[Senate Hearing 114-244]
[From the U.S. Government Publishing Office]
S. Hrg. 114-244
SURFACE TRANSPORTATION REAUTHORIZATION: PERFORMANCE, NOT PRESCRIPTION
=======================================================================
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 24, 2015
__________
Printed for the use of the Committee on Commerce, Science, and Transportation
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SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED 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
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Page
Hearing held on March 24, 2015................................... 1
Statement of Senator Fischer..................................... 1
Statement of Senator Booker...................................... 2
Statement of Senator Blunt....................................... 4
Statement of Senator McCaskill................................... 4
Statement of Senator Peters...................................... 5
Statement of Senator Wicker...................................... 34
Statement of Senator Blumenthal.................................. 37
Statement of Senator Klobuchar................................... 39
Witnesses
Peter M. Rogoff, Under Secretary for Policy, U.S. Department of
Transportation................................................. 6
Prepared statement........................................... 7
Hon. David B. Nichols, P.E., Director, Missouri Department of
Transportation, and Acting Chair, American Association of State
Highway and Transportation Officials (AASHTO) Standing
Committee on Performance Management............................ 13
Prepared statement........................................... 14
John D. Graham, Ph.D., Dean, School of Public and Environmental
Affairs, Indiana University.................................... 21
Prepared statement........................................... 22
Dr. Peter Sweatman, Director, University of Michigan
Transportation Research Institute.............................. 26
Prepared statement........................................... 27
Appendix
Response to written questions submitted to Hon. Peter M. Rogoff
by:
Hon. John Thune.............................................. 45
Hon. Richard Blumenthal...................................... 46
Response to written questions submitted by Hon. John Thune to:
John D. Graham, Ph.D......................................... 48
SURFACE TRANSPORTATION
REAUTHORIZATION: PERFORMANCE,
NOT PRESCRIPTION
----------
TUESDAY, MARCH 24, 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 10:03 a.m. in
room SR-253, Russell Senate Office Building, Hon. Deb Fischer,
Chairman of the Subcommittee, presiding.
Present: Senators Fischer [presiding], Blunt, Wicker,
Booker, McCaskill, Klobuchar, Blumenthal, and Peters.
OPENING STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. This hearing will come to order. Good
morning. I will now convene the Senate Subcommittee on Surface
Transportation and Merchant Marine Infrastructure, Safety, and
Security for our fourth hearing, titled ``Performance, Not
Prescription.''
This is the second hearing in a series on the
reauthorization of our surface transportation programs. Today
the Subcommittee is examining performance-based measures for
our Nation's surface transportation programs. A performance-
based system will require regulators to set target objectives
and leave compliance strategies to the discretion of the
regulated entity.
All too often, Federal regulators provide industry with
prescriptive directions. Mandating specific designs or exact
behaviors can potentially distort the ultimate goal of
regulation. Not only do prescriptive regulatory mandates demand
time and money from stakeholders, they require regulators to
gain technical expertise that is often well outside of the
given agency's original mission. Moreover, prescriptive
regulations embolden rent-seeking behavior.
Performance-based regulations provide the opportunity for
better collaboration between industry and the Federal
Government. Regulators and stakeholders need to work together
to achieve greater transparency and monitoring of progress
toward performance targets.
In January, Lance Fritz of Union Pacific Railroad testified
before this subcommittee. He noted that, quote, ``the point of
a performance-based goal is to focus attention on the outcome,
not the method.'' He also explained to the Committee that there
is little evidence that rigid design-based standards have a
positive impact on railroad safety, but prescriptive
regulations hamper innovation and carry a high cost for the
Federal Railroad Administration and to railroad companies.
Since 2008, the Government Accountability Office has
recommended that surface transportation programs take a
performance-based approach to achieve better outcomes and to
allocate resources more effectively. In a January 2015 report,
the GAO found that, while the Department of Transportation is
progressing toward a performance-based approach, states and
grantees face implementation challenges. These obstacles
include inadequate amounts of data, impeded access to
proprietary data, and insufficient staff resources for
monitoring and evaluation.
The safety and efficiency of our Nation's highways and
infrastructure could also benefit from a performance-based
approach to regulations that offer flexibility and encourages
innovation.
For example, had the Federal Motor Carrier Safety
Administration focused on an outcome-based approach to address
its most recent iteration of truck-driver hours-of-service
regulations, it is reasonable to assume that the regulations
would have enhanced safety while not adversely affecting
business operations. Instead, the overly prescriptive 34-hour
restart provisions that were implemented in July 2013 mandate
the exact time that drivers should sleep. This rule disrupted
supply chains and led stakeholders to raise serious questions
about the overall impact on safety of the regulation.
At the same time, FMCSA is attempting to utilize a more
data-driven approach with its Compliance, Safety,
Accountability system scoring program. Although the CSA program
is deeply flawed, implementing regulations that are informed by
past performance and focus on future risk, it is a step in the
right direction.
Today we will review the progress that the Department of
Transportation has made in implementing performance targets
into our Nation's surface transportation programs. I look
forward to hearing about both the successes, the challenges,
and the opportunities for encouraging performance-based
standards as we continue to explore surface transportation
reauthorization.
I would now like to invite Senator Booker to offer opening
remarks.
STATEMENT OF HON. CORY BOOKER,
U.S. SENATOR FROM NEW JERSEY
Senator Booker. Thank you very much, Chairman Fischer, for
having this important hearing and continuing our discussion of
these important issues.
I apologize at the top. I have another competing hearing
right now, so I will be leaving in about 30 or 40 minutes.
But I am very excited to be here, with a focus on a broad
range of issues. One of the most important that we should be
focused on is how our transportation system is actually
performing.
It is actually struggling right now. It is not the high-
performing system that we would all like to see. Each day,
commuters are stuck in traffic or packed onto train cars. In
fact, people are losing the equivalent of 5 vacation days
sitting in traffic each year. That is unacceptable. And our
country's freight is stuck, too, at the ports, on our roads,
and on the rails, costing our economy billions and billions of
dollars.
The way we are going to make things better is that they are
going--if we don't do anything, though, things are going to get
much worse. And that is unacceptable. We have to do more.
So if we want to turn this around and get the train back on
its track--pun intended, metaphor intended--it is up to us to
make some big changes in how we invest in our infrastructure.
The bulk of our Federal funding, about $40 billion a year, goes
to highways, while only $10 billion goes to transit. Even less,
just short of $1.5 billion, goes to passenger rail. And there
is no surface transportation program dedicated to port
infrastructure.
Our Federal transportation funding overly prescribes how we
fund the system rather than focusing on the performance of the
system, which is obviously what we are here to talk about
today.
For example, in my state of New Jersey, all of our
connectors into New York are at or near capacity whether you
are traveling by car, on a bus, or on transit. That is why one
of the most important projects is to build Amtrak's Gateway
Project, a tunnel connecting New York and New Jersey that will
add desperately needed capacity, create jobs, expand our
economy, and fuel our country's most productive economic
region.
The Gateway Project will cost $15 billion. And where will
the Federal contribution come from when we are not even
spending, or investing, $2 billion a year in rail for the
entire country?
Other cities and states around the country are facing
similar problems, from Chicago, to San Francisco, to Florida.
That is why I am committed to trying to find new ways to invest
in rail, ports, and transit systems. Last week, I introduced
the Railroad Infrastructure Financing Improvement Act to unlock
more capital and improve the way we finance all of our
projects.
And I think that is just the beginning of what we can do.
We also need to be focused on how to improve the safety of our
transportation system. Each year, more than 30,000 people die
on our Nation's highways. That is an unacceptable carnage. We
need to find ways to make meaningful reductions in these
numbers.
The last transportation bill took steps to increase
performance in both safety and investment through performance
measures, which is a start, but only a small step toward what
many experts believe we should be doing.
I believe there are lessons we can learn from that process
to better understand how we can improve the performance of our
transportation system and safety programs. I look forward to
hearing from our witnesses today about how we should be
thinking about the performance of our transportation system and
what lessons we can learn from other efforts to improve
performance.
Thank you, Chairman.
Senator Fischer. Thank you, Senator Booker.
I would like to welcome our first panel of witnesses today:
Mr. Peter Rogoff, the Under Secretary for Policy, with the
United States Department of Transportation; Mr. David Nichols,
Director, Missouri Department of Transportation, and Acting
Chair of the American Association of State Highway and
Transportation Officials, or AASHTO, Standing Committee on
Performance Management; Dr. John Graham, the Dean of the
Indiana University School of Public and Environmental Affairs
and the former Administrator, Office of Information and
Regulatory Affairs, Executive Office of the President; and Dr.
Peter Sweatman, Director, University of Michigan Transportation
Research Institute.
We do have two Senators from Missouri on this committee,
and I would offer to Senator Blunt and then Senator McCaskill
the opportunity to welcome their constituents here today.
Senator Blunt?
STATEMENT OF HON. ROY BLUNT,
U.S. SENATOR FROM MISSOURI
Senator Blunt. Well, thank you, Chairman. I know that
Senator McCaskill and I are both proud of Dave Nichols and the
great leadership he has provided at the Missouri Department of
Transportation. He went to work there 30 years ago and has held
almost every leadership job in the department, 2 years now as
Director, the 2 years before that as Chief Engineer.
And in our state, if you look at a highway map of America
or a railroad map of America or a river map of America, focus
in on where those three maps all come together, you are
basically looking at where Senator McCaskill and Dave Nichols
and I live. And he is the first Director of the Missouri
Department of Transportation to ever come up with a plan that
brings all of that together, looking to the future.
He is also the Chairman of the Standing Committee on
Performance Management for the national group that works with
highway and transportation issues. So he not only is recognized
where we live but all over the country as someone who is a
leader on these issues.
He is retiring this year, and my request of him today is to
still be available to us, both on this committee and in our
state, with the great expertise and dedication you bring to
these issues.
So thank you, Chairman.
Senator Fischer. Thank you, Senator Blunt.
Senator McCaskill?
STATEMENT OF HON. CLAIRE McCASKILL,
U.S. SENATOR FROM MISSOURI
Senator McCaskill. I, too, want to thank Dave Nichols for
his service to our state.
Many people don't realize, but somebody had the brainy idea
way back decades ago that the state would take over
responsibility for maintenance of thousands of miles of county
highways in our state, which means we have the seventh-largest
highway system to maintain in the country. And I think we are
either 46th or 47th in revenue. We have one of the lowest gas
taxes in the country. The gas tax in Missouri hasn't been
raised in over 20 years.
And so I know that he didn't plan this, but he is going to
be retiring at the apex of a crisis in our state. And I know he
is busy working every day to try to convey to the people of
Missouri that this problem is not one that is going to be
solved in Washington. We do need to get our work done here, but
we have a real problem with Jefferson City with the amount of
resources that are going toward this critical infrastructure
that makes us the economic powerhouse we are in Missouri
because of our transportation needs of both interstate and--we
won't get on barges today, but trains also.
So thank you for being here, and thank you for your
service. And thank you for being courageous as you lay out
various alternatives for Missourians over the coming 2 years
that we are going to have to face the reality of. Thank you
very much.
Thank you, Madam Chairman.
Senator Fischer. Thank you, Senator McCaskill.
We also have a member on this committee from the state of
Michigan. And so I would offer time to Senator Peters if he
would like to welcome his constituent here today, Dr. Sweatman.
STATEMENT OF HON. GARY PETERS,
U.S. SENATOR FROM MICHIGAN
Senator Peters. Well, thank you, Senator Fischer. I really
appreciate the opportunity to be here.
And thank you for your very kind invitation to introduce a
person from Michigan and someone who we have very high regard
for because of his incredible work that he is doing leading the
Michigan Transportation Research Institute at the University of
Michigan.
Dr. Sweatman, under his leadership, forming this institute,
it is really going to be a leader in revolutionizing the
mobility of people and freight. The institute will be working
with industry, government, and academia. And the Michigan
Transportation Institute will develop the foundation for a
commercially viable ecosystem of connected and automated
vehicles, work that could reduce vehicle fatalities and
injuries as well as energy consumption and carbon emissions by
as much as a factor of 10, which is really very, very exciting
work.
Dr. Sweatman has also been--and I know you continue to be,
Dr. Sweatman--a strong advocate for preserving the 5.9
gigahertz band of spectrum that was set aside by the FCC for
V2V and V2I technologies. And I would certainly agree with you,
Dr. Sweatman, and appreciate your advocacy, that the FCC should
not move forward in opening that band up for shared use until
it can be proven it can be done without harmful interference to
this incredible lifesaving technology that you are developing
at the University of Michigan.
So I look forward to hearing your testimony today, as I am
sure everybody on the Committee, in regards to how connected,
automated vehicles and the data collected in their testing and
deployment will play a pivotal role in shaping the future
performance management for our nation's transportation system.
So, Senator Fischer and Senator Booker, thank you for
allowing me to be here, and I look forward to working with you
as you shepherd this legislation through the Senate. Thank you.
Senator Fischer. Thank you, Senator Peters.
With that, welcome to our panel. We will begin with your
opening testimony.
And, Mr. Rogoff, if you would begin, please. Thank you.
STATEMENT OF PETER M. ROGOFF, UNDER SECRETARY FOR POLICY, U.S.
DEPARTMENT OF TRANSPORTATION
Mr. Rogoff. Well, thank you, Madam Chairman, Ranking Member
Booker and members of the Subcommittee. I do appreciate the
opportunity to appear before you today.
Before I begin my formal remarks, I want to pass along the
condolences of Secretary Foxx and the entire administration to
the families of the victims of Germanwings Flight 4U-9525. Our
condolences go out to all of the people of Spain and Germany.
And, as always, the FAA stands ready to assist those very
capable aviation authorities in any investigation where we can
be helpful.
Safety is priority number one at the Department of
Transportation, so we commend you for taking the time to review
the critical issues surrounding safety regulation enforcement
and industry performance as you prepare to tackle the next
surface transportation reauthorization bill.
This year, like last year, the administration will be
formally submitting several important safety provisions for
your consideration as part of our GROW AMERICA Act. Our
proposed bill also includes several proposals intended to help
our transportation system perform better, specifically by
streamlining the environmental review process to get shovels in
the ground faster.
And I would point out, Chairwoman Fischer, that many of the
proposals that are in Title I of the GROW AMERICA Act are
closely aligned with some of the streamlining proposals that
Lance Fritz from UP did testify to you about earlier.
In summary, we would very much welcome this subcommittee's
very careful consideration of our reform proposals, as many of
them are in your jurisdiction.
Back in 2012, the department formally adopted the use of
risk-based safety management systems as a best practice for our
regulatory and oversight posture across all of our safety
agencies. And consistent with that policy, the department
strongly supports the adoption and the use of performance-based
standards when appropriate. In fact, we believe that actual
safety performance of operators and grantees should inform the
entire oversight posture of the department, including the
development of regulations, enforcement efforts, and even in
some instances the allocation of Federal grant funds.
When approaching this tension between prescriptive and
performance-based rules, it should be remembered that
prescriptive rules have often served the American public quite
well.
Nowhere are our rules more prescriptive than in aviation.
Between our regulations, guidance documents, and airworthiness
directives, the FAA tells our airlines and plane manufacturers
pretty much everything, including how they must clip a wire to
a plane's fuselage.
This huge volume of prescriptive safety rules has produced
the busiest, yet the safest, aviation system in the world--a
regulatory framework that continues to be copied by developed
nations around the globe.
Similarly, in the Federal Railroad Administration, very
prescriptive safety rules, in combination with stepped-up
enforcement and improved diligence by the nation's railroads,
just yielded in 2014 the safest year on record when it comes to
train accidents.
Even so, we should not use the success of existing
prescriptive rules as a rationale to slow the progress toward
performance-based rules, especially new rules that might
further enhance safety, lower costs, or be better tailored to
each operator's unique safety vulnerabilities. And, in fact,
both the FAA and the FRA are building on their success by
adopting performance-based approaches.
Transitioning to more performance-based rules must be done
with great care. They should be pursued when there is strong
data indicating that safety will be enhanced both for travelers
and, importantly, for transportation workers who are on the
front lines every day.
Such performance-based rules must also protect the public
when it comes to low-frequency but high-consequence accidents.
The current challenges facing the FRA are an excellent case in
point. I earlier observed that 2014 was the safest year in
railroad history, but, as this committee, knows well, we saw
derailments in 2014 and 2015 involving crude rail unit trains
that must be addressed because of the threat that even one
catastrophic accident can pose to a local community.
A performance-based regulation, if poorly crafted, could
declare victory based on aggregate safety performance while
ignoring the rare but potentially disastrous impact of a high-
consequence event.
