety measurement rating scores in the methodology used to 
determine a carrier's fitness to operate.\4\ The final report urged the 
FMCSA to move forward more expeditiously on finalizing the Safety 
Fitness Determination (SFD) process to help remove unsafe motor 
carriers and their drivers from the Nation's highways.
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    \4\ H-12-17
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    According to the February 2015 U.S. Department of Transportation 
(DOT) Significant Rulemakings Report, FMCSA planned to initiate its 
rulemaking to propose changes to the SFD process in 2007, but did not 
do so until September 2009. The agency's plan to publish a notice of 
proposed rulemaking (NPRM) in March 2008 is now predicted to occur in 
July of this year. The NTSB is very concerned about the continued delay 
in the release of the SFD rulemaking. Over 15 years has passed since we 
first called attention to problems with the FMCSA's compliance review 
process and the oversight program remains dysfunctional. Prolonged 
deferral of rulemaking will continue to allow many unsafe, high-risk 
carriers to operate on our highways without intervention, posing a 
significant risk to the motoring public.
FMCSA Effective Use of Resources
    The task facing the FMCSA is enormous and its resources are 
limited. With about 1,000 dedicated and outstanding employees, the 
FMCSA regulates a diverse industry consisting of more than 539,000 
interstate truck and bus companies, 10.5 million large trucks, 760,000 
buses, and 5.6 million commercial drivers. In comparison, the Federal 
Aviation Administration has over seven times the number of employees 
who assist in regulating a much smaller industry of airline companies, 
aircraft, and pilots. It is vitally important that the FMCSA employ a 
collaborative, transparent, and data-driven approach to address the 
highest risk motor carriers, drivers, and vehicles. Due to its limited 
resources, the FMCSA is able to complete an annual compliance review 
for only about 3 percent of the 539,000 active interstate motor 
carriers.
    Given the unacceptably low compliance review rate of the motor 
carrier industry, it is of utmost importance that the FMCSA maximize 
the effectiveness of onsite reviews. The NTSB, however, has questioned 
the effectiveness of these reviews. In 2013, for example, the NTSB 
investigated four commercial motor vehicle crashes, which together 
resulted in 25 deaths and 83 injuries. Data collected for each motor 
carrier presented ``red flags'' that should have led to strong 
intervention by the FMCSA; information such as longstanding and 
insufficient safety management practices, poor performance during 
roadside inspections, and law enforcement data indicating that the 
companies posed a significant risk and hazard to the motoring public. 
In each case, FMCSA safety investigators had visited the company prior 
to the crash and given it a clean bill of health, but immediately 
following the crash--after an NTSB investigation--the FMCSA found 
significant safety deficiencies and in three of the four cases, 
declared the company an imminent hazard, and placed it out of service. 
As a result of these recent NTSB investigations, we made two 
recommendations to the DOT to conduct an internal audit of processes at 
the FMCSA.\5\
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    \5\ H-13-39 and H-13-39
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    On February 3, 2014, in response to these recommendations, the DOT 
convened a task force to conduct an independent review of the 
compliance review process under the direction of the DOT Safety 
Council. NTSB staff met with task force members to provide additional 
views and information. It is our understanding that the review was 
completed in the summer of 2014 and today--9 months later--it has not 
yet been released, but is still with the Secretary of Transportation. 
The NTSB looks forward to seeing the study results and what changes are 
proposed to improve the effectiveness of the FMCSA compliance review 
process.
Oversight of New Entrant and Reincarnated Motor Carriers
    In addition to ensuring adequate oversight of the motor carrier 
industry, the NTSB has long recommended that the FMCSA implement 
additional safeguards to ensure that new entrant carriers are safe 
before beginning operations. Although we commend the FMCSA for issuing 
a final rule in 2008 that strengthened requirements for new entrant 
carriers, additional processes need to be in place to keep carriers 
from going out of business and then restarting as a new motor carrier 
with a different company name and DOT number.
    In 2002, the NTSB investigated a crash involving a truck-tractor 
semitrailer collision with a Greyhound bus in Loraine, Texas, that 
resulted in three deaths. Our investigation revealed that when the 
trucking company owner submitted his application, he lied about his 
knowledge of regulations, his compliance management systems, and a drug 
conviction for possession of large amounts of marijuana. The owner also 
failed to maintain required records on his drivers or vehicles, have a 
drug and alcohol program, and conduct background checks of drivers. He 
also dispatched the accident driver knowing that he did not have a CDL 
or a medical certificate. At that time, the process of becoming a motor 
carrier was not complicated. The owner of a truck or bus company merely 
needed to fill out an online form and pay a small fee to receive 
operating authority from the FMCSA with practically no agency review or 
follow-up of new entrant motor carriers. As a result of that 
investigation, the NTSB recommended that the FMCSA require new motor 
carriers to demonstrate their safety fitness prior to obtaining new 
entrant operating authority.\6\
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    \6\ H-03-02
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    Unfortunately, NTSB investigations have discovered unscrupulous 
motor carriers using the new entrant program to evade enforcement 
action or an out-of-service order by going out of business and then 
reincarnating as a brand new company. The NTSB found this to be the 
case with the motorcoach operator involved in the 17-fatality Sherman, 
Texas, crash in 2008. After losing its authority to operate because of 
an unsatisfactory compliance review rating, the operator subsequently 
applied for new authority under a new name as a new entrant. The NTSB 
concluded that the FMCSA processes were inadequate to identify the 
operator as a company that was simply evading enforcement action. We 
recommended that the FMCSA evaluate the effectiveness of its New 
Applicant Screening Program.\7\
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    \7\ H-09-21
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    The NTSB found additional deficiencies with the FMCSA's new entrant 
program during the 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 
as a new operator shortly after the crash. As a result, the NTSB issued 
recommendations requesting that the FMCSA develop methods to identify 
reincarnated carriers and seek authority to deny or revoke their 
operating authority.\8\ In September 2009, the FMCSA's Motor Carrier 
Safety Advisory Committee echoed the NTSB's position that new entrants 
should be evaluated before being allowed to operate.
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    \8\ H-09-34
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    In 2011, the NTSB investigated a multiple-fatality motorcoach 
rollover crash near Doswell, Virginia. We found that the motorcoach 
operator did not undergo a safety audit until it had been in business 
for nearly two years. Although the carrier had no effective safety 
programs in place and had safety deficiencies in three important areas, 
it passed the new entrant audit and the FMCSA approved its application 
for operating authority. As a result of the Doswell investigation, the 
NTSB recommended that the FMCSA review with each new entrant motor 
carrier a structured process to identify the root cause of safety risks 
and maintain an effective safety assurance program.\9\
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    \9\ H-12-31
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    In 2012, the FMCSA and state commercial motor vehicle enforcement 
personnel completed more than 34,000 new entrant safety audits. 
Unfortunately, however, NTSB investigations continue to identify issues 
regarding the program's effectiveness. In 2013, the NTSB investigated a 
highway-railroad grade crossing collision in Rosedale, Maryland, in 
which a single-unit truck crossed in front of a freight train, 
resulting in the train's derailment, a post-crash fire, and an 
explosion involving hazardous materials. The trucking company had been 
in the new entrant program for an extended time after failing its 
initial safety audit and it submitted multiple corrective action plans. 
Nevertheless, neither the FMCSA nor state enforcement personnel 
followed up to ensure that it had adequate safety controls. As a result 
of this crash investigation, the NTSB recommended that the FMCSA 
require a full compliance review of new entrants that fail their 
initial safety audits.\10\
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    \10\ H-14-27
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Vehicle Maintenance
    The NTSB has made numerous recommendations over the years on the 
safety of commercial motor vehicles and has found serious deficiencies 
in critical vehicle components such as brakes and tires. Unfortunately, 
experience has demonstrated that this is not an anomaly. Year after 
year, roadside inspectors have found that about 20 percent of 
commercial motor vehicles are in a condition serious enough to render 
them out of service.
    The NTSB has taken issue with the FMCSA's oversight of vehicle 
inspections including inspections of commercial motorcoaches. Following 
the eight-fatality Tallulah, Louisiana, and the 17-fatality Sherman, 
Texas, motorcoach crashes, the NTSB recommended that the FMCSA provide 
adequate oversight of private inspection garages.\11\
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    \11\ H-05-4 and H-09-20
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    In crashes involving a school bus in Mountainburg, Arkansas, and a 
dump truck in Glen Rock, Pennsylvania, the NTSB found that the FMCSA 
lacked adequate oversight of pre-trip brake inspections, brake 
inspector qualifications, and formal brake inspector training.\12\ The 
Glen Rock crash prompted the NTSB to recommend that drivers be required 
to demonstrate proficiency in air-brake vehicles and to understand the 
dangers of adjusting automatic slack adjusters.\13\
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    \12\ H-02-15, H-02-17, and H-02-18
    \13\ H-06-02
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    The NTSB found out-of-adjustment and defective brakes to be 
contributing factors in three of its recent crash investigations: a 
six-fatality truck-tractor trailer combination unit collision with an 
Amtrak train in Miriam, Nevada; a truck-school bus crash in 
Chesterfield, New Jersey; and an eight-fatality motorcoach accident in 
San Bernardino, California.
    The NTSB has also found problems with commercial vehicle tires. A 
catastrophic failure can result when a speed-restricted tire is used 
above 55 mph for extended periods. Although this was not the cause of 
the motorcoach accident in Tallulah, Louisiana, the inspection process 
failed to identify the speed-restricted tires on this vehicle even 
though it operated on major highways. The NTSB made recommendations to 
correct this deficiency.\14\
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    \14\ H-05-03
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Driver Fatigue
    The NTSB has a long history of making recommendations to reduce 
driver fatigue and the likelihood of related highway crashes including 
recommendations on hours of service (HOS), electronic logging devices 
(ELDs), diagnosis and treatment of obstructive sleep apnea (OSA), 
education and training, vehicle-and environment-based countermeasures, 
and risk management programs.
    Estimates of the prevalence of driver drowsiness in highway crashes 
vary widely--from 1 percent of all police-reported crashes to 24 
percent of fatal crashes--based on different databases and research 
methods.\15\,\16\ Because of the absence of a diagnostic 
fatigue test, driver fatigue is believed to be a widely underreported 
cause of traffic crashes. The majority of police accident investigators 
do not code fatigue as being a contributing factor in a crash unless 
the driver reports falling asleep at the wheel or there is an 
independent witness. Unless the accident investigation entity reviews 
the driver's sleep and work history, and thoroughly evaluates the 
dynamics of the collision, a finding of driver fatigue as a 
contributing factor in an accident is highly unlikely.
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    \15\ National Highway Traffic Safety Administration (2011), Traffic 
Safety Facts: Drowsy Driving, DOT-HS-811-449, reports 1.3 percent of 
all crashes, 2 percent of injury crashes, and 2.4 percent of fatal 
crashes involve a drowsy driver.
    \16\ National Highway Traffic Safety Administration (2006), The 
Impact of Driver Inattention on Near-Crash/Crash Risk: An Analysis 
Using the 100-Car Naturalistic Driving Study Data, DOT-HS-810-594, 
estimated that 22-24 percent of crashes and near-crash events involved 
moderate to severe driver drowsiness.
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    In October 2014, the NTSB convened a forum on drowsy driving in the 
noncommercial vehicle driving environment. The forum brought together 
experts on fatigue and sleep research from around the world. In 
discussing the prevalence of drowsy driving crashes, experts pointed to 
a 2012 AAA Foundation for Traffic Safety study that used the National 
Highway Traffic Safety Administration's (NHTSA) National Automotive 
Sampling System (NASS) crashworthiness system data from 1999-2008 
comprising 47,597 crashes and over 80,000 vehicles. The study estimated 
that 17 percent of fatal crashes involved at least one drowsy driver. 
Among crashes where at least one occupant was hospitalized, 13 percent 
involved a drowsy driver, and in overall statistics, about 7 percent of 
crashes involved at least one drowsy driver.
    Based on these percentages, we can conservatively estimate that 
more than 5,000 people are killed each year in crashes involving 
fatigue.
Hours of Service Regulations
    The NTSB has found fatigue as a contributing factor in far too many 
truck and bus crashes. In the 1990s, we conducted two safety studies of 
commercial truck crashes and found that fatigue was the most frequently 
cited probable cause or factor in investigated crashes that were fatal 
to the driver. Based on these studies, the NTSB recommended that the 
FMCSA use science-based principles to revise the HOS regulations for 
commercial drivers, ensure that the rule would enable drivers to obtain 
at least eight hours of continuous sleep, and eliminate sleeper berth 
provisions that allow for the splitting of sleep periods.
    In December 2010, the FMCSA issued an NPRM to change the HOS rule 
for truck drivers but, unfortunately, left the rules for passenger 
carriers unchanged. The NTSB responded to the NPRM by supporting those 
provisions that are scientifically based and would reduce continuous 
duty or driving time, encourage break-taking, promote nighttime sleep, 
and foster scheduling patterns that are predictable and consistent with 
the normal human diurnal circadian rhythm. We also stated that limiting 
how often drivers may use the ``restart'' provision and requiring that 
the 34-hour restart interval include two periods between midnight and 
6:00 a.m. should have the effect of increasing the amount of sleep that 
drivers receive during the restart period and may encourage drivers 
that are more diurnally oriented.
    The NTSB acknowledges the challenges associated with establishing 
HOS regulations that promote safety and driver health while still 
providing drivers and operators with sufficient flexibility to make 
scheduling decisions and carry out operations in a competitive manner. 
Although many drivers do not have schedules that extend to the 
regulatory limits, some motor carriers have elected to incorporate the 
maximum on-duty period requirement into their supply chain planning, 
which results in scheduling drivers to the regulatory limits.
    The NTSB will continue to support and advocate for HOS regulations 
that are likely to reduce driver fatigue. Nevertheless, we acknowledge 
that HOS rules alone cannot solve the problem of fatigue-related 
crashes. As discussed below, the NTSB has also made recommendations 
calling for a mandate for ELDs, detection and treatment of obstructive 
sleep apnea, and effective fatigue management programs.
Electronic Logging Devices
    Although HOS rules have been in place for years, the NTSB continues 
to see a disturbing trend of fatigued drivers operating commercial 
motor vehicles well in excess of HOS limitations and subsequently being 
involved in catastrophic crashes. For over 35 years, the NTSB has 
advocated the use of ELDs to allow better monitoring of hours of 
service and driver fatigue. In 2007, following the NTSB's investigation 
of a truck-tractor trailer accident in Chelsea, Michigan, we 
recommended that the FMCSA require ELDs for HOS monitoring for all 
interstate commercial carriers.\17\
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    \17\ H-07-41
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    Properly designed, used, and maintained ELDs enable drivers, motor 
carriers, and authorized safety officials to track on-duty driving 
hours more effectively and accurately, thus preventing both inadvertent 
and deliberate HOS violations. Driver compliance with the HOS 
regulations helps ensure that they are provided time to obtain 
restorative rest and enable them to operate their commercial motor 
vehicles safely. It is vitally important that the FMCSA expeditiously 
issue a final ELD rule to increase compliance with HOS regulations and 
prevent future crashes, deaths, and injuries.
Obstructive Sleep Apnea
    OSA is a major and often undiagnosed sleep disorder. The NTSB has 
investigated several accidents in which OSA contributed to the fatigue 
of the driver, pilot, mariner, or train operator. In October 2009, we 
issued recommendations to the FMCSA addressing this safety problem to: 
(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; and (2) provide 
guidance for commercial drivers, employers, and physicians about 
identifying and treating individuals at high risk of OSA.\18\
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    \18\ H-09-15 and H-09-16
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Fatigue Management Program
    Along with HOS regulations and tamperproof ELDs, fatigue management 
is the third leg of this critical safety stool. In 2008, following 
three fatigue-related bus crashes that occurred in Osseo, Wisconsin; 
Lake Butler, Florida; and Turrell, Arkansas--in which a total of 27 
people died and 60 were injured--the NTSB requested the FMCSA develop a 
plan to deploy technologies in commercial vehicles to reduce fatigue-
related accidents.\19\ The Miami,Oklahoma, crash, involving a fatigued 
truck driver prompted us to reiterate these recommendations and make an 
additional recommendation to require that all motor carriers adopt a 
fatigue management program.\20\
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    \19\ H-08-13
    \20\ H-10-9
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Cell Phone Distraction
    The NTSB issued its first recommendation about cell phone use by a 
commercial driver in 2006, following an accident in Alexandria, 
Virginia, in which an experienced motorcoach driver, who was having a 
conversation on his hands-free cell phone, failed to move to the center 
lane and struck the underside of an arched stone bridge on the George 
Washington Parkway. Our investigation found the driver had numerous 
cues to change lanes at the appropriate time for sufficient clearance. 
In fact, not only was the driver familiar with the road, but he was 
also following another bus that had already moved to the appropriate 
center lane. Despite all this, he still did not notice the well-marked 
signage or any other cues as he approached the bridge. The crash was 
clearly caused by the driver's cognitive distraction due to his hands-
free cell phone conversation.
    Following the investigation of a 10-fatality truck-tractor trailer 
combination unit crossover crash in Munfordville, Kentucky, in March 
2010, which was caused by the truck driver's distraction from cell 
phone use, the NTSB recommended that the FMCSA prohibit the use of both 
hand-held and hands-free cellular telephones by all CDL holders while 
operating a commercial vehicle.
    In December 2011, the FMCSA and the Pipeline and Hazardous 
Materials Safety Administration published a joint rule, at 49 CFR 
392.82, specifically prohibiting interstate truck and bus drivers from 
using hand-held cell phones while operating their vehicles. The rule, 
however, did not prohibit hands-free use of phones. In response, the 
NTSB expressed concerns that the rule did not go far enough and failed 
to address the cognitive distraction aspect of hands-free cell phone 
usage. Research has shown that both the visual-manual distraction of 
manipulating portable electronic devices (PEDs) and the cognitive 
distraction of using hand-free PEDs significantly impair driver 
performance. Although using a hands-free device to operate a PED may 
mitigate, to some degree, the visual-motor distractions associated with 
certain subtasks, such as keying in a phone number, it does not 
mitigate the cognitive distraction associated with being involved in a 
conversation while driving.
    In the Rosedale, Maryland, crash discussed previously, a truck 
driver who was engaged in a hands-free cell phone conversation while 
approaching a highway-railroad grade crossing proceeded into the path 
of an approaching freight train. As noted above, the crash resulted in 
the derailment of the train, release of hazardous materials, and a 
post-crash fire and explosion. In this case, the NTSB again recommended 
that the FMCSA prohibit any use of a hands-free PED by a CDL holder 
while the driver is operating a commercial vehicle.\21\
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    \21\ H-14-26
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Medical Fitness for Duty
    The NTSB has investigated many crashes involving commercial drivers 
with serious preexisting medical conditions that had not been detected 
or adequately evaluated. The most tragic example is the 1999 Mother's 
Day crash in New Orleans, Louisiana, in which a motorcoach driver lost 
consciousness while driving on an interstate highway and crashed into 
an embankment, killing 22 passengers and injuring 21. The driver had 
multiple previously known serious medical conditions, including kidney 
failure and congestive heart failure, and he was receiving intravenous 
therapy for three to four hours a day, six days a week.
    The FMCSA should be commended for implementing many of the Board's 
recommendations in this area and has taken important steps to address 
medical issues, including publishing a final rule on merging the CDL 
with the medical certificate and creating a national registry of 
certified medical examiners. Nevertheless, much work still remains to 
be done. For example, the FMCSA needs to ensure that medical 
certification regulations are periodically updated and examiners are 
qualified and know what to look for.\22\ Additionally, although we 
commend the FMCSA for promulgating its National Registry for Certified 
Medical Examiners in 2012, we believe that the registry needs to 
include a tracking mechanism for driver medical examinations.\23\
---------------------------------------------------------------------------
    \22\ H-01-17 and H-01-19
    \23\ H-01-18
---------------------------------------------------------------------------
    The NTSB is hopeful that the registry will reduce the current 
practice of drivers ``doctor shopping'' to find someone who will find 
them to be medically fit. Likewise, a second level of review is 
necessary to identify and correct the inappropriate issuance of medical 
certifications.\24\ The FMCSA must establish a system for reporting 
medical conditions that occur between examinations and develop a system 
that records all positive drug and alcohol test results and refusal 
determinations, requiring prospective employers and certifying 
authorities to query the system before making hiring decisions.\25\
---------------------------------------------------------------------------
    \24\ H-01-21
    \25\ H-01-24 and H-01-25
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Crash Avoidance Technologies
    Collision avoidance technologies offer lifesaving benefits by 
helping to reduce crashes involving commercial motor vehicles. The NTSB 
currently has more than 80 open safety recommendations to NHTSA, many 
of which relate specifically to technologies that, if deployed on 
trucks and buses, would reduce and mitigate the severity of crashes. 
These technologies include forward collision warning systems, lane 
departure warning systems, electronic stability control systems, and 
speed-limiting technology. Many of these recommendations have not been 
acted upon by NHTSA. The NTSB encourages FMCSA collaboration with NHTSA 
to help expedite the development of performance standards and 
regulations requiring these important technologies.
Closing
    The safety issues and crashes discussed today are a reminder that 
there is much to be done to improve the safety of commercial highway 
operations. Crashes provide a unique opportunity to identify real world 
issues, and the highway safety community should learn from its 
mistakes. Too many of the issues discussed today have been causal to 
multiple motor carrier and motorcoach crashes over a number of years, 
yet NTSB investigators see these factors again and again. 
Transportation safety is too important to the well-being of our 
citizens, our industry, and our economy to repeat past mistakes. We 
must do better.
    Thank you for inviting me to testify today. I am happy to answer 
your questions.

