[Senate Hearing 108-972]
[From the U.S. Government Publishing Office]
S. Hrg. 108-972
REAUTHORIZATION OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
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HEARING
before the
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
JUNE 10, 2003
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
U.S. GOVERNMENT PRINTING OFFICE
86-220 WASHINGTON : 2013
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ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
JOHN McCAIN, Arizona, Chairman
TED STEVENS, Alaska ERNEST F. HOLLINGS, South
CONRAD BURNS, Montana Carolina, Ranking
TRENT LOTT, Mississippi DANIEL K. INOUYE, Hawaii
KAY BAILEY HUTCHISON, Texas JOHN D. ROCKEFELLER IV, West
OLYMPIA J. SNOWE, Maine Virginia
SAM BROWNBACK, Kansas JOHN F. KERRY, Massachusetts
GORDON H. SMITH, Oregon JOHN B. BREAUX, Louisiana
PETER G. FITZGERALD, Illinois BYRON L. DORGAN, North Dakota
JOHN ENSIGN, Nevada RON WYDEN, Oregon
GEORGE ALLEN, Virginia BARBARA BOXER, California
JOHN E. SUNUNU, New Hampshire BILL NELSON, Florida
MARIA CANTWELL, Washington
FRANK R. LAUTENBERG, New Jersey
Jeanne Bumpus, Republican Staff Director and General Counsel
Robert W. Chamberlin, Republican Chief Counsel
Kevin D. Kayes, Democratic Staff Director and Chief Counsel
Gregg Elias, Democratic General Counsel
C O N T E N T S
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Page
Hearing held on June 10, 2003.................................... 1
Statement of Senator Breaux...................................... 12
Statement of Senator Brownback................................... 18
Prepared statement........................................... 18
Statement of Senator Lautenberg.................................. 16
Statement of Senator Smith....................................... 95
Statement of Senator Sununu...................................... 1
Witnesses
Byrd, LaMont, Director, Safety and Health, International
Brotherhood of Teamsters....................................... 40
Prepared statement........................................... 42
Claybrook, Joan B., President, Public Citizen.................... 48
Prepared statement........................................... 51
Duncan, Douglas G., President and CEO, FedEx Freight on behalf of
the American Trucking Associations, Inc. (ATA)................. 23
Prepared statement........................................... 25
Harrison, Joseph M., President, American Moving and Storage
Association (AMSA)............................................. 78
Prepared statement........................................... 80
Hurst, Peter, President, Commercial Vehicle Safety Alliance;
accompanied by Lieutenant Paul Sullivan, Massachusetts State
Police......................................................... 70
Prepared statement........................................... 72
Sandberg, Hon. Annette M., Acting Administrator, Federal Motor
Carrier Safety Administration.................................. 2
Prepared statement........................................... 4
Appendix
Letter dated June 9, 2003 to Hon. John McCain from Hours of
Service Coalition.............................................. 107
Letter dated May 27, 2003 to Annette M. Sandberg, Acting
Administrator, Federal Motor Carrier Safety Administration from
Hours of Service Coalition..................................... 107
Written questions submitted by Hon. John B. Breaux to:
Hon. Annette M. Sandberg..................................... 109
Douglas G. Duncan, LaMont Byrd, Joan B. Claybrook, Peter
Hurst and Joseph M. Harrison............................... 112
Written questions submitted by Hon. Ernest F. Hollings to Hon.
Annette M. Sandberg............................................ 111
REAUTHORIZATION OF THE FEDERAL MOTOR CARRIER SAFETY ADMINISTRATION
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TUESDAY, JUNE 10, 2003
U.S. Senate,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m. in room
SR-253, Russell Senate Office Building, Hon. John E. Sununu,
presiding.
OPENING STATEMENT OF HON. JOHN E. SUNUNU,
U.S. SENATOR FROM NEW HAMPSHIRE
Senator Sununu. Good morning. On behalf of Committee
Chairman John McCain, I'm pleased to call to order today's
hearing on motor carrier safety and welcome our witnesses,
beginning with Annette Sandberg. We meet today to consider what
has been accomplished with respect to truck and bus safety
since the Federal Motor Carrier Safety Administration was
created in 1999 and to hear the recommendations of the
Administration, the trucking industry, and safety advocates for
the future of the program.
FMCSA has set a goal of reducing the rate of fatalities in
truck crashes to 1.65 fatalities per hundred million miles of
truck travel by 2008. This goal represents a 30 percent
improvement over the fatality rate in 2001 and obviously will
require a strong commitment on the part of FMCSA, the states,
as well as industry.
A major element of the Federal Government's safety effort
is the Motor Carrier Safety Assistance Program, a state program
to fund officers who perform equipment inspections, enforce
traffic regulations, and conduct compliance reviews of carriers
with poor safety records. FMCSA and the states also administer
the Commercial Driver's License Program, which was established
to prevent truck drivers from obtaining more than one license
in order to hide bad driving records. Additionally, FMCSA is in
the process of implementing a New Entrants Program, a very
important program mandated by the Motor Carrier Safety
Improvement Act of 1999 and aimed at educating new,
inexperienced trucking companies about safety requirements.
Since FMCSA was established, truck safety has been trending
in the right direction. That is, indeed, good news. In 2002,
the number of fatalities and accidents involving large trucks
declined 3.5 percent, to approximately 4,900 fatalities, while
highway fatalities overall for all vehicles increased slightly
compared to 2001.
I hope the witnesses will comment on whether current
initiatives will be sufficient to continue to lower the
fatality rate in crashes involving large trucks in order to
achieve the 30 percent goal of reducing fatalities over the
next 5 years or whether or not we need to adjust those
priorities.
The Committee will also hear testimony this morning about
consumer fraud in the household goods moving industry. FMCSA,
while primarily a safety agency, is also responsible for
enforcing Federal regulations that apply to interstate movers.
Complaints have been growing about rogue movers, who hold goods
hostage and demand payments many times higher than the
estimates originally provided to the customer. Consumers need
protection against such fraudulent acts.
The Motor Carrier Safety Program is scheduled to expire on
September 30, 2003. It's anticipated that both FMCSA and the
National Highway Traffic Safety Administration Programs will be
reauthorized as part of comprehensive legislation to
reauthorize the Transportation Equity Act for the 21st century,
lovingly known here on Capitol Hill here as TEA-21. It's the
intent of the Committee to mark up and report legislation to
reauthorize the Federal Motor Carrier Safety Administration and
National Highway Traffic Safety Programs as soon as next week.
It's our goal to be fully prepared for the floor action during
Senate debate on TEA-21, which is expected to take place later
this summer.
Again, thank you to all of our witnesses. And we begin with
the Honorable Annette Sandberg, who is the Acting Administrator
for FMCSA. Welcome, Ms. Sandberg, and we're pleased to take
your testimony.
STATEMENT OF HON. ANNETTE M. SANDBERG,
ACTING ADMINISTRATOR, FEDERAL MOTOR CARRIER
SAFETY ADMINISTRATION
Ms. Sandberg. Thank you, sir. Chairman Sununu, it is my
pleasure to appear before you today to discuss the Motor
Carrier Safety reauthorization.
When Secretary Mineta testified before you in May, he
highlighted highway safety as the centerpiece of SAFETEA. The
Federal Motor Carrier Safety Administration is committed to
working with you to reduce fatalities on our nation's highways.
With your help, we will make important changes to reduce
unnecessary loss of life.
Due in large part to your efforts, fatalities involving
large trucks have declined 4 years in a row, even as travel
increased. This is significant progress, but much remains to be
done.
I commit to build on this success by bringing greater
efficiency to the Federal Motor Carrier Safety Administration
programs. To enhance our existing programs, the Motor Carrier
Safety Assistance Program, the Commercial Driver's License
Program, border and performance registration and information
system management, we envision them separately funded, totaling
$1.4 billion over the reauthorization.
TEA-21 restructured the MCSAP program to promote
performance-based activities, providing flexibility to state
grantees to invest in areas of the greatest crash reduction.
Reauthorization would expand motor carriers' relationship with
our state partners into new areas of compliance, allowing us to
amend traffic enforcement, improve performance incentive
funding, and fund new-entrant reviews.
The New Entrant Program will improve safety by requiring
new motor carriers to undergo safety audits within their first
18 months of operation. Numbering almost 50,000 annually, these
new entrants pose a real risk to commercial motor vehicle
safety. Forty-six states will work with us to conduct these
audits, a partnership that will yield significant results.
In the area of commercial driver's license, accurate and
complete drivers' history records are a key to enhanced safety.
The CDL grants under this program will allow states to enhance
technology and upgrade recordkeeping systems and increase our
ability to identify problem drivers.
The Performance Registration Information Management System
Grants links safety fitness to vehicle registration at the
State level, and identifies high-risk carriers based on their
over-the-road performance, and actively monitors their safety
performance. Under this program, carrier identification is made
at the time of vehicle registration. Currently, just 25 states
participate. As more states become fully operational and
suspend vehicle registration in conjunction with Federal out-
of-service orders, fewer vehicles associated with high-risk
carriers will operate on the road.
Border safety remains a priority. And currently it is
funded by the MCSAP program. We propose to create a separate
grant program to address current and future needs. Congress
required that the Department of Transportation Inspector
General verify, to his satisfaction, all the statutory
conditions prior to opening the border. The Motor Carrier
Safety Administration has met these requirements. Currently,
the border remains closed due to a ruling by the Ninth Circuit
Court of Appeals. The Administration is considering
appropriation action. Meanwhile, our agency is ready to ensure
border operation safety and will be ready whenever the border
opens.
Another important aspect of our reauthorization proposal is
the creation of a standing medical review board to provide the
agency with expert medical advice on driver qualification
standards and guidelines, medical examiner education, and
research, enhancing our ability to adapt and update our
regulations. Establishment of a medical registry would respond
to the NTSB, which issued eight safety recommendations in
September 2001. These recommendations asked that the Federal
Motor Carrier Safety Administration establish comprehensive
standards for qualifying medical providers and conducting
qualification exams.
As enforcement is the centerpiece of motor carrier safety,
I would like to emphasize improvements in the household goods
enforcement. I know that the Chairman and Members of this
Committee have noticed the increase in consumer complaints
about household goods carriers. Our proposal establishes more
visible enforcement through increased investigations and
expanded outreach. Our efforts seek to increase consumer
awareness, helping them to make better informed decisions when
moving across state lines. Additionally, we seek authority for
state attorneys general to enforce Federal household goods
regulations against interstate carriers. We believe this
authority will help reduce these abusive practices.
This reauthorization represents the first opportunity for
our new agency to step forward and stand on its own and chart
our course. With your help, we can continue to improve highway
safety for motor freight and passenger carriers and all highway
travelers.
Thank you for this opportunity to testify on the Federal
Motor Carrier Safety Administration's proposal to achieve this
goal, and I would be happy to answer any questions that you may
have.
[The prepared statement of Ms. Sandberg follows:]
Prepared Statement of Hon. Annette M. Sandberg, Acting Administrator,
Federal Motor Carrier Safety Administration
Chairman McCain, Senator Hollings, and Senators of the Committee.
It is my pleasure to appear before you today as this Committee
considers reauthorization of the motor carrier safety program.
When Secretary of Transportation Norman Mineta appeared before this
Committee in May to present the President's reauthorization proposal,
he outlined the centerpiece of the Administration's bill--highway
safety. We have worked closely in the Department, joining NHTSA and
FHWA, to develop our safety proposals. Our collaboration with the other
safety agencies is essential because highway safety has many facets and
no single solution. If we are to stem the tide of this terrible loss of
life on our Nation's highways we all must play a role, combine our
knowledge and expertise, and coordinate our program delivery. My
colleagues and I share the belief that our programs are complementary
rather than competing. We are committed to working together with this
Committee to reduce fatalities on our Nation's highways. With your
help, we will make much needed changes over this decade to reduce this
senseless loss of life.
This Committee demonstrated great leadership in the passage and
enactment of the Transportation Efficiency Act for the 21st Century
(TEA-21) and the Motor Carrier Safety Improvement Act of 1999 (MCSIA).
The changes you crafted in these Acts have reduced fatalities in
crashes involving trucks four years in a row, even as travel increased.
This is clear and unequivocal progress, and justifies the confidence of
your Committee in the impact that FMCSA would have on commercial motor
vehicle safety. FMCSA has taken your direction and acted upon it.
Despite this progress, much remains to be done. I commit to build on
this success and to improve commercial motor vehicle safety by bringing
greater efficiency and effectiveness to FMCSA's programs.
Enhancing Our Safety Grant Programs
Overall, TEA-21 and MCSIA provided a solid foundation for our
traditional motor carrier safety grant programs--Motor Carrier Safety
Assistance Program (MCSAP), Commercial Drivers' License Program (CDL),
Border, and the Performance Registration Information System Management
(PRISM). In TEA-21, CDL and PRISM were funded from Information System
funds, while Border was a set-aside from MCSAP. We envision these four
programs as separate grant programs totaling $1.4 billion over the six-
year authorization.
Motor Carrier Safety Assistance Program Grants
TEA-21 eliminated most earmarks from MCSAP and restructured it to
promote performance-based activities. This change provided the needed
flexibility to State grantees to allow them to invest in areas of the
greatest crash reduction based on their own circumstances. Our State
partners conduct roadside inspections, perform compliance reviews, and
enforce traffic laws on commercial operations. Reauthorization would
continue to support this vital partnership and expand our relationship
with states into new areas of compliance. This will enable us to
address our future challenges by building on our past success.
While we recommend that most major features of the MCSAP remain
unchanged, we believe we can improve MCSAP by amending the traffic
enforcement component, improving the performance incentive funding, and
providing funding to support new entrant reviews.
The current MCSAP includes an incentive for states to improve
safety performance if they demonstrate improvement in any or all of
five categories related to reduction of large-truck involved fatal
accidents and fatal accident rates, timely upload of CMV inspection and
accident data, and verification of CDL information. The Agency proposes
to provide 100 percent MCSAP funding to states for performance
incentives.
To address unsafe operation of passenger vehicles around large
trucks, we seek discretion to fund traffic enforcement. This provision
will give participating jurisdictions greater flexibility to use MCSAP
funding for traffic enforcement when necessary to reduce large-truck
related crashes. Education of the general public about sharing the road
with large trucks is important, as well as targeted education to young
adults on this subject. All State driving license manuals should
reflect this information.
As outlined in MCSIA, a new entrant program to bring motor carriers
into compliance with safety regulations at the onset of operations can
improve safety. These new entrants, numbering 40,000-50,000 annually,
will be targeted to improve commercial motor vehicle safety. Through
MCSAP, a Federal-State partnership will be established to implement the
New Entrant Program. Overseeing and supporting the conduct of safety
audits, establishing baseline data, and implementing a program of
regular data collection to assess the progress of the New Entrant
Program will enable FMCSA to fulfill its statutory mandate to improve
new entrant safety performance. This program will meet the requirements
set out in Section 350 of the FY 2002 DOT Appropriations Act as a
precondition to opening the Southern border to Mexican commercial
vehicles.
Forty-six states have committed to work with us to conduct new
entrant safety audits, having agreed to provide approximately 195 of
the estimated 262 State and Federal personnel needed. The State
personnel will be either new hires or be reassigned from other law
enforcement duties. In FY 2003, these individuals were supported
through MCSAP grant funds. Contracted safety auditors were used to make
up the balance of staff. Over the reauthorization period these
individuals will be supported through MCSAP grant funds. Approximately
67 contracted safety auditors will be used to make up the balance of
staff. We plan to hire 32 full-time Federal staff to cover program
oversight, including management, review, and approval of the safety
audits. We believe this Federal-State partnership, like the traditional
MCSAP, will yield significant results.
Commercial Drivers License Grants
The CDL grants provided under TEA-21 were a set-aside from the
agency's information system funds. MCSIA provided additional funding
when new driver disqualification standards and record-keeping
requirements were imposed on states. Improving the accuracy and
completeness of driver history records is key to enhanced safety. The
driver's license is the main form of personal identification in the
United States. Ensuring the bearer of the license is in fact who he or
she claims to be depends on a diverse set of security technologies.
Particularly in the transportation of hazardous materials, states need
current driver licensing technology. Grants under this program will
allow states to enhance this technology and continue to upgrade their
record-keeping systems. We propose up to a 10 percent set-aside, which
can be provided to states at 100 percent funding.
We propose increased CDL grant funding for: (1) improving State
control and oversight of State licensing agency and third party testing
facilities; (2) developing management control practices to detect and
prevent fraudulent testing and licensing activities; (3) supporting
State efforts to conduct Social Security Number and Bureau for
Citizenship and Immigration Services (formerly the Immigration and
Naturalization Service) number verification for CDLs; and (4)
maintaining the central depository of Mexican and Canadian driver
convictions in the U.S., the disqualification of unsafe Mexican and
Canadian drivers, and the notification of Mexican and Canadian
authorities of convictions and/or disqualifications.
Together, these activities will add to the variety of driver's
license technologies for safety and security, and will enhance FMCSA's
ability to identify problem drivers.
Performance Registration Information Management System Grants
The PRISM program was pilot-tested in ISTEA and mandated as a new
program in TEA-21. Linking safety fitness to vehicle registration at
the State level, it identifies high risk carriers based on their actual
over the road performance, provides many opportunities for poor
performing carriers to improve, actively monitors safety progress, and
applies progressively harsher sanctions to those carriers who fail to
improve. Under PRISM, identification of the carrier responsible for the
safe operation of vehicles is made at the time of vehicle registration.
Through the use of a ``Warning Letter'', thirty percent of the carriers
improve their safety performance without Federal intervention. PRISM
provides for immediate, visual identification to law enforcement that
the carrier should not be on the road by removing the license plates.
As more states become fully operational and suspend vehicle
registration in conjunction with Federal out of service orders,
vehicles associated with high-risk carriers will be prevented from
operating on the road. With 25 participating States, this program does
not require long-term Federal maintenance once the state receives its
development funds.
Border Enforcement Grants
Border safety activities continue to remain a high priority for
FMCSA and the states. Under TEA-21, border operations, both northern
and southern, are funded as a 5 percent set-aside from MCSAP. We
propose to create a separate grant program to address current and
future State needs at the border. In the FY 2002 Appropriations Act,
Congress established requirements for opening the U.S.-Mexico border to
long-haul commercial traffic. This event alone, when fully realized,
necessitates a separate grant program to ensure a stable funding source
for State inspectors and operations.
One Congressional requirement for opening the border was that the
DOT Inspector General must verify the satisfaction of all statutory
conditions. Inspector General Ken Mead concluded that FMCSA has met
these requirements, including the hiring and training of enforcement
personnel and the establishment of inspection facilities and safety
procedures at the southern border. Due to our actions, Secretary Mineta
certified that the Department had met the Congressional mandates,
providing a basis for the President to lift the moratorium on granting
operating authority to Mexican carriers within the interior of the
United States in November 2002.
Currently, the border remains closed because of the 9th Circuit
Court ruling that DOT had not conducted the appropriate, in-depth
environmental analysis for certain rules designed to satisfy the
Congressional requirements. The Court held that the environmental
assessment that the agency prepared was inadequate, and that FMCSA
should have prepared an Environmental Impact Statement and Clean Air
Act Conformity Analysis. The Administration filed an en banc appeal of
the decision to the 9th Circuit on March 10, which was denied. The
Administration is considering appropriate next steps in responding to
the ruling. Meanwhile, FMCSA is ready now, and will be ready whenever
the border is opened, to ensure the safety of border operations.
Information Systems
Information systems and analysis support all of the agency's safety
programs and will underlie our future efforts to improve program
delivery. Data collected across the country by Federal safety
investigators and State partners from roadside inspections, crashes,
compliance reviews, and enforcement activities provide a national
perspective on carrier performance and assist in determining
enforcement activities and priorities. This allows us to analyze
program effectiveness and direct resources in the most efficient and
productive manner to improve motor carrier safety.
In TEA-21, this Committee provided essential dedicated funding to
improve Federal and State systems of carrier, vehicle, and driver
safety records, and enhance State on-line capabilities for roadside
enforcement. With this funding we greatly improved the accuracy and
timeliness of our inspection and crash data and made this information
available on-line to shippers, carriers, and insurance companies. We
created new systems to allow motor carriers to register for authority
on-line and file the necessary insurance documentation. With long-term
funding and authority we can continue our progress and upgrade our
ability to identify the high-risk carriers through data improvements.
Regulatory Development
Regulatory development is another fundamental element of FMCSA's
compliance and enforcement process. This is an area where greater
attention and resources are needed to address all mandated regulations
and ensure program performance will not be compromised. Previously,
funding for this activity has been obtained by borrowing against other
program activities, such as research and technology, requiring the
agency to struggle with inconsistent funding streams.
The absence of a consistent funding source causes starts and stops
in a process that requires a consistent level of effort for timely
completion of regulations and their supporting analyses. For this
reason, we are proposing to dedicate funds to our regulatory
development program. We will also use our funds to examine alternative
regulatory programs. In TEA-21, Congress provided FMCSA with authority
to establish exemption and pilot programs under strict safety controls.
We now operate a vision exemption program where applications total more
than 60 per month. We are approached routinely to consider other
alternative programs to our safety regulations. However, these are
resource intensive programs with ample Federal oversight
responsibilities. We need to approach these activities cautiously.
Medical Review Board and Registry
The authorization for a standing medical review board will provide
the agency with much needed expert medical advice on driver
qualification standards and guidelines, medical examiner education, and
medical research. The members would come from leading medical/academic
institutions and serve 3 to 5-year terms. In the past, we have
assembled expert medical specialists on an ad hoc basis to review the
standards and guidelines for qualifying truck and bus drivers. A
standing review board will greatly enhance the agency's ability to
adopt regulations that reflect current medical advances. Many of the
medical standards currently in effect were originally adopted in the
1970s, or earlier.
With over six million commercial drivers under our jurisdiction, we
must ensure that only drivers physically qualified to operate a
commercial vehicle are doing so. There are tragic examples where this
has not been the case. A medical examiner lacking familiarity with our
medical criteria certified a Louisiana bus driver with heart and kidney
disease who later crashed, killing 22 passengers. A medical examiner
registry, as called for in our proposal, will help FMCSA to provide
more comprehensive information on medical practitioners to drivers and
carriers. It will help disseminate information to practitioners
regarding medical policies and requirements relevant to the physical
qualifications of commercial drivers.
A medical registry is necessary to upgrade the quality of CDL
driver medical qualification exams. With the registry, we will better
monitor the quality and practices of medical examiners. A certification
process will ensure that medical examiners are qualified to perform
driver physical exams. Establishment of a medical registry of qualified
medical examiners would respond to the National Transportation Safety
Board, which issued eight safety recommendations in September 2001
recommending that FMCSA establish more comprehensive standards for
qualifying medical providers and conducting medical qualification
exams.
Strengthening Enforcement
Enforcement is the centerpiece of our motor carrier safety program.
This Committee made much needed improvements to our enforcement program
under TEA-21. I believe those changes contributed substantially to the
reduction in fatalities that we see today. We propose to expand the
toolbox of enforcement techniques, close loopholes that permit unsafe
practices, and improve our penalty structure. While there are many such
features included in our legislative proposal, I would like to
emphasize only a few today, addressing various penalties for motor
carrier noncompliance with out-of-service violations and safety record-
keeping requirements, improvements to household goods enforcement, and
new authority over motor carrier management and operations.
Intrastate Violations
The agency's enforcement reach must extend to the intrastate
operations of interstate carriers in order to enhance safety and ensure
uniformity in enforcement and oversight responsibilities. At present,
our inability to reach intrastate operations represents an artificial
line from a safety point-of-view. When our investigators examine a
carrier's operations they must discard intrastate safety violations
they discover. If an interstate carrier is declared unfit to operate,
it may continue to operate solely within a state.
Many interstate motor carriers have substantial intrastate
operations. For purposes of safety, it is counterproductive to create
two classes of accidents and safety inspection data--one subject to
Federal jurisdiction, the other not--when, typically, both involve the
same vehicles, drivers, dispatchers, mechanics, and safety management
controls and may have the same safety result. In examining a motor
carrier's accident and inspection data, it is often difficult, and
sometimes impossible, to determine whether the vehicle involved was
making an interstate or intrastate trip. We seek to amend this
enforcement boundary so that we may take steps to prevent unsafe
carriers from operating. Under this proposal, a Federal safety
determination of an interstate motor carrier suspends both interstate
and intrastate operations. Similarly, a state safety determination that
an intrastate carrier is unfit halts both its intrastate and any
interstate operations.
Congress has recognized this limitation in other motor carrier
safety programs and has set precedents in eliminating inter/intrastate
distinctions in the areas of hazardous materials, drug and alcohol
testing, and CDL regulations. In these cases, Federal regulations apply
to the full scope of operations. An unfit carrier should not be allowed
to operate anywhere.
Oversight of Company Officials
Similarly, we have limited authority over company officials who
exhibit continual disregard of safety management practices. We find a
few motor carrier managers that order, encourage, and tolerate
widespread regulatory violations. When caught, they declare bankruptcy,
rename the motor carrier and reshuffle the managers' titles, sell its
assets to a pre-existing shell corporation owned and managed by the
same people, or otherwise attempt to evade the payment of civil
penalties or obscure the identity of the motor carrier and, thus, its
safety record. These individuals perpetuate a casual indifference to
public safety. Although the total number of such officials is small,
their actions create a risk disproportionate to their numbers.
To address this practice we seek authority to suspend, amend, or
revoke the registration of a for-hire motor carrier if any of its
officers has engaged in a pattern or practice of avoiding compliance,
or concealing non-compliance, with Federal motor carrier safety
standards. This provision is intended to address those few motor
carrier officers who have shown unusual and repeated disregard for
safety compliance and would be used only in the most serious cases.
Household Goods Enforcement
I know that the Chairman and Senators of this Committee have
noticed an increase in the number of constituent complaints regarding
unscrupulous household goods carriers. The letters we receive, as well
as the calls coming into the FMCSA hotline, have been increasing. FMCSA
receives thousands of consumer complaints annually. Currently, the
Agency has three full-time commercial investigators devoted to the
Household Goods Enforcement and Compliance program and has budgeted for
more for FY 2004.
While the household goods industry as a whole performs over a
million successful moves annually, a small group of unscrupulous people
scattered over a handful of states has used this industry to bilk
unsuspecting consumers of their hard earned money. The complaints from
the American moving public have reached significant proportions.
We need to establish a more visible enforcement program through
increased investigations, and a more robust outreach effort to reduce
the number of consumer complaints filed against household goods
carriers and brokers. Our efforts will also be aimed at increasing
consumer awareness to allow shippers to make better-informed decisions
before they move across State lines.
Household goods carriers operating in interstate commerce are
required to have or participate in an arbitration program as a
condition of their registration with FMCSA. The arbitration programs
must comply with the requirements of 49 U.S.C. 14708, and the carrier
must submit to binding arbitration upon shipper request for cargo
damage or loss claims of $5,000 or less. Seventy-five percent of the
complaints we receive pertain to loss and damage claims.
FMCSA intends to conduct an extensive study of existing Household
Goods Dispute Settlement Programs and alternative arbitration programs
in the household goods moving industry. We need this critical
information to determine the extent of the problem, to determine
effective strategies and countermeasures, and to evaluate the
effectiveness of these programs in resolving loss and damage disputes
and claims between shippers and carriers.
We cannot continue to address these consumer issues on our own--
safety is our primary business. Even with additional resources,
household good disputes will likely increase. As such, we seek
authority for state attorneys general to enforce Federal household
goods regulations against interstate household goods carriers. This
approach has been successful in increasing state enforcement of Federal
telemarketing regulations. We believe it will help to reduce abusive
practices among movers of household goods.
Out-of-Service Orders and False Records
The out-of-service order is one of the tools we have to prevent a
motor carrier from operating when it is unfit. Once issued, the order
is designed to stop a carrier from continuing to operate until it comes
into compliance. In some instances, carriers violate these orders and
consider the safety fines as a ``cost of doing business.'' This
mentality shows a flagrant disregard for the safety of the highway
users. Currently, carriers who knowingly require or authorize drivers
to violate the order are subject to a maximum civil penalty of only
$16,000. To be effective, the penalty should be harsh to ensure
compliance with the order. If a carrier knowingly and willfully
requires a driver to violate an order, we propose a fine of $100,000,
up to one-year imprisonment, or both. If a driver violates an order,
there should be a standard of progressive fines and disqualification
standards.
False records or companies that hamper the ability of our safety
investigators to access safety records can limit the effectiveness of
our enforcement program. A few carriers will deliberately impede our
investigators by refusing access to records, buildings, or equipment or
falsifying records to obscure safety violations. To deter those who
refuse access to their records, we propose a $500 per day fine, up to a
maximum of $5,000 for the same violation. Increasing the current fines
for false records to $1,000 per day, up to a maximum of $10,000 per
violation, would stem this practice.
Fundamental Building Blocks for Program Delivery
When this Committee established the FMCSA under the Motor Carrier
Safety Improvement Act of 1999, you wanted a results-oriented and
performance-driven safety organization. FMCSA shares that vision and
wants to build an organization in this reauthorization that maximizes
program safety benefits while utilizing an efficient delivery system.
Research and Technology
FMCSA's ability to integrate research and technology into our
regulatory and enforcement programs has contributed to sound policy-
making. MCSIA did not establish separate authority for a FMCSA research
and technology program. We believe this authority is fundamental to
ensuring that our future safety decisions are based on sound research.
Research and technology supports life-saving and injury-reducing
projects that create qualified and alert drivers, smart commercial
vehicles, smart roadside facilities, secure hazardous material
shipments, and expanded partnerships with states and universities.
The primary goal of FMCSA research and technology activities is to
improve commercial vehicle safety and security by promoting studies on
issues most frequently related to the cause of crashes and loss of
life. Based on regulatory and enforcement needs and on input from
stakeholders, industry, government, and academia, we have investigated,
among others, driver fatigue and health issues, vehicle stability,
carrier and shipper safety management, and a variety of vehicle-based
safety technologies. We have actively participated in research
activities sponsored by the Transportation Research Board and have
cooperated with numerous transportation research centers and
laboratories in the U.S. and abroad. FMCSA's role in the transportation
research community will increase as we expand our partnerships beyond
traditional roles and participate in and sponsor top-level national
conferences and workshops. Finding effective solutions and harnessing
emerging technologies does not happen without a solid research
foundation.
Section 1704 of the Department's Reauthorization proposal would
provide Federal ITS deployment funds each Fiscal Year to support of the
Commercial Vehicle Information Systems and Networks (CVISN) Deployment
program. The Department is requesting $25 million in its FY 2004 budget
request for CVISN deployment. Eligible states would receive grants up
to $2.5 million each for deployment of CVISN core capabilities in the
areas of safety information exchange, interstate credentials
administration, and roadside electronic screening. States that have
already implemented core capabilities could be eligible to receive up
to $1 million of Federal ITS funds for deploying enhanced CVISN
capabilities that improve safety and the productivity of commercial
vehicle operations, and enhance transportation security.
Conclusion
TEA-21 and MCSIA provided a solid foundation for the motor carrier
safety program. This reauthorization represents the first opportunity
for our new agency to step forward, stand on its own, and chart our
course for the future. Critical program characteristics--flexibility, a
strong Federal-State partnership, and essential enforcement tools for
our Federal programs--should be reinforced.
I look forward to working with you on this critical endeavor to
improve highway safety for the motor freight and passenger carrier
industries and all highway travelers. Thank you for this opportunity to
testify on FMCSA's proposal to achieve this goal. I would be glad to
answer any questions you may have.
Senator Sununu. Thank you very much.
Let me begin my questions by focusing a little bit on
safety issues. A 30 percent goal is pretty significant,
reducing the fatalities by 30 percent over the next 5 years.
How do you intend to achieve that? What are the principal areas
of focus that will allow you to meet that tough goal?
Ms. Sandberg. There are a number of strategies that we
have. First, I'd like to speak in the global perspective, and
then narrow it down.
Right now, Motor Carriers works in conjunction with the
National Highway Traffic Safety Administration and Federal
Highways. We all share the same safety goal inside the
Department of Transportation, and that's to reduce the overall
fatalities to 1.0 per 100 million vehicle miles traveled, by
the year 2008. And so we have a number of strategies that cut
across all of our modes to achieve that goal.
And one that clearly ties with Motor Carriers and the
National Highway Safety Administration is to increase seatbelt
usage. Federal Highways is also working with us on this. We
know that if we can increase seatbelt usage to 90 percent in
this country, that by the year 2008 we will have saved 4,000
lives, and so that's a major goal.
In addition, it's a specific goal for us, in Motor
Carriers, because we know that motor carrier--that truck
drivers and bus drivers, their use is lower then the average
population. Average seatbelt usage across the country right now
is about 75 percent. In the motor carrier population, it's
about 48 percent, and so we have some significant work to do
with our state partners to increase seatbelt usage of even
truck drivers.
Senator Sununu. How do you determine what the belt usage is
among truck drivers?
Ms. Sandberg. We do a survey similar to the survey that the
National Highway Traffic Safety Administration does for all
belt users. We use the same methodology and the same surveying
mechanisms, where they actually stand on overpasses and at
street corners to see if the belts are being used.
Senator Sununu. You'd think that people that drove for a
living would be more inclined to take advantage of the safety
equipment.
Ms. Sandberg. You would think so, and I think that we need
to work on some of the message. But, then again, I think that
most people would be inclined to use the safety belt if they
knew the impacts, particularly when they're involved in a
crash. So we are working on some educational components, as
well as enforcement components, to try to reinforce that
message.
Senator Sununu. What share of the accidents that are taking
place involve--accidents that involve large trucks--are related
to equipment problems, what share are related to driver
behavior, and what share would you attribute to other factors?
Ms. Sandberg. I do not have that specific breakdown, but I
can get that for you. I do know that a majority of the crashes,
at least if I'm remembering the data correctly, are due to
driver--or behavior problems.
Senator Sununu. Do you feel confident that the allocation
of funds for motor carrier safety are lining up reasonably with
the different causes of accidents that I just described?
Ms. Sandberg. Yes, I do. As you see from specifically the
four grant programs that I spoke about in my opening statement,
those four grant programs really provide a substantial amount
of money to the states, specifically to do inspections, as well
as look at driver log books and the other types of things that
we need to ensure that drivers are doing.
One other specific component, though, that we think is a
new safety feature here is the New Entrant Program, and that
really gives us an opportunity to focus on what we know are the
greatest-risk carriers. The data show that, currently, carriers
that enter interstate commerce are the most--less likely to be
safe. And so this New Entrant Program allows us to, one, when
they register to be an interstate carrier, we give them
conditional operating authority. And while they have
conditional operating authority, they're actually flagged in
our system to be inspected more often so that state roadside
inspectors will know that they are a new entrant. We also, in
the audit process, will audit them within the first 18 months
to make sure that they are meeting all the conditions of
operating authority. Once they successfully pass that audit,
then they will be given full operating authority. So this gives
us an opportunity to look at them early and often to make sure
that they're operating safely.
Senator Sununu. The budget request for 2004 raises the cost
of the federally managed part of the program to just over 200
million, from 117. What's the key justification for this kind
of an increase?
Ms. Sandberg. That's our administrative expenses. When we
were initially formed under MCSIA in 1999, our administration
was funded out of a portion of the take-down from Federal
Highway's grants. And since we've been formed, we've had to
come back in for supplemental budget increases. And, in
reality, the Federal Highway Administration has actually been
floating us along with our IT infrastructure, our human
resources, our procurement, our payroll, those kinds of
functions. Federal Highways has advised me that at the end of
this Fiscal Year, they're going to cutoff that support, and so
we felt that it was time, one, for us to stand our own and make
sure that our administration was funded cleanly, without
Federal Highways supplementing that out of other monies that
should have been allocated to other things.
Senator Sununu. Back to the New Entrants Program just for a
moment, you highlighted in your testimony that this is one of
the key initiatives consuming your time, your focus right now.
What are your principal concerns with respect to that program
and your ability to ensure that it's successful?
Ms. Sandberg. The principal concerns with the New Entrant
Program, having 40,000 to 50,000 new entrants a year, is making
sure that we actually get to all 40,000 to 50,000 of those new
entrants. We have 46 states that have indicated that they want
to partner with us on that program; however, we know that some
of those states cannot fully partner, whether it's through
statutory requirements that they're not allowed to actually
participate in the program or whether they can't actually hire
all the people. So our biggest challenge is going to be to make
sure that we get as many states onboard as we can, get those
state people hired, give them the funding to make sure that
they can start doing new entrants in the states that they're
responsible for, and then we need to supplement that with
additional contractors and other employees to help make sure
that we get to all 40,000 or 50,000 new entrants within that
first 18 months.
Senator Sununu. Currently, there are over 20 open
rulemaking proceedings related to directives that were required
by the Motor Carrier Safety Improvement Act of 1999, TEA-21,
and other legislation that we've passed. Could you describe a
little bit why these rulemakings are still open? I'm sure that
there are different reasons for different rulemakings, but, in
general, what is keeping you from completing the work and
what's your plan for concluding action on these Congressional
mandates?
Ms. Sandberg. Yes, thank you. Actually, we had a number of
significant rulemakings that were outstanding, not just from
MCSIA in 1999, but from some earlier Congressional mandates,
some of those dating back 10 years from when the agency was
inside the Federal Highway Administration. What we have done
is, we have gone through and made a prioritized listing and
looked at which of those were mandated under MCSIA, and we're
working aggressively on those, as well as which ones have the
biggest safety impact. And so those are getting the highest
priority right now so that we get those rulemakings done.
We've established a new procedure inside Motor Carriers. We
have weekly regulatory meetings so that staff can keep track--
actually, what they do is, they update myself, the deputy
administrator, and the acting deputy administrator on what
progress we're making toward getting that backlog finished. And
we've set a benchmark for each year. There are timelines that
they have to report on, and if any of those timelines slip,
then they are required to come in and report why they have
slipped, how we're going to make up the time, so that we make
sure that we keep on track. And our goal is to try to get as
many of the backlog done within the next 2 years as we possibly
can.
Senator Sununu. Thank you.
We're joined by Senator Breaux, and at this time I'd yield
to the Senator for any comments or questions he cares to ask.
STATEMENT OF HON. JOHN B. BREAUX,
U.S. SENATOR FROM LOUISIANA
Senator Breaux. Thank you very much, Mr. Chairman. I
apologize for being late.
I have a statement, which I want to present, and it's not
directed particularly at you, Ms. Sandberg, because some of the
problems we have go back through several different
Administrations.
I remember that last month Secretary Mineta came before the
Committee to talk about the Administration's proposed SAFETEA,
which would authorize all kinds of new transportation
initiatives, to the tune of about $247 billion, with about only
1 percent of that money focused on motor carrier safety, of the
$247 billion.
Before we move toward authorizing a whole bunch of new bold
initiatives in this area, I question what has happened to all
the things that we have initiated in the past that have never
been finished. And before we start going into new areas and new
requirements, I would like to see the old areas and the old
requirements completed.
Let me just review some of the things that have been
unfinished and, in some cases, even unstarted.
With regard to ISTEA, Congress directed the Department to
issues rules addressing railroad highway grade crossings in
February 1995. In July 1988, the Department issued a proposed
rule prohibiting commercial motor vehicle drivers from driving
onto railroad grade crossings unless there was sufficient space
to drive completely through the crossing without stopping on
the tracks. Hardly an innovative idea. But that's the last
we've heard of that. Almost 5 years after that proposed rule,
and more than 8 years after the Congress first set the
Congressional deadline, we are still waiting on a rule that
arguably could save thousands of lives.
And in TEA-21, the Secretary was to have initiated a
rulemaking by January 1999 to determine whether Federal safety
standards should be applied to interstate school bus
transportation operations. The agency issued an advance notice
of proposed rulemaking in October 2001 and then did nothing
else. I mean, what happened to it?
The Secretary was supposed to carry out a pilot program
with one or more states to improve the timely exchange of
pertinent driver performance and safety records among motor
carriers. The purpose, obviously, was to determine the extent
to which driver records, including their fines and penalties
and failures to appear for court, should be included as part of
any driver information system. The Federal Motor Carrier Safety
Administration has yet to propose a pilot program to carry out
this Congressional directive from 1998. What's happened with
that?
The Motor Carrier Safety Improvement Act directed the
agency to address the safety of commercial van operations that
transported nine to fifteen passengers. Since that
congressional directive, the NTSB has stressed that special
dangers are associated with the operation of these vans, and
the final rule was supposed to be issued by December 9, 2000,
but the only action by DOT has been the issuance of the
proposed rule back in 2001. Where is the regulation?
On medical certifications, as you may remember, back on
Mother's Day of 1999, we had this tragic accident in Louisiana
where 22 of my constituents lost their lives as a result of a
horrible bus accident involving a motorcoach that they were
traveling in. The bus driver was found to be fatigued, had
several serious medical conditions, and was under the influence
of both sedatives and cocaine at the time of the accident. The
NTSB recommended that the Department of Transportation take
steps to strengthen the medical certification process.
Three years after that, 2002, last year, four Louisiana
children lost their lives in yet another bus accident in
Garland, Texas. The bus driver in that accident was also found
to be under the influence of sedatives and cocaine, exactly the
situation we had in Louisiana.
And last July, the Department did issue a final rule,
disqualifying commercial motor vehicle drivers who have lost
their driver's licenses after being convicted of a serious
offense while driving a passenger vessel. The final rule also
disqualified anyone who has been convicted of committing a
drug- or alcohol-related offense. Now, this was a good step. I
congratulate the Department for doing it, but I don't think
it's nearly enough.
Almost a year has passed since the accident in Garland,
Texas, and DOT has yet to issue any rules regarding the medical
fitness of commercial bus drivers. The medical professionals
are not required to notify anyone if they see a medical problem
that could affect the ability of a commercial vehicle driver to
drive safely. There are no health thresholds or requirements
tied to a person's ability to get a commercial driver's
license, or even to renew one.
Last September, Secretary Mineta wrote me that they had
drafted a notice of proposed rulemaking proposing a process for
combining the medical certification process with the issuance
and renewal of the commercial driver's license and that this
proposed rule would be published by March of this year. Last
month, you testified, before our Committee, that it would now
be December of this year before we saw this rule. Now, here we
are in mid-June, and we've still not seen a proposed regulation
in this area, much less the final regulation.
And last month the Administration presented its proposed
reauthorization bill that would create a medical review board.
Good idea. I question how long it's going to take to get a
medical review board up and running. And why do we have a
temporary board instead of having permanent staff people to
oversee the medical issues related to commercial driver's
license, rather than simply a part-time board?
And, finally, let me mention something that's ancient
history, the commercial vehicle driver biometric identifier.
And this thing was directed by the Secretary under the Truck
and Bus Safety Regulation Act in 1988 to establish minimum
uniform standards for a biometric identification system to
ensure the identify of commercial motor vehicle operators. We
issued a proposed regulation in 1991, Congress amended the
mandate to require that commercial drivers had some form of
this unique identifier, not necessarily as a biometric
identifier, by January 2001. Yet DOT has not issued anything
since 1991.
So, I took a long time, Mr. Chairman, pointing this out,
but here we are looking at new regulations. We haven't finished
the old regulations. Time after time, when Congress comes in
and says--you happen to be there, and you're catching the
target of this, but, anybody else in the past 10 years could be
having the same point made to them--is that we write a bill,
issue instructions, call for rules and regulations, and it's
just not followed through. I don't know why we'd want to do a
whole other round of new regulations when we haven't finished
the old ones. So, that's just a statement of everything we've
been able to find that has not yet been done that's already
been required. Your comments?
Ms. Sandberg. Thank you, Senator.
Actually, you point out exactly the problem I faced when I
came in to the Administration in December of last year. And one
of the things that the Secretary asked me to focus on was to
look at the backlog in regulations and have a proposal on how
we're going to reduce that backlog.
What we've proposed in SAFETEA is not to add new programs,
but it's actually to shore up the infrastructure that we have
in place so that we can, exactly, deal with this problem. If
you look at one of the proposals we have, which is the increase
in funds for our regulatory program, we're actually asking for
a $9 million increase. Part of that is, is that we have not had
the funding to do the necessary staff research and regulatory
evaluation to get these regulations done.
And so we are working through that backlog right now.
What's happened is, the agency will start taking a step
forward, and then we are given a whole host of new regulations.
For example, we were given the new regulations that we needed
to formulate for NAFTA so that we could open the southern
border. And so we spent a tremendous amount of time last year
working on those regulations.
We now have staff shifted. They're focusing on the backlog
of regulations. And all the ones that you mentioned are on my
hotlist. I look at those each week, particularly the ones that
we know are going to be the biggest safety benefit.