Performance-based rules can only be successful through the
continuous collection and analysis of a great deal of
performance data. That requires both the operator and the
regulating agency to have the necessary resources to collect
and analyze the data to monitor compliance with a performance-
based standard.
That, in turn, requires, as you pointed out, Senator
Fischer, a heightened level of transparency and accountability
on the part of the regulated companies for their day-to-day
performance in meeting those performance standards.
We at the DOT strongly believe that the best performance-
based safety systems are those that make the actual safety
performance of regulated parties readily available to their
customers and the general public. This real-life performance
data is also critical to our department's ability to target
limited oversight and enforcement resources on the operators
and transportation corridors that pose the greatest risk.
Our experience has been that not all operators or
industries recognize or respect the need for such transparency.
Absent a commitment to such transparency, performance-based
regulations cannot work and this cannot be pursued.
That concludes my statement. I apologize for going a few
seconds over. And I stand ready to answer your questions.
[The prepared statement of Mr. Rogoff follows:]
Prepared Statement of Peter M. Rogoff, Under Secretary of
Transportation for Policy, U.S. Department of Transportation
Chairman Fischer, Ranking Member Booker, and Members of the
Subcommittee, thank you for the opportunity to appear before you today.
Safety is the Department of Transportation's top priority, and I am
happy to discuss with you the Department's efforts to improve safety
across our transportation networks. The Department is using objective,
data-driven decision-making processes to adopt new performance-based
standards and to heighten the transparency of safety performance of
public and private transportation system operators.
The Department is committed to the vision of eliminating fatalities
on our Nation's transportation system. Recently, the Secretary joined
the National Strategy on Highway Safety Toward Zero Deaths, a vision
for eliminating fatalities on our Nation's roadways. This is a
significant step toward eliminating traffic fatalities. It also echoes
a goal of the Department's Strategic Plan, to ``work toward no
fatalities across all modes of travel.'' Improving safety means we must
aggressively use all tools at our disposal--research into new safety
systems and technologies, campaigns to educate the public, investments
in infrastructure, targeted oversight and inspection activities, public
transparency and accountability, and collaboration with our government
partners to support strong laws and data-driven approaches to improve
safety.
Part of achieving this vision is adopting, to the greatest extent
practical a performance-based approach for all new safety activities,
including the development of new safety regulations, the enforcement of
existing safety regulations, and other critical safety activities, such
as public safety performance reporting.
In the Department's Strategic Plan for 2014-2018, Secretary Foxx
established accountability around safety, including performance-based
standards and reporting systems to improve the safety of the entire
transportation system. In 2012, then-Secretary LaHood formally adopted
the Safety Management Systems (SMS) methodology as the official policy
of the Department with respect to addressing safety and risk management
activities. Some agencies within the Department, namely the Federal
Aviation Administration (FAA), have longer experience implementing SMS
while others, specifically the Federal Transit Administration (FTA),
just recently acquired safety regulatory authority and is moving
aggressively to adopt a performance-based standards approach as it
develops a comprehensive regulatory framework.
Using SMS as a framework, our priority is to use our safety
programs and regulations as effectively as possible and direct Federal
resources to address the most serious safety risks. Performance-based
standards and the use of safety tools, such as improved data
collection, hold significant promise to reduce crashes, fatalities and
injuries for users of the transportation system. As noted in the recent
Government Accountability Office (GAO) report on performance measures,
the Department has initiated numerous performance-based approaches
across many agencies and together with many of our grantees.
However, the shift to a performance-based approach can be
challenging. It can be complicated to design, may require more and
better data and risk models than currently available, and may require
different skills of operators and regulators compared to traditional
prescriptive (e.g., design) standards. Overseeing a performance-based
approach can be more complex than a more prescriptive one. The
determination of ``adequacy'' of compliance with a non-prescriptive
standard can be considerably more challenging than the simple ``black
and white'' compliance of a prescriptive (e.g., design) standard.
Additionally, there may need to be a greater willingness by the
operator to provide data not otherwise available to the regulator.
Finally, performance-based regulations will function poorly when
implemented in the wrong way, or under the wrong conditions.
Additionally, some modal administrations with a long history of
oversight will have to balance their performance-based evolution while
carefully examining existing practices for opportunities to move to
performance-based approaches without compromising safety or disrupting
current approaches that industry and the Department both agree are
working effectively to promote safety outcomes. Nonetheless, the
Department is committed to creating a performance based culture across
our regulatory programs.
Ultimately it is the operator's responsibility to operate safely.
However, given the vast numbers of operators of varying levels of
sophistication, the Department has the responsibility to communicate,
educate, develop new knowledge and technical solutions, and drive risks
from any operation to as low as is reasonably achievable.
MAP-21 Performance Measures
The Department has made solid progress addressing the MAP-21
requirements intended to make the surface transportation programs more
performance-oriented. For example, the Federal Highway Administration
(FHWA) is developing a series of rules that will continue to transform
the Federal Highway Program to a performance and outcome based program
by increasing coordination, linking investments to outcomes, and
improving decision-making and the efficacy and transparency of national
reporting. We expect that the safety performance measure rule in
particular, when completed, will provide us with a clearer picture of
complex crash and roadway characteristic patterns, and better fatality,
serious injury and roadway data, thereby allowing policymakers at all
levels of government to make better decisions about how to invest
limited resources for maximum safety benefit as well as making them
more accountable for their decisions.
As required under MAP-21, states that do not meet or make
significant progress towards meeting their established safety targets
will be held accountable. The FHWA published a Notice of Proposed
Rulemaking (NPRM) last year that proposes to establish measures for
State departments of transportation to use to carry out the Highway
Safety Improvement Program (HSIP) and to assess serious injuries and
fatalities per vehicle mile traveled, and the total number of serious
injuries and fatalities. States failing to make significant progress
would be required to use a Safety Implementation Plan to identify
necessary steps to improve their safety performance and use HSIP
dollars to address these safety concerns.
MAP-21 also required performance measures for one of the Federal
Motor Carrier Safety Administration's (FMCSA) top safety rulemakings
that will mandate the use of Electronic Logging Devices (ELDs) to
ensure greater compliance with the hours of service rules for certain
truck and bus drivers. As part of this rulemaking, FMCSA is proposing
new technical specifications for ELDs and the Agency has focused on a
performance-based approach to the greatest extent practicable. For
example, the draft rule would allow for a variety of options for ELDs
from systems that are hard-wired to the vehicle to use of smart-phones
and tablets which communicate with the truck or bus via wireless
communications. The draft rule also proposed options for presenting the
driver's record of duty status information to roadside enforcement
officials, including use of the display screen, printouts, e-mail, or
ELD-vendor hosted websites. That rulemaking should be completed later
this year.
MAP-21 also established program goals and mandated that FMCSA
evaluate states' progress in meeting these goals for its primary safety
grant program, the Motor Carrier Safety Assistance Program (MCSAP).
MCSAP provides financial assistance to states to reduce the number and
severity of crashes and hazardous materials incidents involving
commercial motor vehicles (CMVs). To receive MCSAP funding, states must
implement performance-based activities, including deployment of
technology to enhance the efficiency and effectiveness of CMV safety
programs. As a condition of receiving MCSAP assistance, states must
develop and submit performance-based Commercial Vehicle Safety Plans
(CVSPs). These CVSPs provide flexibility that allows each state to
focus on the most serious problems unique to their state and allow the
state to maximize limited resources while focusing on safety outcomes
rather than outputs.
As required by statute, FTA is implementing performance measures to
make optimal use of its relatively new safety oversight and standards
setting authority. In February 2015, FTA published a NPRM to strengthen
the authority of State Safety Oversight Agencies (SSO). The proposed
SSO rule reflects the flexible, scalable principles of Safety
Management Systems that focus on organization-wide safety policy,
proactive hazard identification, and risk informed decision-making as
part of risk management, safety assurance, and safety promotion (safety
training and communications).
As FTA and the transit industry move towards a performance-based
approach, they are working to make sure previous safety efforts are not
discarded, and new standards are implemented in a careful and
deliberate manner to ensure safety. The rulemaking process to advance
the FTA's safety mission is progressing steadily and FTA plans to issue
four additional NPRMs for safety plans and programs in the coming year.
GROW AMERICA Proposals
The Moving Ahead for Progress in the 21st Century (MAP-21; Pub. L.
112-141) took important first steps in advancing the Department's
safety agenda. It established a streamlined and performance-based
surface transportation safety program. The Administration's surface
transportation reauthorization proposal, the Generating Renewal,
Opportunity, and Work with Accelerated Mobility, Efficiency, and
Rebuilding of Infrastructure and Communities throughout America Act
(GROW AMERICA Act) seeks to build on the successes of MAP-21 with even
stronger safety provisions that will include measures to make our
surface safety regimes even more performance-based and data-driven.
As articulated in the budget, the GROW AMERICA Act nearly triples
the budget of the Office of Defects Investigation (ODI) in the National
Highway Traffic Safety (NHTSA) to enhance our ability to monitor data,
find defects sooner, and strengthen NHTSA's ability to conduct
investigations of vehicles with suspected defects. The proposal
establishes harsher penalties for manufacturers that refuse to address
defective and dangerous vehicles and equipment.
The GROW AMERICA Act also strengthens FHWA's Highway Safety
Improvement Program (HSIP) to enable engineers to identify
infrastructure and operational hazards to prevent the next crash. It
bolsters the Department's safety authority by increasing civil and
criminal penalties for FMCSA, NHTSA, and FTA and establishes emergency
authority for FTA to restrict or prohibit unsafe transit practices.
Further, this proposal provides more than $3 billion over six years
through the Federal Railroad Administration (FRA) to assist with
commuter railroad and Amtrak route implementation of performance-based
Positive Train Control systems designed to prevent certain high-
consequence rail incidents.
The proposal provides more than $10 billion over six years for
NHTSA and the Federal Motor Carrier Safety Administration (FMCSA) to
improve safety for all users of our highways and roads. The GROW
AMERICA Act would also streamline our Federal truck-and bus-safety
grant programs to make them even more performance-oriented while
providing greater flexibility for States to address regional and
evolving truck-and bus-safety issues. This means that our State
partners will be able to use their Motor Carrier Safety Assistance
Program funding for motor carrier safety in order to address local
truck and bus issues while meeting national safety priorities. By
consolidating our grant programs, our State partners will spend less
time on administrative grant activities and more time on boots on the
ground roadside safety. The bill would also enhance safety through
stricter standards for vehicle operators and more rigorous inspections.
The proposal also includes a $5.1 billion increase in 2016 to address
public transit's maintenance backlog to reduce bus and fixed rail
system breakdowns as well as increase overall safety and reliability.
In addition, GROW AMERICA proposes to more than double available
funding for the highly competitive Transportation Investment Generating
Economic Recovery (TIGER) program, increasing available funding to
$1.25 billion annually. Merit-based selection of transportation
projects using detailed economic analysis of project costs and
benefits, coupled with meaningful performance measurement of all
projects further strengthens the Department's performance-based focus
and emphasis on measurable outcomes for all grantees. The TIGER program
has made significant investments in safety related projects. For
example, in the last round of TIGER funding, New York City (NYC)
received a $25 million grant to promote NYC DOT's Vision Zero approach,
working to reduce transportation-related injuries and fatalities. The
Administration hopes that this Committee will give careful
consideration to the provisions included in the GROW AMERICA Act that
will improve safety for the traveling public and strengthen our efforts
in expanding performance-based approaches.
Data-Driven Processes and Safety Management Systems
A systematic use of data has facilitated FRA's performance-based
approach to system safety and risk reduction rulemaking efforts, as
mandated by the Rail Safety Improvement Act of 2008 (P.L. 110-432).
Last month, FRA published a rule proposing to require each Class I
freight railroad and each other freight railroad that FRA determines
has inadequate safety performance to develop and implement FRA approved
risk reduction programs (RRP). RRP is a comprehensive, system-oriented
approach to safety that determines an operation's level of risk by
identifying and analyzing applicable hazards and involves developing
plans to mitigate, if not eliminate, that risk. In September 2012, FRA
published a companion rulemaking proposing to require commuter and
intercity passenger railroads to develop and implement system safety
programs; a final rule is scheduled to be published this summer.
FRA intends these broader, system safety and risk reduction efforts
to dovetail with other initiatives and make regulations more
performance-based. Notably, in September 2009, FRA tasked its Railroad
Safety Advisory Committee (RSAC) to produce a set of technical
performance criteria and procedures to evaluate passenger rail
equipment built to alternative designs, to ensure that trainsets based
on international platforms can be built for and operated safely in the
United States. FRA also tasked the RSAC to develop formal
recommendations for addressing industry waiver requests for passenger
equipment crashworthiness standards and alternative crashworthiness
performance criteria into FRA's regulations. FRA will use the RSAC
recommendations to inform a NPRM under development to seek public
comment on allowing the industry greater flexibility to meet
crashworthiness performance requirements. Similarly, FRA's March 2013
final rule on vehicle/track interaction safety promotes the use of
performance-based standards to ensure the safety of the vehicle and
track system, based on results of computer simulations of vehicle and
track dynamics, consideration of international practices, and thorough
reviews of qualification and revenue service test data.
Performance-Based Versus Design-Based Standards for Equipage
While the Department is committed to developing a performance-based
culture across its modes, there are instances where it is more
appropriate to adopt designed-based or a combination of design-and
performance-based standards. When appropriate, moving from design
standards to performance-based standards does require careful
consideration to ensure the new standards actually improve safety and
do not unintentionally introduce unknown risks that could compromise
safety. Ensuring the safety of the traveling public and transportation
employees must be the overriding factor of all regulatory decisions.
For example, some dashboard warning lamps and hazard-related
systems in vehicles are more appropriately design-based to ensure
uniformity for driver understanding when switching between vehicles.
NHTSA's standards sometimes mandate installation of certain systems or
components, including headlamps, seat belts, air bags, rearview
cameras, and electronic stability control, and at the same time include
performance standards for those systems or components. Federal Motor
Vehicle Safety Standard No. 208, ``Occupant Crash Protection,'' is an
example of a performance based standard. It requires that the vehicle
restraint systems, including the air bags, provide protection in a
crash as measured by instrument readings on test dummies during
prescribed crash tests. Of course, the standard also requires
installation of certain devices, including some air bags. However, it
does not dictate design and manufacturing considerations, such as the
deployment thresholds, the air bag size, or color of wiring or
connectors associated with air bags.
Finally, with regard to packaging of hazardous materials, the
Pipeline and Hazardous Materials Safety Administration (PHMSA) uses
performance-based packaging standards for certain bulk and non-bulk
packaging. These standards are based on United Nations (UN)
Recommendations in which a packaging manufacturer must test a
representative design type in accordance with standards stipulated in
the Hazardous Materials Regulations. Once a design type has
successfully passed a test, a manufacturer must mark every package that
is represented as manufactured to meet that UN standard with the
corresponding marking indicating the level of testing endured. These
tests include drop tests, leak tests, a hydrostatic test, and a
stacking test as well as other relevant tests based on the type of
packaging. The benefits of this performance-oriented approach include
industry's ability to apply innovative technologies (i.e., packaging)
or non-traditional methods to meet the stated performance-based
criteria without waiting for regulators to modify prescriptive (e.g.,
design-based) requirements to explicitly permit use of a new
technology.
Performance in Safety Enforcement
In addition to utilizing performance standards in developing
regulations, the Department utilizes performance metrics, to the
greatest extent possible, to guide our safety oversight activities.
PHMSA's Integrity Management (IM) program is based on the
fundamental premise that companies should be responsible for managing
their own risks, with regulatory agency oversight of their processes,
systems and performance. There is evidence that the IM program has been
effective, based on the thousands of pipeline anomalies and defects
that have been found and fixed as a result of the program--commonly
viewed as ``accidents avoided''--and to improvements in technology that
have been spurred by IM. Performance-based rules provide latitude to
private sector operators to customize their compliance programs. This
is reflective of the fact that operators manage pipelines created of
differing materials manufactured over a very long period of time (with
vintage-specific issues) in widely varying environments (e.g.,
differing soil types, weather) and near or remote from people and
sensitive environments.
Further, PHMSA maintains a data portal of pipeline incident reports
that provides the time and location of the incident(s), number of any
injuries and fatalities; commodity spilled/gas released, causes of
failure, and evacuation procedures. The reports are used for
identifying long-and short-term trends at the national, state and
operator-specific levels. The frequency, causes, and consequences of
the incidents provide insight into the safety metrics currently used by
PHMSA, state partners, and other pipeline safety stakeholders,
including the pipeline industry and general public. PHMSA also uses the
data for inspection planning and risk assessment.