    Senator Fischer. Thank you, Mr. Hart.
    We will begin with 5 minute rounds.
    Mr. Darling, your testimony mentioned that the FMCSA will 
implement changes to the CSA program in the coming months. 
Given that the GAO has provided recommendations on the CSA 
program over a year ago and we've heard from law enforcement 
that they have requested scores be removed from public view, 
why is the agency just taking action now and what reforms is 
the agency looking to make?
    Mr. Darling. Thank you for you question, Chairman.
    I must start with saying that safety is our top priority. 
We believe that we need to maintain high safety standards on 
our highways every day. The information that is provided in the 
SMS data is good data. It is the data that we use to prioritize 
our interventions. It is data that is used by the public to 
make decisions every day. It is data that I've also heard from 
carriers that they use to improve their performance.
    SMS has only been in existence since 2010. We have 
continued to look to collaborate with industry, looked to 
collaborate with all stakeholders as we continue to improve the 
data that is provided in the SMS system. We have a continuous 
improvement team that is in place right now that is working 
with all stakeholders, and it takes time to make sure that we 
have a system that works. And we believe that we have a system 
that works today.
    Senator Fischer. I can appreciate that government can move 
slowly but we're all interested here in safety on our highways. 
For the citizens in this country, I would ask again: What 
reforms your agency is looking at with regards to the action 
being taken?
    Mr. Darling. Again, I start with safety and I start with 
our continuous improvements. We are in the process of looking 
at different changes. We are not a place today to identify 
changes. We have some changes that we will be implementing by 
the end of the year, but we are working through a process right 
now and it is a collaborative process.
    Senator Fischer. Do you have any specific changes you can 
tell us about at the hearing today?
    Mr. Darling. I don't, Chairman.
    Senator Fischer. OK, thank you.
    Also, one of the challenges on this CSA program is that it 
doesn't distinguish really between crashes that a trucking 
company may cause and also those that it doesn't cause. I think 
that is an important fact that we be aware of. I am also aware 
that in your recent study on the limitations of using police 
accident reports that makes, I think, the fault determinations. 
In many cases, the fault is pretty obvious; I think. Like when 
a bridge in Cincinnati falls on a truck. Isn't that pretty 
glaring that it wasn't the trucker's fault?
    I guess I would ask you: Is the agency really unable to 
determine that the truck didn't cause the bridge to fall on it?
    Mr. Darling. We are not in a position to make that 
determination, Chairman. We use various information to do that, 
particularly if difficult. That's why we issued our crash 
waiting study and put that out for comment from industry and 
from other stakeholders to make sure that they have input on 
how we look at crashes. We don't use crashes to weigh against a 
carrier unless we are going to change a carrier's safety 
rating, and then we look to causation at that point.
    Senator Fischer. But you are holding it against the carrier 
from the get-go after a crash; is that correct?
    Mr. Darling. We don't hold it against the carrier.
    Senator Fischer. But if you attribute the crashes to the 
trucking company, isn't that a black mark against them?
    Mr. Darling. We only attribute a crash against a company 
unless we change the safety rating of that company. That is 
what, before we do that, that is when we look at causation.
    Senator Fischer. And the causation changes the rating. 
Correct?
    Mr. Darling. No, it doesn't. We make a determination with a 
lot of factors before we change the rating.
    Senator Fischer. But that is one of the factors?
    Mr. Darling. It could be one of the factors.
    Senator Fischer. Are you looking at any reforms in 
determining the causation of accidents?
    Mr. Darling. We have our crash rating, a report, that we 
are waiting for comment. Comment will close at the end of this 
month and then we'll assess those and go to looking at how do 
we look at crash rating as a factor.
    Senator Fischer. OK. Thank you, sir.
    Mr. Darling. Yes.
    Senator Fischer. Senator Booker.
    Senator Booker. The Ranking Member----
    Senator Fischer. Ranking Member.
    Senator Booker.--Senator Nelson, who also has a better 
haircut than me.

                STATEMENT OF HON. BILL NELSON, 
                   U.S. SENATOR FROM FLORIDA

    Senator Nelson. Senator Booker is the Ranking Member of 
this Subcommittee and he is very kind. And I will just enter an 
opening statement in the record, and just say that 4,000 deaths 
a year are occurring as a result of truck and bus accidents. 
And this is serious business.
    And then, just to top it off, Monday, a big semi plows into 
an SUV on the Buckman Bridge in Jacksonville and four people 
are dead. And so, it is just another reminder that we've got to 
take it very seriously.
    So I defer to the Ranking Member of this subcommittee, 
Senator Booker.
    Senator Fischer. Thank you, Senator Nelson. I appreciate 
you, as Ranking Member, coming to the Committee hearing today, 
and your opening statement will be entered into the record.
    [The prepared statement of Senator Nelson follows:]

   Prepared Statement of Hon. Bill Nelson, U.S. Senator from Florida
    I want to thank everyone for being here today to discuss a very 
important topic.
    As we all know, the trucking industry is vital to the Nation's 
economy. In 2013, the trucking industry moved close to 9.7 billion tons 
of freight and collected over $600 billion in freight revenues. The 
trucking industry also employs a significant number of people across 
the country, including 3.2 million drivers.
    And, while the trucking industry is a safe industry, we need to do 
more to improve the trends to make it a safer one.
    Each year, approximately 4,000 people are killed on our Nation's 
highways and roads in crashes involving a truck or bus, and nearly 
100,000 others are injured.
    This is extremely concerning, and according to the Department of 
Transportation truck crash injuries increased nearly 40 percent from 
2009 to 2012.
    Another troubling trend we are seeing is the use of appropriations 
riders to stop important safety rules.
    In 2013, the Department implemented rules to help keep tried 
truckers from getting behind the wheel.
    No sooner were they implemented, then last year's appropriations 
bill included a rider that stopped enforcement of some the most 
important pieces of the rule.
    Eliminating part of the rule--a rule that simply requires truck 
drivers to stop for some rest once in a while--is a direct threat to 
public safety and could endanger motorists on America's highways.
    There is no reason this kind of provision should be included in a 
spending bill. These discussions should happen in regular order in this 
Committee, which has jurisdiction.
    At the end of the day what we all want are safer roads. But we need 
to have an open discussion about how we get there. If we work together 
on these rules and other issues confronting the trucking industry, I 
believe we can get to a safer outcome.

    Senator Fischer. Senator Booker.
    Senator Booker. Thank you.
    And I appreciate the Ranking Member of the entire Committee 
deferring to the Ranking Member of this Subcommittee and it is 
only due, as he has whispered in my ear, that New Jersey should 
go before Florida on most occasions, but you have seniority in 
this case. So I appreciate your graciousness.
    I do want to dive in, if I can, to something that there has 
been a lot of talk about over the last months, which are hours 
of service. And I really want to get to these.
    So can I start with Administrator Darling, and just ask you 
just quite bluntly: Right now, is it true that drivers can 
potentially be able to drive more than 80 hours a week?
    Mr. Darling. The answer is yes.
    Senator Booker. And, do you see that as a threat to the 
safety of our roads and highways?
    Mr. Darling. I do see that as a threat to the safety of our 
roads today.
    I want to thank you, Ranking Member Booker, for your 
support of the 2011 Hours of Service Rule. The U.S. DOT and 
FMCSA stand behind that rule. We promulgated that rule to save 
lives and protect people that we love every day who use our 
highways.
    Senator Booker. If I may, because I----
    Mr. Darling. OK.
    Senator Booker.--I've got limited time.
    Mr. Darling. Yes.
    Senator Booker. Earlier, we heard testimony from a trucking 
company who said most drivers never come close to hitting the 
maximum weekly hours. Is that true in your estimation, that 
most truckers out there don't come close to that 80 hours?
    Mr. Darling. There is probably a majority that do not come 
close to that 80 hours, but there is a potential to work 80 
hours with the current rule.
    Senator Booker. And so, let's be more specific and drill 
down. The appropriations rider that I tried to stop, how does 
that impact driver fatigue, that rider which suspended some of 
these rules?
    Mr. Darling. The impact of the current rule is that, with 
our research on the 2011 rule, we found that drivers that have 
one hour of rest are more fatigued than drivers who have two 
hours of rest. The rule that we had in 2011 was a data-driven 
rule that was backed up by research and studies.
    Senator Booker. So data-driven research studies. Be more 
specific. Did you just, sort of, read an article in The New 
York Times and come to that conclusion or what is data-driven 
in this? Can you----
    Mr. Darling. No. Data-driven is that we had studies that 
were conducted by----
    Senator Booker. How many studies?
    Mr. Darling. There is probably close to 500 studies that we 
used in that rule, or looked at in that rule.
    Senator Booker. Right, and so this wasn't your opinion----
    Mr. Darling. It is not my opinion, no. It is the opinion of 
the----
    Senator Booker. In God we trust. I'm a man of faith, but 
everybody else bring me data.
    Mr. Darling. Yes.
    Senator Booker. And you are saying you have 500 studies----
    Mr. Darling. There was----
    Senator Booker.--that supported the rule.
    Mr. Darling. Yes. There were 500 studies that were reviewed 
as part of that study.
    Senator Booker. OK.
    So when it comes to accidents, how big of a role in 
general, could you assess for me, does driver fatigue cause, as 
we've seen this spike, this surge in accidents, how much does 
driver fatigue--is it other issues that are playing a role or 
is driver fatigue a cause or main cause, not your opinion, but 
according to a lot of the studies and data?
    Mr. Darling. Yes. We put out a truck causation study that 
looked at fatigue. And about 13 percent of the serious crashes 
were caused by fatigue. But, remember, fatigue is hard on fatal 
crashes because, you know, it is hard to tell if somebody has 
had rest or not so----
    Senator Booker. With 13--fatalities----
    Mr. Darling. Yes.
    Senator Booker.--crashes involving fatalities, but 
remember, we have tens of thousands of others----
    Mr. Darling. Yes.
    Senator Booker.--do they play a role in a significant 
percentage of those----
    Mr. Darling. Yes. The answer to the question is, we 
believe, yes.
    Senator Booker. Can I return to the Honorable Mr. Hart in 
the last minute that I have remaining? How do you respond to 
the hours of service provisions in the appropriations bill?
    Mr. Hart. We encouraged, again, science-based rules that 
enable humans to be human, which means sleeping at night. 
That's why we were very strong about having two periods of 
restorative sleep within the 34-hour restart based on, again, 
based on data.
    Senator Booker. And, again, why is it important that you 
have that restart? Because, there are two concerns here: one is 
just working that 80 hours a week or more which seems to, by 
the data shown, that you begin to strain human endurance but 
then, number two, that restart rule is also a bit of a 
controversy. Could you just, in my last 20 seconds here, could 
you explain why that restart rule is important in accordance 
with the data and the research of hundreds and hundreds of 
studies?
    Mr. Hart. Based on our review of the data, two 
opportunities to have restorative sleep results in much less 
fatigue than only one opportunity for restorative sleep. That's 
why it was important for us to have two opportunities for 
restorative sleep within the restart period.
    Senator Booker. Thank you very much.
    Thank you, Chairman.
    Senator Fischer. Thank you, Senator Booker.
    Senator Cantwell.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Madam Chairman, and thank you 
for holding this important hearing.
    Chairman Hart, I have a couple of questions for you if I 
could. One, you may well remember the tragic accident we had on 
the Skagit River Bridge on part of I-5 which collapsed?
    Mr. Hart. Yes, I do remember.
    Senator Cantwell. In 2013, very shocking for people all 
across America to think that a bridge that transports about $38 
million of trade between U.S. and Canada would collapse.
    So part of the NTSB's deficiencies and safeguard, one of 
the recommendations was to ban non-emergencies by the pilot 
escort vehicle. And so, one of the things that was determined 
is that the actual hit occurred but the communication back was 
not communicated in a timely fashion. So you're recommending 
that that pilot vehicle, only if they are communicating with 
the car for, you know, extra-wide loads----
    Mr. Hart. Oversize, yes.
    Senator Cantwell.--oversize loads, that that is the only 
communication that should be going on between the pilot and 
that vehicle?
    Mr. Hart. Emergency communications, in general. And so, in 
that case, the escort car--actually there was an impact of the 
pole with the bridge, but the escort driver was on the phone at 
the time and, you know, that fact of the pole hitting the 
bridge was not communicated to the following truck.
    Senator Cantwell. And now, Washington State DOT has a $17 
million lawsuit against the truck driver, the company, the 
pilot car, the pilot car company, the owner of the truck, all 
of that because somebody was talking on the phone.
    Anyway, I want to follow up on that recommendation. And 
also, because you're here and you had a blog, I understand, 
about--we had a hearing, I think that was yesterday, on this 
issue of railcar safety. And that part of your 2015 most wanted 
list of improvements, particularly in light of what happened in 
Virginia, do you believe that we need, that actually these cars 
that are out there to replace the 111s aren't really that great 
and that we need a thicker hull?
    Mr. Hart. We have several accidents, recently, involving 
the newer cars, the 1232 cars, including one in Canada, and we 
are reviewing them closely to determine whether the additional 
robustness is actually producing a positive result in the real 
world.
    Senator Cantwell. But you have doubts about that?
    Mr. Hart. Well, we are seeing enough concerns. Like in 
Lynchburg, the train was going less than 25 miles an hour and 
still breached a 1232 car. And so, we have concerns and we're 
collecting evidence based on the accidents about all those 
cars.
    Senator Cantwell. So you think a thicker shell, thicker 
hull?
    Mr. Hart. Well, it's a multiple approach including the 
thickness of the shell. We don't specify the specific 
thickness, we just say the robustness needs to be improved. But 
also thermal protection so that a car won't be engaged in 
that--fire from another car won't cause, you know, the other 
cars to explode, and it's a multifaceted issue.
    Senator Cantwell. Besides the 1232 thickness?
    Mr. Hart. Yes. There's the head in protection; there's the 
thickness; there's the thermal protection. It's a multifaceted 
issue.
    Senator Cantwell. But we need more thickness than 1232s?
    Mr. Hart. Well, that's what we're trying to find out. We 
have only a few, you know, we have a very small end so far and 
we're trying to determine whether the thickness was the 
problem.
    Senator Cantwell. OK. I believe that we need more 
thickness. So, anyway, OK.
    Thank you, Madam Chair.
    Senator Fischer. Thank you, Senator Cantwell.
    Because the panel's here and willing, I assume we'll do 
another round of questions. And I will begin.
    Ms. Fleming, FMCSA plans to issue a proposed rule to assign 
safety fitness ratings to motor carriers based on data and 
scores from its CSA scoring system, and I know that GAO issued 
a 2014 report on CSA which highlighted a number of problems and 
deficiencies. Since safety ratings determine whether carriers 
can operate in interstate commerce, do you believe that the CSA 
produces sufficiently reliable scores on which to based safety, 
fitness ratings?
    Ms. Fleming. We have not seen the rulemaking, but a lot of 
it depends on the information that is going to be used for 
making those determinations. If SMS scores are apart of that, 
our work shows that they don't do an accurate job of reflecting 
a carrier's crash risk. So it really goes back to the purpose.
    It's sufficient for FMCSA and law enforcement to target 
interventions, but we have problems when it is being displayed 
publicly when the information does not, it's not reliable 
enough to compare safety performance across carriers. So I 
think that's the main thrust of our concern.
    Senator Fischer. And can you provide this Subcommittee with 
information regarding that audit of the 2014 Hours of Service 
Field Study, and what are some of the highlights of your work 
on that?
    Ms. Fleming. Unfortunately, that is ongoing work that is 
for you and for the colleagues over on Transportation 
Infrastructure. We'd be happy to brief you but, in a nutshell, 
we do have an ongoing study looking at hours of service; two 
aspects of it. We are looking at the strength and limitations 
of the completed field study, the efficacy of the rule, 
particularly looking at the two nighttime provisions, and then 
we're also looking at some of the potential impacts of the 
rule; on safety, health, and the economy. And we do plan to 
report out this summer on that.
    Senator Fischer. But you would be willing to brief us 
prior----
    Ms. Fleming. Absolutely.
    Senator Fischer.--to reporting that? Thank you.
    Ms. Fleming. Absolutely.
    Senator Fischer. And, Mr. Come, ensuring the drivers 
properly attain their CDLs, I think that's a major effort in 
promoting safety. Can you tell us about the update on any 
successes or challenges that you're seeing with CDL fraud 
investigations?
    Mr. Come. Thank you.
    We have not conducted any audit work, but we do continue to 
work to combat CDL fraud. I know, recently, we had a case where 
there were owners of a driver's school in New York where there 
was a test station scheme to provide answers to an estimated 
500 applicants. And in that case, we were able to obtain a 
conviction.
    It continues to be a problem that relates to sometimes as 
in this case, the actual people giving the test. Sometimes it 
is third-party testers who are involved with bringing people to 
the test themselves and we've seen gadgets such as Bluetooth 
and pencils with coding in them used to try to get around these 
tests.
    Senator Fischer. Can Congress do anything to help you with 
that?
    Mr. Come. I don't know of any specific, you know, 
legislative issues we're concerned with on the CDL side. It 
just continues to be, you know, an active part of our 
investigations.
    Senator Fischer. Thank you.
    Senator Booker.
    Senator Booker. I'm going to try to do a speed round here 
to get all my questions in.
    So just real quick, in some great conversations I've had 
with the trucking industry looking for areas of compromise, 
they're insistent that most drivers don't go over 80 hours.
    Mr. Darling, wouldn't it just be easier then if that's the 
case? Let's make a hard rule, nobody drives over 80 hours. Is 
that an easy way of looking for solutions to deal with this?
    Mr. Darling. I don't believe that's an easy way to deal 
with this. I think the rule that we had in place, Senator 
Booker, in 2011 dealt with allowing truckers to have adequate 
time to work but also to have adequate time and opportunity for 
rest. I think that we need to continue moving forward with the 
safety rule that we had in place in 2011.
    Senator Booker. OK. So you think the restart rule is 
important?
    Mr. Darling. I think the restart rule is very important.
    Senator Booker. OK.
    And, sir, are there other things that we should be 
considering as solutions to deal with driver fatigue besides 
limiting hours and restart rule? Are there some other things 
about driver fatigue that we should be considering?
    Mr. Darling. I believe the study that we're going to do, 
that we're currently engaged in will help us understand some 
more of those opportunities to allow drivers to have additional 
rest.
    Senator Booker. Thanks, Mr. Darling. I'm going to cut you 
off just because----
    Mr. Darling. Thank you.
    Senator Booker. Mr. Hart, anything else we should be 
considering; and I do think that the current five hundredth and 
whatever study we're doing right now, as Ms. Fleming talked 
about, but are there other things as quick ideas you might want 
to give the Committee about ways to deal with driver fatigue?
    Mr. Hart. Thank you for the question.
    Electronic logging is very important just so we would have 
with certainty as an indication of the hours that were driven. 
But we also know that what the driver does off-duty, we have no 
control over that. That's why fatigue management programs are 
so important. So that, because we know self-diagnosis of 
fatigue is not reliable.
    Fatigue management includes education of the people to help 
them diagnose their own fatigue. Also, obstructive sleep apnea 
evaluations are very important because we're seeing increasing 
incidents of that as well. So it's a multitude of issues that 
we're looking at.
    Senator Booker. That's great. Senator Fischer and I are 
thinking about mandating watching C-SPAN because we think 
that'll put drivers to sleep.
    [Laughter.]
    Senator Booker. Real quickly. As the truck accident that 
was just mentioned by my Ranking Member, these big accidents 
can cost over $20 million to compensate family care for the 
injured, the destruction that happens on highways of these 
explosions often, but the thing that is surprising to me to 
have found out is that the requirement is to carry $750,000 in 
minimum insurance. That has not been increased in 30 years even 
though the cost of these, to all of us, is so dramatically 
high. It doesn't even account for inflation. And so taxpayers 
are fitting this bill. It's an externality, a really negative 
externality, that's put onto the public.
    I'm wondering, Administrator Darling, FMCSA issued a report 
recognizing the current minimum insurance level is inadequate. 
What steps can Congress take in a surface transportation 
reauthorization to reduce the unfair economic burden that truck 
crashes place on the American people?
    Mr. Darling. Right now, we have an advance notice of the 
proposed rulemaking out which is data gathering. I think once 
we gather that data, we'll have more information remembering 
that the minimum insurance requirements are 30 years old and we 
want to make sure that we look at it. So I'd like to wait until 
we have an opportunity to review that advanced notice of 
proposed rulemaking before we take any more action.
    Senator Booker. All right. And that will bring me to my 
last line of questioning for now which is the speed at which 
we're doing things. And I know that you're just the acting 
member, but in the last transportation reauthorization, 
Congress required that the final rule mandating something 
called the Electric Logging Devices----
    Mr. Darling. Yes.
    Senator Booker.--be on trucks, be issued by October 2013. 
It was nearly a year and a half ago, I was still just a happy 
mayor, had not come down here yet. Just tell me, why is this 
important safety rule so far behind? We're talking about urgent 
things that could make a life or death difference. And is this 
kind of thing being put into a high priority?
    Mr. Darling. Thank you for that question and that's a good 
question. The Electronic Logging Device rule is a high priority 
because it is a safety rule as Chairman Hart talked about. It 
will help with understanding hours of service. We have made it 
a priority in my agency and we will get that rule, final rule, 
out and published by the end of this Fiscal Year.
    Senator Booker. OK. And I just want to say as I conclude 
and I know that I can imagine that the chairman agrees with me, 
there are a lot of just things languishing and overdue in 
FMCSA; rules that have been required by congressional statutes, 
something that I want to take a look at in trying to get the 
agency to keep up with the urgency and the mandates of 
Congress. It's just very important.
    Mr. Hart. Yes.
    Senator Booker. All right.
    Mr. Hart. Yes.
    Senator Booker. Thank you. Thank you so very much.
    Senator Fischer. Thank you, Senator Booker.
    He's from New Jersey. He can get a lot of questions in 
because he speaks quickly. Being from Nebraska, we're a little 
slower but I expect great things from Minnesota.
    So Senator Klobuchar.