The New Entrant Program that I spoke of earlier in my
opening statement, that was a mandate by Congress when the
agency was formed, in 1999, under MCSIA, and so we had to get
that regulation in place. The funding that we're asking for and
the authority that we're asking for there is actually what we
need in order to make that program work so that we can meet the
Congressional mandate.
As far as the other regulations, we have a number of
programs underway. And, as I said at the hearing in May, we
will have the medical certification tied to the commercial
driver's license. That notice of proposed rulemaking will be
out this year. The 15-passenger van or the camionette rule,
that will be out very shortly.
We are working aggressively on all of these to deal with
the backlog. And I know that some of them are 10 and 12 years
old. And, to me, that's unacceptable, and I've told staff that,
and we're going to continue to work through that backlog as
quickly as we can. Some of the funding that we've asked for is
to do just that.
Senator Breaux. I thank you for that. I don't want to
belabor the point. I think that some of the regulations and
proposals that we required are probably now ancient history and
outdated. Things that go back 10 years, maybe it was something
to address the situation 10 years ago; and it may not be
applicable to today. We need to take a look at some of these
requirements that we've never been able to do.
Everybody has always come up here, and say the same thing.
Your challenge is going to be to actually get it done. No one
has ever come up and said, ``We're not going to do the
regulation.'' Everybody who comes before Congress says, ``We're
going to get right on it. We're going to get it done, I promise
you.'' And then nothing ever happens.
These are critical areas, particularly the medical
certification for driver's licenses. These things have to be
done. I wish you the best of luck, and get in there and kick
you know what to get it done.
Ms. Sandberg. I'll be happy to provide periodic reports on
our progress, if you would like that, Senator.
Senator Breaux. I think it would be very helpful, because,
I mean, we just can't let this thing hang forever, and I----
Ms. Sandberg. I agree.
Senator Breaux. Good luck, and our best toward getting this
thing done.
Thank you, Mr. Chairman.
Secretary Sununu. Senator Lautenberg?
STATEMENT OF HON. FRANK R. LAUTENBERG,
U.S. SENATOR FROM NEW JERSEY
Senator Lautenberg. Thanks, Mr. Chairman. I'll take just a
couple of minutes, if I might, to make a quick statement.
And I thank you for holding this important hearing on motor
carrier safety. And I welcome Ms. Sandberg again and wish her
luck, if I may, in getting on with the job. And we don't want
to make it more difficult, but I do have a couple of questions.
And it's obvious that trucks and buses perform critical
roles in our national transportation system, and we need them.
But these vehicles share the road with smaller passenger
vehicles, and those carry our families. And SUVs look miniature
next to the large trucks. And trucks traveling at high speeds
on our highways right next to the smaller vehicles can lead to
disaster. And as more and more trucks and cars clog our
highways, motor carrier safety becomes an ever increasingly
important issue.
And while motor carrier safety is not on the mind of every
American, anyone who has ever shared the road with a large
tractor-trailer truck senses the safety risks. And the State of
New Jersey bears more than its share of the Nation's truck
traffic. We have over 11,000 heavy trucks registered in our
state, but countless more travel through New Jersey from north
to south delivering goods between points and commercial
destinations.
We are concerned about these behemoths, some of which are
53-feet long and weigh as much as 80,000 pounds, and we will
resist the pressure from some states to increase current weight
and length limits so that even bigger trucks can barrel through
our state. Bigger trucks present bigger safety risks, and we
have to seriously ask ourselves if we're willing to tolerate
those risks.
The U.S. Department of Transportation reported that multi-
trailer trucks are likely to be involved in more fatal crashes,
11 percent more likely, than today's single-trailer trucks.
In 1991, I authored the freeze on longer combination
vehicles, including triple-trailer trucks. And these things are
as long as a 737 jetliner. And yet, in addition to efforts to
increase size and weight limits, some states skirt restrictions
by creating loopholes for some carriers. For instance, in Iowa,
transportation officials created an exception for heavier
trucks to carry such nondivisible loads as construction
equipment and livestock. If there's a sheep that can't fit on a
53-foot trailer, maybe we'll hear about it on Thursday at the
hearing that Senator Brownback is chairing on cloning.
[Laughter.]
Senator Brownback. We'll try to cover that for you, Frank.
Senator Lautenberg. Sam, if we are looking at sheep longer
than 53 feet, then we've got a problem. Please don't permit it.
[Laughter.]
Senator Lautenberg. We're getting to the point where these
trucks ought to be on steel wheels and not on rubber tires. Not
only are bigger trucks more dangerous; their loads cause
considerably more damage to our highways and bridges.
So last month, I introduced S. 1140, the Safe Highways and
Infrastructure Protection Act, and that bill would freeze the
current state and Federal limitations on truck size and weight,
putting an end to the pressure to keep raising the limits
unless Congress, after full debate, decides otherwise. My bill
also closes decade-old loopholes that the trucking industry is
exploiting to carry heavier loads and skirt weight limits. And
I hope that Committee Members will join Senators DeWine and
Feinstein and I as we push to get this bill passed.
And I look forward to having a moment for a question of Ms.
Sandberg. Is your agency considering any changes to the freeze
on longer combination vehicles?
Ms. Sandberg. Senator Lautenberg, as I pointed out at my
confirmation hearing on the 8th, the Department has not taken a
position on whether to reexamine the 1991 freeze on LCVs. But
what the Department--the question that we are looking at, which
is a much broader question, has to do with the increase in
freight that we're going to see over the next 10 years. We know
that the projected freight increase is going to be by 43
percent over the next 10 years, which means that every mode
inside Department of Transportation has to become part of the
solution.
And so what we are examining is how we work with highways--
the National Highway Traffic Safety Administration, Federal
Railroads, and others--to look at how we're going to
accommodate that increase in capacity. But we have not taken a
position on the freeze.
Senator Lautenberg. OK. But if what you say is where you're
going, it's all right with me, as long as all modes are
included. That's the critical issue. Because to overburden our
highways, really, with that much more traffic without really
paying attention to it--and there's, you know, a huge
resistance to pouring more concrete.
But we go on to say, according to NHTSA, almost 30 percent
of all large-truck drivers involved in fatal crashes in 2001,
something that Senator Breaux was talking about, had at least
one prior speeding conviction compared to 20 percent of the
passenger-car drivers involved in fatal crashes. What are we
doing to address this problem--and you mentioned it briefly to
Senator Breaux--of recurring high-risk behavior by some truck
drivers?
Ms. Sandberg. Yes, as Senator Breaux pointed out earlier,
we recently passed a regulation, or finalized a regulation,
last fall to look at a truck driver's entire driving record to
determine whether they should hold a commercial driver's
license. And what that regulation basically says is, if the
driver has had a DUI or a drug-involved incident, whether it's
in a car or a truck, and their license is suspended, then their
commercial driver's license will be suspended. If they have two
in a lifetime, then they lose their lifetime privilege to have
a commercial driver's license.
To look at lesser included offenses, what we've done is, if
a state suspends or revokes a driver's license of an
individual--for speeding, for improper lane changes, those
kinds of traffic violations--then they would also lose their
commercial driver's privilege, whether they were driving in a
car or driving in a truck.
So this gives us an opportunity to look at the entire
safety picture of these drivers. Before, we were only looking
at the fines and the penalties while they were in a commercial
vehicle.
Senator Lautenberg. And all the states contribute to a
database that's accessible for----
Ms. Sandberg. Yes.
Senator Lautenberg.--for review?
Ms. Sandberg. All states know that they need to get their
data bases up so that we can put these violations into the
commercial driver's license information system----
Senator Lautenberg. So that it is--is that a condition that
has not yet been met?
Ms. Sandberg. They have 3 years to come into compliance
once the regulation is issued.
Senator Lautenberg. When will the regulation----
Ms. Sandberg. The regulation was issued last fall.
Senator Lautenberg. Last fall, so----
Ms. Sandberg. And most states are going to be able to get
their systems up. That's also the increase that we asked for in
our commercial driver's license. We asked for an increase of
$11 million, for a total of $22 million. And part of that was
to help states get funding early on to update their systems so
that they can come into compliance with this particular----
Senator Lautenberg.--what happens, Ms. Sandberg, at the end
of the 3-year period, if the state hasn't complied?
Ms. Sandberg. Then they are in jeopardy of losing some of
their MCSAP money, the Motor Carrier Safety Assistance Program
funding.
Senator Lautenberg. Is that an important grant that the
states look for?
Ms. Sandberg. Yes, it is.
Senator Lautenberg. Thanks, Mr. Chairman.
Senator Sununu. Senator Brownback?
STATEMENT OF HON. SAM BROWNBACK,
U.S. SENATOR FROM KANSAS
Senator Brownback. Thank you, Senator Sununu, Mr. Chairman.
Appreciate you holding this hearing.
Ms. Sandberg, welcome. I want to focus you on the hours-of-
service regulation, something I know you're intimately familiar
with and I'm sure you receive thousands of comments about. In
particular, I want to look in on the agricultural commodities,
farm supplies, groundwater well-drilling rigs, construction
material, transportation, drivers of utility-service vehicles,
snow and ice removal, so the areas that are in a limited radius
of where they're traveling to, but are often involved in a lot
of hours. And I have a written statement I'll submit to the
record on the specific points.
[The prepared statement of Senator Brownback follows:]
Prepared Statement of Hon. Sam Brownback, U.S. Senator from Kansas
I would like to thank our witnesses for being here today as well as
Senator Sununu for holding this hearing. As the Congress continues to
look at the Reauthorization of TEA-21, or SAFETEA, as the
Administration is calling it, I am pleased that we have the opportunity
today to talk about issues that are very important to many people in my
state.
The Administration has made a commitment to safety in the highway
bill, as we see through the title alone: SAFETEA. I commend the
President and Secretary Mineta for their efforts in highway safety. And
I too am committed to promoting safety on our Nation's highways. I am
also committed to ensuring that any efforts we take in safety reflect a
common sense approach to addressing the problem of safety.
Specifically, I look forward to hearing Ms. Sandberg's comments on
the hours-of-service rules that govern commercial operators. While I am
encouraged by the willingness of the FMCSA to listen to and respond to
the thousands of comments it received on the proposed rule as well as
their decision to throw out many of the proposals that would have
imposed significant burdens on the motor carrier industry, I am
concerned about recent developments in this area as the rule becomes
finalized. This new rule, which becomes effective January 4, 2004,
marks the first significant change to the hours-of-service rules since
1939. I certainly hope that changes made to this rule reflect the
intent of the Congress and actually address safety, rather than result
in unnecessary burdens on industries dependent on motor carriers.
For example, the ground water industry has been directly effected
by the hours-of-service requirement. In the 1995 National Highway
System Designation Bill the Congress granted the ground water industry
limited relief under the hours-of-service rules. The ground water
industry has operated safely and efficiently within the maximum driving
and on-duty time provisions that were established in this legislation.
However, the Department of Transportation has repeatedly
demonstrated the desire to ignore congressional intent and re-regulate
the ground water industry in a manner that would essentially ``hollow
out'' the industry's limited relief. Most recently, DOT has expressed
the desire to regulate the industry's off duty time.
It is my hope that as Congress pursues highway reauthorization, we
maintain the relief the Congress granted the ground water industry in
1995, and prevent DOT from hollowing out this relief through arbitrary
regulation that ignores congressional intent. Furthermore, if DOT or
the Federal Motor Carrier Safety Administration do intend to change the
rules affecting the ground water industry, they do so only after a
study has been conducted specifically relating to the ground water
industry. To my knowledge, the FMCSA has never studied fatigue as it
specifically relates to the ground water industry and has no intention
to do so.
On a related note, the FMSCA published a final rule on April 28th,
2003 regarding hour-of-service which significantly changes the current
operation of the hours-of-service. I am most concerned about the impact
these changes will have on small businesses. Specifically, the final
rule adopted by the FMCSA increases the required off-duty time for
drivers of commercial motor vehicles from eight to 10 consecutive
hours; increases driving time from 10 to 11 hours; reduces a driver's
total on-duty time from 15 hours to 14 hours; and most significant to
many small businesses across the country, the final rule allows
``short-haul'' drivers to be on-duty 16 hours once in every seven-day
period; and allows drivers to restart the cumulative 60-or-70 hour
clock after taking 34 hours off duty. Under these new guidelines off-
duty time taken by the driver during a 14-hour period, such as meal
breaks, showers, or rest breaks, will not extend the driver's work day.
While these breaks may seem insignificant, I can assure you that a few
minutes multiplied by thousands of drivers, results in decreased
efficiency across many industries on the road.
I look forward to addressing this issue further in my questions to
the panel. Again, thank you to our witnesses for being here to discuss
the future of safety on our nation's highways.
Senator Brownback. I understand the Department of
Transportation has done a report examining these specific
industries outlined--is that correct?--on whether or not to
provide some exemptions under the hours-of-service regulations
or a different set of rules, in some of these areas?
Ms. Sandberg. Actually, the exemptions that were under the
old rule continue under the new rule. So all the exemptions
that were put in the National Highway Act are still in place.
Senator Brownback. Now, is there a proposal to change those
rules to make them stricter?
Ms. Sandberg. No, there is not.
Senator Brownback. OK. And do you anticipate that you're
going to be changing any of those rules for short-haul, water-
well drillers, construction equipment, utility-service
vehicles?
Ms. Sandberg. Not at this time. One of the things I've
instructed the staff is that we will not make any changes to
regulation without specific data showing that there is a safety
problem.
Senator Brownback. Now, I had understood that there is a
proposal sent to you that would request that operators be
allowed the choice between the final rule that is being
proposed, or the more strict proposal, on hours of service for
these more short-haul type of provision--I don't have a better
term to use than ``short haul,'' versus the current rule that
they are operating under--that they would have a choice. Now,
is that being proposed?
Ms. Sandberg. We have a number of petitions for
reconsideration from various groups, looking at the old rules
and the new rules, and we have a requirement that we have to
post those and go through some deliberation. And so we're in
the process of doing that right now. I don't know if,
specifically, one of those requests is from this group.
Senator Brownback. So are you considering, then, a change
for short-haulers that's being in the proposed form at this
point, that's gone to you, but it hasn't been put on forward?
Ms. Sandberg. We're required to look at all petitions for
reconsideration.
Senator Brownback. All right. So you are considering----
Ms. Sandberg. Yes, anything that----
Senator Brownback.--a more strict environment for short-
haul.
Ms. Sandberg. No, it's not to make it more strict. I was--I
think it was to make it more lax.
Senator Brownback. Because they would----
Ms. Sandberg. That they could continue to apply certain
things under the old rule. Some of it has been
misunderstandings from certain groups, who have had a little
bit of difficulty understanding what exemptions still apply,
what the hundred-mile radius rule--how that still applies. And
so we're trying to work with those groups to eliminate any
misunderstandings and then deal with any petitions that they
may have under the specific new rule.
Senator Brownback. All right. So that I'm clear, then, you
are not proposing any changes to the hours of service regarding
the litany of groups that I'm just lumping in the category of a
short-haul category on limiting any further their hours of
service or changing the rules regarding their hours of service.
Ms. Sandberg. Their rules changed, the same as everybody
else's, when we issued the final rule in April. And, actually,
that rule went into effect and will be implemented January 4th
of next year. So if the old hours-of-service rule applied to
them, the new hours-of-service rule will now apply.
Senator Brownback. OK.
Ms. Sandberg. Their exemptions, though, stay the same. So
whatever they were exempt from under the old rule, they stay
exempt from under the new rule.
Senator Brownback. OK. Then let me particularly focus you
on water-well drillers. We have a number of water-well drillers
in Kansas. It's big. It's a need that we have. Are the rules
for them going to change, come January 2004?
Ms. Sandberg. Yes, they are.
Senator Brownback. OK. What are they going to change to?
Ms. Sandberg. They are allowed to work 14 hours a day and
drive 11 hours. The old rule was that they were allowed to work
15 hours a day and drive 10 hours.
Senator Brownback. Now, weren't they given a specific
exemption under the hours-of-service----
Ms. Sandberg. Yes, and that----
Senator Brownback.--reg, under the 1995 National Highway
System Design Act?
Ms. Sandberg. That's correct. And when that exemption kicks
in, that exemption would apply to the new hours-of-service
rule.
Senator Brownback. OK. So interpret what you mean, to me.
Then, come January 2004, the water-well drillers come under the
new rule, but the exemption----
Ms. Sandberg. The exemption----
Senator Brownback.--will allow them----
Ms. Sandberg.--still applies.
Senator Brownback.--to operate under the old rule.
Ms. Sandberg. Yes. Well, no. It allows them to continue
operating--whatever the exemption said--and I can't, off the
top of my head, tell you exactly what that exemption said. I
would be happy to give you that information later, for the
record.
Senator Brownback. OK, if you could, because I'm getting a
lot of push from people that are in the short-haul business
saying, ``Come January 2004, the world radically changes for
us.'' And I'm looking at what we put forward as exemptions in
the law in 1995, and I'm thinking that, you know, the
congressional opinion hasn't changed in that period of time.
They should be allowed the flexibility more to operate--if
you're within this hundred-mile radius where you're not going
long distances, but you could be involved in long hours--you
can get a water well-driller, once they start drilling, they
need to continue----
Ms. Sandberg. Uh-huh.
Senator Brownback.--in this operation, because stopping and
starting again's going to be very difficult and make the
process much more lengthy and much more expensive for people to
go into.
[The information referred to follows:]
FMCSA Response
Section 345(a) of the 1995 National Highway System
Designation Act granted limited exemptions under the Hours-of-
Service regulations for transportation of agricultural
commodities and farm supplies, transportation and operation of
ground water well drilling rigs, transportation of construction
materials and equipment, drivers of utility service vehicles,
and snow and ice removal.
Specifically, Section 345(a)(2) of the Act granted exemptions
for transportation and operation of ground water well drilling
rigs:
``(2) TRANSPORTATION AND OPERATION OF GROUND WATER WELL
DRILLING RIGS--Such regulations shall, in the case of a driver
of a commercial motor vehicle who is used primarily in the
transportation and operation of a ground water well drilling
rig, permit any period of 7 or 8 consecutive days to end with
the beginning of an off-duty period of 24 or more consecutive
hours for the purposes of determining maximum driving and on-
duty time.''
Section 345(e)(3) defines ground water well drilling rig--The
term ``ground water well drilling rig'' means any vehicle,
machine, tractor, trailer, semi-trailer, or specialized mobile
equipment propelled or drawn by mechanical power and used on
highways to transport water well field operating equipment,
including water well drilling and pump service rigs equipped to
access ground water.
Ms. Sandberg. Senator, we'd be happy to come up and meet
with you and figure out exactly what it is that their concern
is and give you a specific answer as to how the new rules
apply, how the exemption applies, how the exemption applied
under the old rule, and how it will apply under the new rule.
Senator Brownback. OK. But it would be my desire that the
exemption they're currently operating under would continue,
come January 2004. I mean, that's what I'll be pushing for.
That's what I think would make sense. I think the old rule has
worked pretty well. Do you know any reason why we would need to
change their current hours?
Ms. Sandberg. No, the way that the staff briefed me is that
the exemptions still apply the same.
Senator Brownback. OK. And you have no particular reason,
from your studies that you've done, safety studies, to think
that this should change.
Ms. Sandberg. Not on this specific group, no. But, again,
like I said, we would be happy to come up and find out exactly
what the issue is that they have.
Senator Brownback. OK, good. Thank you very much.
Thank you, Mr. Chairman.
Senator Sununu. Thank you, Senator Brownback.
Let me just ask a few more closing questions. You had
mentioned the household goods issues. Could you describe, in a
little bit more detail, exactly what powers you all are
recommending that the attorney generals be given in dealing
with household goods complaints?
Ms. Sandberg. Yes, actually, the provision that we have in
the reauthorization proposal gives the state attorneys general
the authority to enforce all the Federal regulations that
currently exist, so they would have the ability to take
enforcement cases.
Senator Sununu. For example?
Ms. Sandberg. For example, if they have a carrier who has
given false information to an individual--let's say they--it's
like a hostage-goods example, where they tell you that it's
going to cost you $2,000 to move, you know, they actually load
your goods up, and then all of a sudden it costs you $4,000
once all your goods are on the truck. Then they would have the
ability to enforce under our regulations.
Senator Sununu. Is there a precedent for attorneys general
being given this power? In other words, any other areas of the
Federal Government where they're allowed to enforce Federal
statutes?
Ms. Sandberg. That, I do not know, Senator. I can find out
and give you an answer for the record.
Senator Sununu. Thank you.
[The information referred to follows:]
FMCSA Response
There is precedent in the telecommunications/telemarketing area.
Both the Telephone Consumer Protection Act of 1991 (Pub. L. 102-243),
and the Telemarketing and Consumer Fraud and Abuse Prevention Act of
1994 (Pub. L. 103-297), contain provisions authorizing State Attorneys
General to bring actions in court to enforce provisions of these
statutes or of the implementing regulations adopted pursuant to them.
Language from both Public Laws appears below:
Pub. L. 102-243:
Section 227
(f) ACTIONS BY STATES----
(1) AUTHORITY OF STATES-Whenever the attorney general of a State,
or an official or agency designated by a State, has reason
to believe that any person has engaged or is engaging in a
pattern or practice of telephone calls or other
transmissions to residents of that State in violation of
this section or the regulations prescribed under this
section, the State may bring a civil action on behalf of
its residents to enjoin such calls, an action to recover
for actual monetary loss or receive $500 in damages for
each violation, or both such actions. If the court finds
the defendant willfully or knowingly violated such
regulations, the court may, in its discretion, increase the
amount of the award to an amount equal to not more than 3
times the amount available under the preceding sentence.
Pub. L. 103-297:
SEC. 4. ACTIONS BY STATES.
(a) IN GENERAL-Whenever an attorney general of any State has
reason to believe that the interests of the residents of
that State have been or are being threatened or adversely
affected because any person has engaged or is engaging in a
pattern or practice of telemarketing which violates any
rule of the Commission under section 3, the State, as
parens patriae, may bring a civil action on behalf of its
residents in an appropriate district court of the United
States to enjoin such telemarketing, to enforce compliance
with such rule of the Commission, to obtain damages,
restitution, or other compensation on behalf of residents
of such State, or to obtain such further and other relief
as the court may deem appropriate.
Senator Sununu. Any other questions?
[No response.]
Senator Sununu. Thank you very much, Ms. Sandberg.
Ms. Sandberg. Thank you, Senator.
Senator Sununu. We'll now ask that our second panel of
witnesses come forward.
Our second panel includes Mr. Douglas Duncan, president and
CEO of FedEx Freight; Mr. LaMont Byrd, Director of Safety and
Health for the International Brotherhood of Teamsters; Ms. Joan
Claybrook, President of Public Citizen; Mr. Peter Hurst,
President of the Commercial Vehicle Safety Alliance; and Mr.
Joseph Harrison, President of American Moving and Storage
Association.
I want to thank each of the witnesses for taking the time
to be with us at this hearing today. We will include your full
statement in the record. Feel free, and, in fact, be
encouraged, to summarize your testimony.
And let us begin with Mr. Duncan. Welcome.
STATEMENT OF DOUGLAS G. DUNCAN, PRESIDENT AND CEO, FedEx
FREIGHT ON BEHALF OF THE AMERICAN TRUCKING ASSOCIATIONS, INC.
(ATA)
Mr. Duncan. Thank you, Mr. Chairman.
Chairman and Members of the Committee, thank you for
inviting the American Trucking Association to express our views
on this very important subject.
As you stated, my name is Doug Duncan. I'm the President
and CEO of FedEx Freight, headquartered in Memphis, Tennessee,
and I'm testifying today on behalf the American Trucking
Association, the ATA.
The trucking industry is large and diverse, and while the
industry has disagreements on many issues, we all agree that
safety is and must be the number one priority, whether
considering changes in business practices or changes in the
law. We are justifiably proud of our progress that we have
made.
Over the past two decades, the trucking industry's fatal
accident rate has come down by 53 percent, and injury and
property damage crashes are at historical lows, as well.
Furthermore, the number of fatal accidents involving trucks is
down for 5 years in a row, even as fatal accidents involving
other vehicles have continued to climb. Everyone, including the
FMCSA, the CVSA, and the states, NHTSA, and the industry
deserve some credit for these achievements. However, we do
believe that there is more that can be done to prevent
accidents and save lives.
Mr. Chairman, FMCSA's focus has traditionally centered on
enforcing vehicle and driver regulations. While this is
important, the best available research shows that traffic
violations that are more a result of unsafe driving behaviors,
particularly speeding and failing to yield the right of way,
may be more prevalent causes of accidents. Unfortunately,
neither FMCSA nor NHTSA's budgets reflect this research. The
ATA believes that both agencies should adopt a stronger focus
on visible speed and traffic law enforcement and that the
program authorization and the budget for MCSAP and Section 402
programs should reflect that emphasis, as well.
Along with stepped-up traffic enforcement should come
greater efforts to educate motorists and commercial drivers
about how to share the road more safely with one another.
Traditionally, the FMCSA has placed the burden of preventing
truck-involved crashes on the truck driver and the trucking
industry; however, the best available crash data indicates that
the majority of truck-involved fatal crashes involved one truck
and one automobile, and that the unsafe actions of the
automobile driver play a contributing role in about 70 percent
of those fatal crashes.
These findings were recently confirmed by the AAA
Foundation for Traffic Safety, the leading advocate for
motorists. The foundation found that, in some cases, unsafe
actions by the car drivers were a contributing role in up to 75
percent of the fatal truck/car crashes.
Therefore, by focusing its truck-safety resources and
attention primarily on truck drivers and trucking companies,
the FMCSA is addressing a relatively small portion of the fatal
crashes involving trucks.
A large cooperative effort is needed to attack the problem
of motorists being unaware of the operating limitations of
large trucks and buses. Private sector organizations and
groups, in cooperation with FMCSA and NHTSA, can combine
resources and expertise for the development and dissemination
of information to their constituencies and to the general
public. This effort should seek to more widely disseminate
consistent credible information and messages by funding and
leveraging off programs that are already in place.
Mr. Chairman, Congress can also assist in assuring trucking
companies have information they need to make sure that the
drivers they hire are safe by authorizing the trucking company
access to the Federal Motor Carriers Safety Administration
driver safety data and information during the hiring process.
ATA also requests the Committee's assistance in addressing
the issues with the FMCSA's SafeStat system, identified by the
DOT Inspector General. Conceptually, the SafeStat system is
good, but it can be improved to help better target unsafe motor
carriers.
In addition, while this falls outside of the Committee's
jurisdiction, ATA urges the Committee not to lose sight of the
safety benefits of targeted investment in highway
infrastructure as a part of overall strategy in improving
highway safety. Poor road conditions and obsolete road designs
play a role in nearly 12,000 highway deaths each year. ATA
urges Congress to address this problem by focusing investment
on projects that can prevent accidents and mitigate their
severity.
Mr. Chairman, as there is a shortage of highway capacity,
there is also a shortage of truck parking capacity on many of
the major trucking corridors. Together with the Truckload
Carriers Association, the National Association of Truckstop
Operators, and the CVSA, ATA has developed a comprehensive
approach to resolving this problem through the use of public/
private partnerships. We hope the Committee will agree to
support this important initiative.
I would also like to alert the Committee to another safety
challenge facing the trucking companies and drivers. While the
trucking companies are required to perform regular maintenance
on our vehicles, a loophole in the Federal law allows 800,000
pieces of leased intermodal equipment to escape that
regulation. We urge Congress to close this loophole by
directing the Secretary to apply safety regulations equitably
to all regulated equipment. And I believe the Teamsters also
support this recommendation.
Finally, Mr. Chairman, the ATA recommends the Committee
promote research that will allow for the adoption of effective
safety regulations. For example, NHTSA should direct and
undertake research to determine the appropriate method for
incorporating reliability performance standards into future
standards pertaining to trucks and provide dedicated sources
for funding of this project.
ATA further recommends that the Secretary be directed to
prioritize all Federal driver/vehicle-related research so that
the majority of those funds support the research of the most
common cause of accidents: the human factor.
In addition, ATA recommends that Congress require the
Secretary to establish the Motor Carrier Safety Advisory
Committee and extend the authorizing period by a minimum of 5
years.
Mr. Chairman and Member of the Committee, thank you for the
opportunity to offer these thoughts regarding these safety
issues. Much more detail is contained in the written testimony.
And we look forward to working with the Committee to improve
the safety and mobility of the Nation's highway transport
system.
[The prepared statement of Mr. Duncan follows:]
Prepared Statement of Douglas G. Duncan, President and CEO, FedEx
Freight on Behalf of the American Trucking Associations, Inc. (ATA)
Introduction
Chairman Sununu and members of the Committee, thank you for the
opportunity to express the trucking industry's perspectives regarding
Truck and Highway Safety Program issues that are of great importance to
the trucking industry. I am Doug Duncan, President & CEO of FedEx
Freight. As part of the FedEx Corp. family of companies, FedEx Freight
is the market leader in providing next-day and second-day regional,
less-than-truckload freight services. FedEx Freight generates more than
$2 billion in annual revenues and is comprised of two operating
companies, FedEx Freight East and FedEx Freight West.
I am appearing before the Committee today on behalf of the American
Trucking Associations, Inc. (ATA). ATA is the national trade
association of the trucking industry. ATA is a federation of affiliated
State trucking associations, conferences, and other organizations that
together include more than 37,000 motor carrier members, representing
every type and class of motor carrier in the Nation. ATA represents an
industry that employs nearly ten million people, providing one out of
every fourteen civilian jobs. This includes the more than 3 million
truck drivers who travel over 400 billion miles per year to deliver to
Americans nearly 70 percent of their transported food, clothing,
finished products, raw materials, and other items.
American industrial and commercial enterprises are able to compete
more effectively in the global marketplace due to the benefits of safe
and efficient trucking. Truck transportation is the most flexible mode
for freight shipment, providing door-to-door service to every city,
manufacturing plant, warehouse, retail store and home in the country.
For many people and businesses located in towns and cities across the
United States, trucking services are the only available means to ship
goods. Trucks are the sole providers of goods to 80 percent of American
communities. Five percent of the Nation's GDP is created by truck
transportation. Actions that affect the trucking industry's ability to
move its annual 9 billion tons of freight have significant consequences
for the ability of every American to do their job well and to enjoy a
high quality of life.
While we are a large and highly diverse industry, ATA members all
agree that highway safety is job number one for our companies and our
industry. Promoting and advancing safety is not only the right thing to
do for our industry, it makes good business sense. I appreciate the
opportunity to share our ideas with this Committee on ways to improve
highway and truck safety.
The Trends in Truck Safety
Mr. Chairman, the past two reauthorization acts developed and
promoted by this Committee have been instrumental in revitalizing and
refocusing Federal surface transportation policy, particularly in the
area of highway safety, and we commend this Committee for its ongoing
leadership. The programs that this Committee has created and authorized
have contributed to improving highway safety, and overall truck safety.
According to the Federal Motor Carrier Safety Administration
(FMCSA), the safety trends in the trucking industry are clearly heading
in the right direction. In their most recent report entitled, ``Large
Truck Crash Facts 2001,'' FMCSA reports that over the last 20 years
(1981 to 2001), the fatal crash rate for large trucks has declined from
4.5 fatal crashes per 100 million miles traveled to 2.1 fatal crashes
per 100 million miles traveled, a 53 percent decrease. (See Table 1
from FMCSA's report)
FMCSA also reports that the large truck injury and property damage
crash rates are also on the decline. From 1988 to 2000 (1988 was the
first year in which FMCSA began collecting and analyzing injury and
property damage crash data), the large truck injury crash rate has
declined from 67.9 injury crashes per 100 million miles to 41.2 injury
crashes per 100 million miles, a 39 percent decline. Similarly, the
property damage only crash rate declined between 1988 and 2000 from
210.7 crashes per 100 million miles to 153.7 crashes per 100 million
miles, a 27 percent decline. (See Tables 4 & 5 from FMCSA's report on
the next page)
FMCSA also reports that alcohol involvement for large truck drivers
involved in fatal crashes has declined 75 percent since 1982, the first
year that the Fatality Analysis Reporting System (FARS) included data
for alcohol involvement in fatal crashes.
FMCSA's report has a wealth of additional data and information on
trends, and ATA encourages Committee Members and staff to view the
report online at: http://ai.volpe.dot.gov/CarrierResearchResults/
CarrierResearchResults.asp?file=PDFs/LargeTruckCrashFacts2001.pdf
Additionally, within the last two weeks, the National Highway
Traffic Safety Administration (NHTSA) released a new crash study
entitled ``An Analysis of Fatal Large Truck Crashes.'' This report also
has a great deal of useful information, and can be viewed online at:
http://www-nrd.nhtsa.dot.gov/pdf/nrd-30/NCSA/Rpts/2003/809-569.pdf
The U.S. Congress, the U.S. Department of Transportation, the State
agencies involved in truck safety, and the millions of people employed
in the trucking industry should be proud of and pleased with the truck
safety progress that has been made to date. However, ATA strongly
believes that more can and should be done. However, the right policies
must be established and the most effective actions must be taken,
especially when resources are limited. Put more simply, the solutions
must address the problems. Incorrect or ineffective policies and
actions may only blunt our pursuit of safer transportation systems. Our
collective goal must be to continue to push the trends even further in
the right direction. ATA's recommendations throughout the remainder of
this testimony are aimed at achieving this goal. Our recommendations
are categorized in the following three areas:
1. Traffic Safety and Truck Safety Program Recommendations
2. Regulatory Change Recommendations, and
3. Research and Advisory Committee Recommendations
I. Traffic Safety and Truck Safety Program Recommendations
Truck safety has improved over the last 20 years. An interesting
question, however, is ``What has caused the improvement?'' This is a
tough question to answer for both industry and government officials. We
believe that some programs that have been implemented in the last 10 to
20 years have contributed to the overall positive picture. The industry
supported Federal-State truck safety inspection grant program (known as
the Motor Carrier Safety Assistance Program or MCSAP) has had an impact
by improving truck condition; the Commercial Driver's License (CDL)
program has contributed by raising the bar for driver entry into the
industry; and the implementation of voluntary drug testing by the
industry, followed by a mandatory Federal drug and alcohol testing
program, has also contributed in a positive way. It is very likely that
the increase in seat belt use by truck drivers and other motorists has
also had a positive impact. Many other industry and government
initiatives are likely to have had some benefit as well. The point
here, however, is that we still need to have a better understanding of
what has worked and why. Additionally, we still do not understand
thoroughly how and why truck crashes occur.
A. Safe Speeds Save Lives--Greater Speed Enforcement Is Needed
ATA recommends that Congress authorize additional funding for the
Section 402 Highway Safety Grant Program administered by NHTSA, and the
MCSAP truck safety grant program administered by FMCSA, specifically
for increased traffic and speed enforcement efforts in the highway
reauthorization bill. ATA further recommends that Congress make it
clear in legislative language that MCSAP funding should be used for
State speed enforcement efforts aimed at both commercial and non-
commercial drivers, and that speed enforcement activities aimed at
commercial drivers do not have to be linked to a North American
Standard Inspection. Additional funding, additional emphasis, and
greater Federal leadership are needed on this issue to reduce the speed
and unsafe driving behaviors of all drivers on our highways in order to
save lives.
ATA is also a firm believer in the life-saving benefits of seat
belt use. ATA recommends that Congress continue to support and fully
fund the occupant protection programs of NHTSA, including the ongoing
'Click It or Ticket' grant program.
Justification--Since the results of FMCSA's ongoing large truck
crash causation study are not yet available, policymakers must use the
best available data and information to make informed policy and program
decisions. For years, crash research has found that human errors and
unacceptable driver behaviors are the primary causes of (or primary
contributing factors to) highway crashes, including truck-involved
crashes.\1\ It is interesting to note, however, that both the Congress
and the U.S. DOT have traditionally taken different approaches to
improving traffic safety versus truck safety. NHTSA's traffic safety
programs have focused on gaining strong traffic laws, educating the
public on these strong laws, and then using visible and targeted
traffic enforcement programs to enforce these laws in order to
positively affect motorist behavior. NHTSA has shown that this
selective traffic enforcement program (STEP) approach effectively
changes motorist behavior and thereby increases highway safety. NHTSA
has also focused on improving its traffic safety and crash data
collection and analysis in order to better guide the agency's programs
and resource expenditures.
---------------------------------------------------------------------------
\1\ Tri-Level Study of the Causes of Traffic Accidents, Indiana
University, DOT HS 805 099, May 1979.
---------------------------------------------------------------------------
FMCSA's truck safety programs, on the other hand, have focused on
increasing the number and scope of regulations on drivers and motor
carriers, enforced through on-road safety inspections and facility
compliance audits. Unfortunately, FMCSA does not have persuasive
research that shows increased regulatory and compliance efforts equal
greater truck safety. Since so much of truck safety is rooted in
overall traffic safety, Congress and FMCSA should seriously consider
much more of a traffic safety approach toward improving truck safety.
To expand on this point, NHTSA reports that speeding was a
contributing factor in more than 30 percent of all fatal crashes in
2001. This means that more than 12,800 people lost their lives in 2001
in part due to speed-related crashes. This is simply unacceptable. The
time has come to combat excessive speeding, in order to improve both
traffic and truck safety. There are four words that every motorist and
every commercial vehicle driver needs to remember when they buckle up
and take the wheel of their vehicle: SAFE SPEEDS SAVE LIVES!
The Section 402 Highway Safety Grant Program administered by NHTSA
supports many outreach and enforcement programs, including the priority
programs to encourage the proper use of occupant protection devices and
reduce drug and alcohol impaired driving. While these programs clearly
deserve a high priority by NHTSA, ATA is concerned that strong, visible
speed enforcement may not be getting the focus, attention and funding
it deserves.
Additionally, the Motor Carrier Safety Assistance Program (MCSAP),
administered by FMCSA, focuses on priority truck and bus safety
initiatives that, for the most part, do not address speeding truck and
bus drivers, or other motorists with which commercial drivers share the
road. The MCSAP program, a generally successful truck and bus safety
inspection program, is simply not putting enough emphasis on traffic
enforcement activities. Strong, visible speed enforcement aimed at
commercial vehicle drivers, as well as other motorists with whom
commercial drivers share the road, needs to take on a much greater role
in the MCSAP program. In fact, there is currently an artificial
constraint that keeps the amount of speed enforcement activity in the
MCSAP program small. FMCSA's regulations require that all speed
enforcement stops of trucks (as well as all other types of traffic
enforcement stops) include an appropriate North American Standard
Inspection of the truck or the driver, or both, for the activity to be
eligible for MCSAP funding. This inspection requirement, found at 49
CFR 350.111, is unnecessary and unwarranted and discourages traffic
enforcement for commercial motor vehicles. Additionally, since speeding
and other unsafe driving behaviors of non-commercial drivers play an
even greater role in truck-involved crashes than do the actions of the
commercial motor vehicle driver,\2\ the MCSAP program must also include
traffic enforcement efforts aimed at unsafe motorist behavior. This
funding should be in addition to the money provided for traditional
MCSAP enforcement activities.
---------------------------------------------------------------------------
\2\ The Unsafe Driving Acts of Motorists in the Vicinity of Large
Trucks, Anacapa Sciences, Inc. for the Federal Highway Administration,
February 1999.
---------------------------------------------------------------------------
B. A Comprehensive Education and Outreach Program Is Needed
ATA recommends that Congress authorize and fund a comprehensive
Share the Road Safely education and outreach program that is designed
to educate and change the behavior of all highway users. This effort
must be coupled with increased MCSAP traffic enforcement to have the
desired outcomes. A program evaluation requirement should also be
included. This program should be funded at not less than $5 million
dollars annually.
Justification--The majority of truck-involved crashes are multi-
vehicle crashes that involve one truck and one passenger vehicle.\3\
Traditionally, FMCSA (and its predecessor organization) has placed the
burden of preventing these truck-involved crashes on the truck driver
and the trucking industry. However, the best available crash data
indicates that the actions of the truck driver play a contributing role
in only 30 percent of fatal crashes where another vehicle is involved.
The unsafe actions of the automobile driver play a contributing in
about 70 percent of the fatal crashes involving a truck.\4\ Therefore,
by focusing their resources and attention on truck drivers and trucking
companies, FMCSA is addressing a relatively small portion of the fatal
crashes involving trucks.
---------------------------------------------------------------------------
\3\ An Analysis of Fatal Large Truck Crashes, U.S. DOT, National
Highway Traffic Safety Administration, National Center for Statistics
and Analysis, DOT HS 805 569, June 2003.
\4\ The Relative Contribution of Truck Drivers and Passenger
Vehicle Drivers to Truck-Passenger Vehicle Traffic Crashes, The
University of Michigan Transportation Research Institute (UMTRI 98-25),
June 1998; and, Identifying Unsafe Driver Actions that Lead to Fatal
Car-Truck Crashes, AAA Foundation for Traffic Safety, April 2002.
---------------------------------------------------------------------------
A large cooperative effort is needed to attack the problem of
motorists being unaware of the operating limitations of large trucks
and buses and, therefore, being unaware of how to more safely share the
road with these vehicles. Private sector organizations and groups, in
cooperation with FMCSA and NHTSA, can provide resources and expertise
for the development and dissemination of information to their
constituencies and to the general public. This effort should not
undermine or overtake existing efforts such as ATA's Share the Road
program, or AAA's Share with Care program. Rather, it should seek to
more widely disseminate consistent and credible Share the Road Safely
information and messages by funding and leveraging off of programs
already in place. FMCSA has a very small Share the Road Safely program
and has traditionally spent less than one percent of its annual budget
on this program.\5\ There is a small coalition as part of this program,
in which ATA is a participant, which could provide the foundation for a
much larger and more effective outreach effort. As recommended recently
by the U.S. General Accounting Office,\6\ this education and outreach
effort should be closely coordinated with the increased traffic
enforcement efforts, similar to NHTSA's STEP approach described above.
---------------------------------------------------------------------------
\5\ Share the Road Safely Program Needs Better Evaluation of Its
Initiatives, U.S. General Accounting Office, May 2003.
\6\ Ibid, p. 12.
---------------------------------------------------------------------------
C. Safety Screening of Truck Drivers Can Be Improved
ATA recommends that Congress authorize FMCSA to provide access to
safety data and information contained in MCMIS, within the confines of
the Privacy Act and consistent with the Fair Credit Reporting Act.
Justification--FMCSA collects a substantial amount of driver and
company compliance and safety performance information in a safety
database called the Motor Carrier Management Information System
(MCMIS). This safety information is different from the information
captured on a driver's motor vehicle record maintained by the State
licensing agencies. State motor vehicle records typically contain
information on driver traffic law convictions (e.g., speeding, reckless
driving, etc.). MCMIS contains information on a driver's compliance
with the medical certification process, the hours of service
regulations, and other safety regulations that apply to the driver.
Motor carrier employers currently have access to driver-specific
information only for those drivers they currently employ. Truck safety
could be improved if trucking companies had the ability to access
driver-specific safety information contained in MCMIS during the driver
screening and hiring process, in order to make more informed hiring
decisions. Prospective employees would be asked to authorize the
inquiry before a company is given access to the information.
Reauthorization provides a real opportunity to make this existing
safety database more useful than it already is, from a safety
standpoint.
D. Improve the Motor Carrier Compliance Review Targeting System Known
as SafeStat
ATA recommends that Congress direct the Secretary to address and
improve the data and methodological shortcomings in FMCSA's Safety
Status Measurement System (SafeStat) identified by the Department of
Transportation's Inspector General during its recent audit.
Justification--FMCSA administers a safety scoring system that
assigns a numerical score to every trucking company on which they have
sufficient safety and demographic data. The score, and some of the data
used to generate the score, is currently made publicly available on
FMCSA's website. Serious concerns with the scoring system methodology,
and with some of the safety data used in the system, led to a
Congressional request for a DOT Inspector General audit that began in
November 2002. Preliminary results from the audit indicate that the
system can be improved substantially, and the final report to be
released in the very near future will contain specific recommendations
for improving the system.
E. Create A Safe Driving Environment Through Sound Infrastructure
Investments
ATA recommends that Congress fund research that explores better
highway design and management practices, particularly those that could
result in improved truck safety. We also urge Congress to earmark money
to State and local planning agencies to help them to better understand
the unique needs of freight transportation, including those related to
safety. Finally, we would like to see a much greater share of Federal
highway funds directed toward those projects and highway networks that
are most critical to motorist safety and to economic productivity.
Justification--Poor road conditions and obsolete road designs
contribute to nearly a third of all fatal crashes in the United States.