The Department is also focused on making the information it
collects and makes publicly available even more useful. For instance,
PHMSA maintains a database with information collected when there are
incidents involving hazardous materials, such as crude oil spills
during rail transport. While the database contains valuable information
about incidents, PHMSA has recently identified limitations to the
information that impede its utility. For instance, sometimes the
incident reports filed by industry do not contain the full extent of
the property damage, cleanup, and remediation costs of an incident.
PHMSA is considering ways to address these and other limitations to
improve the utility and transparency of this database.
FMCSA's primary large truck and bus enforcement program,
Compliance, Safety Accountability (CSA), uses a Safety Measurement
System that compiles motor carrier safety data through roadside
inspections, investigations, and reportable crashes to measure a
carrier's performance and prioritize carriers for follow up
interventions. This is critically important as FMCSA has the resources
to inspect less than two percent of all active motor carriers each
year, so the Agency must target its resources effectively. FMCSA has
sufficient performance data to make an intervention prioritization
assessment for nearly 200,000 of the approximately 525,000 active motor
carriers for which it has safety oversight responsibilities. More
importantly, analysis reveals that those same 200,000 motor carriers
are involved in approximately 93 percent of the crashes reported by our
State partners.
FMCSA's deployment of SMS has significantly raised safety awareness
throughout the motor carrier industry. In calendar year 2011, the
public website that provides a motor carrier's status in the SMS
prioritization system hosted nearly 30 million user sessions, up from 4
million user sessions under the prior public SafeStat system in
calendar year 2010. FMCSA continues to receive feedback that this
increased awareness and transparency has raised the status of safety
within corporate cultures and we are seeing this increased awareness in
improved safety compliance and performance data. For example,
violations per roadside inspection were down by 8 percent in 2011, and
driver violations per inspection were down by 12 percent. This is the
most dramatic improvement in violation rates in the last 10 years.
Additionally, the FRA rail-safety oversight framework relies on
inspections to ensure railroads comply with Federal safety regulations.
FRA inspects railroad infrastructure and operations, identifies safety
defects, and may, if warranted, cite the railroads for violations of
Federal safety regulations. FRA has developed and uses a risk-based
approach to direct these inspection efforts. Like FMCSA, FRA inspectors
are able to inspect just a small number of rail operations annually,
and the agency estimates it inspects less than 1 percent of the
railroad activities covered in regulation. As a result, railroads have
the primary responsibility for safety of the railroad system. FRA has
two tools to help direct its inspection efforts--the National
Inspection Plan (NIP) and the Staffing Allocation Model (SAM). The NIP
process uses past accident and other data to target FRA's inspection
activities, and the SAM estimates the best allocation of the different
types of inspectors across FRA regions in order to minimize damage and
casualties from rail accidents. The FRA has also implemented a risk
based inspection program for tank car facility inspections. Risk scores
are assigned to tank car facilities based on performance history and
type of tank car serviced.
Further, FRA requires rail operators to provide monthly reports on
all accidents and incidents resulting in injury or death to an
individual or damage to equipment or a roadbed arising from the
carrier's operation. This information is made available online and
includes overall safety trends and searchable queries that provide
specific information on exact location of incident, casualties, damage,
cause of incident, and other operational data of the rail environment.
FTA maintains a National Transit Database for the public that
contains summary information on the number of safety incidents such as
collisions, fires, derailments, as well as security incidents that have
occurred in a fixed number of categories. In addition, to ensure proper
accountability, a transit agency's chief executive officer must also
certify on an annual basis the accuracy of the safety and security data
previously reported by the transit agency.
In nearly all of these examples, publicly available safety
performance data is key to embracing a culture of safety
accountability, providing transparent oversight and regulation, and
ensuring that collective efforts are properly aimed at real risks based
on actual data. PHMSA, FMCSA, FRA, and FTA provide specific safety data
on publicly available websites.
Together, these efforts are designed to ensure that safety
management and regulatory decisions are objective, data-driven and
transparent to the public, decision-makers, field personnel, and
executive management alike. This transparency and accountability serves
as a cornerstone for achieving tangible and measurable safety
improvements across many different modes of transportation.
Conclusion
The Department has made great strides to implement data-driven
decision-making and performance-based standards where possible, while
recognizing that design standards are still useful in certain
circumstances. The Department is committed to continuing its efforts to
facilitate industry technological innovations while still exercising
proper safety oversight through thoughtful development and
implementation of performance-based standards, and data-driven
decision-making to reduce risk, maximize outcomes, increase system
efficiency, and above all, maintain the absolute highest levels of
safety for our transportation system.
Madame Chairman, Ranking Member, Members of the Subcommittee, thank
you again for the opportunity to testify before you today. I stand
ready to answer your questions.
Senator Fischer. Thank you, sir.
Next, Mr. Nichols. Welcome.
STATEMENT OF HON. DAVID B. NICHOLS, P.E., DIRECTOR,
MISSOURI DEPARTMENT OF TRANSPORTATION, AND ACTING
CHAIR, AMERICAN ASSOCIATION OF STATE HIGHWAY
AND TRANSPORTATION OFFICIALS (AASHTO)
STANDING COMMITTEE ON PERFORMANCE MANAGEMENT
Mr. Nichols. Thank you, Madam Chairman Fischer, Ranking
Member Booker, members of the Subcommittee. Thank you for this
opportunity to provide input on the implementation of
transportation performance management programs within the state
departments of transportation.
Today it is my honor to testify on behalf of the Missouri
Department of Transportation and AASHTO. My main message this
morning is to share with you my state's experience, along with
that of other state DOTs, in implementing transportation
performance management programs. Performance management, if
implemented in a logical and thoughtful way, can be a powerful
tool in managing the performance of the entire transportation
system.
This is not the first time State DOTs have implemented
performance management concepts. The 12 national-level
performance measures required as a part of MAP-21 are just the
top layer of a much more robust set of performance measures
state DOTs use on a regular basis to plan, program, and operate
their transportation networks.
All states have implemented some aspect of performance
management. Colorado, North Carolina, Utah, Minnesota, and
Maryland have created programs to manage their physical assets
and focus on the principles of transportation asset management
as opposed to a worst-first approach.
Many other states have well-known performance management
programs that go far beyond the management of just physical
assets. For example, Missouri's Tracker is a tool to assess how
well MoDOT delivers services and products to our customers. The
Tracker's seven tangible results, which are the outcomes the
public expects, guides us in everyday decisionmaking. To
increase accountability, each of the seven tangible results is
assigned to a specific senior leader, who is charged with
meeting the department's goals and obtaining the associated
metrics.
The Tracker tool's flexible nature has allowed MoDOT to
establish a performance-based culture and evolve with changes
in both leadership and policy. Through flexibility and
accountability, the Tracker ensures efficient and effective
decisionmaking.
Safety is a good example. Since implementing Tracker 10
years ago, the number of fatalities on Missouri's roadways has
dropped from 1,257 in 2005 to 766 in 2014.
You may be aware that this week is National Work Zone
Awareness Week, and in Missouri work zone safety is at the
center of our culture. Staying safe in work zones is a
partnership among MoDOT, our contractors, law enforcement, and
the driving public.
Our Tracker follows the number of fatalities, injuries, and
crashes in work zones every quarter. By placing the focus on
reducing those numbers, we can take actions that make work
zones safer for everyone. Over 10 years, we have seen the
number of work zone crashes drop from 4,492 in year 2003 to
1,509 in 2013.
MoDOT has used this performance management system to create
a results-focused culture among its employees and improve
satisfaction and credibility among its customers. Performance
goals and results may change over time, but I am confident our
performance management system will remain tightly woven in
MoDOT's organizational fabric.
The success of Tracker and performance management in
general is not without its challenges, however.
The first challenge is the cost to implement. It takes
money and resources to collect, store, manage, and analyze the
necessary data. These are funds that cannot be spent on
projects and programs to improve safety outcomes. However, the
data will be a valuable tool to improve safety.
The second challenge we meet is the need to maintain
certain minimum condition levels. State DOTs are concerned with
the minimum condition requirements that were made without
knowing what the full availability of funding is. AASHTO
estimates that some State DOTs will not be able to meet certain
minimum condition standards even if available funding were
spent on improving bridge and pavement conditions.
The third challenge we face is target-setting. Funding
levels vary, as do environmental conditions, population growth
trends, and legislative and gubernatorial mandates and other
priorities. State DOTs and NPOs will be challenged to establish
appropriate targets that take into account their unique
situations.
For the last decade, many State DOTs have developed and
implemented comprehensive and robust performance management
systems to balance investment decisions against resource
limitations for a wide variety of areas, from safety to asset
condition to the performance of the entire transportation
systems. State DOTs are concerned with all these performance
areas and must balance the funding of programs and projects
across areas while meeting public expectations during a time of
financial uncertainty.
Madam Chairman, thank you so much, again, for the
opportunity to testify today, and I would be happy to respond
to any questions that you may have.
[The prepared statement of Mr. Nichols follows:]
Prepared Statement of Hon. David B. Nichols, P.E., Director, Missouri
Department of Transportation and Acting Chair, American Association of
State Highway and Transportation Officials (AASHTO) Standing
Committee on Performance Management
Introduction
Chairwoman Fischer, Ranking Member Booker, and Members of the
Subcommittee, thank you for the opportunity to provide input on the
implementation of transportation performance management programs within
the State Departments of Transportation. My name is David Nichols, and
I serve as the Director of the Missouri Department of Transportation
(MoDOT) and the Acting Chair of the American Association of State
Highway and Transportation Officials' (AASHTO) Standing Committee on
Performance Management. Today it is my honor to testify on behalf of
the State of Missouri and AASHTO, which represents the State
departments of transportation (State DOTs) of all 50 States,
Washington, D.C., and Puerto Rico.
I have been honored to serve as Director of the Missouri Department
of Transportation for the past two years. I have spent the past 31
years in public service at MoDOT, starting in 1984, and have served in
a variety of leadership roles, including District Engineer, Director of
Program Delivery, and Chief Engineer, prior to becoming Director.
Three of my passions have been: safety on our roadways, for
motorists, passengers, pedestrians and highway workers; innovation in
everything we do in order to give our customers the best value for
every dollar they invest in transportation; and diversity within our
workforce, both for the MoDOT team and our contracting partners.
Missouri has been a leader among the State DOTs in striving for
better outcomes through implementation of transportation performance
management principles. And in my role as Acting Chair of AASHTO's
Standing Committee on Performance Management, I lead the Association's
work in identifying and implementing best practices and providing input
and guidance on a number of Federal regulations that are currently
being developed by the United States Department of Transportation
(USDOT) in response to the important recent changes made in the Moving
Ahead for Progress in the 21st Century Act (MAP-21) requirements.
My main message this morning is to share with you the experience of
the State DOTs, including my home state of Missouri DOT, in the
implementation of transportation performance management programs.
Performance management, if implemented in a logical and thoughtful way,
can be a very powerful tool to MoDOT and our peer agencies in managing
the performance of the entire transportation system. However, I must
also note that performance management is not a panacea and cannot be
expected to improve the condition of our transportation assets or
performance of the transportation system in the absence of a robust
transportation funding platform. It is critical that everyone works
together to establish a long-term, sustainable transportation funding
framework to truly see the benefits of transportation performance
management. Without this funding base, all we can do as State DOT
directors is to merely manage the gradual degradation of our national
and regional transportation system that underpins our economy and
quality of life.
My testimony today will emphasize three main points:
1. State DOTs are already implementing performance management
principles;
2. Experience of Missouri DOT in implementing performance
management; and
3. Lessons to offer in implementing national-level performance
management requirements.
State DOTs Are Already Implementing Performance Management
Principles
It is important to have a basic understanding of the concepts
involved in performance management. Performance management is an
iterative process that requires good data and feedback loops that
inform the overall decision-making process. Most importantly, it takes
time for performance management to show results. At the broadest level,
performance management is about linking agency goals and objectives
with resources and results as shown in Figure 1.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
In the surface transportation context, state DOTs first establish
goals and objectives. Goal areas may be developed within the agency or
be directed to the agency from the governor, for example. Many State
DOTs are now focused on linking the transportation system to improve
economic development and growth. Other goal areas may focus on more
traditional emphasis areas such as safety, operations, system
performance and agency performance in areas such as project delivery.
Second, agencies establish performance measures that are used for
both day-to-day and strategic management. Broader performance
management measures might include travel time and delay, fatalities and
serious injuries as well as specific measures of agency performance
such as on-time and on-budget project delivery.
Third, an agency will make decisions on how to allocate resources
within and across different types of investments based on an analysis
of how different allocations will impact achievement of policy
objectives and performance goals. For some goals, this may include
forecasting the likely performance impacts of different strategies and
setting performance targets. For example, a tradeoff analysis of
reducing congestion may involve finding the right mix of capital
expansion and operations strategies given the constrained funding
resources available.
Fourth, state DOTs must allocate the limited funding resources they
have to the projects that will improve the overall performance of the
transportation system. The allocation of resources is not about
identifying projects that are ``wanted'' versus ``needed'' but rather
which projects must be funded now versus those projects that can be
delayed until additional funding is made available. State DOTs have
many different tools for assisting decision makers in conducting
resource allocation from sophisticated quantitative econometric models
to more qualitative assessments conducted by staff.
Finally, once the projects have been funded and built, the actual
performance impact of programs and projects are tracked over time and
provide the basis for evaluating the most effective strategies to
achieve desired goals. Recognizing realistic timeframes for observing
performance results and understanding that these timeframes will vary
by performance area is important. For example, for many key performance
measures related to economic development, pavement condition, and
safety, changes in performance will only be observable over a number of
years. On the other hand, some aspects of system operations or agency
performance changes can be tracked on a monthly or even daily basis.
One of MAP-21's key legacies is that it established a set of new
national policy goals that aims to both focus and prioritize the
Federal-aid Highway Program investments. While this is the first time
that State DOTs, Metropolitan Planning Organizations (MPOs) and transit
agencies are required to track, measure and report on transportation
performance using a consistent, national framework, it is certainly not
the first time that State DOTs have implemented performance management
concepts. All states have implemented some aspect of transportation
asset management, a subset of performance management. And, many State
DOTs have implemented comprehensive and robust performance management
systems to balance investment decisions against the varying resources
and approaches provided by local, state and Federal Government.
States such as Colorado, North Carolina, Utah, Minnesota, and
Maryland have created programs to manage their physical assets and
focus on the principles of transportation asset management as opposed
to a ``worst-first'' approach. Other states such as Missouri,
Washington State, and Virginia have well-known performance management
programs that go well beyond the management of physical assets.
Missouri's Tracker is a tool to assess how well MoDOT delivers services
and products to their customers (http://www.modot.org/about/
Tracker.htm). Washington State's Gray Notebook is the Washington State
DOT's quarterly accountability report that has been in existence since
2001 (http://www.wsdot.wa.gov/Accountability/). Virginia DOT helped to
pioneer the transportation dashboard concept (http://
dashboard.virginiadot.org/).
What MAP-21 requires of the State DOTs and MPOs is to report on
twelve national-level performance measures that U.S. DOT can use to
tell a comprehensive story about the status of the Nation's
transportation infrastructure. Often, these national-level measures are
referred to as a thin layer of measures that sit on top of a much more
robust set of performance measures that State DOTs use on a regular
basis to plan, program, and operate their transportation networks.
It's true that there have been, and will continue to be, many
challenges to effectively implementing MAP-21. But I can also assure
you that State DOTs are never one to shy away from a challenge. Over
the past decade the States DOTs--through the National Cooperative
Highway Research Program of the Transportation Research Board--have
proposed, supported and actively engaged in applied research to advance
the use of performance measurement to address complex management
challenges and to enhance organizational and program effectiveness.
This research has produced a series of comparative performance measures
reports and compiled substantial know-how on successful data-and
system-management techniques for performance measurement. More
recently, the State DOTs, along with their MPO and transit partners,
have been engaged with USDOT's Federal Highway Administration (FHWA)
and Federal Transit Administration (FTA) in discussing, promoting and
testing performance measures and performance-based planning and
programming.
Experience of Missouri DOT in Implementing Performance Management
State DOTs have significant experience in implementing performance
management. I would argue that Missouri is one of the leaders in this
area. While Missouri will work with the USDOT in implementing MAP-21
performance management requirements, MAP-21 is focused primarily on
national goals, national level measures, and the Federal investment. As
the director of the Missouri DOT, I must also contend with a number of
state goal areas and funding sources. I'd like to share with you some
details about Missouri's efforts and how we document our performance.
The Need for Tracker, MoDOT's Performance Management Tool
In the late 1990s and early 2000s, the Missouri Department of
Transportation began to consider performance management and data-driven
decision making, but struggled with how to start. In 2004, the
department finally set itself on a path to start collecting data and
publishing measurements on which we could continuously build.