               STATEMENT OF HON. AMY KLOBUCHAR, 
                  U.S. SENATOR FROM MINNESOTA

    Senator Klobuchar. Very good. Yes, we'll go to the 
Midwestern piece now.
    It's so good to see all of you. Thank you for your good 
work.
    Ms. Fleming, the GAO's 2014 report regarding the Compliance 
Safety and Accountability program pointed to a number of 
changes that need to happen in order to make the program more 
effective and reliable. The report states ``for Safety 
Measurements System to be effective in identifying carriers 
more likely to crash, the violations that the FMCSA uses to 
calculate SMS scores should have a strong predictive 
relationship with crashes. However, based on GAO's analysis of 
available information, most regulations used to calculate the 
scores are not violated often enough to strongly associate them 
with crash risk for individual carriers.''
    What specific changes would you recommend be made to 
improve the correlation between the scores and the crash risk?
    Ms. Fleming. I think that gets to the heart of our report 
which is that you need additional safety information. You know, 
we found two problems with the SMS scores. One, they don't 
accurately capture the carrier's risk and that's because there 
isn't a lot of safety information for the majority of carriers. 
And then, the problem is that we were not able to make a 
statistical link between the violations and predict whether a 
carrier is likely to crash in the future.
    And so, what we were able to do, and I thank you for that 
question because it gets me to some of the concerns that FMCSA 
has with our work, is we were able to try to produce more 
reliable scores. Our approach basically said, instead of just 
the three to five inspections, we're going to try to use more 
safety information; we're going to use additional inspections 
on vehicles. And our work found that, by just doing that, we 
were able to identify two-thirds of high-risk carriers that 
crash in the future compared to the methodology that FMCSA is 
currently using which only identified one-third.
    Senator Klobuchar. That's a big change.
    Ms. Fleming. It's a big change. And yes, it involves 
tradeoffs. It involves maybe scoring less carriers but, and I 
think that's the point that my colleague makes, which is that 
we would only score 10 percent. But I think it's important to 
note that the current approach only scores 20 percent of all 
carriers. So by just doing some additional, by collecting some 
more additional information, you're able to target FMCSA's 
limited resources to those carriers that truly pose the highest 
risk of crashing.
    Senator Klobuchar. OK. Thank you very much----
    Ms. Fleming. You're welcome.
    Senator Klobuchar.--for that thorough answer.
    Mr. Darling, the sharp decline in traffic enforcement 
triggered truck inspections and the Motor Carrier Safety 
Assistance program has resulted in far fewer evaluations being 
reported. My concern is that fewer traffic enforcement 
inspections means fewer traffic enforcement violations are 
going into the unsafe driving basic in the CSA. And would 
allocating more enforcement resources lead to improved truck 
safety? Do you think that would make a difference?
    Mr. Darling. Thank you, Senator, for that question.
    We are working hard to have more traffic enforcement. 
That's one of the tools we have in the toolbox to deal with 
safety and to manage risk. We've been working hard to include 
more truck enforcement. We believe that's one way of getting 
to, as you mentioned, getting to unsafe driving.
    We have, in our GROW AMERICA proposal, provisions in the 
state grant programs that allow grant recipients to use that 
money for traffic enforcement. We are conducting training, 
currently, on traffic enforcement, and we also have a grant 
with the International Chiefs of Police to help us think about 
that issue. But traffic enforcement is one of the tools that we 
have that we believe is an important tool. The other tool being 
inspections and being interventions.
    Senator Klobuchar. OK. Well, I'm almost out of time here 
but I have a few questions I'll just put on the record.
    Mr. Darling. Thank you.
    Senator Klobuchar. So thank you very much.
    Mr. Darling. Thank you.
    Senator Fischer. Thank you, Senator Klobuchar.
    Senator Daines.

                STATEMENT OF HON. STEVE DAINES, 
                   U.S. SENATOR FROM MONTANA

    Senator Daines. Thank you, Madam Chair.
    For Administrator Darling, a question. When I was a member 
of the House, I authored and passed an amendment to the 
Transportation Approps bill. It was going to block the efforts 
to increase financial responsibility requirements for motor 
carriers. These increased requirements would be up to a 500 
percent increase and would send premiums skyrocketing despite 
the DOT's own data that showed that the current requirements 
covering 99.9 percent of the accident cost, and we were doing 
some research on the Fed Register.
    And this policy, going back in history, was established by 
the Federal Highway Administration in 1980 where, and I quote, 
it said, ``Congress' intent for reasonable protection did not 
include those damages incurred as a result of an extremely 
limited number of `worst case' accidents.''
    So a question: Given that the current policy covers 99.9 
percent of accident costs, why is the agency departing from 
this original policy?
    Mr. Darling. We're not departing, Senator, from the 
original intent. We have put out an advance notice of 
rulemaking that looks to collect data about the financial 
responsibility from the stakeholders. That is currently out and 
we're currently analyzing the comments that we're going to 
receive from that. I go back to the point that the minimum 
financial responsibility requirements were put in place in 
1980. It's now 2015 and it may be an opportunity for us to take 
a look at it.
    Senator Daines. Well, there was a discussion about where 
this proposed rule may create up to a 500 percent increase for 
our carriers when, again, 99.9 percent of the current accident 
cost recovered under the existing policy. My concern is, what I 
see here is, the primary beneficiary of these increased 
liability and requirements here for our motor carriers is going 
to be the trial lawyers. That's who is going to benefit the 
most.
    Mr. Darling. Senator, thank you again, we have not made any 
decisions on financial responsibility. Again, I go back to 
we're in a data collection period. We'd like to collect the 
data. We need to analyze the comments that we've received from 
the advanced notice of proposed rulemaking. It is not a 
proposed notice of rulemaking it's the advanced; means that 
we're collecting data to determine where we go next and how we 
proceed next.
    Senator Daines. OK, let me move on a separate area.
    Yesterday, we had Secretary Foxx. Had a good hearing with 
him and we were--around why there were so many Acting 
Administrators in major operating agencies in the Department of 
Transportation. And he said they're looking for the right fit 
and they had good leaders in place. And you've been the Acting 
Administrator since August 2014. It's my understanding that 
your term as Acting Administrator ends in just 19 days, March 
23. What's the contingency plan after March 23?
    Mr. Darling. I currently serve at the will of the 
President, and I have 19 days left. It's my understanding that 
the Administration is vetting some candidates for the position. 
We will look to have adequate administrative support going 
forward after my term is over. So we will have somebody in 
place to run the agency.
    Senator Daines. Has the President given you any indication 
he wanted you to nominate, be nominated for that position or 
someone else? Do you have any sense? There's 19 days left to--
--
    Mr. Darling. Right.
    Senator Daines.--hopefully, you get some visibility there.
    Mr. Darling. Yes, there is some visibility there and I 
believe the Administration is looking at candidates. I only 
serve at the will of the President and the Administration.
    Senator Daines. Thank you.
    I yield back my time.
    Senator Fischer. Thank you, Senator Daines.
    With that, the hearing record will remain open for two 
weeks. During that time, Senators are asked to submit any 
questions for the record. Upon receipt, the witnesses are 
requested to submit their written answers to the Committee as 
soon as possible.
    I thank the witnesses for appearing today. Thank you so 
much.
    The hearing is closed.
    [Whereupon, at 12:11 p.m., the hearing was adjourned.]

                            A P P E N D I X

     Response to Written Question Submitted by Hon. Deb Fischer to 
                            Susan A. Fleming
    Question. As you pointed out in your written testimony, FMCSA 
stated that its CSA Safety Measurement System (SMS) provides 
stakeholders with valuable safety information, which can ``empower 
motor carriers and other stakeholders . . . to make safety-based 
business decisions.'' At the hearing you said you had concerns about 
the public display of data based on the limitations GAO has identified 
in the reliability and precision of CSA's Safety Management System 
scores. Is it appropriate for FMCSA to suggest that stakeholders make 
safety-based business decisions by relying on publicly available SMS 
scores, considering GAOs concerns about the reliability and precision 
of the CSA methodology?
    Answer. Given the limitations that we identified with SMS scores in 
our recent work (GAO-14-114)--that SMS scores are not precise enough to 
measure a carrier's relative safety performance--we believe that the 
SMS scores should be removed from FMCSA's CSA website.
    Publicly displaying scores that are unreliable could be worse than 
not displaying any scores at all since shippers and brokers, U.S. 
Government departments, and the public use the publicly available 
scores to make decisions, such as which carrier to hire to transport 
goods. If those scores do not accurately reflect the safety performance 
of a company, they could cause companies to lose business or cause 
consumers to hire an unsafe carrier that was not deemed high risk.
    FMCSA already shields some SMS scores from public view. For 
example, FMCSA does not display SMS scores for carriers that do not 
have enough safety performance data, such as a minimum number of 
inspections. We found that the minimum number of inspections 
established by FMCSA was too low to calculate a reliable SMS score for 
comparing carriers' safety performance. In addition, through a 
disclaimer, FMCSA acknowledges that a carrier's publicly released SMS 
scores should not be used to draw conclusions about a carrier's safety 
condition, which has created confusion in the industry about what the 
scores mean.
    FMCSA needs to determine the level of precision needed for the 
intended purpose, including publicly displaying SMS scores. However, 
data used to calculate SMS scores could continue to be publicly 
reported to help inform the public about individual carriers' history 
of inspections, violations, and crashes.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Kelly Ayotte to 
                            Susan A. Fleming
    Question. In your written testimony, you explained that GAO has on-
going work regarding FMCSA's Hours of Service regulations. Could you 
please provide me with an update regarding GAO's on-going work on this 
issue?
    Answer. Our audit on FMCSA's Hours of Service regulations is being 
conducted at the request of the House Committee on Transportation and 
Infrastructure, and Senator Fischer, as Chairman of the Senate Surface 
Transportation and Merchant Marine Infrastructure, Safety and Security 
Subcommittee. We expect to issue our report on that work toward the end 
of July 2015. We would be happy to brief Senator Ayotte and her staff 
after the report is published.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Cory Booker to 
                            Susan A. Fleming
    Question. The NTSB has raised concerns that in many of their crash 
investigations, there was insufficient intervention from FMCSA to stop 
the unsafe company from operating before the accident occurred. Do you 
share this concern? Would your recommendations address this concern?
    Answer. We share the concerns raised by the NTSB. Our 2014 report 
(GAO-14-114) raises serious questions about the ability of CSA to 
identify carriers at the highest risk for crashing. FMCSA uses SMS 
scores to identify and prioritize carriers with safety performance 
problems for intervention. However, our analysis showed that FMCSA's 
method for prioritizing carriers is not identifying carriers that crash 
in the future as well as possible alternatives could. As a result, 
FMCSA may devote significant intervention resources to carriers that do 
not actually pose as great a safety risk as other carriers. 
Specifically, we tested an illustrative alternative to FMCSA's existing 
methodology and demonstrated that by focusing on carriers with more 
safety performance information, a much higher percentage of the 
carriers identified as high risk eventually crashed (67 percent), than 
those identified using FMCSA's existing method (39 percent). If FMCSA 
implemented our recommendation, it could improve its ability to 
identify high risk carriers that are likely to crash and prioritize its 
use of limited intervention resources.
    Once a high risk carrier is identified by FMCSA, the carrier is 
subject to interventions ranging from a warning letter to a full 
compliance review. Many of these FMCSA interventions are new since the 
implementation of CSA in 2010. While these intervention strategies 
could help FMCSA reach more carriers, the effectiveness of these new 
strategies remains unclear. While we have not studied the effectiveness 
of these intervention strategies in detail to date, we believe future 
work is warranted given the importance of this issue.
                                 ______
                                 
 Response to Written Questions Submitted by Hon. Richard Blumenthal to 
                      Hon. T.F. Scott Darling III
    Question 1. Minimum levels of insurance as set by the Federal Motor 
Carrier Safety Administration (FMCSA) are required to protect the 
traveling public from burdensome accident costs. The current minimum is 
$750,000 for most carriers of property (with certain higher limits for 
those carrying hazardous materials and passengers). This amount was 
last changed in 1985--30 years ago.
    In April 2014, FMCSA issued a report--as mandated by Congress--
evaluating the current financial responsibility limits for motor 
carriers--especially those carrying property. The FMCSA report 
determined that the current minimum of $750,000 falls well short of 
what is necessary, concluding that (1) costs for severe and critical 
injury crashes can easily exceed $1 million; and (2) current insurance 
limits do not adequately cover catastrophic crashes, mainly because of 
increased medical costs. The report concluded overall: ``current 
financial responsibility minimums are inadequate to fully cover the 
costs of some crashes in light of increased medical costs and revised 
value of statistical life estimates.'' In other words, when carriers 
cause accidents, they're often ill-prepared to pick up the tab.
    In November 2014, FMCSA announced an Advance Notice of Proposed 
Rulemaking on insurance minimums. The comment period recently closed.
    What is the timeline for finalizing this rule? Does FMCSA envision 
a new minimum that would adequately cover the real cost of accidents? 
How much is the public currently overpaying for severe truck accidents?
    Answer. Section 32104 of MAP-21 directed the Secretary of 
Transportation (DOT) to issue a report to Congress on the 
appropriateness of the current minimum financial responsibility 
requirements for motor carriers of property and passengers, and the 
current bond and insurance requirements for freight forwarders and 
brokers. The statute also requires that the Secretary report on the 
adequacy of the financial responsibility requirements every 4 years 
thereafter. FMCSA's April 2014 report fulfilled the statutory 
requirement for the initial report. And given the findings that certain 
crashes occur for which the current levels appear inadequate, the 
Agency tasked it Motor Carrier Safety Advisory Committee to provide 
recommendations on how best to address this challenge. The Agency also 
sought public comment through publication of an Advance Notice of 
Proposed Rulemaking (ANPRM), a rulemaking notice in which a series of 
questions were presented without any proposal for changes to the 
minimum levels of insurance. The Agency is currently reviewing the 
public comments submitted in response to the ANPRM and no decision has 
been made concerning the next regulatory action.
    A previous FMCSA-sponsored study on this issue identified the issue 
of cost transference as it relates to severe truck crashes but did not 
provide an estimate of the aggregate amount of final judgments against 
motor carriers that exceeded the limits of the insurance coverage for 
those carriers.