In other words, more than 12,000 people die each year in collisions
with roadside hazards such as trees, utility poles, and embankments,
and almost another 3,500 die in rollover crashes often related to
veering off the roadway. Rollover crashes are a particularly
significant concern for truck drivers. Many ramps were not designed to
accommodate trucks' physical characteristics, and some have become
notorious for the number of rollover truck accidents that have occurred
because they were not designed with trucks in mind.
And unlike other areas of highway safety--such as drunk driving,
seat belt use, and vehicle design--where significant gains have been
made, the percentage of fatalities related to roadside hazards has
actually risen over the past two decades. Fortunately, this trend can
be reversed. Well designed and maintained roads reduce vehicle deaths
and injuries. They also save Americans billions of dollars in medical
costs and productivity.
Often, relatively simple, inexpensive changes can be made to roads
that will produce tremendous safety improvements. Building wider
shoulders, installing rumble strips, improving traffic signal timing to
accommodate the slower acceleration of larger vehicles are all basic
concepts that could improve truck safety. Unfortunately, knowledge
about how to accommodate trucks' unique operating characteristics is
lacking among many agencies. ATA has recommended that, on a general
basis, State and local planning agencies need to hire people with
specific freight transportation expertise.
Congress should also focus limited Federal resources on projects
that promise the greatest safety benefit. The National Highway System
(NHS) carries approximately 75 percent of all truck traffic and 40
percent of overall traffic. Yet about half of the NHS is comprised of
two-lane, undivided highways. Because the NHS is the backbone of the
Nation's freight transportation system, a single accident on the NHS
can have ripple effects throughout the supply chain due to late
deliveries caused by congestion related to the incident. It is also
possible to identify specific priority projects. According to one
study, fixing the Nation's 167 worst highway bottlenecks would prevent
287,000 crashes, including 1,150 fatalities.
F. Greater Truck Parking Can Improve Safety
ATA recommends that the Committee support the initiative to
increase the amount of truck parking in certain freight corridors and,
more specifically, support the recommendations contained in Attachment
A.
Justification--The continuing growth of long-haul truck travel has
produced tremendous demand by truck drivers for long-term rest. These
needs arise when drivers require sleep while on the road, and when they
need to fulfill their federally mandated hours-of-service obligations.
While adequate long-term truck parking is available in many areas,
there is a shortage of capacity on many of the Nation's major trucking
corridors. According to a 2002 survey of truck drivers conducted for
FHWA, 89 percent of respondents said that they are usually unable to
find parking at public rest areas, and 66 percent usually had a problem
finding space at a truck stop.
While the solution is often to expand the number of available
parking spaces, in some cases the problems can be resolved through
methods other than having to build new parking spaces. For example,
better signage, improved security measures, and enhanced parking area
design can all play a role in resolving the parking shortage. In
addition, non-traditional approaches, such as allowing truck parking at
weigh stations, commuter lots or warehouse facilities are being
utilized successfully in some parts of the country currently and may be
a feasible solution in other locations as well. ATA, in partnership
with the Truckload Carriers Association, the Commercial Vehicle Safety
Alliance and the National Association of Truckstop Operators, has
developed a comprehensive proposal for addressing the truck parking
shortage (see Appendix A).
II. Regulatory Recommendations
A. The Safety of Intermodal Chassis Can Be Improved
ATA recommends that Congress direct the Secretary of Transportation
to equitably apply and enforce laws designed to ensure the safe
condition of all regulated equipment, including intermodal chassis and
trailers. Antiquated regulations should be replaced with ones that are
in tune with current industry operations
Justification--Mr. Chairman, while the trucking industry cooperates
with its intermodal partners in many areas, and will do so during this
reauthorization cycle, there is one area on which we disagree. That
area is the responsibility for safety and maintenance of the intermodal
chassis on which intermodal cargo containers are transported on the
highway. ATA is very concerned that foot-dragging by the U.S.
Department of Transportation, and by many in the rail and ocean carrier
industries, to work with the trucking industry to resolve the
``equipment roadability'' issue is having serious safety and economic
impacts. Since the advent of containerized shipping in the 1970s, a
serious safety loophole has remained in the Federal Motor Carrier
Safety Regulations. This loophole is commonly referred to as
``equipment roadability.''
As containerized intermodal freight has evolved over the decades,
the Federal safety regulations have not kept pace. As a result, 750,000
intermodal chassis and 83,000 intermodal trailers are operating in a
safety loophole. These frame-like trailers (intermodal chassis) are
used exclusively to haul intermodal containers, and are interchanged
between steamship lines, railroads, and intermodal trucking companies.
The chassis are also classified as commercial motor vehicles by FMCSA.
However, they evade traditional FMCSA safety oversight.
FMCSA safety regulations fundamentally assume that trucking
companies have daily management control over all trucks and trailers
they take onto public roadways. Based upon that assumption, the
regulations read, ``Every motor carrier shall systematically inspect,
repair, and maintain. . .all motor vehicles subject to its control.''
FMCSA's interpretation of systematic maintenance is, ``. . . a
regular or scheduled program to keep vehicles in a safe operating
condition.'' It explains that the agency does not specify maintenance
intervals, leaving that decision to trucking company management, based
on fleet and vehicle considerations. So how does FMCSA know if a motor
carrier is failing to ``keep vehicles in a safe operating condition?''
When MCSAP safety inspections, typically conducted by State law
enforcement officials, drive a motor carrier's safety score above a
certain threshold, the agency and/or State send an envoy to the
trucking company's place of business to audit the maintenance and
employee training records, inspect the carrier's equipment, etc.
While railroads and foreign-owned steamship lines (collectively
called ``providers'') own or lease the intermodal chassis, and control
their daily disposition, they claim they are not motor carriers, thus
not technically responsible for the condition of their equipment under
Federal safety regulations. However, they do affix the annual
inspection sticker on their equipment, which constitutes an act of
certification that the equipment was inspected in detail at least once
a year. Providers conduct the annual inspection pursuant to the FMCSA's
regulations, but many do not conduct systematic maintenance on the same
equipment, which is likewise mandated by FMCSA's regulations. This
explains the poor condition of intermodal chassis and points to FMCSA's
failure to close their own regulatory loophole to hold the controlling
party accountable for the safety compliance of their own equipment that
is operated on public roads.
A recent study conducted jointly by the FMCSA and the University of
Maryland provides support for ATA's concern about the equipment
roadability issue. This study looked at 11 sectors of the trucking
industry, one of which was intermodal operations. Researchers used nine
safety performance measurements and other data managed by FMCSA to
analyze the safety performance of each sector. One significant finding
is that intermodal trucking operations were found to be average or
better-than-average in six of the nine measurements. However, in the
two measurements relating to vehicle condition, the intermodal sector
ranked poorly. Specifically, among the 11 sectors, intermodal
operations ranked last for vehicle safety condition and second-to-last
(10th) for accumulating vehicle out-of-service violations. Thus, the
latest research findings from FMCSA confirm what intermodal trucking
executives have been saying for years - that the equipment controlled
by steamship lines and railroads, and subsequently provided to motor
carriers for brief periods of time, are potentially unsafe because they
are not maintained by those controlling parties as required by FMCSA
regulations.
FMCSA has acknowledged that it has jurisdiction over the issue, but
has failed to place safety responsibility on the proper party. That
places the 833,000 intermodal chassis and trailers squarely in a
longstanding safety loophole.
B. Overly Restrictive Federal Size and Weight Standards Prevent Safety
Improvements
ATA urges Congress to give states additional flexibility to
determine the appropriate size and weight regulations for trucks
operating on highways under their jurisdiction.
Justification--At the request of Congress, the Transportation
Research Board (TRB) recently issued a new report on the impacts of
Federal truck size and weight regulations.\7\ Among the report's
conclusions was that the largely static and inflexible system of
Federal regulation that currently exists ``. . . discourages private-
and public-sector innovation aimed at improving highway efficiency and
reducing the costs of truck traffic . . .,'' including costs related to
accidents involving trucks.\8\
---------------------------------------------------------------------------
\7\ Transportation Research Board Special Report 267, Regulation of
Weights, Lengths and Widths of Commercial Vehicles, 2002.
\8\ Ibid., p. 5-1.
---------------------------------------------------------------------------
In a nutshell, the TRB report concludes that states should be given
greater authority, with strong Federal oversight, to make decisions
with regard to the size and weight limits of trucks on highways under
their jurisdiction. This reflects ATA's own policy. TRB further
recommends that Federal regulatory oversight of weight limits should
not be extended to the NHS, as S. 1140, the Safe Highways and
Infrastructure Preservation Act (SHIPA) seeks to do.\9\
---------------------------------------------------------------------------
\9\ Ibid., p. 5-16.
---------------------------------------------------------------------------
There is no doubt that continuing or further restricting current
Federal size and weight limits will cost lives. While it would not make
sense from a safety or economic standpoint to allow larger or heavier
trucks to operate on every highway or in every state, Congress cannot
continue to ignore the growing body of evidence that supports the fact
that opportunities to prevent accidents through size and weight reform
are available. Those states that identify these opportunities should be
allowed to take advantage of them.
Allowing the expanded operation of more productive trucks would
have two safety benefits. First, carriers would need fewer trucks to
haul a given amount of freight, thereby reducing accident exposure.
Second, studies have consistently found that certain trucks with
greater carrying capacity have a much better safety record than trucks
that are in common use today. A study sponsored by the Federal Highway
Administration found that the accident rate for longer combination
vehicles (LCVs) is half that of other trucks.\10\ A recent Canadian
study found that LCVs have an accident rate that is five times lower
than the rate for tractor-semitrailers.\11\ This study also found that
during the 10-year period after LCVs were authorized to operate on a
large scale in the Province of Alberta, the number of registered trucks
dropped by 19 percent, even though the economy grew and non-truck
vehicle registrations grew by 23 percent. The report concluded that
increased truck productivity due to expanded LCV use was the most
likely reason for this reduction in truck registrations.
---------------------------------------------------------------------------
\10\ Accident Rates For Longer Combination Vehicles, Scientex
Corp., 1996.
\11\ Longer Combination Vehicle Safety Performance in Alberta 1995
to 1998, Woodrooffe and Assoc., March 2001.
---------------------------------------------------------------------------
ATA is not seeking changes to size and weight regulations during
reauthorization. However, the approach suggested by TRB provides
Congress with the opportunity to review this issue based on the facts,
and ATA encourages the Committee to consider supporting it.
III. Research and Advisory Committee Recommendations
A. Reliability Performance Standards for Commercial Motor Vehicles are
Needed
ATA believes it is imperative that NHTSA be directed to undertake a
research program to determine the appropriate method for incorporating
reliability performance standards into future Federal Motor Vehicle
Safety Standards pertaining to trucks, and provide a dedicated source
of funding for this project. NHTSA should be required to report to
Congress on its work within two years, including the steps necessary to
establish a reliability program and a timetable for doing so. NHTSA
should also be directed to allow trucking equipment users and their
representatives an opportunity to participate in the development and
implementation of this program equal to that of manufacturers.
Justification--Since 1968, NHTSA has written Federal Motor Vehicle
Safety Standards (FMVSS) which measure short-term output for vehicle
safety, that is, manufacturers must certify that their equipment meets
the regulatory standards when it is placed on the market to be sold.
NHTSA has never considered reliability--which is intrinsic to the
overall elements of a design--in determining its vehicle safety
standards.
Today, as equipment systems and subsystems become more
technologically complex, and truck manufacturers move to limit the
ability of commercial fleets to specify which particular components to
install in a particular vehicle, equipment reliability is rapidly
becoming an overwhelming concern for motor carriers. An example of
existing reliability standards for vehicle systems can be found in
regulations established by the Environmental Protection Agency for
emissions control, in 40 CFR 86.085. This issue is vital to highway
safety, as compromises in reliability can deliver short-term
performance enhancements, and may lower system costs, but may also lead
to safety system failures when the equipment is most needed.
B. Prioritization in the Research Program is Needed
ATA recommends that the Secretary of Transportation be directed to
prioritize all Federal driver and vehicle-related research so that the
majority of funds support research in the most-common cause of
accidents--human factors. The Secretary should direct NHTSA to
undertake a multi-year research project to determine the effects of
risk-adaptation in both commercial and passenger vehicles, and to
determine if there are ways in which such effects may be mitigated.
NHTSA should also be directed to allow vehicle equipment users and
their representatives, including the trucking industry, an opportunity
for participation in this program equal to that of manufacturers.
Justification--Although the best available data continue to
indicate that the overwhelming majority of traffic accidents are caused
by driver behavior problems and human error, a significant percentage
of Federal research and regulatory effort has been and continues to be
focused on vehicles and equipment, with far less effort spent on human
factor issues. Motor carriers continue to incorporate a number of new
electronics systems into their commercial motor vehicles. Many of these
may eventually interact with drivers and make decisions on their
behalf. There is evidence of a growing danger from ``risk-
adaptation''--the tendency of drivers to take greater risks when faced
with the false security of a system that promises greater safety. One
example of this phenomenon can be seen in antilock braking systems
(ABS) for passenger vehicles. NHTSA has found that these systems do not
offer a net safety benefit, as ABS-equipped cars were simply involved
in different kinds of accidents than cars without ABS, not fewer or
less deadly ones. A better understanding of how this phenomenon works
and, more importantly, ways in which it might be mitigated is
necessary, as vehicles become more complex in the already-complicated
highway environment.
C. A Motor Carrier Safety Advisory Committee Should Be Established
ATA recommends that Congress require the Secretary to establish a
motor carrier safety advisory committee and extend the authorizing
period by a minimum of five years.
Justification--Section 105 of the Motor Carrier Safety Improvement
Act of 1999 authorized the Secretary of Transportation to establish a
commercial motor vehicle safety advisory committee to provide advice
and recommendations on a wide range of motor carrier safety issues. The
advisory committee was to remain in effect until September 30, 2003.
More than three years after passage of the Act, DOT has taken no
official action to establish an advisory committee. ATA finds this fact
very troubling. Establishment of the Committee would bring together
various industry segments, law enforcement, advocacy groups,
manufacturers, and government officials to discuss the most pressing
motor carrier safety issues. These groups often have conflicting
opinions on important highway safety issues. Bringing them together in
an advisory capacity would allow FMCSA to proactively develop
regulatory and program changes that have a greater chance of being
embraced and supported by the agency's stakeholders. An advisory
committee could also provide the regulators with a regular opportunity
to better understand the safety, economic, and human impacts that their
actions might have on various segments of society.
IV. ATA's Reaction to the Administration's SAFETEA Proposal
ATA commends the Bush Administration for releasing a surface
transportation reauthorization bill (SAFETEA) that recognizes the need
for substantial highway safety improvements and greater freight
transportation efficiency. While ATA has a number of specific concerns,
we believe the bill represents a positive first step in the
reauthorization process.
Some of the SAFETEA initiatives that ATA supports include:
Creation of a new highway safety improvement program funded
at $1 billion in 2004 and growing each year to $1.5 billion in
2009.
Improvements in the project development process to ensure
integration of freight transportation.
A requirement that states identify a freight transportation
coordinator.
A set aside of funding for highways that connect intermodal
freight facilities to the National Highway System, and a 90
percent state matching fund requirement for these highways (as
opposed to the current 80 percent match).
A proposal to fund ``ready-to-go'' projects at major traffic
bottlenecks and to cut bureaucratic delay in the project
development process so needed highway projects can move to
completion more expeditiously.
A greater focus on improving motor carrier information and
data analysis systems. ATA trusts that these improvements will
extend to the Federal Motor Carrier Safety Administration's
safety status (SafeStat) measurement system.
ATA opposes the following SAFETEA proposals:
While the Administration has stated a commitment to
improving freight transportation, SAFETEA would subsidize the
intermodal movement of freight at the expense of the highway
system, which carries the vast majority of the Nation's
freight. The bill proposes expansion of funding eligibility to
the Surface Transportation Program and the Transportation
Infrastructure Finance and Innovation Act (TIFIA) for
intermodal freight transportation projects, including rail
facilities, even though just over one percent of the Nation's
freight moves via intermodal rail. Trucks deliver 68 percent of
the freight and are the exclusive provider of freight
transportation services to more than 80 percent of American
communities. A true commitment to improving freight efficiency
cannot include the further diversion of limited funds from the
Nation's ailing highways. A fair transportation bill will not
require one transportation mode to subsidize its competitors.
The U.S. Department of Transportation's own research
suggests that the proposed investment levels will not be
adequate to even maintain current highway system conditions and
traffic congestion levels. We urge Congress to increase the
Federal commitment to highways without raising taxes and to
prioritize funding for highways of national significance.
The proposal would eliminate the ability of trucking
companies to pay their heavy vehicle use taxes (HVUT) on a
quarterly basis and requires each truck to display a decal
demonstrating payment of the tax. While we recognize that HVUT
evasion is a serious problem, law-abiding trucking companies
should not be punished because of the actions of a few
miscreants. We strongly oppose the decal requirement. It is
unnecessary, an added administrative burden and redundant to
procedures already available as proof of fees paid. In
addition, we are concerned about the adverse financial impact
of elimination of the quarterly payment privilege on trucking
companies.
ATA opposes the exemption of safety, security and idle
reduction technologies from the Federal excise tax on trucks
and truck equipment. This provision would place the Federal
government in a position of having to create a new Federal
bureaucracy to evaluate potentially thousands of devices. ATA
also has strong reservations about the exposure to legal
liability created by federally-endorsed safety technologies.
ATA opposes the Administration's proposal to continue the
Interstate Highway toll programs created by TEA 21. Tolling
existing Interstate Highways creates a disincentive for
motorists to use Interstates, which are the safest roads.
Alternative secondary routes are likely to be at least four
times more dangerous than an Interstate Highway.
ATA opposes the Administration's rest area commercialization
pilot program. States in general have not demonstrated that
they are willing to address the truck parking shortage issue.
Ninety percent of truck parking is privately provided, and
solutions to the truck parking shortage are more likely to be
addressed by the private sector than by the public sector.
Along with the Truckload Carriers Association, the National
Association of Truck Stop Operators and the Commercial Vehicle
Safety Alliance, ATA has developed the comprehensive proposal
in Attachment A to address the truck parking shortage that
focuses on public-private partnerships.
Summary
In summary, Mr. Chairman, ATA makes the following recommendations.
I. Traffic Safety and Truck Safety Program Recommendations
ATA recommends that Congress authorize additional funding for the
Section 402 Highway Safety Grant Program administered by NHTSA, and the
MCSAP truck safety grant program administered by FMCSA, specifically
for increased traffic and speed enforcement efforts in the highway
reauthorization bill. ATA further recommends that Congress make it
clear in legislative language that MCSAP funding should be used for
State speed enforcement efforts aimed at both commercial and non-
commercial drivers, and that speed enforcement activities aimed at
commercial drivers do not have to be linked to a North American
Standard Inspection. Additional funding, additional emphasis, and
greater Federal leadership are needed on this issue to reduce the speed
and unsafe driving behaviors of all drivers on our highways in order to
save lives.
ATA is also a firm believer in the life-saving benefits of seat
belt use. ATA recommends that Congress continue to support and fully
fund the occupant protection programs of NHTSA, including the ongoing
'Click It or Ticket' grant program.
ATA recommends that Congress authorize and fund a comprehensive
Share the Road Safely education and outreach program that is designed
to educate and change the behavior of all highway users. This effort
must be coupled with increased MCSAP traffic enforcement to have the
desired outcomes. A program evaluation requirement should also be
included. This program should be funded at not less than $5 million
dollars annually.
ATA recommends that Congress authorize FMCSA to provide access to
safety data and information contained in MCMIS, within the confines of
the Privacy Act and consistent with the Fair Credit Reporting Act.
ATA recommends that Congress direct the Secretary to address and
improve the data and methodology shortcomings in FMCSA's Safety Status
Measurement System (SafeStat) identified by the Department of
Transportation's Inspector General during its recent audit.
ATA recommends that Congress fund research that explores better
highway design and management practices, particularly those that could
result in improved truck safety. We also urge Congress to earmark money
to State and local planning agencies to help them to better understand
the unique needs of freight transportation, including those related to
safety. Finally, we would like to see a much greater share of Federal
highway funds directed toward those projects and highway networks that
are most critical to motorist safety and to economic productivity.
ATA recommends that the Committee support the initiative to
increase the amount of truck parking in certain freight corridors and,
more specifically, support the recommendations contained in Attachment
A.
II. Regulatory Change Recommendations
ATA recommends that Congress direct the Secretary of Transportation
to equitably apply and enforce laws designed to ensure the safe
condition of all regulated equipment, including intermodal chassis and
trailers. Antiquated regulations should be replaced with ones that are
in tune with current industry operations
ATA urges Congress to give states additional flexibility to
determine the appropriate size and weight regulations for trucks
operating on highways under their jurisdiction.
III. Research and Advisory Committee Recommendations
ATA believes it is imperative that NHTSA be directed to undertake a
research program to determine the appropriate method for incorporating
reliability performance standards into future FMVSS pertaining to
trucks, and provide a dedicated source of funding for this project.
NHTSA should be required to report to Congress on its work within two
years, including the steps necessary to establish a reliability program
and a timetable for doing so. NHTSA should also be directed to allow
trucking equipment users and their representatives an opportunity to
participate in the development and implementation of this program equal
to that of manufacturers.
ATA recommends that the Secretary of Transportation be directed to
prioritize all Federal driver and vehicle-related research so that the
majority of funds support research in the most-common cause of
accidents--human factors. The Secretary should direct NHTSA to
undertake a multi-year research project to determine the effects of
risk-adaptation in both commercial and passenger vehicles, and to
determine if there are ways in which such effects may be mitigated.
NHTSA should also be directed to allow vehicle equipment users and
their representatives, including the trucking industry, an opportunity
for participation in this program equal to that of manufacturers
ATA recommends that Congress require the Secretary to establish a
motor carrier safety advisory committee and extend the authorizing
period by a minimum of five years.
Mr. Chairman and Members of the Subcommittee, thank you for the
opportunity to offer our thoughts regarding these safety issues. We
look forward to working with the Subcommittee to improve the safety and
mobility of our Nation's highway transportation system.
______
Attachment A--Reauthorization Proposal to Improve Truck Parking
Background
The growth of long-haul truck travel has produced tremendous demand
by truck drivers for long-term rest. These needs arise when drivers
require sleep and when they need to fulfill their federally mandated
hours-of-service obligations. While adequate long-term truck parking is
available in most areas, there is a shortage of capacity on many of the
Nation's major trucking corridors. While the solution is often to
expand the number of available parking spaces, in some cases the
problems can be resolved through methods other than having to build new
parking spaces. For example, better signage, improved security
measures, and enhanced parking area design can all play a roll in
resolving the parking shortage. In addition, non-traditional
approaches, such as allowing truck parking at weigh stations, commuter
lots or warehouse facilities are being utilized successfully in some
parts of the country currently and may be a feasible solution in other
locations as well. However, there continues to be a need to
specifically identify where truck parking shortages do exist and why.
For the most part, and with a few exceptions, state transportation
agencies have shown little propensity for resolving this issue. In
fact, only one state has taken advantage of the availability of Federal
highway funding for building truck parking spaces--which has been
available without a state matching requirement since 1995--to alleviate
the parking shortage. In the hierarchy of priorities, and within the
range of available staff expertise, the provision of truck parking
ranks well below highway construction and maintenance. Therefore,
public rest areas are often the victims of state budget cuts and
highway funding shortfalls. Moreover, truck parking does not have a
strong local constituency. In fact, the topic often stimulates much
local antagonism. This is because state and local officials do not
place a high priority on meeting the parking needs of long-haul truck
drivers. This means not only that relatively few public resources are
dedicated to truck parking, but also that private providers of truck
parking often have to deal with a variety of government-imposed
roadblocks whenever they attempt to expand the availability of truck
parking. This can encompass anything from zoning regulations to
requirements that truck stop owners pay for infrastructure improvements
to accommodate the additional traffic.
While it has been difficult to document the extent of the truck
parking shortage, and the specific causes of a lack of capacity in
certain areas, perhaps the best information comes from truck drivers
themselves. A 2002 truck driver survey conducted for the Federal
Highway Administration at the request of Congress revealed the
following:
11 percent of truck drivers surveyed frequently or almost
always find parking at rest areas.
34 percent frequently or almost always find parking at truck
stops.
89 percent sometimes, rarely or almost never find parking at
rest areas.
66 percent sometimes, rarely or almost never find parking at
truck stops.
33 percent park on entrance or exit ramps for long-term
rest.
21 percent park illegally in parking lots for long-term
rest.
11 percent park on highway shoulders for long-term rest. On
average, drivers who park in these locations do so two times
per week.
When asked why drivers park on ramps and shoulders, 94
percent gave ``no empty spaces at rest areas or truck stops''
as a reason. A smaller number of drivers cited rest area time
limits, more convenient access, or a lesser likelihood of being
bothered by drug dealers and prostitutes as other reasons for
parking on a ramp or shoulder.
79 percent of drivers preferred truck stops for extended
rest, while just 6 percent preferred rest areas.
The top five recommendations to improve the truck parking
situation identified by drivers were:
1. Build more truck stop spaces (79 percent)
2. Build more rest area spaces (66 percent)
3. Stop enforcement officers from waking drivers (57 percent)
4. Eliminate time limits on truck parking spaces (49 percent)
5. Improve parking layouts and configurations (46 percent)
These results reflect other national and state studies of truck
parking shortages. For example, a 1997 New York survey of truck drivers
found that 80 percent were always, or often, unable to find parking at
public rest areas. A recently released survey of truck drivers in Maine
found that 79 percent of drivers parked on highway off-ramps or
shoulders at some point; 42 percent on a daily or weekly basis. Most
drivers said they parked at these locations because of a lack of
convenient parking facilities. Interestingly, Maine truck drivers
stated that relative to other Northeastern states, Maine did not have a
chronic shortage of parking spaces. A 1999 Tennessee study found that
on an average weeknight nearly 44 percent of the parked trucks were
pulled over on ramps and shoulders.
All studies on the truck parking shortage have made similar
recommendations on how to resolve the problem, and they fall into the
following general categories:
Federal funding for public and private parking facilities
where demand is greatest.
Improved lighting and security for parking facilities.
Geometric improvements to improve truck access and
throughput.
Opening up non-traditional facilities to trucks for long-
term parking (e.g., weigh stations, commuter lots, warehouse
parking lots, etc.).
Better signage to increase awareness of private facilities.
Elimination of parking time restrictions on trucks.
The recommended course of action described in this document is
intended to address truck parking problems according to the best
available research. The proposal is supported by the American Trucking
Associations, the Commercial Vehicle Safety Alliance, NATSO
(representing travel plaza and truck stop owners) and the Truckload
Carriers Association.
Proposal
I. Objectives
A. Identify the geographic locations and highway corridors where
availability of parking for drivers to stop and rest (both
short term and long term) is inadequate and the reasons
therefore.
B. Increase availability of truck parking at existing truck stops and
public rest stops.
C. Upgrade truck parking area security.
D. Improve existing roadside signage system and develop real-time
communication system.
E. Develop Intelligent Transportation System deployments that provide
drivers with real-time information on the location and
availability of parking spaces.
II. Solutions
A. Identify the specific geographic locations and highway corridors
where the availability of parking for drivers to stop and rest
(both short term and long term) is currently inadequate and the
reasons therefore, and require future periodic comprehensive
surveys
B. Open inspection and weigh stations, park-and-ride facilities to
truck parking during off-hours and non-peak periods of demand;
exempt trucks from enforcement actions at these sites to
encourage the use of the sites for parking by fatigued drivers.
C. Provide tax credits and tax incentives to truck stop operators
D. Provide tax credits and tax incentives for the develop of secure
24-hour access pickup and delivery ``truck staging'' facilities
in or adjacent to metropolitan areas
E. Develop a communication system that will provide drivers with real-
time information on the location and availability of parking
spaces, using cell telephones, radio frequencies, satellite-
based text messaging systems and other avenues to broadcast
parking locations and their availability to drivers.
F. Establish a non-profit quasi-governmental corporation, the
``Parking Assistance Resource Corporation'' (PARC), for the
purpose of more efficiently and cost-effectively managing
Federal funding expended to increase the number and
availability of commercial truck parking in those areas with a
demonstrated shortage of spaces and/or other barriers to
adequate availability of long-term truck driver parking (4 or
more hours)
1. PARC's primary authority and responsibility would include: (1)
conducting periodic surveys to identify the location(s) of
truck parking shortages in the future and the reasons for
the shortage(s); (2) developing best practices and
recommended minimum design, security and lighting
requirements; (3) reviewing and prioritizing grant
applications from private enterprise and recommending grant
applications aimed at alleviating the shortage at specific
location(s) to the DOT Secretary for the Secretary's
approval; (4) identifying specific NHS corridors where
regional/multi-state strategies would be most effective and
encourage and facilitate cooperation among relevant
entities.
2. PARC would be funded with a grant from the Federal Highway
Administration with funds authorized by Congress. Proposed
funding levels are $5 million (2005); $8 million (2006);
$12 million (2007); 16 million (2008); $20 million (2009).
3. PARC would be governed by a Board of Directors comprised of
representatives from the following organizations: Federal
Motor Carrier Safety Administration, American Trucking
Associations (ATA), Truckload Carriers Association (TCA);
National Association of Truck Stop Operators (NATSO),
American Automobile Association (AAA), and Commercial
Vehicle Safety Alliance (CVSA).
G. Expand the eligibility of the Surface Transportation Program to
allow 100 percent Federal funding for ``Safety Rest Areas'' on
the NHS, as defined in Title 23 U.S.C. Sec. 120(c). Safety rest
areas are already eligible under the NHS program. In addition,
add access routes, ramps and interchanges serving safety rest
areas, regardless of whether or not they provide commercial
services, to the list of projects eligible for 100 percent
Federal share under Sec. 120.
Senator Sununu. Thank you, Mr. Duncan. Mr. Byrd, welcome.
STATEMENT OF LaMONT BYRD, DIRECTOR, SAFETY AND HEALTH,
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
Mr. Byrd. Mr. Chairman, Members of the Committee, my name
is LaMont Byrd. I'm Director of Safety and Health for the
International Brotherhood of Teamsters.
I'm pleased to appear here today on behalf of the hundreds
of thousands of Teamster members who make their living driving
on our Nation's roads. It's imperative to make their workplace
as safe as possible, since it affects not only their safety,
but the safety of the motoring public with whom they share the
roads.
Although there are a number of issues I'd like to discuss,
in the interest of time I'll focus on just a few and
respectfully request that my written testimony be included in
the record.
In April 2003, the Federal Motor Carrier Safety
Administration issued a new hours-of-service regulation.
Because the final rule is drastically different from the notice
of proposed rulemaking, we're still analyzing how its
implementation will impact on our membership. However, at this
point, we do agree with the FMCSA's decision to increase the
rest time each day, but we have serious concerns about how the
new rule's increase in consecutive hours behind the wheel each
day, and the 34-hour restart provision, will impact on our
members. We feel that the latter two provisions are likely to
increase fatigue and negate any safety benefit that the
increase in rest time per day would provide. In our
investigation into the driver-fatigue issue, we concluded that
one of the primary problems contributing to driver fatigue is
noncompliance with the hours-of-service rule.
If a Teamster driver is instructed to take a trip that
violates the hours-of-service rule, he can refuse and has a
collective bargaining agreement and the union to back him up. A
non-union driver obviously has no such protections, and,
therefore, may feel pressured to violate the rule. For this
reason, we have pushed for better enforcement of the current
rule and more funding to carry out enforcement.
The rule that the FMCSA has promulgated does little, if
anything, to boost enforcement of the hours-of-service rule,
and unless this Committee finds a way to do that, we will have
accomplished little or nothing with respect to reducing fatigue
and the number of traffic accidents that result from it.
On a separate issue, the Transportation Security
Administration recently issued an interim final rule requiring
criminal-background checks for commercial motor vehicle drivers
who currently possess or apply for a hazardous materials
endorsement. For the most part, TSA borrowed the list of
disqualifying offenses from the airline industry background
check program. We've learned much from that initial program,
including the need for waivers and appeals, which TSA has
included. However, despite the appeal and waiver provisions,
certain felony convictions do not necessarily point to
potential terrorist behavior.
I would like to recount a situation involving two Teamster
members who are sisters and who work as flight attendants for
Northwest Airlines. On a shopping trip to New York City, one of
the sisters discovered some knock-off designer purses being
sold on a street corner. Thinking that her friends back home
would like to have some of these bags, she purchased several
and mailed them back to her sister. Little did she suspect that
this innocent act would lead to their felony convictions on
interstate transportation of counterfeit goods. With no appeal
process under the airline criminal background check program,
both flight attendants face termination from jobs they've held
for a combined 35 years. They are not terrorists, nor are they
persons who should be suspect of committing terrorist acts.
This situation should lead to changes in the airline
background-check process and should serve as a warning for the
hazardous materials endorsement check program.
Another issue yet to be resolved is a requirement for
criminal background checks for Mexican drivers who haul HAZMAT.
To the best of my knowledge, the DOT has resolved the issue of
criminal background checks for Canadian drivers hauling HAZMAT
in the U.S. However, nothing has been reported on the status of
criminal background checks for Mexican drivers.
I need not remind the Committee that it was the Department
of Transportation which insisted that all foreign-domiciled
motor carriers are subject to all U.S. safety regulations.
Therefore, Mexican drivers hauling HAZMAT must undergo a
criminal background check.
Furthermore, given that long-haul Mexican trucks may soon
be traveling everywhere in the United States, a number of other
issues brought out in the Inspector General's recent audit
report need to be addressed. I won't go into them right now;
rather, I ask that you review our written testimony.
Finally, the Teamsters believe that some diabetics should
be allowed to operate in interstate commerce, but current law
prohibits them from doing so. In fact, current law only allows
people who use insulin to operate a commercial motor vehicle in
intrastate commerce on a waiver period not to exceed 3 years.
Most Teamster members don't operate in intrastate commerce;
they operate in interstate commerce. And, unfortunately, many
of them have lost their jobs as a result of diabetes,
irrespective of the facts that they have a proven safe driving
record and their medical condition is under control.
The Federal Motor Carriers Safety Administration has
proposed an exemption program, but it does little to correct
the problem. It would only permit people to participate in it
if they participated in an intrastate waiver program for the 3
years immediately preceding their application for an exemption.
The Teamsters Union and the American Diabetes Association
believe that the 3-year rule is unnecessary, based on the
current practice of diabetes. This is a position that the
Federal Motor Carrier Safety Administration's own expert
medical panel pushed in both the FMCSA's July 2000 report, as
well as in the expert medical panel's own additional comments,
which were inserted in the public docket. We, therefore, urge
the Committee to address this important issue in the upcoming
TEA-21 reauthorization bill.
With that, I, again, thank you for this opportunity to
testify.
[The prepared statement of Mr. Byrd follows:]
Prepared Statement of LaMont Byrd, Director, Safety and Health,
International Brotherhood of Teamsters
Mr. Chairman and Members of the Committee:
My name is LaMont Byrd and I am Director of Safety and Health for
the International Brotherhood of Teamsters. Thank you for the
opportunity to testify here today on behalf of our 1.4 million members
on such an important issue: motor carrier safety.
The Teamsters Union represents hundreds of thousands of workers who
make their living driving on our Nation's roads, from interstate
highways to city streets. It is imperative to make their workplace as
safe as possible since it affects not only their safety but also the
safety of the motoring public with whom they share the roads. With that
said, there are a number of issues that I'd like to mention that are
integral to improving and strengthening motor carrier safety and
decreasing the growing number of accidents, injuries, and fatalities on
our Nation's roads.
Hours of Service
In April, the Federal Motor Carrier Safety Administration (FMCSA)
issued new hours of service regulations that allow drivers to drive 11
hours and work a total of 14 hours after 10 consecutive hours off-duty.
Current law allows 10 hours of driving time within a 15-hour on-duty
period after 8 hours of rest. The Teamsters have not had nearly
sufficient time to develop an opinion on all aspects of the regulation,
since the final rule is drastically different from the first Notice of
Proposed Rulemaking the FMCSA issued. We would have preferred an
opportunity to comment on the new rule before it was finalized.
However, we do agree with the FMCSA's increase in the rest time for
drivers. For some time, we have advocated the need for more rest time.
Eight hours is not sufficient time for a driver to conduct personal
business (such as eating, showering, and spending time with his/her
family) and to get the necessary sleep. However, we cannot help but
wonder what the FMCSA was thinking when it increased the consecutive
number of hours behind the wheel for a driver, which essentially
negates any benefits the increased rest time would provide. The fact is
that by the Department of Transportation's (DOT) own estimates, 755
fatalities and 19,705 injuries result from fatigued drivers each year
on U.S. roads. Numerous fatigue studies show that after eight hours of
driving time a driver's alertness significantly deteriorates. The U.S.
military agrees. Twelve years ago, nearly 50 percent more soldiers died
in accidents (235) than in battle (147). In the recent war in Iraq,
there were only a third as many non-combat fatalities (36) as deaths in
battle (101). The same pattern appears to hold for nonfatal injuries,
with the data on evacuated Army troops showing that 107 had non-combat
injuries, compared with 118 who had combat wounds. Col. Terry J.
Walters, the physician who is chief of health policy in the office of
the Army's surgeon general, attributed the steep drop in non-combat
deaths and injuries, in part, due to the Army's efforts to improve
driver safety and to ensure that soldiers were well-rested when
operating vehicles. In the first Gulf War, motor vehicle accidents
alone accounted for about half of all serious injuries.
With that said, the Teamsters Union has concerns about the FMCSA's
increase in consecutive hours of driving and will be looking carefully
at the effect this will have on the safety of our members and the
safety of the motoring public. In addition to our concerns with
increasing the consecutive number of hours behind the wheel, the
Teamsters has significant concerns with the 34-hour restart provision
in the FMCSA's regulations. The cumulative effect of this allowance
will significantly increase driving time and fatigue and has the
potential of even eliminating Teamster jobs.
Finally, it is important to point out that Teamster drivers and
their companies are the safest on the road. We obey the rules. If by
chance, a Teamster driver is asked to take a trip that violates the
hours of service rule, he/she can refuse and has the union to back him
up. For this reason we have pushed for years for better enforcement of
the current rules and more funding to carry out enforcement. The rule
that the FMCSA has put forward does little if anything to boost
enforcement of the existing rules, which is the major problem with
hours of service. Unless this Committee finds a way to do that, we will
have accomplished nothing with respect to reducing fatigue and the
number of traffic accidents that result from it.
Criminal Background Checks for Hazardous Materials Endorsement
The Transportation Security Administration (TSA) recently issued an
Interim Final Rule requiring criminal background checks for Commercial
Motor Vehicle (CMV) drivers who currently possess or apply for a
Hazardous Materials Endorsement in order to haul hazardous materials.
The Teamsters Union intends to file comments to the Docket, but we want
to make the Committee aware of several issues that may present problems
for our members who may have committed some indiscretion in their past
but have been rehabilitated, proved to be model citizens, and are
productive members of their communities.
For the most part, TSA has ``borrowed'' the list of disqualifying
offenses from the airline industry background checks. We have learned
much from that initial program, including the need for waivers and
appeals, which TSA has included. TSA's notification process keeps the
criminal history record check information out of the hands of
employers, who have used this information to dismiss employees in the
airline industry for offenses committed beyond the look-back period and
outside the scope of disqualifying offenses. However, despite the
appeal and waiver provisions, certain disqualifying felony convictions
do not necessarily point to potential terrorist behavior.
I would like to recount a situation involving two Teamster members
who are sisters and work as flight attendants for Northwest Airlines.
On a shopping trip to New York City, one of the sisters discovered some
``knock off'' designer purses being sold on a street corner. Thinking
that her friends back home would like to have some of these bags, she
purchased several and mailed them back to her sister. Little did she
suspect that that innocent act would lead to her and her sister's
felony convictions on interstate transportation of counterfeit goods.
With no appeal process under airline criminal background checks, both
flight attendants face termination from jobs they have held for a
combined 35 years. They are not terrorists nor are they persons who
should be suspect of committing terrorist acts. This situation should
lead to changes in the airline background check process and should
serve as a warning for the hazmat endorsement check and background
checks in other industries as well.
The trucking industry has been a place where reformed, former
criminals have found a place to work, and where rehabilitation programs
have encouraged entry into the trucking profession. For that reason, we
intend to question the seven-year look-back provision. Although it is
an improvement over the ten-year look-back in the airline industry, it
is somewhat arbitrary when one considers whether a person is truly
rehabilitated after four years, five years or even three years, for
that matter, of committing a criminal act.
In addition, although TSA does not require a revocation of a hazmat
endorsement based on an initial review (Initial Notification of Threat
Assessment), the agency does notify the state that the individual may
be within the prohibited category under the rulemaking, in which case
the state may take whatever action it deems appropriate or do nothing
until TSA issues its final determination. The Teamsters Union is
concerned that a state could take immediate action and revoke a hazmat
endorsement upon initial determination by TSA. And while there are
specific time limits in the rulemaking for initiating the waiver and
appeals processes by the individual, TSA fails to put any specific
deadlines on its review processes. We could envision a state revoking
or denying a hazmat endorsement for a driver upon initial
determination, and have TSA take several months to get through the
waiver or appeal process, only to finally determine that there is no
threat posed by the individual (Final Notification of Threat
Assessment). The driver could be adversely affected in not being able
to work during this period. We should note for the Committee that all
of the union Less-than-Truckload (LTL) carriers require their drivers
to possess hazmat endorsements because they do not know from one day to
the next whether part of a shipment may contain hazardous materials. So
if a driver loses his hazmat endorsement, he loses his job, regardless
of whether he still has his commercial drivers license (CDL). We also
question whether the TSA has sufficient resources and personnel to
address this issue, especially in light of recent reports that half of
the 30,000 airport security screeners are still awaiting criminal
background checks. We would remind the Committee that it is estimated
that 3.5 million drivers currently possess a hazmat endorsement. For
these reasons, we will also encourage the TSA to establish strict
deadlines for their review processes.
A final issue yet to be resolved is the requirement of criminal
background checks for Mexican drivers who haul hazardous materials. The
USA Patriot Act provided for such a requirement for U.S. drivers, and
to the best of my knowledge the DOT has resolved the issue of criminal
background checks for Canadian drivers hauling hazmat in the U.S.
However, nothing has been reported on the status of criminal background
checks for Mexican drivers. I need not remind the Committee that it was
the DOT which insisted that all foreign domiciled motor carriers are
subject to all U.S. safety regulations. Therefore, Mexican drivers
hauling hazmat should and must undergo a criminal background check.
Long-haul Mexican trucks will soon be traveling anywhere in the United
States carrying chemicals, gasoline and other flammable liquids and
gases. We need to know that terrorists will not find a more convenient
way to infiltrate our hazardous materials industry.
Cross-Border Trucking
As this Committee well knows, the Teamsters Union has opposed the
opening of the border to Mexican trucks for travel beyond the currently
permitted commercial zones because of the serious concerns we have for
the condition and safety of Mexican trucks. Had not the Teamsters and
other safety groups voiced their concerns dating back to 1995, when the
trucking provisions were to be first implemented, we fear that many of
the safety measures put into practice within the past several years
would never have occurred. While some may label us as obstructionists
to free trade, we believe we have provided a valuable service to the
motoring public in assuring that highway safety in this country will
not be compromised.
With that said, the DOT's Inspector General just issued a Follow-Up
Audit On The Implementation Of Commercial Vehicle Safety Requirements
At The U.S.-Mexico Border. In it, the IG states that the FMCSA has made
substantial progress in meeting the Murray-Shelby requirements
incorporated in the past two Transportation and Related Agencies
Appropriations Acts. However, there remain several areas of concern to
us, and these, left uncorrected, could jeopardize the significant
progress made to date.
First, the IG reports that inspection facilities were sufficient at
24 of the 25 commercial crossings. The Teamsters can only assume that
these are temporary facilities because this statement seems
inconsistent with facts later reported in the audit. Congress provided
$66 million for the four border states to construct and develop
permanent border inspection facilities. In Arizona, which received $2.1
million, construction of a permanent inspection facility in Nogales has
not been completed, and construction of a permanent inspection facility
in Douglas is only in the planning phase. In California, which received
$8.9 million, construction of an inspection facility in Tecate is only
in the design phase. In New Mexico, which received $2.2 million,
construction of a permanent inspection facility in Santa Teresa won't
be completed until 2005. In Texas, which received $52.8 million,
permanent facilities at seven key border crossings--Eagle Pass, El Paso
Bridge of the Americas, Laredo Columbia, Los Indios, Pharr, and
Veteran's Bridge, also won't be completed until 2005. In addition,
plans to construct a facility at Laredo World Trade Bridge, one of the
largest ports of entry at the U.S.-Mexico border, are on hold.