After establishing the agency's fundamental values and collecting
the necessary data to develop performance measures, MoDOT published the
first Tracker in January 2005. This publicly available report documents
how MoDOT meets its goals and fulfills its mission and tangible results
on a quarterly basis.
Focused on Customer Expectations
MoDOT originally built the Tracker around 18 tangible results which
have since been refined to the current seven. These are the outcomes
the public expects, and they guide us in everyday decision making. To
increase accountability, each of the seven tangible results is assigned
to a specific senior leader who is charged with meeting the
department's goals and obtaining the various associated metrics.
The seven tangible results are:
1. Keep customers and ourselves safe
2. Keep roads and bridges in good condition
3. Provide outstanding customer service
4. Deliver transportation solutions of great value
5. Operate a reliable and convenient transportation system
6. Use resources wisely
7. Advance economic development
Accountability for Results
MoDOT uses a range of performance measures to focus and encourage
progress in achieving the tangible results. Every performance measure
in the Tracker corresponds to a specific tangible result. Just as each
tangible result is assigned to one senior leader, every underlying
performance measure is assigned to a single staff member. The
``measurement driver'' is the lead staff person responsible for
collecting data and meeting the specific measurement's objective.
This model ensures accountability both internally and with the
public. Each staff member must report on his/her performance measure to
me, senior leadership and various statewide staff at quarterly Tracker
meetings. The quarterly Tracker allows MoDOT to continually monitor
progress and provides transparent information to the public.
Multiple Measures Drive Performance Areas
There are multiple performance metrics associated with each
tangible result, in order to address it comprehensively. For example,
``Keep Customers and Ourselves Safe'' includes metrics on fatality and
injury reports as well as lost work days and general liability claims
and costs. All metrics are collected quarterly, semi-annually, or
annually through various data systems and other reporting means. The
Tracker details how measurements are calculated and analyzed. The
Tracker report is highly graphical, using charts to present each metric
in a simple format. The charts frequently include benchmarks to show
how MoDOT compares to other states or private corporations measuring
similar elements.
Driving Results for Any Challenge
The Tracker tool's flexible nature has allowed MoDOT to establish a
performance-based culture and evolve with changes in leadership and
policy. Through flexibility and accountability, the Tracker ensures
efficient and effective decision making. Tracker has helped managers
and employees at every level of the department make better daily
decisions by providing the data and links to how those decisions will
impact the agency's overall performance.
Safety is a good example. Since implementing Tracker 10 years ago,
the number of fatalities on Missouri's roadways has dropped from 1,257
in 2005 to 766 in 2014. You may be aware that this week is national
work zone awareness week, and in Missouri work zone safety is at the
center of our safety culture. Staying safe in work zones is a
partnership between MoDOT, our contractors, law enforcement, and the
driving public. Our Tracker follows the number of fatalities, the
number of injuries, and the number of crashes in work zones every
quarter. By placing the focus of the performance measure on reducing
those numbers, we can pursue actions that make work zones safer for
everyone. Over ten years, we've seen the number of work zone crashes
drop from 4,492 in 2003 to 1,509 in 2013.
Our tangible result on keeping roads and bridges in good condition
acknowledges one of our core functions and Missourians' desire for
smooth pavements and bridges that can safely handle growing traffic
demands. With the seventh largest highway system in the country (almost
34,000 miles and over 10,400 bridges), Missouri ranks 46th in revenue
spent per mile. We use performance data to focus our very limited
resources to keep our most heavily traveled roads as smooth as
possible.
Since 2005 the percentage of major highways in good condition has
increased from 60 percent to 89 percent. But by 2017, we face a funding
crisis that will make these stats nearly impossible to maintain. When
our construction awards drop below the amount needed just to maintain
the system in the condition it's in today, we will struggle to meet
these measures. But our performance management system will continue to
help us make the best decisions on using every dollar we spend.
We are focused on providing outstanding customer service. Every
single MoDOT employee is responsible for this tangible result, and we
strive to be respectful, responsive and clear in all our communication.
With data-driven decisions and public input shaping performance
metrics, MoDOT's customer satisfaction has increased from 67 percent in
2005 to 85 percent in 2013. MoDOT's overall customer satisfaction has
attained a level that exceeds the private sector--in 2012, Apple ranked
at 83 percent, and the Missouri DOT hit 85 percent.
Advancing economic development is yet another of Missouri's
critical tangible results. Missouri's transportation system has a
direct impact on the state's economy. Local, national and international
businesses depend on our roadways, rail, waterways, transit and
airports to move their products and get people to their jobs. We
believe investments in transportation create jobs and provide
opportunities for advancement to all Missouri citizens. An investment
in transportation provides a positive economic impact on both the
citizens we serve and the communities in which they live.
One such performance measure we track is the economic return from
transportation investment. Our customers and state decision makers can
easily see how our construction program contributes to the economy
through this measure. Based on MoDOT's 2015-2019 Statewide
Transportation Improvement Program investment of $3.5 billion, the
program is estimated to create 4,000 new jobs. Transportation
investments are expected to contribute $10.1 billion of economic output
during the next 20 years, resulting in a $3 return on every $1 invested
in transportation.
The figures tell a powerful story of economic success, but are also
a sign of missed opportunity. When compared to the previous year's STIP
(2014-2018), the number of jobs created estimate decreased 40 percent.
Also, compared to a period of sustained transportation investment in
our state from 2005-2010, when many major projects were completed, our
return on investment was at $4 on every $1 invested in transportation.
A year ago, MoDOT completed its long-range transportation plan.
Utilizing a robust public engagement plan, we visited with thousands of
Missourians where they live, work and play to learn their vision for
Missouri's transportation future. Without question, one of the common
themes they repeated over and over again was the desire for more
transportation choices, and for improved integration of all of our
modes of transportation. Because of our central location and because of
the many transportation assets that we enjoy, this is important to our
economic vitality and our quality of life. Our performance management
system tracks the use and connectivity of our modes of transportation,
and we also pay keen attention to our competitiveness in the efficient
movement of goods.
Because we administer state and Federal funds that pass through
MoDOT and on to local public agencies, we have worked diligently to
help them develop and deliver projects faster and on budget. The
performance metrics established to that end have helped us see dramatic
results in just a few years' time.
MoDOT believes it is good business to support diversity, not just
in MoDOT, but also among its contractors, subcontractors and suppliers.
Contractors, subcontractors, and suppliers working on construction
projects that receive Federal aid or Federal financial participation
are required to take reasonable steps to ensure disadvantaged business
enterprises have an opportunity to compete for and participate in
project contracts and subcontracts. Here, too, we have made data-driven
decisions, which have helped us improve our DBE participation by 78
percent over the past three years.
Looking Ahead
MoDOT has used its performance management system to create a
results focused culture among its employees and improved satisfaction
and credibility among its customers. It has provided an organizational
framework for a decade of leaders to deliver results to meet any
challenge. Managers and employees at every level of our organization
use performance data to make better daily decisions. And while the
pending funding shortfall will undoubtedly have a negative effect on
many areas of performance, our performance management system will
continue to help us stretch our limited funds. Performance goals and
results may change over time, but I'm confident our performance
management system will remain tightly woven in MoDOT's organizational
fabric.
Issues and Challenges in Implementing National-Level Performance
Management Requirements
AASHTO and the State DOTs are supportive of the MAP-21 performance
provisions and believe that the continued implementation and maturation
of performance management principles within the transportation industry
will be a positive step towards a safer and more efficient
transportation system. However, this is only the beginning of a long
journey that the federal, state, and local governments will complete
together as partners. There are some recognized challenges ahead and as
such, AASHTO and the State DOTs will continue to engage with FHWA, FTA,
the National Highway Traffic Safety Administration (NHTSA), and other
stakeholders to address these challenges together. I would like to
elaborate on three of the challenges State DOTs will face: funding,
minimum condition levels, and target setting.
The first challenge is assessing necessary funding to implement
performance management requirements. The cost to implement the
performance management requirements: from data collection and
management to analysis to reporting is not trivial. AASHTO conducted a
survey of its members to gather additional input on the estimated cost
of meeting new safety data requirements and came to the following
conclusion for an average state:
Year 1 Expenses
Information Technology Cost for entering, storing and
reporting the data: $4 million.
Data Collection which includes additional counting
equipment, vehicles, and personnel: $6 million.
Additional Staff to administer the data collection program:
$1 million.
Year 2 through 16 Expenses
Annual Operations and Management: $2 million.
Total Costs
Total Year 1 Expenses for All State DOTs: $561 million ($11
million/state * 51 states)
Total Year 2 through 16 Expenses: $1.53 billion ($2 million/
state * 51 states * 15 years)
Total Undiscounted Cost: $2.091 billion
These costs are only estimates to implement the new requirements
associated with the safety national-level measures. Additional costs,
that are similar in order of magnitude, will be associated with the
implementation of the bridge/pavement national-level measures and the
system performance measures. It is important that we balance the need
to collect the necessary and important data with the benefits of
performance management. The more State DOTs spend on data collection,
management and analysis means less money we can use to invest in safety
programs, pavement resurfacing projects, and congestion mitigation
projects.
The second challenge is the need to meet certain minimum condition
levels established by U.S. DOT. An important aspect of implementing
performance management is to provide the correct treatment at the right
time in the life cycle of the infrastructure asset. This may mean not
treating the worst item or segment of roadway first. State DOTs are
concerned that the ``minimum condition'' requirements for National
Highway System bridges and Interstate System pavement may force State
DOTs into adopting a worst-first approach, since the State DOTs will be
required to include in their overall performance management systems not
only the federally-required assets (bridges carrying the NHS,
Interstate Pavement and non-Interstate NHS pavements) but many locally
and state-owned assets as well.
The third challenge is the area of target setting. It is crucial
for the State DOTs to work closely with our planning and transit
partners in developing and establishing targets and then working
together to meet those targets. However, target setting is not a well-
established science, especially when considered under political
context. Every state and municipality faces different constraints and
opportunities affecting their transportation system. Funding levels and
sources vary, as do environmental conditions, population growth trends,
and legislative and gubernatorial mandates and priorities. State DOTs
and MPOs will have to face the realities of their individual contexts
and will need to establish appropriate targets that take into account
these unique situations. For many, this will be a challenge; but the
traveling public will be rewarded with improved mobility outcomes.
Conclusion
Performance management, the development of performance measures,
and establishing performance targets is not new to the State DOTs. For
the last decade, many State DOTs have developed and implemented
comprehensive and robust performance management systems to balance
investment decisions against resource limitations. An important aspect
of this has been examining performance measures for a wide variety of
areas from safety to asset condition to performance of the
transportation system. State DOTs are concerned with all of these
performance areas and must balance the funding of programs and projects
across areas while at the same time meet stakeholder expectations
during a time of financial uncertainty.
I want to thank you again for the opportunity to testify today, and
I am happy to respond to any questions that you may have.
Senator Fischer. Thank you, sir.
Dr. Graham?
STATEMENT OF JOHN D. GRAHAM, Ph.D., DEAN,
SCHOOL OF PUBLIC AND ENVIRONMENTAL AFFAIRS,
INDIANA UNIVERSITY
Mr. Graham. Good morning, Madam Chair and members of the
Subcommittee. Thank you for the opportunity to be here.
My topic is safety regulation--first of all, the concept of
a prescriptive standard, which is to specify technology,
design, labor practice, or a set of human behaviors aimed at
improving safety.
In the 1970s, this was the most common form of safety
regulation around the world, but this particular form has come
out of favor and has been replaced in many applications by the
performance standard. The approach of performance is to specify
a type and level of safety performance and leave the choice of
compliance method to the company or the regulated entity.
This worldwide trend I mentioned has been documented in
reports by the OECD, where they survey regulatory practices
around the world.
Where did this idea come from? It has many parents, as many
good ideas do, but one of the most important people to champion
the idea was a young Harvard law professor named Stephen Breyer
in his 1982 book, ``Regulation and Its Reform.''
What are the advantages of a performance standard?
Well, the first and most basic advantage is it reduces the
compliance cost to the company because of the firm has the
flexibility to find the least-cost compliance methods for
achieving the safety objective.
Second of all, the performance standard fosters innovation
in the industry because it doesn't lock in companies into any
specific technology or labor practice. It allows innovation to
occur over time as new opportunities are created.
And, third, it reduces the opportunities for what
regulatory scholars call ``rent seeking''--that is, the efforts
of people who are inventors of a specific idea to try to
persuade a regulator to mandate their specific tool or
technology or practice rather than allowing competition to
occur over time. So we don't want to create a regulatory system
that invites a lot of this rent seeking.
There are practical issues in making sure that performance
standards work properly. The key premise is you must have a
workable means of measuring performance, and the system must
have two capabilities: You have to be able to distinguish
performance of two different companies so you can say, ``This
company is performing better than that company,'' and you also
must be able to distinguish performance over time with the same
company. ``This company was out of compliance; then they came
into compliance.''
You must have a performance system that can accomplish
these. If you don't, then you don't have any way to keep
legally accountable the firm for its compliance. So you do have
important obligations to design a performance system that can
work.
Now, let me go further to risk-based performance systems.
And here we are measuring adverse safety events directly,
usually in terms of number of crashes, injuries, or fatalities.
But sometimes these events are so rare you can't actually
do a performance system using this data because they don't
happen frequently enough. In those cases, we use mathematical
models and risk analysis that simulates safety events.
We often utilize data not just on the adverse events
themselves but on the near misses, like in the famous airplane
context. We track near misses as well as actual crashes. So
these models we are looking at can then be used to include
information about fatalities, injuries, accidents, but also
near misses.
So in my written testimony, I make several suggestions to
move along in the pathway toward more performance-based
standards.
The first idea I put on the table is to amend prescriptive
standards in a general way to permit alternative compliance
mechanisms that achieve at least the same degree of safety
protection as does the prescriptive standard. This is sometimes
called an equivalency clause because the company needs to
demonstrate that they can accomplish the same equivalent level
of safety with this alternative method of compliance.
The burden of proof is placed on the company to show that
they can provide equivalent safety. And there has to be a
workable plan of inspection and enforcement that is embedded in
an alternative compliance approach.
The agency, when they receive an alternative compliance
plan, has an obligation to respond publicly to whether they are
going to approve it or disapprove it. And, of course, that is
subject to judicial review under something like the arbitrary
and capricious test.
The second suggestion I make is that new regulations should
be performance-based whenever possible, but even when they are
not, you should include that equivalency clause that allows the
industry to innovate and suggest better alternatives.
And, third, we have to keep in mind that our regulatory
staffs in many of our agencies, they have not been trained in
the performance- and risk-based approaches I am talking about.
We will need to have some funds for staffing of people in
regulatory agencies that get them up to snuff to do this type
of work.
Thank you very much. I look forward to the comments and
questions.
[The prepared statement of Mr. Graham follows:]
Prepared Statement of John D. Graham, Ph.D., Dean, School of Public and
Environmental Affairs, Indiana University
My name is John D. Graham. I am Dean of the School of Public and
Environmental Affairs, Indiana University (Bloomington and
Indianapolis). From 2001 to 2006 I served as the Senate-confirmed
Administrator, Office of Information and Regulatory Affairs (OIRA),
U.S. Office of Management and Budget (OMB). Prior to serving at OMB, I
was the founding Director of the Center for Risk Analysis at the
Harvard School of Public Health (1990-2001). I have published ten books
and hundreds of articles on topics related to regulatory reform,
especially on topics related to health, safety, and environmental
regulation. I earned my BA in economics and politics from Wake Forest
University, my Master's degree in public affairs from Duke University,
and my Ph.D. in public affairs from Carnegie-Mellon University. My
doctoral dissertation was one of the early analyses of the benefits and
costs of the automobile airbag.
My testimony today addresses a classic issue in health, safety and
environmental regulation: whether a regulation should prescribe certain
technologies, designs, practices and/or behaviors (``prescriptive
standards'') or whether a regulation should compel achievement of a
particular type and level of performance (``performance standards''),
leaving the choice of compliance strategies to the discretion of the
regulated entity (the ``regulatee'') (Coglianese et al, 2002). Since
the 1970s, when the law and economics literatures made a strong case
for a focus on performance (Breyer, 1982), regulatory practice has
shifted away from prescriptive rules toward performance-oriented
standards, but the trend is faster in some fields of practice than in
others. The trend toward performance-based approaches to regulation
began in the United States but is now a global trend (Shapiro, 2013).
In the diverse world of transportation regulation, regulatory practices
vary considerably, not just between agencies but from regulation to
regulation.
The Case for Performance Standards
Performance standards have several advantages over prescriptive
standards (Mannan, 2012). I offer a concrete illustration of each
advantage below.