    Question 2. In January of this year, the Department of 
Transportation announced plans to allow Mexican motor carriers to apply 
for certification to begin cross-border long-haul services throughout 
the United Sates. This announcement came after a three-year pilot 
project that produced evidence the Department of Transportation 
contends is proof that Mexican trucking operations can meet U.S. 
standards.
    I'm concerned the pilot project was insufficient. Likewise, many 
labor leaders, safety advocates and industry officials question the 
pilot project and have voiced grave concerns over the long-term 
proposal, arguing that the pilot project wasn't extensive enough and 
any results are inconclusive at best.
    What gives you confidence that Mexican truck operators will meet 
U.S. safety standards? Have you reviewed the concerns of many labor 
leaders, safety advocates and others that the pilot project should go 
on for a longer time period than three years and include more than just 
13 carriers, which seem like an extremely insufficient sample size? 
What actions are you taking to address their concerns?
    Answer. FMCSA is confident that Mexican motor carriers can meet 
U.S. safety standards because the extensive analysis conducted during 
the pilot program of both pilot program participants and other Mexico-
domiciled/Mexican-owned companies operating in long-haul 
transportation. As explained in FMCSA's April 2011 Federal Register 
notice, the Agency's analysis plan included the assessment of the 
safety performance of both the Pilot Program carriers and a large 
number of Mexican-owned or -domiciled Enterprise and Certificate motor 
carriers conducting long-haul operations beyond the commercial zones of 
the United States during the Pilot Program. The analysis of the 
Certificate and Enterprise carriers was conducted, in keeping with the 
Agency's analysis plan, to provide complementary safety information as 
they operate in substantially the same way as the Pilot Program 
carriers under a different oversight regimen. During the Pilot Program 
period, 351 new Enterprise motor carriers received authority.
    Evaluating driver out-of-service (OOS) rates, vehicle OOS rates, 
brake violations, hour of service (HOS) violations, driver fitness 
violations, and moving violations, along with safety ratings and acute 
and critical violations--the primary criteria used to measure the 
safety of motor carriers operating in the United States--the analysis 
found that Mexico-domiciled motor carriers operating beyond the 
commercial zones had safety records that were equal to or better than 
the national average for U.S. and Canadian motor carriers operating in 
the United States.
    Based on the data available to FMCSA and the analysis in the Report 
to Congress, in conjunction with data developed for comparison purposes 
on other Mexican motor carriers with long-haul operations, FMCSA 
concluded that the Pilot Program successfully demonstrated that Mexican 
motor carriers can and do operate throughout the United States at a 
safety level equivalent to U.S. and Canada-domiciled motor carriers.
    The Agency addressed the concerns of all interested parties in 
developing the pilot program. As a result, the participating carriers 
operated safely and in compliance with Federal regulations. However, 
FMCSA's pilot program regulations at 49 CFR 381.400 do not allow pilot 
programs to go beyond 3 years so that was not an option for the 
program.
    FMCSA is confident that the application and oversight procedures in 
place will continue to ensure the safety of these motor carriers. 
Applicants for long-haul operating authority still undergo Agency 
safety and security vetting. In addition, the applicant must pass a 
Pre-Authorization Safety Audit (PASA) before being issued operating 
authority. During the PASA, FMCSA confirms that the motor carrier has 
systems in place for managing hours-of-service and agreements in place 
for drug and alcohol testing. In addition, the FMCSA auditor reviews 
driver qualification files and confirms that all of the minimum 
requirements of the PASA are met.
    The operating authority applications are noticed in the FMCSA 
Register like those of U.S. and Canadian motor carriers. Before 
authority is granted, applicants must file evidence of financial 
responsibility and process agents, like other motor carriers.
    Once a Mexican motor carrier has long-haul authority it must also:

   Mark all of its vehicles with an ``X'' at the end of the DOT 
        number to show it is a long-haul motor carrier.

   Undergo an in-depth Level 1 safety inspection every 90 days 
        for its 18 month provisional authority, and the first 3 years 
        of standard authority (4.5 years total).

   Display a current Commercial Vehicle Safety Alliance (CVSA) 
        decal issued by a certified inspector to prove the vehicle has 
        passed an inspection. Mexican carriers with long-haul authority 
        must display a decal at all times for at least three years 
        after receiving operating authority. Any commercial vehicles 
        that are not in compliance will not be allowed to operate until 
        their safety has been verified through another inspection.

   Undergo regular inspections by Customs and Border 
        Protection, as well as FMCSA border inspectors, at U.S. ports 
        of entry.

   Comply with all Federal Motor Carrier Safety Regulations

   Maintain evidence of financial responsibility.

   Undergo a compliance review in the first 18 months that 
        confirms that the required safety management systems are in 
        place.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Cory Booker to 
                      Hon. T.F. Scott Darling III
    Question 1. As you know, there has been a considerable amount of 
discussion in recent months about the Department's hours-of-service 
rule and the appropriations bill that stopped enforcement of two 
provisions. Administrator Darling, is it true that drivers will 
potentially be able to work more than 80 hours per week?
    Answer. Yes. With the Congressional suspension of certain 
provisions of the ``restart rule,'' it is possible for a commercial 
driver to work an average of more than 80 hours per week.

    Question 2. How do the changes in the appropriations bill impact 
driver fatigue? What have your studies found about drivers that don't 
get two consecutive nights of work off?
    Answer. Congressional action is contrary to what the fatigue 
research and FMCSA's expert panel on fatigue has suggested is needed 
for drivers to recover from a long work week. Driver fatigue is 
exacerbated by irregular and/or night shifts, which reduce sleep length 
and quality. The research conducted by Jovanis and Kaneko (1990), 
Linklater (1980), and Williamson et al., (1994) all support the idea 
that fatigue develops over the week and that recovery time is required. 
FMCSA commissioned a panel of fatigue experts to provide 
recommendations to improve the HOS rule to reduce driver fatigue. The 
expert panel recommended that recovery time include at least two 
uninterrupted periods between midnight and 6:00 a.m., at least once in 
every 7 days (Belenky, et al., 1998; Rosekind, Neri, and Dinges, 1997; 
Caldwell, Caldwell, and Colon, 1998; Johnson et al., 1998). A number of 
studies found that more than 34 hours were needed for drivers to 
recover fully from a long work week. Four studies that examined 
recovery all concluded that 36 hours was not enough (Lille, 1967, 
Hildebrandt et al., 1975, Mallette, 1994 and Wylie et al., 1997). Three 
of these studies involved rotating shift or night shift workers, and 
not day shift workers; one study included both day and night shift 
workers. Wylie et al., 1997 (extension of the U.S./Canada study) 
suggested that, based on sleep structure and length, as well as lane 
tracking performance, 36 hours are not sufficient for recovery, 
particularly for night drivers. FMCSA also conducted two laboratory 
studies of the 34-hour restart provision.

   Phase 1--Findings: The 34-hour restart was effective at 
        mitigating sleep loss and consequent performance impairment for 
        daytime drivers, but not effective for nighttime drivers. FMCSA 
        tested a new restart provision primarily for night drivers that 
        required a minimum of 34 hours off duty but must contain two 
        night rest periods 1:00 to 5:00 a.m.

   Phase 2--Findings: For nighttime drivers, the 2-night 
        provision works better than one night to mitigate driver 
        fatigue.

    In MAP 21, Congress requested a field study on the efficacy of the 
restart. The results of the field study were consistent with previous 
lab studies, the data were representative of drivers affected by 
maximum driving time requirements, and the analysis was statistically 
valid. The study showed that having at least two nighttime periods from 
1:00 a.m. until 5:00 a.m. in the restart break mitigates fatigue for 
nighttime drivers, both objectively and subjectively, by increasing the 
total amount of sleep obtained during that restart break.

    Question 3. Some have suggested that fatigue doesn't play a big 
role in crashes. Why is DOT concerned about the impact of fatigue on 
drivers?
    Answer. It is a well-known fact that fatigue is underreported in 
the national databases (Banerjee et al., 2009; NHTSA website, AAA 
Foundation: Brian Tefft. 2014). When a police officer investigates a 
crash, a surviving CMV driver is not likely to admit being fatigued. 
Under-reporting of fatigued driving is most likely due to lack of firm 
evidence since the investigation is done after the crash; the lack of 
awareness among drivers of the role that fatigue may have played in the 
crash; driver reluctance to admit being tired or falling asleep; and, 
in some cases, the death of the driver. Therefore, FMCSA has to rely on 
research studies that specifically investigated driver fatigue as a 
factor in truck crashes. The Large Truck Crash Causation Study (LTCCS) 
provided data from a nationally representative sample of large truck 
fatal and injury crashes. Data were collected on up to 1,000 elements 
in each crash. The total sample involved 967 crashes, which included 
1,127 large trucks, 959 non-truck motor vehicles, 251 fatalities, and 
1,408 injuries. Fatigue was listed as a contributing factor in 13 
percent of the crashes in the LTCCS. Research conducted by the National 
Transportation Safety Board (NTSB) has estimated that fatigue is 
associated in 31 percent of crashes (though that figure is for truck 
crashes fatal to the driver). The NTSB also observed that ``truck 
driver fatigue may be a contributing factor in as many as 30 to 40 
percent of all heavy truck accidents.''
    FMCSA has always been conservative in estimates of the role of 
fatigue in crashes. If the estimates from the LTCCS are correct, that 
means that fatigue was a factor in more than 515 fatalities and 12,350 
injuries on the Nation's highways in 2013.

    Question 4. Earlier this year, the Committee heard testimony from a 
trucking company, who said most of its drivers never come close to 
hitting the maximum weekly hours of service limit. Is that true of most 
companies? If so, why are those companies so concerned about this rule 
that doesn't impact them?
    Answer. Safety is FMCSA's top priority and the December 2011 hours-
of-service final rule is intended to prevent motor carriers from 
requiring or allowing truck drivers to remain behind the wheel after 
working more than 70 hours, week after week.
    Yes, it is true that many drivers do not work the maximum number of 
hours possible under the HOS rules. The hours-of-service regulations 
are directed toward those who do. Drivers who do not work the maximum 
hours should feel little impact from the revised provisions. Some 
associations and carriers have reported that there are ``unintended 
consequences'' from the new provisions; however, FMCSA has no 
documentation of the extent of these ``consequences.''
    The Agency's senior leadership team met with the American Trucking 
Associations on May 8, 2014. It is not clear from the examples 
presented that the 34-hour restart restrictions would have an adverse 
impact on schedules that comply with the 60- and 70-hour rules (i.e., 
the drivers did not reach a point where a restart was necessary in 
order to maintain the schedule). For example, one of the carriers 
presented a schedule showing 11-hour shifts, Monday through Friday, 
with an occasional 11-hour shift on Saturday. This schedule could never 
be run under the 60-hour rule, with or without the restart option, 
because the driver would hit the 60-hour on-duty limit during the shift 
on Saturday. And under the 70-hour rule (if the motor carrier operates 
CMVs every day of the week) there is no need to use the restart--the 
drivers could work six 11-hour shifts (Monday through Saturday) without 
running out of time. They could then begin a new work week Monday 
morning, at a time of the carrier's choosing.
    It is thus unclear why so many companies appear to be concerned, or 
indeed, if recent assertions or widespread concern are accurate. It is 
worth noting that very few groups of carriers have taken advantage of 
the opportunity to formally request an exemption from any of the hours 
of service regulations (49 CFR Part 381).

    Question 5. Since Congress stopped enforcement of some provisions 
of the rule, are there other issues we should consider revisiting as 
well--like limiting the number of hours per day drivers can drive or 
examining the need for any restart?
    Answer. The hours-of-service (HOS) final rule (76 FR 81134), 
effective February 27, 2012, with delayed compliance on some provisions 
until July 1, 2013, was an exhaustive effort to review all concerns 
about the HOS rules. The Agency obtained input from drivers, the 
industry and the public, through written comments and public listening 
sessions. The rulemaking considered hundreds of research studies and 
was based on many years of HOS research and experience at FMCSA. The 
U.S. Court of Appeals for the District of Columbia Circuit upheld the 
final rule, with a minor exception. American Trucking Associations v. 
Federal Motor Carrier Safety Administration, 724 F.3d 243 (D.C. Cir. 
2013). The Court opined that ``our decision today brings to an end much 
of the permanent warfare surrounding the HOS rules.'' Although the 
Agency used the most comprehensive data available in the 2011 
rulemaking, FMCSA is committed to continuing research into fatigue and 
the HOS rules.

    Question 6. Are there other issues--like driver pay and company 
pressure--that are pushing drivers to work longer hours? Should we 
address those issues in conjunction with hours of service?
    Answer. Drivers frequently report that low pay is a reason they 
need to work as many hours as possible. One problem for them is that 
CMV drivers, among others, are exempt from the overtime provisions of 
the Fair Labor Standards Act. As a result, they are often unnecessarily 
delayed by shippers and receivers, who have limited incentives to 
resolve the issue. President Obama's GROW AMERICA Act would require 
that drivers be paid during these delays and give the FMCSA new 
authority over contractors who exercise direct control over a motor 
carrier's operations. Under the authority provided in MAP-21, FMCSA is 
preparing new regulations to address the coercion of drivers to violate 
the Federal Motor Carrier Safety Regulations.

    Question 7. A fatal, multi-vehicle truck accident can cost over $20 
million to compensate families, care for the injured, and pay for the 
destruction of our Nation's highway infrastructure. However, the 
requirement to carry at least $750,000 in minimum insurance has not 
been increased in 30 years, even to account for inflation, which has 
led to taxpayers having to foot the bill in the aftermath of major 
truck accidents.
    Administrator Darling, FMCSA issued a report recognizing the 
current minimum insurance level as inadequate. What steps can Congress 
take in transportation reauthorization to reduce the unfair, economic 
burden that truck crashes are placing on the American people?
    Answer. Section 32104 of MAP-21 directed the Secretary of 
Transportation (DOT) to issue a report to Congress on the 
appropriateness of the current minimum financial responsibility 
requirements for motor carriers of property and passengers, and the 
current bond and insurance requirements for freight forwarders and 
brokers. The statute also requires that the Secretary report on the 
adequacy of the financial responsibility limits every four years 
thereafter. FMCSA's April 2014 report fulfilled the statutory 
requirement for the initial report. And given the findings that certain 
crashes occur for which the current levels appear inadequate, the 
Agency tasked it Motor Carrier Safety Advisory Committee to provide 
recommendations on how best to address this challenge. The Agency also 
sought public comment through publication of an Advance Notice of 
Proposed Rulemaking (ANPRM), a rulemaking notice in which a series of 
questions were presented without any proposal for changes to the 
minimum levels of insurance. The Agency is currently reviewing the 
public comments submitted in response to the ANPRM. No decision has 
been made concerning future regulatory action.
    With regard to the question about the burden on the economic 
consequences on the general public for truck-related crashes, a 
previous FMCSA-sponsored study on this issue identified the issue of 
cost transference as it relates to severe truck crashes. However, the 
study did not provide an estimate of the aggregate amount of final 
judgments against motor carriers that exceeded the limits of the 
insurance coverage for those carriers.