The IG also reports that at two border crossings--Douglas and San
Luis in Arizona--a portion of the dedicated out-of-service space was
not being used because the General Services Administration had not
completed improvements. In addition, at five border crossings--
Columbus, New Mexico and Eagle Pass, El Paso Bridge of Americas, Laredo
World Trade Bridge, and Roma in Texas--the Bureau of Customs and Border
Protection moved or planned to move FMCSA's dedicated inspection and
out-of-service spaces. For example, at the El Paso Bridge of Americas,
without coordinating with FMCSA, the Bureau of Customs and Border
Protection inspectors notified the local supervisory inspector that
within 4 days the dedicated inspection and out-of-service spaces would
be moved to a less desirable location on the compound. Clearly, this is
unacceptable.
In addition, the IG reports that inspectors at 22 crossings could
electronically access Mexican and U.S. databases to verify CDLs,
license plates, authority to operate in the United States, and U.S.
insurance coverage. There were problems at the other crossings, which I
don't need to detail at this time. What's important to note here is
that the IG states that it did not reverify the accuracy of the Mexican
commercial driver's license and vehicle registration databases. The
Teamsters pose a question to the Committee: Who cares about being able
to access a database if the information in it may not be accurate? We
would urge the Committee to investigate this further.
We would also urge the Committee to look into how state and local
law enforcement personnel will be able to access Mexico's databases.
From what we can tell, he/she is expected to call an 800 number to
access this information and to check if a Mexican driver has insurance
or proper operating authority. We would suggest that such a system may
prove to be a disincentive for state law enforcement officials to
vigorously pursue violations by Mexican carriers and drivers.
Along these same lines, we question how the state and local law
enforcement personnel will determine whether a Mexican driver/carrier
is in violation of U.S. cabotage laws. If, for example, a driver was
pulled over for running a red light in Florida and he was supposed to
be taking a load to Idaho from Mexico, would the state and local law
enforcement personnel recognize the cabotage violation and know how to
enforce it?
Finally, the IG audit reports that 18 states, including the border
state of New Mexico and the states of Nevada and New York, have not yet
adopted FMCSA's rule authorizing their State inspectors to take action
when they encounter a vehicle operating without authority. This finding
leads us to question Secretary Mineta's November 20, 2002,
certification that authorizing Mexican carrier operations throughout
the U.S. does not pose an unacceptable safety risk. The fact is that
State inspectors need to be able to place Mexican carriers operating
without authority out of service. The IG states that the primary
concern here is not necessarily the long-haul carriers whose authority
will be checked every 90 days, but rather carriers authorized to
operate only in the commercial zones that continue beyond the zones and
do so illegally. As reported by the IG in 1999, at least 52 Mexican-
domiciled motor carriers operated improperly in 20 states beyond the
four border state's commercial zones, and roadside inspection data
throughout the U.S. has shown that this practice has continued. Two of
the 20 states were Nevada and New York, both of which have not
authorized their State inspectors to place Mexican carriers out of
service.
Diabetes
The Teamsters Union believes that some diabetics should be allowed
to operate in interstate commerce but current law prohibits them from
doing so. In fact, current law only allows people who use insulin to
operate a Commercial Motor Vehicle (CMV) in intrastate commerce on a
waiver for a period not to exceed 3 years. Most Teamster members don't
operate in intrastate commerce. They operate in interstate commerce,
and unfortunately many of them have lost their jobs as a result of
diabetes, irrespective of the fact that they have a proven driving
record and their medical condition under control. The FMCSA has
proposed an exemption program, but it does little to correct the
current problem. It would only permit people to participate in it if
they have participated in an intrastate waiver program for the three
years immediately preceding their application for an exemption.
But according to the FMCSA, there are as many as 20 states that do
not have an intrastate waiver program or severely restrict
participation through grandfather provisions. Thus, to participate in
the program, you have to live in a state that has an intrastate waiver
program, meet the state's criteria for participation in the waiver
program, work for an employer that has intrastate driving
opportunities, and work for an employer who is willing to let you drive
intrastate for three years. Obviously, the end result is that no one
will actually be able to participate in this program.
The Teamters Union and the American Diabetes Association believe
that the three-year rule is unnecessary based on the current practice
of diabetes, a position that FMCSA's own Expert Medical Panel pushed in
both the FMCSA's July 2000 report as well as in the Expert Medical
Panel's own additional comments which were inserted into the public
docket. The Expert Medical Panel recommended a one or two month
adjustment period, which the Teamsters would support following the
doctor's advice and replacing the three-year rule with a one or two
month adjustment period. We therefore urge this Committee to express
their concern with the three-year rule and address this issue in the
upcoming TEA-21 reauthorization bill.
Lack of Roadworthy Chassis
The Teamsters Union currently represents several hundred port truck
drivers and has been working to organize all of the approximately
50,000 truck drivers who haul intermodal containers in ports located
throughout the United States. These truck drivers suffer from
deplorable wage and working conditions, and while I will not get into
specifics about the cause of their plight, I do want to focus on the
fact that they are forced every day to haul containers on unsafe,
unroadworthy chassis, perpetuating a motor carrier safety problem that
has existed for decades and has been largely ignored by the FMCSA.
Although widely disregarded, these workers play an integral role in
United States trade. United States' ports and the shipping industry
form the foundation for international trade upon which the vitality of
the free market economy depends. International trade experts reported
that the global container trade rose from an estimated 83 million
containers in 1990 to 198 million in 2000. And despite the economic
downturn in 2001, the top 20 U.S. ports still experienced increases in
container volume from the previous year. Experts predict that by 2010
at least 90 percent of all freight carried by ocean carriers will be
transported by intermodal containers. Consequently, profits for ocean
carriers have increased steadily for the past three years.
Unfortunately, the same cannot be said for port truck drivers. Port
drivers are forced to spend an average of 3 hours per day, or 15 hours
per week, in ports, all unpaid, waiting in various lines to pick up
chassis and containers. Because of their economic plight and the fear
of retaliation and blacklisting, they are forced to choose between
hauling unsafe chassis or taking their place at the end of a new line,
while the maintenance and repair shop makes the chassis barely
roadworthy. Port drivers are forced to choose between hauling
overweight containers or receiving no work as a result of their
refusal. They are also forced to haul improperly labeled containers
that often contain hazardous materials. Again, if the port driver
complains, he or she is likely to suffer some form of retaliation.
To correct this situation and assure that port drivers are given
roadworthy chassis from the start, the Teamsters Union has joined with
its union brothers on the docks, the ILA and ILWU, and the American
Trucking Association, whose own member trucking companies have seen
their safety ratings maligned, through no fault of their own, to
support legislation that spells out who is responsible for inspection
and repair of intermodal chassis and would require that equipment to
comply with all commercial motor vehicle safety requirements before it
is handed off to a port driver or trucking company. Mr. Chairman, motor
carriers and drivers have been routinely cited and fined for violations
of motor carrier safety regulations of chassis that they do not have an
opportunity to systematically maintain. For the most part, rail
carriers and foreign-owned steamship lines control the entire
maintenance program for all 750,000 chassis under their management.
Only those parties who control the equipment and have the opportunity
and authority to maintain, repair and inspect that intermodal equipment
should assume responsibility for the safety of that equipment.
That is what we would propose in new legislation, and we are
hopeful that you, Mr. Chairman, and members of the Committee will work
with us to assure that the thousands of chassis with containers that
leave the ports every day have been maintained properly, inspected, and
repaired if necessary, so that highway safety is not compromised by
this segment of the trucking industry.
Toll Collector Safety
The Teamsters Union also represents hundreds of toll collectors and
road crews across the United States who clearly work in hazardous
conditions. These workers are exposed to fast-moving traffic with
little or no protection. The DOT has addressed some of the safety
issues involving road crews through its existing work zone safety
program, although it is important to note that the DOT's SAFETEA bill
doesn't seem to reauthorize it. We're hopeful that was an oversight and
that this Committee will address it in its TEA-21 reauthorization bill.
However, nothing has been done to deal with the safety issues that toll
collectors must face at toll plazas, especially with regard to EZ Pass
or Smart Tag programs that have gone into effect. While the Teamsters
Union is in no way advocating elimination of these programs, we are
requesting that the Committee include in its TEA-21 reauthorization
bill a study that examines the inherent dangers of toll and express
toll programs to workers and others.
15 Passenger Vans
Despite mounting evidence that 15-passenger vans are inherently
dangerous when driven by an untrained driver, and despite repeated
Congressional mandates that the DOT take action to ensure that vehicles
and their drivers meet Federal safety standards, the DOT has yet to
issue a final rule requiring the application of all Federal Motor
Carrier Safety Regulations (FMCSRs), including commercial drivers
license CDL and drug and alcohol testing regulations, to these unsafe
vans. Further, in proposed rules, the DOT has refused to require states
to apply similar regulations to vans operating intrastate.
Compounding this problem is the fact that many school districts
across the country are transporting students in these dangerous
vehicles, typically driven by an untrained teacher, coach or parent, to
school and school-related activities. While Federal law prohibits the
sale of these and other vehicles that do not conform to Federal school
bus standards, for the purpose of transporting school children, the law
does not prohibit schools from using the vehicles when they are able to
obtain them through other means. Schools are taking advantage of this
loophole and, in an effort to save money, are using 15-passenger vans
in lieu of school buses--often with fatal results.
To explain, Section 4008(a) of TEA-21 changed the definition of
commercial motor vehicle to cover all passenger vehicles that are
designed or used to transport more than 8 passengers (including the
driver) for compensation. In addition, TEA-21 required that all FMCSRs
apply to those commercial motor vehicles, except to the extent that the
Secretary of Transportation determines through a rulemaking proceeding,
that it is appropriate to exempt such operators of CMVs designed or
used to transport between 9 and 15 passengers (including the driver)
from the application of those regulations.
In response to the changes made in TEA-21, the Federal Highway
Administration (FHWA) instituted a rulemaking which would have required
all CMVs designed or used to transport between 9 and 15 passengers
(including the driver) to file a motor carrier identification report,
mark their CMVs with a U.S. DOT identification number, and maintain an
accident register. Under the proposed rule, these commercial passenger
vans would be exempt from all other FMCSRs. This rulemaking was never
finalized.
Congress, in response to DOT's failure to implement the changes
required by TEA-21, enacted the Motor Carrier Safety Improvement Act of
1999 (MCSIA), which, among other things, ordered the DOT to finalize
the rulemaking initiated by FHWA. In addition, MCSIA stated that ``[i]n
no case should the rulemaking exempt from such regulations all motor
carriers operating commercial vehicles designed or used to transport
between 9 and 15 passengers (including the driver) for compensation.''
Although TEA 21 required the rulemaking to be finalized by December
9, 2000, the DOT has yet to finalize the proposed rule in accordance
with the requirements of TEA-21 and MCSIA. The newly-created FMCSA did
initiate a new rulemaking on January 11, 2001, which proposes requiring
certain CMVs designed to transport between 9 and 15 passengers
(including the driver) that transport those passengers for direct
compensation, interstate and to destinations beyond a radius of 75
miles to comply with the FMCSRs, except for the CDL and drug and
alcohol testing regulations. FMCSA has not taken any further action on
this proposed rule. At present, the FMCSRs apply to commercial motor
vehicles designed or used to transport 16 or more passengers (including
the driver).
Congress should require FMCSA to finalize its rulemaking
expeditiously, and should require the application of all FMCSRs,
including CDL and drug and alcohol testing regulations, to commercial
passenger vehicles designed or used to transport between 9 and 15
passengers (including the driver), regardless of the distance traveled.
FMCSA should also be required to make the states adopt comparable
intrastate standards as a condition of MCSAP participation.
Hazardous Materials Reauthorization
Finally, the International Brotherhood of Teamsters is committed to
supporting legislation that will provide a safe work environment for
its members who are involved in the handling and transportation of
hazardous materials. As Congress prepares for reauthorization of TEA-
21, we anticipate that the Committee may also consider reauthorization
of the Hazardous Materials Transportation Program, which in our view is
long overdue.
Given the limited amount of time at this hearing, we won't go into
detail on our priorities for hazmat reauthorization. Rather, we
encourage the Committee to hold a separate hearing on this important
issue. In the interim, we leave you with the following:
The Teamsters support the existing shared jurisdiction of
the Department of Transportation and the Occupational Safety
and Health Administration to ensure safety of all hazmat
workers.
We urge all employees involved in, or around, the
transportation of hazardous materials be included within the
scope of DOT training requirements to assure their
familiarization with the safety aspects of the HMR rules.
We urge the Committee to maintain and increase funding to
non-profit employee organizations to train hazmat employee
instructors, and to expand that program to allow those
instructors to train rank-and-file hazmat employees. We also
urge the Committee to increase funding for training
firefighters and other emergency responders.
We urge the Committee to reject any proposals to remove
placards from hazmat shipments.
We urge the Committee to retain existing language that
requires the Secretary of Transportation to coordinate with the
Director of the National Institute for Environmental Health
Sciences (NIEHS) and others to monitor public sector emergency
response planning and training for accidents/incidents
involving hazardous materials.
We oppose any special interest exemptions from hazardous
materials transportation safety regulations, including any
efforts to increase the special permitting period above two
years.
With that, I thank you again for the opportunity to testify today.
I'd be happy to answer any questions you may have.
Senator Sununu. Thank you, Mr. Byrd.
Ms. Claybrook?
STATEMENT OF JOAN B. CLAYBROOK, PRESIDENT,
PUBLIC CITIZEN
Ms. Claybrook. Thank you very much, Mr. Chairman.
I am here testifying today on behalf of Public Citizen, of
which I am the President, Citizens for Reliable and Safe
Highways, Parents Against Tired Truckers, and Advocates for
Highway and Auto Safety. I'm an efficiency expert testifying
for all of them.
Several years ago, this Subcommittee held hearings on
truck-safety programs, and Senator Breaux held up a list of
more than 20 actions mandated by Congress that the agency had
ignored. The Administrator Clapp, at the time, stated that the
agency was preparing a manual on how to do these regulations.
Senator Breaux admonished the Administrator and told him he
should ``hammer and break some china'' to get the attention of
the agency staff.
I'm here to report today that no china has been broken, and
not much has been scratched. I do hope, however, that
Administrator Sandberg will carry out the commitment that she's
made to this Committee to move these.
But the agency has long been unresponsive to Congressional
mandates, and last fall Public Citizen and some other safety
groups decided to take seriously the Congressional mandates and
sued the agency on five rules that had never been issued that
the Congress had mandated. And the agency immediately settled
that lawsuit. And attached to my full testimony are some
specific commands that Congress made, and 20 of which are still
delinquent. This is unacceptable, and we hope that the
Committee will exercise great oversight over this agency, as a
result.
The annual death toll from truck crashes is equivalent to
26 major airline crashes a year. They cost $24 billion a year.
Trucks are over-involved in crashes. And while there's been a
recent reduction in deaths and injuries from truck crashes, a
small amount, driver deaths in 2002 actually went up 1.2
percent. The Department of Transportation set a goal of 50
percent reduction in deaths within 10 years. This was in 1999.
That's what they would have to achieve, that yellow line, in
order to do that. And, as a result, they changed their goal so
that instead of having to have a reduction of 50 percent, they
recently set a reduction to 1.65 million truck miles traveled
by 2008, in order to lessen the burden that they had originally
undertaken.
The agency has requested a 20 percent increase in their
authorization budget for years 2004 to 2009. While our
organization supports increased funding for truck safety
programs, we're not sure the agency knows how to spend it
effectively without strong direction, specified goals, and
sustained goading by the Congress.
Our legislative proposal is extensively outlined in my
statement that I'm submitting for the record. Without specific
provisions requiring the agency to take action, it's unlikely
there will be much progress.
Let me briefly describe the highlights of our proposals.
First, bigger trucks. Safety groups oppose any increase in
truck size and weight, any proposal to give individual states
the option to set weight limits on the national highway system,
and any attempt to repeal or thaw the LCV freeze enacted in
1991. This has been one of the most successful safety laws ever
passed by Congress--and I acknowledge Senator Lautenberg's
important role in leading that--and it should be retained.
Triple trailers and longer doubles are not suited for many
U.S. highways--I would say New Hampshire is a great example of
highways for which they are not suited--and are dangerous in
many driving circumstances and are hated by the driving public.
A recent Transportation Research Board report attempting to
rationalize bigger, heavier trucks is deeply flawed, as I
explain in my full statement.
The hours-of-service rule. Current hours-of-service
requirements are often characterized as sweatshop labor. The
new rule by the Federal Motor Carrier Safety Administration,
just issued in late April, is slave labor. Under the new rule,
scheduled to take effect shortly, a truck driver, in 4 weeks,
could drive as many as 308 hours. Compare this to the normal 40
hour work week for the majority of Americans, of 160 hours.
Overall, the rule increases driving time by over 20 percent and
from 10 to 11 hours of continuous driving. This increase was
adopted despite overwhelming evidence that the risk of crash
soars between the tenth and eleventh hour of driving. And
without enforcement, such as a requirement for onboard
recorders, a key provision dropped in the final rule, trucking
companies and shippers will continue to abuse drivers and force
them to violate even the new rule, with paper records.
HAZMAT transportation. The agency is lax, even after 9/11.
There are serious loopholes and regulatory gaps that would
facilitate an intentional or unintentional incident. There is a
lack of critical coordination between two DOT agencies who
share responsibility for MCSA and RSPA, the Research and
Special Programs Administration, which registers carriers to
haul HAZMAT. For example, a motor carrier wishing to carry
HAZMAT need only register with RSPA and pay a $300 annual fee.
That's it. It's a paper action. Neither the carrier, nor RSPA,
informed FMCSA about the authorization to carry HAZMAT, and
RSPA has proposed some new standards, but there is no plan for
implementation with FMCSA as to Mexican and Canadian trucks.
Before being authorized to carry HAZMAT, a carrier should
have to pass a safety audit and proficiency exam, and HAZMAT
trucks should be governed by the Global Positioning System
technology to permit real-time tracking. In addition, FMCSA has
failed to meet a congressional directive to require commercial
driver's licenses to contain some form of unique identifier, as
Congress has twice directed. This in one of the rules
challenged in our lawsuit, and they will now be issuing this
rule.
FMCSA is derelict in overseeing the safety of trucking
companies. Their negligence in monitoring and evaluating the
safety fitness of motor carrier companies would never be
tolerated in aviation safety, the sister agency of FMCSA. There
is no other word but ``appalling'' to describe how unsafe motor
carrier companies enter business, and this agency sits back and
does nothing.
We strongly support a program targeted at new motor carrier
entrants--and I note that Ms. Sandberg mentioned some of
those--and have proposed steps that the agency take to
implement the program. Only in this way can we address the
backlog of unrated motor carriers and stop unscrupulous
companies from jeopardizing the safety of families on our
roads. Yet FMCSA continues to initiate experimental pilot
programs at the expense of safety, ignoring legislative
directives, while undertaking costly and questionable programs.
Just this week, it finally conceded to discontinue a
proposal the agency had initiated for a pilot program to lower
the age of interstate truck drivers from 21 to 18--20 drivers
who are documented to be heavily overinvolved in crashes.
Defects in the current commercial driver license program
permit abuses. No training or prior certification of any kind
are required to obtain a CDL for either truck or bus drivers in
interstate commerce, and no CDL is even required of truck
drivers of 10,000- to 26,000-pound trucks.
FMCSA also recently watered down its rule, disqualifying a
CDL holder for offenses committed while operating either a
commercial or noncommercial vehicle, to apply only if the
violations resulted in suspension or revocation of the license,
rather than conviction of various offenses. We urge the
Congress to clarify the authority here.
Truck crash data collection is inadequate--and I will
quickly finish my statement, Mr. Chairman--due to a lack of
uniformity. And FMCSA and NHTSA were urged, in 1999, in the
statute, to improve the collection and uniformity, and it
hasn't happened yet. Many truck and bus issues at the Mexican
border remain unresolved, most particularly the failure to
require adequate safety audits of Mexico-domiciled carriers
that operate just within the 20 mile zone.
Programs like Share the Road, which is supported by the
administration, need to be reformed or terminated. This program
is essentially a blame-the-driver program. It essentially says
that car drivers should stay out of the way of trucks. And
that's called the No Zone program. You can't be on either side
or in the rear of a truck. I don't know how you drive on most
highways in America and obey that rule. This has been subject
to two GAO investigations. It's a waste of taxpayer money. And
the only hope is that NHTSA, which is involved with car
drivers, as opposed to truck drivers, would be designed to
implement this program. If it fails to reduce deaths and
injuries, it should be sunset and the funds put into more
effective programs.
I doubt, if the airlines were causing crashes and deaths of
small-plane operators, the equivalent of trucks to cars, the
FAA would solve the problem with an education program that
shielded the airlines. This is exactly what this program is
doing. And the MCSAP money should not be used to support it.
Finally, I'd like to comment on the Truck Advisory
Committee, which was mentioned. I think that this is, once
again, another program that should be--not be recreated. In a
prior incarnation, it engaged in misbehavior and was
eliminated. The Committee is a waste of money, because it's
intended, really, just to give trucking officials an inside
track on the agency's actions. And even though safety is
spelled out in the agency statute as its top priority, only one
safety group is represented, among 20 trucking members or
associated--trucking related in the last Committee.
Mr. Chairman, we will submit, for the record, further
comments on the specific requirements of the Administration's
proposals and suggestions for other matters.
Thank you.
[The prepared statement of Ms. Claybrook follows:]
Prepared Statement of Joan B. Claybrook, President, Public Citizen,
on Behalf of Public Citizen, Citizens for Reliable and Safe Highways
(CRASH), Parents Against Tired Truckers, and Advocates for Highway and
Auto Safety
Thank you, Mr. Chairman and members of the Senate Commerce
Subcommittee on Surface Transportation and Merchant Marines for the
opportunity to testify on the issue of improved motor carrier safety.
My name is Joan Claybrook and I am President of Public Citizen and
Chair of CRASH (Citizens for Reliable and Safe Highways). I am here
today representing the truck safety views of Public Citizen as well as
Advocates for Highway and Auto Safety (Advocates) and the Truck Safety
Coalition, a partnership of CRASH and P.A.T.T. (Parents Against Tired
Truckers).
Each year, almost 5,000 people are killed in truck-related crashes
and about 130,000 more are injured. These statistics have been
essentially steady for nearly a decade. The large number of truck-
related deaths and injuries also carries an enormous personal and
financial price tag. According to the U.S. Department of Transportation
(DOT), the costs of large truck crashes in 1997 exceeded $24 billion.
Congress addressed this serious public health problem in 1999 by
enacting legislation, the Motor Carrier Safety Improvement Act of 1999
(MCSIA), Pub. L.106-159 (Dec. 9, 1999), creating a new agency, the
Federal Motor Carrier Safety Administration (FMCSA), with the clear,
specific mission to make safety its top priority.
Despite repeated promises by FMCSA to significantly reduce truck-
related deaths and injuries on our highways and chart an improved
course to enhance motor carrier safety, and despite increases in
funding and resources for the new government agency, the traveling
public remains the victim of an underachieving, and at times,
indifferent agency. The annual death toll from truck-related crashes is
the equivalent of 26 major airplane crashes every year. FMCSA adopted a
goal in 1999 to reduce truck deaths and injuries by 50 percent over 10
years. That goal will not be achieved.
More recently, as stated in the U.S. Department of Transportation
Performance Plan for Fiscal Year 2004, the agency has adopted a new
goal of also reducing the rate of truck crash fatalities from the
baseline of 2.8 deaths per 100 million truck miles traveled (MTMT) in
1996 to no more than 1.65 deaths per 100 MTMT in 2008. While we regard
this as an admirable--and extraordinarily difficult goal--to be
achieved in only a few years given the most recent rate of 2.4 deaths
per 100 MTMT, there are serious questions about the intent of the
Department and the FMCSA is choosing this new safety goal. Our concern
is the fact that, under the right circumstances, given rapid growth in
truck mileage accrued on an annual basis over the next several years,
the rate of truck deaths using this exposure measure could continue to
decline, even if only slightly, while the number of actual fatalities
could increase. We believe that the Department and the FMCSA need to
reach both fatality reduction goals, as well as to make sure that they
are compatible, but certainly not to abandon the target of dramatically
reduced numbers of truck-crash related deaths in favor of only a better
death rate as the achievement of its safety policies. This approach
could be used to mask the fact that more people really died in a given
year than in the prior year even though the rate of deaths was slightly
better. NHTSA measures and publicizes both qualities.
No one in Congress, government, industry or the general public
would ever accept as a reasonable goal 26 air plane crashes a year that
are finally cut only in half after 10 years and no one would accept
excuses from the airlines that the skies are safer for passengers who
fly because, even though more people died each year, the rate of deaths
per air mile of travel decreased. The attached chart shows that FMCSA
has yet to reach any annual benchmarks that would indicate the agency
has made progress and is on the right course. There have been only
marginal decreases in truck deaths in the last three years, the
fatality rate is essentially static, and there are additional,
worrisome increases in truck crash injuries. I want to stress that it
is especially disturbing that the slight decline in overall deaths in
truck-related crash involvements has been offset, according to the
National Highway Traffic Safety Administration's early Fatal Analysis
Reporting System assessment, by an increase in the fatalities of truck
occupants in these collisions from 704 deaths in 2001 to a preliminary
figure of 712 deaths in 2002, an increase of 1.2 percent.
Yet FMCSA delays or disregards congressional mandates for long-
overdue and vital safety rulemakings. Unsafe motor carrier companies
and drivers continue to violate safety rules and threaten the safety of
the traveling public yet are insulated from effective Federal oversight
by FMCSA's failures to act. Attached to my testimony is a list of
safety actions mandated by Congress since 1988 that FMCSA has ignored,
delayed or deferred. Public Citizen filed suit against the agency last
fall for not implementing five rulemaking actions. The agency
immediately settled the suit, agreeing to act on all of them with final
rules by June 2004. However, this list contains over twenty other
congressional directives that have not been completed by the agency.
Two years ago, the FMCSA was prepared to give the green light to
opening the southern border to trucks and buses from Mexico without
adequate safety measures in place. It took the direct intervention of
Congress to mandate common sense actions by the agency such as safety
inspections at proper facilities with trained professionals. Meanwhile,
some sectors of the trucking industry already are pursuing an agenda to
increase truck size and weight, to repeal the congressionally-enacted
freeze on longer combination vehicles, and seek exemptions from Federal
safety rules under the ruse of so-called ``pilot programs.'' Moreover,
the agency's failure to take concerted action to improve truck safety
is at odds with public opinion. The American public is very supportive
of measures to improve truck safety both in their opinions and their
pocketbooks. When asked in a Lou Harris public opinion poll in 1996
about truck safety, 81 percent of the respondents said they would be
willing to pay more for goods if it meant an increase in truck safety.
Three and one-half years after bipartisan enactment of the 1999
MCSIA, and prior to taking up the reauthorization of the Transportation
Equity Act for the 21st Century (TEA-21), it is time to review with a
critical eye the progress and problems related to motor carrier safety
to assess what improvements are needed to protect public safety.
Increasing Truck Size and Weight Will Imperil Public Safety
Safety groups have reviewed the Regulation of Weights, Lengths, and
Widths of Commercial Motor Vehicles, Special Report No. 267,
Transportation Research Board (TRB) (2002), the latest effort to
rationalize bigger, heavier trucks on American roads. Every TRB special
report on truck size and weight policy over the past 16 years has
supported changes to increase the weights, lengths, and widths of large
combination trucks--it appears that TRB has never seen a bigger truck
it didn't like.
I would like to point out here to the members of the Committee that
no explicit truck safety experts who are known to oppose increased
truck sizes and weights were part of the TRB eight-person committee
membership producing the Special Report. Also, of the eight outside
reviewers, we know that at least four are all supportive of larger,
heavier trucks. Although Advocates, CRASH, and other truck safety
organizations have expertise and knowledge about truck size and weight
safety issues and policy, none was invited to sit on the Committee or
to perform an outside review of the draft of the Special Report.
On the merits, the Special Report is seriously flawed in several
major respects. The TRB Special Report states that there is no
confirming information that the larger, heavier truck configurations
that it champions are actually safer, would inflict less damage on
highways and bridges, or would even ultimately result in fewer heavier
and larger trucks on U.S. roads. Although the TRB Special Report
supports two specific configurations as the larger, heavier commercial
vehicles of choice for widespread use--a 90,000 pounds or heavier
tridem axle-based six-axle semi-trailer combination truck and a 111,000
pounds eight-axle tridem axle-based ``B Train'' doubles combination
composed of twin 33-feet long trailing units--there are no specific
arguments anywhere in the study detailing exactly why these
configurations are better than the others reviewed in the report. In
fact, the Special Report clearly cannot demonstrate any superior safety
benefits of its two favored combination truck configurations. Also, the
TRB Special Report effectively undermines any possible rationale for
supporting these combinations by pointing out that virtually nothing is
known about the relationship between specific design configurations,
crash risk, and truck handling and stability for these larger trucks.
With regard to the increased cost of operating heavier trucks, the
Special Report argues that the infrastructure and externality costs
that increase as a result of allowing larger and heavier trucks should
be fully recaptured through adjustments in user fee equity scales, but,
at the same time, the TRB committee indicates that recovery of only the
costs of administering a permit system and of infrastructure damage is
acceptable. The Special Report fails to acknowledge the reality that
user fee equity has escaped policymakers for over 40 years, that the
current Federal user fee for heavy vehicles has been capped at $550 per
vehicle for 20 years, that the heaviest class of registered trucks
dramatically underpays its fair share of user costs, and that the
trucking industry has consistently and successfully opposed increases
in user fees to offset the actual damage caused by large trucks.
The Special Report also engages the chronic issue of illegally
overweight trucks yet fails to acknowledge how pervasive and entrenched
these violations are, and the extent to which, under current state
enforcement regimes, the continuation of these violations by major
sectors of the trucking industry are a large part of the profitability
of these enterprises. Amazingly, the FMCSA has not complied with the
law and issued the annual report on certification of size and weight
compliance since 1988.\1\
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\1\ The evidence of chronic overweight violations, including
violations by large trucks of the lower posted weight limits on many
thousands of U.S. bridges, is well-known. However, official Federal
government acknowledgement and documentation of these overweight
violations ceased with the last report on state compliance with its
Federal and state weight limits in March 1991. Overweight Vehicles--
Penalties and Permits: An inventory of State Practices for Fiscal Year
1989, FHWA-MC-91-003. Following issuance of this report, former
Secretary Rodney Slater suspended preparation and transmission of these
reports. Although annual reports to Congress are required on state
certifications of compliance with Federal and state motor vehicle
weight limits, no reports have been sent to Congress for 12 years. See
Section 123, Surface Transportation Assistance Act of 1978, P.L. 95-599
(Nov. 6, 1978).
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Finally, the TRB Special Report recommends a scheme for
administering truck size and weight issues that is deeply flawed and
would be dominated by interests supporting larger, heavier trucks
regardless of the costs or safety consequences. The TRB Special Report
recommends eliminating direct Congressional involvement in establishing
nationally uniform size and weight limits, and the establishment of a
new bureaucracy, the Commercial Traffic Effects Institute, to evaluate
requests by states and the trucking industry for a variety of larger
and heavier truck configurations. Funded by a mixture of highway trust
fund and trucking industry monies, the Institute, the states, and the
trucking industry would jointly develop standards implemented by the
states to improve the safety of vehicles operating under the permit
system.
The effect of the TRB committee's proposals would turn back the
clock to a pre-1956 era of control by the states of interstate
commercial transportation, and the elimination of a meaningful
Congressional role in establishing and guaranteeing the Federal
interest in national size and weight limits. This is a recommendation
for a fragmented state-by-state regime of truck size and weight limits
susceptible to inordinate influence and manipulation by trucking
industry interests and lobbying efforts. It essentially privatizes
responsibility for public safety.
These brief observations do not exhaust the full extent of the
defects in this study. As an indication of the scientific weakness of
the study, the Special Report recommends that trucks found after
protracted operational experience to have shortcomings, including
safety deficiencies, be withdrawn from service. This recommendation,
however, is a further indication of the lack of credibility of the
Special Report since no known truck configuration placed into service
has ever been withdrawn from use, including some of the most unstable
combinations, such as triple-trailer combinations composed of three
short trailing units on single axles. Currently, 16 states allow
triples and no state that has allowed their operation has banned
them.\2\
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\2\ The 16 states are: Oregon, Idaho, Montana, North Dakota, South
Dakota, Nevada, Utah, Colorado, Arizona, Nebraska, Kansas, Oklahoma,
Missouri, Indiana, Ohio, and Alaska.
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Safety groups are also concerned about possible attempts to void
the Longer Combination Vehicle (LCV) freeze that was enacted in the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). This
was a hard-won victory that stopped the spread of giant triple-trailer
rigs and other immense, extra-heavy vehicles throughout the U.S.,
trucks that would surely have had catastrophic crashes resulting in
loss of life and massive congestion, especially in regions of the U.S.
that have denser traffic and older road designs. The LCV freeze also
stopped the accelerated destruction of our roads and bridges at a rate
that no Federal funding provisions in authorizing legislation could
have kept pace with.
The ISTEA LCV freeze was a bold, courageous move by Congress to
limit the excesses of highway truck size. It saved lives and it helped
to preserve our highways and bridges. It was a good idea 11 years ago,
and it is a good idea today. At a time when there is little progress in
decreasing truck crash deaths and injuries, we urge Congress not to
increase truck size and weights, or to repeal or weaken the LCV freeze.
The public remains steadfast in its opposition to bigger, heavier,
and larger trucks as evidenced in Advocates for Highway and Auto
Safety's public opinion poll conducted by Lou Harris in 1996. By 88
percent to 7 percent, a majority of the American public is opposed to
allowing bigger and heavier trucks on our highways.
Recommended Actions:
Oppose any increase in Federal truck size and weights on a
national level and oppose legislation allowing any individual
state exemptions.
Oppose repeal of the congressionally mandated freeze on longer
combination vehicles enacted by Congress in 1991.
Many Truck and Bus Safety Issues at the Southern U.S. Border Are Still
Unresolved
The safety of vehicles entering the U.S. presents special
difficulties from the standpoint of both operating safety and security.
Although some progress may have been made on issues that Congress
directed DOT to address, other important safety concerns remain
unresolved.
Several safety organizations called on FMCSA to require border-
zone-only safety audits as a condition for Mexico-domiciled carriers to
operate in the commercial zones. The agency rejected this
recommendation in its March 19, 2002, final rule. This means that
operating authority for Mexico-domiciled border-zone-only carriers will
be awarded solely on the basis of paper applications, including
certifications that are not independently corroborated, and on
unverified documents submitted with the applications, such as the
previous 12-month accident registers and the names of allegedly
certified laboratories for testing drivers for alcohol and drug use.
Two years ago, Congress rejected this approach to screening Mexico-
domiciled carriers seeking to operate throughout the U.S. For both
safety and security reasons, border zone Mexican motor carriers should
also undergo a more rigorous evaluation.
In addition, although FMCSA asserts that it will evaluate written
safety oversight policies and practices used by Mexico-domiciled motor
carriers, the agency does not actually require that any safety
management controls used by a company to comply with U.S. Federal Motor
Carrier Safety Regulations (FMCSRs) and the Hazardous Materials
Regulations (HMRs) be in writing. Mexico-domiciled carriers should be
required to have written safety management criteria representing how
their companies will operate to comply with U.S. requirements. This is
particularly important if the agency continues to refuse to require a
threshold safety proficiency examination of motor carriers.
The Administration has repeatedly stated and testified before
Congress that all Mexican trucks and buses that enter the U.S. and
operate on American roads must meet U.S. safety standards.
Unfortunately, most Mexican trucks and buses were not built to U.S.
standards. DOT, however, intends to turn a blind eye to this problem
for two more years.
Federal law requires that all vehicles, including those operated in
the U.S. by foreign nationals to conduct trade, must be certified by
the manufacturer as built in compliance with U.S. safety standards.
Certification of compliance with the Federal Motor Vehicle Safety
Standards (FMVSS) applicable at the time of manufacture is not just a
mere technicality, but an important safety protection. A number of
major safety regulations have been adopted and implemented by the
National Highway Traffic Safety Administration (NHTSA) since the late
1980s such as anti-lock brakes for trucks and buses, automatic brake
(slack) adjusters, a requirement for rear underride guards, and, among
other things, safer emergency exits for buses.
According to unverified information from Mexican vehicle
manufacturers, an unspecified portion of the trucks and buses built in
Mexico since 1994 meet U.S. standards. However, even the vehicles built
to U.S. standards were not certified as such by the manufacturers.
Thus, less (possibly far less) than one-third of the Mexican trucks and
buses currently operating on Mexico's Federal roads were built to U.S.
standards, and DOT does not know how many or which trucks and buses
were, in fact, built to U.S. safety standards. Moreover, Mexico did not
have any vehicle safety standards until recently, or any requirement
that manufacturers certify compliance with any vehicle safety
standards. Thus, for Mexican-built trucks and buses, there are no
labels or certification verifying compliance with U.S. standards.
Canada has its own certification requirement, but this is to Canadian,
not U.S., safety standards. While Canada's standards for new vehicles
are similar to U.S. standards in many respects, they are not identical.
Even those Canadian standards that mimic U.S. standards may have been
adopted years after they were required in U.S. safety standards.
The FMCSA has proposed a two-year ``grace period'' for these
vehicles. The agency intends to grant blanket permission to vehicles
that have previously crossed the border to continue operating in the
U.S. for another two years, regardless of whether they were or could be
certified as having been built in compliance with U.S. safety
standards. This means that unsafe vehicles that previously entered the
U.S. in violation of U.S. law, or that begin to enter the U.S. prior to
the issuance of the final rule, will be able to do so for another two
years. The FMCSA is prepared to adopt this final rule even though it
has no authority to rewrite the safety certification laws passed by
Congress.
In addition, there is no system to verify that Mexico-domiciled
carriers entering the country are properly insured by a U.S.-licensed
insurer in order to protect against liability for personal injuries and
the costs of crash and environmental clean-up in the event of a hazmat
spill.
Finally, DOT has no effective plan to assure that Mexican-domiciled
carriers adhere to U.S. hours-of-service (HOS) regulations when they
enter the U.S. Although Mexican drivers may have been behind the wheel
8, 10, or even more hours when arriving at the border, FMCSA has no
practical means of determining at the border whether these drivers have
violated Mexican labor regulation restrictions on working time. At the
very least, drivers arriving at the U.S. border who already meet or
exceed the HOS 10-hour duty limit should be placed out-of-service for
the required 8 hours off-duty time period. These sleep-deprived,
fatigued drivers are a threat both to their own safety as well as to
everyone that shares U.S. roads with them. This is another reason why
electronic on-board recorders should be required on all trucks and
buses operating in the U.S.
Recommended Actions:
To ensure improved motor carrier safety at the U.S.-Mexico
border Section 350 of S. 2808 (Rept. No. 107-224), Fiscal Year
2002 Appropriations Legislation for the U.S. Department of
Transportation, should be made a permanent provision in the
FMCSA multi-year reauthorization legislation with other changes
to improve safety.
Require each truck transporting general freight or hazardous
materials, and each bus or motor coach transporting passengers
in the U.S. domiciled in other countries must undergo a full
CVSA Level One inspection at U.S. borders every 90 days and
every truck transporting hazardous materials shall undergo a
full CVSA Level Six inspection every 90 days.
The FMCSA Final Rule to Increase both Consecutive and Weekly Driving
Hours for Truck Drivers Is A Major Threat to Highway Safety.
According to studies by the DOT, the National Transportation Safety
Board and other research organizations, one of the leading causes of
truck crashes is truck driver fatigue. In 2000, the FMCSA proposed
amending the Federal rule on truck and bus driver hours-of-service
(HOS). In that proposal the agency was willing to trade off necessary
improvements in the Federal HOS regime against increasing driving time
and shortcutting the amount of rest and recovery a commercial truck or
bus driver needs after a tour of duty. Those proposed changes are
unsafe for both commercial drivers and the public.
However, safety groups strongly supported several of the basic
concepts and elements of the proposed HOS rule. FMCSA properly
acknowledged the crucial role of adequate driver rest and recovery of
peak safety performance and alertness as crucial in avoiding operator
sleep deprivation and reduced vigilance. When commercial drivers are
exhausted from excessive daily and weekly work hours and get inadequate
rest, the risk of crashes that result in deaths and injuries
substantially and predictably increases, a fact that the FMCSA
acknowledged in the proposed rule. Large truck and bus crashes are
especially lethal highway events because commercial vehicles are much
more likely to involve passenger cars and other light vehicles in which
the chances of severe injury or death to their occupants are
dramatically increased. In fact, 98 percent of the people killed in
two-vehicle crashes involving passenger vehicles and trucks are the
occupants of the passenger vehicles and, as the General Accounting
Office recently stressed in its report on the Share the Road Safely
program conducted by the FMCSA, which I will discuss later in my
testimony, when passenger vehicles and big trucks collide, the
occupants of the small vehicles have more than 15 times the risk of
dying as compared with the truck occupants.
Commendably, FMCSA based its proposal on the adoption of a
circadian, that is, a 24-hour work/rest shift cycle which an enormous
body of research over many years has unerringly shown is necessary for
ensuring adequate opportunity to gain sufficient recovery from long
work hours. This is in contrast to the seriously fatiguing and
dangerous effects of the rules (being changed by FMCSA as new rule)
that permit drivers to drive and rest on an unnatural 18-hour cycle.
The FMCSA for the most part also proposed a longer daily off-duty rest
period than required under the current rule--which demands only a
minimum of eight hours off-duty--and the agency insisted that this off-
duty period be free from interruption by dispatchers and brokers. The
agency also tried to provide for additional rest breaks during the day,
although its effort is flawed in a number of ways, and it proposed that
layover or ``weekend'' off-duty rest time shall take place over two
successive nights. FMCSA also prohibited split rest time for solo
drivers. Finally, the agency proposed to mandate on-board automated
recordation (electronic on-board recorders or EOBRs) of driving duty
time for two classes of commercial operators, an action Public Citizen,
Advocates for Highway and Auto Safety, and other major safety
organizations have urged and supported for many years. These reforms
are necessary, well-supported by research findings, and are essential
parts of any revision of the current regulations.
The good, however, got thrown out in favor of the bad in the recent
final rule issued by the agency in late April of this year. A
circadian, daily work schedule is gone in favor of allowing drivers to
alternate driving and sleep on a 21-hour rotation. Drivers can operate
their rigs for an additional consecutive hour before resting, an
addition of one hour to the old rule's maximum of 10 hours. This was
adopted despite overwhelming evidence in the research and the
rulemaking record that the risk of a crash soars in these late hours of
driving before a rest break, especially from the end of the 10th to the
end of the 11th hour of driving.
But perhaps an even more disturbing feature of the new rule is the
FMCSA ``restart'' provision that will dramatically increase the total
hours that a driver can operate his rig on either a 7-or an 8-day duty
cycle. Under the old rule, if a driver constantly alternated driving
and rest on a 10-hours-on, 8-hours-off schedule, that driver could
exhaust the available maximum permitted driving and duty hours per 7 or
8 days in as little as 4.5 to 5 days. Although that noncircadian
rotation was exceptionally dangerous and exhausting, putting
chronically sleep-deprived drivers behind the wheel for several days in
a row, at least the old rule required ``dead'' time for the remainder
of the 7 or 8 day tour of duty. Drivers had as much as 3 days of
layover time to recuperate before being forced to drive this kind of
horrific work schedule again. You might say that, in a sense, the old
rule provided for a kind of ``weekend'' for drivers.
Under the new rule, that layover that could have been taken each
week is gone. Truck drivers can now be forced to get back into their
cabs and start 11 consecutive hours immediately after just a 34-hour
off-duty period, an amount of off-duty time that research used by the
agency itself shows is completely inadequate to restore driver
alertness and safe performance after several days of long driving time.
This is the ``restart'' provision that radically alters the
landscape of commercial driver hours of service in America by creating
what has been called a ``floating'' work week, that is, a week with no
fixed number of work days and driving hours. Whereas these drivers used
to be held to a maximum of 60 hours of total driving time in 7 days, or
70 hours total in 8 days, under the new rule, if milked for its maximum
potential, these same drivers can be compelled to drive up to 77 hours
in 7days or 88 hours in 8 days, increases of up to 23 percent more time
spent behind the wheel than formerly permitted.
Other admirable aspects of the proposed rule were also jettisoned
in the agency's quest for more hours, more work, more productivity
wrung out of commercial drivers already operating under the old rules
to the point of exhaustion and fatigue-triggered crashes. Under the
2000 proposal, solo drivers were no longer allowed to be contacted by
carrier dispatchers, or other officials in the supply chain such as
shippers, brokers, and freight consignees during their off-duty rest
period. Drivers also had their off-duty rest period protected under the
2000 proposal. Split rest periods in sleeper berths, which the agency's
own research review showed to be a major source of reduced length and
quality of sleep for commercial drivers, were prohibited--drivers had
to take their daily off-duty sleep in a single, unbroken block if they
used a sleeper berth.