First, a performance standard tends to be less costly to the
regulatee because the regulatee has the flexibility and the incentive
to find the least-cost method(s) of compliance. Under the Clean Air
Act, EPA shifted from a mandate of pollution-control equipment (e.g.,
scrubbers) to numeric emission limitations on powerplants. When given
the flexibility of a sulphur-dioxide emission limitation (instead of a
prescriptive standard), some owners of powerplants found that it was
less costly to shift from high-sulfur to low-sulfur coal than to
install expensive and energy-consuming scrubbers.
Second, a performance standard is more receptive to industrial
innovation because the standard is not written to mandate certain
technologies, designs, practices and/or behaviors. When a prescriptive
standard requires that safety be accomplished by human labor, it
discourages industry investment in labor-saving technologies that
achieve the same safety outcome without human labor. Given the possible
future of safer, driverless cars, it may be unwise for NHTSA to craft
prescriptive regulations that presume that a licensed human being is
driving the vehicle. A similar issue arises in freight safety regarding
the optimal number of crew in the cab and the prospect of future
implementation of automatic speed control technologies.
Finally, opportunities for ``rent-seeking'' (the inappropriate use
of regulatory power to benefit some technologies/firms over others) may
be curtailed when standards are defined objectively in terms of
performance. If a regulator is permitted or inclined to prescribe
specific technologies, there will be a temptation on the part of
suppliers of safety equipment to lobby the regulator in ways that
ensure that their type or brand of equipment is prescribed in the
standard. A performance standard does not eliminate the incentives for
rent seeking but it may diminish them since the standard is not defined
in terms that specify a particular design or technology. Elsewhere, I
have written about how lobbies favoring the electric car have succeeded
in biasing recent regulatory systems in favor of electrification as
opposed to other effective ways of improving fuel economy and reducing
greenhouse gas emissions (e.g., conventional hybrid engines, such as
used in the Toyota Prius, and the clean diesel engines now marketed be
German vehicle manufacturers) (Graham et al, 2014). The same lesson
applies to requirements, such as inspection technologies, in the
pipeline, trucking, railroad and maritime industries.
When Performance Standards are Impractical
There are situations when it is not feasible or practical to devise
a performance standard, usually because a viable system of measuring
performance and inspecting firms/products for their performance is not
available (Metzenbaum, 1998). In order to be feasible, a performance-
based system must be capable of distinguishing the performance of one
firm versus another and must be capable of documenting changes in a
firm's performance over time. Without firm-specific measurement
capability, a regulator cannot hold firms legally accountable for
performance.
A performance-based system must also be practical in the sense that
it can be coupled with an inspection/enforcement system that can
determine which firms are in compliance and which are out of
compliance. Since some companies are not averse to breaking the law
when enforcement systems are weak, a performance standard must be
framed in ways that inspection and enforcement systems can detect and
deter violators.
One of the purported strengths of the prescriptive standard is that
it can be framed in ways that facilitate inspection/enforcement (i.e.,
an inspector may have a checklist of hardware or operational practices
that he or she uses to determine whether a facility or product is in
compliance with the standard). However, in order to have knowledge that
specific hardware and operational practices are safer, a regulatory
agency presumably has access to performance-related data. The question
becomes whether such data can be utilized to inform a practical
performance standard.
When the outcome of interest can be measured continuously on a day-
to-day basis (e.g., emissions from a smokestack), a performance
standard is clearly feasible. When the outcome of interest is extremely
rare and potentially catastrophic (e.g., a meltdown of a nuclear
reactor), it is not practical to define performance by measuring
directly the frequency of meltdowns. A similar situation exists with
low-probability mishaps involving transport of hazardous materials.
In the nuclear sector, it is practical to use as a performance
measure a precursor of meltdowns such as the frequency of reactor
shutdowns. In airline safety, performance-oriented analyses focus on
near misses as well as actual crashes. My understanding is that FRA and
the railroads have launched a pilot program called confidential close-
call reporting that is similar to the concept of near misses (FRA,
2015). In my opinion, this is a constructive development.
Using Risk Analysis to Inform Performance Standards
When events are rare in frequency, the tools of risk analysis can
be employed to define performance standards. With risk analysis, a
predictive mathematical model is used to estimate the probability of an
adverse event as a function of the technologies, designs, practices and
behaviors observed in the industry (NRC, 2013). The inputs to the model
are based on historical data, known physical/biological/behavioral
relationships, and expert judgement. The performance standard might be
defined as a threshold probability of the adverse event (e.g., a small
probability of an airplane crash, since zero probability is
infeasible).
Compliance with the performance standard is demonstrated when the
firm shows the regulator that, given the inputs at their firm, the
predicted probability of an adverse event is below the threshold
probability (``safety'') specified by the regulator. Some companies
might comply with the safety threshold through investments in
technology; others may invest in superior training programs for their
employees. In either case, the firm must be able to show, through risk
analysis, that their compliance approach meets the risk-based standard
specified by the agency.
When predictive models of risk analysis are used in performance
regulation, it is common for regulatory agencies to offer technical
guidance to companies on how the models should be constructed, tested,
and validated. Default values for certain inputs may be specified by
the regulatory agency, unless a firm can supply valid data to support
an alternative value. When a company submits their risk analysis, using
the template suggested by the regulatory agency, it may be appropriate
for the company to subject their analysis (choice of inputs and
calculations) to independent peer review by qualified experts in the
field. Alternatively, the regulatory agency may organize its own peer
review processes, on the guidelines for models or on the risk analyses
submitted by specific companies. In order to rely less on prescriptive
standards, greater use of risk analysis may be required in the
pipeline, trucking, railroad and maritime industries.
Suggestions to Accelerate the Trend Toward Performance Standards
My experience in regulatory reform around the world suggests that
there is growing recognition of the value of performance-oriented
approaches to regulation. In order to accelerate the trend toward
performance standards, I suggest three directions for Congress and
Federal regulatory agencies.
1. All prescriptive standards should be amended to permit
alternative compliance mechanisms that are supported by performance
information and achieve at least an equivalent level of protection.
When a regulatee can make an analytically rigorous case that an
alternative compliance strategy provides at least equivalent safety
performance to a prescriptive standard, the regulatee should be
permitted by the agency to pursue the alternative strategy, subject to
an inspection/enforcement regime that is established with the
alternative strategy. Even if a regulatory agency cannot imagine a
viable alternative compliance strategy, rules should be written to
permit regulatees to propose alternative compliance mechanisms, since
specialists in industry may be able to innovate in ways that regulators
cannot anticipate.
Given the large number of prescriptive standards that have already
been codified at numerous regulatory agencies, it would take decades to
amend each of the standards on a rule-by-rule basis. A better approach
would be for Congress, in a generic regulatory reform statute, to
authorize--at any health, safety or environmental agency--alternative
compliance mechanisms that achieve at least the same amount of safety
performance as the prescriptive standard. The language I am referring
to is sometimes referred to as ``an equivalency clause'' because the
regulatee is obliged, with their alternative compliance methods, to
accomplish an equivalent level of health, safety or environmental
protection. The evidentiary burden of proving equivalent safety
protection should be placed on the regulatee but, in the event that an
agency declines to permit alternative compliance, the agency should be
required to state its reasons publicly, and the agency's decision
should be reviewable in Federal court under the ``arbitrary and
capricious'' test. That test provides a measure of deference to the
agency's judgment, which I think is necessary to assure public
confidence in the system.
With regard to new rulemakings, performance standards should be
preferred whenever possible. If new prescriptive standards are enacted,
they should be coupled with permission for regulatees to propose
alternative compliance mechanisms that achieve equivalent protection.
2. When new safety regulations are proposed, agencies should be
required to include, in their regulatory impact analyses, a plan for
how they intend to evaluate the regulation after it is implemented.
The term ``retrospective evaluation'' is often used to describe the
process whereby agency analysts evaluate how effective a safety rule
has been after the rule is enacted. Regardless of whether the rule is
prescriptive or performance based, the agency should describe what data
they plan to collect and how they intend to analyze the data. My
experience is that, if an agency does not know how they would evaluate
a new rule, after it is implemented, then OMB and the regulated
community should begin to ask hard questions about whether the
resources invested in the rulemaking might be better invested
elsewhere.
3. Congress should provide additional resources to Federal
regulatory agencies for training in modern methods of performance
assessment and risk analysis, so that agency personnel can transition
more rapidly to the world of performance-based regulation.
Many of the professional staff at Federal regulatory agencies have
extensive experience with prescriptive regulation but little to no
experience or training related to performance measurement or the
development of performance standards. The need for training in risk
analysis is particularly acute because many of the existing regulations
that are prescriptive address low-frequency adverse events, the types
of situations where direct measurement of performance will not be
feasible. In order for those rules to be redrafted as performance
standards, the analytic tools of risk analysis will be required.
The cost of this suggestion is not large, as intensive courses in
risk analysis for mid-career professionals have already been developed
and are offered by the Society for Risk Analysis (SRA), a mission-
oriented association of 2,000+ engineers and scientists. SRA is a
nonprofit group dedicated to enhancing the application of risk analysis
methods in government and industry.
In summary, the trend toward performance-based approaches to
regulation is evident throughout the world (Coglianese, 2012). The
advantages of performance standards are intuitive and compelling. If
Congress does not act, Federal agencies will move in this direction but
progress will continue to be slow and uneven. I have made three
suggestions for legislative action that may accelerate the replacement
of prescriptive standards with performance standards.
Thank you for your time and attention, and I look forward to
questions and comments about my testimony.
References
Breyer. S. Regulation and Its Reform. Harvard University Press,
Cambridge, MA. 1982.
Coglianese, C. Measuring Regulatory Performance: Evaluating the
Impact of Regulation and Regulatory Policy. OECD. Paper No. 1, Paris,
France, August 2012.
Coglianese, C, Nash, J, Olmstead, T. Performance-Based Regulation:
Prospects and Limitations in Health, Safety, and Environmental
Protection. Regulatory Policy Program Report Number RPP-03(2002).
Federal Railway Administration, 2015, http://www.fra.dot.gov/Page/
PO347.
Graham, J. D., Rupp, J., Cisney, J., and Carley, S., No Time for
Pessimism about Electric Cars: Issues in Science and Technology, v 31,
no. 1, pp. 33-40. 2014.
Mannon, SM. The Pros and Cons of Performance-Based Regulatory
Models. Mary Key O'Connor Process Safety Center. Texas A&M University
System. 2012.
Metzenbaum, S. Making Measurement Matter: The Challenge and Promise
of Building a Performance-Focused Environmental Protection System.
Brookings Institution. Washington, DC. 1998.
Nuclear Regulatory Commission. Background and Staff Guidance on
Performance-Based Regulation. January 3, 2013, www.nrc.gov/about-nrc-
regulatory/risk-informed/concept/performance.html#process.
Shapiro, S et al., Analysis of the Federal Oil and Gas Regulatory
Landscape. Report Prepared for OSHA. Edward J Bloustein School of
Planning and Public Policy. Rutgers University. May 2013.
Senator Fischer. Thank you.
And, Dr. Sweatman, welcome.
STATEMENT OF DR. PETER SWEATMAN, DIRECTOR,
UNIVERSITY OF MICHIGAN TRANSPORTATION
RESEARCH INSTITUTE
Mr. Sweatman. Chairman Fischer, Ranking Member Booker, and
members of the Subcommittee, thank you for the opportunity to
testify today about the 21st-century role of performance
measurement in our Nation's surface transportation system.
And thank you, Senator Peters, for the kind introduction
and for making a special effort to be here today.
The University of Michigan created a new transportation
ecosystem of global companies to launch the Michigan Mobility
Transformation Center to help revolutionize mobility through
connected and automated vehicle technologies. I also chair the
ITS America Leadership Circle, and I am representing them here
today.
MAP-21 made reforms to create a more performance-based
transportation system, covering safety, state of good repair,
traffic congestion, and freight movement. To implement these
reforms, state and local transportation agencies require access
to better tools, including ITS--intelligent transportation
systems--to measure and to operate.
As this committee considers ways to improve the nation's
freight network, we encourage funding eligibility and an
increased Federal share for projects that incorporate new and
innovative technologies--that is, freight-related IRS.
But we must look ahead. The advent of connected vehicles,
or V2X, automated vehicles, and big data will redefine
performance measurement. Success in deploying more powerful
technologies will drive the volume and relevance of available
data. Metrics, therefore, need to become less prescriptive,
allowing the operator to use the most powerful measures. The
technology will ensure that the most powerful measures are also
the most available measures.
The starting point for technology-driven performance is
safety, with over 33,000 fatalities and 2.3 million injuries on
our Nation's roads each year. Transportation Secretary Anthony
Foxx has said that V2X technology represents the next
generation of auto safety improvements.
A smart corridor is being deployed in Michigan by the
Michigan Department of Transportation, Ford, and General
Motors. General Motors CEO Mary Barra announced cars equipped
with V2X technology starting in the 2017 model year.
V2X technology will unleash innovation, from crash-
avoidance safety, advanced traffic management systems, and on-
demand services to real-time traffic, transit, and parking
information, and countless new transportation applications.
V2X communication utilizes the 5.9 gigahertz band of
spectrum set aside by the FCC. We need that band for safety.
There is no substitute. The FCC should not open up the 5.9
gigahertz band to unlicensed devices without vigorous real-
world testing.
The 21st-century performance of the nation's transportation
system depends squarely on V2X. Transportation companies,
manufacturers, consumers, and agencies will be able to select
the most relevant performance data and take performance
measurement to a completely new level.
How do we get there?
The ITS Joint Program Office must be equipped for deploying
V2X, as well as increasing vehicle automation, big data, and
other next-generation technologies. We propose that the U.S.
DOT's ITS research program be authorized at the
administration's requested levels of $158 million in 2016 and
$935 million over 6 years.
We recommend the authorization of funding for automated and
connected vehicle technology corridors and pilot programs.
We recommend that a cross-agency automated vehicle research
initiative be established within the ITS Joint Program Office
to conduct collaborative research with private industry, state
and local agencies, university research centers, and national
labs.
And we propose that a 21st-century Transportation Data
Center of Excellence be established in the form of a
partnership between the U.S. DOT, the automotive industry, and
research universities. This center should carry out data fusion
and analytics for transportation performance and measurement,
concentrating on the innovative use of ITS, V2X, and automated
vehicle data.
We encourage U.S. DOT, as well as the states, to review
existing automotive and commercial vehicle safety standards,
regulations, and policies. We need to remove unintended
barriers to the operation of connected and automated vehicles.
And we need to ensure that the data flowing from the new
technology is fully admissible for performance management.
Right now we have the opportunity to shape the future
performance of our Nation's transportation system. That future
is determined by technology and will be measured by technology.
Thank you again for this opportunity, and I look forward to
your questions.
[The prepared statement of Mr. Sweatman follows:]
Prepared Statement of Dr. Peter Sweatman, Director, University of
Michigan Transportation Research Institute
Chairman Fischer, Ranking Member Booker, and Members of the
Subcommittee: thank you for the opportunity to testify today about the
21st Century role of performance measurement in our Nation's surface
transportation system.
My name is Peter Sweatman, Director of the University of Michigan
Transportation Research Institute, or UMTRI.
The University of Michigan created a new transportation ecosystem
of global companies to launch the Michigan Mobility Transformation
Center (MTC), to help revolutionize mobility through connected and
automated vehicle technologies.
I also chair the ITS America Leadership Circle.
Encouraging Innovation to Meet Performance Management Goals
MAP-21 made reforms to create a more performance-based
transportation system. Covering safety, state of good repair, traffic
congestion and freight movement.
To implement these reforms, state and local transportation agencies
require access to better tools--including ITS--to measure and to
operate.
Congress should ensure that ITS technologies are eligible within
all the core highway formula programs and that a higher Federal match
is made available.
As this Committee considers ways to improve the Nation's freight
network, we encourage funding eligibility and an increased Federal
share for projects that incorporate new and innovative technologies--
freight-related ITS.
But we must look ahead. The advent of connected vehicles (V2X),
automated vehicles and big data will redefine performance measurement.
Success in deploying more powerful technologies will drive the volume
and relevance of available data. Metrics therefore need to become less
prescriptive, allowing the operator to use the most powerful measures.
The technology will ensure that the most powerful measures are also the
most available measures.
Performance, Driven and Measured by 21st Century Technology
The starting point for technology-driven performance is safety,
with over 33,000 fatalities and 2.3 million injuries on our Nation's
roads each year.
Transportation Secretary Anthony Foxx has said that V2X technology
``represents the next generation of auto safety improvements''. A smart
corridor is being deployed in Michigan by the Michigan DOT, Ford and
GM. GM CEO Mary Barra announced cars equipped with V2X technology
starting in the 2017 model year.