    Question 8. Why is it important that the Administration reviews 
minimum insurance levels?
    Answer. Section 32104 of MAP-21 directed the Secretary of 
Transportation (DOT) to issue a report to Congress on the 
appropriateness of the current minimum financial responsibility 
requirements for motor carriers of property and passengers and the 
current bond and insurance requirements for freight forwarders and 
brokers. Additionally, the statute requires that the Secretary report 
on the adequacy of the financial responsibility limits every four years 
thereafter. FMCSA's April 2014 report fulfilled the statutory 
requirement for the initial report. Given the findings that certain 
crashes occur for which the current levels appear inadequate, the 
Agency tasked its Motor Carrier Safety Advisory Committee to provide 
recommendations on how best to address this challenge.
    FMCSA has made no decision concerning future regulatory action on 
motor carrier financial responsibility requirements. On November 28, 
2014, we issued an Advance Notice of Proposed Rulemaking (ANPRM) 
pertaining to financial responsibility. In that ANPRM, we sought 
information through a series of questions pertaining to a potential 
increase in the financial responsibility limits as well as other issues 
relating to personal injury and bodily injury damages that exceed the 
levels of minimum financial responsibility. We did not present any 
proposal for changes to the minimum insurance levels. Once the Agency 
has fully analyzed the information that we received through the ANPRM 
(more than 2,100 comments were received), we will decide on next steps 
and will make that information public.
    While Congress did not direct the Agency to initiate a rulemaking 
concerning financial responsibility, the findings from the statutorily 
mandated study obligated the Agency to seek public engagement in the 
process for determining whether FMCSA should propose changes to the 
requirements.

    Question 9. In the last surface transportation reauthorization, 
Congress required that the final rule mandating electronic logging 
devices on trucks was to be issued by October 2013, nearly a year and a 
half ago. Why is this important safety rule so far behind schedule? Is 
this rule being executed as a high priority?
    Answer. Finalizing the Electronic Logging Device rule is a top 
priority for me and the Department of Transportation. By leveraging 
innovative technology with ELDs, we have the opportunity to save lives 
and boost efficiency for both motor carriers and safety inspectors. The 
rule will increase compliance with the hours-of-service rule (HOS) and 
decrease the risk of fatigue-related crashes. The proposed rulemaking 
will also significantly reduce the paperwork burden associated with 
hours-of-service recordkeeping for interstate truck and bus drivers.
    FMCSA published a supplemental notice of proposed rulemaking 
(SNPRM) in the Federal Register on March 28, 2014, followed by a 60-day 
comment period which was extended on May 16 for an additional 30 days. 
We received more than 1,750 comments which we are currently reviewing. 
Given the scope of this rulemaking and the related studies the Agency 
undertook, we were not able to meet the statutory timeframes. However, 
we will continue to work hard towards a September 2015 publication of a 
final rule. The Agency has already started planning for the rule's 
implementation.

    Question 10. FMCSA has quite a number of languishing and overdue 
rulemakings that have been required by Congress in statute. Could you 
please submit for the record a detailed list of current congressional 
requirements, the agency's current timeline for completion of these 
rulemakings, and detailed explanations as to why congressional 
deadlines have not been met?
    Answer. MAP-21 contained more than 40 statutory provisions that 
either directly required a rulemaking action or could require a 
rulemaking action depending on a study or other preliminary work. To 
date, FMCSA has completed rulemaking actions on 23 of those 
requirements. The attached table provides updated information on the 
status of the outstanding actions.

                FMCSA Pending Rulemakings--Revised 4/7/15
------------------------------------------------------------------------
                                          Publication
 RIN       Title      Stage    Statute       Date       Status/Comments
------------------------------------------------------------------------
AB20   ELD & HOS     Final    Court      September     SNPRM published 3/
       Supporting     Rule     Decision   2015          28/14, comment
        Docs                   , MAP-21                 period ended 6/
                               32301                    26/14 (1761
                                                        comments in the
                                                        docket on the
                                                        SNPRM). Final
                                                        Rule in Agency
                                                        review.
------------------------------------------------------------------------
AB11   Safety        NPRM     None;      July 2015     NPRM in
        Fitness                NTSB rec                 Departmental
       Determinatio            H-99-06                  review.
        n
------------------------------------------------------------------------
AB57   Coercion      Final    MAP-21,    September     NPRM published 5/
                      Rule     32911      2015          13/14, comment
                                                        period ended 8/
                                                        11/14 (90
                                                        comments). Final
                                                        Rule in Agency
                                                        review,
------------------------------------------------------------------------
AB66   Entry Level   NPRM     MAP-21;    October 2015  Negotiated
        Driver                 32304                    Rulemaking.
        Training                                        Committee
                                                        meetings began 2/
                                                        26 and are
                                                        scheduled to
                                                        occur
                                                        approximately
                                                        every two weeks
                                                        through May.
------------------------------------------------------------------------
AB44   Bus Leasing   Final    None;      September     NPRM published 9/
       Requirements   Rule     NTSB rec   2015          20/13, comment
                               H-09-33                  period ended 11/
                               &                        19/13 (12
                              H-09-36                   comments). Final
                                                        Rule in Agency
                                                        review.
------------------------------------------------------------------------
AB40   National      Final    MAP-21,    April 2015    Final Rule
        Registry 2    Rule     32302                    published 4/23/
                                                        15.
------------------------------------------------------------------------
AB18   Drug &        Final    MAP-21,    January 2016  NPRM published 2/
        Alcohol       Rule     32402;                   20/14, comment
        Clearinghou            NTSB rec                 period ended 5/
        se                    H-01-25                   21/14. (161
                                                        comments). Final
                                                        Rule being
                                                        developed.
------------------------------------------------------------------------
AB56   URS 2         NPRM     MAP-21,    April 2016    NPRM being
                               32106                    developed.
------------------------------------------------------------------------
AB63   Speed         NPRM     None       June 2015     Joint rule with
        Limiters                                        NHTSA. NPRM in
                                                        Departmental
                                                        review.
------------------------------------------------------------------------
AA95   Qualificatio  NPRM     None; MRB  April 2015    NPRM published 5/
        ns of                  Recommen                 4/15. Comment
        Drivers;               dations                  period ends on 7/
        Diabetes                                        6/15.
------------------------------------------------------------------------
AB61   Tank Vehicle  Final    None;      May 2015      NPRM published 9/
       Definition     Rule     Petition                 26/13, comment
                               s                        period ended 11/
                                                        25/13 (17
                                                        comments). Final
                                                        Rule in Agency
                                                        Review.
------------------------------------------------------------------------
AB74   Financial     ANPRM    None       TBD           The ANPRM
       Responsibili                                     published 11/28/
        ty                                              14, comment
                                                        period ended 2/
                                                        26/15. (2100
                                                        comments),
                                                        currently
                                                        analyzing
                                                        comments.
------------------------------------------------------------------------
AB67   FMVSS         NPRM     None       April 2015    NPRM in Agency
                                                        review.
------------------------------------------------------------------------
AB75   Civil         Final    None       March 2015    Final Rule
        Penalties     Rule                              published 4/3/
       Inflation                                        15.
       Adjustment
------------------------------------------------------------------------
AB68   CDL           NPRM     MAP-21     February      NPRM being
        Requirement                       2016          developed.
        s of MAP-21
        and the
        Military
        CDL Act of
        2012
------------------------------------------------------------------------
AB47   Electronic    Final    None; RRR  ............  NPRM published 4/
       Signatures     Rule                              28/14, comment
        (RRR)                                           period ended 6/
                                                        27/14 (15
                                                        comments). Final
                                                        Rule being
                                                        developed.
------------------------------------------------------------------------
AB17   New Entrant   ANPRM    MAP-21     ............  ANPRM published 8/
       Testing                                          29/09; 3
                                                        listening
                                                        sessions and
                                                        roundtable held
                                                        in 2014
------------------------------------------------------------------------

    Additionally, the Committee requested information on two rules that 
are listed in the March 2015 Department of Transportation (DOT) report 
on significant rulemakings identified as delayed due to ``other, higher 
priorities.'' The first is the Certification of Safety Auditors, Safety 
Investigators, and Safety Inspectors rulemaking. As there has been an 
Interim Final Rule (IFR) in place since January 2004, and the Agency 
continues to work effectively with the Commercial Vehicle Safety 
Alliance concerning training and certification standards for 
individuals conducting roadside inspections, FMCSA has not established 
a schedule to complete this Final Rule. Although a Final Rule is 
required to close out the matter, completion of the rulemaking is not a 
priority at this time given the FMCSA's focus on other rulemakings that 
offer greater safety benefits.
    The second rulemaking is the Limitations on the Issuance of 
Commercial Driver Licenses with a Hazardous Materials Endorsement 
rulemaking. Similarly, FMCSA has had an IFR in place since April 2005 
which conforms to the IFR that the Transportation Safety Administration 
(TSA) published simultaneously. Because there are no transportation 
security gaps left unfilled by FMCSA's IFR, the Agency has not made 
publication of a final rule a priority at this time as we expect no 
additional safety benefits from finalizing the IFR.
    In establishing its rulemaking priorities, FMCSA balances many 
competing factors such as safety benefits, Congressional mandates, 
presidential initiatives, such as Executive Order 13563, and petitions 
from our stakeholders. Our top rulemaking priorities for calendar year 
2015 are to publish the Final Rule on Electronic Logging Devices and 
the Notices of Proposed Rulemaking on Safety Fitness Determination and 
Entry-Level Driver Training. Additionally, we anticipate completing the 
Final Rules on Coercion and the Drug and Alcohol Clearinghouse, as well 
as making substantial progress on drafting the Notice of Proposed 
Rulemaking for the Unified Registration System (which addresses certain 
MAP-21 requirements). Priority rulemakings for 2015 will address seven 
of the remaining MAP-21 rulemaking requirements.

    Question 11. The Department has a system--known as Compliance, 
Safety and Accountability or CSA--to help improve truck safety by 
tracking data and targeting companies for intervention. Some have 
raised concerns about the program and have suggested that data--like 
crashes that aren't the fault of the truck driver--shouldn't be used in 
the program. Have you taken any corrective actions to address 
criticisms of CSA?
    Answer. Since implementation in 2010, the Safety Measurement System 
(SMS) has been revised several times to enhance the system as the 
Agency gained experience with it and to address concerns of 
stakeholders. I want to stress that these changes are enhancements to 
an already robust safety tool. Most recently, on July 24, 2014, FMCSA 
announced enhancements to the display of information on the public SMS 
website and responded to comments received in response to FMCSA's 
Federal Register Notice, ``Proposed Enhancements to the Motor Carrier 
Safety Measurement System (SMS) Public Website'' published on November 
5, 2013. The enhancements were a continuation of the Agency's efforts 
to provide law enforcement, the motor carrier industry, and other 
safety stakeholders with more comprehensive, informative, and regularly 
updated safety performance data. This set of enhancements included 
modifications to the public SMS display, including four additional 
changes not originally proposed that resulted from comments received. 
These enhancements were implemented in August 2014.
    In addition, FMCSA will soon publish another notice in the Federal 
Register and seek comments on an additional set of proposed 
enhancements to the SMS public website. Consistent with its prior 
announcements, the Agency is proposing changes to the SMS that are the 
direct result of feedback from stakeholders and the Agency's ongoing 
continuous improvement efforts. In addition, these changes are 
supported by not only the Agency's analysis, but research and analysis 
conducted by industry and other independent groups. The Agency is 
considering several changes through this notice and will be asking for 
comment on these issues, and other possible areas for consideration. 
The proposed set of enhancements would include changing SMS 
intervention thresholds to better reflect the Behavior Analysis Safety 
Improvement Category's (BASIC) correlation to crash risk, other changes 
to the Hazardous Materials Compliance BASIC, moving violations for 
operating while out-of-service to the Unsafe Driving BASIC, and changes 
to provide credit for companies who have very high vehicle utilization 
of their vehicles.
    In compliance with Congressional direction, we are conducting 
further study of the data sufficiency requirements.

    Question 12. Why does the Department use data about crashes, even 
if they weren't the fault of the truck driver? Shouldn't drivers be 
able to challenge questions violation and crash reports?
    Answer. Through analysis that has been re-verified over time, FMCSA 
has confirmed motor carriers that have been involved in a high number 
of crashes are more likely than other carriers to be involved in future 
crashes regardless of the role of the carrier in the crash.
    Although FMCSA uses all crashes in the SMS to identify motor 
carriers for intervention, the Agency does not display the SMS Crash 
Indicator BASIC score on the public website, recognizing the concerns 
of the industry relating to the carrier's role in the crash. In 
addition, the crash information on the SMS website clearly advises that 
``Crashes listed represent a motor carrier's involvement in reportable 
crashes, regardless of the carrier's or driver's role in the crash.''
    In addition, FMCSA fully considers crash preventability before 
issuing a safety rating to ensure that a carrier does not receive an 
adverse safety fitness rating because of a crash that was considered to 
be non-preventable. Using all crashes for prioritization, but only 
preventable crashes for safety fitness determinations, balances the 
concerns of the industry with FMCSA's mission to protect the motoring 
public by using the best performance data currently available.
    FMCSA has stopped short of making decisions about preventability 
for several reasons. First, crashes as a whole are extremely complex 
events, and trying to make a determination after the fact is difficult, 
costly and time consuming. In addition, the Agency has concerns about 
making judgments that can have a significant impact on private 
liability issues. Finally, the reliability and completeness of the data 
to make these judgments are open to question.
    The results of the ``Crash Weighting Analysis'' did call into 
question the usefulness of making decisions about a carrier's role in 
the crash when the reports were compared with other data sources. 
Understanding the concerns about these issues, including how the Agency 
would manage these issues for over 100,000 reportable crashes annually, 
the Agency sought public comments (Federal Register, February 19, 2015) 
on this issue and will use this input as it identifies appropriate next 
steps regarding the Crash Indicator BASIC in the SMS.
    Carriers and drivers may submit documentation regarding violations 
and crashes through FMCSA's DataQs system. The motor carrier's records 
are adjusted for adjudicated citations or erroneous violations.

    Question 13. A few decades ago, a unionized truck driver made 
today's equivalent of $44.83 per hour. Today a truck driver is lucky to 
make half of that. One study by Rutgers University found Independent 
contractors in New Jersey reported earning less than $10 per hour while 
employee drivers earned around $12 per hour.
    Truck accidents are on the rise while the wages of driver are in 
decline. We are paying the folks responsible for moving the goods the 
country depends on extremely low salaries. These men and women must now 
push themselves to the brink of human exhaustion just to feed their 
families or save up to send their children to college. I have to wonder 
how that impacts safety. Administrator Darling, do you share similar 
concerns? How does the Administration's surface transportation proposal 
address this issue?
    Answer. While FMCSA cannot comment on the specific salary levels 
referenced in your inquiry, the Agency shares your concern about the 
link between driver earnings and safety. This concern is particularly 
acute for long-haul drivers who may work extended hours that increase 
the risk of fatigue. Drivers often experience long periods of detention 
time at shipper or receiver facilities--time for which they feel they 
are not compensated, thus, resulting in pressure to drive beyond the 
hours of service limitations as a matter of economic necessity. This is 
especially serious for drivers compensated by the mile or trip but not 
by the hour.
    Under GROW AMERICA, the Secretary of Transportation would be given 
the authority to adopt regulations that would require motor carriers to 
compensate these drivers, whether they are employees and independent 
contractors, for on-duty, not-driving periods at an hourly rate not 
less than the Federal minimum wage (this would not affect drivers 
covered by a collective bargaining agreement that governs compensation 
for these periods). While the Agency recognizes this issue as a 
problem, it is not easily quantified. Thus, the Agency is in the 
initial stages of a study that evaluates driver compensation methods in 
connection with safety. The Agency hopes to complete this study this 
year.

    Question 14. Between October 2011 and October 2014, FMCSA conducted 
the U.S.-Mexico Cross-Border Long-Haul Trucking Pilot Program to 
evaluate the ability of Mexico domiciled motor carriers to operate 
safely in the U.S. The pilot allowed certain Mexico domiciled motor 
carriers to operate throughout the U.S. for up to 3 years. U.S. 
domiciled motor carriers were granted reciprocal rights to operate in 
Mexico for the same period.
    In January, DOT announced that it would move forward with opening 
the border to trucks domiciled in Mexico despite a report by the DOT 
Inspector General (IG) suggesting that the pilot program had not been 
able to generate statistically significant data, and therefore the 
future safety performance of Mexico domiciled carriers could not be 
determined.
    Administrator Darling, do you believe the amount of data derived 
from the 13 carriers in the pilot program was sufficient to make a 
safety determination for all Mexican domiciled long-haul carriers?
    Answer. As explained in FMCSA's April 2011 Federal Register notice, 
the Agency's analysis plan included the assessment of the safety 
performance of the Pilot Program as well as the large number of 
Mexican-owned or -domiciled Enterprise and Certificate motor carriers 
conducting long-haul operations beyond the commercial zones of the 
United States during the Pilot Program. The analysis of the Certificate 
and Enterprise carriers was conducted, in keeping with the Agency's 
analysis plan, to provide complementary safety information as they 
operate substantially the same as the Pilot Program carriers under a 
different oversight regimen. It is noted that during the Pilot Program 
period, 351 new enterprise motor carriers received authority.
    Evaluating driver out-of-service (OOS) rates, vehicle OOS rates, 
brake violations, hour of service (HOS) violations, driver fitness 
violations, and moving violations, along with safety ratings and acute 
and critical violations, the primary criteria used to measure the 
safety of motor carriers operating in the United States, the analysis 
finds evidence that Mexico-domiciled motor carriers operating beyond 
the commercial zones had safety records that were equal to or better 
than the national average for U.S. and Canadian motor carriers 
operating in the United States.
    Based on the data available to FMCSA and the analysis in the Report 
to Congress, in conjunction with data developed for comparison purposes 
of other Mexican motor carriers with long-haul operations, FMCSA 
concludes that the Pilot Program successfully demonstrated that Mexican 
motor carriers can and do operate throughout the United States at a 
safety level equivalent to U.S. and Canada-domiciled motor carriers and 
consistent with the high safety standards that FMCSA imposes on all 
motor carriers authorized to operate in the United States.