Under the new rule issued in April, drivers again can be constantly
harassed by officials in the supply chain to stay awake on stand-by for
notification that a load is ready for them to pick up or that a
delivery time or destination has been changed. Drivers can be
repeatedly awakened to be told that their schedule has changed and that
they have to start driving sooner. And that same driver can now go back
to the practice of splitting off-duty rest time in sleeper berths into
two small portions with hours of driving time between the two attempts
to get some sleep.
In its essence, Mr. Chairman, the FMCSA has issued a final rule
that works truck drivers much harder than ever, allows the trucking
industry to demand more work than ever from them, permits carriers to
give them little more than 24 hours to begin driving another 77 or 88
hours in a tour of duty, allows trucking officials to wake them up over
and over, and forces them under many operating circumstances to split
up their rest time into pieces while being demanded to make deliveries
sooner and faster than ever before.
Yet I have not stressed the most amazing feature of this final
rule--it claims that it will benefit safety more than the old rule!
Although it is hard to believe even while reading it, the final rule
demanding far more hours from truck drivers and allowing them less rest
than ever before claims that these changes are cost beneficial and will
actually save lives on our highways. Even though these drivers will
have far more exposure on the road in a tour of duty than ever allowed
before by the Federal government--more hours accumulated in a shorter
period of time--and less time to rest than possible under the old
regulation, the FMCSA actually goes through an arcane exercise in
benefit-cost analysis to show how safety will be improved by longer
consecutive driving hours, far more hours driven per week, while
returning to the status quo ante of split sleeper berth rest time with
drivers suffering repeated interruptions during their off-duty rest
periods.
It is not too strong to characterize this claim of improved safety
as simply Orwellian. It is as if the government eliminated labor law
protection of coal miners and provided a mathematics of costs and
benefits that showed that miners working longer hours per day and per
week, with less rest time, and forced to begin work at the drop of a
hat when the management of the mines demands it, are safer and
healthier than ever before. I think many members of Congress would
regard such a claim as mind boggling and defying all logic. Yet this is
exactly what the FMCSA has had the temerity to argue in issuing the
final rule dramatically increasing driving hours for truck drivers.
The last major feature of the final rule increasing commercial
driver work hours is the elimination of the 2000 proposed rule to
require on-board recorders, or EOBRs, on long-haul trucks to clock the
amount of time drivers actually spend behind the wheel. As the
University of Michigan showed a few years ago, corroborated by the
FMCSA's own regulatory analysis, violation of the regulatory ceilings
on hours worked and driven, and of minimum rest time, is a chronic
practice in the trucking industry that has gone on for decades and that
has increased with the growth of Just In Time delivery demands that
have turned truck trailers into rolling warehouses. In fact, there are
trucking companies that stay in business because they run illegal hours
and do not get caught.
The FMCSA proposed in 2000 to put an end to this abusive practice
of violating even the generous limits of the old rule by requiring
tamperproof electronic recorders to validate driving time. This would
have aligned the U.S. with European Economic Commission policy which,
as of next year, will require a change from the old mechanical
tachographs that have been required for years to new tamperproof,
electronic recorders that will be more reliable and accurate to ensure
that drivers don't exceed maximum daily and weekly driving limits.
This proposal to control excessive driving hours with EOBRs is
discarded in the final HOS rule. The FMCSA, in a startling turnaround,
states that it in fact didn't get around to reviewing the merits of any
of the recorders that it proposed certifying as compliant with the EOBR
provision in the 2000 notice of proposed rulemaking. Accordingly, the
agency states that it needs to study the issue some more because it
didn't do what it was supposed to do. No specifics are provided on how
this research would be conducted, who would perform it, what its goals
would be, when it would be completed, and how precisely it would be
brought into play with respect to the contours of the final regulation
just issued. A large percentage of the industry, cutting across all
types of highway transportation including passengers, general freight
and hazardous materials regularly use various types of electronic on-
board recorders to monitor both vehicle functions and driver hours-of-
service compliance. In the meantime, the agency will fall back to
relying on the paper logbooks that have been maintained for decades,
logbooks that are widely and systematically falsified by trucking
officials and drivers, a hand-written record of duty time that is
regularly referred to as the ``comic book'' by drivers who know how to
mask violations and conceal or lose documentation, such as receipts for
tolls, lodging, food, and fuel, creating a paper trail that would show
regulatory violations.
So, next year the American people and truck drivers face on our
highways a new regulation forcing drivers to work and drive even longer
hours than ever before, allowed to have little rest and effectively no
layover before being required to drive again, and to continue to exceed
even the excessive limits on driving time allowed under the new rule
without any accurate means adopted by our government to show whether
these drivers are obeying the law.
This regulation is an affront to a modern democratic society's
vision of protecting the safety, health, and well being of our workers
and a direct threat to the safety of the millions of people who share
the road every hour of every day with large trucks. This new rule is a
formula for more truck crashes, more deaths, and more injuries instead
of a well-reasoned effort to enhance highway safety and increase safe
commercial trucking practices.
Let me stress here again in closing this portion of my testimony
that this new regulation directly contradicts the policies that are
evolving in the western world about commercial driving. The European
Union (EU) is set to advance highway safety and protect drivers by
reducing the current driving hours ceiling from 56 to 48 hours, with a
general limit of nine (9) hours of driving each day, and off-duty time
averaging 11 consecutive hours per day. The research supporting such
reductions in working time and increasing rest time is overwhelming and
the product of decades of investigation. But our government has ignored
this research, disregarded the safety policies of several European
nations, and moved exactly in the contrary direction to mount an
increased threat to the health and safety of the American people.
Recommended Action:
Direct the Secretary of Transportation to conduct rulemaking
and issue a final regulation requiring on-board recorders no
later than September 30, 2005.
The New Motor Carrier Entrant Program Needs to Be Strengthened and
Better Focused
An example of FMCSA's regulatory inaction is Section 210 of the
MCSIA, which was intended to improve the agency's safety oversight in
approving the operating authority applications of new motor carrier
entrants, both foreign and domestic. The Secretary of Transportation
was directed to issue regulations requiring each owner and operator
granted new operating authority to undergo a safety review within the
first 18 months after beginning motor carrier operations. The Secretary
was also directed in that same provision to initiate minimum
requirements for applicant motor carriers, including foreign motor
carriers, to ensure their knowledge of Federal safety standards, and to
consider requiring a safety proficiency examination for any motor
carrier applying for interstate operating authority.
The FMCSA took no action until Congress reiterated the need for
this rulemaking in H.R. 2299, the Department of Transportation
Appropriations bill of FY 2002. Only then--and belatedly--did FMCSA
respond by issuing an interim final rule without prior notice and
comment, rather than issuing a notice of proposed rulemaking, which
would have allowed public comment on the merits prior to adoption. 67
FR 31978 (May 13, 2002).
Unfortunately, the agency has seen fit to allow domestic carriers
to be awarded operating authority without undergoing any initial safety
evaluation, just as it has decided to allow border-zone-only Mexico-
domiciled motor carriers to be registered without a prior safety audit.
A safety audit for U.S. carriers under the interim final rule issued by
the FMCSA will only be performed after-the-fact, up to 18 months after
the U.S. business is given operating authority. The FMCSA actually
notes in the interim final rule that it might not even meet the 18-
month statutory deadline for conducting safety audits, thereby
providing itself with a loophole for not meeting its statutory
obligation, in direct contradiction of the express legislative intent
of Section 210. I should emphasize that the safety evaluation will not
be a comprehensive compliance review that results in a safety rating.
As a result, the new entrant approval process put into effect by FMCSA
will still allow domestic motor carriers to operate indefinitely
without any assigned safety rating!
The FMCSA should be directed to revise this policy to ensure that a
new entrant motor carrier is not allowed to begin operations without
either demonstration of its safety knowledge or its safety management
competence. The agency should revise its interim final rule to require
either a threshold safety proficiency examination of the applicant
motor carrier, in accordance with the Congressional direction in
Section 210 of the Motor Carrier Safety Improvement Act of 1999, or to
conduct a safety management review of the new entrant, including an
inspection of its equipment and an evaluation of its safety management
practices and competence. Without this initial safety evaluation of new
applicant motor carriers, the agency essentially is allowing untested
companies to begin hauling freight, transporting hazardous materials,
and carrying passengers based only on a brief paper application that is
accompanied by a fee paid by the applicant.
Two years ago, Congress required both an initial and a subsequent
on-site safety evaluation of Mexico-domiciled motor carriers to ensure
that they have adopted adequate safety practices before they are
allowed to operate on U.S. roads. Safety groups believe that Congress
should also require a similar on-site safety evaluation of domestic
carriers, or that these applicants demonstrate successful performance
on a safety proficiency examination, as the basis for awarding
conditional operating authority. A grant of permanent operating
authority should be made based on an ``exit'' safety evaluation after
the first 18 months of operation, including a review on site of safety
equipment and an evaluation of safety management practices. However, it
is not wise or responsible to allow these carriers to be awarded
permanent operating authority without ever receiving a full safety
compliance review and an assigned safety rating.
I want to list here our recommendations for reforming the new
entrant program to make it a better fail-safe test of the capability of
new motor carriers to conduct operations and to avoid creating an even
bigger backlog of unrated carriers--currently almost 450,000 are
unrated--and of the many thousands of carriers bearing older, unrenewed
ratings. We also think that the task of the agency immediately being
expected to rate upwards of 40,000 new entrant applicants each year is
an overwhelming task that needs to be spread out over several years
before it operates at full throttle. I also want to stress that a
strengthened new entrant program can eliminate many carriers whose
safety practices and knowledge of how to comply with the Federal Motor
Carrier Safety Regulations are inadequate. If we can weed out the bad
actors early in their operating histories, not only will safety
improve, but also unsafe carriers will be prevented from swelling the
rolls of the registered interstate companies carrying freight and
passengers for a few months only to go quickly out of business.
Recommended Actions:
Congress should direct FMCSA to establish a 5-year phase-in for
evaluating new motor carrier entrants with a protocol for
identifying high-risk carriers that would most strongly benefit
from an initial safety evaluation.
The FMCSA should be directed to conduct an ``exit'' safety
evaluation of each new motor carrier after 18 months of
operation. If a carrier fails this evaluation, a full safety
compliance review should be triggered that results in an
assigned safety rating.
Truck Crash Data Collection is Inadequate and Inaccurate Due to a Lack
of Uniformity
Section 225 of the MCSIA calls on the Secretary through the joint
efforts of the FMCSA and the National Highway Traffic Safety
Administration (NHTSA) to cooperate with the states to improve
collection and analysis of crash data involving commercial motor
vehicles. However, there has been no action to require a nationally
uniform crash data report form to be filled out by enforcement
authorities so that a detailed, accurate national database of crash
information on trucks and buses can be relied upon by both agencies to
determine safety policies, including countermeasures and the accuracy
of data entries to SafeStat to detect high-risk motor carriers in
relation to their safety performance under the new entrant program,
among other uses.
Recommended Actions:
Congress should direct the Secretary to conduct rulemaking in
cooperation with NHTSA to adopt a nationally uniform crash data
collection format that all states are required to use in order
to increase the accuracy and reliability of data concerning
crashes and other incidents involving commercial motor
vehicles.
Congress should direct the Secretary to conduct rulemaking to
consider changes to improve the SafeStat system itself,
including, among other things, the use of exposure measures,
such as vehicle-miles-traveled, in calculating the safety
scores of carriers with regard to acute and critical
violations.
FMCSA Pursues Experimental ``Pilot Programs'' At The Expense of Safety
Another example of how FMCSA defers Congressional directives and
violates legislated deadlines for action is its pursuit of so-called
``pilot programs.'' The agency has offered a series of pilot programs
over the last several years and continues to publish new initiatives
even while ignoring legislatively mandated pilot programs, such as the
Improved Flow of Driver History pilot study required by Section 4022 of
TEA-21. Moreover, the agency offers one pilot program after another
without having concluded rulemaking, as directed by Section 4007 of
TEA-21, to adopt the procedures for regulatory exemptions from the
FMCSRs. No final rule setting out these procedures has been issued and
the agency's most recent semi-annual regulatory agenda has again pushed
back the deadline for final action to March 2003. 67 FR 33487-33488
(May 13, 2002). But no action has been taken while action under the
deadline is now three months overdue.
The FMCSA has proposed a pilot program to lower the age for
interstate drivers of big trucks and motor coaches from the current
minimum age of 21, to only 18-20 years old. This action was taken in
response to a petition from an interstate motor carrier interest group
that has argued for years that there are not enough commercial drivers
to fill jobs driving large trucks and, so, the only solution is to
start getting truck drivers even younger than 21. At one time, the
minimum age for an interstate commercial driver was 25 years old.
In comments opposing the 18-20 years old pilot program, major
safety organizations systematically set out the research results, some
of them produced by DOT itself, that consistently have shown for more
than 30 years that teenage drivers in any vehicles have dramatically
elevated crash involvement and traffic violation rates. These
organizations detailed the research showing that current young truck
drivers 21-25 years of age are badly over-represented in traffic
violation convictions and in crash involvement rates. Also, they
pointed out that every credible study for decades on the value of
driver training has shown that even intensive driver training of young
drivers makes little difference to their eventual crash involvement and
violations rates.
The FMCSA Pilot Program for younger drivers comes at a time when
States, at the urging of DOT and safety groups, are enacting graduated
driver license systems in order to reduce the exposure of teenage
drivers to the risks of operating passenger motor vehicles when they
are very young. Putting teenage drivers behind the wheel of an 80,000-
pound big rig or a 55-passenger interstate motor coach is a regressive
move and a recipe for potential catastrophes.
The FMCSA has increasingly attempted to regulate through pilot
programs, exemptions, and waivers over the last several years instead
of fulfilling Congressionally mandated rulemaking requirements and
meeting legislated deadlines. The agency expends resources on these
experimental efforts instead of completing its enormous backlog of
unmet regulatory actions--a backlog that the DOT officials in 1999
fervently promised would be dealt with expeditiously. Congress relied
on those representations in establishing an upgraded and separate
Federal motor carrier safety agency.
Recommended Actions:
Congress should eliminate the use of pilot programs, waivers
and exemptions by FMCSA unless specifically directed by
Congress.
Hazardous Materials Transportation Safety Oversight Is Dangerously
Inadequate
The events of September 11, 2001 have pointed to another area
requiring Congressional attention where safety and security are
intertwined. This is the highway transportation of hazardous materials
(hazmat). Safety groups are convinced that there are a number of
aspects of hazmat transportation that can be readily addressed to make
significant improvements in safety and security.
At present, motor carriers that want to transport hazmat need only
register with the Research and Special Programs Administration (RSPA),
pay the required fee (currently $300 per year), and begin to haul
hazardous materials throughout the U.S. There is no requirement for a
motor carrier, once it has secured general (non-hazmat) operating
authority from the FMCSA, to go back to that agency and notify it that
it has begun hauling hazmat. RSPA does not inform the FMCSA of the
carriers that register to haul hazmat, and the FMCSA does not ask RSPA
for hazmat registration information. This lack of coordination and
cooperation between the FMCSA and RSPA is ridiculous and creates
opportunities for abuses.
No motor carrier seeking to start hauling hazmat should be able to
make this kind of major shift in its transportation services without
the FMCSA knowing about it. A motor carrier should not only be required
to notify the FMCSA immediately that it is beginning to haul hazmat by
having to register with RSPA, but each carrier should have to apply to
the FMCSA for additional operating authority for hazmat carriage. This
application should include a safety audit of the motor carrier's
operations and a proficiency exam specifically for the purpose of
testing the carrier's knowledge of and capability to comply with the
Federal hazmat regulations.
In addition to operating authority, there is insufficient evidence
of RSPA and FMCSA constantly coordinating hazmat regulation for motor
carriers. RSPA has proposed requiring written security plans and
expanded training for all motor carriers, both foreign and domestic,
that apply to haul hazmat and Centers for Disease Control infectious
disease selected agents (IDSA) in the U.S. This proposed requirement
for training employees in hazmat/IDSA safety knowledge and safety
measures would also affect all carriers entering the U.S. Aside from
the fact that RSPA does not contemplate directly supervising the
implementation of these requirements to ensure they are carried out in
an effective manner, the two agencies do not have a joint plan for the
effective implementation of this proposal with respect to Mexico-
domiciled or, for that matter, Canadian-domiciled motor carriers.
Neither has FMCSA announced how it intends to verify that the
requirements are met by foreign-domiciled motor carriers entering the
U.S. If this regulation is adopted by RSPA, it is crucial that the
agencies determine how it will be implemented for foreign-domiciled
motor carriers and how the two agencies will be able to determine that
compliance by companies hauling hazmat/IDSA has been achieved. We
recommend that Congress inquire of the two agencies how they
contemplate implementing this RSPA rule and what coordinated actions
will be taken to achieve compliance especially by foreign motor
carriers.
Truck drivers, after obtaining a hazmat endorsement for the
commercial drivers' license (CDL) by merely passing a written exam, can
legally drive tractor semi-trailers carrying 80,000 pounds of placarded
hazmat throughout the U.S. This underscores the crucial need for a
secure and reliable identification of hazmat drivers to prevent
dangerous and unauthorized persons from transporting hazmat. The Truck
and Bus Regulatory Reform Act of 1988 directed the Secretary to issue
regulations by December 31, 1990, establishing minimum uniform
standards for a biometric identification system to ensure the accurate
identification of drivers. DOT took no regulatory action in response to
this mandate. As a result, in 1998 Congress directed that CDLs contain
some form of unique identifier after January 1, 2001, to minimize fraud
and illegal duplication. Once again, there has been no action on this
issue. As a result, Public Citizen, CRASH, and P.A.T.T. sued FMCSA on
this and four other rules on which no action had been taken for
unreasonable delay. FMCSA settled the lawsuit agreeing to specific
deadlines for action on each of these rules. For hazmat minimum
standards for drivers, the agency agreed to issue the rule by March 30,
2004. Failure to meet this deadline allows the court to hold the agency
in contempt. In light of changed circumstances concerning the safety
transport of hazmat transported across the U.S., Congress should direct
the Secretary to accelerate the development of a unique identifier, at
least for commercial drivers with hazmat endorsements. This biometric
or other unique security identification would dovetail with the
background criminal and driving record checks for hazmat licensure and
endorsements that soon will come into play as a result of Section 1012
of the USA PATRIOT Act, Title X, Pub. L. 107-56 (Oct. 26, 2001).
The ability to determine the location of drivers and hazmat loads
on trucks is another crucial aspect for hazmat safety oversight. All
hazmat carriage, including transport by motor vehicle, should be
governed by Global Positioning System (GPS) technology that would
permit real-time tracking of hazmat loads. This should be a requirement
for gaining operating authority as a hazmat carrier. Safety inspectors
should also be able to access GPS data in order to confirm other
sources of hours of service compliance, as well as to determine whether
hazmat vehicles have taken prohibited routes or have evaded safety
inspections or weigh stations.
With regard to hazmat routes, the current routing regulations for
non-radioactive hazardous materials highway transport are too general
and inadequate. The Federal requirements do not require states even to
have highway routing criteria for these hazmat shipments, and many
states continue to allow loads of hazmat to be transported on most
roads and through major metropolitan areas across the Nation regardless
of population or traffic conditions. Even worse, the burdens imposed on
the states by the Federal Highway Administration (FHWA) to justify
alternative, diversionary routes for public and environmental
protection have a chilling effect on the willingness of states and
local public authorities to tell hazmat carriers to use longer, safer
routes. Congress should require the states to adopt non-radioactive
hazmat routing criteria instead of leaving this action to state option.
Let me stress here at the end of this section of my testimony on
hazmat transportation that the tragedies of 9/11 and, earlier, of the
Murrah Federal Building bombing in 1995, as well as the repeated orange
alerts issued for possible terrorist attacks have not impressed its
message on the Research and Special Programs Administration (RSPA).
Recent final regulations issued by RSPA indicate that the agency is not
prepared to regulate vigorously in the area of hazardous materials
(hazmat) transportation security.\1\ As reviewed below, the final rules
have little prescriptive content and, in general, they do not change
current regulations about the types and quantities of hazmat that may
be transported by motor carriers that, if made more stringent, could
result in tighter security control and improved public safety.
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\1\ Security Requirements for Offerors and Transporters of
Hazardous Materials, 68 FR 14510 et seq., March 25, 2003; Enhancing
Hazardous Materials Transportation Security, 68 FR 23832 et seq., May
5, 2003.
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This is surprising in light of 9/11 and the increased concern about
the potential for hazmat incidents. In both rulemaking examples, the
agency backed down from reasonable proposals in reaction to industry
objections. In another instance RSPA's decision fails to achieve
government uniformity in how specific quantities of hazmat are
regulated because it rejected any willingness to use the different,
more stringent definitions of hazmat applied by the Bureau of Alcohol,
Tobacco, and Firearms. Here is an overview of both regulations'
deficiencies:
The RSPA deleted most of the major requirements of a
proposed rule that would arguably improve enforcement oversight
of hazmat security after receiving negative comments from the
trucking industry (see specific aspects below).
The RSPA will require offerors and carriers of hazmat to
have security plans, but will not prescribe what the plans must
contain, will not review and approve them before adoption, and
will not keep any on file at the agency.
The RSPA will require employee hazmat training, but will not
specify any training requirements.
The RSPA will not require hazmat offerors or carriers to
verify the accuracy of information supplied by job applicants
who will handle or transport hazmat.
The RSPA has rejected changing any of the current types or
level of hazmat requiring placarding, in order to increase
hazmat transportation security, based on the more stringent
definitions of hazmat used by the Bureau of Alcohol, Tobacco,
and Firearms.
The RSPA makes no mention of the longstanding Congressional
statutory mandate to institute a Federal permitting system for
specific types of hazmat explosives, toxic-by-inhalation
agents, and highway route-controlled radioactive substances.
The RSPA has ruled that mixtures of ammonium nitrate and
fuel oil, like that used to blow up the Murrah Federal building
in Oklahoma City in 1995, are not a sufficient security risk
when transported in commerce to warrant detailed employee
background checks for those workers handling or transporting
such mixtures.
The RSPA has also ruled that it will not change the types or
quantities of hazmat requiring placarding to place more
stringent requirements on transporting toy caps, signal
devices, flares, and distress signals (either combustible or
explosive) in less than 1,000 lbs. quantities; the agency
judged that such hazmat does not present a significant security
threat involving their use during transportation for a criminal
or terrorist act.
More detailed comments on the two regulations are attached in
Appendix B.
Research and Special Programs Administration (RSPA), Final Rule;
Security Requirements for Offerors and Transporters of
Hazardous Materials, 68 FR 14510 et seq., March 25, 2003
The NPRM published May 2, 2002, proposed the following main
features:
Requirement for motor carriers already registered with the
agency to maintain a copy of that current registration
certificate on board each motor vehicle transporting hazmat.
Requirement for shipping papers to show the name and address
of both the consignor (origin) and of the consignee (receiver)
and for the shipping papers to show the shipper's U.S. DOT
Hazmat Registration number.
Requirement that shipper and carrier of certain highly
hazardous materials develop and implement hazmat transportation
security plans.
Requirement that hazmat shippers and carriers assure that
their employee training includes a security component.
The agency received more than 270 comments ``from hazardous
materials shippers, carriers, industry associations, and local
government agencies.'' There is no acknowledgement that RSPA received
comments from any commercial motor vehicle or highway safety
organizations anywhere in the final rule, although Advocates for
Highway and Auto Safety filed extensive comments pointing out the
cardinal shortcomings of the proposed rule. The highlights of the final
rule are:
RSPA states that security measures cannot adversely affect
the efficient transportation of hazmat or impose excessive
economic burdens on the hazmat transportation industry.
The agency deleted a requirement that a copy of current
hazmat registration be on board each vehicle. RSPA accepted the
industry's position that the certificate is no proof of
security clearance for the hazmat carrier because ``in no case
is any background investigation conducted before registering an
applicant, or even investigation to ensure that the applicant
is a bona fide company legitimately engaged in the offering for
transport and/or transporting hazardous materials.'' RSPA does
not mention any consideration for future rulemaking to propose
such required background checks of hazmat carrier applicants.
RSPA deleted a requirement that shipping papers have current
hazmat registration number because of industry opposition.
Although RSPA believed the proposal had merit it rejected in
the final rule a requirement that shipping papers have name and
address of both consignor and consignee.
Although RSPA adopted a requirement for security plans for
both offerors of hazmat and carriers of hazmat there are no
required elements for the plans in the final rule, shippers and
carriers can use any risk model they like, and the agency will
not review the plans for adequacy before the time of their
adoption. RSPA also strengthens language in final rule as
compared with the proposed rule to reduce the liability of a
shipper or carrier if a terrorist action happens despite their
compliance with the terms of the final rule.
RSPA weakened a requirement for employers who are shippers
or carriers to confirm information provided by job applicants
who would handle or transport hazmat. RSPA weakens the final
rule by changing the employer's responsibility from ``verify''
to ``confirm'' that information supplied by job applicants is
accurate and agrees with industry comments that ``verify'' is
too stringent. Moreover, RPSA ``do[es] not expect companies to
confirm all of the information that a job applicant may provide
as part of the application process.'' A question here is
whether this meets the letter and spirit of the U.S. PATRIOT
Act.
RSPA requires that employee hazmat training contain a
security component but will not specify what to require.
Research and Special Programs Administration (RSPA), Interim Final
Rule: Enhancing Hazardous Materials Transportation Security. 68
FR 23832 et seq., May 5, 2003
No prior NPRM. This interim final rule incorporates into the
Hazardous Materials Regulations (HMR) a requirement that shippers and
transporters of certain hazmat comply with Federal security regulations
that apply to motor carrier and vessel transportation. The final rule
also revises the procedures for applying for an exemption from the HMR
to require applicants to certify compliance with applicable Federal
transportation security laws and regulations. The final rule has
several major weaknesses:
It requires persons offering for transport or actually
transporting hazmat to develop and implement security plans,
but the rule relies on the existing regulations concerning the
types and amounts of hazmat and Centers for Disease Control
``select agents.''
RSPA considered and rejected consideration of the
application of the more stringent definitions of `hazmat' used
by the Bureau of Alcohol, Tobacco, and Firearms. RSPA
nonetheless concluded that its present threshold amounts for
placarding of certain radioactive materials, explosives, and
agents toxic by inhalation are sufficient to control any
security risk of their improper use. This means that the agency
required placarding and the use of a security plan to these
smaller amounts of hazmat regulated by BATF.
The agency makes no mention of the hazmat motor carrier
Federal permitting requirements Congress adopted in 49 U.S.C.
Sec. 5109 for specific types of hazmat that have never been
implemented despite a clear statutory command enacted 10 years
ago.
RSPA concludes in the interim final rule that mixtures of
ammonium nitrate and fuel oil, like that used to blow up the
Murrah Federal building in Oklahoma City in 1995, ``do[es] not
meet the definition of a Class 1 material under the HMR'' and
that they ``generally do[es] not pose a sufficient security
risk when transported in commerce to warrant detailed employee
background checks.''
RSPA also has decided throughout the interim final rule that
it will not review or disturb the current threshold quantities
of different hazmat requiring placarding, such as toy caps,
signal devices, flares, and distress signals less than 454 kg
(1,000 lbs.). As a result, the agency states that it has judged
that ``[w]hen shipped in amounts that do not require
placarding, such shipments do not pose a security risk when
transported in commerce sufficient to warrant detailed employee
background check requirements at this time'' and they
``generally do not present a significant security threat
involving their use during transportation for a criminal or
terrorist act.''
This is the quality of protection the U.S. people and their
property are provided in this weak regulation. Although RSPA openly
states that it is authorized under 49 U.S.C. Sec. 5101 et seq. to
designate any hazmat, including explosives, as dangerous when
transporting it in commerce because it poses an unreasonable risk to
health, safety, or security, the agency has judged ``that the most
significant security risks are associated with the transportation of
explosives shipments in quantities that require placarding under the
HMR.'' The shippers and carriers must formulate security plans to cover
such transport, but the agency will not change the types and quantities
of explosives subject to placarding that were adopted in a different--
pre 9/11/01--era.
Recommended Actions:
Congress should direct RSPA to review the need to expand the
types of materials subject to the hazmat regulations; evaluate
the need to lower the quantities permitted to be transported
without placarding and the other current safety requirements
(emergency notification procedures, etc.); require specific
training and security plan criteria to be applied by RSPA for
motor carriers.
Congress should reaffirm its direction to the Secretary to
implement the Federal safety permitting process in 49 U.S.C.
5109 for certain types of especially dangerous hazmat while
also requiring an agency evaluation of whether the current
types and quantities of hazmat listed there should be changed.
Congress should direct RSPA, after motor carriers of hazmat
register with RSPA as currently required, to provide immediate
notification of such registration to FMCSA. And, subsequent to
registration with both agencies, a hazmat motor carrier shall
undergo both a preliminary safety review to determine initial
safety fitness, as well as subsequent compliance reviews with a
satisfactory rating in order to continue transporting hazmat
both interstate and intrastate.
Require Level Six Inspections of all trucks of motor carriers
domiciled in other countries that are transporting placardable
hazmat into the U.S. every 90 days.
Require all motor carriers transporting hazmat to be equipped
with tracking systems, electronic on-board hours of service
recorders, truck/tractor/trailer security interdiction
technology, and crash data event recorders.
In order to improve security and safety, the Secretary is
directed to issue regulations to implement 49 U.S.C. Sec. 5109
by specifying the types and amounts of hazardous materials
(hazmat) that can be transported only with a Federal permit:
National System of Uniform Hazmat Motor Carrier Transportation
Permits.
Direct FMCSA to Assign Unique, Including Biometric Identifiers
to All CDL Holders with Hazmat Endorsements.
Direct FMCSA to Establish Regulations Requiring the States to
Adopt Specific Routing Controls for Motor Carrier Transport of
Hazmat.
Defects in the Current Commercial Driver License (CDL) Program Permit
Abuses
The time has come for the U.S. DOT to place more rigorous
requirements on the ability to obtain and renew a CDL. It is at present
far too easy to obtain a CDL in the U.S. No training or prior
certification of any kind is needed to apply for and obtain a license
to operate a truck or bus in interstate commerce. It is even easier in
most states to obtain a license to operate a truck or bus solely
intrastate. In fact, in some states, a chauffeur's license or, in some
instances, even an ordinary passenger vehicle operator's license, is
sufficient to operate a smaller commercial motor vehicle.
Interstate CDLs are issued by states according to very minimal
Federal rules, which have both a written and an on-road component. In
most cases, passing a state test to obtain a CDL requires no
specialized instruction. Many applicants are self-taught, have prepped
with the aid of mail-order courses, or have been given only a few
lessons by a truck or bus driver they know. No certification of any
kind, such as the demonstration of having passed a federally approved
training course, must be presented to take a multiple choice paper
examination for the basic interstate CDL. The driving part of the test
is often brief and perfunctory, and is often conducted in the parking
lot of the inspection area. Many commercial drivers admit that they
learned how to operate a truck only through their employment
experience. This results in inexperienced drivers when they first take
to the road carrying freight throughout the U.S.
Special endorsements, such as the additional authorization to haul
placardable quantities of hazardous materials, are, again, simply
written ``knowledge'' tests. The applicant does not need to demonstrate
any driving skills, but only answer a set of written questions about
hazardous materials transport. There is no limit on the number of times
that a test can be taken by an applicant, so many drivers simply take
the test until they pass it. According to news reports, the average
failure rate for the hazardous materials endorsement in one state,
Oregon, is only slightly higher than the failure rate for applicants
taking the very simple test for a passenger vehicle driver's license
(38 percent versus 35 percent).
Another key shortcoming of the Federal CDL rules is the lack of a
requirement for a commercial license for drivers operating trucks that
are less than 26,001 pounds gross vehicle weight. There are millions of
single-unit trucks weighing between 10,001 and 26,000 pounds operating
in interstate commerce with drivers who have no CDLs, who are not
subject to mandatory drug and alcohol testing, and for whom the states
often have patchy, unreliable driver records of traffic and other
violations and convictions. This class of trucks comprise large single-
unit delivery trucks, such as beverage trucks, large single-unit trucks
used for interstate (primarily regional) movement of certain
combustibles, small tankers used for propane delivery, single-unit
regional moving vans, and many other single-unit trucks transporting a
wide variety of cargo. Single-unit trucks are responsible for nearly a
third of all truck-related fatalities and pose a significant safety
problem. Overall, more than 40 percent of severe to fatal injuries each
year in truck-related crashes are the result of single-unit truck
collisions, according to FMCSA.
Congress should extend the CDL requirement to vehicles weighing
between 10,001 and 26,000 pounds. By this action, Congress would
include drivers in this weight class in an existing mandate for new
data collection covering CDL-holders pursuant to Congressional
direction in both the 1998 Transportation Equity Act for the Twenty-
First Century (TEA-21) and the Motor Carrier Safety Improvement Act of
1999 (MCSIA). This information could be crucial in our efforts to
improve both safety and security oversight of drivers operating
commercial motor vehicles.
Recommended Actions:
Congress should direct FMCSA to issue a final regulation
requiring drivers to secure CDLs to operate commercial motor
vehicles between 10,001 and 26,000 pounds gross vehicle weight.
FMCSA Should be Directed to Implement the Recommendations of the U.S.
DOT Office of Inspector General for Improving Federal and State
Administration of the CDL
Little more than a year ago, the U.S. Department of
Transportation's Office of the Inspector General (OIG) released its
detailed audit on the Federal and state administration of the
Commercial Driver License (CDL), Improving the Testing and Licensing of
Commercial Drivers, MH-2002-093, May 8, 2002. In general, the OIG found
that Federal standards and state control over the issuance and follow-
up oversight of the CDL were not sufficient to defend against the
threat posed by individuals who seek to fraudulently obtain CDLs. The
current Federal standards do not adequately address how the states
should verify the eligibility of CDL applicants, and the states
themselves do not fully implement the existing Federal standards to
adequately monitor third-party testers. The OIG found with regard to
the last mentioned issue of third-party testers that 23 states did not
require these examiners to annually take the driving skills test
administered by the third-party testers.
The OIG also found that, although the FMCSA has increased the
quality of its oversight reviews of state CDL programs, the agency
nevertheless needs to broaden its reviews, improve the basis on which
the states annually certify that their programs comply with Federal
standards, and ensure that problems identified in state programs are
corrected. The OIG also stressed that the agency needs to use the
sanctions available to it when states fail to correct significant
problems.
The OIG noted in its audit report that that successful
implementation of many of its corrective actions is contingent upon the
completion of several rulemaking actions. However, to date, we are not
aware of any rulemaking actions that have been proposed or completed to
address the multiple abuses in the current CDL program to improve state
oversight of their licensing efforts to prevent fraud.
Recommended Actions:
Congress should direct FMCSA to issue a final regulation that
implements the findings and recommendations of the U.S. DOT
Office of Inspector General's Report to enhance safety and
security. The final rule should include specific
countermeasures that prevent fraudulent, inaccurate, or
inadequate information from being used by the states to issue
or renew CDLs; that ensure the competence and qualifications of
licensing examiners, including third-party examiners; that
improve the Federal oversight and review process for
determining the adequacy of state CDL programs; and that apply
appropriate Federal sanctions to any state that seriously or
repeatedly violates Federal requirements for conducting its CDL
program.
Unacceptable Loopholes Still Exist for Commercial Drivers with Unsafe
Personal Driving Records to Obtain and Retain a CDL
Section 201 of Title II of the Motor Carrier Safety Improvement Act
of 1999 (H.R. 3419), the enabling legislation for the Federal Motor
Carrier Safety Administration (FMCSA), provides for several new or
amended types of CDL-holder disqualifications for a variety of offenses
committed while operating either a commercial motor vehicle or a non-
commercial motor vehicles (non-CMV). However, the language needs to be
amended because of several undesirable outcomes that occurred when the
agency finally implemented the provision several years after the
congressional deadline.
The FMCSA proposed implementing regulations for Section 201 (g) on
May 4, 2001 (66 FR 22499 et seq.) and July 27, 2001 (66 FR 39248 et
seq.). In those proposed rules, the agency adopted several
disqualification periods for various offenses committed by operating a
non-CMV.\2\ However, subsequent to the issuance of a final rule on July
31, 2002 (67 FR 49742 et seq.), the FMCSA issued an amended final rule
in response to a petition from several parties. 68 FR 4394 et seq.
(January 29, 2003). In that revision to the July 31, 2002, final rule,
the FMCSA acknowledged that it had adopted disqualification periods for
non-CMV offenses committed by CDL holders without regard for whether
those offenses resulted in CDL suspension or revocation. Petitioners
had alleged that the agency had exceeded its statutory authority by
adopting provisions triggering CDL-holder disqualification without also
specifying that such disqualification shall result only if the
violations also result in CDL suspension or revocation.
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\2\ A non-CMV, for the purposes of the CDL provisions in 49 CFR Pt.
383, includes all passenger vehicles up to 10,000 pounds gross vehicle
weight rating and all medium commercial vehicles from 10,001 to 26,000
pounds gross vehicle weight (not as rated, but actual operating
weight).
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The consequence of this FMCSA January 2003 revision is far-
reaching. Convictions for serious offenses by CDL holders in non-CMVs
that would have systematically resulted in disqualification periods for
CDL holders will now trigger disqualification only if the convictions
result in suspension or revocation. This means that what had been
adopted as a federally uniform system of removing offending CDL holders
from the highways has effectively become a highly uneven system of
disqualification that depends on individual state practice. If, for
example, a CDL holder is convicted for one, two, or even three
disqualifying offenses, but the state that issued the CDL does not
require suspension especially after the first or second convictions,
this CDL holder can continue to drive in interstate commerce.
In the final rule of July 31, 2002, the FMCSA acknowledged that
convictions for the same serious offenses that would trigger
disqualification for CDL holders that occurred prior to the issuance of
a CDL would not adversely impact a CDL applicant in seeking commercial
licensure: ``[O]nly non-CMV convictions for offenses committed after a
person obtains a CDL can be counted against his or her driving
record.'' 67 FR 49745.
This is an anomalous result that needs correction in authorization
legislation. If Congress intended that CDL holders be held accountable
for convictions for serious offenses committed with a non-CMV, then it
is equally important that convicted repeat offenders not be allowed to
gain a CDL despite a string of prior serious violations. Section 201 of
the Motor Carrier Safety Improvement Act of 1999 should be amended so
that an individual with 3 convictions involving a non-CMV for the same
offenses that trigger disqualification after gaining a CDL shall be
barred from being granted a CDL for at least 3 years after the third
conviction for a serious traffic violation. If the non-CMV holder has
been convicted for any serious offense for use of alcohol or controlled
substances, or for an at-fault crash resulting in a fatality, the non-
CMV holder is barred for life from being issued a CDL.
Recommended Action:
Section 201(g)(1) should be amended to ensure that CDL holders
will have their licenses suspended or revoked for all serious
traffic violations and not just those violations that have
resulted in suspension or revocation of a personal driver
license.
Congress should direct FMCSA to issue a rule establishing the
requirement that applicants are eligible to be awarded a CDL
only if they have a convictions-free driving record for the
previous three years for serious violations committed with any
vehicle less than 26,000 pounds gross vehicle weight rating.
The Federal Medical Certification Required of Commercial Drivers Needs
to Be Strengthened and Merged with the Commercial Driver
License
Although the FMCSA began the process almost 10 years ago of merging
the commercial driver license (CDL) and the certificate issued to a
commercial driver every two years showing that the driver meets the
medical standards for operating trucks and buses in interstate
commerce, that initiative stopped in the middle 1990s and no further
action has been taken on this important issue.
A number of abuses have been shown by the FMCSA and even
representatives in the trucking industry to be chronic problems in the
current Federal regime with the medical certification and the CDL
issued as separate documents. Among other issues, drivers are sometimes
tempted to drive with an expired certification because they failed
their medical exams but their CDLs are still not up for renewal. Any
action taken by the FMCSA to merge the two documents must ensure that
drivers cannot get away with driving illegally with an expired medical
certification.
I want to take this opportunity to voice our strong support for the
Administration's proposal in Section 4005 of the ``Safe, Accountable,
Flexible, and Efficient Transportation Equity Act of 2003'' calling for
enactment of a medical review board and a national registry of
certified medical examiners. Both of these ideas have considerable
merit and, in fact, are long-overdue policy actions by the Department
of Transportation. However, I believe that the current provision, as
drafted, needs to be amended to specify that a central duty of the
appointees to the medical board is the review of appeals of physical
qualification denials issued by the prospective medical examiners. The
expertise of these health care providers should be applied to resolving
challenges to any denials of medical certifications for commercial
drivers.
It also is important for a medical review board in the FMCSA to be
the result of selection criteria evaluated through public rulemaking by
the agency. Further, the conduct of business by the board should always
be in the sunshine to the extent permitted by privacy law and
regulation. For example, Congress needs to specifically ensure that the
meetings of the board will be open to public attendance, that all work
products of the board including draft documents will be available for
public review, and that the meetings of the board and any subcommittees
or task forces are recorded for which a transcript is made available
for public use.
In addition, we recommend that term limits be placed on medical
review board service. Appointments to the board should not exceed a
term of three/four years, and a current member should not be able to
succeed herself--membership should be on a constantly rotating basis in
order to guarantee that fresh talent and perspectives are consistently
injected into the board advice and recommendations.
We also strongly support the other part of Section 4005 in the
Administration's bill establishing a national registry of appropriately
trained medical examiners that lists the certified preferred providers
for conducting the physical qualification medical examinations for
commercial motor vehicle drivers. This kind of national list of trained
health care providers certified to conduct the physical examinations
will finally put an end to the multiple abuses under the current system
that sometimes result in unqualified drivers nevertheless being given a
pass to continue to operate trucks and buses in interstate commerce.
For example, a famous insider joke among commercial drivers concerns
``doctor shopping''--which, under the current FMCSA regulation also
includes an advanced practice nurse, a physician's assistant, and a
chiropractor. If you can't find a health care provider to pass you the
first go-around, you have a good chance if you keep trying.
The ease with which some drivers can find a health care provider to
certify them has multiple causes. First, many practitioners are not
aware that the medical standards for commercial drivers in several
major health areas are higher and more stringent than for passenger
vehicle licensure. As a result, some drivers can pass a physical linked
to operation of a passenger vehicle, but would fail a medical
examination using the higher standards for interstate commercial
vehicle operation. It's not that most of these practitioners are not
competent but rather that they don't know the regulations--and many
drivers are happy that they don't.
Unfortunately, there are also health care providers who override
the criteria of the regulations and nevertheless certify a driver even
though technically that driver failed some part of the exam. There also
are providers who do not conduct a thorough physical, failing to test
in required health areas, so that certification is provided on the
basis of an incomplete exam.
These abuses can be substantially curtailed, if not eliminated, if
the FMCSA is instructed to think along the lines of the well-trained,
highly skilled cadre of flight surgeons currently used the Federal
Aviation Administration that is specifically dedicated to performing
the physicals for commercial pilots. We recommend that the FMCSA
conduct rulemaking to garner a wide range of views on what the training
and certification standards should be to govern these medical
examiners. A national registry, for one thing, should be based on some
demonstration of knowledge and proficiency in conducting physical
examinations, and for an applicant to demonstrate a detailed
understanding of the different medical standards in the Federal Motor
Vehicle Safety Regulations used to qualify commercial drivers. We also
recommend that anyone listed on the national registry be periodically
re-certified by passing another proficiency examination as well as
undergoing refresher training.
Recommended Action:
Direct FMCSA to include the driver fitness certification in the
CDL issuance and renewal process, ensure that renewal periods
coincide for both CDLs and medical certifications in each
state, and establish a preferred registry of health care
providers who pass a rigorous certification examination
demonstrating their knowledge and competence to conduct
comprehensive physical examinations of drivers seeking medical
certification, including their understanding of the Federal
Motor Carrier Safety Regulations.
The ``Share the Road Safely'' Program Needs Major Reforms or It Should
be Terminated
The FMCSA's predecessor agency, the Office of Motor Carriers in the
Federal Highway Administration, began an effort in tandem with the
trucking industry in the early 1990s called the ``No Zone'' that
emphasized a truck driver's ``blind spots'' on the road and the need
for passenger vehicle drivers to avoid driving in these ``no zones.''