V2X technology will unleash innovation, from crash-avoidance
safety, advanced traffic management systems and on-demand services to
real-time traffic, transit and parking information and countless new
transportation applications.
V2X communication utilizes the 5.9 GHz band of spectrum set aside
by the FCC. We need that band for safety. There is no substitute. The
FCC should not open up the 5.9 GHz band to unlicensed devices without
vigorous, real-world testing.
The 21st Century performance of the Nation's transportation system
depends squarely on V2X. Transportation companies, manufacturers,
consumers and agencies will be able to select the most relevant
performance data, and take performance measurement to a completely new
level.
Advancing ITS, Big Data and Automated Vehicle Research
How do we get there?
The ITS Joint Program Office must be equipped for deploying V2X, as
well as increasing vehicle automation, big data and other next-
generation technologies. We propose that the U.S. DOT's ITS research
program be authorized at the Administration's requested levels of $158
million in 2016 and $935 million over 6 years.
We recommend the authorization of funding for Automated and
Connected Vehicle Technology Corridors and pilot programs.
We recommend that a cross-agency Automated Vehicle Research
Initiative be established within the ITS Joint Program Office, to
conduct collaborative research with private industry, state and local
agencies, university research centers and national labs.
We propose that a 21st Century Transportation Data Center of
Excellence be established in the form of a partnership between USDOT,
the automotive industry and research universities. This center should
carry out data fusion and analytics for transportation performance and
measurement, concentrating on innovative use of ITS, V2X and automated
vehicle data.
We encourage U.S. DOT, as well as the states, to review existing
automotive and commercial vehicle safety standards, regulations, and
policies--we need to remove unintended barriers to the operation of
connected and automated vehicles on public roadways. And we need to
ensure that data flowing from the new technology is fully admissible
for performance management.
Right now we have the opportunity to shape the future performance
of our Nation's transportation system. That future is determined by
technology, and will be measured by technology. V2X, automation and
21st Century data represent the path to that future.
Thank you again for this opportunity, and I look forward to your
questions.
Senator Fischer. Thank you, Doctor.
My Ranking Member is on an especially tight schedule today,
so I would recognize Senator Booker to begin the questioning.
Senator Booker. I am so grateful for that, the generosity
of allowing me to go quickly and go first.
Real quick, Dr. Graham, I really enjoyed your testimony,
and so did my staff, your written testimony. And so let me just
jump in real quick, if I can use 2 minutes, and then go to the
Under Secretary on another topic.
So performance-based regulations obviously can have
positive impacts, and you indicated that a lot. But there are a
lot of concerns that are raised that, in some instances,
performance-based regulations could have unintended
consequences, especially when it comes to safety. And, for
example, concerns have been raised about performance-based
regulations could result in largely self-regulated industries
with limited oversight.
And just for the record, can we drill down? As performance-
based regulations are considered, how can we ensure that the
proper oversight continues? And are there other concerns that
exist with transitioning to a performance-based system of
regulation?
Mr. Graham. Great question.
In a performance-based system, each company that complies,
they have to lay out what their compliance methods are, and
then those are then inspected and enforced by the agency in the
same way that a prescriptive standard is enforced.
So, in terms of the ultimate oversight, the process is not
different. There have to be specific practices, technology, or
whatever that is used to achieve the standard.
Senator Booker. Great.
And you made a very good point. I think both Chair Fischer
and I were appreciative of the suggestions you made. And so
part of that has to be the people that are providing the
oversight, the regulators themselves, would need specific
training.
And can you be a little bit more specific on what you think
the regulators themselves have to be trained up on?
Mr. Graham. Yes. So there is a professional society, the
Society for Risk Analysis, that has existing training programs
on how to use risk analysis methods for situations where the
frequency of the adverse event is very rare but the adverse
consequences are really bad.
Senator Booker. Right.
Mr. Graham. OK? And a lot of these modal agencies, they
have situations where they have safety concerns but they don't
happen that often. They need to use risk analysis tools to
develop a performance standard.
Senator Booker. So micro fissures in rail lines, for
example. There is a lot of incentive financially not to do all
the requirements because they are so rare, and when they
happen, the industry----
Mr. Graham. Then they are pretty bad.
Senator Booker.--says, ``My bad.''
Mr. Graham. Right.
Senator Booker. And so you need to figure out some way to
make sure that the appropriate steps are being taken. Correct?
Mr. Graham. Correct.
Senator Booker. Great.
Mr. Under Secretary, just jumping real quick to an issue.
You know, I have lots of concerns, 16 months down here, that
the Federal Government doesn't seem to be moving at the pace of
innovation, whether it is the backlogs at the Patent Office,
whether it is FDA approvals. All of these things are growing in
my frustration. I look forward to a hearing later today about
drones.
But just going to ask you a quick question about autonomous
vehicles. This is exciting to me. I am encouraged that the
NHTSA is conducting research on automated vehicles and would be
interested to know what further steps DOT plans to take to
unleash what could be incredible benefits of this technology.
Mr. Rogoff. Well, Senator Booker, our principal role, in
addition to just trying to be as helpful as we can to all of
the players in this very creative and important space, is to
ensure the safety of whatever technologies emerge. And they are
very dynamic technologies that could yield very different
solutions.
It does yield itself, in many ways, to a performance-based
approach. But I think, importantly, there are also concerns as
it relates to cyber hacking and the security of an autonomous
vehicle system. We are working carefully not just within the
DOT but with other agencies, including NIST, the FBI, others,
to make sure that whatever system is stood up is safe for the
drivers and is resistant to hacking.
I have to say, I have an 84-year-old mother who is still on
the road. Autonomous vehicles can't come fast enough for me
because I worry about it all the time. But we will all be 84 at
one point, and autonomous vehicles hold the promise for keeping
us all on the road.
Senator Booker. Well, there is a saying, ``b'ezrat hashem''
that we all get to be 84.
Thank you very much, Chairman.
Senator Fischer. Thank you, Senator Booker.
Mr. Under Secretary, we know that MAP-21 required the DOT
to include performance standards for a number of programs and
grants that are related to project funding. In fact, these
performance measures follow the GAO recommendations to provide
a strong foundation for holding grant recipients responsible
for achieving those objectives and measuring those
performances.
What steps is the DOT taking to progress toward performance
targets for regulations? And can you provide us some examples,
please?
Mr. Rogoff. Well, sure. Let me talk a little bit about our
performance measures that we are doing in MAP-21, and then let
me talk about some of the things we are doing in other modal
agencies.
As Mr. Nichols pointed out, we are along a progression
right now in working with our state partners to establish for
the first time in the Federal aid highway program performance
measures that will be accountable by state. We are at various
levels of development. We have NPRMs out on two of them. A
draft NPRM is coming out on another one. We are in a comment
period on a fourth.
We have wanted to work very closely, exhaustively frankly,
with our states, because we need to have buy-in by all of them
as to the system we are using. We are making good progress, not
as quickly as some of us, or all of us, maybe would like, but
we are going to get these implemented, and then we are going to
have buy-in when we do.
In other agencies, I think we are making very good progress
in certain areas that really lend themselves to performance-
based approaches. Within the FAA, when it comes to general
aviation, the FAA is about the business of rewriting the whole
Part 23 aviation code as it relates to safety measures related
to smaller aircraft.
Within the Federal Railroad Administration, individual
railroads are being asked to produce risk-reduction plans that
are all about the performance rather than any specific metric
that they need to accomplish.
And one I am particularly fond of and proud of--earlier in
the administration, I served as the Federal Transit
Administrator, and we successfully got MAP-21 to include
transit safety authority for the department. It overcame a
prohibition that had been in law since 1964. This really lends
itself to a performance-based approach because we are not
burdened with several decades of legacy regulations that have
been in place. We are starting with a clean slate, developing
regulations for the first time, which is a great and rare
opportunity to be performance-based from the get-go. And that
is what they are doing at the FTA.
Senator Fischer. In your past life as the FTA
Administrator--you have just spoken about that--how do you
compare the FTA's approach to safety to the FRA's approach?
Mr. Rogoff. Well, the approaches are very different. Like I
said, one has many decades of prescriptive measures that have
been in place and have also, like I said earlier, made for the
safest year on record in 2014.
FTA is dealing with a hugely more diverse universe of
operators. Light-rail systems are not identical, whereas
commuter rail systems largely are. They also, in the transit
safety account, use different bus rapid transit and standard
bus processes.
Transit is an extraordinarily safe mode of transportation
that can be made even safer. And they have what Dr. Graham
referred to as the risk of very rare but very catastrophic
potential events, as we discovered in the Washington Metro
incident in 2009.
So we are coming at it from a risk-reduction approach, and
FRA is moving in that direction. But FRA also has a more
uniform set of users in the form of the freight railroads and
the commuter railroads.
Senator Fischer. Do you think if the FRA was granted that
safety authority today, would they still be regulating the same
way they are? Would it change because of where we are at today
compared to when these regulations were put in place?
Mr. Rogoff. I think the FRA has, frankly, the ability,
should it choose to move to a performance-based approach----
Senator Fischer. You think they have----
Mr. Rogoff. I believe--you know, I would want to review
this with counsel's office, obviously, but I am not sure that--
I mean, in certain areas, they have prescriptive rules that are
in the statute. If you really wanted to move away from those
rules, you would have to unwind them legislatively.
But I think in other ways, in other areas, we see FRA
moving to a more performance-based approach, as I said, in
these risk-reduction plans that they are having all of the
railroads put together.
So I think progress can be made. As I said in my opening
statement, it needs to be made carefully. You don't want to
move to a performance-based standard until you at least know it
is as safe. And that requires, as many of the witnesses pointed
out, a lot of data collection, a lot of analysis, and willing
partners to have all of their data be transparent. Absent that,
we can't make progress.
Senator Fischer. And we need to encourage people to be
willing partners, wouldn't you agree?
Mr. Rogoff. Absolutely. You can't get there without them.
Senator Fischer. OK. Thank you.
Senator Wicker?
Oh, I am sorry. Senator McCaskill was here first.
Senator McCaskill?
Senator McCaskill. Thank you.
Mr. Nichols, in your testimony, you indicated that it is
great to talk about performance management, and we all want
performance management. I am a big believer in performance
metrics. As you may remember, back, I instituted performance
auditing----
Mr. Nichols. Yes, ma'am.
Senator McCaskill.--in the state of Missouri when we had
never had performance auditing before.
But you also point out that it is a little bit like us
talking a lot about an infrastructure bank without telling
people that the money in the bank comes from tolling if we just
talk about performance metrics without talking about funding.
Can you speak to the challenges that you are facing at the
state level with the uncertainty of our fits and starts of
funding of highway transportation from Washington?
Obviously, we have a deadline approaching in May, and I
would like the consequences of us embracing another 6-month
extension as opposed to what used to be noncontroversial around
here, which was a multiyear, at least level spending amount for
our Highway Trust Fund.
Mr. Nichols. Thank you, Madam Chairman and Senator. Again,
great question.
And to begin with, performance management, as you know, is
a process as much as it is a product and a tool. And it is a
culture that one develops because we have to prioritize the
very limited resources that we have so that we are focusing on
achieving results that make a difference in specific areas.
Again, I mentioned seven tangible results. I think we have
provided a copy of our Tracker, and it is really our
performance management document that we use to do our business
with.
Things like safety--we have talked so much about safety
here. But it is also about system condition, congestion relief.
We have talked about freight, we have talked about ports, and
all those different things of business that we do in our state.
There is not enough money to take care of all of the needs that
our customers are asking us to achieve.
So what we are doing with performance management, through
an enterprise risk-management system, I will mention, as Dr.
Graham talked about also, is prioritizing where those limited
dollars go to achieve the most benefit of the results out of
them.
And, obviously, the singular focus is safety and reduction
of fatalities, which we have made progress on but not enough
progress. You know, one fatality is one too many.
The issue of the national funding issue that we have--and,
obviously, I speak for all of AASHTO and all the states, and
that is that we do need a sustainable funding program, a long-
term bill, for lots of reasons, which I won't take a lot of
your time today, but it does provide us the time to do the
planning, the long-term planning on our projects.
Because we are in fits and starts, and we need that time to
get our projects ready. And we are always on this precipice of
providing construction projects and then the funding stopping
and then we are going to have to stop or prevent a project from
moving forward, anywhere in our country.
Many states have reduced their highway programs just
because they can't predict where the Federal funds are going to
be after May 31 of this year. And so it is a big challenge that
all of us are facing.
Senator McCaskill. Have we put a price tag on that, when we
have to stop a project because we can't get our act together
out here and get multiyear highway funding done? Has
nationally, if any of you are aware, or if we have in Missouri
put a price tag on what that is costing us in terms of these
projects and costs going up because of delay and so forth?
Mr. Nichols. There is an increase. I do not have that
number, and we can provide a number like that. But, obviously,
the impact of contractors stopping their work and having to
restart; closing out a project costs money for a contractor, or
a consultant who is doing the engineering work for us also. So
there is an impact to the restart of a project once it gets
tabled or shelved.
Senator McCaskill. What is the----
Mr. Rogoff. Senator McCaskill, I----
Senator McCaskill. Yes?
Mr. Rogoff.--would just add one thing, because we have an
added concern at the department that even goes beyond just the
mechanics of the contracting. And that is that, having gone
through 32 short-term extensions now to date, communities are
really losing their ambition and their vision to actually make
things better.
How do you actually plan for a major bridge replacement
project that could take anywhere from 3 to 5 years if you don't
know if the Federal Government is going to reimburse you 8
months later? And that is what people like Mr. Nichols have
been put through now for a number of years. Even MAP-21 was
only 2 years long.
That is why the administration is putting forward a 6-year
bill, fully paid for with substantial growth, to provide that
certainty as well as provide the level investment, where
conditions might actually improve.
Senator McCaskill. Well, let me ask this awkward question
so that we can make sure we don't forget that we have work to
do in Jefferson City, as I indicated when I welcomed you.
Let's assume that something invades this place called
``common sense'' and we get a multiyear surface transportation
bill done that will allow the kind of vision and planning that
will make these projects cost-effective and real to the states.
Will Missouri have the resources to cost-share?
Mr. Nichols. No, ma'am. It is even worse than that, Madam
Chairman--no, ma'am. We will not. In our state, Fiscal Year
2017, assuming that there is a solution for transportation
funding, whether it is a continuing resolution or a new surface
transportation act at the Federal level, at the existing
funding levels we will not even be able to match the Federal
funds that are coming in today.
So it is a big challenge that we are facing at the state
level in Missouri, and it is quite common around the country
right now.
Senator McCaskill. Well, I hope people in Missouri figure
this out before the legislators in Jefferson City consider
another tax cut. Thank you, Mr. Nichols.
Senator Fischer. Thank you, Senator McCaskill.
Senator Wicker?
STATEMENT OF HON. ROGER F. WICKER,
U.S. SENATOR FROM MISSISSIPPI
Senator Wicker. Thank you very much, gentlemen. Appreciate
your testimony today.
I have a question about TIGER grants and maybe a way to
expand this concept to the state level. And I want to give you
an example.
There were three small counties in southwest Mississippi
who came together in a project called TRI-Mississippi--
Claiborne County, Jefferson, and Franklin County. They
submitted a TIGER grant application, 2014, to fund the
replacement of 22 failing bridges and to repair 40 miles of
roadway. This grant was awarded to TRI-Mississippi, and through
this project we were able to create, we believe, 262 additional
jobs in an area that was highly distressed economically.
So, good news for these three small counties; bad news for
the counties that submitted equally excellent applications and
weren't chosen. In this system, we learn that nearly 6,100
applications have been submitted and only 343 receive funds.
This represents a project award rate of less than 6 percent.
Last year's competition alone had applications requesting
15 times the amount authorized in the program. As one of our
witnesses said, the needs are out there, and we are simply not
meeting the needs.
Now, that is why Senator Booker and I have developed a
state-based competitive grant program that you might call
state-based TIGER or a TIGER-esque program for states. We
introduced it last year; we have reintroduced it again this
year in the form of the Innovation in Surface Transportation
Act.
And so I would ask perhaps Mr. Nichols to comment about
this but also Mr. Rogoff and discuss this concept of a certain
portion of funds being set aside for competitive, merit-based
applications so more of these local communities are able to
utilize funds in a way where they could not possibly submit a
match.
And, Mr. Nichols, I guess we will go with you first.
Mr. Nichols. OK. Madam Chairman, Senator, thank you again
for the question.