    Question 15. What is your response to the concerns raised by the 
DOT IG in their report on the Cross-Border Pilot Program?
    Answer. The OIG was required to complete an audit of the Pilot 
Program within 60 days of its conclusion. This OIG audit report was 
submitted to the Department and U.S. Congress on December 10, 2014, and 
included the Agency's response. The report documented that FMCSA 
implemented adequate monitoring and enforcement. The OIG report noted 
that although security concerns existed for FMCSA personnel, the agency 
substantially complied with the Section 350 requirements.
    The OIG also noted that FMCSA established a sufficient mechanism to 
determine the Pilot Program participants' impact on safety. The OIG 
confirmed FMCSA's findings and conclusions regarding Pilot Program 
carriers' safety performance.
    The OIG report indicated that the Pilot Program lacked an adequate 
and representative sample to make confident projections regarding long-
haul operations by Mexico-domiciled motor carriers. Based on its 
statistical analysis, which was statutorily limited to the Pilot 
Program carriers, the OIG concluded that the participation of 15 
carriers, in relation to the 37 applicants, was not adequate to 
confidently project safety performance for an unknown future 
population. FMCSA's April 13, 2011, Pilot Program proposal estimated 
that 46 participant carriers would be needed to achieve the target of 
4,100 inspections within 3 years based upon long-haul border crossing 
assumptions. At the time, FMCSA also stated that if participating 
carriers performed more crossings per week or enrolled more vehicles, 
then fewer carriers would be needed for the program. In fact, the 15 
participating carriers did surpass FMCSA's initial target of 4,100 
inspections.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                        Hon. Christopher A. Hart
    Question 1. Do you believe increasing crude-by-rail movements 
constitutes an imminent hazard to American public safety?
    Answer. As the volume of crude-by-rail shipments has grown in 
recent years, several serious and often fatal accidents reflect 
substantial shortcomings in railroad operational integrity, tank car 
design, and emergency response capability that create an increased risk 
to the public. The Association of American Railroads (AAR) states that 
crude oil shipments have increased on Class I railroads from 4,700 
carloads in 2006 to about 400,000 shipments in 2013. NTSB 
investigations conclude that the DOT-111 tank cars and the more robust 
CPC-1232 cars that are being used to move flammable liquids are not up 
to the task. Crude oil is increasingly delivered to the refinery by 
rail and is shipped via very long ``unit trains'' that can consist of 
more than a hundred tank cars, be more than a mile long, and travel in 
or near populated areas, environmentally sensitive areas, and highways. 
Growth in the North American energy landscape increases the likelihood 
for fires, explosions, and releases of hundreds of thousands of gallons 
of flammable liquids.

    Question 2. I'm sure you have looked at the draft rulemaking on 
Enhanced Tank Car Standards and Operational Controls for High-Hazard 
Flammable Trains, which is now under final review at the Office of 
Management and Budget. Do you believe tank cars should have thicker 
shells beyond the current standard?
    Answer. Yes. The NTSB has identified vulnerabilities in the DOT-111 
tank car design with respect to tank heads, shells, and fittings that 
create unnecessary and demonstrated risks that can result in the 
release of a tank car's product in an accident. Flammable crude oil 
frequently ignites and causes catastrophic damage.
    Federal requirements have not kept pace with technology, evolving 
demands placed on the railroad industry, and knowledge about hazardous 
materials and accidents. While the current AAR industry standards 
adopted for DOT-111 tank cars ordered after October 1, 2011, (CPC-1232) 
that are used to transport packing group I and II crude oil impose a 
level of protection greater than corresponding Federal requirements, 
recent accidents have demonstrated that these modifications do not 
offer adequate safety improvements.
    The NTSB continues to assert that tank cars of any successor 
specification transporting hazardous materials should be more puncture-
resistant and include thermal protection systems. The existing tank car 
fleet, including DOT-111 and CPC-1232 tank cars, should be retrofitted 
to a more robust performance standard. This can be accomplished through 
the incorporation of additional protective features such as full head 
shields, jackets, thermal insulation, top fittings protection, and 
thicker head and shell materials. Because the average service life of a 
tank car may run 20 to 50 years, it is imperative that industry, the 
FRA, and PHMSA take action now to address hazards that otherwise would 
exist for another half-generation or longer.

    Question 3. Do you believe that braking systems must be improved 
beyond the current standard?
    Answer. Yes. The NTSB supports PHMSA's proposal for improved 
stopping performance using braking systems that could reduce the 
likelihood of a tank car being punctured during a derailment. This 
proposal was included in its August 1, 2014, notice of proposed 
rulemaking (NPRM), Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains outlining new 
operational requirements and improved tank car standards for certain 
trains transporting large volumes of hazard Class 3 flammable liquids. 
The NPRM would require that all high-hazard flammable trains (HHFTs) be 
equipped with improved braking systems (either distributed power units, 
two-way end-of-train devices, or electronically controlled pneumatic 
brakes).
    The NTSB also believes that lower speeds combined with these 
improved braking systems would reduce the risk of tank car punctures as 
well. Because lower operating speeds reduce the kinetic energy in a 
train consist, they could, if coupled with improved stopping ability, 
minimize the dynamic behavior and number of tank cars involved in an 
accident.

    Question 4. Is it your opinion that an unjacketed CPC-1232 tank car 
is not a significant and substantial safety improvement over the legacy 
DOT-111 (jacketed or unjacketed)?
    Answer. The NTSB has investigated several accidents recently, such 
as the Lynchburg derailment and fire a year ago involving the newer 
cars, in which the train was going less than 25 mph and still resulted 
in the breach of a 1232 car. The NTSB has concerns and is still 
analyzing evidence from these accidents. While the current AAR industry 
standards adopted for DOT-111 tank cars ordered after October 1, 2011, 
that are used to transport packing group I and II crude oil impose a 
level of protection greater than corresponding Federal requirements, 
these accidents have demonstrated that these modifications do not 
provide significant safety improvements. While the NTSB does not 
specify the exact thickness in its recommendations, we know that the 
robustness must be improved, along with thermal protection, to avoid 
catastrophic fires and explosions.
    These accidents demonstrate that tank cars provided with increased 
puncture resistance, such as the CPC-1232 tank car, when exposed to 
pool fire conditions, are still rupturing and releasing product at an 
unacceptable rate.
    Transport Canada's proposed replacement and retrofit implementation 
schedule provides until 2025 for all tank cars to comply with new 
performance standards, and the NTSB believes that a more comprehensive 
and aggressive implementation schedule, with transparent reporting of 
intermediate progress milestones, is necessary to ensure completion of 
tank car improvements within a reasonable time period.

    Question 5. Based on available data, do you believe that legacy 
DOT-111 (jacketed or unjacketed) and unjacketed CPC-1232 cars can even 
be retrofitted to a standard that will be safe enough to allow for 
continued use?
    Answer. Yes. The NTSB believes that these tank cars can be 
retrofitted for enhanced safety. For example, a unit train of 100 fully 
loaded 30,000-gallon tank cars may transport up to 3 million gallons of 
hazardous materials per train through populated and environmentally 
sensitive areas. The NTSB welcomes requirements for existing DOT-111 
tank cars to be retrofitted with head shields and thermal protection, 
among other improvements. The safety benefits of new specification tank 
cars will not be realized while the existing tank car fleet remains in 
hazardous materials unit train service unless the existing cars are 
retrofitted.

    Question 6. The current rule under consideration at OMB does not 
address the volatility of the crude oil that is being transported. Is 
there evidence to suggest that the volatility of the crude oil in 
recent crude-by-rail accidents made the accidents worse, in terms of 
size and duration of resulting fires and explosions?
    Answer. While some of the crude oil being moved on the Nation's 
railroad system is of a higher quality and thus is more volatile than 
some other Class 3 flammable liquids, recent accidents have not 
demonstrated that reducing the volatility is a solution. In fact, such 
an action results in other significant challenges, and may transfer--
not eliminate--the risk posed by these materials.
    While Bakken formation crude may have more volatile properties, the 
NTSB's investigations conclude that differences in crude's volatility 
are not the key safety issue.

    Question 7. Is there reason to believe that reducing the volatility 
of the crude oil prior to shipment could reduce the severity of 
accidents?
    Answer. Reiterating the previous response, differences in the crude 
oil's volatility is not the key safety issue. While the more volatile 
materials will result in a larger fire ball when a tank car thermal 
fails, this does not add significantly to the footprint of the damage. 
The pool fire (burning flammable liquid on the ground) causes the 
majority of the damage. The huge quantities of flammable crude being 
transported and the impact energy involved in an accident that breaches 
unsafe tank cars are the main causes for ignition and catastrophic 
fires.

    Question 8. North Dakota will soon enact the first volatility 
standard for crude shipped by rail. The new standard is understood to 
be easily met with existing infrastructure in North Dakota. Should 
there be a nationwide, federally-enforced standard for volatility of 
crude shipped by rail?
    Answer. The NTSB recommends that any Federal standards focus on 
enhanced tank head and shell puncture-resistance systems, and top-
fittings protection, rather than volatility. The huge quantities of 
flammable crude being transported by unit trains and the impact energy 
involved in an accident that breaches unsafe tank cars are the main 
safety issues warranting Federal enforcement.

    Question 9. Should such a Federal standard be more protective than 
the North Dakota standard?
    Answer. See above.

    Question 10. Rail tank car safety was on the NTSB's 2015 ``Most 
Wanted List'' of safety improvements. In light of what has happened 
recently in West Virginia; Ontario, Canada; and Illinois, do you view 
October 2017 as an acceptable timeframe--from a safety perspective--to 
stop the use of the worst tank cars including DOT-111s for carrying 
crude oil?
    Answer. For more than 20 years the NTSB has identified a range of 
vulnerabilities in the DOT-111 tank car design, including tank heads, 
shells, and fittings that create an unnecessary, unacceptable, and 
demonstrated risk, which may result in the catastrophic release of a 
tank car's product in an accident. The NTSB continues to find that 
accidents involving the rupture of DOT-111 tank cars carrying hazardous 
liquids often have violent and destructive results. Phasing out DOT-111 
tank cars is already overdue and every day that goes by with this 
unsuitable equipment in crude oil transport operations creates an 
unnecessary risk of a tragic disaster.
    Accordingly, the proposed time-frame released by Transport Canada 
to allow until 2025 for replacement of these unacceptable tank cars is 
too long.

    Question 11. Looking at crude-by-rail accidents and subsequent 
explosions since the tragedy in Quebec, how many, if any, were made 
worse by poor braking performance--that is to say, the so-called 
``pile-up'' of cars after the initial derailment? a. Which ones? b. By 
what magnitude?
    Answer. The NTSB has long focused on preventing accidents in the 
first place. While we have not issued recommendations to improve 
braking in these past investigations, we continue to look at braking 
performance in on-going investigations. We do not have the data to 
respond to sub-questions a. and b.
    Nevertheless, the NTSB supports PHMSA's proposal for improved 
stopping performance using braking systems that could reduce the 
likelihood of a tank car being punctured during a derailment.

    Question 12. Do you believe that the actions currently underway by 
the Administration will adequately address the concerns raised in this 
year's NTSB's ``Most Wanted'' list of suggestions, prior to the release 
of your 2016 list?
    Answer. While there is a lot of work that needs to be done to 
address the NTSB's concerns raised in this year's Most Wanted List 
related to rail tank car safety, the NTSB is pleased that some progress 
has been made. PHMSA published a notice of proposed rulemaking (NPRM) 
on August 1, 2014, Hazardous Materials: Enhanced Tank Car Standards and 
Operational Controls for High-Hazard Flammable Trains. PHMSA proposes, 
in coordination with FRA, new operational requirements and improved 
tank car standards for certain trains transporting large volumes of 
hazard Class 3 flammable liquids. It also proposes revising the general 
requirements for offerors to ensure proper classification and 
characterization of mined gases and liquids. The NTSB remains engaged 
in that rulemaking and in NTSB comments dated September 26, 2014, we 
urged PHMSA and FRA to address the following six recommendations as 
promptly as possible.
    To PHMSA:

   Require that all newly manufactured and existing general 
        service tank cars authorized for transportation of denatured 
        fuel ethanol and crude oil in Packing Groups I and II have 
        enhanced tank head and shell puncture resistance systems and 
        top fittings protection that exceeds existing design 
        requirements for DOT-111 tank cars. (R-12-5)

   Require that all bottom outlet valves used on newly 
        manufactured and existing non-pressure tank cars are designed 
        to remain closed during accidents in which the valve and 
        operating handle are subjected to impact forces. (R-12-6)

   Require that all newly manufactured and existing tank cars 
        authorized for transportation of hazardous materials have 
        center sill or draft sill attachment designs that conform to 
        the revised Association of American Railroads' design 
        requirements adopted as a result of Safety Recommendation R-12-
        9. (R-12-7)

   Inform pipeline operators about the circumstances of the 
        accident and advise them of the need to inspect pipeline 
        facilities after notification of accidents occurring in 
        railroad rights-of-way. (R-12-8)

    To the FRA:

   Work with PHMSA to expand hazardous materials route planning 
        and selection requirements for railroads under 49 CFR 172.820 
        to include key trains transporting flammable liquids as defined 
        by AAR Circular No. OT-55-N and, where technically feasible, 
        require rerouting to avoid transportation of such hazardous 
        materials through populated and other sensitive areas (R-14-1) 
        and;

   Audit shippers and rail carriers of crude oil to ensure they 
        are using appropriate hazardous materials shipping 
        classifications, have developed transportation safety and 
        security plans, and have made adequate provision for safety and 
        security. (R-14-3)

    Since then, we also issued additional recommendations we hope will 
be part of the ongoing rulemaking.
    To PHMSA:

   Require that all new and existing tank cars used to 
        transport all Class 3 flammable liquids be equipped with 
        thermal protection systems that meet or exceed the thermal 
        performance standards outlined in Title 49 Code of Federal 
        Regulations 179.18(a) and are appropriately qualified for the 
        tank car configuration and the commodity transported. (R-15-14)

   In conjunction with thermal protection systems call for in 
        safety recommendation R-15-14, require that all new and 
        existing tank cars used to transport all Class 3 flammable 
        liquids be equipped with appropriate sized pressure relief 
        devices that allow the release of pressure under fire 
        conditions to ensure thermal performance that meets or exceeds 
        the requirements of Title 49 Code of Federal Regulations 
        179.18(a), and that minimizes the likelihood of energetic 
        thermal ruptures. (R-15-15)

   Require an aggressive, intermediate progress milestone 
        schedule, such as a 20 percent yearly completion metric over a 
        5-year implementation period, for the replacement or 
        retrofitting of legacy DOT-111 and CPC-1232 tank cars to 
        appropriate tank car performance standards that include 
        equipping these tank cars with jackets, thermal protection, and 
        appropriately sized pressure relief devices. (R-15-16)

   Establish a publicly available reporting mechanism that 
        reports at least annually, progress on retrofitting and 
        replacing tank cars subject to thermal protection system 
        performance standards as recommended in safety recommendation 
        R-15-16. (R-15-17)

    We will continue to monitor PHMSA's progress and will ensure that 
decision-makers have the full benefit of the lessons the NTSB has 
learned through its investigations. The NTSB strongly believes in a 
three-tiered approach to rail safety involving industry, emergency 
planning and response organizations, and the public. Railroads must 
pursue aggressive mitigation strategies, adopt operating restrictions, 
apply better braking technology, conduct risk analyses to select the 
safest routes, and ensure that track inspection is of the highest 
quality and proper frequency. Railroads, communities, and emergency 
responders must develop comprehensive response plans, ensure their 
preparedness for responding to worst-case releases in accidents, and 
expand public awareness. Shippers must use the most robust tank cars 
available to lessen the consequences of accidents involving hazardous 
materials.
    We have urged PHMSA to move these critical safety initiatives 
forward promptly and to issue a final rule incorporating the proposed 
regulations without delay. We believe that the NPRM would provide 
balanced actions (with certain improvements suggested in our comment 
letter), improve safety in transporting large volumes of flammable 
liquids by railroad, and avoid overreliance on any single risk-
reduction strategy. The NTSB's deliberations on its 2016 Most Wanted 
List will weigh all these considerations and PHMSA's timeliness 
heavily.
                                 ______
                                 
                       National Transportation Safety Board
                                 Washington, DC, September 26, 2014
U.S. Department of Transportation,
Docket Management System,
Docket Operations, M-30,
Ground Floor, Room W12-140,
Washington, DC.

Attention: Docket No. PHMSA-2012-0082 (HM-251)

Dear Sir or Madam:

    The National Transportation Safety Board (NTSB) has reviewed the 
Pipeline and Hazardous Materials Safety Administration's (PHMSA) August 
1, 2014, notice of proposed rulemaking (NPRM), Hazardous Materials: 
Enhanced Tank Car Standards and Operational Controls for High-Hazard 
Flammable Trains.\1\ In this notice, PHMSA, in coordination with the 
Federal Railroad Administration (FRA), proposes new operational 
requirements and improved tank car standards for certain trains 
transporting large volumes of hazard class 3 flammable liquids. It also 
proposes revising the general requirements for offerors to ensure 
proper classification and characterization of mined gases and liquids. 
PHMSA notes that the proposed requirements are designed to reduce the 
frequency and consequences of accidents involving certain trains 
transporting large volumes of flammable liquids. The risks posed by 
such trains are illustrated in the catastrophic consequences of recent 
derailments at Casselton, North Dakota; Aliceville, Alabama; and Lac-
Megantic, Quebec, Canada.
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    \1\ Federal Register 79, no. 148 (August 1, 2014): 45016.
---------------------------------------------------------------------------
    The NPRM addresses NTSB Safety Recommendations R-12-5 and R-12-6, 
which we issued on March 2, 2012, as a result of the June 19, 2009, 
derailment of an ethanol unit train of U.S. Department of 
Transportation (DOT) specification 111 (DOT-111) tank cars in Cherry 
Valley, Illinois.\2\ The NPRM also addresses Safety Recommendations R-
14-1, R-14-3, R-14-4, and R-14-6, which we issued on January 23, 2014. 
These recommendations were derived from our participation in the 
Transportation Safety Board of Canada (TSB) investigation of the July 
6, 2013, accident in Lac-Megantic, Quebec.\3\
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    \2\ National Transportation Safety Board, Derailment of CN Freight 
Train U70691-18 With Subsequent Hazardous Materials Release and Fire, 
Cherry Valley, Illinois, June 19, 2009, Accident Report/RAR-12-01 
(Washington DC: NTSB, 2012).
    \3\ Transportation Safety Board of Canada, Runaway and Main-Track 
Derailment, Montreal, Maine & Atlantic Railway Freight Train MMA-002, 
Mile 0.23, Sherbrooke Subdivision, Lac-Megantic, Quebec, 06 July 2013 
(Gatineau, Quebec, Canada: TSB, 2014).
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    The NTSB safety recommendations urge PHMSA to take the following 
actions:

   Require that all newly manufactured and existing general 
        service tank cars authorized for transportation of denatured 
        fuel ethanol and crude oil in Packing Groups I and II have 
        enhanced tank head and shell puncture-resistance systems and 
        top fittings protection that exceeds existing design 
        requirements for DOT-111 tank cars. (R-12-5)

   Require that all bottom outlet valves used on newly 
        manufactured and existing nonpressure tank cars are designed to 
        remain closed during accidents in which the valve and operating 
        handle are subjected to impact forces. (R-12-6)

   Work with the FRA to expand hazardous materials route 
        planning and selection requirements for railroads under Title 
        49 Code of Federal Regulations (CFR) 172.820 to include key 
        trains transporting flammable liquids as defined by the 
        Association of American Railroads (AAR) Circular No. OT-55-N 
        and, where technically feasible, require rerouting to avoid 
        transportation of such hazardous materials through populated 
        and other sensitive areas. (R-14-4)

   Require shippers to sufficiently test and document the 
        physical and chemical characteristics of hazardous materials to 
        ensure the proper classification, packaging, and recordkeeping 
        of products offered in transportation. (R-14-6)

    The NTSB recommendations also ask the FRA to take the following 
actions:

   Work with PHMSA to expand hazardous materials route planning 
        and selection requirements for railroads under 49 CFR 172.820 
        to include key trains transporting flammable liquids as defined 
        by AAR Circular No. OT-55-N and, where technically feasible, 
        require rerouting to avoid transportation of such hazardous 
        materials through populated and other sensitive areas. (R-14-1)

   Audit shippers and rail carriers of crude oil to ensure they 
        are using appropriate hazardous materials shipping 
        classifications, have developed transportation safety and 
        security plans, and have made adequate provision for safety and 
        security. (R-14-3)

    We are pleased that you are taking a broad systems approach in this 
NPRM--encompassing accident prevention, mitigation, and emergency 
response--toward managing the safety risks posed by high-hazard 
flammable trains (HHFTs).\4\ PHMSA proposes to improve performance 
standards for existing tank cars and establish standards for new DOT 
specification 117 (DOT-117) and specification 117P (DOT-117P) tank 
cars. PHMSA also addresses classification and characterization of mined 
gases and liquids, requires rail routing risk assessment for HHFTs, 
requires notification to state emergency response commissions (SERC) of 
the operation of trains transporting 1 million gallons or more of 
Bakken crude oil in their jurisdictions, and requires reduced operating 
speeds and enhanced braking.
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    \4\ The proposed rule defines a high-hazard flammable train as a 
one containing 20 or more carloads of a class 3 flammable liquid. The 
rule primarily affects unit train shipments of ethanol and crude oil 
because those commodities are most often transported in high-volume 
shipments in trains having 20 or more cars.
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    The NTSB emphasizes the importance of implementing the six safety 
recommendations listed above as rapidly as possible. Furthermore, we 
are also concerned about several aspects of the proposed regulations:

  1.  The proposed requirements for notifying state agencies about rail 
        shipments of hazardous materials through their territories do 
        not include ethanol.