Unfortunately, the no zone was used immediately by the trucking
industry as a propaganda weapon to try to offset the horrific crash
figures associated with big truck crashes: although large trucks are
only 4 percent of registered vehicles on the road, they are involved in
12 percent of fatal crashes, and 23 percent of the passenger vehicle
occupants who die each year in multi-vehicle crashes were involved in
crashes with large trucks, according to the Insurance Institute for
Highway Safety. The truck crash figures maintained by the Insurance
Institute for Highway Safety also emphasize that when large trucks
collide with small passenger vehicles in fatal crashes, 98 percent of
the people who die are in the small vehicles.
Using bogus research claims, the trucking industry and even the
FMCSA has kept up a steady drumbeat of claims that most fatal crashes
involving large trucks and small passenger vehicles are primarily the
fault of or are somehow caused by the drivers of the cars, pickup
trucks, vans, and sport utility vehicles. But in a General Accounting
Office (GAO) report released at the end of May 2003, the GAO states
that subsequent research by the FMCSA showed that, at most, only 35
percent of fatal passenger vehicle--large truck collisions are
attributable to passenger vehicles traveling in the No Zone.\3\
---------------------------------------------------------------------------
\3\ Truck Safety: Share the Road Safely Program Needs Better
Evaluation of Its Initiatives, U.S. General Accounting Office, GAO-03-
680, May 2003.
---------------------------------------------------------------------------
The new version of the ``No Zone'' program, dubbed the ``Share the
Road Safely'' program since the year 2000, already had been heavily
criticized by the GAO in a previous evaluation.\4\ The current GAO
evaluation is similar to its previous evaluation and testimony in that
both reviews stress the failure of the Share the Road Safely program to
have quantified measures of effectiveness to determine the extent of
the success of the effort to educate drivers how to operate their
vehicles in the vicinity of large trucks.
---------------------------------------------------------------------------
\4\ Testimony of Phyllis Scheinberg, Director, Subcommittee on
Ground Transportation, House Committee on Transportation and
Infrastructure, U.S. Congress, March 17, 1999, GAO-T-RCED-99-122.
---------------------------------------------------------------------------
The May 2003 GAO report also criticizes the earlier FMCSA
evaluations of the No-Zone/Share the Road program because these reviews
were unable to determine any program effectiveness. The reasons that
these evaluations could not really show any benefits were:
The evaluations relied on self-reporting by motorists, a
process well-recognized to be inherently biased.
The FMCSA had no baseline of driver knowledge and behavior
with respect to the No-Zone/Share the Road effort to use to
compare before/after effects of the program.
The FMCSA had no ability to determine whether there were any
changes in driving behavior or frequency of passenger vehicle-
large truck crashes due to the influence of the program's
initiatives or because of other, different influences.
The GAO report also stresses that the numerous highway safety
officials and researchers contacted for the current evaluation of the
Share the Road Safely program all agreed that public education efforts
alone are unlikely to produce substantial changes in driver behavior
and attitudes unless they are coupled with other safety initiatives
such as local law enforcement programs to increase traffic law
compliance. The report also points out that the FMCSA agreed that the
National Highway Traffic Safety Administration has the expertise to
develop and evaluate information programs aimed at improving driver
safety consciousness and driving behavior.
I would like to add here that the Administration bill called
``SAFETEA'' currently has two provisions for refunding the Share the
Road Safely program. Section 4018 of the Administration bill openly
sanctions the program as an expanded effort, but provides no dedicated
funds.
The other provision, Section 4002, is where the money will come
from. This long provision deals with motor carrier safety grants,
primarily the reauthorization of the Motor Carrier Safety Assistance
Program (MCSAP), but expands the authorized use of funds to grant the
Secretary broad discretion annually to use large percentages of these
funds for any research or educational purpose, including funding
private parties to conduct ``activities and projects national in
scope'' to increase ``public education or awareness.'' This includes,
of course, using Federal funds originally dedicated to furthering the
states' motor carrier safety oversight and enforcement programs to fund
special interest groups and trade associations to conduct part of the
Share the Road Safely program. I should also mention that part of the
MCSAP funding authorized in Section 4002 of the Administration's bill
directs the states to emphasize the enforcement of passenger vehicle
traffic violations instead of using these precious dollars to improve
numerous aspects of motor carrier operations.
So one of the purposes of a diluted MCSAP authorization provision
is to siphon off limited Federal funds in uncontrolled amounts--funds
originally intended to further the states' capabilities to increase
motor carrier safety--to further an initiative that the GAO has
indicated as amounting to 10 years of effort and 6.8 million spent
Federal dollars with no measurable safety product to show for the
money. And we should not forget to mention here that the GAO points out
in its May 2003 report that most of the funds over this past decade
were used to hire contractors, with some contracts costing up to
$300,000 a shot. Unfortunately, however, the agency, as the GAO also
points out, has no accounting of where the contracted payments went
before the year 2000 (1992-1999). Perhaps Congress should require an
investigation of where this money went and to whom.
As a result of these abuses of the public trust and the findings of
the GAO in its recent report showing a decade of bankrupt agency and
industry attempts at ``educating'' the public and thus classifying
light vehicle drivers as the prime offenders in truck-car crashes, we
have formed our own recommendations for reauthorizing the program that
are directly supported by the results of the May 2003 GAO report and
its own recommendations.
Recommended Actions:
The Share the Road Safely program should be transferred to
NHTSA to take advantage of that agency's expertise in creating,
implementing, and evaluating educational programs, especially
those addressing the need of changing driver behavior and
attitudes.
MCSAP funds should not be used for the Share the Road program,
allowed by the Administration in its reauthorization bill,
until the program has demonstrated concrete success in meeting
the measurable goals set forth by the GAO.
FMCSA Reauthorization
The reauthorization request by FMCSA for FY 2004 is $447 million,
growing to $499 million in 2009. This is about a 20 percent increase
over current funding for FMCSA programs. While we strongly believe that
more Federal funds need to be spent on truck safety, we are not sure
that this agency knows how to spend it effectively without strong
direction, specified goals and sustained goading from Congress. One
only need to review the legislation passed in 1999 creating this
agency, particularly the findings and purposes section, to realize the
shortcomings of this agency. Unfortunately, the American public is
paying the price, with their lives and hard earned taxpayer dollars.
Thank you for allowing me to testify. I am pleased to answer any
questions you and other members of the Subcommittee may have.
Senator Sununu. Thank you.
Mr. Hurst?
STATEMENT OF PETER HURST, PRESIDENT, COMMERCIAL
VEHICLE SAFETY ALLIANCE; ACCOMPANIED BY LIEUTENANT
PAUL SULLIVAN, MASSACHUSETTS STATE POLICE
Mr. Hurst. Thank you, Mr. Chairman.
My name is Peter Hurst. I'm the President of the Commercial
Vehicle Safety Alliance and the Director of the Carrier Safety
and Enforcement Branch for the Ontario Ministry of
Transportation. CVSA is an international association of state,
provincial, and Federal truck and bus law enforcement agencies,
along with representatives from industry in the United States,
Canada, and Mexico. I want to thank the Committee for inviting
us here today to present our proposals.
Commercial vehicle safety and enforcement have come a long
way in the 20-plus years that CVSA has existed. Since 1991, the
out-of-service rate has declined by 29 percent, and the
fatality rate of crashes involving commercial vehicles has
dropped by 25 percent. These achievements are the direct result
of the efforts of thousands of CVSA-certified front-line
inspectors, the programs under the Motor Care Safety Assistance
Program, and our industry partners. However, we cannot stand
pat as we are faced with change and new challenges. The volume
of goods moved by commercial trucking grows almost daily, as
trucking has become the economic lifeblood of North America and
the need to balance commerce with security takes on more
importance.
At this time, I would like to introduce our primary witness
for today, Lieutenant Paul Sullivan, of the state of
Massachusetts State Police and immediate past President of
CVSA, who will present the details of CVSA's reauthorization
proposals.
Senator Sununu. Welcome, Mr. Sullivan.
Lieutenant Sullivan. Thank you, sir.
It was only 10 days ago that 21-year-old rookie police
officer, Jeff Parcell, was down doing his job in North
Carolina, what he was trained to do, awareness and recognition
programs, and he arrested the alleged Olympic bomber, Eric
Rudolph, using an awareness and recognition concept. As we talk
about traffic enforcement, new entrants, the effectiveness of
the CDL program, the effectiveness of the technology programs,
and the basic core group that we do every day, we share a goal
with Federal Motor Carrier Safety Administration. But to do so,
we need an increase in resources and flexibility in how they
are administered for both the Federal and the state programs.
I've inspected thousands of trucks in my life, and I've
been to hundreds of accident scenes. Now I'm talking to police
officers about what their training needs are, and the local
police officers are telling me that their training needs are--
they want to know how to stop a truck, and they want the
information on economic regulations that were created for
seamless borders so that they can do some speed enforcement and
maybe, when trucks spill something on the highway, they can
also deal with that thing.
But the regulations have created these people over here
that know the regulations, and this knowledge gap in the
middle, and the people on the right that don't. And if we have
bad drivers on the highway getting involved in crashes, and if
they're working for bad carriers, and we want an effective,
quick means to get more people involved in traffic programs,
then we need a commercial vehicle one-on-one with the local
police officers and get those people, that really want to do
the work, the knowledge that they need. And they're telling me
that they're avoiding contact with commercial-vehicle
operations, because we've made it too confusing for them and
they're going to be making mistakes left and right.
And I'm also talking to the small mom-and-pop trucking
companies, and they come to me for questions about--that they
have on the regulations, and we've built up a relationship with
these people. And there's a knowledge gap there between the
bigger companies that know and the small ones that don't. And
then the small ones become successful, and they grow, and they
become interstate transportation.
I want to suggest that they don't grow overnight. Big
interstate transportation fleets don't pop up overnight. And
the small people can't be responsible for where their customers
live. So now they're involved in interstate transportation. But
they still have that comfortable relationship they've always
had with their state enforcement people, and they still seek
them out, and they seek out local police officers to answer
questions. And I'm suggesting, in the New Entrant Program, we
not ignore that.
New Entrants is not a new concept. Jurisdictions, states
and provinces, have been practicing this program for years, and
the small companies have been using private contractors for
years to satisfy their needs. And I'm afraid that we're going
to ignore these successful state programs and provincial
programs and the use of private contractors under the New
Entrant Program.
And using the same concept for CDL--CDL problems are not
strictly with the system itself, the process. Police officers
are making mistakes filling out citations. Judges are letting
people go that they shouldn't. The licensing authorities are
being very territorial in their information. We need to break
down some of these institutional barriers. We've submitted our
suggestions on how to do that under the CDL program.
You know the results of the self-assessment program that
CVSA conducted in Massachusetts and West Virginia, and how the
system is not working the way it's designed. But we have
submitted suggestions for improvement of that system.
And also on the ITS systems, we've built chimneys of
information that work fantastically well by themselves, and now
the time has come for these information systems to start
talking to each other and to the roadside inspector. That's who
we represent here today, is the roadside inspector. And what
might work very successfully at a desktop is not going to be
very comfortable for a roadside inspector to do on the side of
the road in a weigh station or if he's on patrol using a laptop
computer. We need to tie those systems in together, complete
the link that was the promise of CVISN when it started.
And, to recap, I'd like to talk about the MCSAP core
program. It's been very successful, as President Hurst
mentioned. But to keep it going, we have suggested that the
resources will, of course, have to be increased to maintain the
level of efficiency that we have provided in the past, and that
there should be some flexibility involved in expenditures for
both Federal programs and the state programs. And we work very
strongly with FMCSA, and congratulate them on their hard work,
and for Mr. Hurst.
Thank you very much.
[The prepared statement of Mr. Hurst follows:]
Prepared Statement of Peter Hurst, President and Paul Sullivan,
Lieutenant, Commercial Vehicle Safety Alliance
I. Introduction
I am Peter Hurst, President of the Commercial Vehicle Safety
Alliance and Director of Carrier Safety and Enforcement Branch for the
Ontario Ministry of Transportation. CVSA is an international
association of state, provincial, and Federal truck and bus law
enforcement agencies along with representatives from industry in the
United States, Canada, and Mexico.
As CVSA President, and a motor carrier enforcement official from
Canada, I just want to tell the Committee how important this
reauthorization legislation is to CVSA. At the same time, it will be of
great interest to the Provinces and Territories of Canada especially
with respect to border and new entrant issues.
At this time, I would like to introduce our primary witness for
today, Lieutenant Paul Sullivan of the Massachusetts State Police and
immediate past President of CVSA who will present the details of CVSA's
reauthorization proposals.
Good morning, Mr. Chairman, and members of the Commerce Committee,
I am Paul Sullivan, a Lieutenant with the Massachusetts State Police,
and am here today to present CVSA's reauthorization policy on behalf of
all of our members.
II. Challenges for the upcoming Reauthorization
Our recommendations have been carefully considered to meet the
following challenges ahead of us:
Help achieve the goal we share with the Federal Motor
Carrier Safety Administration to reduce the truck fatality rate
by 41 percent (from 1996 to 2008) or 1.65 fatalities per 100
million vehicle miles traveled. We appreciate the comments made
by FMCSA Administrator-Designate Annette Sandberg before this
Committee on May 21 in which she credited the states with
playing a significant role in the preliminary estimated 3.5
percent reduction in fatalities resulting from commercial
vehicle crashes for 2002.
Strengthen safety enforcement programs that have worked and
take on new programs which the performance-based approach has
identified as having significant potential to achieve safety
goals.
The need for a greater focus on commercial vehicle
transportation security and the implication for front-line
police charged with motor carrier safety enforcement.
Recognize that states are now facing their most severe
budget crisis in many years as we determine a reasonable and
appropriate balance between the funding of Federal and state
operations.
III. CVSA Reauthorization Recommendations
Increase MCSAP by 5 percent annually over the life of the bill.
A CVSA member survey indicates that states need an increase of 5
percent annually, or 30 percent over the life of the bill, to keep the
roadside inspection and other enforcement programs such as motor
carrier Compliance Reviews at their present strength. It is important
to note that in most states, the MCSAP grant is used almost exclusively
for inspector salaries. States have the greatest ability to impact
safety's bottom line of reducing crashes and injuries, and most
importantly, saving lives. One of the primary reasons for this is the
state roadside inspection program.
This is the conclusion of two recent studies commissioned by the
Federal Motor Carrier Safety Administration and undertaken by the Volpe
National Transportation Systems: FMCSA Compliance Review Impact
Assessment Model (February 2002) and FMCSA Roadside Inspection and
Traffic Enforcement Effectiveness Assessment (December 2001). Data was
reviewed on compliance reviews, roadside inspections, and traffic
enforcement for the year 1998. These are the primary enforcement
programs constituting the ``core'' MCSAP programs. They created an
analytical model to calculate the number of crashes avoided and
injuries and lives saved. We, at CVSA, using dollar values taken from
FMCSA's cost-benefit analysis for the latest CDL Final Rule on July 31,
2002, assigned total dollar values to each of the these three
categories. Roadside inspections resulted in the greatest number of
crashes avoided, lives saved and injuries avoided. When attaching
dollars to these numbers, roadside inspections provided the greatest
return on investment. (See Attachment A for a more detailed summary).
We are concerned that FMCSA's proposal does not increase the MCSAP
program at all in the first year of reauthorization, keeping it at
$164,500,000, while the FMCSA's administrative budget is increased by
59 percent in the first year of reauthorization. Looking at FMCSA's
projected increases in their Administrative budget for the life of the
bill, their administrative budget goes up by another 11 percent and the
MCSAP program goes up by 10 percent. FMCSA's operations end up with a
70 percent increase over the life of the bill and MCSAP with only 10
percent over the life of the bill. We suggest that this is out of
balance and that a 38 percent increase over the life of the bill for
the MCSAP program is justified and reasonable.
In discussing the funding levels for the MCSAP program, we feel we
are obligated to tell you that many states are having great difficulty
in coming up with the full 20 percent match (MCSAP is an 80/20 program)
to draw the maximum amount of their grant. Over the past two years,
some 38 states were forced to roll over at least part of their full
allocation to the following year. We realize that in these difficult
economic times, this is an unfortunate reality in other Federal grant
programs. But we do suggest that FMCSA work more closely with the
states to try and resolve this problem. And we recommend that, as in
the case of the ITS-CVO Commercial Vehicle Information Systems Network
program administered by the Federal Highway Administration,
consideration be given to allowing the states to use other Federal
dollars for the match not to exceed 90 percent reducing the state share
to 10 percent.
Another funding source available to help resolve this problem is
the High Priority Program.
High Priority Program and Safety Performance Incentive Programs
We support the purposes of both of these programs. Our members
fully embrace the incentive, performance-based approach. We also
support FMCSA's proposed increase in the takedown for both programs
from 5 percent to 10 percent of the overall MCSAP funding level.
We are pleased that neither of these programs will require a
matching contribution from the state. CVSA has been a strong advocate
of 100 percent funding for these programs because, unlike the basic
inspection program grant, projects under either of these programs
cannot necessarily be planned to coincide with the state legislative
budget cycles. We appreciate FMCSA's recognition of this problem.
Traffic Enforcement
Flexibility for the states to use MCSAP officers for traffic
enforcement that is not tied to an inspection (current policy), should
only be allowed when funds are provided over and above the basic MCSAP
core inspection grant. CVSA suggests use of High Priority Program funds
for this purpose. Traffic enforcement efforts should not take resources
away from the core program.
Traffic enforcement against the passenger car around trucks is
something that should be tested in a pilot program to ensure uniform
collection of violation data and provide a way to measure its
effectiveness. We suggest that this pilot program be undertaken in
conjunction with the National Highway Traffic Safety Administration.
This pilot should include the involvement of local law enforcement
officers who already do traffic enforcement against the passenger car.
There are close to 800,000 such officials throughout the country. These
officers would be trained in basic ``rules of the road'' for trucks and
security awareness as well. The training would help make them more
comfortable in doing traffic enforcement around trucks multiplying the
impact on safety.
Finally, the pilot program would be a way to test education/
outreach strategies especially on the car/truck interaction issue.
New Entrants
We support this program which was a provision of the Motor Carrier
Safety Improvement Act of 1999. It is important to do safety audits on
the approximately 50,000 new carriers entering the trucking business
each year. Studies show that new entrants are more crash prone in their
early stages of operation.
This is a resource intensive program since in most cases, it
requires a face to face meeting with the new entrant on site at the
place of business. A survey of CVSA member jurisdictions indicates that
the cost to fully implement a new entrant program would be $30,000,000
a year. The good news is that FMCSA's overall cost estimate agrees with
our survey.
But a problem arises when it comes to finding the dollars to fund
this program. FMCSA directed the implementation of this rule to begin
in January 2003. Yet there is no line item in FMCSA's 2003 budget that
would fund the program with the result that states are ``scrambling''
to try and comply and in most cases are having to pull their
enforcement personnel away from targeting known bad carriers to do the
new entrant safety audits. We do not believe that Congress intended
this to happen.
In this past week, we have been hearing from members who are now
working on their MCSAP commercial vehicle safety plan for Fiscal Year
2004 that starts in October and are uncertain about what to expect in
2004. They are asking whether there will be enough money in FMCSA's
2004 budget to help them with this program? Will the reauthorization
bill pass providing enough funding?
When looking at FMCSA's reauthorization proposal we find that the
$17,000,000 allocated for the states for this program is not enough.
But we have learned that in public testimony before the Congress, FMCSA
indicates that it is reserving another $16,000,000 within its
Administrative budget to monitor and administer the program. This
expenditure is to cover the cost of their hiring 32 new staff members
and recruiting and training 67 private contractors to do safety audits
in those states who are unable to implement a new entrant program on
their own.
While on this issue of private contractors, we ask FMCSA what kind
of certification and quality control program will be established to
assure the quality of these private contractors? And why should states
be precluded from using properly certified private contractors?
Shouldn't this be an option for the states as well? We suggest everyone
take a close look at what the Province of Manitoba is doing with
respect to private contractors. They are implementing a uniform third
party training, testing and accreditation program for use by all
Canadian Provinces.
CVSA believes there appear to be two possible solutions to this
problem. The optimum solution would be to delay the implementation of
this program until all jurisdictions are able to implement it and a
pilot program has been undertaken that would establish the best way to
carry out the program, including the use of private contractors,
without encroaching on current state enforcement efforts such as
roadside inspections and compliance reviews. MCSIA'99 contains a
provision providing for a staging or phasing in of the program
precisely to avoid siphoning resources from inspections and compliance
reviews. If reauthorization legislation does not pass Congress by
September of this year, then this may be the only option because an
extension of 2003 funding levels will not leave FMCSA with any dollars
at all to fund the program for 2004.
The other option, assuming reauthorization passes, is to direct
that not less than $13,000,000 of the $16,000,000 FMCSA is reserving
for its own efforts to administer and monitor the program go directly
to the states. The $13,000,000 when added to the $17,000,000 reserved
for the states reaches the $30,000,000 total that CVSA has determined
is necessary for the states and obviates the need to cut into the state
core inspection grant to fund the new entrant program. We believe that
the remaining $3,000,000 should be adequate for FMCSA to exercise
program oversight.
Border Enforcement Grant Program
Funding under this program should not be limited to just the border
states. It is very possible that any state in the country could be
affected by the opening of the Southern border. A clear example is the
necessity for roadside officers to enforce vehicle registrations which
is a provision in another part of this bill.
Also, although it is not specifically detailed in the bill, FMCSA
has otherwise stated in recent testimony that $9,000,000 of this grant
program would be used to conduct 200,000 HM inspections at the Northern
border. We ask how this money will be allocated to each of the Northern
Border states? Will it be allocated as part of their annual MCSAP
grant?
CDL Program
CVSA is pleased at the funding levels provided for a new CDL grant
program that range from $22,000,000 in the first year to $25,000,000 in
the last year of the bill. We have long advocated the creation of a
separate CDL grant program with funding at these levels.
But the purpose and conditions for CDL grants to the states are not
clearly defined in the proposed Act. Additional statements on this
issue by FMCSA at recent hearings still do not define clearly the
purpose of the program and do not stress the importance of remedying
the many of the documented deficiencies that now exist in the CDL
program. Man drivers are not being sanctioned and are causing crashes
and fatalities.
CVSA recommends that the initial purpose of the grant program
should be to encourage all states to undertake a comprehensive self-
assessment of their CDL programs as has been done under CVSA (FMCSA
funded) pilot program with the states of Massachusetts and West
Virginia. The second part of the pilot program would be to specifically
identify and implement those steps needed to correct the deficiencies.
CVSA recommends that this new grant program:
be modeled after the MCSAP in terms of oversight and
procedures, but with a 50/50 match since state licensing
agencies have substantial resources through their fee
structures
provide accurate and timely driver information to roadside
enforcement
establish specific conditions under which grants will be
awarded such as the creation of a state interagency task force
including all state agencies responsible for administration and
enforcement of CDL rules such as the state lead MCSAP agency
and judiciary, and the preparation of an annual work plan
require each state to undertake a CDL ``Self-Assessment''
program modeled after the CVSA pilot program funded by FMCSA
under TEA-21.
A major goal of this program must be for all states to participate
in the grant program because many of the problems must be addressed
nationwide to have the maximum impact.
CVSA questions the designation of up to 25 percent of the CDL
program for emerging issues without a clear definition of what they
are. We believe the comprehensive self-assessment approach we recommend
would certainly uncover any emerging issues that need to be addressed.
ITS-CVO--Commercial Vehicle Information Systems and Networks Deployment
(CVISN)
CVISN ties together all of the vehicle, driver and carrier
information that roadside inspectors need accurately and in real time.
It is a necessary and companion system to make available to the
inspector at the roadside, the critical driver information we have
discussed with respect to our proposed CDL grant program.
Under TEA-21, $184,000,000 was authorized over the life of that
bill for the states to deploy CVISN. However, only $40,000,000 actually
reached the states with the result that as of today, only 9 states are
at a point of being able to deploy CVISN Level I capabilities.
Significant resources, $144,000,000 are needed to catch up.
We support Section 1704 in the Administration's bill which is a
clear step in the right direction to make up for lost time. By
transferring the program to Title I of the Federal-aid-highway program,
the funding for CVISN will be ``fire-walled'' and more protected from
the earmarking process which was a major reason that the money
authorized for CVISN in TEA-21 did not reach the states.
However, the funding levels in Section 1704 are not fully adequate
for the states to catch up in deploying CVISN. The allowance of $2.5
million per state falls short of the $144 million needed. Just as
important is that the program remains a 50/50 matching program which is
not consistent with the 80/20 matching provisions applicable to MCSAP.
While the states are allowed to use other Federal dollars as a part of
the match up to 80 percent, they may not always be able to take
advantage of this exemption from a practice that is otherwise precluded
in most grant programs. As we have pointed out earlier in our
testimony, in these difficult times, states are having a problem in
general in meeting the matching requirements.
Enforcement of Commercial Vehicle Registration Requirements
The requirement for roadside officers to enforce vehicle
registration should not be achieved through an out-of-service
declaration, but rather through a ``suspend operations declaration'',
or something similar. The use of an ``out-of-service'' declaration
would have the effect of adding an item which is not ``imminent''
hazard to the CVSA Out-of-Service criteria.
Use of MCSAP Funds for Local Government or Other Persons
In several provisions of Sec. 4002 (a), the Motor Carrier Safety
Assistance Program, the Secretary of Transportation is provided the
authority to make grants to a State agency, local government, or other
person.
To preserve the uniformity and integrity of all of programs that
are funded under the MCSAP program, it is absolutely essential that in
those instances where local governments or other persons may be the
applicants, funding must first pass through, and be coordinated by, the
state lead MCSAP agency.
The hallmark of the CVSA inspection program is uniformity among all
states, provinces and territories. To maintain this at the state and
provincial level requires constant vigilance on our part. The need for
this is just as great, or perhaps even greater, at the local level. The
industry deserves this and, in our view, it is the only way to achieve
the safety goals that we all support.
Uniform Carrier Registration Plan
It appears to us that Section 4008, Financial Responsibility for
Private Motor Carriers, is the appropriate section to again direct the
establishment of the Uniform Carrier Registration (UCR) program, which
was first required in the ICC Termination Act.
CVSA supports the legislation developed by an industry task force
that would establish a new UCR program to supercede the existing Single
State Registration System (SSRS) which now applies only to for-hire
carriers in 38 states. In addition, and of great importance to CVSA, is
that this industry proposal would guarantee that states would be
reimbursed for those SSRS proceeds currently being used for motor
carrier safety enforcement.
Interstate Operations of Interstate Motor Carriers
CVSA supports Section 4011 in the FMCSA proposal that would allow
capture of intra-state violation data on a carrier that also operates
in interstate commerce. In addition, we support the measure that would
apply an out of service order on an interstate carrier to its intra-
state operations as well.
FMCSA Authority to Stop Commercial Vehicles
CVSA recommends that this grant of authority to FMCSA in Section
4012 should be confined to border situations. We do not believe the
Administration or Congress is interested in creating a new police
force. This provision could be interpreted as an intention of FMCSA to
assume control of all, or part of, the existing state inspection
program and we recommend additional language in this section that would
confine the prescribed FMCSA authority ``in the vicinity of an
inspection site at the border.''
We also believe that Section 4012 would be an appropriate Section
in the DOT proposal to more clearly reflect the process by which the
North American Standard Inspection and Out of Service Criteria are
developed and implemented by CVSA.
Section 31102(b)(1)(J) Title 49, United States Code, should be
amended by adding the following language: ``This North American
Standard Inspection and North American Standard Out of Service Criteria
and decal program are developed by the Commercial Vehicle Safety
Alliance and are identified in Parts 350, 385, and 390 of the Federal
Motor Carrier Safety Regulations.''
We believe there is precedent for our recommendation in the NAFTA
border safety provisions of the 2001 Transportation Appropriations bill
passed by the Congress.
International Cooperation
We fully support the intent of Section 4015. Given the fact that
hopefully our Southern border will soon be open to Mexican truck and
bus traffic and our longstanding seamless operations at the Northern
border with Canada and its Provinces, we need to foster greater
participation and cooperation in international activities that would
that enhance highway safety through exchange of information, conducting
research, and examining needs, best practices, and new technology.
One reason for our support is that this best describes what CVSA
does as an alliance.
We would make one very important recommendation that we believe
supports the intent of this section. It is that data from Canadian and
Mexican inspections of U.S. commercial vehicles should be allowed to be
used by FMCSA for purposes of carrier ratings and possible enforcement
actions. Also, financial consideration should be given to Canada and
Mexico for their inspection and enforcement efforts in this regard.
Truck Rest Areas
We do not believe that the proposal in Section 1306, Title I of the
Federal-aid Highway Act adequately address the overall problem of the
shortage of adequate rest areas for truck drivers. We do not need any
more studies or pilot projects in this regard.
But we do believe that the proposal adopted by the American
Trucking Associations and the National Truck Stop Operators will
address the problem. It would establish a public-private partnership
through the creation of a Parking Assistance Resource Corporation
(PARC) to do the following:
identify the locations of truck parking shortages and the
reasons for them
develop best practices and recommended minimum design,
security and lighting requirements
review and prioritize applications from private enterprise
aimed at alleviating the shortage at specific locations and
make corresponding recommendations to the DOT Secretary
identify specific NHS corridors where regional and multi-
state strategies would be effective in solving the problem
PARC would be funded with a grant from the Federal Highway
Administration and be governed by a Board of Directors comprised of
representatives from FMCSA, ATA, TCA, NATSO, AAA, and CVSA.
Training Passenger Car Drivers to Drive in the Vicinity of Commercial
Vehicles
CVSA supports the provision in Section 4002 under MCSAP that would
require the states to revise their driver training manuals for
passenger car drivers to include information and best practices for
driving in the vicinity of commercial vehicles.
However, we suggest that any administrative costs be funded by the
state licensing agency that has jurisdiction over passenger car
drivers. We believe that when appropriate, other state agencies must
share the responsibility for highway safety.
Motor Carrier Advisory Committee
A Motor Carrier Safety Advisory Committee should be established by
FMCSA. Section 105 of the Motor Carrier Safety Improvement Act of 1999
authorized the Secretary of Transportation to establish a commercial
motor vehicle safety advisory committee to provide advice and
recommendations on a wide range of motor carrier safety issues. The
advisory committee was to remain in effect until September 30,2003.
This never happened and CVSA believes the need to establish such a
committee still exists.
Senator Sununu. Thank you very much, Mr. Sullivan.
Mr. Harrison?
STATEMENT OF JOSEPH M. HARRISON, PRESIDENT, AMERICAN MOVING AND
STORAGE ASSOCIATION (AMSA)
Mr. Harrison. Good morning. I am Joe Harrison, President of
the American Moving and Storage Association headquartered in
Alexandria, Virginia. AMSA is the national trade association of
the moving and storage industry, representing 3,500 movers
worldwide, 2,000 of which are interstate motor carriers
regulated by the Federal Motor Carrier Safety Administration
and the Service Transportation Board.
My complete statement to this Committee provides a detailed
explanation of my industry's position on a number of issues
related to Federal regulation of the interstate moving industry
and, in particular, the need to address the problems created by
rogue movers.
However, at the outset, I will address the primary purpose
of this hearing, reauthorization of the Safety Administration's
programs and responsibilities. The moving industry supports the
administration's effort to improve highway safety. We operate
an estimated 70,000 vehicles, and we are responsible for the
operations of 30,000 drivers that are on our Nation's highways.
We commend the administration for the sensible approach it
developed in the formulation of its recently announced hours-
of-service regulations. We will continue to provide input to
the administration on important truck safety issues that it
must address.
Turning to its regulation of the moving industry, we also
support the Administration's request for an additional $1
million in funding to bolster its enforcement capabilities. We
are disappointed that more money is not available for this
important effort, since we are convinced, as was the General
Accounting Office in its 2001 report to Congress, that
effective regulation of the interstate moving industry requires
strong Federal oversight and, in fact, is not conducive to
regulation by 50 different states.
Despite this, we are aware that serious consideration is
being given to expanding regulation of interstate movers by
authorizing the states to enforce the existing Federal statutes
and regulations affecting my industry's daily operations. While
we firmly believe strict enforcement of the consumer protection
regulations by the Federal Government is the most effective way
to rein in illegal operators, and not state enforcement, rest
assured that we welcome the opportunity to work with this
Committee and your staff to fashion a legislative proposal that
will address enforcement without impeding the operations of
legitimate movers.
As we move forward with this effort, Congress must not lose
sight of the fact that the moving industry handles roughly 1.3
million interstate moves each year, the overwhelming majority
of which are accomplished to the satisfaction of the moving
public.
I urge your Committee to bear this in mind and reject
overzealous demands to exponentially increase my industry's
liability for loss or damage to goods. We are strongly opposed
to any proposal that would expand our liability by making us
also liable for damages arising from application of the state's
deceptive practices acts. The moving industry, just like any
other segment of our Nation's transportation industry--
railroads, freight motor carriers, and freight forwarders--
cannot withstand the economic uncertainties of loss-and-damage
litigation that presents the potential for awards of punitive
and other forms of consequential damages that are not related
to the value of lost or damaged goods.
On the rogue-mover issue, my association has discussed a
number of legislative measures with your staff and their
counterparts in the House, which we believe would disrupt the
rogues' ability to defraud consumers. Rogue movers exist solely
to defraud the public. In its effort to deal with this problem,
Congress must also not lose sight of the fact that only
legitimate movers, those that are not at the heart of the
problem, will comply with any new legislative measures that are
enacted. The rogue movers will not. They will continue to
ignore the law. Certainly, that was the case with the illegal
operators that are being prosecuted in the recent Federal
criminal indictments of 42 rogue movers and 74 individuals that
were involved in their operations. They were ignoring the law,
and if they were allowed to continue to operate, they would
ignore the existing law, as well as any other new enactments.
Once again, the solution to the problem they have created is
strict Federal enforcement and incarceration, if warranted.
AMSA's approach to dealing with rogue movers is grounded on
our knowledge of the industry and our understanding of the
traps rogues set for consumers. We, therefore, believe that the
following legislative steps would seriously impact the
operations of illegal operators and hamper their ability to
defraud consumers.
Number one, authorize the states to proceed against movers
that violate Federal licensing, pricing, and arbitration
requirements, or hold customers' goods hostage. Two, establish
civil and criminal penalties to combat unlawful hostage-freight
practices. Three, require the regulation of Internet brokers of
household goods. Number four, require that FMCSA establish
meaningful registration requirements for authority to transport
household goods. Number five, require that consumers receive
written estimates of moving services, charges, and inventories
of their goods. Number six, require that FMCSA increase its
consumer-education activities. Number seven, establish a
consumer complaint data center. And, finally, number eight,
increase public access to mandatory loss-or-damage arbitration,
and expand arbitration to include transportation payment
disputes.
AMSA believes these legislative proposals will help
consumers avoid use of rogue movers and make it much more
difficult for rogue movers to prey upon consumers. It should
receive your serious consideration.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Harrison follows:]
Prepared Statement of Joseph M. Harrison, President,
American Moving and Storage Association (AMSA)
My name is Joseph M. Harrison. I am the President of the American
Moving and Storage Association (AMSA) with offices at 1611 Duke Street,
Alexandria, VA 22314.
AMSA is the national trade association of the regulated moving and
storage industry with 3,500 members worldwide representing the entire
spectrum of the industry, including approximately 25 national van
lines, 1,100 independent regulated carriers, 1,600 agents of van lines,
1,000 of whom are also regulated carriers in their own right, and over
500 international movers. These entities contract with 30,000
independent owner-operators who own equipment and perform much of the
physical transportation of household goods. The industry employs
roughly 450,000 workers, operates 66,000 trailers, 32,000 tractors and
18,000 straight trucks and generates revenues of $7 billion annually.
We operate in every city, town, borough and hamlet in the United
States. In addition to our interstate transportation service, we
perform the intrastate and local moving and storage services that are
required by consumers and industry. AMSA's functions include
representation and promotion of the interests of the moving and storage
industry before Federal and State legislative and regulatory bodies.
This statement is submitted in response to the Committee's
invitation to participate in its hearing on reauthorization of the
Federal Motor Carrier Safety Administration (FMCSA) programs and
responsibilities and the issue of fraud in the transportation of
household goods.
Reauthorization
The moving industry supports FMCSA efforts to improve highway
safety. We commend the Administration for the sensible approach it
developed in the formulation of its recently announced hours of service
regulations. We will continue to provide input to the Administration on
all important truck safety issues it must address.
We also support the Administration's request for an additional $1
million dollars in funding to bolster its moving industry enforcement
capabilities. We are, however, disappointed that more money is not
available for this important effort since we are convinced, as was the
General Accounting Office in its 2001 Report to Congress, that
effective regulation of the interstate moving industry requires strong
Federal oversight and, in fact, is not conducive to regulation by the
50 states.\1\
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\1\ GAO-01-318, Consumer Protection in the Moving Industry, p. 22.
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It has become an accepted fact that rogue movers are the root cause
of the current effort to involve the states in regulation of the
interstate moving industry. Just recently a major blow was dealt to
many unscrupulous operators by the criminal investigation and
prosecution by the DOT Inspector General and the F.B.I. of 42 Florida-
based rogue movers and 74 individuals that were involved in their
operations. This is a prime example of the aggressive action that
should be taken by the FMCSA to rid the industry of unlawful operators.
Clearly, the solution to the problems created by rogue movers is more
aggressive Federal enforcement of the existing Consumer Protection
regulations and incarceration of the operators of these enterprises.
This should be the main focus of FMCSA oversight of the moving
industry. However limited their resources may be, the most effective
use of those resources lies in action that is most beneficial to
consumer shippers. This means vigorous prosecution of illegal
operators.
We also believe FMCSA must demonstrate a more concerted interest in
and focus on regulatory issues and proceedings that are intended to
assist consumer shippers of household goods. For example, an FMCSA
proceeding that would completely revamp the existing household goods
Consumer Protection regulations has been pending an inordinately long 5
years.\2\
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\2\ Docket No. FMCSA 97-2979, Transportation of Household Goods;
Consumer Protection Regulations, 63 Fed. Reg. 27126 (1998).
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In addition, on more than one occasion, AMSA has petitioned FMCSA
requesting formal proceedings to address issues that directly impact
the rights of consumers. Each request was rejected for reasons we would
submit simply evidenced an unwillingness to regulate.
Just recently (3 months ago) AMSA filed another petition with FMCSA
requesting the adoption of regulations governing the relationship
between brokers of household goods transportation services and
consumers. A major regulatory void exists in this area and action is
necessary to warn consumers of the unscrupulous practices of, most
particularly, Internet brokers. AMSA drafted proposed regulations and,
because of the urgency of this issue, recommended immediate FMCSA
action. To date, no response has been received from FMCSA.
State Regulation of the Interstate Moving Industry
AMSA has advised your staff and their House counterparts that the
moving industry is not opposed to conferring authority on the states to
prosecute movers that violate important Federal licensing, pricing or
arbitration requirements, or engage in hostage freight practices. We
believe such a measure would seriously impact the rogue movers' ability
to defraud consumers.
The Administration's proposed solution (proposed Section 14710 of
title 49), on the other hand, goes much further. If enacted, this
provision would vest in the state's authority to conduct investigations
and institute civil actions related to all statutes, regulations, and
orders administered by DOT and the Surface Transportation Board which
now govern the entire licensed motor carrier and freight forwarder
industries. (The language of proposed subsection (a)(1) is not limited
to motor carriers and freight forwarders that are engaged solely in the
transportation of household goods. Only subsection (a)(2), which is
limited to foreign motor carriers, encompasses those that are engaged
in the transportation of household goods).
Approaching this issue from a broader perspective, to the extent
Congressional precedent exists for the shifting of Federal enforcement
authority to the states to prosecute entities that are engaged in
interstate enterprises,\3\ we do not believe the circumstances
underlying enactment of those statutes are analogous to the
circumstances presented by regulation of the interstate moving
industry.
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\3\ E.g., Telemarketing and Consumer Fraud and Abuse Prevention
Act, 14 U.S.C. Sec. 6101, et seq., Fair Credit Reporting Act, 15 U.S.C.
Sec. 1601, et seq., Fair Credit Billing Act, 15 U.S.C. Sec. 1666. et
seq.
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Presently, Federal statutes and regulations preempt the entire
field of regulation of the interstate moving industry. In addition to
consumer protection regulations, interstate movers must comply with
regulations governing registration, insurance and process service;
binding estimates and guaranteed pickup and delivery service; extension
of credit; van line/agent pooling and agent responsibility; owner-
operator equipment leasing; loss and damage claim and dispute
settlement, to name a few. This regulatory regime requires a uniform
Federal approach to oversight and enforcement and is not suited to
enforcement by the various authorities contained in 50 States. In its
March 2001 Report to Congress, the General Accounting Office
essentially adopted this position noting that whatever benefits may
result from enforcement by the states cannot be measured until it has
been preceded by vigorous DOT enforcement.\4\
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\4\ See footnote 1.
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The Administration's proposed statutory language is nearly
identical to Section 6103 of the Telemarketing Fraud Act (15 U.S.C.
Sec. 6103). In our view, enforcement of that Act by the FTC and the
states is not an appropriate model of Federal/State cooperation when
considering expanded regulation of the interstate moving industry.
The legislative history of the Telemarketing Act is quite clear in
its description of the magnitude of the fraudulent schemes Congress
addressed with its 1994 legislation. Congress found that consumers and
others were estimated to be losing $40 billion annually to fraudulent
telemarketers. Notwithstanding vigorous FTC efforts to curb those
practices (90 cases in Federal courts halting fraud that was estimated
to produce sales of over $1 billion), it was acknowledged that the FTC
enforcement resources simply were not sufficient to adequately protect
consumers. This was the case because, in part, telemarketers are not
dependent upon fixed locations as points of sale, are very mobile, and
move from state to state.\5\
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\5\ House Report 103-20.
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Although the operations of telemarketers are easily distinguished
from those of moving and storage operations, there has been a mistaken
tendency to compare the two simply because rogue movers may also cross
state lines. Thus, while on the one hand Congress was prompted to act
because of the highly mobile nature of the fraudulent telemarketers, on
the other hand, it understood the importance of not interfering with or
in any way hampering the operations of legitimate telemarketers as
evidenced by the following expression of congressional intent:
The Committee is not interested in further regulating the
legitimate telemarketing industry through this legislation.
Rather, the goal is to curtail any deceptive (including
fraudulent) and abusive practices by specific telemarketers.\6\
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\6\ Id., p. 4.
In a similar vein, AMSA is anxious to curb the practices of
unscrupulous movers thus accounting for its support of limited State
enforcement authority. However, routine operational problems that arise
in the course of moving often become the basis for consumer complaints
even though the problems are unavoidable--loss or damage, delayed
pickups or deliveries, etc.--situations that impact the operations of
the most efficient and reputable movers. Nonetheless, unavoidable
problems can become the catalyst for persistent consumer complaints.
Legitimate, regulated movers should not be subjected to an additional
layer of 50 State regulators and their city, town and village
subordinates that may or may not understand the boundaries of
appropriate Federal regulation. Unfortunately, there has been an
unwarranted tendency on the part of certain State attorneys general to
assume that persistent consumer complaints, whether justified or not,
require action on their part.
We must not loose sight of the fact that unscrupulous movers are
nothing more than crooked operators. They only exist to defraud the
public. In its effort to deal with this problem, Congress must also not
loose sight of the fact that only legitimate movers--those that are not
at the heart of the problem--will comply with any new legislative
measures that are enacted. The rogue movers will not. They will
continue to ignore the law. Certainly that was the case with the
illegal operators that are the subjects of the previously referred to
criminal indictments (42 rogue movers and 74 individuals). They ignored
the law, and if they were allowed to continue to operate, they would
ignore the existing law as well as any new enactments.
Our experience indicates that many states are ill-suited to
regulation of the interstate moving industry because they have elected
to completely deregulate the transportation of household goods in their
own intrastate commerce. While rogue movers engage in interstate
commerce, the majority of their efforts are devoted to local and
intrastate moves. Before undertaking Federal regulation, the states
should forcefully deal with unscrupulous movers that operate within
their jurisdictions.
AMSA welcomes the opportunity to work with this Committee and your
staff to fashion a legislative proposal that will address expanded
enforcement without impeding the operations of legitimate movers.
Unlimited Carrier Liability Would Be Disastrous
The members of AMSA remain unalterably opposed to any legislation
that would authorize State officials or consumers to invoke or enforce
State laws as an additional remedy to that provided by the Carmack
Amendment.\7\ Any tinkering with Carmack to expose interstate movers to
such expanded liability would likely have a severe disruptive economic
effect on interstate commerce.