I will begin with a perspective of at least from AASHTO,
which, you know, all 50 states, plus Puerto Rico and D.C., and
the perspective, obviously a formula-based distribution where
the states have flexibility on the distribution of Federal
funds throughout the state, whether it is on the state system,
a city or county system of highways, and the multimodal aspect
of how those funds can be used.
A formula base provides an opportunity for long-range
planning. And that is utilizing our relationship with our more
urban areas through the metropolitan planning organization
processes and then in the rural areas with our regional
planning commissions on the transportation planning process,
that they can look out forward, just as we do on the state
system, on what are the transportation needs on the system,
whether it is on the state system or local system, that there
is a--and then a prioritization process, which is what we do in
Missouri through the formula funds that come through Missouri.
So there is a, I say, a competitive process, but it is a needs-
based process that we have in our state.
Now, the TIGER grant component of it--as the Under
Secretary will mention, Missouri has been, I will say,
moderately or modestly successful with the TIGER grant program.
And we work very hard inside that program to be able to capture
this grant system that is available for states and local
systems to use.
I will mention that the TIGER grant applications are one of
the few areas where we can take a multimodal approach, the
entire transportation system, to solve a transportation network
of problems in our state. And it has helped us in some areas on
some projects that we would not be able to use, necessarily,
our formula-based funds to do those projects.
So, with that, I will pass it to Under Secretary----
Mr. Rogoff. Well, thank you, Senator Wicker.
I would echo what Mr. Nichols said and also echo what you
observed, and that is that the demand for TIGER grants is
overwhelming compared to the availability of funding, which is
why in our GROW AMERICA Act we actually more than double
available funding for TIGER. And even then, we will not come
close to meeting demand.
And, importantly, as Mr. Nichols also pointed out, the
TIGER program has really allowed us to rifle-shoot some dollars
to some projects to get them in the ground quickly that are
innovative, that are multimodal, that gets dollars directly to
a local community, sometimes bypassing the state DOT, and also
to achieve sort of unique goals, whether it is ladders of
opportunity for people who have been disconnected or
communities that have been disconnected from the economy or
unique innovations. We would like to maintain that uniqueness
and that innovative aspect of TIGER.
Now, our increase in funding and your proposal need not
compete with one another. I think there is certainly room for
both. But I think there is value in a Federal program, where we
could disseminate best practices. And if Mississippi also wants
to mirror that with a competitive, innovative program that can
go to local communities, more the better.
Senator Wicker. Well, let me just say that the Wicker-
Booker proposal is really gaining a lot of speed among local
and county governments. They see it as a way to meet a need
that has not been answered in a number of years. And the
national organizations that represent these local governments,
they are collectively very excited about this.
So I hope we can work together. I hope we, because of the
needs, we can get a bigger pot of money out there for all of
us.
And I think, Madam Chair, we all support innovation and
best practices, but a lot of these things are--these are just
basically, you know, bridges that need to be replaced, roads
that aren't sufficient. And I don't know how modernistic we can
be about that. The roads and infrastructure are falling apart
in this country, and local governments don't have the money to
afford these.
So I will leave it at that.
I wonder if, since there are only two of us, Madam Chair,
if I could ask one----
Senator Fischer. Certainly.
Senator Wicker.--other line----
Mr. Rogoff. Could I just make one just very quick
observation, Senator? I don't want to use up your time.
Senator Wicker. Oh, it is already gone.
Mr. Rogoff. OK.
There are some things--you are right, there are times in
TIGER grants where we are replacing projects that might be
eligible for funding with other funding sources. But there are
others, especially in ports--we do not have a funded
alternative grant program for ports. And one of the grants we
made to Mississippi was to the Port of Pascagoula, and that
couldn't have been done through any other program that we have.
So there are some unique aspects for TIGER that really lend
itself toward not only continuation but expansion of the
Federal effort, as well.
Senator Wicker. Well, when you mention the critical need
for upgrading our ports and making us competitive
internationally, you get an ``amen'' from me on that.
Dr. Sweatman, let me just ask you about this V2X technology
and the testimony that you have about that. You mentioned the
smart corridor in Michigan, and I found this very interesting.
At what point will this be practical not only on the new
expressways but in getting vehicles on the secondary roads and
actually to people's businesses and homes? That is my question
about something this smart and something this interconnected.
Mr. Sweatman. That is a great question. Thank you very
much.
Clearly, this technology will be deployed in vehicles. It
also needs to be deployed to a certain level in the
infrastructure. So we can achieve quite a bit with vehicle-to-
vehicle communication, and, as I think we are aware, that kind
of platform will be provided in vehicles through regulatory
action in the future. But we do need to make sure that we have
the support in the infrastructure. And what we are doing in
Michigan is finding a business model where this makes sense.
So there is a lot of value to be gained by this kind of
communication, not only for safety but for many other aspects,
including saving energy and even transactions that can be
undertaken from the vehicle.
So, as we move forward, what we are interested in in
deploying this in Michigan is to create day-one value from this
V2X system. So we need consumers to be excited about it. We
have around 3,000 consumers in the City of Ann Arbor using this
technology right now and seeing a lot of benefit. So we are
expanding on that, so we are going to many thousands. But there
are other programs around the country, in California, in Texas,
in Virginia, and others, who are doing a similar program.
So we think these regional deployments are very important
to show the benefits, but we definitely do need not only the
technology in the vehicles but in the infrastructure. And we
believe that that business model will be apparent so that this
can be done. There will be an incentive for this deployment to
take place.
Senator Fischer. Thank you, Senator Wicker.
Senator Blumenthal?
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thank you, Madam Chair.
Thank you all for being here today on this very important
topic of safety, performance-based, prescriptive measures to
achieve it.
I think there has been some discussion of the goal of
reducing truck fatalities and injuries and crashes to help with
safety on our roads, and an important factor in reducing
crashes and fatalities is to help minimize fatigue in the
trucking industry through hours-of-service regulations, which
are prescriptive, not just performance-based.
Last year's appropriations bills stopped enforcement of two
important provisions of the hours-of-service rule until the
Department of Transportation completes a study which the
inspector general will review.
And my questions for Mr. Rogoff are: Number one, what is
the status of that study? And, number two, has the inspector
general reviewed your plan for the study?
Mr. Rogoff. The study is currently ongoing, Senator
Blumenthal. And, indeed, the inspector general has reviewed the
study and has reported out their findings to us. Based on our
briefing, they saw no problems with our methodology. I believe
they also will be briefing the Committee in short order, if
they have not already.
But we obviously thought the provision in last year's
appropriations bill was misguided, but we are following the
strictures of the law to make sure that we fulfill the
statutory responsibility to bring a fresh look to this
question.
Senator Blumenthal. I joined you in the view that the
provision was unfortunate, and ``misguided,'' I think, is
probably a good word for it. I am hoping that the department is
taking steps to ensure that the drivers who are selected for
the study are sufficiently representative or the sample
sufficiently accurate to produce results that are statistically
significant.
Mr. Rogoff. We are working hard to do so, as is the
contractor.
We do have a challenge, I should tell you, because the
number of drivers that are actually likely to be subject to the
restart requirements is a very small population. It is probably
no more than 15 percent of the drivers that are out there.
These are drivers that are driving more than 60 hours in 7 days
or more than 70 hours in 8 days. And in order to find a sample
where we could do an adequate comparison will be a challenge.
But our contractor is on it, and we are seeking to help
them. And we are getting help from trucking companies around
the country that are willing to participate.
Senator Blumenthal. How soon do you anticipate the study
will be done?
Mr. Rogoff. The goal is to get it done by the end of the
year. But, as with all of these things, we are going to get it
right before we get it out, so I wouldn't want to be pinned to
a timeframe. But please know our goal is to get it out before
the end of the year.
Senator Blumenthal. Well, thank you for your work on this
issue. And please thank Secretary Foxx for his attention to all
of the safety issues that I think are so important to the
confidence and trust of drivers but also riders of the rail,
where safety and reliability is a continuing challenge and
where, in my view, the Federal Railroad Administration must
issue rules and regulations that have been recommended by other
agencies, as you well know. And I am hopeful that those
regulations will be issued, because the law mandates they be
issued.
And we can debate prescription, performance. In some ways,
the semantics matter very little to the average American
passenger on our rails or driver or rider on our roads, because
the prescriptions--I don't know whether you would agree--for
mandated technologies like seatbelts and airbags and electronic
stability control, roof crush resistance, side-impact
protections, all are saving lives. Whether you want to call
them performance-based or prescriptions, safety demands that
the government intervene and mandate measures that will save
lives.
Mr. Rogoff. I think those are very good examples, Senator
Blumenthal, because it points up the fact that it is not
necessarily an either/or. We have what are sometimes called
parametric rules, which are kind of a combination of
prescription and performance.
You used the example of seatbelts and airbags and roof
crush standards. That is true, we have those more prescriptive
standards, but we also have just an overall crash-worthiness
standard or a rollover standard, something Dr. Graham worked on
when he was at OIRA, that is performance-based.
So it is a combination of--we have required three-point
seatbelts for decades, but we still leave to the automobile
manufacturer the choice of how they want to design their
vehicle to meet the crash-worthiness standard.
Senator Blumenthal. Thank you.
My time has expired, but I want to thank every one of you
for your being here today and for the excellent work that you
are doing on this cause.
Thank you, Madam Chair.
Senator Fischer. Thank you, Senator Blumenthal.
Senator Klobuchar?
STATEMENT OF HON. AMY KLOBUCHAR,
U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Thank you so much, Madam Chair.
Thank you to all of you for being here.
I guess I will start with you, Mr. Rogoff, who has come to
our state many times. Thank you. And I know you have been to
our metropolitan area for some really good projects that the
department has helped fund.
I want to just ask you a little bit about another part of
our state; it is the rural area. About 27 percent of people in
our state live in rural areas, but almost 70 percent of the
motor vehicle deaths occur in rural areas.
And that is why I have a bill with Senator Sessions to have
the department study high-risk rural road best practices. It
was included in MAP-21. And the report identified challenges
that local governments face when planning for and implementing
strategies to improve safety on rural roads.
Mr. Rogoff, as we look to build on this report, what are
your thoughts on what we should be doing to make rural roads
safer?
Mr. Rogoff. Well, thank you for the question, Senator.
We actually have an initiative and are very focused on just
that point, because those figures in Minnesota are mirrored in
other states across the country, namely that some of the
highest-risk roads are the least traveled but they are also
sometimes the least attended to when it comes to engineering
safety improvements.
Mr. Nichols in Missouri lives this and breathes this every
day.
Senator Klobuchar. I saw him nodding his head in a very
nice, Midwestern----
Mr. Rogoff. And we actually, in our GROW AMERICA Act, quite
deliberately boost funding specifically to states to tackle
that rural road problem.
Certainly, even at the increased funding levels in our
bill, it is not enough to complete the problem. Some of the
issues are in the area of technical assistance because, as was
pointed out earlier by Senator McCaskill, some of these most
dangerous roads are county roads. But that doesn't make them
any less fatal or any less of a concern to all of us.
Senator Klobuchar. Exactly.
Mr. Rogoff. So we need to kind of pierce through that and
make sure they are attended to.
Senator Klobuchar. Then the other thing I have been working
on, which is a rural issue, also a metro issue, but that is the
distracted-driving issue, something that Secretary LaHood made
a priority and I know that Secretary Foxx has continued.
And right now, the way this works, too few states are
receiving the funding. In 2014, and this is our grant programs,
only one state received the funding, the state of Connecticut.
Mr. Rogoff. That is right.
Senator Klobuchar. They are smaller than our states,
geographically; that is all I will say. And we think it is
important that we be able to have those funds go out, as we are
seeing these extraordinary number of deaths from distracted
driving.
And Senator Hoeven and I have introduced a bill which would
make it easier for some of the grant funding, and I am hoping
that we can include that. And I know the agency can't do
anything about it until we include that change. But I am really
making a pitch here that we put that in the transportation
bill. And I am hoping Senator Thune and Senator Nelson, staff
here, will listen, as well as Senator Fischer, so we can get
that done. And just a point there.
Mr. Rogoff. Well, we applaud your effort.
We actually have in the GROW AMERICA Act and will again
when we submit it shortly a provision to try to free up those
dollars and put them to work in a broader number of states. We
sort of establish a two-tier system, where part of that money
will go to the states that have made adequate progress to date,
while still leaving funding for an incentive for states to do
even more.
Senator Klobuchar. Very good.
Mr. Rogoff. But you are right, the challenge of it only
going to one state resulted from the new requirements that were
put into MAP-21, and it did freeze up a lot of money, such that
only one state qualified.
Senator Klobuchar. Yes. We will just not tell Senator
Blumenthal that we are bitching a little bit.
Mr. Rogoff. Oh, you know. He is not in the room.
Senator Klobuchar. Exactly. Well, I am sure they will still
qualify, because we want to extend it.
I wanted to last ask you about the Recreational Trails
Program. I worked hard with several of my colleagues to ensure
that the Recreational Trails Program was preserved in MAP-21.
As you know, it is the foundation for state trail systems
across the country. It provides support to states to construct
and maintain thousands of miles of trails for both non-
motorized and motorized users. And it is actually a nice
coalition of both bicycle, cross-country skiers, people who
have ATVs and all kinds of motorized vehicles as well,
snowmobiles.
So I want to get your thoughts on the RTP program and its
importance to trail users. Obviously, that is something else we
are going to be working on in the transportation bill.
Mr. Rogoff. We do support the extension of the Rec Trails
Program. And, importantly, we also have sought additional funds
in our TIGER program, through which we have funded a great many
trails.
Trail use continues to rise.
Senator Klobuchar. Yes.
Mr. Rogoff. Demand continues to rise. And this is not an
area where--I think it used to be highly controversial in----
Senator Klobuchar. Yes. I remember those days.
Mr. Rogoff. And I think, hopefully, we are turning a corner
there, where states are seeing the benefit for the mobility of
all their community members.
Senator Klobuchar. Right. And I also think that the groups
have found a way to work together on this----
Mr. Rogoff. That is right.
Senator Klobuchar.--Federal program that has been really
helpful to show that all people can use--motorized, non-
motorized--different kinds of trails for different reasons. And
they have been advocating together, and I think that has made a
big difference, as well.
Mr. Rogoff. Well, if we are going to get reauthorization,
we are going to need every community behind getting something
done.
Senator Klobuchar. Right.
All right. Thank you very much.
Thank you, all of you.
Senator Fischer. Thank you, Senator Klobuchar.
I am going to ask another round of questions to give any of
my colleagues that are trying to get to this hearing an
opportunity to do so within the next 5 minutes.
So I would begin with Dr. Graham.
In your testimony, you mentioned that prescriptive
regulations encourage rent-seeking activities. Can you
elaborate on those comments and explain how the performance
targets alleviate that rent seeking? And, also, if we alleviate
the rent seeking, does it encourage some innovation, as well?
Mr. Graham. Yes, it does. It is a good question, Senator
Fischer.
A performance standard is typically specified in numeric
terms that are objective so that if anybody has a technology
that they can demonstrate meets that standard they have an
equivalent opportunity to make that case.
The difference with the prescriptive standard is you have a
tendency to want to pick one of those and then write it into
the regulation. So the lobbyists who are behind that, you know,
they are trying to persuade that regulator to mandate their
technology. And that is a temptation that exists with
prescriptive standards that is lessened with performance
standards.
Senator Fischer. And in your experience as an
administrator, what are some of the elements of the performance
standards that you incorporate into the regulatory approach,
particularly for transportation regulations? And where can we
improve on those performance targets, to be able to incorporate
those into regulations?
Mr. Graham. Well, let's talk first about existing
regulations. Ideally, I would like to live in a world where all
of these existing prescriptive standards would be rewritten as
performance standards, but that is not going to happen in our
lifetimes because there are lots of those regulations out
there. So you need kind of a simpler, more general fix.
And that is what I had proposed with this idea of just--
Congress could just lay out an equivalency clause that applies
to all these existing rules, and then it allows a regulated
company to propose an alternative compliance path. So you don't
have to rewrite all the prescriptive standards; you just allow
them to make that proposal. But the condition is they have to
be able to demonstrate that they can achieve equivalent safety
to what the current prescriptive standard provides.
You are reminding me that I wanted to make a comment on the
little analogy that was made with airbags and seatbelts about
prescriptive standards. Not all airbags are equally effective,
so you would like to have some performance requirements on
airbags.
And, in fact, we have those. The performance standard that
the Federal Government adopts for crash-worthiness protection
is a numeric standard that measures deceleration of the head in
a crash. And airbag systems have to meet that performance
standard.
So even when people refer to specific technologies, safety
technologies, and say these are good things, a lot of them are
there because there are performance requirements on those
technologies.
Senator Fischer. Thank you.