  2.  The proposed notification requirements are limited to shipments 
        of crude oil from only one area (Bakken formation).

  3.  The proposed classification and characterization rules do not 
        apply to all hazardous materials.

  4.  The proposed classification and characterization rules do not 
        include specific requirements for the sampling and testing 
        needed to properly characterize hazardous materials destined 
        for rail shipment.

  5.  The proposed speed restrictions are based on a large populated 
        area rather than on a potential impact radius where individuals 
        could be harmed along flammable liquids rail corridors.

  6.  The proposed enhanced standards for new and existing tank cars 
        offer options that do not achieve an acceptable level of safety 
        and protection.

  7.  The proposed alternative tank car performance standards lack 
        impact-resistance metrics.

  8.  The proposed retrofitting requirements for existing DOT-111 tank 
        cars do not require top fittings protection.

  9.  The proposed bulk packaging standards would allow existing legacy 
        DOT-111 fleet to remain in flammable liquid service on trains 
        not designated as HHFTs.

    Our comments follow the order in section V of the NPRM. We also 
respond to questions in section V that are germane to our safety 
recommendations and to other matters on which we have a basis for 
commenting.
High-Hazard Flammable Trains
    Safety Recommendation R-14-4 urges PHMSA to include ``key trains'' 
carrying flammable liquids in its route-planning requirement. The 
recommendation refers to the definition of key train in AAR Circular 
No. OT-55-N, which lists 20 tank cars of any combination of hazardous 
material as the threshold number of tank cars in the consist.\5\ In 
referring to the AAR circular, we intended to suggest using a 
preexisting industry standard for route planning, but not to endorse a 
20-tank-car threshold for HHFTs. We caution you not to use Safety 
Recommendation R-14-4 to imply that we endorse a 20-tank-car threshold 
for any other purpose.
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    \5\ Association of American Railroads, Recommended Railroad 
Operating Practices for Transportation of Hazardous Materials, Circular 
No. OT-55-N (Washington, D.C.: AAR, 2013).
---------------------------------------------------------------------------
Question 3. To what extent do the covered hazardous materials, 
        including crude oil and ethanol, have differing risks when they 
        are in HHFTs?
    As demonstrated in recent accidents, the two products have a 
similar potential for causing injuries, fires, energetic fireball 
eruptions, and property damage. Although the products behave 
differently in the environment and require different strategies for 
firefighting, containment, and cleanup, they pose similar hazards to 
property and persons, and should be treated similarly in the 
regulations. We believe that crude oil and ethanol should have 
identical packaging and operational requirements.
    PHMSA also seeks comment on the definition of an HHFT. We believe 
the definition should include a broad range of hazardous materials, 
similar to the revised definition of a key train in AAR Circular No. 
OT-55-N. The circular's reference to ``any combination of hazardous 
material'' includes hazard class 2, division 2.1 (flammable gas) 
materials and combustible liquids, as defined at 49 CFR 173.115(a) and 
173.120(b). The provisions of the AAR circular demonstrate that the 
railroad industry recognizes that additional safety precautions, 
including speed restrictions, are needed for key trains that transport 
any hazardous materials. The proposed rule should be at least as 
protective as the AAR circular and should therefore apply to class 2 
flammable gases such as liquefied petroleum gas.
Notification to State Emergency Response Commissions
    Proposed 49 CFR 174.310(a)(2) would apply to any railroad that 
transports in a single train 1 million gallons or more of petroleum 
crude oil, hazard class 3 (identification number UN 1267), sourced from 
the Bakken shale formation in the Williston Basin (centered in North 
Dakota but extending to South Dakota and Montana in the United States 
and to Saskatchewan and Manitoba in Canada). The proposed rule would 
require railroads to provide written notification to SERCs of the 
estimated number of such trains expected to travel per week through 
each county in each state and of the routes over which the crude oil is 
to be transported. The notification would also describe the crude oil, 
give applicable emergency response information, and list at least one 
railroad point of contact.
    We recently completed our investigation of a November 2012 Conrail 
freight train derailment in Paulsboro, New Jersey, in which vinyl 
chloride was released.\6\ We concluded that active participation by 
railroads in local emergency planning would yield safer and more 
efficient responses to railroad accidents that result in the release of 
hazardous materials. In addition to notifying SERCs and local 
communities about the volume of hazardous materials traffic through 
their areas, we believe that carriers should provide communities with 
comprehensive emergency planning assistance. Accordingly, we issued the 
following safety recommendation to the DOT:
---------------------------------------------------------------------------
    \6\ National Transportation Safety Board, Conrail Freight Train 
Derailment with Vinyl Chloride Release, Paulsboro, New Jersey, November 
30, 2012, Accident Report NTSB/RAR-14-01 (Washington DC: NTSB, 2014).

        Require railroads transporting hazardous materials through 
        communities to provide emergency responders and local and state 
        emergency planning committees with current commodity flow data 
        and assist with development of emergency operations and 
---------------------------------------------------------------------------
        response plans. (R-14-14)

    Although the NPRM does not specifically address Safety 
Recommendation R-14-14, it proposes that railroads notify emergency 
responders whenever a single hazardous commodity, Bakken crude oil, is 
transported in quantities of more than 1 million gallons through their 
area. The intent of Safety Recommendation R-14-14, however, is to urge 
you to require railroads to provide notification and emergency planning 
assistance for all classes of hazardous material transported through 
communities, at thresholds such as the those established in the 
Emergency Planning and Community Right-to-Know Act for fixed 
facilities.\7\ We urge you to fully and expeditiously address Safety 
Recommendation R-14-14 in this rulemaking.
---------------------------------------------------------------------------
    \7\ Title 42 United States Code, Chapter 116.
---------------------------------------------------------------------------
    We disagree with restricting the proposed notification requirement 
to petroleum crude oil sourced exclusively from the Bakken shale 
formation. We believe that proposed 49 CFR 174.310(a)(2) should apply 
at a minimum to all class 3 flammable liquids transported in an HHFT. 
The properties that make crude oil flammable and hazardous are not 
limited to oil sourced from the Bakken formation. As one recent study 
concludes, ``Bakken crude oil does not pose risks significantly 
different from other crude oils or other flammable liquids.''\8\ Bakken 
crude is also reported to be similar to crude oils from other geologic 
formations. For example, the light ends (ethane, propane, butane, 
pentane) of Bakken crude have been found to be comparable to those of 
oils produced elsewhere in North America, such as in the Eagle Ford 
formation in Texas.\9\
---------------------------------------------------------------------------
    \8\ A Survey of Bakken Crude Oil Characteristics Assembled for the 
U.S. Department of Transportation (Prepared by Dangerous Goods 
Transport Consulting Inc. for American Fuel & Petrochemical 
Manufacturers, May 14, 2014).
    \9\ Study Report of the Bakken Crude Characterization Task Force 
(Prepared by Turner, Mason & Company for North Dakota Petroleum 
Council, August 4, 2014).
---------------------------------------------------------------------------
    We are particularly concerned that ethanol, the other hazard class 
3 commodity commonly transported in unit trains, is not included in the 
proposed notification requirements. While comparative accident data are 
limited, we believe it likely that if ethanol rather than crude oil had 
been transported in the train that derailed in Lac-Megantic, a similar 
massive pool fire would have resulted. Notification to emergency 
planners and responders of the presence of tank car shipments of 
ethanol in their jurisdictions is critical for the same reasons you 
propose notification requirements for shipments of crude oil. 
Communities must be prepared to respond to the firefighting challenges 
posed by ethanol accidents--by having alcohol-resistant firefighting 
foam readily available, for example--and to the difficulties associated 
with recovering ethanol released to the environment.
Question 1. Whether codifying the requirements of the Order in the HMR 
        is the best approach for the notification requirements, and 
        whether particular public safety improvements could be achieved 
        by requiring the notifications be made by railroads directly to 
        emergency responders, or to emergency responders as well as 
        SERCs or other appropriate state delegated entities.
    We note in our report on the Paulsboro, New Jersey, accident that 
unlike fixed facilities, railroads transporting hazardous materials are 
not required to work with communities to develop emergency plans.\10\ 
Emergency planning responsibilities should include providing: (1) 
emergency planning notification to both local and state emergency 
planning committees, (2) an emergency coordinator who participates in 
the local emergency planning process, (3) notice of any operational 
changes that could affect emergency planning, and (4) any information 
necessary to develop and implement local emergency plans.
---------------------------------------------------------------------------
    \10\ Conrail Freight Train Derailment with Vinyl Chloride Release 
(Washington, D.C.: NTSB, 2014).
---------------------------------------------------------------------------
    The absence of a regulatory requirement for railroads to notify and 
assist local emergency planning committees leaves communities 
unprepared to deal with releases of hazardous materials. We believe 
that the DOT emergency restriction/prohibition order targeting railroad 
transportation of crude oil from a single geographic region in the 
United States does not go far enough, and that community notification 
and planning should be required for all hazardous materials transported 
by rail. We have found that despite voluntary outreach and community 
awareness programs, such as the Transportation Community Awareness and 
Emergency Response program, many communities and emergency responders 
are unaware of and unprepared for the risks associated with hazardous 
materials traffic on railroads. For this reason, we issued the 
following safety recommendation to PHMSA:

        Require railroads transporting hazardous materials to develop, 
        implement, and periodically evaluate a public education program 
        similar to 49 CFR Parts 192.616 and 195.440 for the communities 
        along railroad hazardous materials routes. (R-14-19)

    We believe that the best approach to regulating notification would 
be to codify the requirements detailed in Safety Recommendations R-14-
14 and R-14-19.
Question 2. Whether the 1,000,000-gallon threshold is appropriate, or 
        whether another threshold such as the 20-car HHFT threshold 
        utilized in this NPRM's other proposals is more appropriate. If 
        you believe that a threshold other than 1,000,000 gallons is 
        appropriate, please provide any information on benefits or 
        costs of the change, including for small railroads.
    We are concerned that 1 million gallons is significantly above a 
reasonable risk threshold. At that value, notification would apply only 
to trains with more than about 35 tank car loads. Yet catastrophic 
derailment failure involving even a single tank car loaded with 
flammable liquid can cause extensive destruction and loss of life. 
Therefore, we believe that the notification threshold should be 
significantly lower. In addition, the threshold should be based on the 
worst-case consequences of a derailment resulting in fire. At a 
minimum, the threshold should be set no higher than the value in the 
proposed definition of an HHFT.
Question 6. Whether such information should be deemed SSI, and the 
        reasons indicating why such a determination is appropriate, 
        considering safety, security, and the public's interest in 
        information.
    We believe that notification information should raise the awareness 
of both the general public and stakeholders about hazardous materials 
routes running through their communities. Having an informed public 
along rail routes could supplement a carrier's safety measures and help 
reduce the consequences of emergencies involving hazardous materials. 
Classifying routing information about hazardous materials as ``security 
sensitive'' would unreasonably restrict the public's access to 
information that is important to its safety.
    An informed public can be prepared to implement protective actions 
when accidents occur. While the general public may not require detailed 
information, such as the specific numbers, dates, and times of 
hazardous materials tank cars traveling on a route, people need to know 
whether they live or work near a hazardous materials route. They also 
need to be aware of the hazards associated with releases, what rail 
carriers do to prevent accidents and mitigate consequences, how to 
recognize and respond to an emergency, what protective action to take 
in the event of a hazardous materials release, and how to contact rail 
carriers regarding specific concerns.
Rail Routing Risk Assessment
    We believe that the proposed rule, if implemented, would satisfy 
the intent of Safety Recommendation R-14-4, which urges PHMSA to: (1) 
expand the hazardous materials route-planning and selection 
requirements for railroads under 49 CFR 172.820 to include key trains 
transporting flammable liquids, and (2) to require rerouting to avoid 
transporting hazardous materials through sensitive areas. You propose 
to expand current 49 CFR 172.820(a) by making it applicable to HHFTs. 
You also propose to create a new section, 49 CFR 174.310, which would 
subject HHFTs to the additional requirements in Part 172, Subpart I, 
for developing security plans for the transportation of hazardous 
materials.
    Proposed 49 CFR 174.310(a)(1) would require rail carriers that 
operate HHFTs to analyze the safety and security risks along the routes 
where such trains operate, to assess alternate routing options, and to 
make routing decisions based on the assessments. Rail carriers would be 
required to conduct an annual analysis addressing 27 risk factors, such 
as volume of hazardous materials transported; track type, class, and 
maintenance schedule; track grade and curvature; environmentally 
sensitive or significant areas; population density along the route; 
emergency response capability along the route; and areas of high 
consequence along the route, as defined in 49 CFR 172.820(c). Carriers 
would also be required to identify alternate routes over which it has 
the authority to operate and to perform a safety and security risk 
assessment of those routes. Carriers would be required to use their 
risk analysis to select viable routes that pose the lowest overall 
safety and security risk.
Classification and Characterization of Mined Gases and Liquids
    The proper classification and characterization of hazardous 
materials is a key requirement under the hazardous materials 
regulations. Classification (determination of a material's hazard class 
based on certain physical properties) and characterization 
(determination of a material's other relevant chemical and physical 
properties) are of paramount importance in selecting appropriate 
packaging, in assessing risks when developing safety and security 
plans, and in assuring the safety of emergency responders and other 
individuals who might come in contact with hazardous materials. The 
importance of accurate classification is underscored by your proposed 
phase-out schedule for DOT-111 tank cars in HHFT service.
    We are concerned that the proposed classification and 
characterization rule applies only to mined gases and liquids. We 
believe that the rules should apply to shippers of all hazardous 
materials, as is the intent of Safety Recommendation R-14-6. Although 
the current hazardous materials regulations prescribe test methods for 
assigning appropriate classifications, shippers are not required to 
maintain records showing that the physical and chemical properties of a 
hazardous material were sufficiently evaluated to justify the 
description and classification used in transporting it.
    We support the proposed 49 CFR 173.41 sampling and testing program. 
The proposed regulation addresses issues that prompted us to issue 
Safety Recommendation R-14-6, such as offerors using generic safety 
data sheets that result in improper classification of crude oil, rather 
than validating crude oil properties through testing. We are concerned, 
however, that the proposed rule does not include specific requirements 
for characterization tests that would identify the effects of a 
material on both the reliability and the safety of packaging. Physical 
testing would improve the evaluation of a material for its impact on 
operational and package selection requirements under the hazardous 
materials regulations.
    We agree with your proposal to require shippers to maintain records 
of sampling, testing, personnel training, and other elements of the 
program. Permanent records, electronic or paper-based, will provide 
evidence that a shipper is following the written program. Your proposal 
addresses the intent of the recordkeeping issue raised in Safety 
Recommendation R-14-6.
    PHMSA also seeks comment from the regulated community on the role 
of vapor pressure in the classification, characterization, and 
packaging of flammable liquids, and on whether regulatory changes to 
establish vapor pressure thresholds for packaging selection are 
necessary. We believe that setting vapor pressure thresholds for 
packaging selection would clarify package limitations for shippers and 
encourage them to select the safest tank car for transporting flammable 
materials. We understand that the purpose of a vapor pressure threshold 
would be to define the point at which volatile flammable materials 
would require transport in pressure tank cars. We suggest that you 
review the TSB laboratory report on the analysis of crude oil samples, 
which suggests that the size of a fireball resulting from the ignition 
of spilled crude oil strongly depends on vapor pressure.\11\
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    \11\ Transportation Safety Board of Canada, Laboratory Report LP 
148/2013, ``Analysis of Crude Oil Samples'' (Appendix K of Runaway and 
Main-Track Derailment, Montreal, Maine & Atlantic Railway Freight Train 
MMA-002), available online at www.tsb.gc.ca.
---------------------------------------------------------------------------
Question 3. Would more or less specificity regarding the components of 
        a sampling and testing program aid offerers (sic) of shipments 
        to be in compliance with proposed Sec. 173.41?
    We believe the rule should specify minimum required properties of 
mined gas and liquids to be included in sampling and testing plans and 
that it should list acceptable test methods. Without uniform testing 
and sampling requirements, shippers are free to develop individual 
testing regimes, which can yield subjective characterizations of 
hazardous materials. Moreover, non-uniform testing will not support 
data analysis or enforcement.
Question 4. Do the guidelines provides (sic) sufficient clarity to 
        offerors to understand whether they are in compliance with 
        these requirements?
    As noted in the NPRM, the American Petroleum Institute is 
developing Recommended Practice 3000 to spell out industry best 
practices for testing and sampling methods. We urge you to consider 
adopting an appropriate recommended practice or to provide specific 
guidance in the rule mandating uniform sampling and testing methods.
Additional Requirements for High-Hazard Flammable Trains
Speed Restriction
    We agree that HHFT speed restrictions are vital to reducing risks 
in the transportation of hazardous materials. Tank car crashworthiness 
is inversely related to train speed--that is, crashworthiness generally 
increases as speed decreases. Nevertheless, catastrophic tank car 
ruptures can occur at speeds below even 10 mph.\12\ We have not 
conducted or commissioned tests or research to examine the effects of 
different speeds. Therefore, we cannot comment about the specific 
values proposed in the NPRM. We nevertheless believe that lower 
operating speeds would yield safety benefits, especially if lower 
speeds were combined with distributed power units, two-way end-of-train 
devices, or electronically controlled pneumatic brakes. Because lower 
operating speeds reduce the kinetic energy in a train consist, they 
could, if coupled with improved stopping ability, minimize the dynamic 
behavior and number of tank cars involved in an accident.
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    \12\ See Conrail Freight Train Derailment with Vinyl Chloride 
Release (NTSB, 2014).
---------------------------------------------------------------------------
    We interpret the proposed HHFT speed restrictions as follows: For 
tank cars that have enhanced brake systems and all DOT-117 tank cars, 
the speed limit would be 50 mph. For tank cars with enhanced brake 
systems and some flammable liquids in non-DOT-117 cars, three options 
for speed restrictions are proposed: (1) 40 mph in all areas, (2) 40 
mph in areas with populations of 100,000 or more, or (3) 40 mph in 
high-threat urban areas. For tank cars without enhanced brakes, the 
speed limit would be 30 mph.
    We disagree with your plan to set speed limits based on general 
population size. Instead, speed limits should be based on the 
population that is close enough to a derailment involving a flammable 
material to be in harm's way. An exposure to a rail transportation 
hazard is inversely proportional to the distance away from the track. 
When comparing small and large population densities, the large 
population areas and high threat urban areas (HTUA) have greater 
security vulnerabilities, which you have offered as a basis for the 
proposed Option 3 speed restriction. However, accidental safety-related 
events have a much greater probability of occurrence than an 
intentional (criminal) action. Furthermore, we believe there is no 
credible train derailment scenario involving a flammable liquid event, 
accidental or intentional, involving even a unit train that could 
jeopardize a population of 100,000 or more or the population within an 
HTUA.
    The proposed regulation for speed restrictions should be based on 
scenarios that might actually harm individuals, as is the approach used 
in the PHMSA gas pipeline regulations. Those regulations establish 
threat zones in which a potential impact radius (PIR) is calculated 
based on pipe size and operating conditions. The number of occupied 
buildings in a PIR is counted along the entire length of a pipeline. If 
the number of buildings exceeds the threshold PIR value, the pipeline 
is designated to be in a high-consequence area. The pipeline operator 
must then implement an integrity management program for that pipeline 
segment. We suggest that you could develop similar ``impact radius'' 
and ``occupied building'' criteria based on the specific fire and 
explosion hazards associated with an HHFT along a designated rail 
corridor. You could then assign speed restrictions to reduce the risk 
in that corridor.
Question 7. What other geographic delineations--in addition to HTUAs 
        and cities with 100,000 people or more--should PHMSA consider 
        as an Option for a 40-mph speed restriction in the absence of a 
        proposed DOT-117 tank car?
    We urge you to consider HHFT speed restrictions that specifically 
address reducing the risk of a major flammable liquid release into a 
navigable waterway or environmentally sensitive area. For example, an 
April 30, 2014, derailment of a crude oil unit train in Lynchburg, 
Virginia, released nearly 30,000 gallons of crude oil from one tank car 
into the James River, causing significant environmental damage.
Alternative Brake Signal Propagation Systems
    The NPRM discusses improved stopping performance using braking 
systems that could reduce the likelihood of a tank car being punctured 
during a derailment. We agree with the proposal to require that all 
HHFTs be equipped with alternative brake signal propagation systems 
(either distributed power units, two-way end-of-train devices, or 
electronically controlled pneumatic brakes). We further suggest that 
you prohibit the use of conventional locomotives for HHFT service.
Enhanced Standards for New and Existing Tank Cars
New DOT Specification 117 Tank Car
    PHMSA proposes new standards for tank cars used in HHFTs as Part 
179, Subpart D. The new DOT-117 cars would offer improved 
crashworthiness over the current DOT-111 tank cars. The new standards 
address tank car head and shell puncture resistance, top fittings 
protection, and bottom outlet performance, which are addressed in 
Safety Recommendations R-12-5 and R-12-6; the new standards also 
address thermal protection systems.
    On April 22-23, 2014, we held a forum titled ``Rail Safety: 
Transportation of Crude Oil and Ethanol.'' Testimony at the forum 
suggested that regulators, railroad industry, tank car builders, and 
tank car owners disagree about the level of protection needed for tank 
cars that transport flammable materials. The lack of consensus 
continues as you are proposing three design options for tank cars built 
after October 1, 2015, for use in transporting class 3 flammable 
liquids in HHFTs. The safety features for tank cars constructed under 
each option, as listed in Table 2 (``Safety Features by Tank Car 
Option'') of the NPRM, can be summarized as follows:

   Option 1, the PHMSA-and FRA-designed tank car, would have 
        full-height, 1/2-inch-thick head shields; a shell at least 9/
        16-inch thick constructed of TC-128 Grade B normalized steel; 
        an 11-gauge jacket with thermal protection system; a reclosing 
        pressure-relief device; a top fittings protection system 
        capable of sustaining rollover at 9 mph without failure; a 
        removable handle on the bottom outlet (if present) or one 
        designed to prevent unintended actuation in an accident; and 
        electronically controlled pneumatic brakes.

   Option 2, the AAR-recommended tank car, would have the same 
        features as in option 1, except that top fittings would be 
        equipped in accordance with AAR specifications for tank cars, 
        and braking would be improved with distributed power or end-of-
        train devices.

   Option 3, the enhanced CPC-1232 tank car, would have the 
        same features as in option 2 except for a thinner (7/16-inch) 
        tank shell.

    Safety Recommendations R-12-5 and R-12-6, regarding enhanced tank 
car specifications and retrofitting for ethanol and crude oil, are 
linked only to Packing Groups I and II. We believe, however, that you 
make a compelling argument for why enhanced packaging requirements 
should be required for HHFTs that transport materials in Packing Group 
III as well. We agree with you that large volumes of flammable material 
in any packing group transported in an HHFT pose significant safety and 
environmental risks in accidents (as summarized in Table 22 of the 
NPRM, ``Enhanced Car Standards for Flammable Liquids in HHFT''). We 
also agree that requiring Packing Group III materials to be transported 
in a more robust tank car than currently used would reduce the 
potential for environmental damage by decreasing the probability of 
hazardous material releases.
    Testimony at the NTSB rail safety forum by advocates representing 
tank car owners suggests their continued support for construction to 
the CPC-1232 base standard, which unlike option 3, does not require a 
jacket, thermal protection, or full-height head shields. Table 17 of 
the NPRM (``Effectiveness of Newly Constructed Tank Car Options 
Relative to the Non-Jacketed DOT 111 Specification Tank Car'') 
indicates that, based on modeling, the CPC-1232 standard would provide 
less puncture resistance than any of these options. The table also 
indicates that option 3 would offer significantly less puncture 
resistance than options 1 and 2. The discussion in the NPRM of option 3 
states, ``This standard is the configuration PHMSA believes will be 
built for HHFT service in the absence of regulation. . . .'' We are 
concerned that to the contrary, without a regulation, new tank cars 
will continue to be built to the less-protective CPC-1232 standard 
(non-jacketed, half-head shield) and that the railroad industry will 
not act to phase out or retrofit the existing DOT-111 fleet.
    We understand that as proposed, tank cars built to any one of the 
three options would be designated as DOT-117 cars. We are concerned 
that if so, carriers are likely to select option 3, which is the least 
costly (see NPRM Table 5, ``20 Year Costs and Benefits by Stand-Alone 
Proposed Regulatory Amendments 2015-2034''), even though that option 
offers the least improvement in safety. We therefore urge you to 
reexamine your plan to include all three options and instead, include 
only the option that achieves the highest level of safety and 
protection.
    You also propose an alternative performance-based design 
requirement for each tank design option. This ``performance standard'' 
is intended to encourage innovation and new materials that would 
provide puncture resistance and thermal protection equivalent to the 
DOT-117 options. Tank cars built to the performance standard would be 
classified as DOT-117P.
    We are concerned that the proposed performance standards do not 
give sufficient guidance for puncture-resistance tests. The proposed 
regulations at 49 CFR 179.202-11(c), 179.203-11(c), and 179.204-11(c) 
give only minimum side impact speeds for head and shell puncture tests 
using a 12-inch-by-12-inch impactor, with no further discussion about 
test conditions or about how to interpret results. On July 18, 2014, 
Transport Canada proposed to amend Canada's Transportation of Dangerous 
Goods regulations to require a new Class TC-140 tank car for rail 
transport of flammable materials. In contrast to your proposed 
regulations, Transport Canada proposes puncture resistance performance 
criteria that specify such details as geometry of the impacting punch, 
tank car outage and lading specific gravity, constraint on the tank, 
required alignment of the impactor with the tank, and when the impact 
test would be considered successful. We believe that your proposed rule 
should include similar requirements.
Existing Tank Cars for High-Hazard Flammable Trains
    The NPRM addresses Safety Recommendations R-12-5 and R-12-6 with 
respect to the current DOT-111 fleet used in HHFT service. You propose 
to require that existing tank cars be retrofitted to meet performance 
standards for the applicable tank car specification option in Part 179, 
Subpart D. Retrofitted tank cars would meet the DOT-117P performance 
standard, except that they would not be required to add the top 
fittings protection.
    The reason retrofitting for top fittings protection would not be 
required in the proposed rule is that you believe the cost of such a 
retrofit is not supported by a corresponding safety benefit. You claim 
that ``the volume of releases from top fittings is a fraction, 
typically less than 5 percent of the volume of releases from tank shell 
and head punctures.'' Contrary to your claim, we call attention to data 
from two recent accidents showing that large volumes of flammable 
liquids were released through breaches in damaged top fittings alone 
(see table 1).

Table 1. Releases of Flammable Liquids from Tank Cars Breached Only Through Top Fittings in Two Recent Accidents
----------------------------------------------------------------------------------------------------------------
                                                                                                    Percent of
    Accident Site         Accident Date        Car Number        Lading (gal)        Amount          Contents
                                                                                 Released (gal)      Released
----------------------------------------------------------------------------------------------------------------
Cherry Valley, IL              June 2009                    CITX 22423628,757           26,357               92
----------------------------------------------------------------------------------------------------------------
Cherry Valley, IL              June 2009                    CTCX 73159928,800           20,700               72
----------------------------------------------------------------------------------------------------------------
Cherry Valley, IL              June 2009         NATX 303067           28,776           11,051               38
----------------------------------------------------------------------------------------------------------------
Tiskilwa, IL                October 2011         UTLX 208371           28,905           10,706               37
----------------------------------------------------------------------------------------------------------------

    The Lac-Megantic accident also clearly demonstrates the benefits of 
top fittings protection. The TSB accident investigation found that 
unprotected top fittings were breached in 16 out of 31 DOT-111 tank 
cars, while breaches occurred in only 4 of 32 tank cars equipped with 
top fittings protection.\13\ In its accident report (p. 110), the TSB 
states:
---------------------------------------------------------------------------
    \13\ Transportation Safety Board of Canada, Laboratory Report LP 
149/2013.

        Without adequate top-fitting protection during a rollover, and 
        without design improvements to bottom outlet valves, there is 
        an increased risk of product release when general-service Class 
        111 [DOT-111] cars are involved in derailments. If Class 111 
        tank cars that do not meet enhanced protection standards 
        transport flammable liquids, there is an ongoing risk of 
        product loss and significant damage to persons, property, and 
---------------------------------------------------------------------------
        the environment when these cars are involved in accidents.

    We strongly urges you to reconsider a retrofit requirement for top 
fittings protection on DOT-111 tank cars in continued crude oil and 
ethanol service, as requested by Safety Recommendation R-12-5. Safety 
Recommendation R-12-5 cannot be closed in an ``acceptable'' status 
unless existing tank cars are retrofitted with top fittings protection.
Bulk Packaging Requirements
    We note that the proposed bulk packaging requirements in 49 CFR 
173.241, 173.242, and 173.243 provide phase-out periods in which DOT-
111 tank cars would no longer be authorized for HHFTs. Continued use of 
DOT-111 tank cars in crude oil and ethanol service is not, however, 
explicitly prohibited in the proposed new regulation for trains 
containing 19 or fewer crude oil or ethanol tank cars. It is important 
to note that 19 tank cars can carry more than 500,000 gallons of 
flammable liquid. The proposed rule would therefore allow shippers to 
use tank cars that are less protective than the current (voluntary) 
industry standard. We urge you to correct the language in proposed CFR 
49 173.241 through 243 by replacing ``high-hazard flammable train 
service'' with ``flammable liquid service'' in each paragraph.
    For Packing Group I, DOT-117 tank cars would be required after 
October 1, 2017; for Packing Group II, after October 1, 2018; and for 
Packing Group III, after October 1, 2020. You note that you based those 
dates on manufacturers' capacity to build new tank cars, on fleet 
statistics, and on projected tank car originations. Considering the 
speed with which the crude oil and ethanol industry has grown in recent 
years, we believe the industry can achieve the proposed dates. Each 
delay in implementing a new design requirement allows the construction 
of more insufficiently protected tank cars that will both increase the 
immediate risks to communities and require costly modification later. 
We therefore urge swift adoption in the final rule with aggressive 
completion dates.
Conclusion
    The NTSB strongly believes in a three-tiered approach to rail 
safety involving industry, emergency planning and response 
organizations, and the public. Railroads must pursue aggressive 
mitigation strategies, adopt operating restrictions, apply better 
braking technology, conduct risk analyses to select the safest routes, 
and ensure that track inspection is of the highest quality and proper 
frequency. Railroads, communities, and emergency responders must 
develop comprehensive response plans, ensure their preparedness for 
responding to worst-case releases in accidents, and expand public 
awareness. Shippers must use the most robust tank cars available to 
lessen the consequences of accidents involving hazardous materials.
    We urge you to promptly move these critical safety initiatives 
forward and to issue a final rule incorporating the proposed 
regulations without delay. We believe that the balanced actions offered 
by the NPRM, with the improvements suggested in this letter, would 
improve safety in transporting large volumes of flammable liquids by 
railroad as well as avoid overreliance on any single risk-reduction 
strategy.
    Transport Canada has proposed to amend Canada's Transportation of 
Dangerous Goods regulations by requiring a new Class TC-140 tank car 
for rail transport of flammable materials such as petroleum crude oil 
and ethanol. The features of the proposed TC-140 car align closely with 
those of your proposed DOT-117 car under option 1.
    We applaud the close cooperation between the United States and 
Canada in proposing more robust regulations for rail tank cars that 
carry hazardous materials. The two countries share not only an 
integrated market but also the increased risks to their lands, 
structures, and populations posed by the expanded transport of 
dangerous goods by rail. It is thus crucial for the Federal regulations 
of both countries to be harmonized to the greatest extent possible.
    We appreciate the opportunity to comment on the notice.
            Sincerely,
                                       Christopher A. Hart,
                                                   Acting Chairman.

    Question 13. In that vein, what is missing from the current 
rulemaking that NTSB would support addressing to further improve safe 
crude-by-rail movements?
    Answer. In addition to the NTSB's emphasis on the importance of 
implementing the ten safety recommendations listed above as rapidly as 
possible, we are also concerned about several aspects of the proposed 
regulations. We would like to see the following addressed:

  1.  Requirements for notifying state agencies about rail shipments of 
        hazardous materials through their territories, including 
        ethanol.

  2.  Notifications of all shipments of crude oil meeting the flammable 
        liquid classification in the Hazardous Materials Regulation, 
        not just Bakken formation oil, should be treated the same.

  3.  Classification and characterization rules applied to all 
        hazardous materials.

  4.  Classification and characterization rules to include specific 
        requirements for the sampling and testing needed to properly 
        characterize hazardous materials destined for rail shipment.

  5.  Speed restrictions based on a potential impact radius where 
        individuals or environmentally sensitive areas could be harmed 
        along flammable liquids rail corridors in lieu of large 
        populated areas.

  6.  Construction standards for new and existing tank cars that 
        achieve an acceptable level of safety and protection.

  7.  Alternative tank car performance standards that include impact-
        resistance metrics.

  8.  Retrofitting requirements for existing DOT-111 tank cars that 
        include top fittings protection.

  9.  Regulations that would prohibit existing legacy DOT-111 fleet to 
        remain in flammable liquid service even if a train is not 
        designated as a high hazard flammable train (HHFT), which is 
        defined by the proposed regulation as a train containing 20 or 
        more carloads of a Class 3 flammable liquid.

    The NTSB comment letter on the NPRM addresses each of these 
concerns in great detail for further reference. One of the key issues 
regarding enhanced standards for new and existing tank cars warrants 
particular elaboration. It is clear that regulators, industry, 
manufacturers, and owners disagree about the level of protection needed 
for tank cars that transport flammable materials. The lack of consensus 
is reflected in the NPRM's three design options for tank cars built 
after October 1, 2015, for use in transporting Class 3 flammable 
liquids. We are concerned that carriers selecting the new DOT-117 tank 
car with improved crashworthiness would select the option offering the 
least improvement in safety. The NTSB has asked PHMSA to reexamine its 
three-option proposal and only include the option that would achieve 
the highest level of safety and protection.

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