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\7\ 49 U.S.C. Sec. 14706
---------------------------------------------------------------------------
The availability of State law claims to shippers and the states
would obviously embrace both common law causes of action and those
authorized by statute such as the various Deceptive Trade Practices
Acts maintained by most states. The remedies available under such
common law and statutory claims include injunctive relief, civil
penalties, consequential economic damages, punitive damages, mental
anguish and emotional distress damages, treble damages, and attorney's
fees.
The moving industry's concerns with the application of State laws
is two-fold. First, carriers will be exposed to substantially increased
liability. Unlike freight carriers, movers deal with the personal
effects of individual consumers. As a result, virtually any claim for
loss or damage to a shipment of household goods involves an emotional
element, some more so than others. Allowing State laws to be invoked to
permit recovery for mental anguish or emotional distress will
undoubtedly convert every broken chair to a family heirloom having
irreplaceable sentimental value. The potential increase in liability to
carriers could well be devastating to the interstate moving industry.
The second and more far reaching problem is the diverse nature of
the various State laws. There is no uniformity among them. This,
coupled with the potential for greater recovery under State law, would
gut Carmack and effectively repeal it.
The Carmack Amendment not only provides a uniform regime of carrier
liability, it allows for complete compensation to shippers for their
damages resulting directly from the loss, injury, or delay to their
shipments. Carriers know and understand their liability exposure under
this nationwide system. Expanding liability to include State laws will
subject interstate movers to 50 different standards.
To illustrate the point, consider the various Deceptive Trade
Practices statutes maintained by most states. Although several states
have adopted the Uniform Deceptive Trade Practices Act, or a variation
thereof, the implementation or enforcement of the remedies under such
statutes is anything but uniform. This is so because these statute
require a subjective determination of what is deceptive or unfair. For
example, Illinois has adopted the Uniform Deceptive Trade Practices
Act.\8\ It defines a deceptive trade practice by listing 12 different
categories of conduct, the last of which is a catchall for ``any other
conduct which similarly creates a likelihood of confusion or
misunderstanding.'' 815 ILCS, 510, Section 2 (a)(12). California's
Consumers' Legal Remedies Act \9\ lists 23 different types of conduct
deemed to be deceptive which differ from those in Illinois. Civil Code
Section 1770 (a). In Texas, the Deceptive Trade Practices--Consumer
Protection Act \10\categorizes 27 types of conduct which, not
surprisingly differ from Illinois and California. Massachusetts'
counterpart simply declares unlawful ``unfair or deceptive acts or
practices in the conduct of any trade or commerce.'' \11\ And New York
has a similar definition.\12\
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\8\ Illinois Compiled Statutes, 815 ILCS 510.
\9\ California Civil Code, Sections 1750, et seq.
\10\ Chapter 17, Business and Commerce, Subchapter E.
\11\ General Laws of Massachusetts, Part I, Title XV, Chapt. 93A,
Section 2.
\12\ New York State Consolidated Laws, General Business Law,
Article 22-A, Section 349.
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The uncertainty in these definitions is compounded by the
enforcement authority granted to State officials and the basis for
civil actions created for private litigants. In New York, the Attorney
General may bring an action for injunctive relief, restitution, or
civil penalty whenever he/she believes that a person, firm,
corporation, association, or agent or employee thereof has engaged in
or is about to engage in a deceptive practice. NYS, General Business
Law, Art. 22-A, Section 349 (b). The same broad authorization is
granted to the Massachusetts Attorney General. See General Laws of
Mass., Part I, Art. XV, Chapt. 93A, Section 4. The same unbounded
discretion is granted to the Texas Consumer Protection Division. See
Chapt. 17, Texas Business and Commerce Code, Section 17.47.
While it might be argued that a State official is duty-bound to act
with restraint in enforcing these laws, the same cannot be said of
private plaintiffs who have a significant self-interest in pursuing a
deceptive practice remedy. Yet these statutes afford the same unbridled
basis for instituting a civil action. Massachusetts authorizes a civil
action, including a class action, for any person injured by another
person's deceptive act or practice. Chapt. 93A, Section 9. In New York,
any person who has been injured by a deceptive act or practice may
institute a civil action for an injunction and money damages, which may
be trebled, as well as attorney's fees. N.Y.S. General Bus. Laws, Art.
22-A, Section 349.
The remedies authorized by the Statutes also vary from state to
state. Illinois authorizes a civil action for injunctive relief and
attorney's fees . However, proof of monetary damage is not required. A
person need only show that he is ``likely to be damaged.'' 815 ILCS
510, Section 3. The Texas statute specifically authorizes recovery of
economic damages and damages for mental anguish, as well as treble
damages, and attorney's fees. Texas Business and Commerce Code, Section
17.50. And California authorizes consumers to bring an action,
including a class action, for injunctive relief, restitution, actual
and punitive damages, as well as attorney's fees. Civil Code Section
1780, 1781.
The application of these State laws also presents significant
procedural problems. Under the Carmack Amendment, a 2 year statute of
limitation to bring a lawsuit for cargo loss or damage is imposed. This
period commences from the time the shipper's claim is denied. 49 U.S.C.
14706 (e). However, State laws often provide a different period.
California has a 3 year limitation period and it starts to run from the
date of commission of the deceptive practice. Civil Code Section 1783.
In Texas, the period of limitation is 2 years, and it begins on the
date the deceptive act or practice occurred or within 2 years after the
consumer discovered it. Texas Business and Commerce Code Section
17.565.
Legislation that would permit states and individuals to resort to
State laws would turn the standard for measuring carrier liability for
loss or damage back 100 years. The same problems that existed prior to
enactment of Carmack would be revisited on the moving industry. Those
difficulties were clearly summarized in Schultz v. Auld, 848 F.Supp.
1497 (D. Idaho, 1993):
[I]f this Court were to adopt Plaintiff's position, the
uniformity and certainty of the national scheme would be
compromised. The position asserted by Plaintiff would enable
one moving from any state to the State of Idaho to proceed
under the Idaho Consumer Protection Act. Such a rule would
create an entirely new scheme of potential liability for a
carrier, as the right to assert additional causes of action
would fortuitously depend from where or to where the shipper
moved. It is not difficult to imagine that every suit brought
against a carrier of household goods would include allegations
of intentional conduct or fraud in an effort to avoid the
preemptive effect of the Carmack Amendment. Moreover, to
account for increased liabilities occasioned by the exception,
carriers would necessarily be required to increase their rates,
thus further defeating congressional policy to encourage
reasonable rates for transportation.
Congress must not lose sight of the detrimental consequences of the
current explosion of tort litigation throughout the Nation. When
doctors are walking away in some states because of the cost of
litigation, Congress should think twice before creating avenues for
additional litigation. This is particularly so where, as here, there is
in place a uniform Federal process that mandates full protection for
aggrieved shippers.
Pro-Consumer Initiatives Should Be Enacted
AMSA officials have discussed with your staff a number of possible
legislative proposals that would assist consumers in their dealings
with reputable movers and would also help them avoid the schemes
employed by rogue movers. It is appropriate to review some of those
measures.
Expanded Arbitration
The Administration has also proposed that Section 14708 (a) of
title 49 be amended by requiring that movers arbitrate with shippers
all disputes involving claims of $5,000 or less and not, as now
required, claims involving loss or damage to goods. AMSA is opposed to
this proposal because its broad scope makes it difficult to reasonably
predict its potential impact. It is clear, however, that, if enacted,
this requirement will generate arbitration cases that arise from myriad
complaints such as mere shipper dissatisfaction with a move apart from
the fact that loss or damage to goods may not have occurred. Such an
open-ended dispute settlement process is an invitation to shippers to
pursue purely subjective disputes as trivial as the mover's personnel
lacked ``professionalism'' or their appearance, language or demeanor
was unacceptable. In addition, consumers will be encouraged to pursue
damages they believe result from alleged inaccurate representations
concerning a carrier's performance, emotional distress and physical
inconvenience, all of which they would insist warrant some measure of
damages, compounded possibly by requests for punitive damages. An
obvious problem brought on by this scenario is the difficulty in
determining how independent arbitrators will resolve disputes of this
nature and what standards the moving industry must follow when
addressing such claims.
It is AMSA's position that consumers would be better served if the
existing mandatory binding arbitration threshold for loss or damage
claims was increased from $5,000 to $10,000. This will provide greater
consumer access to inexpensive neutral binding arbitration, thus
avoiding the expense of costly litigation. It is also appropriate that
the subject matter of claims that are eligible for arbitration be
expanded beyond loss or damage to goods to include disputes involving
the payment of carrier charges, a legitimate point of controversy
between consumers and carriers.
Hostage Freight
The unlawful holding of consumers goods is a frequently employed
tactic used by rogue movers to inflate charges and demand their payment
in exchange for the consumer's goods. The rogues obviously ignore the
existing Consumer Protection regulation. It requires that movers
relinquish possession of shipments moving on non-binding estimates when
the shipper requests delivery upon payment of 110 percent of the
estimated charges and defer demand for payment of the balance for 30
days from delivery.\13\
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\13\ 49 C.F.R. Sec. 375.3(d).
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Civil or criminal penalties should be imposed for blatant
violations of the existing regulation.
Operating Authority Registration Requirements
Under the current FMCSA registration requirements, essentially
anyone that is willing to pay a $300 filing fee and provide evidence of
certain insurance can obtain authority to operate as a motor carrier of
household goods throughout the entire United States. Many rogue movers
have been granted multiple operating authorities under this most
liberal system. They use their multiple authorities to play ``bait and
switch'' games with consumers and to disavow knowledge of conduct they
want to disclaim.
In the case of applicants for household goods authority, it is
AMSA's position that all such applicants should, at the time of their
application, be required to (1) specifically identify their loss and
damage arbitration program, (2) identify their tariff and provide a
sample of its notice of availability for inspection, (3) make certain
disclosures related to the service they will perform on behalf of
consumers, and (4) disclose all its affiliations and ownership ties
with other movers.
These are elementary requirements that can and should be met by all
legitimate applicants for operating authority.
Written Estimates and Inventories
Consumer shippers of household goods deserve the benefit of written
estimates of carrier charges for transportation and all related
services. Reputable movers routinely provide this information to
consumers. Rogue movers try to avoid putting anything in writing before
they take possession of goods or their shipping documents are
deliberately vague on the important points.
Likewise, consumers should also receive written inventories of the
goods they tender in sufficient detail to assist them in resolving any
disputes they may have with their movers.
Regulation of Brokers
FMCSA should be required to establish regulations governing the
relationship between consumers and brokers of household goods
transportation services, but most particularly brokers that operate
exclusively on the Internet. A regulatory void exists in this area and
the phenomenal growth of consumer reliance on the Internet as a means
of locating service providers has resulted in countless numbers of
moving arrangements that have no basis in the existing Consumer
Protection regulations. AMSA, as noted, submitted a proposal to FMCSA
that would address this situation.
Expanded Advice To Consumers
FMCSA should be directed to employ all available means to
disseminate information to consumers concerning the moving process and
their rights when dealing with movers. This would include the
promulgation and dissemination of regulations through the FMCSA website
and other means of communication customarily followed by Federal
agencies. In this same connection, a consumer complaint data gathering
system should be established by FMCSA.
Conclusion
The regulated interstate moving industry as represented by AMSA
transports roughly 1.3 million interstate shipments each year with a
high degree of consumer satisfaction. While the rogue mover problem is
the predicate for possible Congressional action, the search for
solutions must not result in statutory requirements that overburden and
impair the legitimate mover's ability to provide its essential service
to the public.
Since abolishment of the Interstate Commerce Commission in 1996,
AMSA has been telling Congress, at every opportunity, that the solution
to the problems created by unlawful and rogue movers is more effective
enforcement by the Federal Government of the existing statutes and
regulations governing the moving industry. This position has not
waivered. AMSA is not, however, opposed to strengthening the existing
Federal statutory enforcement scheme. We believe our recommendations to
this Committee will effectively deal with rogue movers, bearing in mind
that no body of law can completely deter a criminal element.
We also firmly believe that conferring enforcement authority on the
states, or exposing the moving industry to potentially unlimited
liability for its interstate service, would cause many moving and
storage operators to question the wisdom of their continued involvement
in interstate transportation. The network of small businesses that
make-up the moving and storage industry should not be overburdened with
State efforts to uniformly interpret and enforce Federal regulations, a
proposition that will be virtually impossible to achieve.
The interstate transportation of household goods is a Federal
endeavor which should be regulated by the Federal Government.
Senator Sununu. Thank you very much to all of our
panelists.
Let us begin the questioning with Senator Breaux.
Senator Breaux. Thank you, Mr. Chairman, and thank all the
panel members.
You talked about diabetic drivers. I think someone--Mr.
Byrd may have mentioned the proposals on drivers who use
insulin. And I really don't understand it, because it kind of
says, well, if you have 3 years of commercial driving
experience as a diabetic, then you have to have that in order
to qualify to get a commercial driver's license. I mean, I
don't see how you have it in the first place in order to have
that experience as a commercial driver.
Can anybody on the panel comment about the entire issue of
diabetics being able to receive a commercial driver's license?
I'm trying to figure out what is a fair way of determining
their fitness for driving. Anybody want to comment on it? Mr.
Byrd, you had mentioned it.
Mr. Byrd. Yes, I'd like to comment. Well, as I understand
the issue, currently our members--we have an aging work force,
aging membership, and a lot of our members are transitioning.
They may not currently have diabetes, but, you know, they may
have hypoglycemic-related issues that may transition over into
having diabetes. One of the problems we've encountered is that
these drivers, as they--they're usually some high-seniority
people. They are no longer able to drive, because they no
longer qualify under the medical qualifications.
But because we're not involved in intrastate commerce, and
many states--as I understand it, FMCSA has reported that
roughly 20 states either don't have a waiver program, or they
have some very, very significant limitations as to how to get
into their waiver program. Our folks never will have an
opportunity to get the 3 years of experience of driving while
using insulin.
Senator Breaux. Do you have a recommendation on how we
should handle this?
Mr. Byrd. Yes. I think that the expert medical panel that
FMCSA convened made recommendations. I think that the medical
practice that's employed, in terms of treating diabetes now,
has advanced to a stage, or to a state, to where, according to
the Committee, as I recall--it's a month or two of evaluation
to see how they tolerate using insulin, and then they'd be
allowed to drive on an individual or a case-by-case basis.
Senator Breaux. Ms. Claybrook--thank you--do you have any
comment on how we should test or judge these drivers?
Ms. Claybrook. It is a conundrum, Senator, and I know
there's been a lot of controversy about this. We really don't
have a proposal, but perhaps we could submit something for the
record that might be helpful to you. I'd like to think about it
a little bit more.
Senator Breaux. Thank you.
[Ms. Claybrook submitted the following:]
Advocates for Highway and Auto Safety
Washington, DC, November 30, 2001
Summary of Comment
Diabetes Exemption Program--Federal Motor Carrier Safety Administration
Current Federal regulation prohibits persons who require insulin
injections to treat their diabetes from driving commercial motor
vehicles (trucks and buses) in interstate commerce. The FMCSA has
proposed establishing a program to grant certain drivers with insulin
treated diabetes mellitus (ITDM) exemptions from the existing Federal
medical safety standard. The agency already has a program under which
exemptions are granted from the Federal vision standard to drivers who
do not meet the existing vision requirements. Advocates presented a
number of arguments against establishing the proposed program based on
the scientific evidence and applicable legal standard.
The comments reviewed all the important evidence cited by the
agency and showed, in turn, how each failed to provide a convincing
basis for the agency's conclusion that persons with ITDM can operate at
an equal level of safety performance. Advocates pointed out that all of
the research studies available to the public provided, at best, mixed
results. Even those that indicated that, in general, diabetic drivers
might be able to operate vehicles safely, insulin treated diabetics
(those for whom the program is designed) had a greater risk of medical
impairment. Other cited research results did not distinguish between
type of diabetes or by commercial vehicle size. The most recent study
relied on by FMCSA to support the program, a 1997 study conducted by
the Federal Highway Administration (FHWA), has not been made public.
The agency violated principles of due process and fairness by proposing
a program predicated on unpublished research results that are not
available for public review and comment. Advocates' comments also
faulted the agency's reliance on the FHWA Diabetes Waiver Program,
which only had 116 drivers when it was discontinued in 1994 after
Advocates successful litigation against the FHWA Vision Waiver Program.
Because of poor research methodology, lack of a comparison group, the
small number of participants and the fact that the program was
terminated before completion, the data and conclusions from the FHWA
waiver programs cannot be extrapolated to apply to other research and
different drivers.
The comments also took issue with FMCSA's invocation of a Federal
Aviation Administration (FAA) program that permits persons with ITDM to
obtain third class pilots certificates. Reliance on the FAA program is
misplaced because these certificates only permit the operation of
private and personal aircraft. The FAA program prohibits, on safety
grounds, anyone with ITDM from obtaining a second- or first-class
certificates that would permit air freight or passenger aircraft
operation. Thus, the FAA actually prohibits the very types of operation
that are directly analogous to commercial truck and bus operations,
which the FMCSA exemption program seeks to allow.
Advocates presented a strong argument regarding the legal standard
the FMCSA must apply in making safety determinations to grant
exemptions. The comments stated that based on the evidence presented in
this record the agency had not met its burden of proof or sustained the
legal standard required by law to grant exemptions. The comments also
countered the agency contention that the present legal standard for
exemptions is more flexible, and affords the agency more discretion,
than the previous legal standard for granting waivers from the Federal
standards.
Senator Breaux. On driver disqualifications, on September
30, the--commercial motor vehicle drivers who are convicted of
a traffic violation while operating a car, results in the
cancellation or suspension or revocation of their car-driving
privileges, are disqualified from getting a commercial motor
vehicle license. Also disqualified are individuals convicted of
committing drug- or alcohol-related offenses while driving a
car. That restriction has now been in place, as I take it, for
approximately 8 months. Can anybody tell me, has anybody been
disqualified as a commercial driver as a result of that new
regulation in the 8 months it's been in effect?
Ms. Claybrook. I don't know that, Senator, but one of the
things that we believe is that before a commercial driver's
license is issued, that the car-driving record should be
checked, and I think that that would be an improvement. This is
if--once they have their license, their truck license, then if
they have these convictions, then--or revocations--then it puts
at risk their CDL. But we believe that it ought to be something
that's checked initially, as a preventive measure. And I'm
almost sure that, for pilots, that's correct.
Senator Breaux. It is.
Mr. Byrd, do you have a comment on this?
Mr. Byrd. Yes, I receive probably about one call, possibly
two calls per week concerning drivers who have received DWIs in
their private cars. And now, pending, I guess, adjudication,
they may be suspended.
At this point, I don't know of any actual cases of a person
losing their CDL as a result. But I do know that there are some
court cases that are in the process.
Senator Breaux. Mr. Duncan--thank you--what's the policy of
the Trucker's Association with regard to hiring drivers who
have previous convictions or revocations or lost their
licenses?
Mr. Duncan. Well, we do the background checks, and we will
not hire those drivers. All right? And we do subsequent checks
of the driver's license record so that we find violations that
even the driver hasn't reported. So that's done on a subsequent
basis. But, you know, as in the testimony, we would like access
to more of the FMCSA's safety data, the roadside inspection
data, and that type of thing, during the hiring process, so we
would have more information about a driver that we are
considering for hiring, more than just the driver's license
information.
Senator Breaux. Well, is the policy you just enunciated
industry-wide, or each company has their own policy with regard
to hiring someone, for commercial driving purposes, who had
lost their driver's license as a--for driving a vehicle, a car?
Mr. Byrd. I can't state categorically that every company
does that. No.
Senator Breaux. Ms. Claybrook, what should the policy be
here? Should a person who has a previous conviction or a DWI,
for instance, or had their license revocated, revoked, what
have you, be able, in the future, to get a commercial driver's
license at all?
Ms. Claybrook. Well, I'm not sure that this should be a
lifetime suspension from ever having the ability to get a CDL,
but I do think that there ought to be criteria laid out so that
they don't just automatically, you know, after a year or two,
be able to come back and get a CDL. I think there ought to be a
program for the training or for making sure that they're over
the problem that they had, that they're no longer drinking or
taking drugs, and that there ought to be a substantial period
of time, because otherwise drivers would just come back.
Senator Breaux. I take it that as of September 30 of last
year, 2002, commercial motor vehicle drivers who are convicted
of traffic violations, while operating a car, which resulted in
the cancellation, suspension, revocation of the driver's
license, are disqualified from operating a commercial motor
vehicle. I'm not sure, but is that permanent, or is that for a
period of time, for as long as the license is suspended?
Ms. Claybrook. Suspended, right. It's until they get their
driver's license back again, I believe.
Lieutenant Sullivan. Senator?
Senator Breaux. If they get their driver's license, they'd
be eligible for a CDL?
Ms. Claybrook. That's correct.
Lieutenant Sullivan. Senator?
Senator Breaux. Yes, Mr. Sullivan?
Lieutenant Sullivan. I think you're going to find, sir,
that the states are going to wait the 3-year period, as they--
they'll take this issue, particular issue, to their state
legislatures. Even the states that have adopted the Federal
regulations by rote will remove that and go to their
legislature because of the importance of this issue.
Senator Breaux. You think some states will not follow this,
you say?
Lieutenant Sullivan. No, I think everybody will follow it,
but they'll use a different mechanism to get there. By
adoption. Massachusetts adopts a Federal regulation by
adoption, and any change in the Federal regulations is a change
in Massachusetts law, but I do not believe, from my
conversations I've had with the licensing authority, the
registry of motor vehicles, in Massachusetts, they are willing
to do that with this, because of the nature of it. It think
what we're going to find is there's going to be a delay on it,
and they're going to bring it to the state legislature to put
it into our ``operating under the influence'' law, or move it
over under the Massachusetts general law, rather than into a
regulation.
Senator Breaux. Well, my only comment would be, I don't
think there's any question that someone who has lost their
driver's license to drive a vehicle, a car, should not be able
to have a commercial driver's license to drive a truck. It just
seems like just common sense.
Lieutenant Sullivan. I believe it is common sense, sir, and
I--my understanding of the rule is that the penalty phase will
continue on to the same finite period as it would in the other
one, and the major concern now is, are our systems strong
enough to hold the giant influx of convictions from passenger
cars and histories of everybody? Is the CDL system going to
hold that? Do we have enough faith in that system to say,
``Well, we have the regulation in place, and are we going to be
able to effectively manage it?''
Senator Breaux. Well, thank you. Thank the panel members.
Thank you.
Senator Sununu. Thank you.
Senator Lautenberg?
Senator Lautenberg. Thank you, Mr. Chairman. And I want to
thank the witnesses.
I think, Mr. Chairman, for future reference--I'm going to
alert Senator McCain to this, as well--I think that when we
have six witnesses at the table, it's awfully hard to be able
to communicate the way we'd like to.
But we welcome all of you in the group. And there's so much
ground that you've covered, with six people, all of whom
present interesting testimony, that it's hard to connect the
dots. But the Chairman has been patient. I appreciate that.
Mr. Duncan, I hold here an ad, run by the ATA, May 23 of
this year, and it says, ``Eighty-seven percent of America's
goods move by truck. But some want Congress to enact a national
roadblock.'' And it calls these roadblocks ``bad for the
economy, bad for public policy.'' Would you mind describing
what roadblocks you see Congress wanting to enact, please?
Mr. Duncan. Well, I think you're referring to the SHIPA
bill, which actually would extend legislation to more highway
than--or just extend----
Senator Lautenberg. What kind of legislation, Mr. Duncan?
Mr. Duncan. The SHIPA bill? Is that what you're referring
to?
Senator Lautenberg. Yes. Well, for instance, would the ATA
want to allow expanded use of triple-trailer trucks?
Mr. Duncan. The ATA policy is that we believe the states
are best suited to make those size and weight determinations.
They best know which highway's infrastructure can serve them
and which ones cannot serve them. There are obviously lots of
places where there cannot be any expanded weight and size.
Senator Lautenberg. So the Federal Government should not
place standards on highways that the Federal Government
contributes to?
Mr. Duncan. It is the ATA policy that the states know best
how to administer those regulations.
Senator Lautenberg. So if you had your druthers, you'd
rather see the states just get the money from the Federal
Government without condition as to what kind of vehicles, what
highway construction there ought to be, et cetera.
Mr. Duncan. Well, I think you miss opportunities to enhance
safety if you arbitrarily say that a certain state can't do
certain things. So----
Senator Lautenberg. I don't understand that. I'm sorry. You
say we miss opportunities for safety. Let me ask you this
question. You say that we have to expand truck use and that we
ought not to inhibit--how about--should we have a separate
speed limit for trucks, do you think, different than the cars,
if the highways are questionable as to the safety, or--for a
speeding truck?
Mr. Duncan. Well, I think the safety experts would tell
you, having vehicles moving at different speeds on the same
highway creates a safety risk.
Senator Lautenberg. Creates a safety problem.
Mr. Duncan. Yes.
Senator Lautenberg. And you said that larger vehicles will
promote safety and ``no doubt that continuing to further
restricting current Federal size and weight limit costs
lives.'' I guess that confirms what you said. So you make them
bigger, and you start saving lives. So if we make them big
enough and often enough, then we won't lose anybody on the
highway. Is that----
Mr. Duncan. Well, Senator, we only operate larger
combination vehicles on restricted highways in pretty remote
areas. And by doing that, you can haul more freight with fewer
drivers, more freight with fewer diesel engines, so there's
both a safety benefit and an economic benefit, but only in very
restricted parts of the country.
Senator Lautenberg. Do you know whether triple trailers are
involved in more accidents than just a regular double--or a
regular long trailer?
Mr. Duncan. Triple trailers, for both the ATA and our
company specifically, have the best safety record of any
combination of vehicles we operate. Now, that's not to say that
they're inherently safer; it says that they're operated in very
restrictive highways, they're operated in very restrictive
weather conditions, only the most senior, well-trained drivers
are put on those vehicles. So you put all those factors
together, yes, the safety factor for those vehicles are the
safest we have in our industry.
Senator Lautenberg. Yes. But your testimony calls for more
enforcement of speed laws, and so forth. But I don't see your
ad here that warns us that all we want to do here is put
roadblocks in the way of--does that hyperbole get you a little
bit or----
Mr. Duncan. Senator, I don't have that----
Senator Lautenberg. OK.
Mr. Duncan.--ad in front of me. We'll be glad to give you
testimony to that----
Senator Lautenberg. The type's pretty big. It says
``Eighty-seven percent of America--goods move by truck, but
some want Congress to enact a national roadblock.'' And the,
you know----
Mr. Duncan. Well, 87 percent is correct. I mean, fast-cycle
distribution has become a way of life in commercial business
here, and that is inherently supported by the trucking
industry. Even if it's moved subsequently by rail, the final
delivery is accomplished by a truck in more cases than not. So
it's a very, very important part of our commerce. And all we're
saying is, we don't want to promote any unsafe practices, but
we don't want to overlook practices that benefit the economy
and also help in the environmental and the safety regard.
Senator Lautenberg. Ms. Claybrook, what do you have to say
about the larger trucks and becoming safer? I must have some
kind of an optical illusion. I've been driving a long time, as
you can tell by the wrinkles and the color hair, but I always
feel just a little bit more concerned about driving along a
truck when he's outracing me and I'm going too fast in the
first place.
Ms. Claybrook. Well, first of all, the public hate these
larger trucks, they fishtail and other things as they're going
down windy highways. I have a map of 16 states where the
longer--the triples are allowed, the longer combination
vehicles. It is true that they're mostly in the western states.
But, for example, my family lives in Oregon, and they're on the
highways in Oregon, and they have to drive past them all the
time. So it's not as though they're separated from cars.
In terms of going a different speed, these trucks take a
much longer time to stop than do cars, and so if they're going
at the same speed as cars, then they're going to have trouble
stopping in the same distance that cars do. And so I think that
that, alone, argues for them to go at a slower speed.
I'd also say that the argument of the industry has always
been, ``Well, we don't drive in bad weather, and we only drive
on certain highways, and we have the best drivers doing the
pulling of these trucks.'' But the fact is that the pressures
of the trucking industry for just-in-time delivery, where
drivers drive all night, and the shippers want their product at
a certain time, or there are types of products that are, you
know, subject to disintegration over a period of time if
they're not delivered quickly, there is just tremendous
pressure. And if these trucks were allowed anyplace in the
country, the trucking industry would do what it's done with
size and weight rules in the past, which--and you can, sort of,
see it from this map--this one poor white state in the middle
here is probably under a lot of pressure if the law was changed
right now. It's not, but it would be. And so they get as many
states as they can, and then the last states, they put
tremendous pressure on and say, ``Well, we're allowed to do it
every other place.''
If you have a triple that's allowed in one state or two
states, and then they want to deliver something in the third
state that doesn't allow triples, you know that there's going
to be tremendous pressure to allow them, regardless of the
condition of the highway.
So we think that the freeze on longer combination vehicles
is very appropriate, and we hope that this Congress will not
listen to the trucking industry and try and change that.
Senator Lautenberg. The U.S. DOT found, in its 2000
Comprehensive Truck Size and Weight Study, that multi-trailer
trucks could be expected to experience an 11 percent higher
fatal crash rate than single-trailer trucks. Does that 11
percent figure appear accurate to you?
Ms. Claybrook. It does. I was going to use it. I should
have, myself.
Senator Lautenberg. Yes.
Ms. Claybrook. We rely on the DOT to do Those kind of
statistical analyses, and I think that it is correct. And any--
--
Senator Lautenberg. Mr. Duncan, what----
Ms. Claybrook.--anyone just has to drive beside one of
those vehicles and realize--among other things, by the way,
they have great trouble going on and off the highways, because
the highways were designed many years before the advent of
triple trailers, and so you often see them going on the edges
of the exit ramps and sometimes over the exit ramps. They also,
when they go around corners, if you're in the wrong position,
your car can just be----
Senator Lautenberg. Mr. Duncan, what do you think about
that question, about the 11 percent higher in fatal crash than
single-trailer trucks?
Mr. Duncan. Well, the statistics we have do not support
that. I've seen a number of statistics on highway crashes, both
internally within our company, by the ATA, I've seen a recent
study by the Ohio Turnpike, which showed that, over a 2 year
period, I believe, that the triples combination had a 47-
percent better accident frequency than all other combinations
involved over that study of the time period. We can certainly
get you those studies.
But time and time again--they are safe vehicles when used
on proper conditions in proper highways and with the proper
drivers.
Senator Lautenberg. So you're saying limited highway
access----
Mr. Duncan. Absolutely.
Senator Lautenberg. Yes. Make sure that they don't get onto
other roads. We're going to try to do that, Mr. Duncan.
And Lieutenant Sullivan, you say you've stopped thousands
of trucks in your day. Is there a--I don't want to embarrass
anybody in Massachusetts; I like the state very much, but----
Lieutenant Sullivan. Thank you.
Senator Lautenberg.--is there as much of a focus, do you
think, that--your colleagues in law enforcement--on speeding
trucks as there ought to be? Do you sense that you just don't
have the hands--is it tough to stop a speeding truck that's got
even a double behind it and moving along at a high rate of
speed?
Lieutenant Sullivan. No. It's not. You have to use
discretion when you're going to stop a truck. You can't just
pull it over like you're going to do a passenger car and stand
on the side of the road and wave it in running radar. But you
have to have a plan, and you have to follow it to completion.
Senator Lautenberg. How about on a crowded highway? Is it--
--
Lieutenant Sullivan. No.
Senator Lautenberg. No?
Lieutenant Sullivan. It doesn't. It doesn't present a
problem on a crowded highway, either. The problem is, is that
with the resources available, the complexity of the regulations
we've kind of ignored all the local police officers and even
state police officers that don't have the specialized training.
We've kind of left them out in the lurch, and they're
embarrassed to stop trucks, because they don't know anything
about them. A speeding truck is a speeding truck, but--and when
you lose control of the situation, police officers don't like
to do that. And that's why we suggest--you know, we've got this
knowledge gap. We've got to close it.
Senator Lautenberg. Uh-huh. Speeding truck more dangerous
than a speeding car?
Lieutenant Sullivan. I don't believe so.
Senator Lautenberg. You don't.
Lieutenant Sullivan. No, I don't. No, I don't.
Senator Lautenberg. OK. We're at odds on that, although
with all due respect.
Lieutenant Sullivan. Yes, sir.
Senator Lautenberg. I'm not a police officer, but I've got
a lot of mileage on this body, and I've been interested in
safety questions for a long time. Everyone knows----
Lieutenant Sullivan. I think that----
Senator Lautenberg.--I mean, we've seen some horrible,
horrible crashes in the State of New Jersey, where we are very,
very crowded, because we're an entryway. As a matter of fact,
as I listened to the group here, I think the production
facilities ought to move closer to the market----
Lieutenant Sullivan. Well, all I can----
Senator Lautenberg.--down the highways----
Lieutenant Sullivan.--all I can do is speak from experience
and from our statistics. And when we get involved in the
speeding car and the speeding truck, and 70 percent of
accidents are caused by driver error, and more than 50 percent
is caused by passenger car, then it becomes----
Senator Lautenberg. Have you got a family----
Lieutenant Sullivan.--then it becomes----
Senator Lautenberg.--got a family, Lieutenant? Do you have
a family?
Lieutenant Sullivan. Yes, I do. Thank you.
Senator Lautenberg. Would you rather see them not
intimidated by large, speeding trucks or--I mean, the accidents
that we've seen in our state--and I know that it's not unique
to New Jersey--when a truck hits a car, you're looking at such
incredible damage. I know that I worry about my family--my
kids, my grandchildren--when they're out there in the highway
mixing it up with trucks. In New Jersey, we have, on our
turnpike, if you've ever seen it--a very, very busy road, we
separate, as much as possible, the cars and trucks, but it's
impossible, with the volume of trucks. And if Mr. Duncan is
right, the only recourse is just to keep on expanding the
facility--that we're going to present ourselves with a problem,
I think. Look----
Ms. Claybrook. Senator----
Lieutenant Sullivan. I agree, Senator. And the perception
is that the greater damage in--because they're so big, that
they're going to be dangerous, and we support the systems that
can take these people, whether they're passenger-car drivers or
they're truck drivers, off the road, and aggressive traffic
enforcement against both.
Ms. Claybrook. Senator Lautenberg, can I just comment on
one thing? Twenty-three percent of all passenger-vehicle
occupants who die in multi-vehicle crashes are involved in a
collision with a big truck, but big trucks are only 4 percent
of all registered vehicles. So they do an enormous amount of
damage to people. And one of the reasons that the statistics of
70 percent is caused by the car driver is because when the
police interview people after the crash, there's no car driver
to interview, so the only person they interview is the truck
driver, who says, ``Yes, it wasn't my fault. It was that guy
over there.'' And there have been several studies that have
evaluated that.
I would like to submit for the record something that rebuts
that number, because this is ``blame the car driver'' time.
And while I think that--whether you're a car driver or a
truck driver, you ought to be arrested if you're speeding.
Nevertheless, I think that statistic is completely incorrect,
and I would like to mention that.
The other thing is, of course, when trucks are carrying
hazardous materials, which many, many trucks are, and they're
speeding and have a crash, they can close down, you know, an
entire city or community for a day, as we have seen in this
area in the not-too-distant past. And so when these trucks are
speeding, they don't have the ability to stop in the same
distance as cars. They're completely intermixed with cars. I
think that they are more dangerous even than car drivers.
Senator Lautenberg. Yes.
Mr. Chairman, you've been more than patient. I appreciate
it. Thank you very much.
We know one thing, that there is a message out there that
says we have to make sure the rules and regulations are there
and that they are enforced, and we have to provide the
resources to be able to do that.
And, Mr. Duncan, I think that when the industry talks about
that Congress wants to erect national roadblocks, I think you
ought to be prepared to mention what those roadblocks are, so
we can get after those in the Congress who are recalcitrant,
and we ought to make sure that everyone knows that all they're
doing is throwing up roadblocks.
Senator Sununu. Thank you, Senator Lautenberg.
I've been advised we have a vote in approximately 10 or 15
minutes.
Senator Smith?
STATEMENT OF HON. GORDON H. SMITH,
U.S. SENATOR FROM OREGON
Senator Smith. Mr. Chairman, when I was a young boy, I
remember our family made a move and when we got to the
destination where our goods were to be delivered, the phone
rang, and the mover was on the other end of the line saying if
we didn't pay X additional, that we wouldn't get our stuff. It
was a searing experience as a young boy.
And recently--I don't know why it is, but I've had several
constituents come to me, who have moved to Oregon, and who have
been held up, essentially bribed, by the people moving their
goods. And I didn't know how big a problem this is until I
started looking into it. And apparently, depending on the year,
the number of complaints will go from 4,000 to 9,000 to 20,000.
This is highway robbery, literally. And I would like this
Committee to focus on this problem.
And I want to announce that--apparently today, the
Department of Transportation has issued a new ruling to enhance
household goods consumer protection. And apparently that's
really very much in need, and I would love to get the
response--Mr. Harrison, maybe you can help me to understand
what's going on here, because the case I--I remember, as a boy,
my Dad saying to the mover, ``I will be calling the ICC as soon
as we hang up here.'' But the ICC doesn't even exist anymore.
And he got his stuff, because he was able to say, ``I'm taking
you to the ICC unless I get my things.''
But where do people go today? Where do they get redress?
Where do they get justice on America's highways when families
are put into this kind of trauma, where they've got a deadline,
a job, a schedule, and somebody says, I'm keeping all your
stuff?
Mr. Harrison. Well, you're right, Senator, the Interstate
Commerce Commission regulated the moving industry since 1935 or
so. The Congress eliminated that agency in end of 1995 and
transferred the household good regulations and responsibilities
to the DOT. But first the Federal Highway Administration, and
now the Federal Motor Carrier Safety Administration, have been
somewhat indifferent about their responsibilities, relative to
the enforcement of the consumer-protection rules, which have
not changed; they've been on the books for a long time.
Senator Smith. Sure.
Mr. Harrison. And, as a consequence of that, since 1996,
the so-called rogue movers have flourished and are ripping off
consumers, mostly by holding shipments hostage and demanding
four or five times more than what the original estimate called
for, which is a violation of an existing Federal regulation.
Senator Smith. Right.
Mr. Harrison. But there hasn't been sufficient enforcement
by the Federal Government up until just recently. There seems
to be a renewed interest by the agency, in terms of
enforcement, and they are asking Congress for more money to, in
fact, increase their enforcement activities.
Senator Smith. Well, I'm glad to hear that, and I'd like to
suggest, Mr. Chairman, that this Committee make this the
subject of a hearing, to turn up the heat and provide the
resources, because the American people, in our mobile society,
are getting ripped off. And I've had too many complaints--and
it may just be a coincidence--that people come to me and say, I
just had the worst experience moving to your State, by being
ripped off by a moving van. And I just think if resources are
needed, then this is a priority that ought to be put on the
agenda of the U.S. Government, because this is interstate
commerce, in a classic sense, and it is filled with corruption
right now, and we've got to root it out.
So, Mr. Chairman, thank you for allowing me to make these
comments and making this point about a very crying need in
American commerce.
Thank you.
Senator Sununu. Thank you, Senator Smith. And I would
certainly highlight the fact that the Acting Administrator, Ms.
Sandberg, addressed this issue briefly in her remarks. We
wanted Mr. Harrison to be here, because we fully understood the
degree to which complaints have increased and that this is an
issue. And obviously the new rule that's been put out today by
FMCSA is an indication that they believe this to be a priority,
as well.
Let me conclude with a few questions, beginning with the
issue of safety. Ms. Claybrook, you suggested--I think you said
in your testimony--that the 1991 Act, which, I believe, Mr.
Lautenberg was largely responsible for--was very successful,
correct?
Ms. Claybrook. I did.
Senator Sununu. I look at fatalities, and I'm not an expert
on the law, and I'm sure it is a step in the right direction,
but with regard to its efficacy, in the 5 years following its
passage in 1991, fatal accidents involving large trucks seem to
have increased from roughly 4,500 fatalities per year to maybe
5,200, 5,300 per year. Why would that be?
Ms. Claybrook. Well, I was talking about the longer
combination vehicle freeze. And the numbers that you cited are
all large trucks; they're not just the longer combination
vehicles.
And I will take a look, Senator, if we can find the data--
it's very hard to get this data--on the different types of
trucks. It's one of our complaints, that the Federal Motor
Carrier Safety Administration's data is not uniform; and,
therefore, it's very difficult to evaluate, by type of truck,
the fatalities.
But what I meant by that was that--my statement was that it
did stop the incursion of these longer combination vehicles--
that is, triples and longer doubles--into other states. And
there had been huge fights over whether or not to allow them
in, and there had been proposals to have them in the East Coast
and some of the smaller states with smaller highways and so on.
So that's essentially----
Senator Sununu. Well, any additional data that you might be
interested in providing would be welcome.
This was a point that came up during Administrator
Sandberg's testimony, that new regulations really should be
based on evidence that indicates that those regulations will
address concerns of safety. That's what we're all here for.
Ms. Claybrook. Absolutely.
Senator Sununu. I mean, regardless of whether we agree or
disagree on every specific regulation, everyone is concerned
about safety. So data is important, and I know Mr. Duncan
offered to provide some information that might reflect a
different perspective than the statistic given regarding the 11
percent greater incidence of fatalities with certain large-
truck vehicles. Again, that would be welcome, because--and I
would want to make sure, as a policymaker, that we're working
with the best information possible.
Ms. Claybrook, you suggested that--I think you said that
the highways in New Hampshire were somehow not suited to trucks
of a particular size. I'm not quite sure what you meant by
that.
Ms. Claybrook. Well, I meant that in the East Coast, the
highways are--particularly the ability to get on and off in all
these major highways. You come from smaller roads----
Senator Sununu. Littler states, so we have littler roads?
Ms. Claybrook. No, but you have many more single-lane
roads, often in some of the older states. I didn't mean because
it was a littler state; but in the East Coast states--and, in
the East Coast, particularly, in the New England area. Not in
Maine. Maine, it has huge highways, and I've been on them--I've
been on them in New Hampshire, as well--but you have a lot----
Senator Sununu. Do you think the per capita incidence of
multi-lane roads in Maine is higher than the per capita
incidence of multi-lane roads in New Hampshire? Is that what
you're suggesting?
Ms. Claybrook. I think it might be, actually, but I'm not
positive. But I think it might be.
Senator Sununu. Let's see. You had a map. And I think you
talked about--experience of Oregon. I'm sorry Senator Smith
left. But it would seem to me, as I understand the regulations,
that Oregon is free to decide not to allow tandems if they so
choose.
Ms. Claybrook. That's correct.
Senator Sununu. Are you suggesting that the people in
Oregon are consciously making decisions that aren't in keeping
with their safety interests?
Ms. Claybrook. Well, it's the legislature that made the
decision. But I think----
Senator Sununu. It's the people that elected the
legislators.
Ms. Claybrook. That's right. That's correct. I think if you
take a poll of the population in any state, you'll see that
they don't like these trucks, whether it's Oregon or any other
state. It just happens that I have some family in Oregon, who
moved there, were unused to triple trailers, and are scared to
death of driving on those highways because of the triple
trailers.
Senator Sununu. Being an elected official, I'm conscious of
the importance of public opinion, but are you suggesting that
that's how we should be promulgating new rules and regulations,
is by taking polls?
Ms. Claybrook. No, but I think that the public view ought
to be taken into account, since they're the victims in truck
crashes. They're the ones who are killed, and the public knows
that. I think it's in--and I'll submit these polls for the
record--that in the last 8 or 10 years, advocates for highway
and auto safety have taken polls on a number of different
trucks, safety and auto safety issues, and the most
overwhelming support is in the regulation of trucks.
Senator Sununu. But there would seem to be some
contradiction, just using the hypothetical case of Oregon, or
the real case of Oregon. If the polls are so overwhelming, why
would the legislature there either not take them into
consideration in passing new rules, or, if these regulations
are really contrary to the public will, why aren't these
legislators paying a political price?
Ms. Claybrook. Well, it takes a lot of organization to make
that happen, Senator, as you know.
Senator Sununu. A public citizen knows a lot about
organization.
Ms. Claybrook. But the rules for triple trailers have been
in Oregon for a long time. And I certainly would like to see
that, actually. I don't know whether my family has the energy
to get involved in doing something like that in Oregon. But I
think that the legislators have felt the pressure of public
opinion, but it's more than just public opinion that has to be
taken into account. And, obviously, the support of the trucking
industry is another major factor in the decisionmaking process,
and they're probably much more potent, much more extensively,
you know, involved in the legislative process than individual
citizens.
Senator Sununu. Speaking of the trucking industry, Mr.
Duncan, is the ATA seeking to change the current size and
weight restrictions?
Mr. Duncan. No. The ATA policy is that we think, we
believe, and it is our policy that the states should be
allowed, but there is no effort underway to change that.