And how would you go about--if you change it and allow
companies to use performance-based, which then they have to
meet certain guidelines along that, be able to prove that, how
would you have the DOT respond? And would you put a time limit
on the DOT to respond to companies that are trying to move into
the arena of performance-based?
Mr. Graham. I think you have to look at the history of the
particular agency on how well they are able to meet their
timeframes currently. And if you have an agency that has a
pattern of not meeting those timeframes, then I would, yes, be
inclined to do that. But I think if the agency has a good track
record of meeting prompt activity, then I don't even think you
necessarily have to put in the statute the timeframe.
But we have to keep in mind that the burden of analysis and
work to develop these alternative compliance schemes and to
demonstrate equivalent safety, that burden would be on the
companies. So they have a lot more work to do in this regard
than the regulator does.
Senator Fischer. OK. Thank you.
And, Mr. Nichols, if I could finish with you, in the
written statement that you provided, you noted that fatalities
on the Missouri highways and roads have decreased from 1,257 in
2005 to 766 in 2014.
Can you explain how performance-based measures within your
department have contributed to those safety improvements that
you have seen over the past 10 years? And I would like to
congratulate you on those numbers.
Mr. Nichols. Thank you, Madam Chairman.
It begins with, first of all, identifying that that is an
area, obviously, that we are going to--as we go through an
enterprise risk management system, safety is really low-hanging
fruit. And what we identified, again, is that that is an area
where we are going as a state to take a systems approach as
opposed to a high-crash-location approach, which historically
state DOTs and traffic engineers have done for many, many
years.
You look at an intersection that has lots and lots of
crashes at it but very low serious injury and low fatalities,
yet on--and we were just talking about rural roads. And, again,
both of our states have many, many miles of those. And we were
looking at, where can we make an investment of the dollars that
we have that will make a difference on the system, that will
reduce fatalities and disabling injuries?
And we began with an approach of looking at the roads that
carry the most traffic. In Missouri, which, again, is a
microcosm of many, many states, about 80 percent of our traffic
drives on 20 percent of our roads--the 80-20 rule. Again, many
states fall in that. And what we said is, are we doing
everything we can do, with the limited resources we have, to
reduce and eliminate the types of fatalities that are occurring
on these types of roads?
For example, on our interstate systems where we do not have
a protected median, where we have a grass median, which much of
the rural interstate has, we saw that we were having an
alarming rate of fatalities with crossover-median fatalities.
And we went in and put in guard cable. And there was a lot of
debate about whether guard cable, at that time, was an
effective tool and product to eliminate fatalities. Well, I can
tell you that it has been a wonderful product that has--hasn't
completely eliminated, but it has reduced crossover fatalities
on our interstate systems tremendously.
The other areas are--it is lane departures issues, like
putting what we call a rumble stripe, thing like that. It is an
annoying product, but it is on the edge of the road, and you
drive over to the edge and it alerts you. And it is that
distracted-driving component.
Without having the issues associated with the autonomous
vehicle components in right now, it allows us to do some things
on the existing corridors that take care of those specific
system of roads that has reduced fatalities. And there are a
couple of examples there.
The challenge that we have, we are not making much progress
now. And, as I said, we are at 766 fatalities last year in our
state, and that number is hovering at about that level. Our
challenge is it is going to that 80 percent of the roads that
carry 20 percent of the traffic where we need to put similar-
type features--shoulders on rural two-lane roads, more
guardrail and guard cable on rural two-lane roads--and do
things like that, widen the roads out. And those are the kind
of things that we know systematically we need to do; the issue
is we don't have the revenue to do that.
Senator Fischer. How wide are your shoulders? Are they
AASHTO standards, or do you have stricter standards in
Missouri?
Mr. Nichols. No, they are AASHTO standards, ma'am.
Senator Fischer. OK. Thank you.
Thank you all, gentlemen. I appreciate you being here
today. It has been a very informative hearing.
The hearing record will remain open for 2 weeks. During
this time, Senators are asked to submit any questions for the
record, and, upon receipt, the witnesses are requested to
submit their written answers to the Committee as soon as
possible.
Thank you again. I appreciate all your information.
We are adjourned.
[Whereupon, at 11:24 a.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. John Thune to
Hon. Peter M. Rogoff
Question 1. To what extent does current statute require the
Department of Transportation to mandate prescriptive standards when the
Department would otherwise find merit in issuing equivalent performance
standards? Across the Department, are there any cases in which an
equivalency clause would produce a beneficial outcome?
Answer. Equivalency approaches authorize an agency to adopt
alternative compliance mechanisms for a regulated entity, if the entity
shows that equivalent safety protection would be accomplished by the
alternative approach. The Department has found that use of alternate
means of meeting standards is sometimes useful. Such a clause can be
included as a provision of regulatory text, unless such a clause is
specifically barred by statute. However, where statutes prescribe a
design standard, agencies can authorize approaches that maintain an
equivalent level of safety only where Congress has explicitly
authorized such an approach in the statute. The Department has seen the
benefits of equivalency approaches in the Federal Railroad
Administration's regulations for braking technology and the National
Highway Traffic Safety Administration's theft reduction measures.
Some DOT regulations allow regulated entities to submit petitions
to operate outside the regulations. The Pipeline and Hazardous
Materials Administration (PHMSA) special permits process sets forth a
process to authorize alternative requirements, or variances, to the
requirements in the Hazardous Materials Regulations (HMR). The PHMSA is
authorized in statute to issue such variances in a way that achieves a
safety level that is at least equal to the safety level required under
Federal hazmat law or is consistent with the public interest if a
required safety level does not exist. The PHMSA also uses approvals, or
written consent, from a designated official to perform a function that
requires prior consent under the HMR.
The Department also uses performance-based safety approaches to
achieve safety outcomes, and industry has shown progress in voluntarily
implementing performance-based safety standards. For example, the
Federal Aviation Administration (FAA) has used performance as the basis
of analysis, and improvements have resulted in the near-elimination of
fatalities in our commercial aviation fleet. Performance testing has
resulted in dozens of specific safety enhancements in our automobile
fleet, saving thousands of lives.
Question 2. If Congress were to consider an equivalency clause--
perhaps in limited instances--as part of the surface transportation
reauthorization bill, or any other transportation bill, what do you
view as the primary advantages and disadvantages? What potential
challenges would arise from implementation?
Answer. As noted above, alternative compliance mechanisms can be
included in regulation unless explicitly prohibited by statute. If
Congress is prescriptive in its statutory language, a provision in
statute that also allows the agency to evaluate alternative methods of
compliance from the public could be useful.
The advantage of an equivalency approach is flexibility. Such an
approach would allow for innovation and allow for more rapid adoption
of compliance methods as new technologies emerge.
Performance-based approaches that specify performance outcomes may
also have advantages. Such an approach provides flexibility to the
regulated entity to achieve the performance outcome in the most
effective, efficient, and cost-effective way. For example, FAA has
adopted equipage standards and safety management systems that use a
performance basis to achieve outcomes. A performance approach may
promote innovation because only a final outcome is mandated, rather
than a specific design, practice, or technological solution.
Performance standards can also more easily be tailored to local
circumstances.
However, a prescriptive approach may be appropriate in some
instances. For example, industry and consumers can more easily
understand and comply with a specific standard, especially small
entities that may find compliance with an explicit standard to be less
complex and more affordable. Additionally, a specific standard may be
more easily enforced compared to a performance standard.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Hon. Peter M. Rogoff
Question 1. A critical component of any performance-based system is
data collection. I've been troubled in recent months as I've found DOT
lacks data on several issues. For example, after a tragedy involving a
rental truck in Connecticut in 2011 that killed a college student, I
had language put in the most recent surface transportation bill, MAP-
21, that required a study of rental truck safety. DOT returned that
study to me in July 2014 and informed me there just isn't enough data
out there to know whether rental trucks are safer than other rental
vehicles or more dangerous. Likewise, I've sought information about
guardrail end terminals on our Nation's roads and highways. I've been
told that there just isn't enough data, that there are insufficient
guidelines for data collection, and that databases are incomprehensive.
And so I'm now demanding that DOT undertake a real analysis of the
devices on our roads and gather this data. I'm alarmed we don't have
that data already. What efforts is DOT taking to ensure we have better
data collection efforts?
Answer. The Department strongly believes in the effectiveness of
performance-based safety approaches. An essential component of
performance-based safety oversight is the ability to base decisions on
objective and accurate data. As such, the DOT Operating Administrations
responsible for safety oversight have implemented data collection
systems and have continuously sought to expand and improve upon these
systems.
However, DOT is also frustrated by the lack of data in certain
areas. In many instances, DOT is dependent upon users, states, and
private industry to supply accurate safety data. All performance-based
safety regulations must carefully consider the costs associated with
implementing enhanced data collection and reporting requirements.
With respect to rental truck safety data, the Federal Motor Carrier
Safety Administration (FMCSA) maintains the Motor Carrier Management
Information Systems (MCMIS) database which contains information on
those large truck crashes which are required to be reported to the
Agency. The FMCSA relies on our State partners to report these crash
data. The reported crash data contains essential, but limited,
information about each incident. A detailed description of the data
available to FMCSA for the analysis of rental truck safety performance
was provided in the March 2014 report to Congress titled ``The Rental
Truck Safety Study Report to Congress.''
In addition, FMCSA has implemented other data systems to monitor
safety. The Compliance, Safety, Accountability (CSA) initiative helps
improve truck safety by collecting carrier data and targeting companies
for intervention based on that data. Since implementation in 2010, the
Safety Measurement System (SMS) has been enhanced several times. 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.
The FMCSA will also be providing notice and seeking comments on
proposed enhancements to the Agency's SMS methodology. 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. The Agency is
considering several changes in this notice and is asking for comment on
these issues and other possible areas for consideration. This set of
enhancements would include changes to some of the SMS Intervention
Thresholds to better reflect the Behavior Analysis and Safety
Improvement Categories' (BASICs) correlation to crash risk, other
changes to the Hazardous Materials (HM) Compliance BASIC, reclassifying
violations for operating while out-of-service (OOS) to the Unsafe
Driving BASIC, and adjustments to the Utilization Factor (UF). The
FMCSA will provide a preview of the proposed enhancements allowing
motor carriers to see their own data, enforcement to see the data, and
an opportunity for all to comment prior to implementation.
With respect to guard rails, the Federal Highway Administration
(FHWA), through its Roadway Safety Data Program, provides guidance,
technical assistance, and informational resources to encourage and
assist State and local agencies to improve the roadway inventory
component of their safety data systems. The FHWA developed the Model
Inventory of Roadway Elements (MIRE) which provides guidance on data
elements that should be considered for collection on all public roads.
Also, FHWA developed an informational guide on how to collect those
data, how to manage and assure the quality of data, and how to
structure information systems containing those data. The FHWA provides
technical assistance, including a Roadway Data Improvement Program that
assists States in a thorough review of their roadway inventory data
collection, management, and analysis efforts and provides
recommendations on how to review their data systems. Information
pertaining to roadway safety hardware is an important component of a
roadway inventory data system, and these are some of the ways we are
working with state partners to make it better.
Additionally, the National Academies' National Research Council has
convened a committee to look at the in-service performance of guardrail
end terminals. The committee will conduct exploratory work to look at
whether the data is available in sufficient quantity and quality to
allow for a meaningful study. Based on the results from the exploratory
work, the Committee will identify appropriate next steps for either
gathering data or advising states how best to conduct in-service
evaluations of guardrail end treatments.
Finally, DOT and FHWA have evaluated FHWA's internal process for
determining whether roadside safety hardware is eligible for Federal-
aid reimbursement. This evaluation has identified several changes that
will be made in the near term. Additionally, we are engaging Volpe
National Transportation Systems Center to conduct an independent review
of the entire process by which roadside safety hardware is developed
and evaluated.
Question 2. While performance-based safety systems may be
interesting to discuss, at the end of the day, we still need rules. The
Rail Safety Improvement Act of 2008 required FRA to issue regulations
ensuring that each passenger railroad (like Amtrak), commuter railroad
(like Metro-North), Class I railroad, and any railroad ``that has
inadequate safety performance (as determined by the secretary)''
develop and implement a risk reduction program that ``systematically
evaluates railroad safety risks on its system and manages those risks
in order to reduce the numbers and rates of railroad accidents,
incidents, injuries, and fatalities.''
This would be a performance-based rule in many respects--and it
ultimately should address many aspects of fatigue, a critical issue
made apparent by crashes on Metro-North in recent years. The 2008 rail
safety bill mandated that these regulations be issued by October 2012.
FRA has clearly missed the deadline by almost 2.5 years. The
legislation left open the opportunity for FRA to issue regulations in
several pieces. FRA has thus broken the mandate into several
components: FRA issued an NPRM governing risk mitigation and technology
for passenger and commuter railroads in September 2012, but the agency
has yet to issue a final rule. FRA issued an NPRM regarding risk
mitigation and technology implementation for Class I railroads just
weeks ago in February 2015--and is likely years away from issuing a
final rule. FRA is likely even many more years away from issuing a rule
on fatigue management as to either passenger and commuter railroads or
freight railroads. What is behind the backlog and delay in putting
forward the risk reduction rulemakings?
Answer. The Federal Railroad Administration (FRA) continues to work
aggressively to complete its regulatory workload, placing a priority on
rulemakings that will most effectively advance safety, particularly
those required by Congressional mandate.
In the rulemaking process, FRA has to strike a balance between
speed and quality. ``Quality'' includes adherence to demanding
procedural and substantive legal requirements. All three branches of
the Federal Government--Congress, the courts, and the Executive
Branch--have established certain mandatory procedures and substantive
requirements for the rulemaking process. With few exceptions, before
FRA is permitted to issue a final rule, there must be public notice of
the proposal and an opportunity for public comment; a reasonable
response to any public comments; an articulated, rational basis for the
rule; and consistency of the rule with any applicable laws. In
addition, FRA must identify, analyze, and weigh the costs and benefits
of proposed rules and final rules. This evaluation can be very complex,
but provides critical information to decision makers, reviewers, and
the public.
Additionally, FRA often utilizes the Railroad Safety Advisory
Committee (RSAC) process, especially for difficult issues. This process
ensures the highest level of transparency and provides the highest
level of public input. A chartered advisory committee under the Federal
Advisory Committee Act, RSAC includes representatives of stakeholders
throughout the railroad industry (rail labor, rail management, rail
suppliers, rail passengers, State rail safety programs, and other
organizations). This ensures that FRA hears a wide range of opinions
early in the rulemaking process so proposals are appropriately vetted
early, clarified, and communicated. The RSAC process saves time--
especially at the end of the process--by making the cost-benefit
analysis more accurate, minimizing petitions for reconsideration, and
creating a rule the regulated community understands.
The FRA has utilized its limited resources to advance and address
the safety needs of the country in as expeditious a manner as possible.
Importantly, the complex nature of the administrative review process
for rulemaking documents means that widening one part of the pipeline
(e.g., by adding resources) is not enough to expedite issuance of a
rule if the rest of the pipeline remains narrow; the delay simply
occurs at a different stage of the process.
______
Response to Written Questions Submitted by Hon. John Thune to
John D. Graham, Ph.D.
Question 1. Equivalency Clause. During the hearing, you suggested
that all prescriptive standards should be amended to permit performance
standards achieving at least an equivalent level of safety. For
instances in which regulatory agencies cannot imagine a performance
standard, you suggested establish processes by which to receive and
evaluate evidence and ideas submitted by regulated entities. Within
current statute, what is the strongest example of an equivalency
clause? How might Congress design such a clause for transportation
safety?
Answer. I have not studied all of the equivalency clauses now in
statute and thus could not pinpoint the strongest one. For a useful
illustration of the issues, consider the equivalency clause in the
National Fire Protection Association standards. A good discussion is
provided by Charles Fialkowski, How to Invoke the Equivalency Clause in
NFPA Standards. August 9, 2013, https://blogs.siemens.com/burnerman
agementsystems/stories/1266/.
Question 2. In your experience, which agencies have the best
processes for considering regulatory proposals and associated evidence
from regulated entities? What makes those processes effective?
Answer. I would say the U.S. Food and Drug Administration has the
best developed system for evaluating the evidence and regulatory
proposals made by regulated businesses (typically pharmaceutical
manufacturers and medical device firms). There are several factors that
contribute to the success of FDA's evidence-based regulatory process:
the industry's sustain investments in regulatory science, including
contributions to academic programs that train personnel that can be
hired by regulators, industry and consulting firms; the agency's
scientific culture and commitment to third party peer review of the
agency's key scientific assumptions/determinations; and the agency's
knowledge that the industry can pursue litigation against the agency if
the agency does not make a decision based on the best available
evidence.
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