Senator Sununu. OK. You don't see any contradiction there?
That you don't seek any changes, but you want the states to be
allowed to seek changes?
Mr. Duncan. Well, we are a diverse industry, where our
members have lots of different agendas. The one that we agree
upon, however, is truck safety. All right? So on that matter,
we--it's a matter of policy that we believe the states are best
suited for that.
But, you know, to comment briefly, I heard time and time
again about the large, speeding truck. I would contend that the
operative word there is ``speeding,'' and that's the behavior
that needs to stop, whether it's a truck, whether it's a car,
whether it's a bus, that that is the contributing factor.
I would also say that we have limited funds to approach
truck safety. There is a major study underway for truck
causation among the DOT, and we are anxious to get that study
completed, because I think the results of that will tell us
where we can put the dollars to save the most lives.
Ms. Claybrook. Senator----
Senator Sununu. Ms. Claybrook, let me ask you a question,
and you can comment on that.
Ms. Claybrook. Right.
Senator Sununu. Maybe we can find some agreement here. Do
you believe that carriers should have access to information on
drivers' history of logbook violations, DOT reportable crashes,
and roadside inspections?
Ms. Claybrook. By driver name--you mean by driver?
Senator Sununu. Yes.
Ms. Claybrook. Do you mean generically or statistically or
by individual driver?
Senator Sununu. By driver.
Ms. Claybrook. By driver. I do think that there are privacy
issues, and that there ought to be some communication with the
driver before that occurs, but----
Senator Sununu. Certainly, but--I mean, but barring that,
some sort of a system for communication. I mean, don't you
believe that the issues of safety here ought to drive us to
want to share information about crash history and logbook
violations?
Ms. Claybrook. Yes, I do, Senator. And I think it has to be
done very cautiously and carefully, because there is a
possibility for some kind of misuse of that data, and I think
that people's livelihoods depend on it, and so I just think--I
would just say that it ought to be done very, very cautiously.
I would like to comment on that truck causation study by
the DOT. That has been roundly criticized and reviewed--is
under review now by the Centers for Disease Control, and I
think that the outcome of that study is going to be much in
question.
And I'd like to submit, for the record, a letter that the
public interest groups wrote to the Centers for Disease
Control, and another critique of that study.
Senator Sununu. Please. I'd be very happy to take that for
the record.
[The information referred to follows:]
Advocates for Highway and Auto Safety
Washington, DC, May 7, 2003
Suzanne Binder, M.D., Director,
National Center for Injury Prevention and Control,
Centers for Disease Control and Prevention,
Atlanta, GA.
Dear Dr. Binder:
The supplemental appropriations legislation for Fiscal Year 2003,
enacted February 13, 2003, contains a House and Senate conference
agreement directing the Centers for Disease Control (CDC) National
Center for Injury Prevention and Control to evaluate the adequacy of
the Truck Crash Causation Study's (TCCS) research design, and to report
findings to the House and the Senate Committees on Appropriations.
Rept. 108-10, 108th Congress, 1st Sess. (February 13, 2003), p.1280.
The TCCS is being conducted jointly by the National Highway Traffic
Safety Administration (NHTSA) and the Federal Motor Carrier Safety
Administration (FMCSA) in compliance with Section 224 of the Motor
Carrier Safety Improvement Act of 1999 which directed the Secretary of
the U.S. Department of Transportation ``to determine the causes of, and
contributing factors to, crashes that involve commercial motor
vehicles.''
Highway and truck safety organizations strongly supported this
language requiring the CDC National Center for Injury Prevention and
Control to evaluate the study design of the TCCS because of your
agency's sustained reputation as a leading institution in
epidemiological research methods and outcomes. We are deeply concerned
over the research approach used by NHTSA and FMCSA in this study to
investigate the reasons for truck crashes. The two agencies decided
three years ago to use a research protocol which only investigates a
number of cases of crashes by tracing back a series of events and,
through doing so, purportedly identifying the ``critical event'' and
``critical reason'' for the subsequent crashes. The agencies regard
this effort as sufficient to identify the ``causes'' of the crashes.
There is no comparison group being used to construct hypotheses about
the reasons for such crashes and to test whether the identification of
the supposed ``critical event'' that the agencies claim as the
``cause'' or reason for the ensuing crash is borne out.
The authors of the Interim Report on the TCCS assert that the most
important aspect of the study's data collection effort is the
interviewing of crash participants and witnesses.\1\ This means that
central reliance in the data entries and subsequent inferences about
the chain of crash events is placed on characterizing narrative
supplied by individuals who are on-scene during or soon after the
crash. These problems of bias and subjectivity are fatal to the
accuracy of the gathering of threshold data and information about how
any of the investigated cases of crashes occurred.
---------------------------------------------------------------------------
\1\ K. Thiriez, G. Radja, G. Toth, Large Truck Crash Causation
Study--Interim Report, Report No. DOT HS 809 527, September 2002.
---------------------------------------------------------------------------
Many of these criticisms have been repeated by the Transportation
Research Board's special committee charged with overseeing the study in
several meetings with the principal investigators in the two agencies,
and in a letter to the former FMCSA Administration, Joseph Clapp, sent
December 4, 2001 (copy attached).
The TCCS relies on the lowest level of evidence and poorest
research design identified by, among others, the National Institutes of
Health U.S. Preventive Services Task Force.\2\ The safety community
believes that the research design for the TCCS is deeply flawed and
that conclusions drawn from the examination of truck crash cases cannot
overcome bias and subjectivity. Unless corrective action is taken, we
believe that the findings of the study will be misused, Congress will
be seriously misled about the reasons for crashes, and misguided safety
countermeasures will be enacted and funded for Federal agencies to
carry out. Furthermore, NHTSA is asking Congress for funds to conduct a
similar investigation over the next several years of passenger vehicle
crash cases to determine the causes of car and light truck crashes.
This new study is to be conducted using the same flawed study design as
the TCCS.
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\2\ http://hstathim.niltgov/hq/Hquest/screen/TextBrowse/t/
1049397685410/s/40169.
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Preliminary 2002 data released last week by the U.S. Department of
Transportation show that overall highway fatalities have increased, the
highest number in over a decade. Properly understanding crash
causation, for trucks and passenger cars, is critical to developing an
action plan to bring down deaths and injuries in the next decade.
Public policy initiatives to address this growing public health crisis
will be ineffective without defensible studies on which to base our
actions. For this important reason, we welcome the impartial,
professional review by the CDC's National Center for Injury Prevention
and Control of the quality of the research being conducted by NHTSA and
FMCSA.
We would be pleased to have an opportunity to discuss further our
concerns about the quality and direction of the TCCS. Thank you for
your assistance.
Sincerely,
Judith Lee Stone,
President.
Joan Claybrook, President
Public Citizen
Clarence Ditlow, Executive Director
Center for Auto Safety
Stephen W. Hargarten, MD, MPH
Medical College of Wisconsin, Emergency Medicine
Jack Gillis, Director of Public Affairs
Consumer Federation of America
Daphne Izer, Founder and Board Member
Parents Against Tired Truckers (P.A.T.T.)
Randi Baun, Executive Director
Truck Safety Coalition
Andrew McGuire, Executive Director
Trauma Foundation
______
December 4, 2001
Joseph A. Clapp,
Administrator,
Federal Motor Carrier Safety Administration,
Washington, DC.
Dear Mr. Clapp:
The Committee for Review of the Federal Motor Carrier Safety
Administration's Truck Crash Causation Study (TCCS) held its third
meeting on August 20-21, 2001, at the National Research Council
facilities in Washington, D.C. The enclosed meeting roster indicates
the members, liaisons, guests, and TRB staff in attendance. On behalf
of the Committee, I want to thank the staff members of the Federal
Motor Carrier Safety Administration (FMCSA) and the National Highway
Traffic Safety Administration (NHTSA) for their presentations and
responses to committee questions. The committee believes the continuing
exchange of views and ideas on this project is highly beneficial.
The meeting provided the Committee with an opportunity to review a
set of questions stemming from a task force review of several crash
files and to discuss again the agency's study methodology.\1\ In
addition, the Committee heard a presentation about the database being
prepared for the study and discussed the extent to which this database
will be made available to the public. There was further discussion
about the need to collect as much measurable data as possible about the
crash characteristics of the roadway and vehicles involved. Finally,
several committee members again underscored the need for the agency to
document its method for assessing the crash data files and to consider
using other analysis methods as well.
---------------------------------------------------------------------------
\1\ A task force comprising five committee members--John Billing,
Michael Belzer, Anne McCartt, James McKnight, and Frank Wilson--visited
Veridian Corporation, an FMSCA crash investigation contractor, in
Buffalo, New York on July 9-10, 2001 to review crash case files.
---------------------------------------------------------------------------
The committee then met in closed session to deliber to on its
findings and begin the preparation of this report, which was completed
through co espondence among the members. This report summarizes key
points made during the Committee's iscussions and provides several
recommendations to FMCSA. See Appendix A for a review of previous
committee decisions that affect the Committee's discussion and
recommendations.
Study Purpose and Agency Expectations
The TCCS is a congressionally mandated study of the causes of
truck-involved crashes leading to fatality or serious injury. The
results of the study will be used to design and select cost-effective
measures for reducing the number and severity of serious crashes
involving large trucks. The study will consist of in-depth
investigations of a nationally representative sample of 1000 large
truck crashes, to be performed by teams of trained investigators from
NHTSA's National Automotive Safety Sampling System (NASS) project and
FMCSA-funded truck safety inspectors. The full study involves data
collection at 24 data collection sites.
FMCSA staff reviewed the study's aims for the Committee,
emphasizing that the study is designed to enable the agency to draw
inferences about circumstances and contributing factors associated with
truck crashes, thus helping the agency meet its goals for reducing
truck crash fatalities. The committee agrees with the agency that the
primary objective of the study is to collect the most complete and
accurate possible set of factual evidence for use by agency analysts as
well as future researchers. However, the study's goals are complicated
by the fact that in more than 40 percent of fatal truck crashes, the
driver of the other vehicle is believed to be solely responsible for
the crash.\2\ Thus the Committee remains concerned about whether the
data being collected on the 1000 crash cases will yield sufficient
causal information to identify the most effective truck-related
countermeasures.
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\2\ Daniel Blower. Relative Contributions of Truck Drivers and
Passenger Vehicle Drivers to Truck-Passenger Vehicle Traffic Crashes.
UMTRI Report 98-25.
---------------------------------------------------------------------------
The TCCS is important for other reasons as well. It involves the
largest nationally representative sample of truck crashes to date and
is the first large-scale, on-scene investigation of such crashes. This
study is also the first to use a combination of trained crash
investigators and truck safety inspectors for data collection. Finally,
the truck crash database being developed will be made available to the
public and outside researchers as well as FMCSA and NHTSA researchers.
In funding the TCCS, Congress requested ``a comprehensive study to
determine the causes of, and contributing factors to, crashes that
involve commercial motor vehicles . . . [emphasis added]'' (Motor
Carriers Safety Improvement Act of 1999, Section 224). Extracting
causal information in complex events like crashes is quite difficult
and depends on collecting reliable and valid data on each possible
causal or contributing factor. FMCSA staff informed the Committee that
the agency is focusing on the contributing factor(s) that increase the
risk of crashes; the agency is not attempting to isolate individual or
primary causes of crashes. According to the agency, the TCCS--based on
the Perchonok method--will yield findings about critical precrash
events, the critical reasons for these events, and relative risks in
truck crashes. While these findings may help the agency improve the
effectiveness of truck crash countermeasures, they may not meet the
goals set by Congress. The agency recognizes these expectations and is
addressing them as it prepares a crash data analysis plan based on the
analysis methodology described by Blower in Appendix B, pp. 13-19. The
committee supports this effort and urges the Committee to consider
other analysis approaches as well. Several committee members also noted
that some of the distinctions the agency is making--for example,
between causation and contributing factors that increase the risk of a
crash--may be lost to decision makers and the public. Thus, clarity in
both analyses and report writing is critical.
Crash Event Assessment (Study Methodology)
In its first letter report, dated November 15, 2000, the Committee
noted that FMCSA has chosen a clinical or case analytic methodology for
the study. The discussions at this meeting, however, indicated that
both a clinical approach (on the part of NHTSA) and a statistical
approach (on the part of FMCSA) are envisioned for the analysis.
(Material provided to the Committee on these approaches is included in
Appendix B, pp. 2-8.) While the Committee believes that both are
rational approaches, it continues to be concerned about whether the
methodology to be used in coding and analyzing the data will yield
valid results.
There was considerable discussion about how a critical event for
each crash is identified in the Perchonok approach. (Appendix C
contains background information on this approach provided previously by
FMCSA.) The above-mentioned task force, which reviewed preliminary
results from five crash investigations, disagreed with several critical
events identified by agency analysts and also disagreed among
themselves about appropriate critical events. The committee's concern
is not whether universal agreement can be achieved on every critical
event, but whether the Perchonok method leads analysts to identify a
critical event that can be challenged in light of the data in the crash
case files.
For example, the traditional Perchonok method does not recognize
that failure to take an appropriate or expected action can be a
critical event. This point is illustrated by a crash case involving a
passenger car that did not stop at a red light and was struck by a
left-turning truck (Appendix B, p. 11). In this example, the passage of
the nonstopping car into the intersection after the light had turned
red was not coded initially as the critical event. Agency staff now
recognizes this limitation and has adapted the method to accept a
driver's failure to make an appropriate maneuver as a critical event.
The risk, however, is that similar challenges, even on just a few
cases, could lead to the judgment that the methodology is subjective or
arbitrary, which would undermine the study's conclusions. The committee
previously urged FMCSA to follow the procedures of the version of the
Perchonok method that is recognized as being the most objective for
identifying key crash factors--the version shown to have the least bias
toward any pre-determined outcome. The agency must thoroughly document
the method being used so that other researchers can review the crash
cases and independently analyze the results using the agency's method.
Previously the Committee urged FMCSA to conduct two independent
assessments of each crash case and was informed that such assessments
are planned for each of the TCCS's 1000 cases. At the meeting FMCSA
reported that it has also established a review panel to make final
determinations about critical events in cases where the results of the
independent assessments differ and these differences cannot be
resolved. This is commendable. Nevertheless, FMCSA should identify the
members of the review panel and document the procedures used by the
panel to make final determinations.
The agency discussed its plans to examine likely crash causes on
the basis of statistical association and relative risk in the aggregate
data, as well as case-by-case assessments. (A relative risk calculation
regarding brake violations and crashes based on truck crash data
collected in Michigan is described in Appendix B, pp. 17-18.) The
committee suggests that FMCSA prepare a detailed, theoretically-based
analysis plan for testing hypotheses. This plan should include a list
of likely causes to be examined using statistical methods; a detailed
analysis scenario for each cause; and a description of analyses that
will examine alternative explanations for the observed effect (e.g.,
the examination of other equipment problems in the brake analysis to
disprove the poor driver/poor equipment alternative theory). Such a
plan will help the agency determine whether additional data are needed
to support these analyses. Agency staff indicated that a preliminary
analysis plan would be available to the Committee early in the first
quarter of 2002.
Crash Event Assessment (Alternative Analysis and Data Collection
Issues)
The TCCS represents an important opportunity for causal analysis
using methods other than those chosen by FMCSA. Moreover, the Committee
previously suggested that the agency consider conducting such analyses
(for example, the ``but for'' analysis discussed in its March 9, 2001,
letter report). The potential for such alternative analyses is directly
related to the depth of the investigation conducted--how far back in
time the investigator pursues each possible causal chain of events for
each vehicle involved in a crash. It was clear for some of the cases
reviewed by the task force, as well as those presented at previous
committee meetings, that such causal chains had been thoroughly
pursued. (In one case, for example, the event chain went back in time
from a rear-end crash to the failure of the driver to reduce speed at
the top of a hill to an incomplete or unsuccessful brake repair which
the driver was aware of.) The committee urges FMCSA and NHTSA to
reinforce in their instructions to investigators the need to examine
these event chains thoroughly for each vehicle and driver and to
include this information in the database and in the narratives.
In some cases reviewed by the task force, there appeared to be
data--potentially useful for current FMCSA analysis and for future
agency and independent efforts to reconstruct the crashes more
completely--that could have been collected but were not. These data
were related to vehicle components and vehicle dynamics of the crash
and they included brake condition, measurements of skid marks, and
objective estimates of precrash speeds based on physical evidence at
the crash scene. Agency staff indicated that they would instruct their
investigators on the need and methods for collecting such data and for
analyzing the data when necessary to identify the most likely of
several possible critical events.
In addition to the data currently being collected and suggested for
collection, the Committee believes future alternative causal analyses
would be further enhanced by recording the crash investigator's
assessment of whether a defensive avoidance maneuver or preventive
action could reasonably have been taken by either the truck or nontruck
driver to avoid the crash and what that maneuver or action might have
been. This assessment could be based solely on the investigator's
judgment in light of the crash data file and could be described in the
narrative that is part of every crash case file. A reasonable maneuver
is one that could be taken by an average driver given the roadway and
roadside environment, traffic volume, and ambient weather conditions.
Judgments about potential avoidance maneuvers, while subjective,
provided important information in the Indiana Tri-Level study (see
Appendix B); such maneuvers were judged to be possible in one-third of
the cases examined. If a similar finding applied to truck crashes, it
would be very important for identification and development of
countermeasures, as well as for FMCSA's enforcement and licensing/
relicensing programs, especially because truck drivers can be required
to undergo remedial training. In addition, the existing set of
uncompleted cases should be reviewed by the investigators to determine
whether avoidance maneuvers can be identified for them.
Crash Data Files
As noted above, a committee task force recently reviewed five crash
case files. While these files were not yet complete--some follow-up
data and interview information can take several months to obtain--the
review provided the task force with a unique opportunity to become more
familiar with the data being collected and the analysts'
interpretations of the contributing factors involved. The review led to
a set of questions that was addressed by agency staff at the meeting.
The discussion of these questions is reflected throughout this report.
Some specific issues are addressed in the following paragraphs.
Several committee members would like to review the five crash case
files once they have been completed and entered in the database; they
would also like to review additional completed files, time permitting.
Agency staff pointed out that data continue to be added to the files,
and data edits will take approximately 4-5 months to complete.
According to agency staff, approximately 15-20 complete crash files
should be available by March 15, 2002. The committee would like access
to these crash files, as well as the interview forms, investigator
notes, and other documents pertaining to the cases so they can be
reviewed in detail. A review of completed cases will inform the
Committee as to what final case files look like, give members another
opportunity to review the data coding and critical event decisions, and
allow them to check the usability of the public crash file structure.
Agency staff assured the Committee that this review could be arranged.
Information attesting to the truthfulness and accuracy of data is
often as important as the data itself and must be included in the
database. Task force members noted their concerns about data known or
suspected by the crash investigators to be erroneous. When the crash
investigators know or suspect a data item is false, they make written
notations to that effect on the data forms. However, agency staff
informed the Committee that these qualifying notes--sometimes called
flags--are lost when the data are extracted from the database for
release to the public. The committee strongly recommends that such
qualifying information be included in the electronic database because,
in its absence, future independent analysts will be unaware of such
potentially false data items.
The task force review of the crash files underscored the need for
calculations based on physical measurements made at the crash site to
verify data and information provided by drivers or others involved in
or witnessing the crashes. Even basic calculations based on tire tracks
or skid marks can help verify or disprove such subjective data. NHTSA
staff indicated their intention to adopt simple speed-estimating
procedures so that analytical methods will be used to the extent
possible in future cases.
Several committee members emphasized the need, in some cases, for
accurate information on roadway geometry and related topics, including
shoulder and lane widths, radius of curvature, superelevation, presence
and dimensions of rumble strips, sight distance, sideslope grades, and
final vehicle resting position. In certain cases it is also necessary
to include information about the roadway upstream from the crash site,
especially if there are questions about whether sight distance was
adequate or stopping distance was a factor. Currently these items are
noted only on a scaled sketch included in the crash case file. However,
the Committee recommends that information on critical roadway geometry
be tabulated for each case and included in the database. Doing so will
facilitate future analyses by FHWA and other researchers interested in
the relationships between highway design and safety.
The committee inquired about the extent to which previous committee
member suggestions for changes to the data forms have been adopted.
Agency staff indicated that nearly every suggested change has been
made. Several committee members, after a brief review of selected
revised data forms, noted items that still could be improved. The
committee's concern is that data items must be well defined on the
forms to yield data useful for analyses. Agency staff agreed to send
copies of all the data forms to each of the members. At the request of
agency staff, individual committee members will continue to review the
forms and provide comments. Finally, agency staff agreed to change some
of the terminology in the crash event assessment form so that fault
will not be inferred. For example, under driver-related factors,
``decision errors'' should be termed ``decision factors'', and
``performance errors'' should be termed ``performance factors.''
Public Access to Data
An important aspect of the TCCS is that most of the data collected
will be available to the public for analysis once the project is
completed. However, data obtained in interviews conducted under
nondisclosure agreements with interviewees may not be released. Two
important issues emerged from the discussion about public access.
First, the Committee understands the need to protect information that
might lead to the identification of specific crashes and the
individuals involved. While the agency standard and capability for
protecting privacy appears to be high, it appears some information thus
obtained, such as length of last sleep interval, will apparently be
disclosed in an aggregated form. The rules regarding nondisclosure
should be explicit and adhered to consistently or the agency risks
losing the voluntary cooperation of crash-involved witnesses.
Accordingly, the Committee urges FMCSA and NHTSA to review their
nondisclosure rules and the way interviewers explain these rules to the
interviewees to ensure that data sources are well protected. The
agencies should also ensure that their field investigators comply with
these rules and procedures.
Second, while recognizing that privacy concerns are important, the
Committee believes that information critical to successful analysis by
others once the data have been made public should not be withheld
unnecessarily. Of concern is interview information about driver hours
of service, fatigue, work compensation, working conditions, and truck
ownership. Agency staff stated that when such information can be
obtained from secondary sources, it will become part of the public
record. In addition, FMCSA plans to prepare analyses that aggregate
much of this information, thereby disclosing it in a form that does not
violate nondisclosure agreements. Nevertheless, the Committee urges
FMCSA to find secondary sources for as many of such data items as
possible; doing so will increase the amount of data released to the
public and their usefulness. For example, it may be possible for FMCSA
inspectors to collect information on work compensation, truck
ownership, and related items from truck companies and owners, thereby
reducing reliance on the driver and/or company interviews by NHTSA
investigators. In many cases it will be necessary for investigators to
check hours of service and sleep claims independently. The committee
suggests that such independent checks be standard practice for all
crash case investigations.
Study Sampling Plan
FMCSA staff noted that data collection is now under way at all 24
study sites, and while some sites are yielding crash cases at a rate
within an expected range for these sites, others are falling short in
this regard. Because the agency's sampling plan is critical to
achieving a nationally representative sample of crashes, the Committee
would like to know whether the data collection effort is yielding the
desired representative sample of truck crashes. Specifically, the
Committee would like to know how many crashes are expected each year
from each site, and how these figures compare with the basic NASS
sample for these sites. The committee would also like to know, from the
beginning of the study and for each study site, how many truck crashes
have occurred, how many crash cases are under investigation, and how
many crash investigations have been completed. In addition, the
Committee requests that the agency categorize the crashes under
investigation by type (e.g., rollover, rear end). and location (e.g.,
freeway, rural two-lane road, intersection). This information will
provide a preliminary indication of the nature of the sample thus far
and allow the crash selection methodology to be reviewed and any
expected bias identified and assessed. The committee would like to have
this information by January 31, 2002.
Study Report Preparations
There was considerable discussion about the potential study
findings and how FMCSA plans to analyze and report them to Congress. To
further ensure an adequate data collection and analysis plan, agency
staff should begin preparing a strawman version of the report's
expected key findings based on a coherent theoretical statement of what
the possible, causal or contributing factors are and including
suggested formats for tables of key data the agency expects to be able
to summarize. Preparing a draft of the opening paragraphs of the
executive summary for the study's final report would also be a useful
exercise in this regard, since these paragraphs ultimately will provide
the most important version of the study rationale and scope. Addressing
these tasks now might reveal the need for additional data or analysis.
As noted above, agency staff indicated that a draft analysis plan would
be available for review and comment by January 31, 2002.
Future Meeting Plans
If the Committee receives the completed crash case files by March
15, 2002 it plans to meet on or around June 15, 2002. This schedule
will give the Committee time to review the files and prepare questions
for the agency. Final meeting plans will depend on when the crash case
files are available.
Sincerely,
Forrest Council,
Chairman,
Committee for Review of the Federal Motor Carrier
Safety Administration's Truck Crash Causation Study
Enclosures
Senator Sununu. Let me say thank you, again, to all the
panelists. It's been extremely helpful. And I welcome your
submission of additional data for the record, and I look
forward to working with you all on these issues.
This hearing is adjourned.
[Whereupon, at 11:35 a.m., the hearing was adjourned.]
A P P E N D I X
Hours of Service Coalition
Alexandria, VA, June 9, 2003
Hon. John McCain,
Chairman,
Senate Commerce, Science, and Transportation Committee,
Washington, DC.
Dear Chairman McCain:
In April 2000, after the Federal Motor Carrier Safety
Administration (FMCSA) published the proposed ``Hours of Service of
Drivers; Driver Rest and Sleep for Safe Operations,'' approximately 40
trade associations and corporations formed the Hours of Service
Coalition to present our collective response to the proposal. The Hours
of Service Coalition represents those commercial vehicle fleets that
are primarily ``short-haul'' as opposed to long-haul for-hire trucking.
Our membership represents a diversity of industries such as utilities,
contractors, parcel services, fuel suppliers, agricultural commodities
and food delivery such as baking, snack, soft drink, beer and
confections. The operators the coalition represents spend a large
percentage of their workday in non-driving activities such as selling
to or servicing customers, waiting for trucks to be loaded or unloaded,
awaiting paperwork, etc.
We strongly support the intention of FMCSA's Final Rule,'' 49 CFR
Parts 385, 390, and 395 (Docket No. FMCSA-97-2350), which is to
increase safety on our Nation's highways and reduce fatalities. It is
designed to address driver fatigue problems with long-haul operation of
tractor-trailers or tractor-semi-trailer combinations. Yet the cost
burden of the new rules falls not on these high-risk operators, but on
the short-haul carriers for whom no significant risk appears to have
been identified. This discrepancy is so great that the agency could not
cost-justify this rule for short-haul carriers. The question, then is:
Why has the agency chosen to impose a rule wherein the entire burden,
and none of the benefit, accrue to those least likely to be involved in
fatigue-related accidents?
We have brought this discrepancy to the attention of FMCSA through
a petition for reconsideration of the final rule, and requested that
FMCSA reopen this proceeding to reconsider how the 14-hour on-duty
requirement would affect ``short-haul'' operators--those operators who
spend large portions of their on-duty periods in non-driving
activities. We requested that operators be allowed the choice of using
14 hours of on duty time, of which 11 hours may be driving (Final
Rule), or using 15 hours of on duty time, of which 10 hours may be
driving (Current Rule).
Our petition for reconsideration is attached, and we ask that it be
inserted into the Committee record following the Tuesday, June 10,
2003, hearing regarding reauthorization of the FMCSA.
Thank you for your attention to this.
Sincerely,
Hours of Service Coalition.
______
Hours of Service Coalition
Alexandria, VA, May 27, 2003
Ms. Annette M. Sandberg,
Acting Administrator,
Federal Motor Carrier Safety Administration,
U.S. Department of Transportation,
Washington, DC.
Dear Acting Administrator Sandberg:
Pursuant to Part 389.35 of 49 CFR Ch. III, Rulemaking Procedures--
Federal Motor Carrier Safety Regulations, this letter (submitted in
five copies) serves as our Petition for Reconsideration of the Final
Rule published in the Federal Register on April 28, 2003 ``Hours of
Service of Drivers; Driver Rest and Sleep for Safe Operations; Final
Rule,'' 49 CFR Parts 385, 390, and 395 (Docket No. FMCSA-97-2350). We
wish to state at the outset that our organizations strongly support the
intention of the Final Rule, which is to increase safety on our
Nation's highways and reduce fatalities.
Our Associations represent businesses that employ operators for
``short-haul'' operations in which drivers return to their reporting
location at the end of each shift. Operators in our industry often make
numerous stops during the course of their daily on-duty activities.
They spend a large percentage of their workday in non-driving
activities such as selling to or servicing customers, waiting for
trucks to be loaded or unloaded, awaiting paperwork, etc. Operators
employed in our industries cannot reasonably be classified as ``long-
haul truckers,'' and have the benefit of spending large portions of
their on-duty time in non-driving capacities which minimizes driving-
related fatigue.
A number of our member companies have raised concerns about the
provisions of the Final Rule that reduces total on-duty time from a
flexible 15 hour-period to an inflexible 14-hour period from the time
an operator begins his workday. A number of companies have noted that
this change will require them to alter delivery routes and is likely to
significantly alter distribution systems. Most importantly, some
companies have indicated that in order to comply with the new Rule it
will be necessary to increase the number of trucks on the road by 15
percent. Most of these new trucks will not be able to maximize their
load capacity. We believe this could have the opposite affect of the
intention of the Final Rule, which is to increase safety on our
Nation's highways and reduce fatalities. Indeed, FMCSA's own analysis
shows that the new daily on-duty time limitation has the ``unintended
consequence of requiring a significant increase in new [short haul]
drivers . . . these new drivers would increase both costs and
crashes'', and ``the increase in the need for new short-haul drivers
would more than offset the slight reduction in fatigue . . .''
Furthermore, the change will have a disproportionate impact on
distribution in rural areas and on small businesses that rely on these
operations to bring products to their businesses.
We are requesting a very narrow reconsideration of the Final Rule.
We request that you reopen this proceeding to reconsider how the 14-
hour on-duty requirement would affect ``short-haul'' operators, and we
request that your agency consider allowing such drivers to retain the
current 15-hour on-duty limit, if they spend large portions of their
on-duty periods in non-driving activities. We request that operators be
allowed the choice of using 14 hours of on duty time, of which 11 hours
may be driving (Final Rule), or using 15 hours of on duty time, of
which 10 hours may be driving (Current Rule).
At the very least, this is an issue that merits more thorough
consideration by FMCSA. During the rulemaking process, the Notice of
Proposed Rulemaking contained such a radical departure from the current
rule that it was difficult to focus on all aspects of the rulemaking.
Our organizations spent the bulk of our review and our comments and
presentations on the most egregious issues in the proposal--notably the
limits on nighttime driving and mandatory two consecutive days off.
In addition, the proposed rule's break down of five categories of
operations was complex and confusing to most fleet owners. Many of our
operators would have shifted from one category to another on a daily
basis. Each of the proposed categories had differing sets of on-duty,
driving, and rest times. Almost no attention was paid to the one-hour
reduction in the amount of on-duty time.
While the reduction in daily on-duty time will clearly be costly
and disruptive to ``short-haul'' fleet operations, the FMCSA has failed
to identify benefits that would justify these costs. FMCSA's own
research associates driver fatigue problems with long-haul operation of
tractor-trailers or tractor-semi-trailer combinations. Yet the cost
burden of the new rules falls not on these high-risk operators, but on
the short-haul carriers for whom no significant risk has been
identified. It is unreasonable, and contrary to the public interest, to
impose a rule wherein the entire burden, and little of the benefit,
accrue to those least likely to be involved in fatigue-related
accidents.
In conclusion, we respectfully request that FMCSA reconsider the
limit of on-duty time at 14 hours and provide operators the option of
retaining the current rule's provision for 15 hours of on-duty time
with driving time limited to the current 10 hours. We look forward to
your consideration of our concerns and stand ready to discuss them with
you.
Sincerely,
Air Conditioning Contractors of America
American Bakers Association
American Frozen Food Institute
American Supply Association
Food Marketing Institute
Grocery Manufacturers of America
Independent Bakers Association
International Mass Retail Association
International Foodservice Distributors Association
International Warehouse Logistics Association
National Beer Wholesalers Association
National Confectioners Association
National Potato Council
National Propane Gas Association
National Roofing Contractors Association
National Soft Drink Association
National Turkey Federation
Plumbing-Heating-Cooling-Contractors-National Association
Snack Food Association
U.S. Chamber of Commerce
Cc:
Secretary Norman Y. Mineta
U.S. Department of Transportation
Senator Richard S. Shelby
Chair, Transportation Subcommittee
Senate Appropriations Committee
Congressman Lee Terry
(Nebraska-2nd)
John Graham, Administrator
Office of Information and Regulatory Affairs
Office of Management and Budget
Thomas M. Sullivan
Chief Counsel for Advocacy
U.S. Small Business Administration
______
Written Questions Submitted by Hon. John B. Breaux to
Hon. Annette M. Sandburg
CDL Medical Certification
In the Motor Carrier Safety Improvement Act of 1999, Congress
directed the Federal Motor Carrier Safety Administration (FMCSA) to
initiate a rulemaking to provide for a Federal medical qualification
certificate to be made part of commercial drivers' licensing process.
In a letter Secretary Mineta sent to Senator John Breaux on September
24, 2002, he said that the Department would publish the proposed rule
in March, 2003. To date, this rulemaking has not yet been issued.
Question 1. The Department has not been able to even propose
regulations integrating medical qualification certification with the
commercial drivers' licensing process in over three years. Yet the
Mexican government already has this combined program in place. When
will the Department issue the proposed rule to begin the process of
establishing a procedure combining medical qualification with CDL
qualification?
Question 2. Will this rulemaking be issued as planned, or is the
Administration waiting to see what action Congress takes on SAFETEA?
Question 3. According to Secretary Mineta's letter, the proposed
rule combining the medical certification process with the CDL issuance
and renewal processes would ``reduce the incidence of medical examiners
improperly certifying drivers who are not medically qualified to
operate trucks and buses in interstate commerce.'' How will the
combining of the certification processes change the behavior of medical
examiners?
CDL Medical Examiners
Under the Administration's proposed bill, SAFETEA, FMCSA would
initiate another rulemaking to set standards for medical examiners to
meet in order to be qualified to examine commercially licensed drivers.
FMCSA would also establish a medical review board to provide advice to
FMCSA and guidelines to medical examiners to use in examining CDL
applicants.
Question 1. It seems that we need some threshold health standards
that commercial vehicle drivers must meet to qualify for a CDL. Yet,
the Administration is proposing to establish standards for medical
examiners to meet to be qualified to examine commercial drivers. How
will the FMCSA determine that the medical examiners are qualified? Will
the examiners be tested by FMCSA?
Question 2. Qualified medical examiners will then have guidelines
to follow in qualifying (or not) a prospective commercial vehicle
driver. Guidelines are not mandatory, so it would follow that the
medical examiners will have discretion in deciding who is qualified and
who is not. Will this not lead to inconsistency among doctors? How will
FMCSA ensure that the guidelines are uniformly applied?
Question 3. How will CDL holders and applicants know which medical
examiners are qualified under the FMCSA program?
Question 4. Will the examiners have to be re-qualified, or will
they obtain a lifetime qualification to perform the medical exams on
CDL holders and applicants? Will the regulations include standards
under which qualified medical examiners become disqualified? If so,
will there be an appeals process for medical examiners who have been
disqualified?
Question 5. FMCSA has revised the certification form used by
medical examiners to include more medical advisory guidance to assist
examiners in making physical qualification determinations in order to
``ensure that medical examiners are more knowledgeable of the physical
qualification standards.'' How will this change ensure that medical
examiners use the guidance in examining CDL holders and applicants?
Question 6. Once medical examiners have evaluation standards and
have been certified by FMCSA, will they be the ultimate authority
granting a medical certificate or will the FMCSA withhold final
approval during an evaluation period (i.e.. The FAA uses a 60 review
window) and then grant final approval or reject the medical examiner's
findings?
Diabetic Drivers
In TEA-21, Congress directed FMCSA to study the feasibility of
eliminating the current blanket ban on insulin-treated drivers and move
to a case-by-case assessment. FMCSA's response was to propose the
``three-year rule'' under which potential drivers must operate a
commercial motor vehicle while using insulin for three years before
they can even apply for a CDL. Since that would be illegal for
interstate driving, insulin-treated drivers must find intrastate
driving opportunities in those states that allow insulin-treated
drivers to drive commercial motor vehicles at all.
Question 1. FMCSA's own expert medical panel found the three-year
requirement to be medically unnecessary and not supported by current
treatment of diabetes. Why did FMCSA ignore its expert medical panel
and support the three-year requirement?
Question 2. Since about 20 states prohibit insulin-treated drivers
from driving commercial vehicles, including Louisiana, what would FMCSA
recommend commercial drivers do in those states to fulfill the three-
year requirement?
Question 3. The three-year rule is still just a proposed rule, and
the docket for the rulemaking shows strong public support of major
changes to that rule. Would additional guidance from Congress on the
proposed exemption program in TEA-21 reauthorization help speed the
regulatory process?
CDL Disqualifications
Secretary Mineta stated that as of September 30, 2002, commercial
motor vehicle drivers convicted of traffic violations while operating a
car, which resulted in the cancellation, suspension or revocation of
their drivers' license, are disqualified from operating a commercial
motor vehicle. Individuals convicted of committing drug-or alcohol-
related offenses while driving a car are also disqualified. That
restriction has been in force now for almost eight months now.
Question 1. How many CDL holders have been disqualified as a result
of this prohibition?
Question 2. What steps has FMCSA taken to ensure that states are
following this new rule by revoking the CDLs of disqualified
individuals or by reporting the individuals to FMCSA?
Secretary Mineta's September 24 letter stated that a driver who
causes a fatality through negligent or criminal operation of a
commercial vehicle while driving with a canceled, suspended, or revoked
CDL is disqualified from operating a commercial vehicle.
Question 1. If a driver has a canceled or revoked CDL, isn't the
driver already disqualified?
Question 2. Shouldn't negligent or criminal operation of a
commercial vehicle be grounds for disqualification, whether or not the
behavior causes a fatality?
Question 3. Is operating a commercial vehicle with a canceled,
suspended or revoked CDL a prima facie case of negligent or criminal
operation of a commercial vehicle?
Accident Investigation
Question 1. Has FMCSA completed its investigation of the June 24,
2002, motor coach accident in Garland, Texas which killed four
Louisiana children?
New Entrants
New motor carrier entrants and new drivers consistently have been
shown to pose the greatest safety risk. Section 210 of MCSIA requires
the FMCSA to conduct safety audits of new entrant motor carriers within
18 months of receiving operating authority.
Question 1. How many safety audits has FMCSA performed?
Question 2. How many drivers have been disqualified after being
subject to a safety audit by FMCSA?
Question 3. What types of driver behavior most commonly lead to
disqualification from a safety audit?
Household goods movers
The protection of consumers involved in the movement of their
household goods continues to be an issue for which action is needed. In
recent years, there has been a growing number of complaints by people
who have moved their household goods about movers engaging in illegal
practices that leave the shippers with little or no recourse.
Question 1. In March, a two-year investigation by DOT and the FBI
led to the indictment of 16 interstate moving companies, as well as 74
operators, owners, and employees of interstate moving companies, for
violations of consumer protection laws for shippers of household goods.
Is the investigation continuing? Are there other similar investigations
ongoing? Are we likely to see additional indictments in the near
future?
Question 2. SAFETEA proposes to allow state attorneys general to
bring civil action against a carrier in Federal court enforcing Federal
law. Why wouldn't the Administration favor states bringing civil action
under their own consumer protection laws?
Question 3. What is a commercial zone in which laws governing
interstate moves of household goods do not apply? What laws do apply?
Question 4. The Carmack Amendment, in effect since 1906, limits the
damages a consumer can seek against a household mover for negligence.
The damages are limited to compensatory damages and do not allow for
consumers to seek additional damages for mental anguish or emotional
distress, even though losing all of your belongings in a move due to
negligence by a household mover is extremely distressing. For example,
how can a person be compensated for the loss of or irreparable damage
to old family portraits or great-grandpa's roll-top desk? Should the
Carmack Amendment be repealed or amended?
Question 5. How would you define a ``rogue'' mover? How many rogue
movers are estimated to be operating in the United States at this time?
______
Written Questions Submitted by Hon. Ernest F. Hollings to
Hon. Annette M. Sandberg
Hazardous Materials Background Checks
On May 2, 2003, TSA, the FMCSA at DOT issued companion interim
final rules which require background checks on commercial drivers
certified to transport hazardous materials, conform the background
check provisions with the Commercial Drivers License (CDL) program
administered by the states, and define what hazardous materials should
be covered. This new rule will affect approximately 3.5 million
commercial drivers that possess, renew or apply for a hazardous
materials (HAZMAT) endorsement on their CDL. These drivers will undergo
a background records check that includes checks of criminal,
immigration and FBI records. The rule does not apply to applicants for
CDLs without a hazmat endorsement.
Each applicant must pass the background check prior to being issued
a license. There is also a provision for current CDL license holders,
which allows for the voluntary surrender of their license if they know
they do not meet the new background check requirements. Within the next
six months, the TSA will be conducting background checks of all
existing license holders with hazmat endorsements. After eight months,
the TSA will start background checks on new applicants for CDLs with
hazardous materials endorsements.
Question 1. What safeguards will be put into place to make sure
that employers will not receive ``private'' employee information to
specific findings of the employee's background check except for a
``pass'' or ``fail'' answer?
Question 2. How will employers guarantee that all commercial
licensed drivers that they employ are not subjected to a hazardous
materials endorsement background check for the sake of finding out the
employee's employability to transport non-hazardous materials freight?
Funding for MCSAP to the States
The Administration's SAFETEA proposal decreases the amount of
funding from previous years going to the states and increases the
administrative funding of the motor carrier program.
Question 1. Why is there more money going into the administration
of the Federal motor carrier safety program now then there has been in
previous years and less to the states that carryout the program? What
additional resources are necessary to facilitate the management of the
Federal motor carrier program?
______
Written Questions Submitted by Hon. John B. Breaux to
Douglas G. Duncan, LaMont Byrd, Joan B. Claybrook, Peter Hurst and
Joseph M. Harrison
Diabetic Drivers
FMCSA has issued a proposed rule that requires insulin-treated
drivers to have three years of commercial driving experience while
using insulin in order to qualify for a diabetes exemption in obtaining
a CDL. This scheme would require an insulin-treated driver to drive a
commercial vehicle illegally for three years in order to qualify for
the exemption. In effect, the three-year rule makes it impossible for
almost anyone with diabetes to qualify for the program and a CDL.
Question 1. Do you believe this is a fair method of qualifying
insulin-treated drivers, especially given the fact that 20 states do
not offer an intrastate waiver program so that drivers from those
states would not have a chance to obtain a CDL under FMCSA's diabetes
exemption program?
Question 2. How would you suggest that the licensing of diabetic
drivers for interstate driving be accomplished?
CDL Medical Qualifications
Question 1. Should there be minimum medical qualifications for
holders of commercial drivers licenses?
Driver Disqualification
As of September 30, 2002, commercial motor vehicle drivers
convicted of traffic violations while operating a car, which resulted
in the cancellation, suspension or revocation of the drivers' license,
are disqualified from operating a commercial motor vehicle. Individuals
convicted of committing drug-or alcohol-related offenses while driving
a car are also disqualified. This restriction has been in force now for
almost eight months now.
Question 1. Are you aware of any CDL holders that have been
disqualified as a result of this prohibition?
Question 2. How good are states in following this new rule by
revoking the CDLs of disqualified individuals or by reporting the
individuals to FMCSA?
Household goods movers
In recent years, there has been a growing number of complaints by
people household goods about movers engaging in illegal practices that
leave the or no recourse. The problem has grown with the increased
popularity of t which shippers often enter into contracts with carriers
because the prices o cheap. Complaints involve carriers who move goods
for a stated price an the goods back to the shipper until the shipper
pays additional charges. Ot goods that have been lost or damaged in a
move performed by a carrier th found, leaving the shipper with no
recourse.
Question 1. There are several proposed ways to address this growing
problem. One proposal would allow states to pursue consumer complaints
about interstate moves in their own state courts enforcing state laws.
Another proposal would allow states to pursue the complaints, but in
Federal court enforcing Federal law. Still another proposal would allow
states to pursue complaints under Federal law, but only against so-
called ``rogue'' movers. What do you think is the best way to offer the
most protection to people who are hiring commercial movers to transport
their household goods?
Question 2. The Carmack Amendment limits the damages a consumer can
seek against a household mover for negligence. If a mover loses or
irreparably damages a shipper's goods, the shipper can seek only to
have the mover pay for the actual loss. There are no damages allowed
for mental anguish or emotional distress, even though losing all of
your belongings in a move due to negligence by a household mover is
exteremely distressing. Should the Carmack Amendment be repealed or
amended?